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Home / A New Start? Understanding the Latest NAGPRA Regulations – Abbreviated Version
June 18, 2024|Comments Off on A New Start? Understanding the Latest NAGPRA Regulations – Abbreviated Version

A New Start? Understanding the Latest NAGPRA Regulations – Abbreviated Version

General Accounting Office Survey dated 10/10/2023 reports since 1990: Only 48% of the 208,698 Native American Ancestors reported in possession of museums have completed the NAGPRA process. This means at least 108,523 Ancestors (and possibly more) are still waiting. Only 71% of associated funerary objects reported to be in possession of museums have completed the NAGPRA process. This means at least 1,846,000 funerary objects (and possibly more) are still waiting.

This is an abbreviated version of the full text available here.

NAGPRA, the Native American Graves Protection and Repatriation Act, was passed on November 16, 1990, and includes criminal penalties for persons who traffic in Native American Human Remains and Cultural Items. Section 3 of the law established a new way of dealing with items found on Federal and Indian lands going forward from the date of passage. Section 7 started a process by which museums, which receive Federal funds, as well as Federal land management agencies, were required to catalog, notify and upon request, repatriate human remains and cultural items already in their collections to Indian Tribes and Native Hawaiian Organizations.

Implementation of the Act has fallen short of the lofty goals set by Congress. For example, Section 7 of the Act created civil penalties for museums that failed to comply with creating an inventory of Native American Human remains and funerary objects in their possession or control. The Interior Department established an office to implement the Statute (National NAGPRA) staffed by dedicated people, including an enforcement position. Unfortunately, various Secretaries of the Interior have allowed the enforcement job to remain vacant. Thus, the Act’s enforcement mechanism has had little overall effect. According to the ProPublica article, America’s Museums Fail to Return Native American Human Remains, the total amount of fines collected since the Act was passed was below $60,000, 33 years after passage. The article further details numerous museums that hold vast collections of Native American human remains and cultural items but classify them as “culturally unidentifiable” under NAGPRA law and regulations and thus have made no effort at repatriation.

The New Regulations at a glance:

Many Tribes and interest groups complained about the ineffectiveness of those portions of the law having to do with protection and repatriation.  More recently, the NAGPRA Review Committee, a group set up by the Interior Department to monitor compliance, as well as the Interior Department itself, set about to reinvigorate the law. The group consulted with the 574 recognized Tribes, the 129 Native Hawaiian Organizations (NHOs) and the 13 Alaska Corporations affected on ways to improve the regulations. The proposed rules were published for comment in the Federal Register on October 18, 2022. After processing over 2,000 comments and revising where necessary, the final rules were published by the Interior Department on January 12, 2024.

The new regulations aim to force museums, Federal agencies, and the State of Hawaii Department of Hawaiian Homelands (DHHL) to consult with Indian Tribes, and NHOs to revise inventories, and complete the long-awaited process of repatriating Native American human remains and cultural items in their possession. The rules established for excavations and discoveries on Federal and Indian Land require almost simultaneous notification of Tribes and consultation. A new “Duty of Care” rule is implemented on any human remains or cultural items within the custody or control of a museum, Federal agency, or DHHL. And a new base fine to provide a backbone to enforcement is also established. Other highlights of the regulations include:

  • A deadline of January 10, 2029, for museums and Federal agencies to update previously submitted inventories of Native American human remains and cultural items and to consult with direct ancestors or “Culturally Affiliated” Tribes and NHOs before doing so.
  • A deadline of January 13, 2025, for museums and Federal agencies to submit a list of holdings or collections in their possession or control which may contain human remains and cultural items – likewise, update and submit an updated inventory for items not listed in a previously submitted inventory.
  • The term, “culturally unidentifiable,” never a part of the regulations anyway, is no longer an excuse for museums not to inventory and repatriate. Museums and Federal agencies may now use acquisition history and geographical location in establishing cultural affiliation.
  • The role of Indigenous peoples in the repatriation process is included throughout the regulations with input and strict deadlines for consultation at every stage. However, the Indian Tribe involved in repatriation under the Act must be from a Tribe recognized by the Secretary of the Interior. Also, the term “Native American traditional knowledge” now becomes a part of the process in determining the cultural affiliation between Tribes, individuals and human remains and cultural items.
  • At every stage the regulations impose procedures with strict deadlines for action by museums, Federal agencies, the DHHL, and by direct descendants, Indian Tribes, and NHOs. Failure to make a timely claim for disposition or repatriation can result in an “irrevocable waiver” of such claims.
  • A new “Duty of Care” requirement applicable to museums, Federal Agencies, and the DHHL, requires them to care for, safeguard, and preserve human remains and cultural items in their care or control. Consultation with lineal descendants, Indian Tribes and NHOs is required.
  • Museums and agencies with custody of human remains and cultural items must now obtain prior and informed consent from lineal descendants, Indian Tribes and NHOs before permitting exhibition of or access to human remains and cultural items.

 

These represent the fifth set of regulations since the statute was passed in 1990. Many of the institutions interviewed for the Pro Publica article state a willingness to implement the new rules but state that new staff, and the money to hire staff, will be necessary if the deadlines are to be met. One change has occurred within the last year. The Interior Department has filled the NAGPRA Enforcement position with a highly qualified person. Stay tuned . . .

Credits:

Written by Randy Ream

About the Author

Randy Ream is a recently retired Assistant U.S. Attorney. For 35 years he investigated and prosecuted criminal violations of ARPA and NAGPRA in Western Kentucky. In 2003, his USA v. Long case was the first NAGPRA criminal case brought in the Eastern United States. He has also taught Cultural Property Law for the U.S. Department of Justice, the Federal Law Enforcement Training Center, the National Park Service Mather Training Center and Bureau of Indian Affairs ARPA Assistance Initiative.

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