Native American Graves Protection and Repatriation Act: After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with the Act
Published: 2010-07-28T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Native American Graves Protection and Repatriation Act (NAGPRA) required federal agencies and museums to (1) identify their Native American human remains and other objects, (2) try to culturally affiliate them with a present day Indian tribe or Native Hawaiian organization, and (3) repatriate them under the terms in the act. The National NAGPRA office, within the Department of the Interior's National Park Service (NPS), facilitates the government-wide implementation of NAGPRA. GAO was asked to determine, among other things, the (1) extent to which agencies have complied with their NAGPRA requirements, (2) actions taken by National NAGPRA, and (3) extent of repatriations reported by agencies. GAO reviewed records for eight key agencies with significant historical collections, surveyed agencies to obtain repatriation data, and interviewed agency, museum, and tribal officials.
section_title: What GAO Found
paragraphs: Almost 20 years after NAGPRA, key federal agencies still have not fully complied with the act for their historical collections acquired on or before NAGPRA's enactment. GAO examined NAGPRA implementation in detail for eight key federal agencies with significant historical collections: Interior's Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM), Bureau of Reclamation (BOR), U.S. Fish and Wildlife Service (FWS) and NPS; Agriculture's U.S. Forest Service; the U.S. Army Corps of Engineers (Corps); and the Tennessee Valley Authority (TVA). First, all of the agencies acknowledge that they still have additional work to do to fully comply with the act's requirements to identify all of their NAGPRA items, establish cultural affiliations when possible, and create summaries and inventories of the items. Overall, the Corps, the Forest Service, and NPS did the most work to identify their NAGPRA items. BLM, BOR, and FWS did some work, and BIA and TVA have done the least amount of work. Second, some of the eight agencies, along with some other federal agencies, have not fully complied with NAGPRA's requirement to publish notices of inventory completion for all of their culturally affiliated human remains and associated funerary objects in the Federal Register. Until agencies (1) identify all of the possible NAGPRA items in their historical collections, (2) establish cultural affiliations to the extent possible, and (3) publish the required notices, they cannot repatriate their Native American human remains and objects. To fulfill the Secretary of the Interior's responsibilities under NAGPRA, National NAGPRA has taken some actions consistent with the act, such as publishing notices in the Federal Registerand administering a grants program. However, GAO identified some actions of concern. National NAGPRA developed a list of Indian tribes eligible under NAGPRA that was inconsistent with BIA's official list of federally recognized tribes and departmental policy. Furthermore, National NAGPRA did not always screen nominations for Review Committee positions properly and, in a few cases, inappropriately recruited nominees for Review Committee positions. Through fiscal year 2009, 55 percent of the human remains and 68 percent of the associated funerary objects that have been published in notices of inventory completion had been repatriated, according to agency data and GAO's survey results. Agencies are required to permanently document their repatriations, but they are not required to compile and report that information to anyone. Only three agencies--the Corps, the Forest Service, and NPS--centrally track their repatriations. These three agencies, however, along with the other federal agencies that have published notices, generally do not report any of their data on repatriations to National NAGPRA or to Congress. As a result, policymakers, Indian tribes, and Native Hawaiians organizations do not have access to readily available information about culturally affiliated NAGPRA items that have not been repatriated. According to officials, the remaining items have not been repatriated for a variety of reasons, such as a lack of repatriation requests and financial constraints.
section_title: What GAO Recommends
paragraphs: GAO recommends, among other things, that the Departments of Agriculture, Defense, and the Interior as well as TVA report to Congress the actions that they need to take to fully comply with the act and that they report the status of their repatriations to National NAGPRA. GAO is also recommending that National NAGPRA make improvements in its facilitation of the act. Agriculture, Interior, and TVA agreed with GAO's recommendations. The Department of Defense did not provide comments on the report.

section_title: Letter
paragraphs: Many federal agencies and museums have acquired Native American  human remains, funerary objects, sacred objects, and objects of cultural  patrimony over hundreds of years. When the Native American Graves  Protection and Repatriation Act (NAGPRA) was enacted, on November 16,  1990, it was estimated that federal agencies and museums had tens of  thousands of such items in their historical collections. NAGPRA required  federal agencies and museums to (1) identify their Native American human  remains, funerary objects, sacred objects, and objects of cultural  patrimony, (2) try and determine if a cultural affiliation exists with a  present day Indian tribe or Native Hawaiian organization, and  (3) generally repatriate the culturally affiliated items to the applicable  Indian tribe(s) or Native Hawaiian organization(s) under the terms and  conditions prescribed in the act. However, a June 2008 report by the  Makah Indian Tribe and the National Association of Tribal Historic  Preservation Officers reported a number of concerns about federal  agencies’ compliance with the act.
Of the variety of NAGPRA requirements for federal agencies, museums,  and the Secretary of the Interior, those most relevant to their historical  collections, and which are the focus of this report, include the following:    Having each federal agency and museum, with NAGPRA items in their  collections, (1) compile an inventory of Native American human remains  and associated funerary objects; (2) compile a summary of Native  American unassociated funerary objects, sacred objects, and objects of  cultural patrimony; and (3) repatriate culturally affiliated human remains  and objects identified through the inventory or summary processes if the  terms and conditions prescribed in the act are met.
Having the Secretary of the Interior establish a Review Committee to  monitor and review the implementation of these requirements.
Having certain duties assigned to the Secretary of the Interior, which are  carried out by the National NAGPRA Program Office (National NAGPRA) within the Department of the Interior’s National Park Service’s (NPS)  Cultural Resources program.
To address the status of NAGPRA implementation, you asked us to  determine the (1) extent to which federal agencies have complied with  NAGPRA’s requirements for their historical collections; (2) activities taken  by the Review Committee to fulfill its role under NAGPRA and what  challenges, if any, it faces; (3) actions taken by National NAGPRA to fulfill  its responsibilities under NAGPRA; and (4) extent to which federal  agencies reported repatriating Native American human remains and  objects.
To determine the extent to which federal agencies have complied with  their NAGPRA requirements for their historical collections, we obtained  and verified data from National NAGPRA on all federal agencies’ notices  of NAGPRA items published in Federal Register notices through the end of  fiscal year 2009. We examined NAGPRA implementation in detail for eight  key federal agencies with significant historical collections: Interior’s  Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM),  Bureau of Reclamation (BOR), U.S. Fish and Wildlife Service (FWS), and  NPS; the U.S. Army Corps of Engineers (Corps); the Department of  Agriculture’s U.S. Forest Service; and the Tennessee Valley Authority  (TVA). For each of these agencies we reviewed records on NAGPRA  compliance, such as inventories, summaries, Federal Register notices, and  correspondence. We interviewed both headquarters and field staff for each  agency, except TVA, to discuss their NAGPRA implementation. For TVA  we interviewed its entire staff responsible for NAGPRA implementation.  TVA’s NAGPRA staff are located at its headquarters in Knoxville,  Tennessee. We also reviewed information for other federal agencies that  had published NAGPRA notices and included basic data on their  submissions in our analysis. To determine how the Review Committee has  carried out its role of monitoring and reviewing NAGPRA implementation  and what challenges it faces, we attended two Review Committee  meetings and interviewed 10 out of 23 current and former Review  Committee members who represented a variety of experiences. We  interviewed some federal, tribal, museum, and scientific organization  officials on the role of the Review Committee. We also analyzed the  Review Committee’s recommendations to the Secretary of the Interior on  disposition requests for culturally unidentifiable human remains and its  recommended resolutions of disputes. To examine how National NAGPRA  has carried out its role of facilitating NAGPRA implementation, we  reviewed National NAGPRA’s list of eligible Indian tribes, Review  Committee nomination files, National NAGPRA annual reports, and we  interviewed the National NAGPRA program staff. To measure the extent to  which federal agencies have repatriated items published in notices of  inventory completion, we obtained data from the three agencies that track  their repatriations—the Corps, the Forest Service, and NPS. For other  agencies that had published notices of inventory completion—four other  key federal agencies as well as eight additional federal agencies—we  deployed a survey. A more detailed description of our scope and  methodology is presented in appendix I.
We conducted this performance audit from July 2009 to July 2010 in  accordance with generally accepted government auditing standards. Those  standards require that we plan and perform the audit to obtain sufficient,  appropriate evidence to provide a reasonable basis for our findings and  conclusions based on our audit objectives. We believe that the evidence  obtained provides a reasonable basis for our findings and conclusions  based on our audit objectives.
subsections: section_title: Background
paragraphs: NAGPRA covers five types of Native American cultural items, which we  refer to collectively, in this report, as NAGPRA items (see table 1).
Since the early 1800s, federal agencies have amassed archeological  collections with items numbering in the millions. Some, such as NPS,  acquired their collections through archeological excavations intended to  advance scientific knowledge and preserve cultural resources. Others,  such as the Corps and TVA, have made discoveries during the massive  construction projects that are part of their missions. Forest Service  officials estimated that an overwhelming majority of the agency’s  collections resulted from non-Forest Service initiated activities, such as  research by museums and universities or as a result of the construction of  highways, reservoirs, and pipelines; or mining claims. Interior—with its  land-management agencies—has the largest collection outside of the  Smithsonian Institution, with an estimated 146 million objects and  documents that cover archeology as well as disciplines such as art and  zoology. Federal agency archeological collections are currently stored at a  variety of repositories, both federal and nonfederal, located throughout  the country. For example, BLM’s collections are stored at three BLM  facilities and 121 other repositories. According to TVA officials, TVA’s  collections are stored at universities in Alabama, Kentucky, Michigan,  Mississippi, North Carolina, and Tennessee. These federal collections  include tens of thousands of Native American human remains and  hundreds of thousands of funerary objects, sacred objects, and objects of  cultural patrimony subject to NAGPRA.
NAGPRA defines a federal agency as any department, agency, or  instrumentality of the United States, except the Smithsonian Institution,  and defines a museum as any institution or state or local government  agency, including any institution of higher learning, that receives federal  funds and has possession of, or control over, Native American cultural  items, except the Smithsonian Institution. The eight federal agencies with  significant historical collections that we reviewed—BIA, BLM, BOR, FWS,  NPS, the Corps, the Forest Service, and TVA—manage various amounts of  federal land in conjunction with their missions and differ in organizational  structure (see table 2). They also have long histories over which they came  into possession or control of NAGPRA items.
In addition, the missions of the agencies vary widely. For example, NPS’s  mission is to preserve unimpaired the natural and cultural resources and  values of the national park system for the enjoyment, education, and  inspiration of this and future generations. In contrast, the mission of TVA  is to serve the Tennessee Valley through energy, environment, and  economic development. Because of their varying missions, the scope and  treatment of their archeological programs have also differed.
Since 1906, federal agencies have been issuing permits to individuals,  universities, and corporations to perform archeological excavation and  research on the federal land they manage. Although the permitting  system has changed over time, these permits generally allowed the entities  conducting the excavation and research to preserve the excavated  materials in public museums. Thus, in theory, archeological materials  legally excavated from federal lands since 1906 are recorded in agency  reports and records, or in permitting records located in agency files, the  Smithsonian Institution’s National Anthropological Archives, or the  National Archives. However, due to the age of some of the permits, the  large number of permits, and administrative processes that have changed  over time, it can be difficult for some agencies to know where all of their  collections are currently located. For example, a recent Interior Inspector  General report stated that Interior agencies’ collections are held in  625 Interior facilities and at least 1,020 non-Interior facilities, but that four  of its agencies were not aware of the location of their collections held in  the non-Interior facilities.
subsections: section_title: NAGPRA Requirements for Historical Collections
paragraphs: NAGPRA’s requirements for federal agencies, museums, and the Secretary  of the Interior, particularly the ones most relevant to their historical  collections, which are the focus of this report, include the following:    Compile an inventory and establish cultural affiliation. Section 5 of  NAGPRA required that each federal agency and museum compile an  inventory of any holdings or collections of Native American human  remains and associated funerary objects that are in its possession or  control. The act required that the inventories be completed no later than  5 years after its enactment—by November 16, 1995—and in consultation  with tribal government officials, Native Hawaiian organization officials,  and traditional religious leaders. In the inventory, agencies and museums  are required to establish geographic and cultural affiliation to the extent  possible based on information in their possession. Cultural affiliation  denotes a relationship of shared group identity which can be reasonably  traced historically or prehistorically between a present day Indian tribe or  Native Hawaiian organization and an identifiable earlier group. Affiliating  NAGPRA items with a present day Indian tribe or Native Hawaiian  organization is the key to deciding to whom the human remains and  objects should be repatriated. If a cultural affiliation can be made, the act  required that the agency or museum notify the affected Indian tribes or  Native Hawaiian organizations no later than 6 months after the completion  of the inventory. The agency or museum was also required to provide a  copy of each notice—known as a notice of inventory completion—to the  Secretary of the Interior for publication in the Federal Register. The items  for which no cultural affiliation can be made are referred to as culturally  unidentifiable.
Compile a summary of other NAGPRA items. Section 6 of NAGPRA  required that each federal agency and museum prepare a written summary  of any holdings or collections of Native American unassociated funerary  objects, sacred objects, or objects of cultural patrimony in its possession  or control, based on the available information in their possession. The act  required that the summaries be completed no later than 3 years after its  enactment—by November 16, 1993. Preparation of the summary was to be  followed by federal agency consultation with tribal government officials,  Native Hawaiian organization officials, and traditional religious leaders.  The summary was to describe the scope of the collection, kinds of objects  included, reference to geographical location, means and period of  acquisition and cultural affiliation, where readily ascertainable. After a  valid claim is received by an agency or museum, and if the other terms and  conditions in the act are met, a notice of intent to repatriate must be  published in the Federal Register before any item identified in a summary  can be repatriated. In contrast to a notice of inventory completion for  NAGPRA items listed in inventories, notices of intent to repatriate for  NAGPRA items listed in summaries are not published until after an Indian  tribe or Native Hawaiian organization has submitted a claim for an item.
Repatriate culturally affiliated human remains and objects. Section 7 of  NAGPRA and its implementing regulations generally require that, upon the  request of an Indian tribe or Native Hawaiian organization, all culturally  affiliated NAGPRA items be returned to the applicable Indian tribe or  Native Hawaiian organization expeditiously—but no sooner than 30 days  after the applicable notice is published in the Federal Register—if the  terms and conditions prescribed in the act are met. Furthermore, the  regulations require federal agencies and museums to adopt internal  procedures adequate to permanently document the content and recipients  of all repatriations.
section_title: Review Committee Established by NAGPRA
paragraphs: Section 8 of NAGPRA required the Secretary of the Interior to establish a  Review Committee to monitor and review the implementation of the  inventory and identification process and repatriation activities under the  act. The Review Committee is composed of seven members appointed by  the Secretary. Three members are to be appointed from nominations  submitted by Indian tribes, Native Hawaiian organizations, and traditional  Native American religious leaders. At least two of these members must be  traditional Indian religious leaders. Three members are to be appointed  from nominations submitted by national museum organizations and  scientific organizations. The seventh member is to be appointed from a list  of persons developed and consented to by all of the other members.  Among other functions, the Review Committee is responsible for (1) upon  request, reviewing and making findings related to the identity or cultural  affiliation of cultural items or the return of such items; (2) facilitating the  resolution of any disputes among Indian tribes, Native Hawaiian  organizations, and federal agencies or museums relating to the return of  such items; and (3) compiling an inventory of culturally unidentifiable  human remains and recommending specific actions for developing a  process for disposition of such remains.
The Review Committee is a federal advisory committee subject to the  requirements of the Federal Advisory Committee Act and its implementing  regulations. The Federal Advisory Committee Act establishes  requirements for advisory committees subject to the act, including broad  requirements for balance, independence, and transparency. Specifically,  the Federal Advisory Committee Act requires that the membership of  committees be “fairly balanced in terms of points of view represented and  the functions to be performed by the advisory committee.” Members of  advisory committees subject to the Federal Advisory Committee Act are  generally appointed as special government employees or representatives.  Special government employees are appointed to provide advice on behalf  of the government on the basis of their best judgment and must meet  certain federal requirements pertaining to freedom from conflicts of  interest. Representatives, in contrast, provide stakeholder advice—that  is, advice reflecting the views of the entity or interest group they are  representing, such as industry, labor, or consumers—and are not subject  to the same conflict of interest requirements. NAGPRA Review Committee  members are appointed as special government employees. The Federal  Advisory Committee Act also requires the Secretary of the Interior to  appoint a Designated Federal Officer for the NAGPRA Review Committee.  Among other things, the officer must approve or call the meetings of the  committee, approve the agendas, and attend the meetings.
The NAGPRA Review Committee differs from most advisory bodies  subject to the Federal Advisory Committee Act in two important ways.  First, while most agencies have broad discretion in balancing their  committees, NAGPRA limits this discretion because of its requirements  both for the types of members that can serve (i.e., the requirement that at  least two members be traditional Indian religious leaders) and the entities  that can nominate them. Second, according to Interior officials, most  federal advisory committees are not tasked with the dispute resolution  function performed by the Review Committee.
section_title: NPS’s National NAGPRA Program Office
paragraphs: NAGPRA also assigned duties to the Secretary of the Interior that are  carried out by the National NAGPRA Program Office (National NAGPRA)  within Interior’s NPS Cultural Resources program. National NAGPRA has  a staff of 5.75 full-time equivalent employees and one contractor. Its  annual operating budget, which includes the operating expenses for the  Review Committee, is about $1 million. One of the duties assigned to  National NAGPRA is to help fill vacancies on the Review Committee.  National NAGPRA is also responsible for developing NAGPRA’s  implementing regulations and it provides administrative support to the  Review Committee. The main body of the regulations was proposed in  1993 and became effective in 1996.
subsections: section_title: The Evolution of National NAGPRA
paragraphs: NAGPRA required the Secretary of the Interior to perform a number of  functions, which the Secretary initially delegated to the Departmental  Consulting Archeologist, a position within NPS that provides coordination,  leadership, technical assistance, and guidance to all federal agencies with  responsibility for archeological resources. According to agency officials,  this position was housed within the Archeological Assistance Division  under the Associate Director for Cultural Resources. Officials further  stated that, from 1990 to the mid-1990s, the Departmental Consulting  Archeologist and other support staff within the Archeological Assistance  Division were responsible for facilitating NAGPRA compliance  governmentwide (such as reviewing inventories and summaries and  publishing notices) and the Anthropology Division, also within the  Cultural Resources Program, was responsible for conducting NPS’s  compliance activities to meet NAGPRA requirements (such as completing  inventories and summaries and drafting notices). Both offices reported to  the Associate Director of Cultural Resources. Officials said that in the mid- 1990s, the Archeological Assistance Division and Anthropology Division  were merged into a new unit—the Archeology and Ethnography  Program—under the Departmental Consulting Archeologist, who then  conducted both activities until 2000.
In 2000, due to concerns voiced by NAGPRA practitioners over a conflict  of interest between NPS’s facilitation of governmentwide NAGPRA  implementation and its own NAGPRA compliance, the Director of NPS  split these functions by creating a National NAGPRA office to handle the  facilitation of NAGPRA governmentwide and a Park NAGPRA office to  handle NPS compliance with the act. However, the two offices still  reported to the Associate Director for Cultural Resources. New staff were  brought in for National NAGPRA; the Departmental Consulting  Archeologist continued to lead Park NAGPRA efforts and both NAGPRA  programs reported to the manager of the Center for Cultural Resources,  under the Associate Director for Cultural Resources.
Additional changes were made in 2004 due to continued concerns about  the two offices reporting to the same manager under the Associate  Director for Cultural Resources. The Secretary removed Park NAGPRA  from the Cultural Resources Program and placed it within the Office of  Indian Affairs and American Culture in NPS’s Intermountain Region; this  office then reported to the Regional Director. In addition to being  organizationally moved, Park NAGPRA was physically moved from  Washington, D.C., to the Intermountain Region located in Denver,  Colorado. National NAGPRA was removed from the Center for Cultural  Resources and placed directly under the Associate Director for Cultural  Resources, but it remained in Washington, D.C. As a result of these  changes, the Departmental Consulting Archeologist and the Archeology  Program, as it is currently known, no longer has any NAGPRA  responsibilities.
section_title: National NAGPRA’s Grant Program
paragraphs: National NAGPRA operates a grants program established by section 10 of  NAGPRA that amounts to about $2 million per year. The grants are for two  purposes—consultation and repatriation. Consultation grants are  competitively awarded to Indian tribes, Native Hawaiian organizations,  and museums to consult and document human remains and objects. They  are not awarded for activities related to excavations or inadvertent  discoveries under section 3 of NAGPRA, cultural items in the control of a  foreign institution, or activities associated with the Smithsonian  Institution, among other things. For fiscal year 2010, consultation grant  awards can range from $5,000 to $90,000. National NAGPRA issues an  annual call for consultation grants that provides a deadline for  applications. In contrast, repatriation grants are non-competitive and are  awarded to defray the expenses associated with repatriating human  remains and objects, such as the packaging, transportation, and  documenting the condition and treatment history of cultural items to  mitigate potential health risks. Applications for repatriation grants are  accepted on a rolling basis year round.
Once received, National NAGPRA staff review the applications for  consultation and repatriation grants to ensure they meet the eligibility  requirements. For consultation grants, a panel, selected by National  NAGPRA and consisting of federal government employees familiar with  repatriation issues, reviews and scores grant applications and provides  recommendations on which grants to award. The Assistant Secretary of  Fish, Wildlife, and Parks ultimately makes the award decisions. According  to the National NAGPRA Program Manager, consultation and repatriation  grants are neither available to federal agencies nor to Indian tribes or  Native Hawaiian organizations seeking to consult with and repatriate  items from federal agencies.
section_title: Federally Recognized Tribes and Alaska Native Villages
paragraphs: In accordance with NAGPRA’s implementing regulations, National  NAGPRA has developed a list of Indian tribes and Native Hawaiian  organizations for the purposes of carrying out the act. The list is  comprised of federally recognized tribes, Native Hawaiian organizations,  and, at various points in the last 20 years, corporations established  pursuant to the Alaska Native Claims Settlement Act (ANCSA). The term  “recognize” means the federal government acknowledges that a particular  Native American group is a tribe by conferring specific legal status on that  group, establishing a government-to-government relationship between the  United States and the tribe, imposing on the government a fiduciary trust  relationship to the tribe and its members and imposing specific obligations  on the federal government to provide benefits and services to the tribe and  its members. National NAGPRA’s list has evolved over time as additional  tribes have either been granted federal recognition or had their federal  recognition restored. Since NAGPRA was enacted, 28 Indian tribes have  been newly recognized or restored (see app. II). In addition, hundreds of  Indian groups that are currently not federally recognized have expressed  an interest to BIA in seeking federal recognition.
Since the enactment of two recognition laws in 1994, BIA has regularly  published a comprehensive list of recognized tribes—commonly referred  to as the list of federally recognized tribes—that federal agencies are  supposed to use to identify federally recognized tribes. As of August 11,  2009, there were 564 federally recognized tribal entities—339 in the  continental United States and 225 in Alaska—recognized and eligible for  funding and services from BIA by virtue of their status as Indian tribes.  Indian groups not included in the list are commonly referred to as  “non-federally recognized tribes.”
The recognition of Alaska Native entities eligible for the special programs  and services provided by the United States to Indians because of their  status as Indians has been controversial. Since a 1993 legal opinion by the  Solicitor of the Department of the Interior, BIA’s list of federally  recognized tribes has not included any ANCSA group, regional, urban, and  village corporations. These corporations, chartered under state law, were  the vehicle for distributing land and monetary benefits to Alaska Natives  to provide a fair and just settlement of aboriginal land claims in Alaska.
ANCSA defined Alaska Native villages by referring to the lists of villages  contained in sections 11 and 16 of ANCSA. ANCSA required the Secretary  of the Interior to review the section 11 list and add or delete villages that  did not meet specified requirements. The Secretary’s review produced a  so-called modified list, which included Alaska Native villages defined in or  established under section 11 of ANCSA and the villages listed in  section 16. Interior’s Solicitor has noted that a number of post-ANCSA  statutes have included Alaska Native villages within their definition of  Indian tribe by reference to the ANCSA definition of Native village and  that these references are to this modified ANCSA list.
section_title: Key Federal Agencies Have Not Fully Complied with NAGPRA for Their Historical Collections
paragraphs: While the eight key federal agencies we reviewed generally prepared their  summaries and inventories by the statutory deadlines, the amount of work  put into identifying their NAGPRA items and the quality of the documents  prepared varied widely. For some of the human remains and associated  funerary objects that these eight key federal agencies, along with other  federal agencies, have culturally affiliated, they have published notices of  inventory completion, although some notices have encountered delays.  In addition, not all of the culturally affiliated human remains and  associated funerary objects have been published in a Federal Register  notice as required. Officials for the eight agencies also identified  challenges that they faced complying with NAGPRA, which included lack  of funding and staff only working on NAGPRA compliance for historical  collections as a collateral duty.
subsections: section_title: Key Federal Agency Summaries and Inventories were Generally Prepared on Time, but the Amount of Work Conducted and the Quality Varied Widely
paragraphs: While federal agencies compiled hundreds of summaries and inventories,  generally by the statutory deadlines, the amount of work conducted and  the quality of the documents prepared varied widely and in some cases did  not provide reasonable assurance of compliance with the act. When  NAGPRA was enacted, the task facing each federal agency varied  depending on several factors, including the size of their historical  collections, the extent of centralized records in existence for their  collections and institutional knowledge of repositories in possession of  their collections, how dispersed their collections were both geographically  and among different repositories, and each agency’s structure, staffing,  and resources available for cultural resources management.
For most agencies, the task of identifying their NAGPRA items within the  larger universe of their historical collections was complicated by long- standing challenges with the curation and management of their  archeological collections. For example, in 1981, we reported that  Interior’s efforts to guide and coordinate many federal archeological  activities were characterized by “disorder, confusion, and controversy.”  More recently, a December 2009 report by Interior’s Office of Inspector  General described similar deficiencies with the management of Interior’s  museum collections (including NAGPRA items) and stated that Interior is  failing to fulfill its stewardship responsibilities over museum collections,  which are second in size only to the Smithsonian Institution. The  Inspector General report noted that for fiscal year 2007, 53 percent of  Interior’s museum collections, or 78 million objects, were not catalogued,  and that Interior “had little idea” what collections non-Interior repositories  held.
Officials at several of the eight agencies that we focused on during our  review said NAGPRA compliance involved a large amount of work and  because they had different levels of resources to expend, they took varied  approaches to meet the act’s requirements for their historical collections.  Of these eight agencies, the Corps, the Forest Service, and NPS did the  most extensive work to identify their NAGPRA items, and therefore they  have the highest confidence level that they have identified all of them and  included them in summaries and inventories (see table 3). In contrast,  relative to the top three agencies, BLM, BOR, and FWS were moderately  successful in identifying their items and including them in summaries and  inventories, and BIA and TVA have done the least amount of work. As a  result, these five agencies have less confidence that they have identified all  of their NAGPRA items and included them in summaries and inventories.
While some agencies have done more than others to comply with the  requirements of the act, it does not appear that any of the eight agencies  we reviewed are in full compliance. The act and its implementing  regulations did not provide a specific list of activities or actions that  federal agencies and museums had to take in order to identify their  NAGPRA items. However, the act clearly stated that the summaries and  inventories had to contain the NAGPRA items each agency or museum  was in possession or control of. We believe that without conducting a level  of activities that would provide a federal agency with a reasonable  assurance that the summaries and inventories were complete, federal  agencies cannot be confident that they have complied with NAGPRA’s  inventory and summary requirements. Even those agencies that have done  the most work acknowledge that they still have some individual units that  have more work to do. For example, the Corps reports that as of the end  of fiscal year 2009 the Louisville, Nashville, Mobile, and Tulsa Districts  have not yet produced their inventories. Additionally, some agencies said  they do not know exactly how much work is left in order to be confident  that they have identified all of their NAGPRA items.
In addition to the completeness of agency summaries and inventories, we  found that two other important requirements affecting the quality of these  documents—consultations with Indian tribes and Native Hawaiian  organizations and the establishment of cultural affiliations—were also  lacking in some instances. We found that the confusion over when  consultations should occur and when cultural affiliations should be  established appeared to be rooted in the confusion among some NAGPRA  practitioners about the differences between summaries and inventories.  Specifically, summaries described collections, and consultation was to  occur after the summary document was prepared; and cultural affiliations  were to be included in summaries where readily ascertainable. In  contrast, inventories were item-by-item descriptions, consultation was to  occur before the inventory document was completed, and cultural  affiliations were to be made to the extent possible. However, we found  examples where agency officials treated inventories like summaries in that  the consultation occurred and cultural affiliation determinations were  made after the preparation of the inventory. Also, several tribal officials  stated that the frequency and thoroughness of consultations throughout  the NAGPRA process for historical collections varied widely depending on  the agency and agency personnel involved. However, agency officials also  reported challenges in consulting with tribes, such as certain tribes not  wanting to attach any cultural affiliations to NAGPRA items because of  deeply-held spiritual beliefs. If agencies did not perform these initial  critical steps to fully identify and disclose the NAGPRA items that they  have in their historical collections, the repatriation process cannot move  forward.
section_title: Publication of Some Notices of Inventory Completion Has Been Delayed, and Some Agencies Have not Published All Required Notices
paragraphs: According to information from National NAGPRA’s database, as of  September 30, 2009, 16,302 Native American human remains, or 55 percent  of all the Native American human remains inventoried by agencies, had  been published in notices of inventory completion and 13,519 had been  listed in inventories for federal collections as culturally unidentifiable  (see table 4). Of the associated funerary objects inventoried by federal  agencies, 193,324 objects, or 74 percent, had been published in a notice of  inventory completion and 66,918 had been listed as culturally  unidentifiable.
However, we found that in some cases the publication of these notices  encountered significant delays. When agencies made cultural affiliation  determinations for Native American human remains and associated  funerary objects listed in their inventories, they were required to notify the  affiliated Indian tribe(s) or Native Hawaiian organization(s) within  6 months and at the same time submit a copy of the notice to National  NAGPRA for publication in the Federal Register. NAGPRA and its  implementing regulations do not contain a deadline for when the notice  actually had to be published. If a notice of inventory completion is  published and later is found to be inaccurate or new information emerges,  agencies are to work with National NAGPRA to publish a correction  notice. Through fiscal year 2009, federal agencies had published  309 notices of inventory completion and 28 corrections (see fig. 1).
According to agency officials and National NAGPRA, several reasons  contributed to the delays in publishing notices of inventory completion.  First, during its review process National NAGPRA determined that some  inventories had not been properly prepared and, as a result, agencies had  prepared improper draft notices. For example, one improperly prepared  draft notice included unassociated funerary objects, which are to be  included in summaries and notices of intent to repatriate. This may have  been partly because the regulation for the inventory process was not  finalized until December 4, 1995, after the deadline for preparing  inventories had passed. National NAGPRA officials said they returned  improperly prepared draft notices to the agencies. A second reason for  delays in publishing notices, according to some agency officials, was the  highly complex nature of their consultations with the tribes, which  resulted in the agencies needing additional time to finalize their cultural  affiliations before publishing their notices. Third, some agencies treated  inventories like summaries and waited for a culturally affiliated entity to  request repatriation before submitting a notice for publication. Fourth,  some agencies relied on non-federal repositories (such as universities and  museums) that held their historical collections to compile the summary  and inventory documents and submit them directly to National NAGPRA.  According to one former National NAGPRA official, in one case the  P.A. Hearst Museum at the University of California, Berkeley was granted  an extension to the 5-year deadline for compiling inventories for their own  collections, and some agencies believed that this extension also applied to  their federal collections held by the museum.
Additionally, we found that a number of federal agencies have not fully  complied with NAGPRA’s requirement to publish notices of inventory  completion for all of their culturally affiliated human remains and  associated funerary objects in the Federal Register, thereby complicating  efforts of Indian tribes or Native Hawaiian organizations to make  repatriation requests for those items (see table 5). Agency officials  provided several reasons for their lack of compliance with this  requirement. For example, TVA staff stated that, because of personnel  turnover and poor communication—with a repository and with National  NAGPRA in the 1990s—320 human remains preliminarily culturally  affiliated to the Creek and Cherokee tribes have not yet been published in  notices. In addition, an official at BOR’s Great Plains Regional Office  stated that, even though the office had listed culturally affiliated human  remains in its inventory, National NAGPRA rejected the inventory in the  1990s because it was not properly formatted. The BOR official stated that  resources have not been available to revise the inventory and publish the  required notices.
National NAGPRA and the Makah Indian tribe, with the National  Association of Tribal Historic Preservation Officers, have conducted  studies to identify culturally affiliated human remains and associated  funerary objects listed in agency NAGPRA inventories but for which no  notices of inventory completion have been published. However, our  analysis has shown that none of these studies has been comprehensive  and complete. National NAGPRA is currently in the process of reconciling  all the inventories submitted with its electronic database in order to  determine which culturally affiliated human remains and associated  funerary objects have not been included in a notice of inventory  completion. Program officials expect this effort to be completed by  October 2010. Until federal agencies have published notices of inventory  completion in the Federal Register for culturally affiliated human remains  and associated funerary objects that they have listed in inventories, items  cannot be repatriated according to the provisions of NAGPRA. Although  National NAGPRA will have more information on the level of compliance  by federal agencies from the reconciliation of data, this may not lead to  improved compliance because NAGPRA and its implementing regulations  do not provide National NAGPRA or any other federal office with  authority to ensure federal agency compliance with the act. See  appendix III for a discussion of NAGPRA enforcement.
section_title: Federal Agencies Identified a Number of Challenges That Inhibit Their Efforts to Comply with NAGPRA
paragraphs: Officials with the eight agencies that we reviewed identified a number of  challenges that their agencies have faced in complying with NAGPRA.  First and foremost, officials at all of the eight key federal agencies that we  spoke with and a December 2009 Interior Inspector General report all  noted that the lack of funding is one of the most significant challenges to  complying with NAGPRA. Officials noted that without funding, their  cultural resources management programs have not been adequately  staffed to comply with NAGPRA. For example, BIA has one curator for the  estimated 5.7 million items in its collections across the entire agency, and  FWS’s Service Archaeologist estimated that it would cost $35 million and  take 28 years to properly review all of FWS’s historical collections for  NAGPRA items. Second, NAGPRA compliance for historical collections is  generally a collateral duty among all the other tasks that agency cultural  resource staff must perform, including section 3 NAGPRA responsibilities  for new intentional excavations and inadvertent discoveries. Officials at  almost all of the eight agencies we reviewed confirmed that compliance  with sections 5 and 6 of NAGPRA for historical collections is a collateral  duty for most federal agency staff that work in this area. For example,  BLM staff stated that their state archaeologists prioritize compliance with  section 3 of NAGPRA, section 106 of the National Historic Preservation  Act, and the National Environmental Policy Act. Even the national-level  NAGPRA coordination staff at many agencies, such as BLM, BOR, FWS,  and BIA, told us that they do not spend the majority of their time on  NAGPRA compliance. Third, as discussed earlier, poor curation practices  by agencies and repositories, in general, along with poor historical records  and documentation, have also made NAGPRA compliance a challenge.
section_title: The Review Committee Has Monitored Compliance with NAGPRA Implementation, Made Recommendations with Mixed Success, and Continues to Face Challenges
paragraphs: To fulfill its responsibilities under NAGPRA, the Review Committee has  monitored federal agency and museum compliance, made  recommendations to improve implementation, and assisted the Secretary  in the development of regulations. While the Review Committee’s  recommendations to facilitate the resolution of disposition requests  involving culturally unidentifiable human remains have generally been  implemented, recommendations to facilitate the resolution of disputes  over the disposition of NAGPRA items have generally not been fully  implemented. Moreover, some actions recommended by the Committee  have exceeded NAGPRA’s scope and, until recently, letters from the  Designated Federal Officer informing parties of the Committee’s  recommendations did not clearly indicate whether the Secretary of the  Interior had concurred with the Committee’s recommendations after an  independent assessment of the disposition request. In addition, the Review  Committee has faced a number of challenges, in trying to effectively fulfill  its role under the act.
subsections: section_title: The Review Committee Has Monitored Compliance with NAGPRA Implementation and Made Recommendations with Mixed Success
paragraphs: As part of its role in implementing NAGPRA, the Review Committee has  (1) undertaken various activities, such as monitoring compliance with the  act; (2) made recommendations on the disposition of culturally  unidentifiable human remains; and (3) made recommendations on  disputes.
subsections: section_title: The Review Committee Has Undertaken Various Activities in Its Role under NAGPRA
paragraphs: The Review Committee has undertaken various activities and provided  information and advice to the Secretary and Congress on a wide range of  NAGPRA issues:    Monitoring compliance. Since its first meeting in 1992, the Review  Committee has monitored agency and museum efforts to comply with  NAGPRA using data provided by National NAGPRA and from status  reports presented by agency, museum, and tribal representatives at  Review Committee meetings. National NAGPRA has provided periodic  information to the Review Committee on the quantity of agency and  museum submissions of summaries, inventories, and publications in the  Federal Register. Also in two meetings in the late 1990s, the Review  Committee heard reports from representatives of more than 13 federal  departments and agencies about their efforts to comply with NAGPRA’s  requirements, consult with Indian tribes, and determine the cultural  affiliation of human remains and objects. Officials from some agencies and  museums, including NPS and the Forest Service have also regularly  attended Review Committee meetings and provided updates on their  efforts. The Review Committee has used this information in its annual  reports to Congress and has noted that federal agency efforts to comply  with NAGPRA have been uneven, complex to measure, and lacking in  transparency.
Making recommendations to Congress. In its annual reports to Congress,  the Review Committee has recommended several amendments to  NAGPRA but none have been enacted to date. For example, first, in its  annual reports covering 2002 through 2008, the Review Committee  recommended that Congress amend the definition of the term “Native  American” to add the words “or was” so that the definition would read:  “Native American means of, or relating to, a tribe, people or culture that is,  or was, indigenous to the United States.”  The members  wanted this change made in response to a court case. While legislation  has been introduced that would make this change, it has not yet been  enacted. Similarly, in its annual reports to Congress covering 1995 through  2001, the Review Committee recommended that Congress amend  NAGPRA to include language that would protect Native graves on state or  private lands from grave robbing and destructive activities. An amendment  adding this language to NAGPRA has not yet been enacted. Finally, to help  eliminate some of the barriers to NAGPRA implementation, the Review  Committee has made recommendations to Congress about appropriating funding for federal agencies, Indian tribes, Native Hawaiian organizations,  and museums to implement the act’s requirements.
Assisting in the development of regulations. The Review Committee has  assisted in developing regulations to implement NAGPRA. In its early  years, the Review Committee, in conjunction with Interior’s Office of the  Solicitor spent substantial amounts of time developing the main rule.  After assisting with the main rule, in 1997, the Review Committee turned  its attention to providing input into the rule addressing the disposition of  culturally unidentifiable human remains (see app. IV for a discussion of  this rule), and in 2002 to the rules addressing civil penalties for  noncompliant museums, and the future applicability rule for newly  recognized tribes and other situations.
section_title: Most Review Committee Recommendations on the Disposition of Culturally Unidentifiable Human Remains Were Implemented, but Some Actions Recommended Exceeded NAGPRA’s Scope
paragraphs: Through fiscal year 2009, the Review Committee has made  recommendations to the Secretary on 61 disposition requests for culturally  unidentifiable human remains. We found that 52, or about 85 percent, of  the Committee’s disposition recommendations had been fully  implemented by the parties after the Secretary concurred with the  Committee’s recommendation. Of the remaining 9 disposition  recommendations, 3 have been partially implemented, 3 have been not  implemented, and the status of 3 is unknown (see table 6). Twenty-two of  the 61 requests involved federal agencies, and 19 of the 22, were fully  implemented. Parties generally agreed in advance to their preferred  manner of disposition and, in accordance with the regulations, came to the  Review Committee to complete the process and obtain a final  recommendation from the Secretary. The two most common  recommendations made by the Review Committee were (1) disposition to  a federally recognized tribe or group of tribes and (2) the need for  additional consultation or documentation.
In reviewing the recommendations made by the Review Committee, we  noted that some of the actions recommended by the Review Committee  were outside the scope of NAGPRA (see table 7). These recommendations  were made prior to the new regulation on the disposition of culturally  unidentifiable human remains.
We found that the Review Committee recommended actions that fell  outside the scope of NAGPRA for four primary reasons:    Committee members were acting in accordance with the Review  Committee’s principles of agreement, which outline the criteria that  members are to use when considering requests for disposition of culturally  unidentifiable human remains. According to former Review Committee  members we spoke with, the principles of agreement stated that  appropriate repatriation solutions included the return of human remains  that were culturally unidentifiable for which there was a shared group  identity with a non-federally recognized Indian group. The Review  Committee had concluded that NAGPRA intended and did not prohibit  funerary objects associated with culturally unidentifiable human remains  from being repatriated.
In instances where human remains were deemed culturally unidentifiable  because they were culturally affiliated to non-federally recognized Indian  groups, Review Committee members believed that it would be  scientifically dishonest to recommend disposition to Native Americans not  culturally affiliated with the human remains, thus they recommended  dispositions to non-recognized Indian groups.
Review Committee members recommended disposition of objects  accompanying culturally unidentifiable human remains because they had  heard from tribal representatives that it was culturally unacceptable to  separate human remains from the objects buried with them.
Some members lacked strong knowledge of the complexities of the law.
Although attorneys with Interior’s Office of the Solicitor attend Review  Committee meetings and provide legal advice, one attorney stated that the  Solicitor’s Office allowed Review Committee members wide leeway with  regard to their recommendations because the Committee’s  recommendations are not binding.
Nevertheless, we found that the Review Committee has not recommended  dispositions to a non-federally recognized Indian group since 2001, and the  Review Committee, National NAGPRA, and Interior officials have  generally addressed the issue of the Review Committee recommending  actions that are outside the scope of NAGPRA. First, for the culturally  unidentifiable associated funerary objects, since 2008, letters from the  Designated Federal Officer to the affected parties informing them of the  Review Committee’s recommendations have included the stipulation that  NAGPRA does not authorize disposition of these objects. The letters state  that a federal agency or museum may choose to repatriate such objects  under other authorities they may have. Under the recently issued rule on  the disposition of culturally unidentifiable human remains, agencies may  repatriate these objects if state or federal law does not preclude it.  Further, an attorney with Interior’s Office of the Solicitor reported  advising the Review Committee of this in the late 1990s. Second, according  to National NAGPRA officials, since the fall of 2008, the Designated  Federal Officer has requested that all parties seeking Review Committee  consideration describe the issue that they wish to present. The officer  reports using this information to help determine what type of issue is  being presented and whether the issue is outside the scope of NAGPRA  and therefore ineligible for consideration. In addition, with regard to tribal  coalitions, attorneys with Interior’s Office of the Solicitor told us that they  believe NAGPRA authorizes repatriations to coalitions of tribes as long as  agency or museum records indicate that actual repatriation was made to a  federally recognized tribe.
We also found that, through January 2007, letters from the Review  Committee’s Designated Federal Officer to the parties receiving a  recommendation did not clearly indicate whether the Secretary of the  Interior’s recommendation was the result of an independent assessment of  the facts, NAGPRA, and the Review Committee’s recommendations. The  importance of whether the Secretary’s recommendation is the result of  Interior’s independent assessment of the request is two-fold. First, the  Review Committee is advisory and its recommendations cannot bind the  Department or the parties. Second, NAGPRA regulations require that  agencies and museums retain possession of culturally unidentifiable  human remains pending promulgation of an applicable regulation, unless  legally required to do otherwise, or recommended to do otherwise by the  Secretary. An attorney with Interior’s Office of the Solicitor confirmed to  us that the Secretary’s recommendation reflects Interior’s independent  assessment of the disposition requests for culturally unidentifiable human  remains, and the Review Committee’s recommendations. However, we  found that letters sent between 1994 and January 2007 did not clearly state  that the Secretary had considered the facts or whether the Secretary had  independently assessed the requests in concurring with the Review  Committee recommendation. Letters sent since January 2007 have  clarified the Secretary’s independent assessment of and concurrence with  the Review Committee’s recommendations and in two cases stated that  Interior disagreed in part with the Review Committee’s recommendation  and did not recommend disposition.
section_title: Few Review Committee Recommendations on Disputes Were Fully Implemented
paragraphs: In contrast to the amicable nature of disposition requests, disputes are  generally contentious and the Review Committee’s recommendations have  had a low implementation rate. Through the end of fiscal year 2009, the  Review Committee had considered 12 disputes brought by Indian tribes  and Native Hawaiian organizations—three against federal agencies and  nine against museums. We found agencies and museums usually did not  implement some elements of the recommendations in disputes. In  particular, the Review Committee recommended four times that agencies  and museums revise the cultural affiliation of human remains or the  classification of objects, but these recommendations were never  implemented. Of the 12 disputes that we reviewed, the Review  Committee’s recommendations were fully implemented for 1 dispute,  partially implemented in 3 others, not implemented for 5, and the status of  3 cases is unknown. Furthermore, three of these cases have resulted in  lawsuits, which further illustrates the Review Committee’s difficulties in  fulfilling its statutory responsibility to facilitate the resolution of disputes.  See appendix V for more information on the status of the Review  Committee’s recommendations on the 12 disputes.
section_title: The Review Committee Faces a Number of Challenges in Fulfilling Its Responsibilities under NAGPRA
paragraphs: According to officials of museums and scientific organizations, the Review  Committee and its annual reports, the Committee has faced a number of  challenges in fulfilling its NAGPRA responsibilities. These challenges fall  into the following four categories:    Perception that the Review Committee favors tribal interests. Officials  from museums and scientific organizations and some Committee members  themselves that we spoke with said that the Review Committee favors  tribal interests over the interests of the museum and scientific community.  This has led some to question the Committee’s objectivity. One official  representing a museum that had previously been a party to a dispute  considered by the Review Committee stated that she considered engaging  with the Committee as one of the least preferred methods to achieve  resolution on NAGPRA issues because of the perceived lack of balance.  At the same time, some Committee members told us that the Review  Committee acknowledges there may be some bias and regarded it as  understandable because they believe the intent of NAGPRA was to serve  Native American interests and overcome years of bias against tribal  interests by museums and scientific organizations. Regardless, the issue of  the Review Committee’s actual and perceived objectivity is a concern  because it could impact the Review Committee’s ability to carry out its  responsibilities. We have previously reported that to be effective, federal  advisory committees must be—and, just as importantly, be perceived as— independent and balanced as a whole. If federal agencies and museums  perceive the Review Committee as lacking objectivity and heavily favoring  tribal interests, they may disengage from the process.
Lack of data on federal agency compliance. In its annual reports to  Congress from 2006 through 2009, the Review Committee has cited the  lack of data on federal agency compliance as a significant challenge. From  2006 through 2009, the Review Committee regularly reported that the lack  of data prevented it from assessing whether required consultations  between Indian tribes and federal agencies were taking place. Further, in  its annual report covering 2008, the Review Committee requested that  Congress hold open hearings for agencies, as well as museums and tribes  to provide the Review Committee and other stakeholders with more  information on the challenges that NAGPRA practitioners have  encountered. National NAGPRA officials noted that in addition to the  biennial reports provided to the Review Committee on the status of  NAGPRA compliance, National NAGPRA also produced a 2006 report on  the status of Native American human remains in the control of federal  agencies.
Limited resources. According to annual reports prepared by the Review  Committee and Committee members that we spoke with, the Committee  lacks the resources it needs to effectively fulfill its responsibilities under  NAGPRA. According to these sources, the Committee’s travel budget only  allows it to hold two face-to-face meetings per year; therefore, it is unable  to devote the attention needed to adequately cover all the agenda items.  Two Review Committee members also told us that given their busy  schedules, they have limited time to review particularly voluminous  documents for disposition requests and disputes.
Lack of administrative support provided by National NAGPRA. Several  current and former Review Committee members expressed dissatisfaction  with the level of administrative support provided by National NAGPRA to  the Committee. For example, some stated that National NAGPRA did not  provide Review Committee members briefing packets in a timely manner.  These materials are essential for the proper preparation of meeting  activities, particularly for complex disputes and disposition requests.
National NAGPRA officials stated that they make efforts to provide the  materials at least 15 days prior to the meeting. To accomplish this, they  request that parties provide documents to National NAGPRA 30 days in  advance, but, in some cases, presenters have come to the meetings with  additional information that must then be provided to Committee members.  In addition, two Committee members stated that in the past, National  NAGPRA has been slow to reimburse the cost of travel to meetings, which  has placed a financial burden on members.
section_title: National NAGPRA Has, in Some Cases, Not Effectively Carried Out Its Responsibilities
paragraphs: National NAGPRA has taken several actions to help the Secretary carry  out responsibilities under NAGPRA. Overall, while most of the actions  performed by National NAGPRA were consistent with the act, we did  identify concerns with a few actions. Specifically, National NAGPRA has  promulgated a number of regulations to implement NAGPRA, but failed to  meet the statutory deadline for promulgation. In addition, National  NAGPRA has developed a list of Indian tribes for the purposes of carrying  out NAGPRA, but at various point in the last 20 years the list has not been  consistent with BIA’s policy or a Solicitor legal opinion analyzing the  status of Alaska Native villages as Indian tribes. Also, National NAGPRA  has not always properly screened nominations for the Review Committee  and, in 2004, 2005, and 2006, inappropriately recruited nominees for the  Review Committee and, in one case, recommended the nominee to the  Secretary for appointment.
subsections: section_title: National NAGPRA Has Taken Actions Consistent with the Act, such as Publishing Notices, Administering a Grants Program, and Supporting the Review Committee
paragraphs: National NAGPRA has taken a number of actions that are consistent with  the act. For example, National NAGPRA has published federal agency and  museum notices in the Federal Register; increasing this number in recent  years while reducing a backlog of notices awaiting publication.  Furthermore, it has administered a NAGPRA grants program that from  fiscal years 1994 through 2009 has resulted in 628 grants awarded to Indian  tribes, Native Hawaiian organizations, and museums totaling $33 million.  Other actions include the development of publicly available databases and  providing training and educations materials to NAGPRA practitioners.  See appendix VI for more details on these activities.
National NAGPRA, primarily through the Review Committee’s Designated  Federal Officer, has also assisted the Review Committee in several areas  such as developing meeting agendas in concert with the Review  Committee Chair and maintaining a list of culturally unidentifiable human  remains. To assist parties that wish to bring issues before the Review  Committee, National NAGPRA staff have produced templates for needed  documents that, according to agency officials, help the parties organize  materials for the review, focus presentations before the Review  Committee, and simplify committee actions. Other activities have included  publishing Federal Register notices of upcoming Review Committee  meetings, issuing letters conveying Review Committee recommendations  to affected parties, and providing logistical support to Review Committee  members, such as reimbursing their travel expenses to attend Review  Committee meetings. National NAGPRA has also administered the  nomination process for Review Committee members.
section_title: Some Actions Taken by National NAGPRA Raise Concerns
paragraphs: We have concerns with (1) the time frames in which the regulations have  been promulgated and the inclusion of ANCSA corporations as Indian  tribes in National NAGPRA’s list of Indian tribes for the purposes of  carrying out NAGPRA at various points in the last 20 years, and (2) the  screening of Review Committee nominations and questionable recruiting  practices.
subsections: section_title: National NAGPRA Was Late in Promulgating NAGPRA Regulations and Treats ANCSA Corporations as “Indian Tribes” Contrary to BIA Policy and a Solicitor Legal Opinion
paragraphs: As shown in table 8, National NAGPRA has promulgated regulations to  implement NAGPRA in four main sections. While section 13 of NAGPRA  required the Secretary to promulgate regulations within 12 months of the  law’s enactment, the main body of the regulations was not published in  final form until December 4, 1995; several years after the statutory  deadline. Also, the regulations were not effective until January 3, 1996,  which was after the 1993 and 1995 deadlines for the completion of  summaries and inventories, respectively.
In addition, National NAGPRA must still promulgate regulations for two  remaining sections—disposition of unclaimed human remains, funerary  objects, sacred objects, or objects of cultural patrimony (section 10.7) and  failure to claim where no repatriation or disposition has occurred  (section 10.15(b)). Furthermore, according to agency officials, National  NAGPRA plans to revisit the NAGPRA regulations in their entirety,  opening them up for public comment. However, the officials could not  provide us with specific dates for when these additional rulemaking  activities would occur.
In accordance with the regulations, National NAGPRA developed a list of  Indian tribes for the purposes of carrying out NAGPRA that includes  federally recognized tribes and, at various point in the last 20 years,  ANCSA corporations. National NAGPRA’s inclusion of ANCSA  corporations in its list of Indian tribes does not appear to be consistent  with Interior’s legal and policy positions regarding the status of Alaska  Native villages and ANCSA corporations. Specifically, the inconsistency  stems from the inclusion of village, regional, group, and urban  corporations established pursuant to ANCSA that are not on BIA’s list of  federally recognized Indian tribes or the modified ANCSA list of Alaska  Native villages.
NAGPRA’s enactment and National NAGPRA’s original development of the  list of Indian tribes for the purpose of carrying out NAGPRA coincided  with an ongoing debate within Interior about the status of ANCSA  corporations. Although BIA currently does not recognize any of the  ANCSA corporations as eligible for the special programs and services  provided by the United States to Indians because of their status as Indians,  at various times they have been included in BIA’s list of federally  recognized tribes. For example, in 1982—the first time Alaska Native  entities were included in the BIA list—the ANCSA corporations were  excluded because they are not governments. However, the 1988 BIA list  included ANCSA corporations, raising a number of questions with respect  to the effects of the list, as BIA later recognized. After a 1993 legal opinion  by the Solicitor that concluded that ANCSA corporations do not qualify as  Indian tribes for the purposes of federal law, BIA published a revised list  in 1993 that did not include any ANCSA corporations. Subsequent lists also  have not included ANCSA corporations. Accordingly, BIA has not  recognized and does not treat ANCSA corporations as federally recognized  tribes.
Moreover, none of the ANCSA corporations are included in the modified  ANCSA list of Alaska Native villages. The Solicitor has noted that a  number of post-ANCSA statutes, such as NAGPRA, have included Alaska  Native villages within their definition of Indian tribe by reference to the  ANCSA definition of Native village and that these references are to this  modified ANCSA list. Therefore, the inclusion of ANCSA corporations in  National NAGPRA’s list is at odds with the Solicitor’s legal position that  the Alaska Native villages on the modified ANCSA list are Indian tribes for  purposes of federal law. Under this interpretation, the inclusion of Alaska  Native villages in NAGPRA’s definition of Indian tribe refers to the villages  on the modified ANCSA list that were subsequently included in BIA’s list  of federally recognized tribes and not the ANCSA corporations.
However, because National NAGPRA’s list of Indian tribes for purposes of  carrying out NAGPRA has included ANCSA corporations, at various times  over the past 20 years, the office as well as other federal agencies and  museums, have considered them eligible to make nominations for Review  Committee positions, receive NAGPRA grants, and request repatriation of  NAGPRA items.
section_title: National NAGPRA Has Not Always Properly Screened Review Committee Nominations and Has Engaged in Questionable Recruiting Practices
paragraphs: We found that in its administration of the Review Committee nomination  process, National NAGPRA has not always properly screened nominees to  ensure that they were nominated by one of the required entities specified  in NAGPRA. During the first several rounds of nominations, we found  numerous instances of this. For example, in 1991, National NAGPRA  forwarded to the Secretary the names of a number of nominees that were  submitted by ineligible entities, such as individual university staff  members, tribal consortia, a non-profit organization, and a federal agency  official. We identified similar, albeit fewer, problems in the 1996 and 2000  nominating rounds. As a result of this improper screening, the Secretary  has appointed members who were nominated by ineligible entities several  times since 1991.
National NAGPRA has taken steps to improve the screening process. For  example, in its April 2002 Federal Register notice soliciting nominations,  National NAGPRA included the requirements for both nominators and  nominees and required submission of additional information with  nominations. Specifically, the notice required (1) nominations submitted  by Indian tribes or Native Hawaiian organizations to be signed by the  leader of the tribe or organization and (2) that traditional religious leaders  making nominations identify themselves as such. It also clearly stated that  nominations from other individual tribal members could not be  considered. Also, beginning in 2002, National NAGPRA began to confirm  the status of Native American traditional religious leaders, both as  nominators and nominees, by contacting both sources to verify this  information. The June 2003 nomination notice further required that  nominations from Indian tribes or museum and scientific organizations  include a statement indicating that the official is authorized to make the  nomination. Moreover, it required that nominations from traditional  Native American religious leaders include a statement by the nominator  that the nominee is a traditional Native American religious leader. The  August 2006 nomination notice further required that the nominator explain  how he or she meets the definition of traditional religious leader.
Despite National NAGPRA’s efforts to improve the screening process,  some issues still remain. For example, two nominees forwarded to the  Secretary recently were nominated by ineligible individuals or entities. In  the first case, an individual was nominated by a tribe’s director of cultural  resources and the nomination letter did not include a statement that the  director was authorized by the tribe to make the nomination. This  individual was appointed by the Secretary and currently serves on the  Review Committee. After we brought this issue to their attention, National  NAGPRA officials contacted the tribe and obtained an official letter from  the chairman of the tribe supporting the individual’s nomination. In the  other case, a nomination was made by a non-federally recognized tribe.  Interior officials confirmed that nominations must be submitted by a  federally recognized tribe. Again, we alerted National NAGPRA to this  issue, and officials responded that although the individual’s name was on  the list sent to the Secretary, he was not actually considered because he  was not eligible.
In addition to its lack of adequate screening of nominating entities,  National NAGPRA has also bypassed the nomination process by  essentially making its own nominations. In one case in 2004, National  NAGPRA actively recruited a nominee and the nominee accepted the offer  6 months after the deadline for submitting nominations had passed.  National NAGPRA then sought and received permission from a nominating  entity to use a 7-year-old nomination for the current nominating round  even though the entity had already nominated a different individual in  response to the solicitation. The Secretary appointed the individual  recruited and recommended by National NAGPRA. According to an  Interior official involved in this recruitment effort, National NAGPRA  became involved in recruiting efforts because the Federal Register  solicitations had garnered an inadequate pool of nominees, and some  National NAGPRA officials believed that the Review Committee had  become too weighted toward the interests of the museum and scientific  communities and was seeking an individual more favorable to tribal  interests. In addition to this case, we identified two other instances in 2005  and 2006 where National NAGPRA recruited nominees. Both were  appointed to the Review Committee. The National NAGPRA Program  Manager pointed out that in these latter two instances, the nominees  initiated the contact and pursued the position.
The lack of adequate screening and recruitment issues surrounding the  nomination process has damaged the credibility of both National NAGPRA  and the Review Committee and has contributed to the perception of a lack  of objectivity cited by some museum officials and Review Committee  members that we interviewed. For example, several Review Committee  members said that the appointment process is not transparent and fair and  some, referred to it as a “black box” because they are not aware of what  happens to nominations once they are submitted to National NAGPRA.  The National NAGPRA Program Manager clarified that current policy is to  collect and forward all of the nomination submissions, to the NPS Policy  Office and subsequently to the Secretary of the Interior for further review.
section_title: Many NAGPRA Items Have Been Repatriated, but Repatriations Are Not Tracked or Reported Governmentwide
paragraphs: According to agency data and our survey results, a total of 55 percent of  human remains and 68 percent of associated funerary objects have been  repatriated as of September 30, 2009. While agencies are required to  permanently document their repatriations, they are not required to  compile and report that information to anyone. Of the federal agencies  that have published notices of inventory completion, only three have  tracked and compiled agencywide data on their repatriations. These three  agencies, however, along with other federal agencies that have published  notices of inventory completion, do not regularly report comprehensive  data on their repatriations to National NAGPRA, the Review Committee, or  Congress. Agency officials identified several reasons why some human  remains and associated funerary objects have not been repatriated,  including a lack of a repatriation request from a culturally affiliated entity,  repatriation requests from disputing parties, a lack of reburial sites, and a  lack of financial resources to complete the repatriation. Federal agencies  have also published 78 notices of intent to repatriate covering  34,234 unassociated funerary objects, sacred objects, or objects of cultural  patrimony.
subsections: section_title: Agencies Have Repatriated 67 Percent of Culturally Affiliated NAGPRA Items, but Repatriations Are Not Tracked or Reported on a Governmentwide Basis
paragraphs: Federal agencies reported repatriating 141,027 of the 209,626 NAGPRA  items published in their notices of inventory completion, or 67 percent, as  of the end of fiscal year 2009. The repatriation rates by agency ranged from  0 percent to 100 percent and they represent 55 percent of the human  remains and 68 percent of the associated funerary objects in federal  agencies’ notices of inventory completion, according to agency reported  data and our survey results (see table 9).
Of the eight key agencies we reviewed, the Forest Service and FWS had  the lowest repatriation rates for human remains among the key agencies  with published notices of inventory completion. In addition, through fiscal  year 2009, TVA has not published any notices of inventory completion and  as a result, it has not repatriated any Native American human remains or  associated funerary objects.
One of NAGPRA’s purposes was to set up a process by which federal  agencies and museums receiving federal funds would inventory their  holdings and work with culturally affiliated Indian tribes and Native  Hawaiian organizations to repatriate certain Native American human  remains and objects in their historical collections. However, as noted in  the data above only three of the eight key agencies with significant  historical collections presently consolidate agencywide data on the extent  of their repatriations. In addition, as they are not required to do so, these  agencies and others generally do not regularly report comprehensive  repatriation data by notice to National NAGPRA, the Review Committee,  or Congress. Therefore, policymakers do not have an overall sense of  how federal agency repatriation of NAGPRA items is progressing.  Similarly, Indian tribes and Native Hawaiian organizations do not have  readily available information on which human remains and objects have  been culturally affiliated with them but have not been repatriated.  Regulations implementing NAGPRA require that federal agencies and  museums must permanently document the content and recipients of all  repatriations, but do not require museums and agencies to compile these  data and make them available to the public or to National NAGPRA.
Because neither National NAGPRA nor the Review Committee receive this  information, they cannot include it in their annual reports. Without  repatriation data, we believe that National NAGPRA, the Review  Committee, and Congress are lacking valuable information on the progress  of NAGPRA implementation toward the overall goal of returning control of  human remains and objects to affiliated groups.
The 2008 report on NAGPRA implementation by the Makah Indian tribe  and the National Association of Tribal Historic Preservation Officers found  that Congress has no means of periodically assessing the effectiveness of  NAGPRA implementation. The report recommended that federal agencies  and National NAGPRA compile information on all completed repatriations  reported by agencies and that National NAGPRA develop a database to  hold this information.
National NAGPRA has started a “Culturally Affiliated Native American  Inventories Database,” which is to provide a snapshot on the current  status of human remains and associated funerary objects that have been  culturally affiliated as a result of consultation with Indian tribes and  Native Hawaiian organizations. National NAGPRA reports that all the  human remains and objects that are eventually listed in this database  should be represented in a notice of inventory completion. National  NAGPRA reported that the database was 75 percent complete as of  April 1, 2010, and expected it to be fully populated by summer 2010.  Completion of the database would provide reports on the minimum  number of individuals culturally affiliated but not yet in notices. Because  data on completed repatriations of culturally affiliated remains and objects  are already being documented by federal agencies, and National NAGPRA  already tracks the number of human remains and objects listed in each  notice, National NAGPRA staff told us that they could include the  repatriation status of the items appearing in each inventory and notice in  their database. National NAGPRA staff could collect voluntary repatriation  data from all agencies to provide a consolidated report, but there were no  specific plans or time frames for this.
section_title: Some NAGPRA Items Have Not Been Repatriated Due to a Lack of Tribal Requests, Tribal Disputes, and Availability of Reburial Sites
paragraphs: A total of 7,401 human remains and 61,198 associated funerary objects  published in a notice of inventory completion had not been repatriated as  of September 30, 2009. Repatriations did not occur for a variety of reasons.
The most common reason that repatriations did not occur is that the  culturally affiliated Indian tribe(s) or Native Hawaiian organization(s) did  not make a request for the return of the human remains and associated  funerary objects, according to agency NAGPRA program officials and our  survey results. For example, Forest Service NAGPRA staff told us that the  most significant challenge to repatriations has been the lack of requests  from culturally affiliated entities. They noted that tribes are often not  prepared to deal with repatriation for a variety of reasons. In some cases,  Forest Service, NPS, and tribal officials told us that tribes lack cultural  protocols to deal with NAGPRA, and specific cultural protocols and new  ceremonies need to be developed before a request or transfer of human  remains and objects can be made. Responses to our survey of 12 agencies  to obtain the repatriation status of human remains and associated funerary  objects included in 147 notices of inventory completion show that the lack  of a request from culturally-affiliated Indian tribes and Native Hawaiian  organizations has prevented repatriations of human remains in 25 percent  of the cases.
Another reason repatriations did not occur is because, in some cases,  multiple competing repatriation requests were received, and the federal  agency could not clearly determine which requesting party is the most  appropriate. Section 7(e) of NAGPRA provides that in these situations the  federal agency may retain the item until the requesting parties reach  agreement on its disposition or the dispute is resolved under NAGPRA’s  provisions or in court. For example, in a case involving human remains  that represent approximately 1,400 individuals removed from the Tonto  National Forest in Arizona, there is a disagreement among some of the  culturally affiliated tribes over the place and manner of the final  disposition of the human remains. According to the Forest Service,  because this involves differing cultural views among culturally affiliated  tribes, it is leaving the matter to the tribes to resolve. As a result, the  repatriation cannot proceed until the disagreement is resolved.
The availability of an acceptable burial site is also an important reason  why some repatriations were not completed promptly. This has been  challenging, in part, due to the federal agencies’ reburial policies on their  lands, which have varied over time. Most of the key federal agencies that  manage land where NAGPRA items were found currently have policies  that allow the reburial of the remains and objects on the land they manage  (see table 10). BOR does not allow reburial on land that it manages. Tribes  have cited the lack of reburial sites as a challenge to repatriation.
The lack of financial resources may also prevent or delay repatriations.  Repatriations may involve a variety of expenses, including preparing a  reburial site, transporting the items from their present location to the  reburial site, access roads, grave markers and security measures,  preparation of remains, and travel expenses of tribal officials involved  with the reburial. For example, officials from the Confederated Tribes of  the Umatilla Reservation said that funding for repatriation work is their  largest challenge. They said that one of the few sources of relief is  National NAGPRA grants, but that these grants are difficult to get. The  Caddo Nation historic preservation staff also told us that their office relies  on federal grants to carry out NAGPRA repatriation work and said more  funding is needed. In their 2008 report on NAGPRA implementation, the  Makah Indian tribe and the National Association of Tribal Historic  Preservation Officers recommended Congress provide more funding at the  federal and tribal levels. They found that many Indian tribes or Native  Hawaiian organizations do not have resources for training or repatriation  activities. As previously mentioned, the Review Committee has also  recommended additional funding for the grant program. The National  NAGPRA program has awarded an average of $53,893 annually in  repatriation grants to Indian tribes and Native Hawaiian organizations.  On average about six tribes per year receive these grants to help with  expenses associated with repatriating NAGPRA items from museums.  Repatriation grants are not available to tribes for repatriations from  federal agencies, according to National NAGPRA staff.
The key federal agencies that we reviewed had different policies on the  extent to which they would fund repatriation expenses and reburial of  items from their historical collections (see table 11). For example, the  Corps’ policy includes a specific list of allowed expenditures, while BIA  and FWS have no formal policy but will fund some expenses on a  case-by-case basis. BOR will fund only tribal activities, such as  consultation, that occur prior to repatriation.
section_title: Federal Agencies Have Published 78 Notices of Intent to Repatriate Covering 34,234 Objects
paragraphs: As of the end of fiscal year 2009, federal agencies had published 78 notices  of intent to repatriate in the Federal Register covering 34,234 objects— unassociated funerary objects, sacred objects, or objects of cultural  patrimony (see table 12). An agency official said that almost all of these  repatriations will proceed because, in accordance with NAGPRA, the  notices are based on the summaries, the agency already had consulted and  culturally affiliated the items, and that an Indian tribe or Native Hawaiian  organization had made a repatriation claim prior to the publication of the  notice of intent to repatriate. In some cases, where multiple groups are  affiliated with the items, the groups must reach consensus on who will  receive the items before the repatriation can proceed.
section_title: Conclusions
paragraphs: After passage of the act, many federal agencies faced a monumental task  in trying to identify all of their NAGPRA items and culturally affiliating  them, to the extent possible, within the statutory deadlines. The difficulty  of the task was compounded at some agencies by overall poor  management and oversight of their museum collections over the years.  NAGPRA compliance was generally assigned to cultural resources staff as  a collateral duty, and trying to resolve the status of an item that the agency  may have had for over 100 years was frequently a low priority when  weighed against more immediate deadlines. While the act authorizes the  Secretary of the Interior to assess civil penalties against museums for  noncompliance, no enforcement mechanism exists to ensure federal  agency compliance except through litigation by private parties. Despite  the fact that key federal agencies have now had almost 20 years to comply  with the act, they still have not fully complied. Furthermore, it is difficult  for policymakers to determine how much work the federal agencies have  left to achieve full compliance because the agencies generally do not have  an estimate of the remaining work nor their needs for staff and resources  to complete their NAGPRA activities for their historical collections.
In the cases where the federal agencies have completed inventories with  culturally affiliated human remains and associated funerary items, much of  the compliance work has already been accomplished. However, for a  variety of reasons, over the years, the publication of notices of inventory  completion for some of these items in the Federal Register did not occur.  Until agencies publish notices of inventory completion for the remaining  culturally affiliated human remains and associated funerary objects in the  Federal Register, they cannot be repatriated.
NAGPRA’s enactment and National NAGPRA’s original development of the  list of Indian tribes for the purpose of carrying out NAGPRA coincided  with an ongoing debate within Interior about the status of ANCSA  corporations. However, Interior’s Solicitor has since clarified the status of  the ANCSA corporations, and they are no longer on BIA’s list of federally  recognized tribes. Accordingly, the rationale for National NAGPRA  continuing to include them as Indian tribes for the purpose of carrying out  NAGPRA is unclear.
Because repatriation involves addressing both the interests of Native  Americans who want the remains of their ancestors and their cultural and  sacred objects returned to them and the scientific and research interests  of museums, it is important that all sides continue to be fully engaged in  the process and it is important that the Review Committee and National  NAGPRA be viewed as objective, balanced, and fair. In setting up the  Review Committee with three members nominated from each side, the act  tried to balance the interests of Native Americans and museums. However,  actions by National NAGPRA have fueled concerns about not only its but  also the Review Committee’s objectivity and transparency, especially  through the inappropriate interference in the nomination process and  failing to ensure that all the nominations considered for appointment meet  the act’s requirements.
In addition, data on repatriations are not centrally tracked and reported or  readily available to affected Indian tribes and Native Hawaiian  organizations. As a result, neither National NAGPRA nor the Review  Committee can report this information in their annual reports to Congress.  Without this information, policymakers cannot assess the overall  effectiveness of the act. Furthermore, not making this information readily  accessible to Indian tribes and Native Hawaiian organizations is an  impediment to repatriation because a list of published items not yet  repatriated would allow tribes to easily identify items that have been  affiliated to them and allow them to request more information and, in turn,  perhaps request repatriation.
section_title: Recommendations for Executive Action
paragraphs: We are making the following five recommendations to improve NAGPRA  implementation:  To enhance federal agency NAGPRA compliance, we recommend that the  Secretaries of Agriculture, Defense, and the Interior, and the Chief  Executive Officer of the Tennessee Valley Authority direct their cultural  resource management programs to develop and provide to Congress    a needs assessment listing specific actions, resources, and time needed to  complete the inventories and summaries required by NAGPRA sections 5  and 6 for their historical collections; and   a timetable for the expeditious publication in the Federal Register of  notices of inventory completion for all remaining Native American human  remains and associated funerary objects that have been culturally  affiliated in inventories.
To clarify which entities are eligible under NAGPRA, we recommend that  National NAGPRA, in conjunction with Interior’s Office of the Solicitor,  reassess whether ANCSA corporations should be considered as eligible  entities for the purposes of carrying out NAGPRA given the Solicitor’s  opinion and BIA policy concerning the status of ANCSA corporations.
To improve the confidence in the Review Committee and its support  among NAGPRA practitioners, we recommend the Secretary of the  Interior direct National NAGPRA to strictly adhere to the nomination  process prescribed in the act and, working with Interior’s Office of the  Solicitor as appropriate, ensure that all Review Committee nominations  are properly screened to confirm that the nominees and nominating  entities meet statutory requirements.
To provide policymakers with information to assess the overall  effectiveness of the act and to provide Indian tribes and Native Hawaiian  organizations readily accessible information on items that are available for  repatriation, we recommend that the Secretaries of Agriculture, Defense,  the Interior, and the Chief Executive Officer of the Tennessee Valley  Authority direct their cultural resource management programs to report  their repatriation data to National NAGPRA on a regular basis, but no less  than annually, for each notice of inventory completion they have or will  publish. Furthermore, National NAGPRA should make this information  readily available to Indian tribes and Native Hawaiian organizations and  the Review Committee should publish the information in its annual report  to Congress.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report for review and comment to the  Departments of Agriculture, Defense, and the Interior as well as TVA.  In their written comments, officials from Agriculture’s U.S. Forest Service,  Interior, and TVA agreed with the report’s conclusions and  recommendations. Their written comments are reprinted in appendixes  VII, VIII, and IX, respectively. Interior and TVA also provided technical  comments, which we incorporated into the report as appropriate.  The Department of Defense did not provide comments.
Interior’s comments also included specific responses to each of the five  recommendations in the report, and identified actions that it either has  underway or will undertake in the future to implement four of the  recommendations. However, regarding the recommendation involving  ANCSA corporations specifically; Interior’s response did not reflect the  long-standing nature of our concern. The definition of “Indian tribe” in the  NAGPRA regulations published in 1995 included ANCSA corporations,  even though Interior’s Solicitor and BIA had previously determined that  the ANCSA corporations are not federally recognized tribes. Moreover, at  various points in the past 20 years, ANCSA corporations have been  included in National NAGPRA’s list of Indian tribes for the purposes of  carrying out NAGPRA and have been treated as eligible to make  nominations for the Review Committee, receive NAGPRA grants, and  make repatriation requests and claims. For example, on October 27, 1997,  National NAGPRA updated its list and ANCSA corporations were included  in it. In addition, prior to that list’s publication, ANCSA corporations had  made nominations for the Review Committee, received NAGPRA grants,  and been the recipients of at least four separate repatriations. Following  publication of the 1997 list, ANCSA corporations continued to make  nominations for the Review Committee, receive NAGPRA grants, and have  items repatriated to them. As of March 30, 2010, the list maintained by  National NAGPRA did not contain ANCSA corporations but they were  added in April 2010. After we discussed the issue with National NAGPRA  and the Interior’s Office of the Solicitor, National NAGPRA removed the  ANCSA corporations from the list in May 2010. However, a notice of  inventory completion published on May 4, 2010, stated that repatriation of  human remains to an ANCSA corporation would proceed unless other  claimants came forward. To the extent that federal agencies and museums  continue to treat ANCSA corporations as eligible “Indian tribes” for  NAGPRA purposes, we believe that our recommendation remains valid.
We are sending copies of this report to the appropriate congressional  committees; the Secretaries of Agriculture, Defense, and the Interior; the  Chief Executive Officer of the Tennessee Valley Authority; and other  interested parties. In addition, this report is available at no charge on the  GAO Web site at http://www.gao.gov.
If you or your staff members have any questions about this report, please  contact me at (202) 512-3841 or mittala@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on the  last page of this report. GAO staff who made major contributions to this  report are listed in appendix X.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: This appendix details the methods we used to examine the  implementation of the Native American Graves Protection and  Repatriation Act (NAGPRA). We were asked to determine:  (1) the extent to which federal agencies have complied with  NAGPRA’s requirements for their historical collections;  (2) the activities taken by the Review Committee to fulfill its role  under NAGPRA and what challenges, if any, it faces;  (3) the actions taken by National NAGPRA to fulfill its responsibilities  under NAGPRA; and  (4) the extent to which federal agencies reported repatriating Native  American human remains and objects.
We examined NAGPRA implementation in detail for eight federal agencies  with significant historical collections: the Department of the Interior’s  Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM),  Bureau of Reclamation (BOR), U.S. Fish and Wildlife Service (FWS), and  the National Park Service (NPS); the U.S. Army Corps of Engineers  (Corps); the Department of Agriculture’s U.S. Forest Service; and the  Tennessee Valley Authority (TVA). We reviewed NAGPRA and its  implementing regulations in 43 C.F.R. Part 10 and the final rule on the  disposition of culturally unidentified human remains published recently in  the Federal Register. For each agency we reviewed records on NAGPRA  compliance, such as inventories, summaries, Federal Register notices,  consultations, and agreements with Indian tribes or Native Hawaiian  organizations, collection records and repatriation forms or letters, other  correspondence, agency databases, if any, and the National NAGPRA  database and paper files. To check the reliability of the data on published  notices in the National NAGPRA database (officially called “NAGPRA 20”),  we compiled this data into one table and compared it to actual notices of  inventory completion and notices of intent to repatriate published in the  Federal Register. Of the 419 notices contained in the table we created  using NAGPRA 20 data, we found a small number of data entry errors that  we corrected. This data provides the basis for overall statistics on the  program and the universe of notices for which we needed to seek  repatriation data because not all of the agencies involved tracked and  reported it.
Considering that NAGPRA implementation happens at field locations  around the country as well as at headquarters, we planned visits to some  of these locations. We compiled a list of agency field locations with  significant NAGPRA collections and activities. Based on these lists, we  selected a judgmental sample of six areas for site visits that would allow  us to visit as many of the key agencies as possible. Table 13 identifies the  geographic areas and the levels of agency officials we met with in each  location as well as tribal and museum officials.
In total we met with the national-level NAGPRA coordination staffs for  each of the eight key agencies in our review, as well as staff with NAGPRA  responsibilities at either regional, state, district, local, or field levels for  the key agencies, as applicable. Because we selected a judgmental sample  of locations to visit, the information we obtained during these visits may  not be generalized to all federal agencies and jurisdictions across the  country. However, because we selected a variety of locations, the  information we obtained at these locations provided us with a good  perspective on the actual NAGPRA implementation efforts by federal  agencies.
During our review we interviewed officials from Indian tribes, tribal  organizations, museums, and scientific organizations as well as current  and former Review Committee members. During our interviews with these  officials we asked questions regarding one or more of our objectives.  During our review we maintained an open door policy and we  accommodated any Indian tribe, museum, organization, or Review  Committee member that wanted to meet with us or provide information in  writing. As a result, our methodology was supplemented by meetings with  additional Indian tribes, museums, and Review Committee members that  approached us on an ad hoc basis. While we had specific discussion topics  for each of these interviews related to one or more of our four objectives,  we did not impose a limit on the topics that could be discussed. The  interviews and visits for this review included:    We interviewed officials from Indian tribes and tribal organizations either  in conjunction with on our site visits, in Washington, D.C., or by telephone,  including, the Caddo Nation of Oklahoma, the Four Southern Tribes (Gila  River Indian Community of the Gila River Indian Reservation, Arizona; Salt  River Pima-Maricopa Indian Community of the Salt River Reservation,  Arizona; Ak-Chin Indian Community of the Maricopa (Ak Chin) Indian  Reservation, Arizona; and Tohono O’odham Nation of Arizona), the Navajo  Nation of Arizona, New Mexico and Utah; the Santa Clara Pueblo of New  Mexico; Big Pine Band of Owens Valley Paiute Shoshone Indians of the Big  Pine Reservation, California; Pyramid Lake Paiute Tribe of the Pyramid  Lake Reservation, Nevada; Seneca Nation of New York; Confederated  Tribes of the Umatilla Reservation, Oregon; and the Western Apache  NAGPRA Working Group (San Carlos Apache Tribe of the San Carlos  Reservation, Arizona; Tonto Apache Tribe of Arizona, White Mountain  Apache Tribe of the Fort Apache Reservation, Arizona; and the Yavapai- Apache Nation of the Camp Verde Indian Reservation, Arizona); the  Affiliated Tribes of Northwest Indians; the Inter Tribal Council of Arizona,  Inc.; the Morning Star Institute; the Native Association of Tribal Historic  Preservation Officers; and the Native American Rights Fund.
We visited nonfederal entities (museums) serving as repositories for  federal archeological collections in Illinois (Illinois State Museum),  Tennessee (Frank H. McClung Museum at the University of Tennessee),  and Arizona (Arizona State Museum at the University of Arizona in  Tucson, Arizona). In addition, we interviewed other officials from  museums and scientific organizations either in conjunction with our site  visits, in Washington, D.C., or by telephone, including the American  Museum of Natural History in New York, New York; the Field Museum in  Chicago, Illinois; the Phoebe A. Hearst Museum of Anthropology at the  University of California in Berkeley, California; the Peabody Museum of  Archaeology and Ethnology at Harvard University in Cambridge,  Massachusetts; the Heard Museum in Phoenix, Arizona; the American  Association of Physical Anthropologists; and the Society for American  Archeology. Since the focus of our report was on federal agencies’  implementation of NAGPRA, these interviews provided background  information and we did not attempt to interview a representative sample  of museum officials.
We selected nine current and past members of the Review Committee for  interviews through a network analysis based on four factors: (1) the entity  that nominated them, (2) the length of their tenure on the Committee,  (3) the period during which they served, and (4) whether they chaired the  Committee. One of the selected members declined to be interviewed. We  interviewed two additional members during the course of our review.
Also related to all four of our objectives, we reviewed our prior reports on  agency archeological resource preservation, relevant Interior Inspector  General reports, academic sources, and the 2008 report by the Makah  Indian tribe and the National Association of Tribal Historic Preservation  Officers on NAGPRA implementation. We also attended the Arizona State  University conference “Repatriation at Twenty” in January 2010.
For our first objective, to determine the extent to which federal agencies  have complied with their NAGPRA requirements for their historical  collections, we obtained data from the NAGPRA 20 database on the  federal agencies’ notices of inventories and summaries as published in the  Federal Register notices through the end of fiscal year 2009. The database  contained the dates that National NAGPRA received inventories and  summaries from federal agencies and museums. To assess whether  summaries and inventories were generally prepared on time by agencies  we did the following. We determined that because the NAGPRA database  did not contain the date that the documents were prepared, it was only  partially useful for determining compliance with the statutory deadlines.  Therefore, if the summaries and inventories were received by National  NAGPRA before and near the statutory deadline, we determined that the  documents had been completed in compliance with the act. We also  reviewed agency files and interviewed agency officials in the eight key  agencies involved in our review for information on timeliness. We used all  of these sources to assess whether summaries and inventories were  generally prepared on time by agencies.
We analyzed the NAGPRA 20 database for reliability and verified all of the  database information on notices of inventory completion, notices of intent  to repatriate, and corrections of this information contained in the  database. In addition, we assessed the reliability of relevant fields in the  tables for summaries and inventories in the database by electronically  testing for obvious errors in accuracy and completeness, reviewing  information about the data and the system that produced them, and  interviewing National NAGPRA officials knowledgeable about the data.  When we found logical inconsistencies in the data, we clarified these with  National NAGPRA officials before conducting our analyses. We  determined that the data were sufficiently reliable for the purposes of  using several fields related to when agencies submitted inventories and  summaries. However, we found the database to be unreliable for purposes  of tracking culturally unidentifiable human remains and objects because  the items entered into the culturally unidentifiable portion of the NAGPRA  20 database are not deleted when they are affiliated. Rather, in some  cases, a notation is made in the notes field. We analyzed text recorded in  the notes fields of the inventory data to assess whether human remains  and objects listed as culturally unidentifiable had been culturally affiliated.
In addition to Inspector General, and other reports, we considered  relevant reports identified in literature searches or recommended by  NAGPRA experts, including a study by a National NAGPRA intern, the  Corps’ Mandatory Center for Expertise for the Curation and Management  of Archeological Collections, several academic journal articles and other  materials concerning the curation of archeological collections, NAGPRA  implementation, and cultural resource management.
To track agency compliance with NAGPRA, we reviewed each agency’s  records at headquarters and the field, such as inventories, summaries,  Federal Register notices, and other documents. On our site visits, we  interviewed national, regional, state, and local agency staff about their  implementation of NAGPRA, in particular about the procedures they  followed to identify their historical NAGPRA collections, to determine  their level of confidence with their identification of NAGPRA items in their  archeological collections. Our analysis is based both on the testimonial  evidence and documents from agencies supplemented by Inspector  General reports. In addition, we interviewed selected tribal and museum  officials for their views on these efforts.
In order to identify cases in which human remains and associated funerary  objects that were culturally affiliated in agency inventories, but not yet  published in Federal Register notices, we examined information from  three sources: (1) the June 2008 report by the Makah Indian tribe and the  National Association of Tribal Historic Preservation Officers, (2) a report  on the topic by a National NAGPRA intern, and (3) inventory data from  NPS’s “NAGPRA 20” database. We could not rely on National NAGPRA  data alone because it was incomplete. We created a list of federal agency  units mentioned in two or three of these reports, and then examined  records at National NAGPRA offices, including the original inventories and  published notices of inventory completion, to determine which units had  in fact not published the relevant notices. In order to reduce the risk of  undercounting, we examined the full agency-submitted inventories for  each of the agency units listed in our examples. Through our analysis,  we discovered that some agency units were listed erroneously in previous  reports because of typing errors, or because the affiliated human remains  had actually been correctly published in notices of intended disposition.
To address our second objective to determine the actions taken by the  Review Committee to fulfill its role under NAGPRA and the challenges it  faces, we analyzed the Committee’s annual reports to Congress, meeting  minutes, and reports by National NAGPRA. We reviewed documentation  outlining Review Committee policies and procedures including Review  Committee charters. We reviewed the Federal Advisory Committee Act  and regulations, and our prior reports on the topic to understand the  Review Committee’s role as a federal advisory committee. We  interviewed current and former Review Committee members and Nationa NAGPRA officials to learn more about the Review Committee’s activitiesand the extent and quality of the support provided by National NA GPRA.  We attended two Review Committee meetings (Seattle, Washington, in  May 2009, and Sarasota, Florida, in October 2009) and observed an online  training course on the role of the Review Committee in February 2010.
To understand primary functions of the Review Committee— recommendations in cases of (1) requests for dispositions of culturally  unidentifiable human remains and in (2) disputes—we reviewed files  maintained by National NAGPRA on behalf of the Review Committee.
We reviewed Federal Register notices describing the Review Committee’s  findings of fact and recommendations with regard to these disputes and  requests for disposition of culturally unidentifiable human remains.  We interviewed officials with Interior’s Office of the Solicitor and National  NAGPRA about the role of the Review Committee on behalf of the  Department of the Interior. With respect to dispositions, we examined  letters from the designated federal officer informing interested parties of  the Committee’s recommendations to determine the extent of the  department’s independent review of and concurrence with the  recommendations. Based on the sources above, we determined that for  dispositions, the Review Committee issued distinct recommendations  regarding particular culturally unidentifiable human remains in 61 cases.  National NAGPRA reports that the Committee considered 66 requests  related to culturally unidentifiable human remains as of September 30,  2009. National NAGPRA listed some of these requests with additional  subparts because the Committee considered the facts of the request at  more than one meeting. In one case, the Committee issued distinct  recommendations for each of two subparts, so we counted that request as  two cases. We reviewed all the requests and subparts and determined that  the Committee issued distinct recommendations 67 times. To focus our  analysis on requests related to the disposition of particular culturally  unidentifiable human remains we excluded 6 requests from our analysis.  In 2 of these, the Committee recommended approval of a protocol, and no  particular culturally unidentifiable human remains were involved. In 3 of  these, the Committee deferred issuing a recommendation, and 1 request  involved only objects (no human remains). Thus, we analyzed 61 cases  where the Review Committee made distinct recommendations regarding  the disposition of particular culturally unidentifiable human remains.  We determined the status of Review Committee recommendations in  disposition cases, and disputes by contacting officials with the involved  museums and federal agencies, and reviewing documents they provided.
We identified challenges that the Review Committee faces and the  perceptions of the Review Committee through interviews of current and  former Review Committee members, officials from museum and scientific  organizations, Indian tribes, and tribal organizations.
To address our third objective to determine the actions National NAGPRA  has taken to facilitate federal agency implementation of NAGPRA, we  reviewed the act and its implementing regulations for the duties assigned  to National NAGPRA, as delegated to it by the Secretary of the Interior.  We interviewed National NAGPRA staff, including the Program Manager  and staff responsible for publishing notices, administering the Review  Committee, running the grants program, and developing and maintaining  National NAGPRA’s databases. To learn more about Interior’s decision to  include Alaska Native corporations in the definition of Indian tribe, as  provided for in the regulations, we interviewed staff from Interior’s Office  of the Solicitor, reviewed Review Committee meeting minutes and  transcripts, and analyzed National NAGPRA’s “List of Indian tribes for the  purposes of carrying out NAGPRA and Native Hawaiian organizations that  have appeared in notices.” With regard to National NAGPRA’s actions  regarding the nomination process we reviewed files on the 14 times  nominations were solicited for Review Committee openings since  NAGPRA was enacted.
We reviewed NPS budget justifications for the NAGPRA program as well  as National NAGPRA annual reports. We reviewed a table developed by  National NAGPRA that provided information on 79 draft notices  withdrawn by museums (55) and federal agencies (24). We used this  information, along with supporting documents, to determine the status of  the 24 draft notices withdrawn by federal agencies. We obtained and  reviewed data on the grants program and interviewed three grants  panelists to understand the grants process. We determined that the grants  data was sufficiently reliable to provide a table with key grants data over  time by Indian tribe and museum, including numbers of applications  submitted and awarded and the funding requested and awarded. We  attended two online training courses (i.e., webinars) presented by National  NAGPRA—one on notices provided in January 2010 and one on the  Review Committee provided in February 2010—and discussed students’  training evaluations with National NAGPRA staff to learn more about the  training program. In addition, we attended the NAGPRA Basics day-long  training sessions before the Review Committee’s meeting in Seattle,  Washington, (May 2009) and Sarasota, Florida, (October 2009). We  reviewed information contained on the National NAGPRA Web site,  including the various databases provided.
For our fourth objective to determine the extent to which federal agencies  have reported repatriating Native American human remains and objects  for notices of inventory completion published in the Federal Register, we  obtained data from the three agencies that track their repatriations—the  Corps, the Forest Service, and NPS. For the other five key federal agencies  and others publishing NAGPRA notices of inventory completion, we  determined that there were no readily available sources of data on their  repatriations. We have examined the reliability of the data from the  three agencies that reported on repatriations and the data from National  NAGPRA database. We interviewed agency staff that compiled the data on  their methods and checks for accuracy to assess reliability of the data.
We deployed a survey asking contacts in four key agencies and eight other  agencies with published notices that did not collect data about whether  the number of human remains or associated funerary objects included in  each notice of inventory completion had actually been repatriated through  fiscal year 2009, and if not, why not. We did not survey TVA because they  had not published any notices of inventory completion through fiscal year  2009. We sent initial notification emails to test e-mail addresses. We also  notified agency contacts by e-mail on how to access the survey and asked  for responses within 2 weeks. After the survey had been available for  2 weeks, we reminded respondents by e-mail to complete surveys, and  followed the e-mail with personal phone calls beginning a few days later.  Through these efforts we obtained a 99 percent response rate.  Respondents filled in surveys on 145 of 147 published notices of inventory  completion. Because this survey was not based on a sample, there were no  sampling errors. However, the practical difficulties of conducting any  survey may introduce errors, commonly referred to as non-sampling  errors. For example, difficulties in how a particular question is interpreted,  in the sources of information that are available to respondents, or in how  the data were entered into a database or were analyzed can introduce  unwanted variability into the survey results. We took steps in the  development of the questionnaire, the data collection, and the data  analysis to minimize these non-sampling errors. For instance, a survey  specialist designed the questionnaire in collaboration with GAO staff that  have subject-matter expertise. Further, the draft questionnaire was  pretested with a number of agency officials to ensure that the questions  were relevant, clearly stated, and easy to comprehend. When the data were  analyzed, a second, independent analyst checked all computer programs.
We also sought information on the challenges to repatriation of human  remains or objects through interviews and documents from agency  officials, and from representatives of Indian tribes and Native Hawaiian  organizations. In addition, we asked agency officials for their policies on  reburial of human remains and objects on their lands and the extent to  which the agency would assist tribes with the expenses of repatriation—as  both were identified as factors affecting the ability of native groups to  accept repatriations and rebury remains and objects. We sought data on  the extent of National NAGPRA grants to tribes for the purposes of  repatriation.
We conducted this performance audit from July 2009 to July 2010 in  accordance with generally accepted government auditing standards. Those  standards require that we plan and perform the audit to obtain sufficient,  appropriate evidence to provide a reasonable basis for our findings and  conclusions based on our audit objectives. We believe that the evidence  obtained provides a reasonable basis for our findings and conclusions  based on our audit objectives.
section_title: Appendix II: List of 28 New and Restored Indian Tribes Since NAGPRA Was Enacted
paragraphs: The regulation on future applicability, which became effective on  April 20, 2007, in part, established deadlines for federal agencies and  museums to prepare summaries and inventories for new tribes added to  BIA’s official list of federally recognized tribes. Specifically, agencies and  museums have 6 months to prepare a summary and 2 years to prepare an  inventory after the new tribe’s placement on the BIA list, or after the  effective date of the future applicability rule, whichever is later.
In November 2001, we reported on BIA’s process for recognizing new  tribes. At that time, we identified 47 newly recognized tribes and  37 restored tribes, for a total of 84 newly recognized or restored tribes  since 1960. While our November 2001 report contained detailed  information on the 47 newly recognized tribes in a table on pages 25 to 26,  it did not contain similar information on the 37 restored tribes. We  provided detailed information on the 37 restored tribes in a table on pages  13 to 14 of an October 2006 report. In the October 2006 report, we also  updated the cumulative number of newly recognized and restored tribes.  While no additional tribes were restored between our November 2001  report and our October 2006 report, the Delaware Tribe of Indians of  Oklahoma—a newly recognized tribe—was removed from BIA’s official  list of federally recognized tribes during that time period and the Cowlitz  Indian Tribe in the state of Washington was added as a newly recognized  tribe. By deleting one tribe and adding another, in our October 2006 report,  the total number of newly recognized or restored tribes remained at 84— 47 newly recognized tribes and 37 restored tribes.
Since our October 2006 report, the Delaware Tribe of Indians of Oklahoma  has been added back on the list, the Mashpee Wampanoag Tribe in the  state of Massachusetts has been newly recognized, and the Wilton  Rancheria in California has been restored. These actions bring the total of  new or restored tribes since 1960 to 87—49 newly recognized tribes and  38 restored tribes—as of BIA’s last official list of federally recognized  tribes published on August 11, 2009.
Twenty-eight of the 87 new or restored tribes have been recognized or  restored since NAGPRA was enacted on November 16, 1990 (see table 14).
Federal agencies and museums were required to prepare summaries and  inventories for the 25 tribes that were recognized or restored after  NAGPRA’s enactment and before the effective date of the future  applicability rule by October 20, 2007, and April 20, 2009, respectively.  For the three most recent newly recognized or restored tribes—the  Mashpee Wampanoag Tribe, the Delaware Tribe of Indians, and the Wilton  Rancheria—the deadline for summaries was 6 months after the tribe was  included in BIA’s list of federally recognized tribes and for inventories is  2 years after the tribe’s inclusion in the BIA list. The Mashpee Wampanog  Tribe was first included in the BIA list published on April 4, 2008; the  Delaware Tribe and the Wilton Rancheria were first included in the  August 11, 2009, list.
section_title: Appendix III: National NAGPRA’s Lack of Authority to Ensure Federal Agency Compliance with NAGPRA
paragraphs: National NAGPRA is charged with assisting federal agencies and others  with the NAGPRA process. NAGPRA and its implementing regulations do  not provide National NAGPRA or any other federal entity with tools to  encourage or ensure that federal agencies within or outside of the  Department of the Interior comply with the act. The civil penalties  established in section 9 of NAGPRA do not apply to federal agencies; only  to museums. Absent such tools, there are limited options for holding  agencies that are not in compliance with the act accountable. In addition,  the mechanism that NAGPRA specifically provides to ensure federal  agency compliance—lawsuits by nonfederal parties, such as Indian tribes,  against federal agencies—is rarely used.
In contrast to its role vis-à-vis federal agency compliance, National  NAGPRA does have authority to encourage and ensure museum  compliance. Through fiscal year 2009, 248 counts of alleged failure to  comply with NAGPRA had been made against 43 museums. The number of  allegations has increased substantially in recent years. In fiscal years  2008 and 2009 alone, 141 counts were alleged. National NAGPRA, in  coordination with the NPS Law Enforcement Program, has investigated  126 of the 248 counts and has found over three-quarters of those  investigated—108—to be unsubstantiated. At the end of fiscal year 2009,  there was a significant backlog of 122 counts to be investigated. These  investigations have resulted in penalties totaling $38,490 levied against  six museums through fiscal year 2009. The first notice of failure to comply  was served on a museum in 2006 and, according to National NAGPRA  officials, has resulted in museums taking compliance more seriously and  also in the increase in allegations.
There has been some discussion over where to house National NAGPRA  or whether to create a new compliance oversight office all together.  As discussed in the background section of this report, amid conflict of  interest concerns, the Secretary separated the functions of National  NAGPRA into Park NAGPRA, to handle NPS compliance, and National  NAGPRA, to facilitate NAGPRA implementation governmentwide. After  this separation, National and Park NAGPRA were housed in different  places within NPS and reported up a separate chain of command. Some  believe there is still a conflict of interest in having National NAGPRA  housed within NPS, as it is also an agency that must comply with the act.  They have suggested it be removed from NPS, eliminating any conflict  issues, and elevated in stature by, for example, placing it within the Office  of the Secretary of the Interior. The June 2008 report by the Makah Indian  tribe and the National Association of Tribal Historic Preservation Officers  suggested an even greater elevation, recommending the establishment of  an Inter-Agency NAGPRA Implementation Council within the executive  branch—possibly within the Office of Management and Budget—that  would assure federal agency compliance, among other things. This  continues to be an issue of some debate.
section_title: Appendix IV: Information on the Recent Regulation Addressing Disposition of Culturally Unidentifiable Human Remains
paragraphs: Section 8(c)(5) of NAGPRA made the Review Committee responsible for  recommending specific actions for developing a process for the  disposition of culturally unidentifiable human remains in the possession or  control of museums and federal agencies. The Review Committee  published its first draft of recommendations regarding the disposition of  culturally unidentifiable human remains and associated funerary objects  for public comment in June 1995. In response to comments, the  Committee published a revised draft for public comment in August 1996.  Subsequently, the Committee published draft principles of agreement  regarding the disposition of culturally unidentifiable human remains in  1999. The Committee published its final recommendations in June 2000.  (See table 8 in the body of the report for the citations for these actions.)  In addition, the Review Committee submitted comments to the Secretary  in 2000, 2003, and 2008.
In October 2007, Interior published a proposed rule for public comment  regarding the disposition of culturally unidentifiable human remains.  The proposed rule generated over 100 comments from various interested  parties, such as Indian tribes, museums, and museum or scientific  organizations. Many have noted that the proposed rule departed from the  Review Committee’s final 2000 recommendations. While some  commenters—both tribes and museums—were generally supportive of the  proposed rule and welcomed its publication, some commenters also raised  concerns with the proposed rule that resulted in Interior making extensive  revisions to the rule before issuing a final rule on March 15, 2010. For  example, several commenters were concerned by the proposed rule’s  requirement for museums and federal agencies to consult with and offer to  transfer control of culturally unidentifiable human remains under certain  circumstances to the Indian tribe or Native Hawaiian organization with a  cultural relationship to the region from which the human remains were  removed. The final rule does not contain this requirement.
Given the rulemaking’s long history and the volume of comments Interior  received on the proposed rule, this appendix describes certain provisions  of the final rule, presents certain comments Interior received on the  proposed rule that are available on www.regulations.gov, and provides  Interior’s response to the comments. This appendix does not and is not  intended to serve as a summary of all the comments Interior received on  the proposed rule; the preamble to the final rule discusses all of the  comments.
subsections: section_title: Statutory Authority
paragraphs: Several museums and scientific organizations’ comments argued that  Interior lacked authority to promulgate this rule for two reasons. First,  they argued that section (8)(c)(5) is a clear instruction for the Review  Committee to make recommendations to Congress for possible future  legislative action, but does not authorize Interior to take any regulatory  action itself. They note that the committee report accompanying the  version of the bill debated on the House floor stated that the House  Committee on Interior and Insular Affairs looks forward to the Review  Committee’s recommendations on the process for disposition of culturally  unidentifiable human remains. Second, museums and scientific  organizations argued that NAGPRA clearly limited repatriation to human  remains that could be culturally affiliated because the act balanced the  interests of Indian tribes and Native Hawaiians with those of museums and  scientists. In their view, the rule impermissibly expands the scope of the  act.
Indian tribes either did not comment on Interior’s statutory authority or  stated that they believed the rule was authorized. One tribe noted that  25 U.S.C. § 9 authorizes the President to prescribe such regulations as he  may think fit for carrying into effect the various provisions of any act  relating to Indian affairs and that Congress has routinely delegated broad  authority to the Executive Branch to manage Indian affairs. Based on  these other laws and NAGPRA’s language and structure, this tribe argued  that the culturally unidentifiable rule is authorized as long as the rule was  consistent with and not precluded by the plain language of the act.  Furthermore, the tribe stated that the culturally unidentifiable rule was  plainly designed to carry out the act, reasonably related to the act’s  purposes, and not precluded by the act.
Interior contends that section 13 of NAGPRA, which authorizes Interior to  promulgate regulations implementing the act, provides the statutory  authority for the rule. The preamble to the final rule explains that  section (8)(c)(5) of the act made the Review Committee responsible for  recommending specific actions for developing a process for disposition of  culturally unidentifiable human remains because Congress anticipated that  not all items could be geographically or culturally affiliated with an Indian  tribe or Native Hawaiian organization. Therefore, Interior interpreted the  intent of Congress as authorizing the Secretary of the Interior to  promulgate regulations governing the disposition of culturally  unidentifiable human remains after considering the Review Committee’s  recommendations.
Interior has noted that an earlier version of the bill that became NAGPRA  directed the Review Committee to provide its recommendations regarding  the disposition of culturally unidentifiable human remains to the Secretary  and Congress. However, the language regarding the Secretary and  Congress was subsequently stricken from the bill. Interior has interpreted  this sequence of changes and the act’s requirement that the Secretary  consult with the Review Committee in the development of regulations as  authorizing Interior to promulgate regulations governing the disposition of  culturally unidentifiable human remains after considering the Review  Committee’s recommendations on the matter. Moreover, Interior has  stated that even if Congress did not expressly delegate authority or  responsibility to implement a particular provision or fill a particular gap in  the act, it can still be apparent from an agency’s generally conferred  authority and other statutory directives that Congress would expect the  agency to be able to speak with the force of law when the agency  addresses ambiguities in the statute or fills a gap in the enacted law.
In addition, Interior notes that 25 U.S.C. § 9 authorizes the Secretary to  make such regulations as he may think fit for carrying into effect the  various provisions of any act relating to Indian Affairs. Interior argues that  “because NAGPRA is Indian law, the Secretary may promulgate any  regulations needed to implement it under the broad authority to supervise  and manage Indian affairs given by Congress.”
section_title: Consultation
paragraphs: The final rule, among other things, requires museums and federal agencies  to consult with (1) an Indian tribe(s) or Native Hawaiian organization(s)  that makes a disposition request for culturally unidentifiable human  remains and (2) with federally recognized Indian tribes and Native  Hawaiian organizations from whose tribal or aboriginal lands the remains  were removed before offering to transfer control of the culturally  unidentifiable human remains. Some museums questioned the imposition  of this extra burden of consultation because National NAGPRA’s online  database of culturally unidentifiable human remains contains sufficient  information for Indian tribes and Native Hawaiian organizations to submit  requests. Interior has said that this provision restates the consultation  required under section 5 of the act and 43 C.F.R. § 10.9, which requires  museums and federal agencies to consult with Indian tribes from whose  tribal lands the human remains and associated funerary objects originated,  that are or are likely to be culturally affiliated to the remains and objects,  and from whose aboriginal lands the humans and objects originated while  preparing their inventories. Therefore, Interior has said that museums and  federal agencies that consulted with Indian tribes and Native Hawaiian  organizations about the culturally unidentifiable human remains while  compiling their inventories are not required by this new rule to consult  again unless a disposition request is made.
section_title: Right of Possession and Transfer of Control
paragraphs: If the museum or federal agency cannot prove that it has a right of  possession, the final rule also requires them to offer to transfer control of  the culturally unidentifiable human remains in accordance with the  priority order listed in the regulation. NAGPRA defines right of  possession as “possession obtained with the voluntary consent of an  individual or group that had authority of alienation.” Museums and fede agencies have right of possession for Native American human remains th were originally acquired, excavated, exhumed, or otherwise obtained with full knowledge and consent of the next of kin or the official governing  body of the appropriate culturally affiliated Indian tribe or Native  Hawaiian organization.
Museums and scientific organizations generally commented that right of  possession could never be established for culturally unidentifiable human  remains because neither the next of kin or an appropriate culturally  affiliated Indian tribe or Native Hawaiian organization could have  consented to the original acquisition. Museums argued that NAGPRA’s  definition of right of possession ignores state property laws that give  museums legal title to human remains and items removed from private  property with the consent of landowners. Because museums have legal  title to these human remains and items, these groups argue that the return  of culturally unidentifiable human remains would violate the Takings  Clause of the Constitution. Museums and scientific organizations also  note that this rule would deprive the world of scientific information on the  biological and cultural development of humans and would impact many  museums’ ability to educate the public about these issues.
Interior has noted that NAGPRA’s definition of right of possession created  an ownership presumption and that as a federal law it would preempt any  state property law on the same subject matter under the Supremacy  Clause of the Constitution. Interior also observed that the regulatory  requirement to offer to transfer control of culturally unidentifiable human  remains did not apply in circumstances where a court of competent  jurisdiction has determined that the repatriation of the human remains in  the possession or control of a museum would result in a taking of property  without just compensation within the meaning of the Fifth Amendment.
In addition to the right of possession issue, some museums and scientific  organizations also assert that the final rule requires museums and federal  agencies to offer to transfer control of culturally unidentifiable human  remains absent any request or claim from an Indian tribe or Native  Hawaiian organization. These museums and scientific organizations state  that this requirement is inconsistent with NAGPRA and greatly exceeds  the statute’s scope because the act’s requirement to repatriate culturally  affiliated human remains and objects is triggered only upon a request  being made. According to Interior, the requirement to offer to transfer  control is not triggered until an Indian tribe or Native Hawaiian  organization listed in the priority order makes a disposition request.  Absent such a request, Interior said that museums and federal agencies are  not required to offer to transfer control of culturally unidentifiable human  remains, however, Interior noted that 43 C.F.R. § 10.11(b)(ii) allows  museums and federal agencies to initiate the repatriation process without  a request, especially if they identify the tribes that occupied the land from  which the remains originated.
section_title: Non-federally Recognized Tribes
paragraphs: If none of the Indian tribes or Native Hawaiian organizations in the priority  order agrees to accept control, the final rule allows museums and federal  agencies to transfer control of the culturally unidentifiable human remains  to other Indian tribes or Native Hawaiian organizations or to non-federally  recognized Indian tribes, if the Secretary of the Interior recommends the  transfer. In their comments, some tribes objected to this provision  because it makes the transfer of control voluntary and at the discretion of  the museum or federal agency. These tribes wanted the rule to require  museums and federal agencies to transfer control to non-federally  recognized tribes from whose tribal or aboriginal lands the remains were  removed.
At least one Indian tribe, however, only wanted the rule to permit  repatriation of culturally unidentifiable human remains to federally  recognized Indian tribes. Museum and scientific organizations echoed this  comment by questioning Interior’s authority in requiring museums to  obtain the Secretary’s prior recommendation when the Secretary lacked  authority over non-federally recognized Indian tribes or noting the  difficulty museums and federal agencies would have in identifying which  non-federally recognized tribes had a legitimate claim.
Interior responded by noting that it followed the lead of Congress in  expanding the possible recipients of culturally unidentifiable human  remains to include non-federally recognized tribes both in assuring that  the remains went to the Indian group that had the closest cultural  connection to the remains, even if that group is not federally recognized,  and in maintaining the priority position of the government-to-government  relationship, by not making disposition to non-federally recognized tribes  mandatory. In addition, Interior acknowledged that mandating the return  of culturally unidentifiable human remains to non-federally recognized  Indian tribes would be contrary to the terms of NAGPRA and the  government-to-government relationship between the United States and  federally recognized tribes, but that nothing in the act prohibited the  voluntary transfer of human remains to non-federally recognized tribes  with appropriate safeguards for the rights of federally recognized tribes.  Interior has said that the Secretary will continue the current practice of  asking the Review Committee for a recommendation on disposition  requests from non-federally recognized Indian tribes.
section_title: Associated Funerary Objects
paragraphs: The final rule allows museums and federal agencies to transfer control of  funerary objects associated with culturally unidentifiable human remains  and recommends that such transfers occur if not precluded by federal or  state law. Several museums and scientific organizations objected to this  provision because it lacked a statutory basis and stated that this  “recommendation” inappropriately pressured museums and agencies to  divest themselves of objects in their collection that do not have any  demonstrated cultural affiliation with NAGPRA claimants.
Tribes requested that the final rule require museums and federal agencies  to transfer control of the associated funerary objects belonging to  culturally unidentifiable human remains. Tribes argued that funerary  objects represent offerings intended as gifts and spiritual offerings to the  deceased and are understood to be the property of the deceased. For  Indian tribes, separation of the human remains from the funerary objects  is a grievous spiritual injury to the deceased and grievous emotional injury  to Native Americans. One tribe said that requiring museums and federal  agencies to transfer control of associated funerary objects reflects the  canons of construction for Indian laws—that the law be liberally  construed in favor of Indians and all ambiguities resolved in favor of the  Indians. Tribes also argued that some museums would never return the  associated funerary objects unless required to do so.
Section (8)(c)(5) of the act, which is the only provision in the act that  refers to or uses the term culturally unidentifiable, makes the NAGPRA  Review Committee responsible for recommending specific actions for  developing a process for disposition of culturally unidentifiable human  remains but does not mention associated funerary objects. Interior has  said that it did not consider it appropriate to make the provision to  transfer culturally unidentifiable associated funerary objects mandatory  because of the statute’s silence, common law regarding human remains  and associated funerary objects, and the right of possession and takings  issues that a mandatory disposition of associated funerary objects would  raise which are not clearly resolved in the statute or legislative history.
section_title: Appendix V: Status of Review Committee Recommendations Made in 12 Disputes
subsections: section_title: Indian tribe, group, or Native Hawaiian organization that brought the dispute
paragraphs: A relationship of shared  group identity can be  reasonably traced between  present day Native  Hawaiian organizations and  the human remains.
Museum should revise  determination of cultural  affiliation for human remains  and notify Native Hawaiian  organizations directly and by  Federal Register notice that  the human remains are  available for repatriation.
Partially implemented.  Museum published a Federal  Register notice and repatriated  the human remains. We did  not determine whether the  museum changed the cultural  affiliation determination.
The Committee was unable  to determine that the  preponderance of the  evidence indicates that  there is a relationship of  shared group identity that  can be reasonably traced  between present day Native  Hawaiian organizations and  the human remains.
Museum should transfer the  human remains to a  museum in Hawaii for future  consideration of cultural  affiliation and care.
Fully implemented. Museum  transferred the human remains  to the Bishop Museum.  Subsequently, the Bishop  Museum determined there was  a shared group identity and  subsequently repatriated the  remains.
The object is a sacred  object and a relationship of  shared group identity can  be reasonably traced  between the Office of  Hawaiian Affairs and Hui  Malama I Na Kupuna O  Hawai’i Nei and the Native  Hawaiians who created and  used it.
Museum should reconsider  its determination of the  object’s classification. The  object should be considered  a sacred object. Museum  should repatriate the object  to a Native Hawaiian  organization.
Status unknown. The museum  did not publish a Federal  Register notice and we did not  determine whether the  museum reconsidered its  determination of the object’s  classification or whether the  museum repatriated the object.  Dispute resulted in litigation.
Tribes were not given  adequate opportunity to  consult on a one-to-one  basis and make concerns  known outside of a public  forum. Agency applied a  looser criterion of cultural  relationship to geographical  place as a basis for  determining cultural  affiliation than it should  have. Agency needs to do  more to evaluate and weigh  evidence pertaining to  cultural affiliation.
Agency should withdraw its  published notice and  reassess its determination of  cultural affiliation. Agency  should not use collective  consultation in lieu of  individual tribal consultation  when requested by an Indian  tribe.
Not implemented. Agency  declined to withdraw its  published notice and reassess  its determination of cultural  affiliation.
State Office has not given  fair and objective  consideration and  assessment of all the  available information and  evidence in the dispute.  The preponderance of the  evidence indicates a  relationship of shared group  identity that can be  reasonably traced between  the Paiute-Shoshone Tribe  of the Fallon Reservation  and Colony, Nevada, and  the human remains and  associated funerary objects  from Spirit Cave in Nevada.
Agency should repatriate  human remains and  associated funerary objects.
Not implemented. Agency has  not repatriated the human  remains. We did not determine  whether agency repatriated the  objects. Dispute resulted in  litigation.
The information and  statements submitted and  presented by the Museum  and the Working Group is  sufficient to establish by a  preponderanc e of the  evidence that the items are  both sacred objects and  objects of cultural  patrimony. Further, they are  culturally affiliated with the  constituent tribes of the  Working Group.
Museum should consider the  oral testimony provided by  the Working Group, consult  anthropological literature, re- evaluate the determination  for repatriation, and inform  the Committee of the  museum’s findings within  90 days.
Not implemented. Museum  published a notice of intent to  repatriate in the Federal  Register describing the items  as sacred objects to which the  museum holds the right of  possession. Although an  official from the Western  Apache Working Group  reported that the museum  followed the letter of the  recommendation by  considering the Group’s oral  testimony and consulting  anthropological literature, the  museum did not follow the  spirit of the recommendations  which was, according to the  official, to reclassify the object.
Museum’s repatriation  process for the items was  flawed and is incomplete.  The place and manner of  the return of the items was  not consistent with  NAGPRA. Museum is  responsible for the  completion of the  repatriation process for the  items.
Museum should recall the  loan of the items to Hui  Malama I Na Kupuna O  Hawai’i Nei, make the items  available to all consulting  parties, and renew the  consultation process for  repatriation.
Not implemented. According to  an official with the Royal  Hawaiian Academy of  Traditional Arts, Hui Malama I  Na Kupuna O Hawai’i Nei  denied the Bishop Museum’s  request for the items. Dispute  led to litigation. Funerary  objects were removed from  cave and are in possession of  the Bishop Museum.
The Review Committee  declines to come to a  finding about whether the  objects are objects of  cultural patrimony. Further,  the Committee believes that  the current location of the  objects is appropriate.
Museum and Hui Malama o  Mo’omomi should work  together to revise  memorandum of agreement  to require consent of Hui  Malama o Mo’omomi prior to  the removal of the objects  from the Island of Molokai.
Status unknown. Items are still  under the control of the Bishop  Museum.
Museum failed to overcome  the inference that the  museum did not have the  right of posession to the  object. Museums and  federal agencies must  repatriate cultural items  within 90 days of receipt of  a written request for  repatriation that satisfies  NAGPRA requirements.
Museum should continue  process of consultation to  determine appropriate  claimant(s) for unassociated  funerary objects. Once  repatriation has taken place,  the transaction must be  documented in a way  consistent with Hawaii state  law.
Status unknown. Items are still  under the control of the Bishop  Museum.
Agency has been very slow  in going through the  NAGPRA process. The  number of potential  claimants for the items has  grown over time. Agency  has not sufficiently  investigated right of  possession. Agency should  expand the involvement of  Native Hawaiian  participation and testimony.
Agency should initiate  consultation with all  claimants and interested  parties, investigate the right  of possession issue, and  take steps to complete  repatriation by 2005.
Partially implemented.  According to an agency  official, the agency has  conducted consultation and  has considered the right of  possession issue. Further the  agency has issued a notice of  intent to repatriate, but  repatriation has not taken  place because claimants  disagree on disposition and  agency cannot determine the  most appropriate claimant.
The items are consistent  with the definition of object  of cultural patrimony.  Museum has not presented  evidence sufficient to  overcome the inference that  the museum does not have  a right of possession to the  items.
Museum should consider the  oral testimony and written  evidence provided by the  White Mountain Apache  Tribe and change its  determination of the items to  recognize their status as  objects of cultural patrimony.  Museum should  acknowledge that it lacks  right of possession to the  items.
Not implemented. Museum did  not change its determination of  the items and did not state that  it lacked right of possession.
The preponderance of the  evidence shows a  relationship of shared group  identity between the  Onondaga Nation (and the  greater Haudenosaunee  Confederacy, of which the  Nation is a member-nation)  and the human remains.
Museum should  expeditiously repatriate  human remains to the  Onondaga Nation. Further,  museum should reevaluate  the cultural affiliation of all  Native American human  remains in its possession or  under its control that had  been determined to be  culturally unidentifiable using  the preponderance of the  evidence to determine  cultural affiliation.
Partially implemented.  Museum repatriated the  human remains. A museum  official said that it has been  and continues to be a policy of  the museum to use a  preponderance of all evidence  as the standard for deciding  cultural affiliation. However, it  is unclear whether the  museum has reevaluated the  cultural affiliation of all of its  culturally unidentifiable Native  American human remains.
section_title: Appendix VI: Other Activities Conducted by National NAGPRA
paragraphs: In addition to promulgating regulations and providing administrative  support to the Review Committee, National NAGPRA has conducted a  number of activities to carry out the responsibilities assigned by NAGPRA  to the Secretary of the Interior. This appendix summarizes these other  activities.
subsections: section_title: Inventories, Summaries, and Federal Register Notices
paragraphs: National NAGPRA has received federal agency and museum inventories  and summaries and published notices in the Federal Register, as  NAGPRA’s implementing regulations require. According to its Fiscal Year  2009 Annual Report, from fiscal years 1992 through 2009, National  NAGPRA received inventories from 1,317 federal agencies and museums  and summaries from 1,551 federal agencies and museums and has entered  some of this information into a database. Along with the inventories,  federal agencies and museums also submit draft notices of inventory  completion and draft notices of intent to repatriate, which National  NAGPRA prepares for publication. National NAGPRA’s Annual Report also  states that, during this same period, it published 1,295 notices of inventory  completion and 477 notices of intent to repatriate in the Federal Register  for federal agencies and museums.
National NAGPRA has increased the number of notices it has published in  the Federal Register in recent years. Specifically, the number of notices  published in the Federal Register increased to 180 in fiscal year 2008 and  to 200 in fiscal year 2009 compared to about 100 per fiscal year in 2003  through 2007. Furthermore, according to the National NAGPRA Program  Manager, notice publications have increased with fewer staff—there has  been only one staff person dedicated to publishing notices from 2005  through 2009 while there have been multiple staff assigned to this task in  previous years. In our interviews with federal agency officials and Review  Committee members, a number of them complimented National NAGPRA  on its increased efficiency in publishing notices.
In addition to recent increases in the number of notices published,  National NAGPRA has reduced a backlog of notices that were awaiting  publication. In 2004, the year the current National NAGPRA Program  Manager started in her position, there were about 300 draft notices  awaiting publication, some of which had been submitted close to a decade  earlier. These notices needed some action by the originator before they  could proceed to publication. Prior National NAGPRA management had an  “on-hold” category for such notices and had taken them out of the  publication process, in a sense leaving them in limbo. In 2005, National  NAGPRA eliminated the “on-hold” status and set out to clear this backlog  by contacting the originating entity of each notice and requesting that they  contact National NAGPRA to resolve it. National NAGPRA’s  correspondence further stated that notices would be considered  withdrawn if the originating entity did not respond within a specified time  frame. Through fiscal year 2009, over 220 had been published, 21 were  awaiting publication, and 79 were withdrawn—24 by federal agencies  (see table 15). Notices were withdrawn by agencies and museums for a  variety of reasons, including:  the items had already been included in a published notice;  the agency or museum had revised the cultural determination to culturally  unidentifiable; and the agency or museum was actually not in control of the items.
The withdrawal of these notices has been controversial and was the  subject of discussion at a congressional hearing in October 2009.
section_title: National NAGPRA’s Grants Program
paragraphs: National NAGPRA has administered a grants program to assist Indian  tribes, Native Hawaiian organizations, and museums in conducting  consultations and repatriations. Since the inception of the grants program  through fiscal year 2009, National NAGPRA has received 1,341 grant  applications from tribes, Native Hawaiian organizations, and museums and  awarded 628 grants totaling about $33 million. Of the total awarded,  $22.4 million, or about 68 percent, has gone to tribes and Native Hawaiian  organizations and $10.5 million, or about 32 percent, has gone to museums  (see table 16). Further, 513 grants worth about $31.8 million have been  awarded for consultation grants and 115 grants worth about $1.2 million  have been awarded for repatriation grants.
The grants program has been controversial in part due to confusion over  how much funding was actually available for grants. NPS has allocated a  portion of the NAGPRA grants budget request line item to cover a portion  of National NAGPRA’s operating expenses (another portion has been  provided by NPS’s Cultural Resources Program), but did not indicate this  in its budget justifications until fiscal year 2011. Two investigations by  Interior’s Office of Inspector General on the alleged improper use of  NAGPRA funds found a lack of clarity over the use of the grants budget  request line item. Specifically, the Inspector General responded to  allegations that (1) NPS had illegally diverted millions in grant funding for  purposes not covered by NAGPRA and (2) the National NAGPRA Program  Manager had improperly reprogrammed grant funds for administrative  purposes. Both investigations found no wrongdoing, stating that NPS and  National NAGPRA had discretion to use the funds as it did. NPS’s fiscal  year 2011 budget justification has addressed this issue by moving the  operating expenses out of the grants budget request and into the NPS  Cultural Resources Program budget request, thus separating the funding  for grants and operating expenses. Table 17 shows the enacted line item  for grants and NPS’s use of it for grants and operating expenses from fiscal  years 1994 through 2009.
section_title: National NAGPRA Databases
paragraphs: National NAGPRA has made progress in making data available to tribes,  museums, federal agencies, and the general public. It currently maintains  six online searchable databases, such as a Native American consultation  database and databases for published notices, and has plans to develop a  summaries database. According to the National NAGPRA Program  Manger, National NAGPRA had developed only one database as of 2005.  While these databases are providing more information to NAGPRA  practitioners, some federal agencies and museums have complained about  the databases containing incorrect information. The National NAGPRA  Program Manager told us that she is aware of this issue and is working to  correct the problems. The program manager explained that part of this  problem stems from earlier efforts to expedite the publication of notices,  but without reconciling data. Specifically, NPS staff as well as contract  employees hired in 2000 to publish notices did not reconcile the numbers  of human remains and objects listed in the notices with those listed in  inventories and summaries, and this left data inaccuracies. For example,  an agency or museum might have listed human remains as culturally  unidentifiable in an inventory, but later affiliated and repatriated those  remains and not informed National NAGPRA so they could update their  database. By not reconciling this information, data in the culturally  unidentifiable database would be incorrect.
section_title: National NAGPRA Training and Educational Materials
paragraphs: National NAGPRA has provided training to and developed educational  materials for Indian tribes, museums, and federal agencies to improve  NAGPRA implementation. Course titles include Determining Cultural  Affiliation and Writing and Managing a Successful Grant. A NAGPRA  Basics course is typically offered the day before the beginning of each  Review Committee meeting. These courses are taught by National  NAGPRA staff as well as contractors and are offered in various locations  across the country, as posted on National NAGPRA’s Web site. Also,  starting in June 2009, National NAGPRA began offering “webinars,” which  are interactive online courses. Participants follow the course online as  well as via telephone and can ask questions either orally or by submitting  them on the Web site. In fiscal year 2009, National NAGPRA and its  contractors provided 15 courses to 612 participants. According to a  National NAGPRA official, feedback obtained on these courses has  generally been positive and has been used to improve training. For  example, based on feedback that its NAGPRA Basics course was too  simplistic for some and too complex for others, National NAGPRA now  plans to offer two basics courses—one for newcomers and one for more  experienced NAGPRA practitioners.
In terms of educational materials, National NAGPRA is developing a series  of videos to create a training series on NAGPRA-related issues. National  NAGPRA has conducted about 50 interviews with tribal, museum, and  federal agency officials and Review Committee members to create a  historic archive of resources on consultation, notices, and repatriation,  among other things. Also, in 2009, National NAGPRA published a brochure  on the history of the grants program that included data as well as stories  about specific grants and what they accomplished.
Despite National NAGPRA’s training efforts, we found a general lack of  knowledge about NAGPRA requirements among federal agencies. For  example, TVA completed inventories prior to consulting with potentially  affiliated Indian tribes; whereas NAGPRA requires that consultation be  conducted prior to completing inventories. Further, Corps and FWS  officials stated that, in some instances, their agencies had only begun  developing notices of inventory completion after receiving a repatriation  request from an Indian tribe for remains or associated funerary objects  that had been culturally affiliated in the agency’s inventory; whereas  NAGPRA requires publication of these notices regardless of whether a  repatriation request has been received.
section_title: Appendix VII: Comments from the Department of Agriculture
section_title: Appendix VIII: Comments from the Department of the Interior
section_title: Appendix IX: Comments from the Tennessee Valley Authority
section_title: Appendix X: GAO Contact and Staff Acknowledgments
subsections: section_title: Staff Acknowledgments
paragraphs: In addition to those named above, Jeffery D. Malcolm, Assistant Director;  Allison Bawden; Pamela Davidson; Catherine Hurley; Mark Keenan; Jill  Lacey; David Schneider; John Scott; Ben Shouse; Jeanette Soares; and  Maria Soriano made key contributions to this report.