In 1971, Iowa highway construction workers uncovered 28 human remains. Of these, 26 were white, and two, a mother and her baby, were Native American. The white remains were buried in a local graveyard, while the Native American remains were sent to a local university for study.

This decision was typical in the context of the past centuries' patrimonial laws, scientific racism, and outright genocide. In this case, however, a tribal member named Maria Pearson successfully pushed for both the return and proper burial of the Native American remains and the passage of a state law guaranteeing equal treatment of the remains of Native Americans and other peoples.

Pearson and other advocates continued lobbying for federal protection of their cultural items. In 1990, because of their efforts, Congress passed the Native American Graves and Repatriation Act ("NAGPRA"), which provides a framework for federally recognized Native American tribes and Native Hawaiian Organizations to reclaim ancestral remains and associated objects from entities that receive federal funding.

NAGPRA demonstrates the potential power the law has to promote social justice among members of structurally marginalized communities. The history of its implementation, however, demonstrates how its potential can be wasted through a failure by agencies …