NAGPRA’s Duty of Care

Contributed by Marla Taylor

 Revised regulations for the Native American Grave Protection and Repatriation Act (NAGPRA) went into effect January 2024. NAGPRA was passed in 1990 and requires museums to repatriate Native American ancestral remains, funerary belongings, sacred items and items of cultural patrimony back to Tribal communities. The Peabody has shared how we think about the law and the associated labor (emotionally and intellectually) in past blog posts.

• NAGPRA, Repatriation, and Relearning History
• Repatriation and the View from the Top
• Reflections on Repatriation
• NAGPRA at 30: Reflecting on the Past, Looking to the Future
• NAGPRA, Repatriation, and the Peabody

The revised regulations streamline the requirements and process for repatriation, require updates from museums, eliminate the category of “culturally unidentifiable human remains,” and establishes a Duty of Care for museums holding materials subject to repatriation. It is that last change that is having the biggest ripple effect throughout the museum world.

The Duty of Care clause of the regulations (43 CFR 10.1(d)) state that a museum must [highlights are mine for emphasis]:

• Consult with lineal descendants, Indian Tribes, or Native Hawaiian organizations on the appropriate storage, treatment, or handling of human remains or cultural items;
• Make a reasonable and good-faith effort to incorporate and accommodate the Native American traditional knowledge of lineal descendants, Indian Tribes, or Native Hawaiian organizations in the storage, treatment, or handling of human remains or cultural items; and
• Obtain free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations prior to allowing any exhibition of, access to, or research on human remains or cultural items. Research includes, but is not limited to, any study, analysis, examination, or other means of acquiring or preserving information about human remains or cultural items. Research of any kind on human remains or cultural items is not required by the Act or these regulations.

These words are incredibly powerful and are resonating, with mixed reaction, across the museum field. Many news outlets have covered the reaction of several large museums to these regulations:

• Leading Museums Remove Native Displays Amid New Federal Rules, New York Times
• Field Museum, Others Cover Native American Displays to Comply with New Regulations, Native News Online
• The American Museum of Natural History to Close Exhibits Displaying Native American Belongings, ProPublica
• 6 Objects That Explain New Rules on Native Displays in Museums, New York Times

While covering exhibitions can feel drastic and extreme, I would argue that it is a direct result of insufficient consultation efforts and a false dichotomy between NAGPRA and non-NAGPRA collections. Because museums only need consent to display materials subject to NAGPRA (ancestral remains, funerary belongings, sacred items, or items of cultural patrimony), covering displays is an acknowledgement that those institutions have not done their due diligence to identify items subject to the law in their collections. They thought they understood what was covered by NAGPRA and utilized the rest of the collection to suit their own goals. This approach has fed into the underlying tension between Tribes and museums for decades.

I strongly recommend this podcast from Today Explained for an introduction to the topic and an honest conversation: Fight at the Museum (2/22/2024)

On the flip side, several museums have been doing this work for years. Places like the Museum of Us in San Diego and the Indian Arts Research Center (IARC) in Santa Fe have established policies deferring to Tribal preferences in stewardship and exhibition decisions. There are new industry standards for museums seeking accreditation. And I am helping to create a Guide for museum practitioners to center Indigenous perspectives when establishing collections care.

What does all of this mean for the Peabody Institute? Honestly, not much will change.

About six years ago, Peabody staff decided to remove all exhibitions from display. We recognized that our staff (all non-Native) were not the right people to determine what stories could be told through the collection. We understood that Native voices were essential to the process and that it would be irresponsible to move forward with exhibitions that lacked those voices.

The Peabody also has an established research policy that requires consultation and support before access is provided to any portion of the collection. This approach actually goes beyond the Duty of Care clause within NAGPRA and applies to all areas of the collection. In the nearly three years we have had this policy, I have not seen a meaningful decrease in research activity.

In my opinion, these changes are long overdue and I am happy to see a tangible shift in the power dynamics back to Tribes around their cultural material. I am proud of the work that that Peabody Institute has done and I am confident that we will continue to move in a positive direction.