Department of the Interior Issues Proposed Rule for Native American Graves Protection and Repatriation Act (NAGPRA) Regulations

On October 18, 2022, the Department of the Interior published its much-anticipated proposed rule in the Federal Register that would significantly update its regulations implementing the Native American Graves Protection and Repatriation Act (NAGPRA).  Comments on the proposed rule are due January 17, 2023, following a 90-day commenting period.

The proposed rule is designed to improve implementation of NAGPRA and is the product of significant tribal feedback.  It is designed to create a step-by-step roadmap setting forth a number of deadlines and procedures for federal agencies and museums, as well as the National NAGPRA Office, to follow in order to facilitate compliance with NAGPRA and ensure the repatriation of cultural items.  For example, the proposed rule contemplates the use of plans of action and comprehensive agreements to manage activity on tribal or federal land that is likely to result in discoveries.  The proposed rule also requires any person who knows or has reason to know of a discovery to immediately report the discovery to the appropriate official at the federal agency and to any additional points of contact.

The proposed rule also aims to facilitate disposition and repatriation.  For example, it makes changes to the standard under which a connection to a particular cultural item must be shown so that the standard is no longer a significant barrier.  It also contemplates that tribes will submit written requests to consult with museums and federal agencies, and it requires museums and federal agencies to respond in writing with proposed timelines for consultation. Tribes, Native Hawaiian organizations, and lineal descendants would also be able to submit requests for repatriation. The proposed rule introduces requirements for publishing notices of intended disposition and repatriation.  It also requires museums and federal agencies to send written disposition and repatriation statements acknowledging and recognizing that ownership or control is vested in a tribe, Native Hawaiian organization, or lineal descendant.  The proposed rule also establishes a process whereby interested parties can seek a stay of repatriation in the event there are competing claims for repatriation.

The Department will conduct virtual tribal consultation sessions during the comment period; times and dates are to be determined.  If you have any questions about the proposed rule or would like assistance preparing tribal consultation talking points or submitting comments, please contact us.