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A Revised NAGPRA: Evaluating Progress Towards Repatriating Native American Ancestral Remains and Belongings in the Wake of Revised Federal Regulations

January 21, 2025

Screenshot from NAGPRA page with Name of the organization logo and images of men walking

By Emily Yan

One year ago, on January 12, 2024, the Department of the Interior (DOI) implemented historic updates to the Native American Graves Protection and Repatriation Act (NAGPRA).[1] These updates aim to close loopholes in the original regulation that allowed for a glacial rate of repatriation. The act was originally passed in 1990 for the “protection and return of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony.”[2] However, over three decades later, museums have only completed the NAGPRA process for 48% of reported Native remains and only 71% of associated funerary objects.[3] The 2024 update has spurred some institutions to action, with museums like the American Museum of Natural History (AMNH) announcing the shuttering of Native exhibits in order to review their collections and policies.[4] However, while these early efforts in the wake of the revisions may be a step in the right direction, it remains to be seen whether this update will finally realize the hope of NAGPRA in the long-term.

The Original 1990 Act

The Native American Graves Protection and Repatriation Act (NAGPRA) was passed in 1990 to “protect Native American or Native Hawaiian ownership rights to items of cultural significance” and to “provide for the repatriation of culturally significant items currently held by federal agencies and museums.”[5] Under NAGPRA, museums were required to repatriate applicable human remains and cultural items upon the request of a tribe, with the statute laying out a process for inventorying items and working with tribes.[6] At the time, the government estimated that it would take about a decade to complete this repatriation.[7]

However, over three decades later, over 110,000 Native American remains were still unrepatriated as of 2023, with scholars estimating it to take anywhere from 70 to over 200 years to complete the repatriation at this rate.[8] This pace is evident in the progress made at the AMNH, which holds the 17th largest collection of unrepatriated remains in the U.S.[9] Since the implementation of NAGPRA in 1990, the AMNH has repatriated over a thousand human remains.[10] However, this number is minor relative to the over 3,500 remains initially reported to the government, of which at least 1,800 had not been made available for return as of November 2023.[11]

Critics have attributed this protracted and stagnated process to a number of obstacles and loopholes in the act. These issues include the narrow scope of the act,[12] lack of communication with tribes,[13] high evidentiary burdens on tribes,[14] and ineffective enforcement mechanisms.[15] These shortcomings created the need for improved regulations to accelerate repatriation and address the practical gaps of NAGPRA.

2024 NAGPRA Update

On December 6, 2023, the DOI announced updates to NAGPRA, with the revisions going into effect on January 12, 2024.[16] The NAGPRA revisions have been touted as “strengthen[ing] the authority and role of Indigenous communities in the repatriation process” with an aim towards accelerating the repatriation process.[17]

One of the primary goals of the update was to address the exclusion of tribal voices by increasing tribal access and involvement in the repatriation process.[18] To that end, the revisions sought to increase transparency and reporting of museum collections, as well as require museums to obtain consent from tribes before exhibiting human remains.[19] Additionally, the update eliminated one of the biggest loopholes of the original regulation: the “culturally unidentifiable” category. Since 1990, museums had designated thousands of remains and objects as culturally unidentifiable – a label for when the museum is unable to identify a culturally affiliated tribe or lineal descendent for repatriation.[20] However, museums often resorted to this designation too quickly or without sufficient research, allowing the museum to keep the remains or objects in perpetuity and leaving the repatriation in a legal limbo.[21] Under the new regulation, museums and other institutions can no longer use this “culturally unidentifiable” category as a catch-all loophole to avoid repatriation. The update also addressed the evidentiary burden on tribes, which previously required tribes to show cultural affiliation to the remains or object in question by a preponderance of evidence, which often excluded the oral history traditions used by tribes.[22] The updated regulation now only requires one line of evidence to show cultural affiliation, with tribal expert testimony deemed as sufficient.[23]

The revisions also aim to address the sluggish rate of repatriation by setting specific deadlines that institutions must adhere to. The lack of set timelines and enforcement had been a key contributor in allowing museums’ glacial rate of repatriation and indefinite delays in response to repatriation requests. Under the new regulations, institutions must now inventory their collections within five years of the NAGPRA revisions with tribal consultation.[24] In addition, institutions must initiate consultations with tribes within 30 days of new acquisitions and acknowledge repatriation requests within 90 days.[25] Institutions that fail to comply with these deadlines are potentially subject to fines, but the extent to which the DOI enforces these deadlines remains to be seen.[26] If museums and other institutions are actually held to these deadlines, this would mark a significant acceleration from previous efforts of the last three decades.

The update also sought to broaden the scope of the regulation. Previously, NAGPRA primarily covered federally-funded museums and agencies. With a new definition for federal funding, NAGPRA now applies to a broader range of institutions that receive federal funding, including “libraries, historical societies, parks and other entities.”[27] However, even with this broader scope of regulated institutions, there are still gaps in coverage. NAGPRA primarily protects only a subset of the Indigenous community, limiting many privileges to federally recognized tribes. While there are 574 tribes that are recognized by the US government, there are approximately 400 additional tribes in the US that are not federally recognized.[28] For these non-federally recognized tribes, the repatriation process is much more difficult. Museums are not required to consult with them regarding their displays and collections. [29] Further, these non-federally recognized tribes can only request repatriations by working with a federally recognized tribe.[30] As a result, while the NAGPRA revisions may have been aimed at empowering tribes, they still exclude much of the Indigenous community from meaningful participation in the repatriation process.

In this way, the 2024 NAGPRA update seeks to address some of the key issues that have emerged over the last three decades: exclusion of the Indigenous community, glacial rate of repatriation, and limited scope of coverage. While these changes are a step in the right direction, the success of this update still depends on the DOI’s willingness to enforce these changes and on the museums’ good faith efforts to actualize these goals.

Industry Response

In response to the updates, many museums have announced that they are reviewing their human remains collections, shuttering their Indigenous exhibits, or revisiting their museum policies.[31] For example, the AMNH has long been criticized for its slow rate in repatriation. However, in January 2024, shortly following the implementation of the revisions, the AMNH announced that they would be closing two exhibition halls, covering a number of display cases, and halting school field trips while they reviewed their collections.[32] In July 2024, the AMNH reported that the institution had “held more than 400 consultations, with approximately 50 different stakeholders, including hosting seven visits of Indigenous delegations, and eight completed repatriations.”[33] In this way, the NAGPRA revisions have spurred some museums to action after three decades of stagnation.

However, while some museums have announced renewed efforts, it remains to be seen whether these efforts will actualize in timely reviews and repatriations. Under the new NAGPRA regulations, one of the key innovations is the addition of specific deadlines that institutions must adhere to.[34] While museums are publicly supportive of the goals to streamline the repatriation process, some museums have argued that these timelines are unmanageable.[35] Museums have long blamed their delays in the NAGPRA repatriation process on a lack of resources.[36] Even the American Alliance of Museums (AAM) has stated that the timelines seemed “unachievable for institutions[’] . . . staff and resources,” with an “unrealistic” estimate of hours and costs.[37] To note, the DOI has allocated grants to address these resource issues.[38] These grants are available to museums, as well as to tribes and other Native organizations participating in consultations and repatriations.[39] However, it remains to be seen whether the NAGPRA revisions’ estimates and grant resources are realistic to streamline the repatriation process.

Additionally, while resources are indeed limited, many critics have instead attributed the glacial repatriation pace to a lack of prioritization on the part of museums. Scholars have criticized the original NAGPRA regulations for allowing institutions to indefinitely delay repatriation through loopholes and litigation.[40] Indeed, even the revisions allow for extensions to the five-year timeline if museums can show a good faith effort to inventory their collections.[41] These extension allowances could potentially create another loophole for museums to delay repatriation processes. It will take a combination of DOI resource allocation and museum prioritization for these NAGPRA revisions to actualize change.

Reactions From Tribes and Representatives

Many members and representatives of the Indigenous community have responded positively to the 2024 updates. For example, Shannon O’Loughlin, a citizen of the Choctaw Nation of Oklahoma and the Chief Executive and Attorney for the Association of American Indian Affairs, praised many of the changes, including elimination of the “culturally unidentifiable” category and the new consultation requirements.[42] She expressed optimism about future repatriation efforts:

Things have changed. The law has changed, and the public is calling out institutions around the world for their failure to return Indigenous bodies and sensitive cultural and religious items stolen in the name of science, conquest, and war. [43]

However, while many tribal representatives are cautiously optimistic about the steps museums have taken recently, there is a deep pain entrenched in the last thirty years of repatriation under NAGPRA that cannot be erased by the revisions. Under NAGPRA, many tribes have been fighting for decades to recover their ancestors, only to be frustrated by definitional loopholes, drawn-out litigation, and indefinite institutional delays.[44] At the AMNH, tribal representatives from the Unkechaug Nation and the Shinnecock Nation Graves Protection Warrior Society have been waiting for responses to their requests for years and even decades. [45] Then, the museum announced its updated repatriation policy last October ahead of the anticipated NAGPRA revisions. Within twenty-four hours of the announcement, the AMNH finally responded to these tribal representatives.[46] There was an understandably mixed reaction, with Tela Troge, attorney for the Shinnecock Nation, explaining: “It’s like, wow, this is great. But at the same time, NAGPRA has been the law for 33 years and we’re just receiving this notice four days ago? What does that tell you about the institution?”[47] This mix of hope and wariness is reflective of the deep-seated pain and frustration that many members of the Indigenous community have voiced.

It will take more than just revisions on paper to rebuild what has been broken over the last three decades, and longer. As Elizabeth Solomon, a member of the Massachusett Tribe at Ponkapoag, explained: “It needs to continue with building relationship [sic] — reciprocal, meaningful relationships — with indigenous communities, and then and only then can we talk about repair.”[48] While the revisions and recent actions by museums are a step in the right direction, museums must recognize and address the pain linked to the last three decades of repatriation under NAGPRA.

Conclusion

The 2024 NAGPRA revisions are an improvement upon the original regulations, spurring many museums like the AMNH to action after three decades of stagnation. However, although the new regulations aim to strengthen the role of Indigenous communities and accelerate repatriation timelines, there are still a number of potential loopholes and gaps. It will take a combination of resource allocation and museum prioritization for institutions like the AMNH to successfully repatriate their Native American human remains collections. Only in doing so can they begin to address the deep-seated pain entrenched in the last thirty of repatriation under NAGPRA. As such, these revisions embody important, but yet to be proven, progress in the path towards repatriation under NAGPRA.

About the Author

Emily Yan is a 3L at NYU School of Law, who worked as a Fall 2024 Legal Intern for the Center for Art Law. She received her BA in Economics and Psychology from Yale University. Prior to law school, Emily worked as a management consultant at the Boston Consulting Group and as a strategy consultant at the Whitney Museum of American Art. Emily’s research focuses on issues of intellectual property and cultural heritage.

Suggested Readings

  1. Interior Department Announces Final Rule for Implementation of the Native American Graves Protection and Repatriation Act, Nat’l Park Serv. (Dec. 6, 2023), https://www.nps.gov/orgs/1207/interior-department-announces-final-rule-for-implementation-of-the-native-american-graves-protection-and-repatriation-act.htm. ↑
  2. Facilitating Respectful Return, Nat’l Park Serv., https://www.nps.gov/subjects/nagpra/index.htm;

    Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001–3013 (1990). ↑

  3. Native American Priorities: Protection and Repatriation of Human Remains and Other Cultural Items, USA.Gov (Oct. 10, 2023), https://www.gao.gov/products/gao-24-106870. ↑
  4. Samantha Chery, Museums cover Native displays after new repatriation rules, Wash. Post (Jan. 26, 2024), https://www.washingtonpost.com/entertainment/art/2024/01/26/museums-remove-native-american-hawaiian-indigenous-exhibit-nagpra. ↑
  5. Deborah F. Buckman, Validity, Construction, and Applicability of Native American Graves Protection and Repatriation Act (25 U.S.C.A. §§ 3001–3013 and 18 U.S.C.A. § 1170), 173 A.L.R. Fed. 585 §2[a] (2001). ↑
  6. See id. for a discussion of the requirements under NAGPRA. ↑
  7. Logan Jaffe, Mary Hudetz, Ash Ngu, and Graham Lee Brewer, America’s Biggest Museums Fail to Return Native American Human Remains, ProPublica (Jan. 11, 2023), https://www.propublica.org/article/repatriation-nagpra-museums-human-remains (citing the Congressional Budget Office). ↑
  8. Id.; Christopher Zheng, 31 Years of NAGPRA: Evaluating the Restitution of Native American Ancestral Remains and Belongings, Center for Art Law (May 18, 2021), https://itsartlaw.org/2021/05/18/31-years-of-nagpra-evaluating-the-restitution-of-native-american-ancestral-remains-and-belongings; Emily Bergeron, The Native American Graves Protection and Repatriation Act: Where Are We Now?, 49 Human Rights 10, 10 (2024). ↑
  9. The Repatriation Database: American Museum of Natural History, ProPublica (Nov. 29, 2023), https://projects.propublica.org/repatriation-nagpra-database/institution/american-museum-natural-history. ↑
  10. Sean Decatur, July 2024 Update from the President, Am. Museum of Nat. Hist. (July 25, 2024), https://www.amnh.org/about/july-2024-update-president. ↑
  11. The Repatriation Database, supra note 9. ↑
  12. See e.g., Mx. B. Stephen Jones, Strengthening NAGPRA, 41 Cardozo Arts & Ent. L.J. 883 (2023) (international repatriation gap); Romero v. Becken, 256 F.3d 349 (5th Cir. 2001) (NAGPRA inapplicable for remains found on non-federal lands); Gabriella Angeleti, US museums cover Native American displays as revised federal regulations take effect, The Art Newspaper (Jan, 29, 2024), https://www.theartnewspaper.com/2024/01/29/us-museums-nagpra-native-american-displays-new-regulations (NAGPRA only applicable for federally funded museums). ↑
  13. See e.g., U.S. Gov’t Accountability Off., GAO-20-466T, Native American Issues: Examples of Certain Federal Requirements That Apply to Cultural Resources and Factors That Impact Tribal Consultation (Feb, 26, 2020), https://www.gao.gov/assets/gao-20-466t.pdf (tribal input limited to general public meetings). ↑
  14. See e.g., Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004) (highlighting “NAGPRA’s requirement that Native American remains bear some relationship to a presently existing tribe”); 25 U.S.C. § 3005 (requiring tribes to show cultural affiliation by a preponderance of evidence); Mary Hudetz, New Federal Rules Aim to Speed Repatriations of Native Remains and Burial Items, ProPublica (Dec. 8, 2023), https://www.propublica.org/article/interior-department-revamps-repatriation-rules-native-remains-nagpra (“‘culturally unidentifiable’ [remains] . . . allowed to be used for scientific research over tribes’ objections”). ↑
  15. See Jaffe, supra note 7 (discussing the limited resources for enforcement and “miniscule fines” for violations); Angeleti, supra note 17 (less than $60,000 in civil penalties collected from 20 museums since NAGPRA’s inception). ↑
  16. Interior Department Announces Final Rule for Implementation of the Native American Graves Protection and Repatriation Act, Nat’l Park Serv. (Dec. 6, 2023), https://www.nps.gov/orgs/1207/interior-department-announces-final-rule-for-implementation-of-the-native-american-graves-protection-and-repatriation-act.htm. ↑
  17. Interior Department, supra note 1. ↑
  18. Id. ↑
  19. Id. ↑
  20. Mary Hudetz, New Federal Rules Aim to Speed Repatriations of Native Remains and Burial Items, ProPublica (Dec. 8, 2023), https://www.propublica.org/article/interior-department-revamps-repatriation-rules-native-remains-nagpra (“‘culturally unidentifiable’ [remains] . . . allowed to be used for scientific research over tribes’ objections”); Rebecca Mountain, The Future of the Past: Reclassification of ‘Culturally Unidentifiable’ Human Remains Under NAGPRA, 28 Arizona Anthropologist 66 (Nov. 6, 2017), https://journals.librarypublishing.arizona.edu/arizanthro/article/563/galley/550/download. ↑
  21. Id. ↑
  22. See e.g., Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004) (highlighting “NAGPRA’s requirement that Native American remains bear some relationship to a presently existing tribe”); 25 U.S.C. § 3005 (requiring tribes to show cultural affiliation by a preponderance of evidence). ↑
  23. Lilly Knoepp, New Native American Graves Protection and Repatriation Act regulations will close loopholes and speed up process, BPR News (Dec. 22, 2023), https://www.bpr.org/bpr-news/2023-12-22/new-native-american-graves-protection-and-repatriation-act-regulations-will-close-loopholes-and-speed-up-process. ↑
  24. Gabriella Angeleti, US museums cover Native American displays as revised federal regulations take effect, The Art Newspaper (Jan, 29, 2024), https://www.theartnewspaper.com/2024/01/29/us-museums-nagpra-native-american-displays-new-regulations; Native American Graves Protection and Repatriation Act Systematic Processes for Disposition or Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony, 43 C.F.R. Part 10 (2023). ↑
  25. Id. ↑
  26. Interior Department, supra note 1. ↑
  27. Kate Fitz Gibbon, The New NAGPRA: ‘traditional knowledge’ in, artifacts out., Cultural Property News (Feb. 12, 2024), https://culturalpropertynews.org/the-new-nagpra-traditional-knowledge-in-artifacts-out/#:~:text=New%20regulations%20for%20NAGPRA%20came,Alaskan%20art%20and%20heritage%20nationwide. ↑
  28. Federally recognized Indian tribes and resources for Native Americans, USA.Gov (last visited Oct. 22, 2024), https://www.usa.gov/tribes; U.S. Gov’t Accountability Off., GAO-12-348, Federal Funding for Non-Federally Recognized Tribes (2012), https://www.gao.gov/assets/gao-12-348.pdf. ↑
  29. Corrie Day, A Balancing Act: Addressing the History and Examining the Changes of NAGPRA and its Regulations, Nebraska L. Rev. (Sept. 25, 2024), https://lawreview.unl.edu/balancing-act-addressing-history-and-examining-changes-nagpra-and-its-regulations#_ednref118. ↑
  30. Frequently Asked Questions, supra note 32. ↑
  31. Angeleti, supra note 23. ↑
  32. Sean Decatur, Statement on New NAGPRA Regulations, Am. Museum of Nat. Hist. (Jan. 26, 2024), https://www.amnh.org/about/statement-new-nagpra-regulations. ↑
  33. Decatur, supra note 10. ↑
  34. Angeleti, supra note 23; Native American Graves Protection and Repatriation Act Systematic Processes for Disposition or Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony, 43 C.F.R. Part 10 (2023). ↑
  35. Angeleti, supra note 23. ↑
  36. Gabrielle Despain, A Look into Nagpra: Application, Issues, and the Future, 24 Wyo. L. Rev. 139, 160 (2024). ↑
  37. Angeleti, supra note 23. ↑
  38. Id. ↑
  39. Native American Graves Protection and Repatriation Act: Grants, Nat’l Park Serv. (Jan. 14, 2025), https://home.nps.gov/subjects/nagpra/grants.htm. ↑
  40. See, e.g., Despain, supra note 34. ↑
  41. Angeleti, supra note 23. ↑
  42. Russell C. Menyhart & Leanna Longley, NAGPRA – 2024 Revamped Rule Strengthens Process for Museums and Universities to Heal Prior Inequities and Rebuild Tribal Relationships, Taft Stettinius & Hollister LLP ↑
  43. Id. ↑
  44. See Kevin P. Ray, NAGPRA and Its Limitations: Repatriation of Indigenous Cultural Heritage, 15 J. Marshall Rev. Intell. Prop. L. 472 (2016); Ellie S. Klibaner-Schiff & Jade Lozada, The Painful Progress of Native American Repatriation, The Harvard Crimson (Mar. 2, 2024), https://www.thecrimson.com/article/2024/3/2/nagpra-scrut/#:~:text=More%20than%2030%20years%20after,ancestral%20remains%20and%20their%20belongings. ↑
  45. Jenna Kunze, New York Museum Unveils Repatriation Overhaul After Ethical Awakening, Native News Online (Oct. 17, 2023), https://nativenewsonline.net/sovereignty/new-york-museum-unveils-repatriation-overhaul-after-ethical-awakening. ↑
  46. Id. ↑
  47. Id. ↑
  48. Klibaner-Schiff & Lozada, supra note 41. ↑

 

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.

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