A New Start? Understanding the Latest NAGPRA Regulations – Full Text

The following is the full version of this article. An abbreviated article is 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 (all defined under the Act). The law was further intended to start a process by which museums, which receive Federal funds, as well as Federal land management agencies, were required to catalog and return remains and cultural items to lineal descendants, Indian Tribes and Native Hawaiian Organizations (NHO’s).

Almost everyone agrees that implementation of the Act has failed to achieve the lofty goals set by Congress. A General Accounting Office survey published October 10, 2023, reported that of the 208,698 Native American human remains reported in the possession of museums since 1990, only 48 percent have completed the NAGPRA process. The same study states that of 2.6 million associated funerary objects reported by museums, the process of repatriation has been completed for only 71 percent. The regulations promulgated under authority of Deb Haaland, the first U.S. Secretary of the Interior of Native American origin, on January 12, 2024, are the most comprehensive yet. While museums and Federal agencies may already have completed summaries of items in their possession, the new regulations require them to identify and consult with culturally affiliated Tribes and direct descendants and submit new summaries as part of the repatriation process. Other changes, throughout the regulations, continue with the stated goal of Secretary Haaland to insert the role of indigenous peoples as never before in the repatriation process.

Applicability of NAGPRA, Duty of Care and Determining Cultural Affiliation under the Act:

Part A of the regulations, 43 CFR Sections 10.1, 10.2 and 10.3, lay the groundwork for compliance. The regulations apply to Native American human remains, funerary objects, sacred objects and objects of cultural patrimony (all defined in the Act and regulations) and require actions by State and local governments if they receive Federal funds. This includes museums, colleges, and universities. The regulations also require actions by Federal agencies and the Department of Hawaiian Home Lands (DHHL) if they have possession or control over holdings or collections of these items or have responsibilities on Federal or Tribal land. And NAGPRA applies not only on land owned by U.S. government (so-called fee ownership) but also to lands the agency controls. For example, if the U.S. Army Corps of Engineers controls a lease or easement on land where these items are found, these regulations apply to that location as well. And the excavation and discovery provisions also apply to all non-trust lands within the exterior boundary of an Indian reservation.

The regulations also recognize the rights of lineal descendants, Indian Tribes and Native Hawaiian Organizations in Native American human remains and cultural items.  Lineal descendants must be able to trace their ancestry to an individual associated with these items through the common-law system of descent or through the Native American kinship system. A Tribe is an Indian Tribe which is defined as any band, nation or other organized group or community of Indians recognized as eligible for special programs and services provided by the United States Government.  As such, NAGPRA does not apply to Indian communities which are not recognized by the Secretary of the Interior.

For the first time since NAGPRA was passed in 1990, Section 10.1(d) of the regulations sets out a Duty of Care requirement. Federal agencies and museums are required to consult with lineal descendants and Tribes on the appropriate storage, treatment and handling of human remains and cultural items and make a good-faith effort to incorporate Native American traditional knowledge. The term Native American traditional knowledge, new to the NAGPRA regulations, is defined to include knowledge, philosophies, beliefs and traditions that are embedded and safeguarded by individual Native Americans and Tribes. Further, the Duty of Care regulation incorporates a new requirement that museums and Federal agencies obtain prior and informed consent from lineal descendants and Indian tribes prior to   allowing any exhibition of, access to, or research on Native American human remains or cultural items. Many museums and Federal agencies have already removed or covered public displays of these items from visitor centers and are limiting access to Native American collections pending receipt of consent from the appropriate affiliated Indian Tribes.

Section 10.3 of the regulations, Determining Cultural Affiliation, contains terms and definitions which more readily facilitate repatriation. The new regulations state that a cultural affiliation may be established by a “reasonable connection” between the human remains or cultural items in question and an Indian Tribe or Native Hawaiian Organization (NHO). It is expressly stated that an exhaustive study is not necessary and reasonable gaps in available information may also be present. Also, museums, Federal agencies and the DHHL, in making their determination, must consult with Indian Tribes and NHO’s. A new term, used for the first time in the regulations, “Native American traditional knowledge” is one of the factors that may be considered.

Protection of Human Remains and Cultural Items on Federal or Tribal Land

Part B of the regulations, 43 CFR Sections 10.4, 10.5, 10.6. and 10.7, pertain to the discovery, excavation and disposition of human remains and cultural items found on Federal or Tribal lands.   Federal lands are defined under the Act to include lands both owned and controlled by the United States. Tribal lands are defined to include lands within the exterior boundary of a reservation; that is, both trust and non-trust land, along with private, state and federal lands within that boundary. Section 10.4 of the regulations states that for both Federal and Tribal land any permit, license, lease or authorization for activity must include a requirement to immediately report any discovery or human remains or cultural items. On Tribal land, this new rule is significant. In the past, inclusion of this requirement was optional and only included trust land.

Section 10.4 states also that Indian Tribes and Federal agencies with responsibilities under the Act, must designate one or more “Appropriate Officials” to ensure compliance. Federal agencies with responsibility for a planned excavation on Federal or Tribal lands, must have in place a “Plan of Action.” An unplanned discovery requires a follow-up plan of action. The plan must first identify in writing the lineal descendants and Indian Tribes with potential cultural affiliation with whom they will consult. Among other requirements the plan must describe the planned activity or discovery and propose a timeline within which consultation will take place. A record of the consultation should include an agreement on a duty of care for any human remains or cultural items and whether those items will be removed or remain in situ and a timeline for compliance. Indian Tribes are not required to have a plan of action if they have responsibility for a discovery or excavation on Tribal lands.

Section 10.5 sets rules for the discovery of human remains or cultural items on Federal or Tribal land. Any person who knows or has reason to know of a discovery must immediately report it to the appropriate official if on Federal land and to and to any Indian Tribes or NHO with a cultural affiliation. If on Indian land, the discovery must be reported to the Indian Tribe or NHO. This notification must occur in writing within 24 hours and include the geographical location of the discovery, its contents, and the steps taken to secure and protect it.  Any activity which could threaten the discovery must cease immediately and confirmation of this must be included in the written discovery report. In not less than 3 days the appropriate official must respond and ensure that all requirements have been met. If the discovery occurs on Tribal land, Tribes may delegate this responsibility in writing to the Bureau of Indian Affairs or other Federal agency with primary management authority. If a plan of action for such a contingency is not already in place; within 30 days the appropriate official, in consultation with the lineal descendant or Indian Tribe, a plan must be approved and signed.  A separate written certification must be prepared by the appropriate official within 30 days after receiving documentation of the discovery. The certification must be sent to the Federal agency or affiliated Tribe, as is appropriate, and include a copy of the plan, and instructions for implementing decisions on how the human remains and cultural items will be protected, secured and stabilized. If the discovery was caused by an authorized activity, the certification must also be sent to the person responsible and include the date on which lawful activity may resume (not less than 30 days after the certification is sent.

When a discovery or excavation of Native American human remains or cultural items occurs, and the items are removed from Federal or Tribal land, Section 10.7 governs their disposition. Within one year, the appropriate official must notify the lineal descendant or Indian Tribe which has the priority for disposition. The regulation sets out a detailed procedure for disposition of the items and a priority for disposition that starts with the known lineal descendant, if any, and is followed in order by the Indian Tribe or NHO on whose lands the items were discovered, and by the Tribe or NHO with the closest cultural affiliation if that is different. If a Tribe is responsible for the disposition, and agrees upon a recipient, they must complete and retain a disposition statement pursuant to 10.7(b).

If a Federal agency or DHHL is responsible, a notice of intended disposition, based upon the priorities stated above, is sent to both the consulting parties and to the Manager of the National NAGPRA program, who places notice of the intended disposition in the FEDERAL REGISTER. Persons notified may file claims for disposition to the appropriate official named in the notice of intended disposition.  Not later than 90 days after publication, the Federal agency must send a written response to the claimant which: informs them their claim meets the criteria for disposition; that their claim does not meet the criteria, but that additional information may be submitted; or that the agency has received conflicting claims which meet the criteria. Any unclaimed items also receive published notice. If no lineal descendant Indian Tribe or NHO has submitted a claim for disposition within one year after the notice has been published, the Federal agency must report the human remains or cultural items as unclaimed to the Manager, National NAGPRA program. Section 10.7(d) details procedures for human remains or cultural items when no lineal descendant or culturally affiliated Indian Tribe or NHO has been identified within one year after notice has been provided. Under these circumstances, the regulations permit the Federal agency or DHHL to transfer unclaimed items to an Indian Tribe or NHO not culturally affiliated or decide to reinter the items according to applicable laws and practices.

If a Federal agency has received competing claims for disposition, no later than 14 days the claimants must be notified of the competing claims and provided an opportunity to submit additional information to show by a preponderance of the evidence that their claim is the stronger one. No later than 180 days after informing the claimants of the competing claims, the agency must send a written determination to each claimant identifying the most appropriate claimant or claimants. No later than 90 days after submitting its determination, the agency must send a written disposition statement to the claimants and the Manager, National NAGPRA program. The statement recognizes whether individual or joint claimants are recognized as owners, information as to how transfer of custody is to take place, and documentation of this process. The agency also must protect sensitive information, as identified by the claimants, from the general public.

 

Subpart C. The Repatriation Portion of the Regulations.

Subpart C seeks to provide a spark to the repatriation process which many believe has languished since passage of the Act in 1990. Section 10.8, the General provisions, clarifies how the repatriation portion of the regulations works. Museums that receive Federal funds must comply with the repatriation regulations and report holdings or collections in their possession or control that contain Native American human remains, funerary objects, sacred objects or objects of cultural patrimony. The report must be made to any Federal agency that may have loaned them the holding or collection and to the manager, National NAGPRA program. Deadline for the report is January 25, 2025. The responsibilities of Federal agencies are likewise clarified. The repatriation regulations apply to collections or holdings acquired before passage of the NAGPRA Act on November 16, 1990. In general, the regulations we will discuss, require agencies to update their collections, consult with direct descendants or affiliated Indian Tribes, and engage in the repatriation process. While they may engage in the repatriation process earlier, the deadline for doing so is January 10, 2029. For collections or holdings of these materials removed from Federal or Tribal lands after November 16, 1990, another and more expedited rule concerning repatriation applies – Rule 7, discussed in the previous section.

Repatriation of unassociated Funerary Objects, Sacred Objects and Objects of Cultural Patrimony.

The purpose of Section 10.9 of the regulations is to provide general information about holdings or collections in possession or control of a museum or Federal agency which contain unassociated funerary objects, sacred objects, and objects of cultural patrimony, as defined in NAGPRA, to lineal descendants and Indian Tribes to facilitate their repatriation.

After January 12, 2024, a “summary” including the estimated number and general description of these items, as well as their location, acquisition history, and other relevant information, including the presence of any potentially hazardous substances used to treat the items, must be submitted to the Manager of the National NAGPRA program. The summary is due within 6 months after acquiring possession of the items, or 6 months after locating the items if their location was previously unknown. Museums which did not previously receive Federal funds, but subsequently do, have three years to compile and submit a summary. Summaries submitted prior to January 12, 2024, only need to be revised if any of the above stated conditions apply.

After compiling and submitting the summary, the museum or Federal agency has 30 days in which to identify consulting parties and invite them to consult. Parties are any lineal descendants associated with the items or any Indian Tribe with a potential cultural affiliation. The “invitation to consult” must be in writing and include the summary, the names of all parties consulted, and the method for consultation.  In the actual consultation, the museum or agency makes note of identifying information (phone numbers, mailing addresses, etc.) of consulting parties and notes their preferences on a proposed timeline for the consultation and method (in person meeting, zoom call, etc.). The consultation must address the issue of the identity of any lineal descendants, Indian Tribes with cultural affiliations and the preferred duty of care for the items. Finally, the museum or agency must prepare a record that incorporates the positions, lack of concurrence, etc. of the parties to these issues.

The museum or agency may next receive a “requests for repatriation.” The regulation outlines the information which must be included in the request, including which items the request pertains to, the cultural affiliation of the lineal descendant or Tribe to the item and that the museum or agency does not have the right to possess them. The museum or agency has 90 days to respond to the request for repatriation in writing and provide copies to other consulting parties. The museum or agency may do one of the following: agree that the request meets the requirements of the regulation and submit a notice of intended repatriation; state that the request does not meet the criteria with a detailed explanation and request additional information from the party; state that the museum or agency asserts a right to continued possession of the item or items, with explanation in writing; or, state that they have received competing requests and that the requests will be considered pursuant to evaluation criteria contained in the regulation. If the museum or agency agrees to the request, a “notice of intended repatriation” is filed with the Manager of the National NAGPRA program so that notice may be filed in the FEDERAL REGISTER. In not less than 30, nor more than 90 days, the final step, a “Repatriation Statement” is sent to all requestors stating which party or parties have perfected their claim and how transfer will occur. If at any time during this process, but before the repatriation statement has been issued, additional requests are made, detailed regulations exist on resolving these requests.

Repatriation of Human Remains and Associated Funerary Objects.

Repatriation of human remains and associated funerary objects are governed by 43 CFR § 10.10. Each museum or Federal agency in possession or control of these items must first compile a list and then consult with known lineal descendants and any Tribe with a cultural affiliation. The goal is to create an inventory listing of items with one of the following noted as to each item: a known lineal descendant; an Indian Tribe with a cultural affiliation that is clearly identified; an Indian Tribe with a cultural affiliation that is reasonably identified by the geographic location or acquisition history; and finally if none of the above exist, no lineal descendant or Indian Tribe with a cultural affiliation that can be clearly or reasonably identified, the listing is culturally unidentifiable.

The deadline for a museum or Federal agency to complete the new inventory and submit it to the Manager, National NAGPRA program is within 2 years after acquiring possession or control over the human remains or associated funerary objects; within 2 years after locating previously lost or unknown items; or within 5 years for museums that receive Federal funds for the first time after January 12, 2024.

Within 6 months after completing the inventory, but not later than January 10, 2029, any museum or Federal agency which is in possession of or controls Native American human remains or associated funerary objects, and did not submit a notice of inventory completion prior to January 12, 2024, must have completed the consultation process outlined in Section 10.10 (a) through (d), and submit the notice of inventory completion to the Manager of the National NAGPRA program for publication in the FEDERAL REGISTER.

After publication of the notice of inventory completion, any lineal descendant or Indian Tribe may submit a written request for repatriation to the museum or Federal agency. Requests may be from two or more lineal descendants or Tribes and may be from requestors identified in the notice of inventory completion or if not so identified the requestor must show by a “preponderance of the evidence” that they are a lineal descendant or an Indian Tribe with a cultural affiliation. When only one qualified request exists, the museum or Federal agency must send a repatriation statement to the requestor and to the Manager, National NAGPRA, and document their having consulted with the requestor on the transfer and protect sensitive information, identified by the requestor, from disclosure to the public.

If competing requests are evaluated pursuant to Section 10.10 (i). The following priority for identifying the most appropriate requester is first, any lineal descendant; second, the Indian Tribe with the closest affiliation. If there are competing requestors, the museum or agency must notify all requestors and may receive additional information from requestors by which they may demonstrate by a “preponderance of the evidence” standard that they have a stronger relationship of shared group identity with the human remains or associated funerary objects. Not less than 180 days after receiving competing requests the museum or Federal agency must send a written determination identifying the most appropriate requester with a copy to the Manager, National NAGPRA. Section 10.10(j)(2) governs when a determination among competing requests cannot be decided upon. Also, when no lineal descendant or no culturally affiliated Indian Tribe can be identified, by regulation, a museum or Federal agency, after providing notice in the FEDERAL REGISTER, may reinter the items or transfer them to an Indian Tribe for interment.

 

Civil Penalties

Previous penalty provisions under NAGPRA were specific as to a limited number of violations for which they could be assessed. The new regulations are not so limited and may apply to museums which fail to comply with any of the requirements of NAGPRA, its regulations and deadlines for compliance. Civil penalties may be assessed by the Assistant Secretary of the Interior; the person designated by the Secretary of the Interior for authority under the Act. The penalties do not apply to Federal agencies. Section 10.11(a) states that any “person” may file an allegation of failure to comply with the Act by sending a written allegation to the Manager, NATIONAL NAGPRA. Section 10.2 defines a “person” under the Act as any individual, partnership or corporation and also any official, agent or employee of the United States Government, of any State or subdivision of a State, or any Indian Tribe.

The regulation sets out the formal requirements of the allegation which must include the name and contact information of the person making the allegation and the specific provisions of the Act that the museum is alleged to have violated. Since each allegation is a separate violation, the allegation may enumerate each violation with facts which prove the allegations. “Relevant factors” include the number of lineal descendants and Indian Tribes aggrieved by the failure to comply, as well as the number of individuals, funerary objects, sacred objects or items of cultural patrimony involved in the alleged misconduct. Once served by certified mail or any delivery service with proof of delivery date, the Assistant Secretary has 90 days within which to respond.

The Assistant Secretary may: find the alleged failure to comply is substantiated, determine the number of separate violations, and determine if a monetary penalty is the appropriate remedy; find the alleged failure to comply is substantiated, determine the number of separate violations, but find that a monetary penalty is not an appropriate remedy; or, find the alleged failure to comply is unsubstantiated.

The base penalty amount is $8,475 for each separate violation and will be recalculated each year based upon inflation. The base penalty amount may be increased based upon such factors as:  the ceremonial or cultural value of the human remains as identified by the lineal descendants or Indian Tribes; the archaeological, historical or commercial value of the items involved; the economic and non-economic damages suffered by aggrieved lineal descendants and Indian Tribes , including expenditures by persons to compel the museum to comply on this subject; the number of prior violations that have occurred; or, any other appropriate factors justifying an increase. The base penalty amount may be decreased based upon such factors as: the museum having come into compliance; the museum agrees to mitigate the violation by an actual or in-kind payment to the aggrieved parties; the penalty constitutes excessive punishment under the circumstances; the museum is unable to pay the full penalty and has not failed to comply in the past, or any other appropriate factors justifying a decrease. If the museum alleges financial hardship, the Assistant Secretary may request a full range of financial information justifying their ability to pay. If the museum fails to respond to the request, the museum may be assumed to have the ability to pay.

If a notice of failure to comply is warranted, the Assistant Secretary does so in writing, which includes the proposed penalty amount, with copies to those making the allegations. A museum has 45 days within which to respond and may: seek an informal discussion on their failure to comply with the Act; ask the Assistant Secretary to reconsider their failure to comply or to reduce the amount of the penalty; or, agree in writing to accept the determination of failure to comply and pay the fine and complete any mitigation suggested in order to reduce the penalty. The Assistant Secretary then issues a formal notice of assessment.

After assessment of the penalty by the Assistant Secretary, the museum has 45 days to accept the assessment or request a hearing before an Administrative Law Judge (ALJ). Section 10.11(i) outlines the hearing procedures and requirements. The ALJ may find, by a preponderance of the evidence, for or against the position of the Assistant Secretary, or may find the museum liable but increase or reduce the penalty amount.  Following the Judge’s written findings of fact and conclusions of law, the museum may accept a finding of liability or appeal the decision to the Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior. If at any point, a penalty is assessed but the museum fails to pay, the Attorney General of the U.S. may institute a civil action to collect the penalty in U.S. District Court.

Credits:
Randy Ream

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.