By Emily R. Holtzman
The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) recognized the rights of Indian Tribes and Native Hawaiian organizations to their own ancestral human remains, associated and unassociated funerary objects, sacred objects, and objects of cultural patrimony. The promise of NAGPRA was to repatriate hundreds of thousands of ancestral human remains and millions of cultural items held in museum and federal agency collections. For more than three decades, NAGPRA facilitated significant victories for the project of repatriation, but structural shortcomings in NAGPRA’s repatriation regime led Indian Tribes, legal scholars, and the Senate Committee on Indian Affairs to call for regulatory change. Promulgated on December 13, 2023, the newly revised final rule (hereinafter “2023 Rule”), includes updates to nearly every facet of NAGPRA. While repatriation professionals are generally supportive of the revision, its implementation has resulted in confusion and chaos.
This Note evaluates the 2023 Rule and its interpretation in the museum world in the first year after its promulgation, then proposes the Department of the Interior and the National NAGPRA Program take specific steps to respond to new and old problems with NAGPRA. Part I gives an overview of American museum practices that led to the passage of NAGPRA. Part II describes NAGPRA’s strengths and the weaknesses that led to a call for reform. Using firsthand accounts from legal and repatriation professionals, Part III begins with a survey of the 2023 Rule, reviews its most impactful reforms, and details barriers to compliance and questions that the 2023 Rule fails to address. Part IV proposes solutions to these issues, recommending the Department of the Interior strengthen its enforcement of NAGPRA and exploring how augmented enforcement could impact museums, federal agencies, and aggrieved parties. Part IV also suggests the National NAGPRA Program make certain changes to its online guidance and briefly addresses how public attention affects NAGPRA repatriation efforts. Although the 2023 Rule includes long-awaited reforms that will help revitalize NAGPRA, the 2023 Rule cannot reach its full potential until more attention and resources are directed toward fulfilling NAGPRA’s original promise.