“This 2002 photo shows artifacts stored at the Research Center of the North Carolina Office of State Archaeology. The office, which is housed in the state’s Department of Natural and Cultural Resources, holds the second-largest number of Native American ancestral remains in North Carolina. (Photo via North Carolina Digital Collections.)”1
On January 12, 2024, the new regulations implementing the Native American Graves and Repatriation Act went into effect.2 The histrionics that followed included media coverage of the American Museum of Natural History in New York City, announcing that they were abruptly closing two wings of the museum as a result of the new NAGPRA regulations.3
This should be no surprise since these regulations have been proposed for more than a year, and comments have been received over that period which meets our Constitutional due process for notice when someone will be affected by a new rule or law. The need for more money for museums has been a continuing request since NAGPRA was first passed in 1990, and $60 million in federal funds has gone to museums to comply with NAGPRA. Yet, it is the museums with the greatest resources that are complaining about the inconvenience of these new regulations.4 The Harvard Peabody Museum began closing exhibits on the day the regulations were effective, Jan. 12, 2024; while other large, well-funded museums followed.
Sign posted at the National Museum of the American Indian in New York. Photo credit: The New York Post.5
What museums are included?
Any museum, institution, university, state agency, or local agency that receives Federal funds are subject to NAGPRA. This could also include private museums who accepted COVID stimulus funds.6 (The Smithsonian Institution is an exception and has only some NAGPRA-like requirements under the National Museum of the American Indian Act of 1989.7 .
Consultation — feigned surprise from museums
For purposes of repatriation, we cannot require museums to conduct the same level of consultation that would be required for a Federal agency. We feel this definition of consultation provides requirements that can be met by both museums and Federal agencies, fills in a missing piece of the Act and the existing regulations, and ensures consultation remains a critical, central, and continual part of the systematic processes for disposition or repatriation.
The regulations made two major changes to consultation. One, was to add “good faith” to the definition of consultation. 8 This was in response to comments from Tribes to strengthen consultation. Two, the agency expanded the definition of “consultation” by drawing on other regulatory definitions where consultation is required. There is only one federal statute that requires consultation with Tribes and that is the National Heritage Protection Act (implemented by the National Park Service), but only in the regulations implementing the Act. This is the statute that protects National Heritage Sites through a Section 106 process. So the regulation draws from that National Park Service definition and adds: “Seek, discuss, and consider the views of all parties”.9 The definition in the regulation also incorporates agency guidance which does not have the force of law like regulations, but courts often rely on it for interpreting the regulations:
Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process. The Secretary's “Standards and Guidelines for Federal Agency Preservation Programs pursuant to the National Historic Preservation Act” provide further guidance on consultation.
Through the duty of care provision, the phrase “free, prior, and informed consent” was added to the duty of care, which is part of consultation.10
Not only new NAGPRA regulations were recently made final requiring consultation with Tribes for purposes of NAGPRA, but the final policy for consultation with Tribes was published and effective December 27, 2023. This was preceded by E.O. 13175 that requires all federal agencies to consult with tribes on any activity that may affect them. 11
New Obligations for Tribes
But new obligations have also been imposed on Native Nations. The BIA, the agency issuing the regulation wrote in response to questions about these new obligations:
“We agree there are new requirements for Indian Tribes to take certain actions under Subpart B that under the existing regulations are voluntary. . . . We agree that Indian Tribes have discretion under the existing regulations in responding to a discovery on Tribal lands and that the final regulations will require Indian Tribes to respond to discoveries on Tribal land.”
The new obligation is intended to give museums and researchers more certainty, but it is not because Indian Tribes were not interested — they are just simply stretched too thin with government infrastructure and training. They are acting like small nations and require the infrastructure to support multiple responsibilities and obligations, and this kind of notification requires special expertise. This means that there will be a time limit for responding and so Indian Tribes will need to be vigilant so as not to lose their viable claims to discoveries. Does this mean there is now an expiration date for claiming an Indian Tribe’s human remains? That remains to be seen.
Residential schools and Carlisle Indian School Exclusion
Many Tribes asked to include Carlisle within the scope of NAGPRA so that they were not thwarted by the objections of the U.S. Army to the return of human remains to the Tribe. (The U.S. Army insists it is not subject to NAGPRA and so applies its own Army guidance for the return of human remains, which could mean they refuse.)
Tribes asked that lands on which Native American children were buried at Indian boarding schools, be defined as “federal lands”, yet the BIA/DOI declined, commenting: “we cannot amend the regulatory definition of ‘Federal lands’ as requested.”12
Tribes also asked that the definition of “discovery” should also include language that brings residential boarding schools not owned by the government within the scope of NAGPRA. This request is consistent with the U.S. Supreme Court’s opinion that the federal government cannot use others (contractors, etc.) to carry out activities that it is otherwise constitutionally prohibited from doing.13
Disregarding this precedent, BIA/DOI declined to extend scope and concluded that some of the residential schools were run by private organization, and despite being government contractors, they claimed that the federal government was therefore not responsible. The U.S. Supreme Court did not allow such “work arounds” for the federal government to act unconstitutionally while claiming it was the contractors’ fault.14
The Paper Genocidal Narrowing of NAGPRA
In a little acknowledged change to NAGPRA, BIA/DOI removed any reference to Tribes that might suggest non-federally recognized tribes would be able to claim their own ancestor’s human remains or sacred objects. They proudly listed this action in an innumerated list of actions in the comments:
2. Removed all reference to Indian groups without Federal recognition and prioritized the rights of federally recognized Indian Tribes in disposition and repatriation (§ 10.2 Definitions for this part “Indian Tribe” and §§ 10.7(d) Disposition and 10.10(k) Repatriation). 15
One small bone that was thrown to non-federally recognized tribes was that “. . . state recognized tribes, are not completely excluded. . .” from repatriation if they can find a federally-recognized tribes to make the claim with them.16 Despite 40 comments supporting non-federally recognized tribes being included within the scope of NAGPRA (and only 13 comments opposing it), BIA/DOI declined to make this obviously overwhelmingly needed change.
Unfortunately, the internal conflict between some federally recognized tribes and their perceived threat from state recognized tribes, means a potential conflict of interest for BIA’s Native American employees who all come from federally-recognized tribes.17
Reflection on the new NAGPRA regulations
The regulatory requirement for consultation is mandatory now, yet many museums where consulting with Native Nations about their collections for decades and have built strong relationships. The feigned dismay from wealthy museums who failed to consult with Native Nations about their collections is not only a matter of compliance but of ethics.
Many losses from not addressing the egregious repatriation of human remains from residential schools and the U.S. Army’s Carlisle Indian School was left in its current state of disarray. The failure to include a mechanism for state recognized tribes to collaborate on NAGPRA claims was another loss that could have easily been cured by addressing the majority of the comments that wanted this change. Small changes in “good faith” amounted to simply moving words from the process to the definition — one might call that a micro-win. Obligations on Native Nations for notices to them about repatriation where resources to address these notices are on a tight timeline, leaves an uncertain future, but more certainty for museums.
Since 1990, when NAGPRA was passed and required museums and institutions to begin repatriation of human remains and other covered artifacts and sacred objects, only about half of human remains have been made available for return in that 34 years.18 NAGPRA’s new deadlines are intended to speed up the current pace of repatriation.
NAGPRA’s basic substantive processes and provisions stayed the same, while the new regulations imposed new obligations on museums and Native Nations. Despite the negative news spin this week —that new regulations had caused the surprise shut-down of museum exhibits, the long term looks much brighter. The Consultation requirement could lead to stronger relationships between museums and Indian Country and maybe museums who failed to consult with Native Nations in the first place, can now do a better job with their interpretations of their exhibits for the public.
https://www.facingsouth.org/2023/04/repatriating-remains-complicated-for-southeastern-tribes.
https://www.federalregister.gov/d/2023-27040/p-amd-1.
https://nypost.com/2024/01/26/metro/nyc-museum-of-natural-history-closing-native-american-exhibits-new-tribal-consent-laws/.
https://www.theartnewspaper.com/2024/01/29/us-museums-nagpra-native-american-displays-new-regulations.
https://nypost.com/2024/01/27/metro/museum-of-natural-history-plans-to-wall-off-huge-exhibit-that-houses-10k-square-feet-of-native-american-relics/
https://ictnews.org/news/private-museums-could-face-nagpra-scrutiny.
The National Museum of the American Indian Act of 1989, 20 U.S.C. 80q.
https://www.federalregister.gov/d/2023-27040/p-192 .
36 CFR part 800.16.
https://www.federalregister.gov/d/2023-27040/p-148.
https://www.federalregister.gov/documents/2023/12/27/2023-28493/revised-final-tribal-consultation-policy#:~:text=In%20accordance%20with%20Executive%20Order,affected%20Indian%20tribes%20will%20occur.
https://www.federalregister.gov/d/2023-27040/p-206
Burton v. Wilmington Parking Garage (U.S., 1961) at https://www.oyez.org/cases/1960/164.
Burton v. Wilmington Parking Garage (U.S., 1961) at https://www.oyez.org/cases/1960/164 .
https://www.federalregister.gov/d/2023-27040/p-40
https://www.federalregister.gov/d/2023-27040/p-55
https://casetext.com/case/nakai-v-zinke-1
https://projects.propublica.org/repatriation-nagpra-database/