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Repatriation of Native American Remains and Cultural Items:
Requirements for Agencies and Institutions
Federal agencies, museums, and other institutions have,
Inventory and Summary of Human Remains,
over time, acquired human remains and cultural items
Funerary Objects, and Cultural Items
related to the indigenous peoples who originally inhabited
Entities subject to NAGPRA and NMAIA are required to
the United States. Congress has, at times, made an effort to
inventory Native American and Native Hawaiian human
require the return or repatriation of some of these remains
remains and funerary objects in their possession or control
and artifacts to lineal descendants, modern-day federally
within a specified time frame. Funerary object generally
recognized tribes, and other groups that have a cultural
refers to objects that, as part of a culture’s death rite or
affiliation with those items. In particular, two federal laws
ceremony, are intentionally placed with individual human
establish requirements and timelines for such repatriations:
remains, either at the time of burial or later (see 20 U.S.C.
the Native American Graves Protection and Repatriation
§80q-14(4) and 25 U.S.C. §30001(3)(A)). Both laws
Act (NAGPRA; 25 U.S.C. Ch. 32) and the National
require the inventory to itemize each of the relevant
Museum of the American Indian Act (NMAIA; 20 U.S.C.
remains and objects and identify their geographic and
§80q et seq.). NAGPRA, enacted in 1990, applies to federal
cultural affiliation (see “Determination of Cultural
agencies and certain museums and institutions receiving
Affiliation”).
federal funding. NMAIA, enacted one year prior in 1989,
applies to the Smithsonian Institution (SI) (primarily the
In addition to this inventory, entities are required to compile
National Museum of Natural History and the National
a summary of sacred objects, objects of cultural patrimony,
Museum of the American Indian).
and unassociated funerary objects. Funerary objects are
NAGPRA and NMAIA Requirements
considered to be unassociated if the human remains with
The Department of the Interior’s National Park Service
which the objects were placed are not in the control of a
museum or federal agency. The summary is in lieu of an
(NPS) administers the NAGPRA program and oversees its
object-by-object inventory and “must describe the scope of
implementation pursuant to regulations promulgated at 43
the collection, kinds of objects included, reference to
C.F.R. Part 10. SI’s National Museum of Natural History
geographical location, means and period of acquisition and
and National Museum of the American Indian have
cultural affiliation, where readily ascertainable” (25 U.S.C.
established their own repatriation procedures and policies
§30004 and 20 U.S.C. §80q–9a(a)).
that comply with NMAIA. Museum policies and officials
have stated that SI voluntarily consults the NAGPRA
Determination of Cultural Affiliation
regulations where appropriate for guidance.
As part of the inventory and summary requirements,
NAGPRA and NMAIA direct entities to try to determine
NAGPRA and NMAIA differ in scope and include a wide
the cultural affiliation of the remains and objects or
range of provisions (e.g., NAGPRA also addresses remains
artifacts in their possession. Cultural affiliation means there
and cultural items excavated from federal or tribal lands
is a relationship of shared group identity that can be
following enactment). Both NAGPRA and NMAIA require
reasonably traced historically or prehistorically between a
institutions to conduct certain activities pertaining to the
present-day Indian tribe or NHO and an identifiable earlier
repatriation of items within their collections. Specifically,
group (see 25 U.S.C. §3001 and SI repatriation policies).
both laws require entities to
Under NAGPRA regulations, cultural affiliation is
•
established when the preponderance of the evidence—based
inventory or summarize the Native American (including
on geographical, kinship, biological, archeological,
Alaska Native) and Native Hawaiian human remains,
linguistic, folklore, oral tradition, historical evidence, or
funerary objects, and cultural items in their possession
other information or expert opinion—reasonably leads to
within a certain timeline;
such a conclusion (43 C.F.R. §10.14). For SI, NMAIA
• determine the origins or cultural affiliation of such
specifies that affiliation should be determined “using the
remains and items; and
best available scientific and historical documentation” (20
•
U.S.C. §80q–9). Both laws require consultation with
upon request, repatriate them to the appropriate
officials and/or traditional religious leaders of tribes and
descendant(s), tribe(s), or Native Hawaiian
NHOs in determining cultural affiliation and notification to
organization(s) (NHOs).
the affected tribes or NHOs if an affiliation is established.
Repatriation
If cultural affiliation is established, both NAGPRA and
NMAIA require entities, upon request, to “expeditiously
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link to page 2 Repatriation of Native American Remains and Cultural Items: Requirements for Agencies and Institutions
return” such remains or objects to the relevant
• More than 353,000 unassociated funerary objects have
descendant(s), tribe(s), or NHO(s) (25 U.S.C. §3005 and 20
been repatriated.
U.S.C. §80q–9). NAGPRA carves out certain exceptions to
• As of September 2022, roughly 765,000 associated
this repatriation requirement. For example, in instances
funerary objects were pending consultation and/or
wherein such items are “indispensable for completion of a
notice, 96% of which were not yet culturally affiliated.
specific scientific study, the outcome of which would be of
major benefit to the United States,” entities are required to
Unlike NAGPRA, NMAIA does not have an annual
return such remains or items following completion of the
reporting requirement. However, since 2011, SI has
study (25 U.S.C. §3005(b)). In addition, if there are
submitted annual reports detailing its repatriation progress.
multiple competing requests for repatriation and the
In February 2022, SI reported that since the enactment of
appropriate claimant cannot be determined, NAGPRA
NMAIA, it has repatriated more than 6,000 human remains,
allows for the retention of such items until the requesting
250,000 funerary objects, and 1,400 sacred objects and/or
parties agree on their disposition or the dispute is otherwise
objects of cultural patrimony.
resolved (25 U.S.C. §3005(e)). NMAIA does not consider
such scenarios for SI; however, SI internal policies address
Issues for Congress
instances of competing claims in a similar manner to those
Congressional concerns have been raised around the
outlined under NAGPRA.
progress in repatriating remains and items held in
collections. Although the majority of culturally affiliated
Neither NAGPRA nor NMAIA require federally recognized
remains and items have been offered for repatriation, the
tribes or NHOs to accept culturally affiliated remains or
issue of how to address culturally unidentifiable objects—
objects. In some instances, repatriation may not be feasible
which constitute the majority of items in collections—
due to a tribe or NHO’s lack of resources or specific
remains controversial. Some stakeholders have suggested
cultural beliefs.
that the 2010 NAGPRA regulations addressing culturally
unidentifiable repatriation emphasize speed over accuracy
Culturally Unidentifiable
because requesting tribes and NHOs need only demonstrate
Through the inventory and summary processes, it may be
a geographic connection to the area where the remains were
determined that no lineal descendant or culturally affiliated
discovered. Others view the standards and processes by
tribe or NHO can be identified or associated with certain
which agencies and museums establish cultural affiliation
human remains and associated funerary objects. These
as onerous and inadequate in their consideration of
remains and objects are generally referred to as culturally
traditional knowledge held by tribes and NHOs. In October
unidentifiable. The vast majority of remains and objects
2022, NPS issued proposed regulations that would, amongst
awaiting repatriation under NAGPRA and NMAIA are in
other proposals, remove the term culturally unidentifiable
this category (see “Progress to Date”).
and establish a simplified standard for establishing
affiliation (87 Federal Register 63202). According to NPS,
NAGPRA and NMAIA differ in their treatment of
the proposal is intended to address the perceived barriers to
culturally unidentifiable remains and objects. NAGPRA
repatriation.
requires NPS to consider recommendations for developing
a disposition process for these remains. In 2010, NPS
Other critiques have focused on the degree to which tribes
issued regulations requiring agencies and museums to
and NHOs are responsible for initiating and conducting
consult with tribes and NHOs from whose tribal or
certain consultation procedures under NAGPRA and
aboriginal lands the remains were removed and to jointly
NMAIA. Some argue that such requirements place an
develop plans for transferring control of the culturally
undue financial and practical burden on tribes and NHOs
unidentifiable human remains (43 C.F.R. §10.11). Although
and relieve institutions of their responsibility to proactively
not required by NMAIA, SI’s National Museum of Natural
seek repatriation of their collections. To assist with
History issued a similar policy in 2020 for the repatriation
consultation and repatriation costs, both NAGPRA and
of culturally unaffiliated remains and objects.
NMAIA authorize NPS and SI, respectively, to administer
grants to eligible entities. Funding for such grants is
Progress to Date
generally subject to annual appropriations or other sources,
NAGPRA requires the submission of a report to Congress
as available.
detailing progress and obstacles in implementing the law
(25 U.S.C. §3006(h)). The National NAGPRA Program’s
Whether or to what degree covered institutions should
FY2022 report provides data on the status of repatriation
consider repatriation beyond what is required under
efforts between FY1990 and FY2022, including the
NAGPRA and NMAIA has also been of congressional
following:
interest. For example, both laws require repatriation only to
lineal descendants, federally recognized tribes, and NHOs.
• 92% of culturally affiliated human remains (more than
Groups claiming indigenous heritage that are not federally
77,000 remains) have completed the NAGPRA process.
recognized are not discussed or considered in the two laws.
•
In addition, neither law addresses international repatriation
As of September 2022, more than 108,000 human
(i.e., repatriation of collections to indigenous groups outside
remains were pending consultation and/or notice, 94%
the United States or repatriation from overseas collections
of which were not yet culturally affiliated.
to federally recognized tribes and NHOs).
• More than 1.86 million associated funerary objects have
completed the NAGPRA process.
Mark K. DeSantis, Analyst in Natural Resources Policy
https://crsreports.congress.gov
Repatriation of Native American Remains and Cultural Items: Requirements for Agencies and Institutions
IF12523
Nik Taylor, Senior Research Librarian
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https://crsreports.congress.gov | IF12523 · VERSION 1 · NEW