Through Andrew Kennard
WASHINGTON – The Home Office announced on July 15 that it will begin consultations with leaders of tribal and indigenous Hawaiian communities on a revised regulation implementing the law on the protection and repatriation of Native American graves (NAGPRA). The proposed regulations will reshape the processes by which federal agencies and museums return Native American human remains and cultural objects to descendants and Indigenous communities.
“The repatriation of human remains and sacred cultural objects, as well as the protection of sacred sites are integral to the preservation and commemoration of Indigenous culture,” said Senior Assistant Under Secretary for Indian Affairs Bryan Newland, in a press release from the ministry. “As the ministry continues its work to confront the story of the Federal Residential Schools – including the return of the human remains of Indigenous children to their families – we will implement the policies and demands of NAGPRA to address tribal concerns. “
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The Home Office said the proposed new rules no longer force indigenous communities to initiate the repatriation process, but instead places the responsibility for completing the process on museums and federal agencies.
Under the drafted rules, museums and agencies would be required to consult with descendants and indigenous groups when making an inventory of human remains and objects found with the remains, or “burial objects”. Inventories are expected to be completed two years after the new rules come into force, and a notice of completion of inventory is expected to be issued six months later. The regulation also establishes a timetable for repatriations to be made after the publication of the notice.
“The changes to NAGPRA regulations are long overdue,” said Home Secretary Deb Haaland. “It’s crucial that when we envision changes, we consult with Native Hawaiian tribes and communities every step of the way. I hope this process will remove unnecessary burdens from the repatriation process and allow indigenous peoples better access to the remains of their ancestors and to sacred objects.
The Interior Ministry also said the proposed changes “simplify and improve” the regulations of the repatriation process and “rectify provisions that effectively inhibit and prevent the respectful repatriation of most Native American human remains and cultural objects.” The new changes include many of the recommendations made by 73 representatives from 52 tribes during a 2011 NAGPRA consultation, according to a summary released by the department.
“Museums cannot hold back”
The inventory process requires museums and agencies to determine cultural affiliation, or to which tribe or Native Hawaiian community belong the remains and grave goods. The new deadlines will reduce the ability of museums and agencies to delay this determination, which must happen for repatriation to take place.
Tribes can also use another avenue called the disposition process to take ownership of items that are not culturally affiliated. The disposal process does not currently include burial objects, but the proposed regulations would require museums and agencies to keep Native American remains and burial objects together during disposal.
“So many institutions have refused to make a declaration of cultural affiliation in order to be able to keep objects,” said Shannon O’Loughlin, executive director and lawyer for the Association on American Indian Affairs (AAIA). “So by changing that and changing the way the layout can happen, when the articles are supposed to not be affiliated… museums can’t hold back.”
O’Loughlin (Choctaw) said Indigenous News Online that this change will open up new possibilities for tribes not recognized at the federal level to take possession of grave goods. She explained that federally unrecognized tribes cannot use the repatriation process and therefore must use the disposition process instead. O’Loughlin also said institutions often delay repatriation by asking tribes to provide more information before determining their cultural affiliation.
As of September 30, the NAGPRA National Program reported that about two-thirds of Native American remains reported to NAGPRA since 1990 are not culturally affiliated. About 84 percent of these remains were reported in an inventory but were not listed in a Notice of Inventory Completion, a process that includes determining cultural affiliation.
‘A complete overhaul’
The Home Office also said the draft regulation simplified, clarified and corrected complicated and inaccurate requirements. O’Loughlin called the changes a “complete overhaul.”
“Before that, and even now, the regulations are extremely onerous and complicated,” O’Loughlin said. “You constantly go back and forth between the different sections of the law to understand how things are supposed to work. It is not designed to be a streamlined process for museums, which are very different from federal agencies, or for tribes, to ensure that their rights are protected.
O’Loughlin said the AAIA will work with lawyers, friendly museum curators, tribal officials, spiritual practitioners and others to develop recommendations for tribes before the Home Office begins to take them out. consult on the proposed rules. Following consultations, the ministry said it plans to offer a notice of regulatory proposal for public comment in October 2021.
“We also want to recommend to tribes where they may want to grow if something hasn’t been taken care of, or where things have been overhauled and are looking good,” O’Loughlin said.
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