NAGPRA Review Committee Report to Congress 2023

United States Department of the Interior

OFFICE OF THE SECRETARY

Washington, DC 20240

The Honorable Brian Schatz

Chairman, Committee on Indian Affairs

United States Senate

Washington, DC 20510

Dear Chairman Schatz:

The Native American Graves Protection and Repatriation Review Committee (Review Committee)

asked me to forward to you their fiscal year 2023 Report to Congress. On November 1, 2023, the Review

Committee held a public meeting and approved the report for distribution.

Section 8 of the Native American Graves Protection and Repatriation Act (NAGPRA) requires the

Review Committee to report to Congress on the progress made, and any barriers encountered, in

implementing NAGPRA. This is the twenty-third report prepared for Congress by the Review

Committee. As the report is the work product of the Review Committee, it does not necessarily reflect

the views of the Department of the Interior or the National Park Service.

We appreciate your interest in the successful implementation of NAGPRA and look forward to

working closely with you and other members of Congress on NAGPRA matters. If you have any

questions regarding the Review Committee, please do not hesitate to contact the Review Committee’s

Designated Federal Officer, Melanie O’Brien, at Melanie_O’[email protected] or by phone at

(202) 354-2204.

A similar letter is being sent to the Honorable Chuck Schumer, Majority Leader, and the Honorable

Lisa Murkowski, Vice Chairman, Committee on Indian Affairs in the United States Senate. In the U.S.

House of Representatives, a similar letter is being sent to the Honorable Mike Johnson, Speaker; the

Honorable Bruce Westerman, Chair, and the Honorable Raúl Grijalva, Ranking Member, Committee

on Natural Resources; and the Honorable Harriet Hageman, Chair, and the Honorable Teresa Leger

Fernández, Ranking Member, Subcommittee for Indian and Insular Affairs, Committee on Natural

Resources.

Sincerely,

Shannon Estenoz

Assistant Secretary

for Fish and Wildlife and Parks

Enclosure

cc: Members of the Senate Committee on Indian Affairs

Members of the Native American Caucus

SHANNON

ESTENOZ

Digitally signed by

SHANNON ESTENOZ

Date: 2024.05.02

13:43:01 -04'00'

NATIVE AMERICAN GRAVES

PROTECTION &

REPATRIATION REVIEW

COMMITTEE

Annual Report to Congress

FY2023

October 1, 2022-September 30, 2023

November 1, 2023

 
Table of Contents 
Executive Summary .............................................................................................................. 1 
Summary of Activities .......................................................................................................... 3 
Review Committee Members ........................................................................................... 3 
Review Committee Meetings ........................................................................................... 3 
Progress Made ...................................................................................................................... 4 
Barriers to Overcome ............................................................................................................ 7 
Recommendations to Congress .......................................................................................... 10 
National NAGPRA Program Statistics ............................................................................... 24

Executive Summary

The passage of the Native American Graves Protection and Repatriation Act (NAGPRA or

the Act) on November 16, 1990, mandated the formation of a Federal advisory

committee to "monitor and review the implementation of the inventory and

identification process and repatriation activities required under sections 3003, 3004 and

3005" of the Act.

One of the specific duties of the Native American Graves Protection and

Repatriation Review Committee is to report to Congress annually regarding progress

made and any barriers encountered in implementing the Act’s provisions during the

previous year.

This report summarizes Review Committee activities and progress made and barriers

encountered in implementation of NAGPRA during fiscal year (FY) 2023 (October 1,

2022-September 30, 2023). The Review Committee also offers specific

recommendations to improve implementation of NAGPRA in the future. The following

summary of the Review Committee’s recommendations include references to where in

this report they are described in greater detail. The Review Committee recommends

that the Congress:

1. Amend sections of NAGPRA regarding the definitions of “sacred objects”

(recommendation #1A), “Native American” (#1B and #7B), “Hui Malama I Na

Kupuna O Hawai’i Nei (#1C), “Native Hawaiian organization” (#1D), “right of

possession” (#1E), “aboriginal land” (#2A), review committee’s responsibilities

(#3), Native Hawaiian traditional religious leaders (#6), illegal trafficking (#7C);

exemption from disclosure of culturally sensitive information (#8),

administration of the NAGPRA program (#9), and scope of the review

committee’s report to Congress (#11).

2. Amend a section of the National Museum of the American Indian Act to grant

the United States District Courts jurisdiction over violations of the Act and clarify

the inventory process (recommendation #10).

3. Request that the Government Accountability Office complete evaluations of

Federal agency compliance with the requirements of 25 U.S.C. 3002

(recommendation #2B), implementation of the civil penalty provisions (#4),

NAGPRA grant program (#5A), and costs of proposed regulatory revisions (#5B).

4. Establish and fund an interagency investigative and prosecutorial effort to

combat illegal trafficking of Native American cultural items (recommendation

#7D).

5. Include $3 million in the FY2025 and subsequent year budgets for

25 U.S.C. § 3006 (a).

25 U.S.C. § 3006 (h).

implementation of the Safeguard Tribal Objects of Cultural Patrimony Act

(recommendation #7A).

6. Authorize the National Park Service to rebury Native American human remains

and funerary objects on NPS lands regardless of the original location of removal

(recommendation 12).

Summary of Activities

NAGPRA affects Indian Tribes, Native Hawaiian organizations, lineal descendants,

museums, and Federal agencies. The development of long-term positive collaborations

and cooperation among these different communities as part of their compliance and

involvement with the law is an important goal. Through its public meetings, oversight of

implementation of the Act, review and recommendations regarding the resolution of

disputes, and recommendations to the Secretary of the Interior, the Review Committee

works to achieve the goals and objectives of the statute.

Review Committee Members Serving during FY2023

Nominated by Indian Tribes and Native Hawaiian organizations:

Domonique deBeaubien (appointed November 22, 2022)

Armand Minthorn (appointed October 7, 2022)

Toby Patrick (appointed June 1, 2023)

Nominated by national museum and scientific organizations:

Francis McManamon (term ended October 10, 2022)

Edward Halealoha Ayau (appointed November 22, 2022)

C. Timothy McKeown (appointed June 4, 2020)

Shelby Tisdale (appointed June 4, 2020)

Nominated by the Committee:

Angela Garcia-Lewis (appointed November 22, 2022)

Review Committee members are appointed for a four-year term and may be

reappointed for a second, two-year term.

Review Committee Meetings

In fiscal year 2023, the Review Committee held two public, telephonic meetings and one

two-day face-to-face meeting.

During the FY2023 meetings, the Review Committee received reports from the National

NAGPRA Program regarding implementation and compliance activities under the Act,

provided recommendations to the Secretary of the Interior regarding the disposition of

culturally unidentifiable human remains, heard presentations from NAGPRA

constituents, and received public comments. The Review Committee also expressed

serious concern about the delays in transmittal of the Committee's FY2019 annual

report to Congress. The Review Committee conducted substantive discussions on the

FY2022 annual report to Congress.

Attached to this Annual Report are statistics reported by the National NAGPRA Program

for fiscal year 2023 regarding the implementation of NAGPRA, grants awarded under

the Act, and other important progress made.

There have been notable examples of progress made by Indian Tribes, Native Hawaiian

organizations, museums, and Federal agencies in the implementation of NAGPRA.

Regrettably, there are also longstanding barriers to swifter implementation of the law.

In the body of this report, we present additional information on both the progress and

the barriers.

Minutes and transcripts of past meetings can be accessed at:

https://www.nps.gov/subjects/nagpra/meetings.htm

The 83

meeting of the review committee was held telephonically for two and a half

hours on January 5

, 2023. During the meeting, the review committee:

• Reviewed a draft of its FY2022 Report to Congress.

• Reviewed a draft of its comments on the proposed regulations.

• Benefited from public comments from the Colville Tribe and several members of

the public.

The 84

meeting of the review committee was held telephonically for two and a half

hours on January 8

, 2023. During the meeting, the review committee:

• Approved its FY2022 Report to Congress.

• Approved its comments on the proposed regulations.

• Benefited from public comments from the Gila River Indian Community and

several members of the pubic.

The 85

meeting of the review committee was held June 7-8, 2023, in Bloomington,

Indiana. During the meeting, the review committee:

• Recommended the disposition of culturally unidentifiable Native American

human remains in the possession or control of Vassar College, Colorado College,

Detroit Institute of Arts, and the Witte Museum.

• Benefited from presentations from Indiana University, Miami Tribe of Oklahoma,

Illinois State Museum, University of Kentucky, Bureau of Land Management,

Bureau of Indian Affairs, Tennessee Valley Authority, University of Missouri, and

Field Museum, and comments from several members of the public.

Progress Made

Congress has charged the Review Committee with reporting annually on progress made

and barriers encountered in NAGPRA implementation. We are pleased to report on the

following progress in the implementation of NAGPRA.

1. Publication of a proposed revision of regulations implementing NAGPRA. On

October 18, 2022, the Department of the Interior published a proposal to revise

regulations implementing NAGPRA.

The ninety-day comment period was later

extended to January 31, 2023, during which 181 public comments were received. On

January 10, 2023, the Review Committee submitted 25 pages of comments.

2. Cooperation and collaboration by tribes and museums carrying out NAGPRA

implementation. In FY2023, the Review Committee heard reports highlighting ongoing

cooperation and collaboration among tribes and museums, Federal agencies, and

organizations involved in implementing NAGPRA.

• Indiana University and the Miami Tribe of Oklahoma hosted the Review

Committee’s June 7-8, 2023, meeting in Bloomington, Indiana, and

informed the committee on their ongoing joint efforts to determine

cultural and geographic affiliation and repatriate the remains of over

4,000 Native American individuals.

• Vassar College, Saginaw Chippewa Indian Tribe of Michigan, and

Stockbridge Munsee Community, Wisconsin jointly requested the Review

Committee’s recommendation for disposition of the remains of five

Native American individuals for which the original burial location is

unknown. The request was supported by the Delaware Nation,

Oklahoma; Fort Belknap Indian Community; Monacan Indian Nation;

Nottawaseppi Huron Band of the Potawatomi; Pawnee Nation; Pueblo of

Pojoaque; Shawnee Tribe; Sokaogon Chippewa Community; and Osage

Nation. The Review Committee unanimously recommended that the

Secretary approve the disposition.

• The Colorado Springs Fine Arts Center at Colorado College, Hopi Tribe,

and Southern Ute Indian Tribe jointly requested the Review Committee’s

recommendation for disposition of the remains of two Native American

individuals and two associated funerary objects for which the original

burial location is unknown. The request was supported by the Pueblo of

Acoma. The Review Committee unanimously recommended that the

Secretary approve the disposition.

• The Detroit Institute of Art and Sault Ste. Marie Tribe of Chippewa

Indians jointly requested the Review Committee’s recommendation for

disposition of the remains of eleven Native American individuals and six

associated funerary objects for which the original burial location is

unknown. The request was supported by the Nottawaseppi Huron Band

of the Potawatomi. The Review Committee unanimously recommended

that the Secretary approve the disposition.

• The Witte Museum and Tap Pilam Coahuiltecan Nation (a non-Federally

recognized Indian group) jointly requested the Review Committee’s

recommendation for disposition of the remains of 31 Native American

Proposed rule: Native American Graves Protection and Repatriation Act: Systematic Process for Disposition and

Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural

Patrimony (Oct. 18, 2022). https://www.regulations.gov/document/NPS-2022-0004-0001

Comment from Native American Graves Protection and Repatriation Review Committee (Jan. 13, 2023).

https://www.regulations.gov/comment/NPS-2022-0004-0096

individuals and one associated funerary object removed from various

locations in Val Verde County, Texas, to be reburied pursuant to Val

Verde County ordinance. The Review Committee unanimously

recommended that the Secretary approve the disposition.

3. Increased Press Coverage of Repatriation Issues. In January 2023, ProPublica

launched The Repatriation Project, including an online interactive tool to facilitate easy

public search of information for over 100,000 Native American human remains held by

roughly 600 Federally funded institutions.

Since then, ProPublica has published over a

dozen articles focusing on the repatriation efforts of various institutions, and its

database and press guide have been used by reporters from many other news outlets in

stories on the collections of institutions across the country. In August 2023, The

Washington Post also did a series of articles on repatriation at the Smithsonian

Institution.

The Review Committee is appreciative of the press’ efforts to keep the

public informed.

4. Department of the Interior established administrative deadlines. On September

21, 2023, Rachel Tayler, the Department of the Interior Chief of Staff issued a

memorandum to the heads of all Departmental bureaus and offices, in particular, the

Bureau of Indian Affairs, Bureau of Land Management, Bureau of Reclamation, U.S. Fish

and Wildlife Service, and National Park Service, directing them to prioritize and facilitate

repatriation of 2,900 Native American individuals and 9,400 associated funerary objects,

assure compliance with legal requirements, and demonstrate Interior’s commitment to

strengthening the government-to-government relationships with Indian Tribes and

Alaska Native villages. A follow-up memorandum and action plan from Principal Deputy

Assistant Secretary – Policy, Management, and Budget directed Departmental bureaus

and offices to complete notices of inventory completion for all Native American human

remains and associated funerary objects held by the Department by April 20, 2024,

unless additional time is requested by Indian tribes.

5. Passage of the Safeguard Tribal Objects of Patrimony Act (STOP Act). On

December 21, 2022, President Biden signed the STOP Act into law. The STOP Act

amends NAGPRA to increase the maximum penalty for trafficking of Native American

cultural items, establish mechanisms to stop illegal export of Native American cultural

items, facilitate the international repatriation of Native American cultural items, and

establish a Federal network to support the voluntary return of Native American cultural

items to Indian Tribes and Native Hawaiian organizations. The STOP Act establishes a

Native American Working Group and directs this Review Committee to make efforts to

provide information and assistance to it to facilitate repatriations; protect tangible

cultural heritage; improve Federal agency implementation of NAGPRA, ARPA, and other

laws; and advise on the voluntary return of Native American cultural items and

ProPublica, The Repatriation Project: The Delayed Return of Native Remains,

https://www.propublica.org/series/the-repatriation-project

Nicole Dungca, Claire Healy and Andrew Ba Tran, What we know about the Smithsonian’s human remains Aug. 14,

2023). https://www.washingtonpost.com/history/interactive/2023/takeaways-smithsonian-human-brains-remains-

collection/

elimination of illegal commerce of cultural items. The Review Committee looks forward

to assisting the Native American Working Group in these tasks.

6. Introduction of the Federal Indian Boarding School Initiative Act. On May 18,

2023, Senator Elizabeth Warren and 26 original cosponsors introduced S. 1723 to

establish a Truth and Healing Commission on Indian Boarding School Policies in the

United States. Senators Rosen and Feinstein joined as cosponsors on May 30, 2023. On

June 7, 2023, the Senate Committee on Indian Affairs held a business meeting to

consider the bill. At Senator Warren's request, Chairman Schatz and Vice Chairman

Murkowski filed an amendment in the nature of a substitute reflecting considerable

feedback from Native peoples, organizations, and Indian tribes. The Committee agreed

to five additional amendments filed by Senators Daines and Mullin. Part of the

Commission’s duties will be to help document and locate the graves of American Indian,

Alaska Native, and Native Hawaiian children who died while attending Indian boarding

schools or in neighboring hospitals, and to support identification of and disposition to

the tribal nations from which these children were taken. The Review Committee

supports this legislative initiative and looks forward to working with Congress and the

Commission, once seated, to ensure the appropriate protection or disposition of

student graves found on Federal lands, and that if excavation occurs, is carried out

pursuant to Section 3 of NAGPRA.

The Review Committee also looks forward to

working with the Commission to ensure all remains of boarding school students and

funerary objects excavated or removed from lands controlled by any relevant institution

or state or local government agency that received Federal funds are repatriated to the

appropriate lineal descendant or affiliated Indian tribe or Native Hawaiian organization

pursuant to Sections 5, 6, and 7 of NAGPRA.

Barriers to Overcome

Several barriers to full implementation of NAGPRA were identified in FY2023.

1. Continued resistance by some institutions. The Miami Tribe of Oklahoma

reported that while most museums in its homelands of Indiana, Ohio, Illinois, southern

Michigan, southern Wisconsin, the upper rim of Kentucky, Kansas, and Oklahoma have

come to the table willingly and with intent, some continue to remain out of compliance,

even posturing against any need or requirement of compliance with the law. The

National NAGPRA Program indicates that during FY2023 it received thirteen allegations

of failure to comply that are currently under review. The committee has also heard that

some states insist on relying solely on state burial law regarding the disposition of

Native American human remains and associated funerary objects under state control

and ignore NAGPRA’s repatriation requirements that also apply, as well as allegations

that the U.S. Army ignores NAGPRA’s requirements regarding the planned excavation of

Native American human remains at the site of the U.S. Army War College in Carlisle,

Pennsylvania.

25 U.S.C. § 3002

25 U.S.C. §§ 3003-3005

In addition, the Government Accountability Office over the years has made 55

recommendations to Federal agencies to improve implementation of NAGPRA. While

most have been implemented, several remain unaddressed, including that:

• The Secretary of the Interior should direct the Directors of Bureau of Indian Affairs

and the National Park Service to take steps to identify and obtain the information

needed to target its efforts for analyzing and addressing risks to Native American

cultural resources, including NAGPRA, and share any promising practices with the

Departmental Consulting Archeologist.

• The Attorney General should direct Justice's members of the interagency working

group for protection of Native American cultural property, including Native

American cultural items as defined by NAGPRA, to identify and externally

communicate to tribes points of contact within the agency that are responsible for

responding to tribes' requests for assistance with repatriating cultural items from

overseas auctions.

• The Assistant to the Secretary of Agriculture for Rural Development, Director of Civil

Works of the Army Corps of Engineers, Secretary of Energy, and Administrator of the

Federal Highway Administration should document in their agencies’ tribal

consultation policy how agency officials are to communicate with tribes about how

tribal input from consultation was considered in agency decisions on proposed

infrastructure projects.

The Government Accountability Office also recommended that Congress consider ways

to expedite the Smithsonian's repatriation process including, but not limited to,

directing the Smithsonian to make cultural affiliation determinations as efficiently and

effectively as possible.

2. Conflicting estimates of the cost of repatriation. The Review Committee has

consistently requested that the Congress appropriate additional funding for

implementation of NAGPRA since its first report to Congress in 1995. Representatives of

Indian tribes, Native Hawaiian organizations, and museums have consistently expressed

the need for additional funding. The Government Accountability Office’s (GAO) report

entitled Native American Graves Protection and Repatriation Act: After Almost 20 Years,

Key Federal Agencies Still Have Not Fully Complied with the Act (GAO-10-768) identified

a lack of resources within Federal agencies dedicated to NAGPRA implementation as

Government Accountability Office, Native American cultural resources: improved information could enhance

agencies' efforts to analyze and respond to risks of theft and damage (Mar. 4, 2021). GAO 21-110 (recommendations

4 and 7).

Government Accountability Office, Native American cultural property: Additional agency actions needed to assist

Tribes with repatriating items from overseas auctions (Aug. 6, 2018). GAO-18-537 (recommendation 7).

Government Accountability Office, Tribal consultation: Additional Federal actions needed for infrastructure

projects (Mar. 20, 2019). GAO-19-22 (recommendations 6, 7, 10, and 14).

Government Accountability Office, Smithsonian Institution: Much work still needed to identify and repatriate

Indian human remains and objects (Mar. 25, 2011). GAO-11-515.

"one of the most significant challenges" to compliance with the Act. However, the

Department of the Interior recently reported estimates that are largely consistent with

current appropriations, and have indicated that proposed regulations requiring

museums and Federal agencies to complete or revise inventories in consultation with

Indian tribes and Native Hawaiian organizations for over 100,000 Native American

human remains and associated funerary objects within a 30 month period will not

impose a significant economic impact on a substantial number of small entities.

The

Review Committee feels there is a need for accurate, impartial, and comprehensive

assessment of the overall costs of compliance with NAGPRA by museums, Federal

agencies, Indian tribes, and Native Hawaiian organizations.

3. Sensitive information is currently unprotected. Of critical importance, sensitive

information shared during NAGPRA consultations by lineal descendants, Indian Tribes,

and Native Hawaiian organizations and in the possession of a Federal agency or museum

may be released under the Freedom of Information Act. For example, it is not in the

spirit of the law to create open opportunities for looters by disclosing specific

information on burial locations. Ceremonial information could be shared in a

consultation session but should not be released to the general public. The inability to

keep sensitive information confidential should be considered a significant barrier to

repatriation.

4. Staff Support. NAGPRA requires the Secretary of the Interior “to provide

reasonable administrative and staff support necessary for the deliberations of the

committee.” The Review Committee’s repeated requests for copies of the 85 comments

on a draft proposal to revise existing regulations that were provided to the Department

by Indian tribes and Native Hawaiian organizations and 10 comments provided by

Federal agencies on the proposed rule were denied. The Review Committee’s

deliberations on the draft proposed regulations were cut short after only reviewing two

sections.

5. Native Hawaiian organizations. When NAGPRA was enacted in 1990 it defined

“Native Hawaiian organization” to include two organizations namely, Hui Malama I Na

Kupuna O Hawai‘i Nei and the Office of Hawaiian Affairs. In 2015, Hui Malama I Na

Kupuna O Hawai‘i Nei ceased to exist. Thereafter, the organization Hui Iwi Kuamo‘o was

established by former Hui Malama I Na Kupuna O Hawai‘i Nei members to continue

repatriation efforts. The Review Committee recognizes the need to address this

confusion and supports the replacement of Hui Malama I Na Kupuna O Hawai‘i Nei with

Hui Iwi Kuamo‘o throughout the Act and regulations.

National Park Service, Cost-benefit and regulatory flexibility threshold analyses: Native American Graves Protection

and Repatriation Act proposed revisions (Sept. 2022). https://www.regulations.gov/document/NPS-2022-0004-0002

Recommendations to Congress

Based on its experience with both barriers and examples of progress, the Review

Committee recommends the following Congressional actions (proposed revisions of

statutory text shown with redline and strikeout).

1. Definitions (25 U.S.C. § 3001)

A. Sacred Objects (25 U.S.C. § 3001 (3)(C)). The Act defines “sacred objects” in terms of

traditional Native American religions only. There is a need to expand the definition to make the

important distinction that some practices are religious in nature and some are familial spiritual

practices and not organized formally amongst the larger community or considered stately

religions. For Hawaiians, these are ‘aumākua practices, which are ike pāpālua (spiritual

communications) with deceased family members that were not considered part of the stately

religion that were overthrown in circa 1819-1820 following the defeat of ‘aikapu (sacred eating).

We request the Congress to amend the definition of “sacred objects” by adding this simple

language as follows:

traditional Native American religious leaders for the practice of traditional Native

American religions or family spiritual practices by their present day adherents, and

B. Native American (25 U.S.C. § 3001 (9)). The most problematic definition in the Act is

that of “Native American.” NAGPRA defines the term to mean “of, or relating to, a tribe, people,

or culture that is indigenous to the United States.” However, in 2004, the United States Court of

Appeals for the Ninth Circuit interpreted the term “Native American” to require that human

remains and other cultural items "must bear a significant relationship" to a presently existing

Tribe, people, or culture to be considered Native American.

Not only was this incorrect opinion

antithetical to the purpose and policy underlying NAGPRA, it necessitated passage of separate

legislation to enable reburial of the 9,000-year-old human remains at issue in the case, and it

created ambiguity which, in at least one case, has led to an acquittal in a NAGPRA trafficking

case.

In order to address this issue, the Committee recommends that Congress amends

NAGPRA's definition of “Native American” to read as follows:

(9) "Native American" means of, or relating to, a tribe, people, or culture that is or was

indigenous to any geographic area that is now located within the boundaries of the

United States.

C. Hui Malama I Na Kupuna O Hawai‘i Nei (25 U.S.C. § 3001 (6)) . NAGPRA names and

defines “Hui Malama I Na Kupuna O Hawai‘i Nei” as a Native Hawaiian organization qualified to

conduct repatriation on behalf of Native Hawaiians. In January 2015, the organization

voluntarily and formally dissolved itself under the laws of the State of Hawai‘i, as directed by the

organization’s founder. The organization was succeeded by the Native Hawaiian organization

Hui Iwi Kuamo‘o whose leadership and membership is the same as the leadership of Hui

Malama I Na Kupuna O Hawai‘i Nei. We request that the Congress repeal all references to this

organization from the NAGPRA and replace it with “Hui Iwi Kuamo‘o,” its successor organization.

Bonnichsen v. United States, 367 F.3d 864, 878 (9th Cir. 2004) (emphasis in original).

U.S. v. Deluca, No. 00 CR 387 (N.D. Ill. Mar. 6, 2002).

The definition should read as follows:

(6) “Hui Iwi Kuamo‘o” means the nonprofit, Native Hawaiian organization

incorporated under the laws of the State of Hawai‘i by that name on July 21, 2022, for

the purpose of succeeding to Hui Mālama I Nā Kūpuna O Hawai‘i Nei and thereby

providing guidance, expertise and ceremonial practice in Native Hawaiian cultural

issues, particularly repatriation and reburial issues.

D. Native Hawaiian Organization (25 U.S.C. § 3001 (11)). We request the Congress amend

this definition to replace “Hui Malama I Na Kupuna O Hawai‘i Nei” with “Hui Iwi Kuamo‘o,” and

add a provision prohibiting any museum or government agency from asserting itself as a Native

Hawaiian organization, as follows:

(11) "Native Hawaiian organization" means any organization which—

(A) serves and represents the interests of Native Hawaiians,

(B) has as a primary and stated purpose the provision of services to Native

Hawaiians, and

Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai‘i Nei Hui Iwi Kuamo‘o,

and

(D) does not include any museum or agency or subdivision of the State of

Hawai‘i or the United States.

E. Right of Possession (25 U.S.C. § 3001 (13)). The Act defines “right of possession” to

apply to unassociated funerary objects, sacred objects, and objects of cultural patrimony and

limits its application to human remains and associated funerary objects. There is a need to

recognize that a funerary status is perpetual and cannot change. As long as an object is funerary,

it cannot be owned by the living. It is also haumia (defiled) given its prior association with the

dead. We request the Congress to amend the definition of “right of possession” to extend the

limitation to unassociated funerary objects in addition to human remains and associated

funerary objects, as follows:

(13) "right of possession" means possession obtained with the voluntary consent of an

individual or group that had authority of alienation. The original acquisition of a

Native American unassociated funerary object, sacred object or object of cultural

patrimony from an Indian tribe or Native Hawaiian organization with the voluntary

consent of an individual or group with authority to alienate such object is deemed to

give right of possession of that object, unless the phrase so defined would, as applied

in section 3005(c) of this title, result in a Fifth Amendment taking by the United States

as determined by the United States Court of Federal Claims pursuant to 28 U.S.C. 1491

in which event the "right of possession" shall be as provided under otherwise

applicable property law. The original acquisition of Native American human remains,

and associated funerary objects, and unassociated funerary objects which were

excavated, exhumed, or otherwise obtained with full knowledge and consent of the

next of kin or the official governing body of the appropriate culturally affiliated Indian

tribe or Native Hawaiian organization is deemed to give right of possession to those

remains.

2. Ownership (25 U.S.C. § 3002)

The ownership provisions apply to the discovery, removal, or excavation of Native American

cultural items on Federal lands and Tribal lands after 1990. NAGPRA and its implementing

regulations require persons who discover Native American human remains or other cultural

items on Federal or Tribal lands to immediately stop any ongoing activity and provide immediate

telephone notification of the inadvertent discovery, with written confirmation, to the

responsible Federal land manager. The Federal land manager then must notify the appropriate

Indian Tribes or Native Hawaiian organizations and begin consultation about the disposition of

cultural items and complete a plan of action. The activity that resulted in the inadvertent

discovery may resume thirty days after certification by the Federal land manager of receipt of

the written confirmation of notification, or sooner if a written, binding agreement is executed

between the Federal agency and the appropriate Indian Tribes or Native Hawaiian organizations.

Discovered human remains or other cultural items may only be removed or excavated after

consultation with the appropriate Indian Tribes and Native Hawaiian organizations, or, in the

case of Tribal lands, with the consent of the appropriate Indian Tribe or Native Hawaiian

organization. The excavation or removal of cultural items must also comply with the

requirements of the Archaeological Resources Protection Act (ARPA). NAGPRA provides a

detailed priority listing to determine the ownership or control of discovered or excavated Native

American human remains and other cultural items based on lineal descent, Tribal land, cultural

affiliation, and aboriginal land. To date, only 238 discoveries and excavations of Native American

human remains and other cultural items had occurred on Federal lands,

indicating that

NAGPRA has been somewhat successful in fulfilling its grave protection mandate.

NAGPRA sets standards for the disposition of human remains and other cultural items

discovered on Federal lands that are recognized by a final judgement of the Indian Claims

Commission or the United State Court of Federal Claims.

This Committee has adopted this

standard in its recommendations regarding the disposition of culturally unidentifiable human

remains in museum or Federal agency collections, but elaborated on the basis for determining

aboriginal lands. The current regulations allow aboriginal lands to also be determined by a

treaty, Act of Congress, or Executive Order.

A. In order to bring the ownership and repatriation provisions in line, we request that the

Congress amend the provisions of 25 U.S.C. § 3002 (a)(2)(C) to read as follows:

if the cultural affiliation of the objects cannot be reasonably ascertained and if the

objects were discovered on Federal land that is recognized by a final judgment of the

Indian Claims Commission or the United States Court of Claims, or a treaty, Act of

Congress, or Executive Order as the aboriginal land of some Indian Tribe—

The ownership section has proved the most prone to litigation, due in part to the brevity of the

statutory provisions as well as the lack of any institutionalized form of alternative dispute

resolution. The Committee has heard that in many cases Federal agency officials are failing to

adequately consult with Indian Tribes following inadvertent discoveries and are failing to

complete the plans of action required by regulation. In the draft proposed regulations, the

Department of Interior proposed eliminating these requirements, but in the face of strong

opposing commentary retained these requirements in the proposed rule.

National NAGPRA Program, Fiscal Year 2022 Report. https://www.nps.gov/subjects/nagpra/reports.htm

25 U.S.C. § 3002 (a)(2)(c).

43 CFR § 10.11 (c)(1)(ii).

National Park Service, Response to Tribal Consultation on revisions to 43 CFR Part 10 Native American Graves

Protection and Repatriation Act Regulations (Aug. 2022). https://www.regulations.gov/document/NPS-2022-0004-

0004at 30.

B. To get a better grasp of Federal compliance with NAGPRA’s provisions protecting Native

American graves and cultural items, we ask the Congress to:

request the Government Accountability Office to complete an evaluation of Federal

agency compliance with the requirements of 25 U.S.C. § 3002 and its implementing

regulations. In particular, the evaluation should explore whether all Federal land

managing agencies have in place appropriate administrative procedures; whether the

existing procedures are being followed regarding consultation, completion of plans of

action and comprehensive agreements, and publication of notices of intended

disposition administrative procedures to implement 25 U.S.C. 3002, particularly

focusing on: consultation; completion of plans of action and comprehensive

agreements; publication of notice of intended disposition; the disposition of so-called

“unclaimed” cultural items; the protection of burial sites and cultural items located on

private lands within the exterior boundary of an Indian Reservation or on lands

administered for the benefit of Native Hawaiians pursuant to the Hawaiian Homes

Commission Act, 1920, and section 4 of Public Law 86–3, including the required

issuance of ARPA permits; and whether establishing a dedicated position to ensure

compliance with these provisions at each agency would be beneficial.

3. Repatriation of Cultural Items in Federal Agency and Museum Collections (25 U.S.C. §§

3003-3008)

The repatriation provisions of NAGPRA require Federal agencies and museums that receive

Federal funds to prepare written summaries of cultural items and more detailed inventories of

Native American human remains and associated funerary objects in their possession or control,

consult with Indian Tribes and Native Hawaiian organizations and, upon request, repatriate

cultural items. To date, nearly 209,000 Native American ancestors have been inventoried, of

which museums and Federal agencies have indicated a willingness to repatriate approximately

48%.

One of the responsibilities of this Committee was to compile an inventory of culturally

unidentifiable human remains that are in the possession or control of each Federal agency and

museum and recommend specific actions for developing a process for disposition of such

remains. After long discussions, development of several drafts, and extensive public

consultation, this Committee issued its recommendations in 2000.

The Committee noted that

although the legal standing of funerary objects associated with culturally unidentifiable human

remains is not addressed in NAGPRA, the statute does not prohibit their voluntary repatriation

by museums or Federal agencies to the extent allowed by Federal law. Regulations

implementing the Committee’s recommendations were promulgated in 2010.

The regulations

require museums and Federal agencies that cannot prove right of possession to offer to transfer

control of culturally unidentifiable human remains to the Indian Tribe or Native Hawaiian

organization from whose Tribal land, at the time of the excavation or removal, the human

remains were removed, or to the Indian Tribe or Tribes that are recognized as aboriginal to the

area from which the human remains were removed. The regulations also recommend that a

National Park Service, 2022 Native American Graves Protection and Repatriation Act.

https://public.tableau.com/app/profile/nationalnagpra/viz/2022NativeAmericanGravesProtectionandRep

atriationAct/1_Reported (accessed November 29, 2022).

Recommendations Regarding the Disposition of Culturally Unidentifiable Native American Human

Remains, 65 Fed. Reg. 36462 (June 8, 2000).

See 43 CFR § 10.11- Native American Graves Protection and Repatriation Act Regulations—Disposition

of Culturally Unidentifiable Human Remains; Final Rule, 75 Fed. Reg. 12377 (Mar 15, 2010).

museum or Federal agency transfer control of funerary objects that are associated with

culturally unidentifiable human remains if Federal or State law does not preclude it. The

Committee feels strongly that Native American funerary objects in museum or Federal agency

collections should be returned along with Native ancestors with which they were lovingly

buried.

We request that the Congress amend the Committee’s responsibilities at 25 U.S.C. § 3006 (c) as

follows to explicitly authorize a requirement that human remains and associated funerary

objects be returned together:

(5) compiling an inventory of culturally unidentifiable human remains and associated

funerary objects that are in the possession or control of each Federal agency and

museum and recommending specific actions for developing a process for disposition

of such remains and objects;

4. Civil Penalties

NAGPRA authorizes the Secretary of the Interior to assess civil penalties on museums that fail to

comply with the repatriation provisions of the Act. Information finally provided by the National

Park Service after a five year hiatus shows that, as of September 30, 2022,

20 museums have

failed to comply, three twice, and that $59,111.34 in penalties were collected. For ten of the

allegations the penalty was waived. The National Park Service also indicates there is a backlog of

allegations against another 63 museums that have not been investigated. No failures to comply

have been determined since 2016.

The Committee is very concerned that civil enforcement of NAGPRA has been carried out

without any degree of public scrutiny, that the penalties assessed are typically mitigated or

unknown, and that since 2016 it appears to have completely stopped. We ask the Congress to:

request the Government Accountability Office to complete an evaluation of the

implementation of the civil enforcement provisions of NAGPRA and its implementing

regulations, particularly focusing on ensuring that all allegations are adequately

investigated in a timely manner, that the full range of penalties detailed in statute are

The National NAGPRA Program has not yet provided the committee with updated information for FY2023.

considered, whether the alternative method for calculation and mitigation of

penalties outlined in the current regulations has been effective, and that the results of

these investigations are publicly known.

5. Grant Funding

NAGPRA authorizes the Secretary of the Interior to make grants to Indian Tribes and Native

Hawaiian organizations for the purpose of assisting such Tribes and organizations in the

repatriation of Native American cultural items, and to museums for the purpose of assisting the

museums in conducting the inventories and summaries.

NAGPRA further stipulates that “this

Act shall not be construed to be an authorization for the initiation of new scientific studies of

such remains and associated funerary objects or other means of acquiring or preserving

additional scientific information from such remains and objects.”

In 1990, the Congressional

Budget Office estimated that NAGPRA would cost the Federal Government between $20 and

$50 million over five years.

The Congress first appropriated funds for NAGPRA grants FY1994, and over the next 29 years

appropriated $68.9 million, of which $57.3 million was awarded to Indian tribes, Native

Hawaiian organizations, and museums.

Yet, after nearly three decades the remains of 102,708

Native American ancestors still sit on museum and Federal agency shelves.

This Committee has consistently recommended in its Report to Congress that funding for

NAGPRA grants be increased. Indian tribes, Native Hawaiian organizations, and museums assert

25 U.S.C. § 3008.

25 U.S.C. § 3003 (b)(2).

Letter from Robert D. Reischauer, director, Congressional Budget Office to Representative Morris Udall

(October 15, 1990).

From FY1994 through FY2014, the National Park Service regulary diverted a portion of the grant appropriation to

cover grants administration costs. In FY2005, part of the grant appropriation was used to satisfy court ordered

payment of attorney fees. Alaska Native Corporations received NAGPRA grant funding from FY1994 through FY2010.

National Park Service, 2023 Native American Graves Protection and Repatriation Act.

https://public.tableau.com/app/profile/nationalnagpra/viz/2022NativeAmericanGravesProtectionandRep

atriationAct/1_Reported (accessed October 31, 2023).

that the actual cost of complying with NAGPRA far exceed the available grant appropriation and

the maximum grant cap ensures that progress towards repatriation is piecemeal and slow. In

FY2023, the Review Committee specifically asked museums with large remaining collections of

Native American human remains to estimate how much it costs them per year to comply with

NAGPRA, and how much it is expected to cost to comply with the proposed regulations if

implemented as written:

• Indiana University, which holds the remains of 4,838 Native American individuals,

reported expenditures to comply with the current regulations of $535,940.04 for

calendar year 2022 and estimated that the proposed regulations will require $3 million

per year for three years.

• University of Kentucky, which holds the remains of 4,366 Native American individuals,

reported that over the past four years it has devoted approximately $860,000 to comply

with the current regulations (an average of $215,000 per year) and estimated that the

proposed regulations will require an additional $890,000 over the next three years (an

average of $296,666 per year).

• University of Missouri, which holds the remains of 2,451 Native American individuals,

reported expenditures of $127,769 for calendar year 2023 and estimated that the

proposed regulations will require approximately $187,699 per year for the next three

years.

• Field Museum, which holds the remains of 1,324 Native American individuals, reported

expenditures to comply with the current regulations of $333,315 in calendar year 2022

and estimated that the proposed regulations will require approximately $666,630 per

year for three years.

• Tennessee Valley Authority, which holds the remains of 3,284 Native American

individuals, reported that during FY2023 it budgeted $200,000 for compliance with

NAGPRA’s repatriation provisions, plus salaries for two NAGPRA employees, a tribal

liaison, and site protection activities.

• Bureau of Indian Affairs, which holds the remains of 1,112 Native American individuals,

reported expenditures to comply with the current regulations of approximately

$210,000 per year.

• U.S. Forest Service, which holds the remains of 770 Native American individuals,

reported expenditures to comply with the current regulations of $334,000 in fiscal year

2023, and estimated that the proposed regulations will conservatively require at least

$48,000,000 (an average of $16,000,000 per year).

• U.S. Army Corps of Engineers, which holds the remains of 1,352 Native American

individuals, reported expenditures to comply with the current regulations of $1,249, 578

in fiscal year 2023, and estimated that the proposed regulations will require at least

$2,500,000 for staff labor, excluding any other expenditures that they would typically

cover in the course of repatriation.

The cost information the Review Committee obtained from these museums stands in sharp

contrast with estimates compiled by the Department of the Interior to support the proposed

Message from Jayne-Leigh Thomas, Indiana University. https://irma.nps.gov/DataStore/Reference/Profile/2301099

https://irma.nps.gov/DataStore/DownloadFile/691769 at 208.

Message from Candace Sall, University of Missouri. https://irma.nps.gov/DataStore/Reference/Profile/2301099

Message from Ann Metcalf, Field Museum. https://irma.nps.gov/DataStore/Reference/Profile/2301099

Native American Graves Protection and Repatration Review Committee meeting transcript, Bloomington, IN (June

7-8, 2023). https://irma.nps.gov/DataStore/DownloadFile/691769 at 222.

Bureau of Indian Affairs Presentation, June 7, 2023, NAGPRA Review Committee Meeting, Bloomington, Indiana.

regulatory revision. In FY2022, the Department of the Interior submitted estimates to the Office

of Management and Budget indicating that the annual burden to all museums would only be

$223,304,

and that the burden to museums to meet the requirements outlined in the

proposed regulations published on estimates the total of all costs, including dealing with

excavations and discoveries on Federal and tribal lands; consulting, completing summaries and

inventories, and publishing repatriation notices; and the functions of the review committee, at

$2,438,032 per year.

Some tribes have also expressed concern that museums may be using grant money to acquire

and preserve additional scientific information on human remains and associated funerary

objects. In 2022, the National Park Service confirmed these suspicions by stating that a Notice of

Funding Opportunity allowing the acquisition and preservation of additional scientific

information on human remains and associated funerary objects and destructive analysis, with

some restrictions, somehow overcomes Congress’ clear statutory restriction.

The Review

Committee also heard from one museum that received nearly $450,000 in grant funding from

FY2017-FY2023 but has published only one notice of inventory completion (for the remains of a

single individual and 207 associated funerary objects) during the same period.

In order to get a better grasp of the true costs of complying with NAGPRA, we ask the Congress

to request the Government Accountability Office to:

A. complete a comprehensive evaluation of the NAGPRA grant program,

particularly, reviewing: whether all grants were awarded to appropriate recipients and

exploring reasons why some Indian tribes, Native Hawaiian organizations, and

museums are not applying for these grants; and whether the activities carried out

under each grant were consistent with the statutory authorization as well as whether

the statutory prohibition precluded funding of any activities. This evaluation would

focus on directing executive administration of the grants program as well as consider

the need for amending the Congressional authorization to make it more effective and

efficient.

B. compile data from all Indian tribes, Native Hawaiian organizations, museums,

and Federal agencies to get a realistic estimate of the actual costs of implementing the

proposed regulations.

6. Native Hawaiian Traditional Religious Leaders (25 U.S.C. 3006 (b)(1))

NAGPRA mandates the Secretary of the Interior to establish a committee to monitor and review

the implementation of the inventory and identification process and repatriation activities and

sets criteria for nominations to come from Indian tribes, Native Hawaiian organizations, and

traditional Native American religious leaders; national museum organizations and scientific

organizations; and from the Review Committee members themselves. An apparent drafting

Office of Management and Budget, Information Collection Review 202202-1024-0144, Supporting

Statement A for Paperwork Reduction Act Submission (April 11, 2022).

National Park Service. Cost-Benefit and Regulatory Flexibility Threshold Analyses: Native American

Graves Protection and Repatriation Act Proposed Revisions (2022).

Response to Tribal Consultation on revisions to 43 CFR Part 10 Native American Graves Protection and Repatriation

Act Regulations (Aug. 2022). https://www.regulations.gov/document/NPS-2022-0004-0004, at 42.

error has been interpreted by the Department of the Interior to yield the absurd result that

Native Hawaiian organizations may nominate traditional religious leaders from Indian tribes, but

not their own Native Hawaiian traditional religious leaders. We request that the Congress

amend the criteria at 25 U.S.C. § 3006 (b)(1)(A) to allow Native Hawaiian traditional religious

leaders to be considered by the Secretary for appointment to the Review Committee:

(b) Membership. (1) The Committee established under subsection (a) shall be

composed of 7 members, (A) 3 of whom shall be appointed by the Secretary from

nominations submitted by Indian tribes, Native Hawaiian organizations, and

traditional Native American religious leaders with at least 2 of such persons being

traditional Indian Native American religious leaders;

7. Illegal Trafficking in Native American Human Remains and Cultural Items (18 U.S.C. §

1170)

The criminal provisions of NAGPRA make it a crime to knowingly sell, purchase, use for profit, or

transport for sale or profit Native American human remains or cultural items under certain

conditions. For human remains, law enforcement must prove beyond a reasonable doubt that

the financial incident occurred without the right of possession, meaning that the defendant

cannot show that the human remains were obtained with the voluntary consent of an individual

or group that had authority of alienation. Proving illegal trafficking of cultural items is more

complicated. Law enforcement must prove beyond a reasonable doubt that the financial

incident violated NAGPRA, meaning that the cultural items were either removed from Federal or

Tribal lands without a permit, or were obtained from a Federal agency or museum that failed to

comply with the repatriation provisions of NAGPRA. Data from the Department of Justice and

the United States Courts

indicates that, through 2022, 127 investigations of illegal trafficking of

Native American human remains and cultural items have been opened resulting in 34

convictions.

Data compiled by C. Timothy Mckeown from the Office of the United States Attorneys, National

Caseload Data, FY2022 Data Files, and Pacer.gov

These data indicate that convictions for trafficking of Native American human remains under 18

U.S.C. 1170 (a) and funerary objects under 18 U.S.C. § 1170 (b) are relatively infrequent but

have continued since NAGPRA was enacted. Convictions for trafficking of Native American

sacred objects and objects of cultural patrimony under 18 U.S.C. § 1170 (b) are limited to 1993

to 2005, and further all were convicted in the United States District Courts for the Districts of

New Mexico, Arizona, and Utah. The single not guilty verdict in 2004 stands out. Several factors

seem to be responsible for this pattern. First, 18 U.S.C. § 1170 (b) convictions requiring proof

that the cultural items were obtained in violation of NAGPRA are just more difficult. Second, the

not guilty verdict in 2004 seems to reflect a chilling effect of the Ninth Circuit’s interpretation of

the definition of “Native American” in Bonnichsen. Third, the localization of convictions for

illegal trafficking of Native American sacred objects and objects of cultural patrimony correlates

with the activities of the Four Corners Interagency ARPA Task Force in the early 1990s and the

continued activities of the law enforcement personnel involved in that project into the early

2000s. Last, during the 2010s, auctions of Native American sacred objects and objects of cultural

patrimony appear to have moved outside of the United States, primarily to France. Addressing

this pattern requires a multi-faceted approach. We note that Congress has already taken the

first step in addressing this issue by passing the Safeguard Tribal Objects of Cultural Patrimony

Act which increases penalties for both first time and repeat traffickers and implements export

restrictions to stop the illegal export of Native American sacred objects and objects of cultural

patrimony.

A. We recommend that Congress include the $3 million in the FY2025 and subsequent

budgets for implementation of the STOP Act, as estimated by the Congressional Budget Office.

B. Second, we ask the Congress to amend the definition of “Native American” as previously

shown to provide a uniform and clear standard for the prosecution of trafficking cases.

C. Third, we request the Congress to amend 18 U.S.C. § 1170 requiring the government to

show beyond a reasonable doubt that trafficked human remains and other cultural items were

obtained without right of possession:

(a) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit,

the human remains or other cultural items of a Native American without the right of

possession to those remains or items as provided in the Native American Graves

Protection and Repatriation Act shall be fined in accordance with this title, or

imprisoned not more than 1 year and 1 day, or both, and in the case of a second or

subsequent violation, be fined in accordance with this title, or imprisoned not more

than 10 years, or both.

(b) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit

any Native American cultural items obtained in violation of the Native American Grave

Protection and Repatriation Act shall be fined in accordance with this title, imprisoned

not more than 1 year and 1 day, or both, and in the case of a second or subsequent

violation, be fined in accordance with this title, imprisoned not more than 10 years, or

both.

D. Fourth, we request that the Congress establish and fund an interagency investigative

effort like the Four Corners ARPA Task Force that will focus specifically on stopping illegal

trafficking of Native American human remains and cultural items and establish and fund

capabilities within the Department of Justice, Environmental Crimes Section (ECS) to coordinate

prosecution of violations of the NAGPRA, ARPA, and the STOP Act. Given the Department of the

Interior’s lack of response to the Government Accountability Office’s recommendation to

centralize information on violations of these laws, we recommend that the Congress enact

legislation requiring all Federal agencies to provide the ECS each year with information on all

criminal and civil violations of NAGPRA, ARPA, and the STOP Act which ECS will analyze to assess

risks to Native American cultural resources.

Taken together, these four actions will clarify the statutory prohibition, provide the necessary

expertise to investigate offenses, and chill the overseas market for Native ancestors and sacred

objects.

8. Exemption from Disclosure of Culturally Sensitive Information

Many tribes have expressed concern that culturally sensitive information they provide to

Federal agencies and museums during the consultation process must be disclosed upon request

under provisions of the Freedom of Information Act. The Committee strongly recommends

amending NAGPRA to protect culturally sensitive information identified by traditional religious

leaders, lineal descendants, Indian tribes, or Native Hawaiian organizations as provided under

exemption (b)(3) of the Freedom of Information Act.

9. Administrative Placement of NAGPRA Implementation Responsibilities

In 2020, then-Representative Haaland introduced H.R. 8298 to amend NAGPRA. One of her key

proposals was to redelegate enforcement and other activities previously assigned to the

National Park Service to the Office of the Assistant Secretary for Indian Affairs. NAGPRA is clearly

Indian law, not only is it enshrined under Title 25 of the United States Code, but Indian Tribes

are the obvious and primary beneficiaries. Implementation of NAGPRA should be administered

accordingly and not under the rubric of “cultural resources.” When the question was formally

asked by the Department in 2021, the majority of 85 written responses supported changing

placement of the program (38) or would consider changing it pending additional consultation

(10), while only six supported retaining the program within the National Park Service.

recognize that Secretary Haaland has the authority to implement this redelegation by means of

Secretarial Order with follow-up revision of the Departmental Manual. If, for some reason, this

change is not implemented in a timely fashion, we request that Congress amend 25 U.S.C. §

3013 as follows:

25 U.S.C. § 3013. Implementation and Enforcement (a) The Office of the Assistant

Secretary for Indian Affairs shall be the office for implementation and enforcement

and other activities delegated by the Secretary. (b) The United States district courts

shall have jurisdiction over any action brought by any person alleging a violation of

this chapter and shall have the authority to issue such orders as may be necessary to

enforce the provisions of this chapter.

10. NMAI Act

We also request that Congress consider amending the process by which the Smithsonian

Institution returns Indian and Native Hawaiian human remains, funerary objects, sacred objects,

and objects of cultural patrimony under the National Museum of the American Indian Act.

Freedom of Information Act request DOI-NPS-2022-000473.

As we pointed out in last year’s report, at least one group of Indian Tribes has unsuccessfully

tried to recover such items from the National Museum of Natural History and has exhausted

their administrative appeals, despite a unanimous recommendation to repatriate from the

Smithsonian's own repatriation advisory committee. In such a situation under NAGPRA, an

Indian Tribe is able to challenge the failure to repatriate such cultural items to the United States

District Courts (25 U.S.C. § 2013). However, the NMAI Act does not include a similar grant of

jurisdiction. The Committee recommends amending the NMAI Act to add the following

provision:

20 U.S.C. § 80 q-16. Jurisdiction and Enforcement. The United States district courts

shall have jurisdiction over any action brought by any person alleging a violation of

this Act and shall have the authority to issue such orders as may be necessary to

enforce the provisions of this Act.

The recent series of articles by the Washington Post highlights the Smithsonian’s view that

determinations of cultural and geographic affiliation of Indian and Native Hawaiian human

remains and associated funerary objects are only triggered by claims, and not by a set deadline

as required under NAGPRA, as well as the lack of transparency in the Smithsonian repatriation

process. To address these shortcomings, and to bring the Smithsonian process more in line with

that required by all other Federal agencies and institutions receiving Federal funding, the

Committee further recommends amending the NMAI Act as follows:

20 U.S.C. § 80 q-9 (a) Inventory and identification

(1) The Secretary of the Smithsonian Institution, in consultation and cooperation with

traditional Indian religious leaders and government officials of Indian tribes, shall-

(A) inventory the Indian human remains and Indian funerary objects in the possession

or control of the Smithsonian Institution; and

(B) using the best available scientific and historical documentation information

possessed by the Smithsonian Institution, identify the origins geographical and

cultural affiliation of such remains and objects.

(2) The inventory made by the Secretary of the Smithsonian Institution under

paragraph (1) shall be completed not later than June 1, 1998 [date 36 months

following enactment].

(3) For purposes of this subsection, the term "inventory" means a simple, itemized list

that, to the extent practicable, identifies, based upon available information held by

the Smithsonian Institution, the geographic and cultural affiliation of the remains and

objects referred to in paragraph (1). summarizes the information called for by this

section.

20 U.S.C. § 80 q-9 (b) Notice in case of identification of tribal origin geographical or

cultural affiliation.

If the tribal origin geographical or cultural affiliation of any Indian human remains or

Indian funerary object is identified by a preponderance of the evidence, the Secretary

shall so notify any affected Indian tribe at the earliest opportunity.

shall, not later than 6 months after the completion of the inventory, notify the

affected Indian tribes.

(2) The notice required by paragraph (1) shall include information—

(A) which identifies each Indian human remains or associated funerary objects and the

circumstances surrounding its acquisition;

(B) which lists the human remains or associated funerary objects that are clearly

identifiable as to cultural or geographic affiliation; and

clearly identifiable as being culturally or geographically affiliated with that Indian

tribe, but which, given the totality of circumstances surrounding acquisition of the

remains or objects, are determined by a reasonable belief to be remains or objects

culturally affiliated with the Indian tribe.

(3) A copy of each notice provided under paragraph (1) shall be published by the

Secretary in the Federal Register.

11. Report to Congress.

NAGPRA requires this committee to submit an annual report to the Congress on progress made

and barriers encountered in implementing this section during the previous year.

The scope of

the Committee’s activities generally focuses on inventory and identification of the Act, but also

includes duties specifically related to NAGPRA as a whole.

In the past, the committee has

interpreted this charge broadly to include many issues not only arising under NAGPRA but

similar repatriation issues under other statutes. Most notably, the committee’s annual report

for FY1994 highlighted the need to amend the National Museum of the American Indian Act to

establish a deadline for completing inventories and expending the statute to also cover

unassociated funerary objects, sacred objects, and objects of cultural patrimony, changes that

were eventually enacted by Congress. The Committee’s report to Congress for FY2021

recommended passage of the Safeguard Tribal Objects of Patrimony Act which was eventually

passed by Congress and recently signed into law by President Biden. We hope these

recommendations have been helpful to the Congress. Recently, some have suggested that

several of the recommendations in this report are outside of our jurisdiction. The language of

the Committee’s charge may be open to interpretation, and it would be useful to eliminate

confusion. In order to clarify this matter, we request that Congress amends 25 U.S.C. 3006 (h) as

follows:

The committee established under subsection (a) shall submit an annual report to the

Congress on the progress made, and any barriers encountered, in implementing this

section the Act and related matters during the previous year.

12. Reburials within National Parks and other federally owned lands

During the June 2023 NAGPRA Review Committee meeting, the Committee received comments

indicating that one of the major struggles impeding repatriation is identifying safe lands for the

reburial of ancestors and their cultural belongings. Current National Park Service (NPS)

management guidance currently only allows reburial within park lands if the remains were

originally removed from that specific park.

Management Policy 6.3.8 specifically prohibits the

creation of new cemeteries within a park unless authorized by federal statute. The Committee

recommends that the Congress specifically authorize the NPS to:

1. Allow reburial of Native American human remains and funerary objects on NPS

lands regardless of original location of removal;

2. Allow the creation of new cemeteries for the specific purpose of reburial of

25 U.S.C. § 3006 (a).

25 U.S.C. § 3006 (c)(7).

NPS Management Policies 2001, 5.3.4 and 6.3.8.

Native American human remains and funerary objects;

3. Incorporate reburial areas and newly created cemeteries into long-term park

management plans, with appropriate documentation, protection, and confidentiality

measures; and

4. Develop specific policy guidance to facilitate the reburial process for Park

managers and Tribes.

NAGPRA in Fiscal Year 2023

National NAGPRA Program Statistics

NAGPRA At-A-Glance

Fiscal Year 2023

446

notices published in the

Federal Register

Review Committee meetings

letters alleging failure to

comply received

$3.407

million awarded for grants

$271,277

21 repatriation grants

$3,135,723

34 project grants

NAGPRA notices more than doubled – the

number of notices published in the Federal

year and the largest number ever published in

one year.

NAGPRA activity increased – the number of

human remains that have completed the

regulatory process grew by 6%.

NAGPRA funding increased –available

grant funds increased to $3.407 million, the

largest amount ever available.

More NAGPRA work needed – Over 96,000 Native American individuals are still in

collections and 90,803 of those have not been culturally affiliated with any present-day Indian

tribe or NHO. Cultural affiliation and consultation could resolve the rights to these individuals,

especially in states like Illinois (15,136), Ohio (10,894), California (7,385), and Florida (6,083).

NAGPRA Accomplishments

FY 1990 – FY 2023

For the first time since 1990,

more than 50% (116,978) of the

Native American human remains

reported have completed the

NAGPRA process.

Over 2 million associated funerary

objects have completed the

NAGPRA process with human

remains.

38% of museums subject to

NAGPRA have resolved all Native

American human remains under

their control.

More than 358,000 unassociated

funerary objects have been

published in notices.

About 31,264 other cultural items

have been published in notices.

85 Review Committee meetings

have been held between FY 1990-

FY 2023.

$59,111 has been collected in civil

penalties for failures to comply.

$59 million has been awarded in

NAGPRA grants.

National NAGPRA Program Annual Report

NAGPRA in Fiscal Year 2023

Native American Human Remains in Holdings and Collections

NAGPRA Process Complete NAGPRA Process Incomplete

Native American Associated Funerary Objects in Holdings and Collections

NAGPRA Process Complete NAGPRA Process Incomplete

Since 1990,

213,466 human

remains reported

under NAGPRA.

For ≈55%,

NAGPRA process

is complete (rights

resolved by public

notice).

As of Sept 2023,

96,488 human

remains are

pending

consultation

and/or notice.

Since 1990,

about 2.8

million

associated

funerary objects

items reported

under NAGPRA.

For ≈76%,

NAGPRA process

is complete (rights

resolved by public

notice).

As of Sept 2023,

683,936

associated

funerary objects

are pending

consultation

and/or notice.

110,758

6,220

5,685

90,803

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Notice Published Culturally Affiliated-Pending Notice

Notice Pending Publication Not Affiliated-Pending Consultation/Notice

2,017,734

107,460

28,341

655,595

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Notice Published Culturally Affiliated-Pending Notice

Notice Pending Publication Not Affiliated-Pending Consultation/Notice

National NAGPRA Program Annual Report

NAGPRA in Fiscal Year 2023

Sets of Native American human remains by state of removal/excavation.

Showing the 96,488 human remains in holdings and collections as of Sept 2023.

National NAGPRA Program Annual Report

NAGPRA in Fiscal Year 2023

Sets of Native American individuals by institution/Federal agency.

20 largest holdings or collections as of Sept 2023.

More lists available at:

https://public.tableau.com/shared/WB6Y469JH?:display_count=n&:orig

in=viz_share_link

National NAGPRA Program Annual Report