Compliance

Courtesy of the San Diego Museum of Man.

Federal agencies and museums, universities, state agencies, local governments, or any institution that receives Federal funds must comply with NAGPRA.

What must be done?

NAGPRA requires certain actions depending on where the Native American human remains and cultural items are located.

Protection on Federal or Tribal Lands

Federal agencies, the State of Hawai'i, Indian Tribes, and Native Hawaiian organizations must follow a process for discoveries or excavations of human remains or cultural items on Federal or Tribal lands.

On private or state land, excavations or discoveries are governed first by local or state laws, but human remains or cultural items removed from private or state land may be subject to repatriation (below), depending on who has control of them.

Repatriation by museums and Federal agencies

To facilitate repatriation, each museum and Federal agency must complete an inventory of Native American human remains and associated funerary objects and a summary of other cultural items. A museum or Federal agency must ensure that these requirements are met for any Native American human remains or cultural item under its control regardless of where the holding or collection is physically located. Each museum and Federal agency must identify one or more representatives who are responsible for carrying out these requirements.

What else must be done?

Museums and Federal agencies must:

• Consult with lineal descendants, Indian Tribes, and Native Hawaiian organizations,
• Evaluate requests for repatriation or claims for disposition of human remains or cultural items, and
• Give public notice prior to disposition or repatriation.

What if these tasks aren't completed?

Criminal prosecution may result from selling or profiting from Native American human remains or cultural items obtained in violation of NAGPRA.

Civil penalties may be assessed against a museum that fails to comply with the requirements of NAGPRA.

A Review Committee monitors and reviews implementation of NAGPRA by museums and Federal agencies.

Grants are not awarded to museums that are not complying with NAGPRA.

Who must comply?

Federal Agency: Any department, agency, or instrumentality of the United States Government. This term does not include the Smithsonian Institution.

Museum: Any institution or State or local government agency (including any institution of higher learning) that has possession or control of human remains or cultural items and receives Federal funds. The term does not include the Smithsonian Institution. 

Receives Federal Funds: an institution or State or local government agency (including an institution of higher learning) directly or indirectly receives Federal financial assistance after November 16, 1990, including any grant; cooperative agreement; loan; contract; use of Federal facilities, property, or services; or other arrangement involving the transfer of anything of value for a public purpose authorized by a law of the United States Government. This term includes Federal financial assistance provided for any purpose that is received by a larger entity of which the institution or agency is a part. For example, if an institution or agency is a part of a State or local government or a private university, and the State or local government or private university receives Federal financial assistance for any purpose, then the institution or agency receives Federal funds for the purpose of these regulations. This term does not include procurement of property or services by and for the direct benefit or use of the United States Government or Federal payments that are compensatory. 

Possession or control:  having sufficient interest in an object or item to independently direct, manage, oversee, or restrict the use of the object or item. A museum or Federal agency may have possession or control regardless of the physical location of the object or item.

Custody: having an obligation to care for the object or item but not a sufficient interest in the object or item to constitute possession or control. 

In general, custody through a loan lease, license, bailment, or other similar arrangement is not sufficient interest to constitute possession or control, which resides with the loaning, leasing, licensing, bailing, or otherwise transferring museum or Federal agency.

More definitions and requirements in the regulations at 43 CFR Part 10