Repatriation of Native American Remains and Cultural Items: Requirements for Agencies and Institutions

Repatriation of Native American Remains and Cultural Items: Requirements for Agencies and Institutions

link to page 1 link to page 1 link to page 2

Updated May 1, 2024
Repatriation of Native American Remains and Cultural Items:
Requirements for Agencies and Institutions
Some federal agencies, museums, and other institutions
ceremony, are intentionally placed with individual human
have, over time, acquired human remains and cultural items
remains, either at the time of burial or later (see 20 U.S.C.
related to the Indigenous peoples who originally inhabited
§80q-14(4) and 25 U.S.C. §30001(3)(A)). Both NAGPRA
the United States. Congress has mandated the return or
and NMAIA require the inventory to itemize each of the
repatriation of some of these remains and artifacts to lineal
relevant remains and objects and identify their geographic
descendants, modern-day federally recognized tribes
and cultural affiliation (see “Determination of Cultural
(tribes), and other groups that have a cultural affiliation
Affiliation”).
with those items. In particular, two federal laws establish
In addition to this inventory, entities and SI are required to
requirements and timelines for such repatriations: the
compile a summary of sacred objects, objects of cultural
Native American Graves Protection and Repatriation Act
patrimony, and unassociated funerary objects. Funerary
(NAGPRA; 25 U.S.C. 3001 et seq.) and the National
objects are considered to be unassociated if the human
Museum of the American Indian Act (NMAIA; 20 U.S.C.
remains with which the objects were placed are not in the
§§80q et seq.). Enacted in 1990, NAGPRA applies to
control of a museum or federal agency. The summary is in
federal agencies and certain museums and institutions
lieu of an object-by-object inventory and must “describe the
receiving federal funding (hereinafter collectively referred
scope of the collection, kinds of objects included, reference
to as entities). NMAIA, enacted one year prior in 1989,
to geographical location, means and period of acquisition
applies to the Smithsonian Institution (SI)—primarily the
and cultural affiliation, where readily ascertainable” (25
National Museum of Natural History (NMNH) and the
U.S.C. §30004 and 20 U.S.C. §80q–9a(a)).
National Museum of the American Indian (NMAI).
NAGPRA and NMAIA Requirements
Determination of Cultural Affiliation
The Department of the Interior’s National Park Service
As part of the inventory and summary requirements,
NAGPRA and NMAIA direct entities and SI to try to
(NPS) administers the NAGPRA program and oversees its
determine the cultural affiliation of the remains and objects
implementation pursuant to regulations promulgated at 43
or artifacts in their possession. Cultural affiliation refers to
C.F.R. Part 10, which were updated in December 2023. SI’s
a reasonable connection between human remains or cultural
NMNH and NMAI have repatriation procedures and
items and a tribe or NHO based on a relationship of shared
policies to ensure compliance with NMAIA. SI museum
group identity. For both NAGPRA entities and SI, cultural
policies and officials have stated that SI voluntarily consults
affiliation may be determined using available information
the NAGPRA regulations for guidance, where appropriate,
or documentation that includes geographical, kinship,
although such consultation is not statutorily required.
biological, archeological, linguistic, folkloric, oral tradition,
NAGPRA and NMAIA require entities and SI, respectively,
historical evidence, or other information or expert opinion
to conduct certain activities pertaining to the repatriation of
(43 C.F.R. §10.3; NMAI, Repatriation Policy, 2022;
items within their collections. Specifically, each law
NMNH, Guidelines and Procedures for Repatriation,
requires entities and SI to
2012). Both laws require consultation with officials and/or
•
traditional religious leaders of tribes and NHOs in
inventory and summarize the Native American
determining cultural affiliation and notification to the
(including Alaska Native) and Native Hawaiian human
affected tribes or NHOs if an affiliation is established.
remains, funerary objects, and cultural items in their
possession within a certain timeline;
Through this process, it may be determined that no lineal
• determine the origins or cultural affiliation of such
descendant, culturally affiliated tribe, or NHO can be
remains and items; and
associated with human remains and associated funerary
• upon request, repatriate them to the appropriate
objects. These remains and objects have traditionally been
descendant(s), tribe(s), or Native Hawaiian
referred to as culturally unidentifiable and make up the
organization(s) (NHOs).
majority of remains and objects awaiting repatriation under
NAGPRA and NMAIA (see “Progress to Date”). NAGPRA
Inventory and Summary of Human Remains,
requires the development of recommendations for a
Funerary Objects, and Cultural Items
disposition process for culturally unidentifiable remains (25
Entities subject to NAGPRA and SI are required to
U.S.C. §3006(c)(5)). In 2010, NPS issued regulations under
inventory Native American and Native Hawaiian human
NAGPRA requiring agencies and museums to consult with
remains and funerary objects in their possession or control
tribes and NHOs from whose tribal or aboriginal lands the
within a specified time frame. Funerary objects generally
culturally unidentifiable remains were removed and to
refer to objects that, as part of a culture’s death rite or
jointly develop plans for transferring control of the remains
https://crsreports.congress.gov

Repatriation of Native American Remains and Cultural Items: Requirements for Agencies and Institutions
(75 Federal Register 12402). In December 2023, NPS
• Roughly 684,000 associated funerary objects were
promulgated revised NAGPRA regulations which removed
pending consultation and/or notice, 96% of which were
the categorization of culturally unidentifiable and adjusted
not yet culturally affiliated.
the standard for establishing cultural affiliation to place
Unlike NAGPRA, NMAIA does not have an annual
increased emphasis on available geographical information
reporting requirement. However, since 2011, SI has
and Native American traditional knowledge (87 Federal
submitted annual reports detailing its repatriation progress.
Register 63202).
In its 2021 report (the most recently published), SI reported
that it has repatriated or made available for repatriation
NMAIA does not address the repatriation and treatment of
more than 7,000 human remains; 250,000 funerary objects;
culturally unaffiliated remains and objects; however, SI’s
and 1,400 sacred objects and/or objects of cultural
NMNH issued a policy in 2020 for the repatriation of these
patrimony.
items. Under the policy, tribes and NHOs must initiate a
formal request for the repatriation of the remains or objects
Issues for Congress
and have a “reasonable basis” for making such a request.
Congressional issues have centered around the progress in
Repatriation decisions are then made in consultation with
repatriating remains and items held in collections. The
the requester, as well as other relevant tribes and NHOs
majority of culturally affiliated remains and items have
based on the tribal lands and aboriginal lands from which
been offered for repatriation. However, the issue of how to
the remains and objects were removed.
address culturally unidentifiable objects—which constitute
Repatriation
the majority of items in collections awaiting repatriation—
remains controversial. According to NPS, the revised 2023
If cultural affiliation is established, both NAGPRA and
NAGPRA regulations are designed to address perceived
NMAIA require entities and SI, upon request, to
“
barriers to disposition and repatriation of remains and
expeditiously return” such remains or objects to the
objects that were previously categorized as culturally
relevant descendant(s), tribe(s), or NHO(s) (25 U.S.C.
unidentifiable. In addition, the regulations set revised
§3005 and 20 U.S.C. §80q–9). NAGPRA includes certain
timelines for covered entities to finalize or update their
exceptions to this repatriation requirement. For example, in
inventories and summaries based on the new requirements
instances wherein such items are “indispensable for
(43 C.F.R. §10.10(d)(2) and §10.9(a)(2)). Under NAGPRA,
completion of a specific scientific study, the outcome of
noncompliance with these timelines or other statutory
which would be of major benefit to the United States,”
requirements could result in civil penalties (federal agencies
entities are required to return such remains or items once
are not subject to civil penalties). The revised regulations
the study is completed (25 U.S.C. §3005(b)). In addition, if
establish a higher base penalty amount for noncompliance
there are multiple competing requests for repatriation and
and allow for potential increases due to a variety of factors
the appropriate claimant cannot be determined, NAGPRA
(43 C.F.R. §10.11). Opinions have varied among
allows for the retention of such items until the requesting
stakeholders as to the appropriate level for civil penalties
parties agree on their disposition, or the dispute is otherwise
and the extent to which penalties should be utilized.
resolved (25 U.S.C. §3005(e)). NMAIA does not consider
such scenarios for SI; however, SI’s internal policies
Other issues have focused on the degree to which tribes and
address instances of competing claims in a similar manner
NHOs are responsible for initiating and conducting certain
to those outlined under NAGPRA.
consultation procedures under NAGPRA and NMAIA.
Neither NAGPRA nor NMAIA require tribes or NHOs to
Questions include whether the requirements place an undue
accept culturally affiliated remains or objects. In some
financial and practical burden on tribes and NHOs and
instances, repatriation may not be feasible due to a tribe’s
lessen institutions’ responsibility to proactively seek
or NHO’s lack of resources or specific cultural beliefs.
repatriation of their collections or whether entities have the
necessary staff capacity to ensure compliance with the law.
Progress to Date
To assist with consultation and repatriation costs, NAGPRA
NAGPRA requires the submission of an annual report to
and NMAIA authorize NPS and SI, respectively, to
Congress detailing progress and obstacles in implementing
administer grants. Funding is generally subject to annual
the law (25 U.S.C. §3006(h)). The National NAGPRA
appropriations or other sources as available.
Program’s FY2023 report provides data on the status of
repatriation efforts between FY1990 and FY2023, including
Whether covered institutions should consider repatriation
the following:
beyond what is required under NAGPRA and NMAIA has
•
also been of interest. For example, both laws require
Nearly 117,000 human remains (55% of remains
repatriation only to lineal descendants, tribes, and NHOs.
reported) have completed the NAGPRA process.
Groups claiming Indigenous heritage that are not tribes are
• As of September 2023, more than 96,000 human
not addressed in the two laws. In addition, neither law
remains were pending consultation and/or notice, 95%
addresses international repatriation (i.e., repatriation of
of which were not yet culturally affiliated.
collections to indigenous groups outside the United States
or repatriation from overseas collections to tribes).
• More than 2 million associated funerary objects have
completed the NAGPRA process.
Mark K. DeSantis, Analyst in Natural Resources Policy
• More than 358,000 unassociated funerary objects have
Nik Taylor, Senior Research Librarian
been published in notices.
IF12523
https://crsreports.congress.gov

Repatriation of Native American Remains and Cultural Items: Requirements for Agencies and Institutions

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF12523 · VERSION 3 · UPDATED