Department of Interior Revises Regulations for Native American Graves Protection and Repatriation Act

Enacted in 1990, NAGPRA aims at protecting Native American gravesites and human remains from desecration, as well as providing a way for Native American tribes to recover ancestral remains from federally-funded museums, agencies, and institutions. The Department, charged with promulgating NAGPRA implementing regulations, proposed the main body of the regulations in 1993, and they became effective in 1996. Although the Department has made changes to the regulations throughout the years, including most recently in 2015, none have been as significant as these revisions.

The Department Secretary Deb Haaland explained that the updates “are critical steps to strengthen the authority and role of Indigenous communities in the repatriation process.” The Department’s announcement further explained that the new regulations do this by, among other things, “requiring deference to the Indigenous Knowledge of lineal descendants, Tribes and [Native Hawaiian Organizations].”

The rule makes several changes, including:

• Requiring museums and Federal agencies to consult and update inventories of human remains and associated funerary objects by January 10, 2029, or, for items “previously lost or unknown,” within two years of locating.
• Eliminating the category “culturally unidentifiable human remains.”
• Further explaining that custody of an object or item through a loan, lease, license, bailment, or other similar arrangement is not a sufficient interest to constitute “possession or control,” which resides with the loaning, leasing, licensing, bailing, or otherwise transferring museum or Federal agency.
• Outlining a step-by-step process for determining cultural affiliation of human remains or cultural items, including an explanation that one type of information, including Native American traditional knowledge or geographical information, is sufficient for cultural affiliation. The rule also replaced the “preponderance of the evidence” standard for determining cultural affiliation with “clearly” or “reasonably” identifiable standard.
• Removing all references to Native American groups without Federal recognition.
• Requiring museums and Federal agencies to obtain free, prior, and informed consent from lineal descendants, Tribes, or Native Hawaiian Organizations before allowing any exhibition of, access to, or research on human remains or cultural items.
• Defining “consultation” to provide more instructions on goals and process.
• Broadening the civil penalties provision to apply to museums’ failure to comply with any requirement of Subpart C, related to “Repatriation of Human Remains or Cultural Items by Museums or Federal Agencies” or the Act.

The revised regulations went into effect on January 12, 2024. Ballard Spahr attorneys routinely assist museums and universities in ensuring compliance with NAGPRA and other issues related to the treatment of human remains, and are available to advise on the effects of these regulatory changes.

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