When the Native American Graves Protection and Repatriation Act (NAGPRA) was signed into law in 1990 (https://www.govtrack.us/congress/bills/101/hr5237), it set a mandate for any agency or institution that received federal funding to return “cultural items”—inclusive of Ancestral remains, funerary objects, sacred objects, and objects of cultural patrimony—to lineal descendants and culturally affiliated “Indian Tribes and Native Hawaiian organizations (NHOs).”Footnote 1 The law delegated responsibility for regulation of the Act’s provisions to the Department of the Interior (DOI), which published proposed regulations for implementing it in 1993 and final regulations in 1995 (43 CFR 10). Crucially, NAGPRA stood to be a landmark piece of human rights legislation, establishing cultural sovereignty over items that had been indiscriminately collected, preserved, and studied in museums and universities since the country’s inception.
After NAGRA’s initial passage in 1990 and the implementation of its regulations in 1995, DOI published six rules modifying those regulations, excluding technical and correcting amendments (National Park Service [NPS] 2024a, 2024b). These rules established definitions, procedures, and guidelines to aid both agencies and descendant communities in the disposition of remains and cultural items. Yet, despite these clarifications, implementation has been mixed—at times incredibly successful but often a fraught, uphill battle (Chari and Lavallee Reference Chari and Lavallee.2013).
In 2008, a report on federal agency implementation of NAGPRA was jointly issued by the National Association of Tribal Historic Preservation Officers (NATHPO; a national nonprofit professional association of federally recognized Tribal government officials) and the Makah Nation.Footnote 2 Among other criticisms, the report asserted that the National Park Service—the very office that oversees NAGPRA—was still in possession of hundreds of Native American remains and thus failing to comply with its own directives. The report pointed out loopholes for compliance and the lack of funding allocation and requested that Congress complete an audit of agency compliance through the US Government Accountability Office (GAO).
Two years later, a GAO report titled “After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with the Act” more or less agreed with the NATHPO/Makah Nation assessment, outlining myriad deficits in compliance over the prior two decades (US Government Accountability Office 2010). The report focused on the lack of compliance of eight key agencies. It documented actions that had been taken on repatriation and outlined impediments to compliance.
Although Congress held more than a dozen hearings on the law between 1993 and 2022,Footnote 3 32 years after its initial implementation, NAGPRA had not been amended and progress had stalled (NPS 2024b). The overall sentiment among Tribal communities—for which NAGPRA represented the opportunity to rectify theft and desecration, reclaim culture, and in doing so reaffirm their sovereign identity—was one of perseverance and frustration, of success tempered by roadblocks and dismay (Chari and Lavallee Reference Chari and Lavallee.2013).
New Implementing Regulations (or the “New Regs Era”)
Following a series of government-to-government consultations between Native nations and the DOI, a new proposed rule was entered into the Federal Register in October 2022 (RIN 1024-AE19). With new definitions and accelerated timelines for entities holding Native American materials, the proposed rule represented the most substantive changes to the guidelines governing repatriation since the passage of the original regulations in 1995.
An open comment period of 90 days (later extended by an additional two weeks) was established on publication of the proposed rule, and all comments submitted to the Federal Register were posted for public review shortly after submission. Participation in open comment sessions, discourse at meetings, one-on-one Tribal consultations, press coverage, anecdotal information, and tracking of the posted public comments all served to lend some sense of the opinions about the proposed changes. NAGPRA is and has been subject to variable interpretations despite agency attempts to clarify its definitions and guidelines. Public comments offered a unique window into the perspectives of all NAGPRA stakeholders at a key inflection point, although the format and nature of these comments made it difficult for any interested party to generate a gestalt impression of public opinion. If lacking an assistant or a surplus of time to aggregate the number of comments submitted over a relatively short period of time, it was difficult for any single practitioner to obtain any kind of accurate or objective picture of attitudes toward the (presumed) impending regulatory changes.
Public Comment Analysis
The author undertook just such an objective analysis in early 2023 before the public comment period had closed and shared its findings with other NAGPRA practitioners as part of a “NAGPRA Day” at the Society for American Archaeology’s annual meeting in 2024. The Final Rule was entered into the Federal Register by the DOI on December 13, 2023, and went into effect on January 12, 2024. In it, the National Park Service included an analysis of public comments received on the rule. As with any cultural resource issue submitted for public comment at the federal level, the public comment data analyzed herein remains available for reading, sorting, aggregation, and additional consideration beyond the scope of the present analysis.
Yet there remains a utility to an independent aggregation of the 181 comments submitted in response to the proposed regulations. In addition to a broad assessment of the state of NAGPRA attitudes and approaches in what has become colloquially known as the “New Regs Era,” this analysis focuses the lens on the communities NAGPRA was written to serve and elucidates the opinions present in the feedback from those partners we serve as NAGPRA practitioners.
Methods
Over a comment period of 105 days, 181 written comments on the Proposed Rule were submitted to regulations.gov. Comments represented input from Native nations, the public, universities, museums, and other individuals and entities engaged in NAGPRA work. These comments are publicly available on the federal rulemaking docket but must be read or downloaded one by one. Although the website has a search function, it results in incomplete capture of a given word or topic, because some comments were uploaded as unsearchable PDFs. All comments were downloaded, collated, assigned a demographic code where demographic information was ascertainable, and their content further analyzed. To allow for the sorting of data in a variety of ways, layers of demographic codes were assigned to establish the following:
1. Is the respondent an individual? (1 = Yes; 2 = No)
2. What is the individual’s stakeholder status? (1 = Anonymous or Unidentified; 2 = Student; 3 = Professor; 4 = NAGPRA Practitioner; 5 = Anthropologist/Archaeologist)
3. What is the commenting entity? (1 = Individual; 2 = Native American/Tribal Entity; 3 = Educational Institution; 4 = Professional Organization/Alliance; 5 = Museum; 6 = Governmental Entity)
4. Is the respondent Native-identifying (1 = Yes; 2 = Not Identified; 3 = No)
Although a subjective measure, overall attitude toward the regulations was assigned to one of four broad categories. The topics addressed by each comment were tabulated and rough characterizations of those comments were coded as 1 = support for/agreement with draft regulations, 2 = disagreement with draft regulations, 3 = a mixed response or have concerns/desire clarification, and 4 = none of the above (i.e., did not appear to address the regulations directly). Slight differences in counts between the present analysis and that conducted by the National Park Service that appears in the Final Rule can be attributed to differences in methodology and the subjectivity that inevitably asserts itself in a qualitative data context.
Results
Of the 181 comments submitted to the federal government, 10 entries were assessed as duplicates and excluded from analysis, and one letter was sent on behalf of six Native nations, each of which was given its own entry in the dataset. This reduced the total sample to 176 respondents. Combined into a single document, comments added up to more than 300 pages of text and varied in length from four words to over 43,000 words. Comment analysis is subdivided into three categories: (1) Respondent Demographics provides a picture of the entire commenting population, (2) Overall Perception considers the broad perspective of the total sample and the stakeholder subgroup, and (3) Top At-Stake Issues provides a more in-depth exploration of viewpoints contained in the comments submitted by all Native respondents.Footnote 4
Respondent Demographics and Subgroups
The 176 respondents represent the registered feedback of 87 individuals and 89 entities, categories that are further broken down in Figures 1 and 2.
Total respondent demographics (n = 167).
Individual respondent demographics (n = 87).
Respondents were divided into the broad categories of “stakeholder” and “non-stakeholder” for the purposes of analysis. Stakeholders included Native nations and individuals, intertribal organizations, educational institutions, museums, governmental entities, NGOs, individual practitioners, and professional organizations. Non-stakeholders included anonymous commentors, individuals unidentified as belonging to or from any group, and non-Native student individuals.
Of the 80 individuals classified as non-stakeholders, two identified themselves as professors of non-NAGPRA related fields (English and history), 10 identified as students (four college, two graduate, two high school), 51 identified themselves by name but provided no other contextual biographical data, and 17 entered their comments anonymously. To enable a more robust foregrounding of stakeholder perspectives, these 80 comments were removed from further analysis. The remaining stakeholder sample size was 96. An additional subgroup of Native respondents was designated out of the stakeholder sample for more in-depth analysis.
Although a narrower vein of analysis could result in the loss of comments from some stakeholders who chose to remain anonymous, the comments of those who had a vested interest in the work were presumed to be of greater interest and utility to practitioners than those who were unidentifiable as being engaged in or connected to achieving NAGPRA’s aims. Insofar as comment length is a proxy for depth of engagement with the subject matter, the difference in the average length of comment between the stakeholder and non-stakeholder groups (3,404 words versus 202 words) supported this methodological choice.
Overall Perception
Among the full respondent sample of 176 respondent comments, 44 (25%) had a positive overall perception of the proposed rule, 8 (5%) presented an overall negative perception, and 106 (60%) had a mixed response. Anonymous and unidentified individual respondents were the most likely to register a straightforward positive comment. An additional 18 (10%) comments did not pertain directly to the regulations and thus could not be classified. These primarily voiced the opinion that state-recognized Tribal nations should have a path to repatriation—a consideration that, although valid, is outside the scope of the law and its regulations and thus the purview of this discussion.
Among stakeholders, almost all respondents (89%) submitted comments that were a mix of positive/support/agreement with and negative/disagreement/suggested edits to the proposed regulatory changes, whereas the indiscriminately positive response rate was 8%, and the negative rate was 3%.
Top At-Stake Issues Raised by Native Respondents
Further analysis was limited to the subgroup of respondents that included Native nations and individuals, intertribal organizations, Tribal advocacy groups, and Native alliances, hereafter referred to collectively as “Native individuals and entities.” What follows is a list of the nine most commonly occurring issues of concern in comments submitted by Native respondents, measured by percent of incidence across 71 comments. For each issue, a short summation of the nature of those concerns and a discussion of differences of opinion among the respondent pool are included. Where applicable, text of the Final Rule that addressed comments is included to paint a clearer picture of areas of resolution, the current state of affairs, or areas of contention.
Definition of “Possession or Control” vs. Custody (54%)
The terms “possession” and “control” are not defined in the Act, creating confusion about their interchangeability. Because both have implications for duty of care, reporting, and repatriation, many comments requested clarification of or proposed new definitions for the terms that would dictate the context in which they applied. In the Final Rule, the agency clarified its decision not to revise the terms, saying “‘possession or control’ is a jurisdictional requirement for human remains or cultural items subject to these regulations and for repatriation” and noting various problems with expanding the scope of the definition of custody (Department of the Interior [DOI] 2023).
Civil Penalties and Civil Penalty Reporting (51%)
Just over half (n = 36) of Native respondents registered comments on the civil penalties portion of the rule, with 14 raising concerns about the consistency and speed of the enforcement of civil penalties, the independence of the process of assessment reports, penalty amounts, or wording that precludes anonymity in reporting. Penalty amounts were critiqued as too low to offer sufficient deterrence to noncompliance. Some suggested a circular funding pool, in which assessed penalties would funnel back to the communities that bear the greatest burden of noncompliance. The DOI declined in the Final Rule to increase the base penalty amount and clarified that payments for civil penalties go to the general account of the US Treasury.
Definition of Consultation (49%)
There was broad support for the new definition of consultation, with 17 of 35 comments expressing a positive statement/agreement with the change. The remaining 18 comments had a mixed response, with some suggesting changes or clarifications to the language or requesting that the primacy of the obligation to consult be made explicit throughout the rule. The Final Rule incorporated edits to the definition reflective of these concerns.
Duty of Care (46%)
Changes to the language and requirements around duty of care were strongly supported, with 14 of 33 comments asserting that the changes represented an improvement. The remaining comments suggested word changes to minimize the possibility of “loophole interpretations” of the language; suggested expansions of duty-of-care language that would further emphasize Tribal knowledge, wishes, and consent; or requested the words “to the maximum extent possible” be removed from the language. The latter phrase was removed in the language of the Final Rule.
Cost/Resource Burdens (44%)
Nearly half of all Native respondents addressed the cost and resource burdens of NAGPRA, the proposed new regulations, or both. Most objections related to the agency’s cost estimates, the general lack of funding for the mandate since the Act passed, the difficulty of accessing limited grant funds (the time and resource infrastructure required to apply for grants), and the onus placed on Native nations under the proposed timelines. Relatedly, an additional 12 comments (17%) voiced the opinion that the burden to Native nations ought to be minimized by the DOI providing more resources, including but not limited to aggregated, up-to-date online references for Tribal contacts, geographic affiliation, and lines of supplemental funding for NAGPRA work. In response to these concerns, the DOI referenced their Cost-Benefit and Regulatory Flexibility Threshold Analyses, the benefit of increased short-term costs for long-term benefits, and the resources they do and will provide to reduce burden. Additionally, they addressed grant funding amounts and availability as under the purview of Congress, not the regulations, and asserted “strongly” that their cost estimations reflect what is required by the regulations (DOI 2023).
Timelines (44%)
Opposition was expressed in a variety of ways to the timelines put forth in the proposed rule: 50% of respondents found the proposed two-year timeline unrealistic, and 40% suggested edits such as a timeline expansion, Tribally directed timelines, or both. The DOI responded by expanding the timeline to five years in the Final Rule and stressed that the intention of the regulations is not to impose deadlines on descendant communities but to hold museums and federal agencies to a greater standard of due diligence than was previously mandated.
Geographic Affiliation (42%)
More than most issues tallied, the use and utility of geographic affiliation as a line of evidence lacked clear lines of consensus. Opinions were split, with many welcoming it and some pointing out the conflicts inherent in assigning aboriginal lands with deep and interrupted occupation histories to single (or only) federally recognized Native nations. Others believed doing so cast too wide and generic a net. Because such determinations are nuanced and have overarching implications for competing claims, this is likely to remain a contentious topic going forward, with resolution occurring on a case-by-case basis. The DOI removed a proposed paragraph titled “Geographical affiliation” and revised text to clarify geographic information as a line of evidence in cultural affiliation.
Deference / Native American Traditional Knowledge (39%)
Inclusion of language emphasizing deference to lineal descendants, Native nations, and NHO customs and care standards, as well as acknowledging Native American traditional knowledge as a line of evidence equal in weight and worth to other lines of evidence, was roundly approved as necessary and laudable by 25 of 28 comments. At least three comments requested explicit reiteration of the language of deference at various other points throughout the rules or raised concerns that other language conflicted with the principle of deference. The DOI made some minor edits to clarify language in the introduction to the rules but kept the language of deference despite some opposition from non-Native respondents.
Definition of Ancestral Remains (32%)
The definition of Ancestral remains (referred to in the law as “human remains”) in the proposed rule is “physical remains of the body of a Native American individual.” Of the 23 comments that addressed this definition, 20 supported edits or expansion to the term. At issue are materials that could not exist without the past or present possession of physical remains and that can continue to be used for education, research, and profit after the physical remains from which they are derived have been repatriated. The DOI declined to expand the definition to include casts, replicas, and digital data on the basis that to do so would be “inconsistent with the Act,” but it noted that the right to request those materials is established elsewhere in the Act. It also pointed out that the definition of human remains is intentionally broad as to include DNA samples, tissue samples, hair, et cetera.
Summary of Results
Although comments were submitted from a wide array of respondents, just 55% were identifiable as stakeholders and 40% as Native stakeholders (either individual or entity). The majority (60%–90%) of responses in both the complete sample and the stakeholder subgroup were neither “positive” nor “negative”; rather, they represented nuanced engagement with a complex and lengthy regulatory framework. Of the top nine concerns or issues raised in comments from Native stakeholders, all were addressed in some way in the Supplementary Information sections of the published Final Rule (https://public-inspection.federalregister.gov/2023-27040.pdf). Five of those nine were edited for the Final Rule in a way that addressed some or all of the concerns raised by Native respondents. Central concerns remaining unresolved as the new regulations took effect in January 2024 included the following: confusion over possession or control versus custody, the civil penalties’ reporting/review process and fine amounts, cost and resource burdens placed on Native nations by the regulation’s timelines, and the scope of the definition of Ancestral remains.
From a Better-Informed Present to a More Just Future
The generation of nearly 200 public comments in response to the 2022 proposed regulatory changes bestowed a unique body of information and insight on the NAGPRA field (NPS 2022). But those insights were not accessible to anyone without the time or capability to read, sort, and summarize every comment. By providing a comprehensive synthesis of the comments, published without a paywall, the present work allows the effort that went into each response to be seen, heard, and utilized by those interested in bringing a deeper understanding of the law’s impacts on Native stakeholders to NAGPRA work.
Fundamental challenges to the work of NAGPRA implementation have always been the stark complexity of the process, the diverse array of stakeholders implicated by its mandate, and the often-conflicting goals and priorities of those stakeholders. This central tension is represented in the preface to 2013’s Accomplishing NAGPRA (Chari and Lavallee Reference Chari and Lavallee.2013:7–18), in which the editors discuss the parallel urges to both celebrate its successes and reckon with its shortfalls on the twentieth anniversary of NAGPRA’s passing.
As recently as a decade ago, it was common practice for NAGPRA compliance to follow the explicit requirements laid out by the law while still eliding the need for consultation and good-faith collaboration with Tribal partners. However, the number of participants at repatriation-focused conferences, in NAGPRA Community of Practice meetings, attending National NAGPRA Q&A sessions, and active on national and regional community-of-practice listservs is a testament to the fact that the NAGPRA practitioners of today are an engaged community, invested in delivering on the Act’s higher aims to the best of their ability.
Biological anthropology and archaeology are currently undergoing discipline-wide paradigm shifts, congruent with a broader cultural movement toward acknowledging and repairing systemic inequalities rooted in the foundations of the United States as a country (de la Cova et al. Reference la Cova, Carlina, Marklein, Sholts, Watkins, Magrogan and Kathleen Zuckerman2024). Social reckonings have led to increased journalistic and public scrutiny (Ayers Reference Ayers2021; Demby and Devarajan Reference Demby and Devarajan2021; Hudetz and Brewer Reference Hudetz and Lee Brewer2023; Jaffe et al. Reference Jaffe, Hudetz, Ngu and Lee Brewer2023), which in turn has resulted in overdue institutional reckonings on the possession and treatment of archaeological collections. NAGPRA practitioners in many ways are at the forefront of the reorganization and reimagining that will result from these reckonings because successful models for repatriation and restorative justice abound in our history, even as the need to continue to push the work forward remains (Domeischel and Neller Reference Domeischel and Neller2024).
It behooves those undertaking NAGPRA work in the twenty-first century to consider new regulatory guidelines in the context not only of federal compliance and legality (though those remain the pro forma arguments most compelling to institutional boards and funding entities) but also of descendant community preferences, practices, and concerns. Practices that are truly collaborative go beyond compliance and demand attendance to what Roberts Thompson and coauthors (Reference Thompson, Amanda, Garland, Butler, deBeaubien, Panther and Hunt2023) refer to as descendant-community–informed institutional integrity. This model incorporates “shared stewardship, multivocal approaches, bidirectional communication, trust, capacity building, equitable partnerships, knowledge sharing, transparency, and joint decision-making” at every level, from policy and procedures construction to daily practice (Roberts Thompson et al. Reference Thompson, Amanda, Garland, Butler, deBeaubien, Panther and Hunt2023:233). As Goff and colleagues (Reference Goff, Chapoose, Cook and Shannon2019) point out, a collaborative approach that foregrounds Native perspectives also serves to strengthen relationships and ease historic tensions.
“Consultation” is the buzzword of the “New Regs Era.” It is also the first-line response to every question about best practices for cultural items and Ancestors. Indeed, the DOI states in its own publication of the Final Rule that “consultation is a critical, central, and continual part of the systematic processes for disposition or repatriation provided by the Act and these regulations,” and the language of deference to the wishes and knowledge of Native nations is stronger than in any previous iterations of NAGPRA’s implementing regulations (DOI 2023). Comments from Native nations overwhelmingly celebrated shifts in regulatory language that expanded deference to traditional knowledge and placed the process and pace of decision- making and timelines in their hands.
Although many comments from stakeholders were addressed in edits to the proposed rule, active concerns remain in the wake of publication of the Final Rule. Some of the language invites overly broad interpretations that might allow institutions to skirt obligations to Native nations. The question of resource drain, present since NAGPRA was signed into law, has not gone away, and the new timelines are perceived by some to increase the burden on descendant communities. And the question of whether true repair can take place with noncompliant institutions when the penalties for noncompliance are inconsequential is pervasive.
The comments entered into the Federal Register in response to the proposed rule provide a fascinating and useful resource for learning about the priorities—and in some cases the histories—of our Tribal partners. The present aggregation of the comments provides a digestible “state of the field” snapshot regarding attitudes and concerns of Native stakeholders toward the present regulatory framework. The analysis here can provide an overview of a unique body of data for practitioners of and newcomers to consultation and repatriation work. This awareness of stakeholder concerns can yield a meaningful backdrop from which to venture into consultation conversations. With the caveat that the 574 federally recognized Native nations are distinct, autonomous entities and no one comment can be overgeneralized (nor should these data supersede or replace Nation-specific knowledge and ongoing dialogue), it is hoped that this analysis also provides a reference point from which future conversations might be launched, either in the development of further modifications to the regulations down the line or for those doing the on-the-ground problem-solving work that is required every day for the successful achievement of NAGPRA’s aims.
Acknowledgments
This article was developed from “In Search of Solutions: Exploring Pathways to Repatriation for NAGPRA Practitioners” (NAGPRA Day at the SAA) at the Society for American Archaeology’s 89th Annual Meeting in New Orleans. I thank all the sponsors and individuals who participated in that day’s success. I acknowledge the time, effort, and active participation of every individual and entity that submitted comments to the proposed rule that were the source of this analysis and were critical to pushing forward the work of repatriation. No permits were required for this work.
Funding Statement
This research received no specific grant funding from any funding, commercial, or nonprofit agency.
Data Availability Statement
Data used are publicly available at the following government website: https://www.regulations.gov/docket/NPS-2022-0004.
Competing Interests
The author declares none.
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