Last December, the Department of the Interior published revised regulations to implement the Native American Graves Protection and Repatriation Act (NAGPRA). As Interior said at the time, “These regulations provide systematic processes for returning Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony to lineal descendants, Indian Tribes, and Native Hawaiian Organizations (NHOs). The revised regulations streamline requirements for museums and federal agencies to inventory and identify Native American human remains and cultural items in their collections.”

In recent weeks, members of the CRM industry have raised questions about whether the new regulations place additional requirements on CRM firms. In particular, firms have asked whether the definitions of “receives federal funds” and “museum” in the new regulations mean that firms that received PPP loans during the pandemic, or hold contracts with federal, state or local government agencies, are now subject to NAGPRA compliance for any holding or collection in their custody that contains Native American human remains or cultural items.

ACRA reached out to the National NAGPRA Program office at the Department of the Interior to seek further clarification of the new regulations and any potential impact on CRM firms. In response to ACRA’s queries, the Program Office made the following observations:

• According to the Program Office, the relevant definitions in the revised regulations are “not new, nor are they substantially different from the definitions in the original regulations from 1995.”
• Private companies are included in the definition of entities covered by the Act. The regulations require “a museum, Federal agency, or DHHL [Department of Hawaiian Home Lands] to care for, safeguard, and preserve any human remains or cultural items in its custody or in its possession or control.” Under the rules, a “museum” is defined as “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.”  According to the Program Office, “the definition of “museum” includes private companies, whether or not they have contracts with state or local agencies. The use of the term ‘institution’ does not exclude private for-profit companies from the definition of museum.”
• A firm that “receives federal funds” MIGHT be subject to NAGPRA, depending upon the nature of the funds. According to the Program office, “the definition of receives federal funds is specific and it is important [for a firm] to evaluate if federal funds are for procurement of property or services by and for the direct benefit or use of the US government or Federal payments that are compensatory [the exceptions included in the definition of ‘receives federal funds.’”
• A firm that received PPP loans MIGHT be subject NAGPRA. The Program Office said that they “cannot say that PPP loans do or do not constitute federal funds for purposes of NAGPRA. But we stress it is an important question for ANY entity to consider and review their records and terms of funding agreements to determine. We can assist, but we will need specific information about the PPP loan, especially any terms of forgiveness of the loan, to assist with our advice. And please note that we can only provide advice on the question. A determination of whether or not an entity receives Federal funds is a determination the entity must make for itself.”

The bottom line? Whether a firm is subject to NAGPRA depends on a number of factors, some of which are not clearly spelled out in the regulations. ACRA strongly recommends that firms that discover or come into possession of NAGPRA cultural items or Native American remains ask the NAGPRA Program Office or consult with legal counsel to determine their responsibilities. ACRA cannot provide legal advice in this area.

ACRA will continue to research the questions raised by the new regulations and will provide opportunities in the near future for ACRA members to weigh in on NAGPRA-related issues and questions, including through an upcoming Hot Topics discussion.