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New Native American Graves Protection and Repatriation Act regulations will close loopholes and speed up process

The Tribal Historic Preservation Office sits across the road from the sacred Kituwah Mound in Swain County.
Lilly Knoepp
The Tribal Historic Preservation Office sits across the road from the sacred Kituwah Mound in Swain County.

More than 200,000 human remains sit in collections at museums and institutions across the country. These indigenous remains were supposed to be returned to tribes and native groups after the Native American Graves Protection and Repatriation Act was passed by Congress in 1990.

But more than three decades later, only about half have been made available for return to tribes, ProPublica reported earlier this year.

The Eastern Band of Cherokee Tribal Historic Preservation Office seal.
Courtesy of Tribal Historic Preservation Office Facebook
The Eastern Band of Cherokee Tribal Historic Preservation Office seal.

The update, published December 13, will require a new inventory of items to be repatriated, increase tribal consent in research projects and remove previous loopholes, Miranda Panther, NAGPRA officer for the Tribal Historic Preservation Office for the Eastern Band of Cherokee, said.

“Our priority has always been to get the ancestors back as quickly as possible so that we can put them to rest, get them re buried,” Panther said.

Need for new regulations

The new regulations follow years of advocacy for stronger laws.

In 2010, the Department of Interior released some updates, Panther said. But the timelines for repatriation and a high bar for “cultural affiliation” all made the process tedious and sometimes impossible.

The new regulations did not increase penalties for institutions. Panther said that the current penalties are not enough.

Since NAGRA was enacted, the DOI said that it has investigated 53 entities and found 20 museums have failed to comply with NAGPRA. The organizations were fined a total of almost $60,000 in penalties. Most institutions were fined an average of $2,955 for violating the laws.

These new rules set the minimum penalty at $7,475 with room for increases on the issues with the collection. The charges can be dropped if the institution complies.

“We can't rely on people's ethics or duty or obligation to the law for them to do the right thing. We've seen that that doesn't work," Panther said.

In 2022, the National Park Service hireda full-time investigator for the first time to look into organizations that aren’t following NAGPRA.

What does "culturally unaffiliated" mean?

The term “culturally unaffiliated” is a loophole that has allowed museums and institutions to keep remains, Panther said.

“This is my opinion, but also an opinion widely held by people who work in the field, a lot of museums, universities and institutions labeled collections as “culturally unaffiliated” or “culturally unidentifiable” so that they wouldn't be subject to the NAGPRA regulations,” Panther said.

The 2010 update helped with this issue, Panther said, but this new law brought in tribal recommendations to improve the rule.

In the past, remains and objects that could not be “definitively” pinned to one tribe could be deemed “culturally unaffiliated” and then would not have to be returned. Panther said that the expectation of proof that someone was an ancestor of the Cherokee was too high.

“The new rules really emphasize that you only need one line of evidence.  In the past, a lot of institutions expected us to have almost a whole thesis or large document that clearly laid out how the Eastern Band or another tribe would be culturally affiliated to people and collections that predated the historic period,” Panther said.

The new law says that aboriginal tribes can receive the remains and that tribal experts testimony will be respected as scientific evidence.

In Western North Carolina, the time period before the Cherokee tribe is known as the Mississippian Era between 1000 and 1600 A.D.

“We've been here for 10- 15,000 years and we don't have any discontinuity of settling or living in these areas, but Native knowledge wasn't considered as strongly as the knowledge that they would claim to be of linguistic, archaeological or anthropological value,” Panther explained.

“I'm glad that you know, we'll have a stronger process, stronger right to be able to claim those collections and they're not just languishing on shelves for many more decades,” Panther said.

Roadmap to repatriation

The new regulations also provide a step-by-step roadmap with specific timelines for museums and federal agencies to facilitate disposition or repatriation. For example, when an institution receives a repatriation request it must now respond in at least 90 days. Otherwise the institution could face civil penalties.

“While we understand the objections to the timelines and the concerns about insufficient staffing and funding, the Secretary, the Assistant Secretary, and the Department are committed to clearing a path to expeditious repatriation as Congress intended,” the new regulations stated.

“We must stress that most of the timelines and deadlines under these regulations are triggered by a request for repatriation from a lineal descendant, Indian Tribe, or NHO,” the regulation specified.

“People who work at museums or institutions universities will now know what exactly they have to do and during what time periods they need to do it by, because typically if there was still some movement or forward momentum. Even though it's taking a really long time. I didn't have the basis to file a complaint with national NAGPRA. So I'm glad that those steps will be in place now,” Panther said.

Researchers who hold these collections or are working on a project will now also need prior informed tribal consent before working with a collection. Panther said this is important and that the EBCI does not grant any invasive, destructive testing.

“We've always held graves or cemeteries to be of sacred value and just because native graves aren't marked in a traditional western way doesn't mean that they're any less sacred and then to consider that you know, they're undergoing DNA testing or isotope analysis these different types of scientific testing without consent. I don't think that that would be allowed if it was known to a wider public audience,” Panther said.

This research gives scientists insight into the diets, ages and genetics of ancient populations but requires destroying small portions of bone, ProPublica reported.

The new regulations also require a new inventory of the human remains and belongings of Native American ancestors and burial items to identify those that might be repatriated. Institutions will have five years to update those inventories and publish them in the Federal Register. Failure to do so could result in civil penalties.

The new rules become effective January 12, 2024.

Lilly Knoepp is Senior Regional Reporter for Blue Ridge Public Radio. She has served as BPR’s first fulltime reporter covering Western North Carolina since 2018. She is from Franklin, NC. She returns to WNC after serving as the assistant editor of Women@Forbes and digital producer of the Forbes podcast network. She holds a master’s degree in international journalism from the City University of New York and earned a double major from UNC-Chapel Hill in religious studies and political science.
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