Native American Graves Protection and Repatriation Act
After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with the Act
GAO-10-768, Jul 28, 2010
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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.
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. 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.
Status Legend:
- Review Pending
- Open
- Closed - implemented
- Closed - not implemented
Recommendations for Executive Action
Recommendation: To improve NAGPRA implementation and to enhance federal agency NAGPRA compliance, the Secretaries of Agriculture, Defense, and the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should 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.
Agency Affected: Department of Agriculture
Status: Closed - Implemented
Comments: The U.S. Department of Agriculture submitted a needs assessment to Congress on May 18, 2012. The needs assessment indentifies four regions of the U.S. Forest Service that need to complete inventory and summary work at a total cost of $205,000. Tasks include reviewing collections, identifying objects, completing consultations with Native American Tribes, and submitting notices for publication in the Federal Register.
Recommendation: To improve NAGPRA implementation and to enhance federal agency NAGPRA compliance, the Secretaries of Agriculture, Defense, and the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should 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.
Agency Affected: Department of Defense
Status: Open
Comments: As of May 17, 2012, the Department of Defense had not developed a needs assessment. The U.S. Army Corps of Engineers had developed a draft needs assessment as of June 14, 2011, but officials were not clear when this would be finalized by the department.
Recommendation: To improve NAGPRA implementation and to enhance federal agency NAGPRA compliance, the Secretaries of Agriculture, Defense, and the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should 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.
Agency Affected: Department of the Interior
Status: Closed - Implemented
Comments: The Department of the Interior submitted a needs assessment to Congress on September 7, 2011. The needs assessment identifies the actions to be taken by six bureaus within the Department and states that Interior bureaus and offices currently utilize $1.42 million for NAGPRA activities and require an additional $3.34 million annually and a minimum of 8 years to complete specific tasks. Tasks include hiring new staff to work on repatriation activities, identifying unknown and unreported collections, and preparing and publishing notices in the Federal Register.
Recommendation: To improve NAGPRA implementation and to enhance federal agency NAGPRA compliance, the Secretaries of Agriculture, Defense, and the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should 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.
Agency Affected: Tennessee Valley Authority
Status: Closed - Implemented
Comments: The Tennessee Valley Authority submitted a needs assessment to Congress on June 9, 2011. The needs assessment provided annual actions for fiscal years 2011 through 2020 and estimated a total cost of $2.5 million to achieve the actions over this nine year period.
Recommendation: To improve NAGPRA implementation, and to enhance federal agency NAGPRA compliance, the Secretaries of Agriculture, Defense, and the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should direct their cultural resource management programs to develop and provide to Congress 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.
Agency Affected: Department of Agriculture
Status: Closed - Implemented
Comments: The U.S. Department of Agriculture submitted a timetable to Congress on May 18, 2012. The timetable identifies five regions of the U.S Forest Service and the various timeframes in which they would submit notices of inventory completion for publication in the Federal Register. The timeframes range from within 4 months to within 24 months of funds being made available.
Recommendation: To improve NAGPRA implementation, and to enhance federal agency NAGPRA compliance, the Secretaries of Agriculture, Defense, and the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should direct their cultural resource management programs to develop and provide to Congress 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.
Agency Affected: Department of Defense
Status: Open
Comments: As of May 17, 2012, the Department of Defense had not developed a timetable. The U.S. Army Corps of Engineers had developed a draft timetable as of June 14, 2011, but officials were not clear when this would be finalized by the department.
Recommendation: To improve NAGPRA implementation, and to enhance federal agency NAGPRA compliance, the Secretaries of Agriculture, Defense, and the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should direct their cultural resource management programs to develop and provide to Congress 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.
Agency Affected: Department of the Interior
Status: Closed - Implemented
Comments: The Department of the Interior submitted a timetable to Congress on September 7, 2011. In the timetable, Interior bureaus estimate that all culturally affiliated human remains and associated funerary objects would be published in the Federal Register by the end of calendar year 2012.
Recommendation: To improve NAGPRA implementation, and to enhance federal agency NAGPRA compliance, the Secretaries of Agriculture, Defense, and the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should direct their cultural resource management programs to develop and provide to Congress 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.
Agency Affected: Tennessee Valley Authority
Status: Closed - Implemented
Comments: The Tennessee Valley Authority submitted a timetable to Congress on June 9, 2011. In the timetable, TVA estimates that it would submit notices for culturally affiliated NAGPRA items held at the Alabama Museum of Natural History by fiscal year 2014 and that it would submit notices for any remaining culturally affiliated NAGPRA items by fiscal year 2016.
Recommendation: To improve NAGPRA implementation, and to clarify which entities are eligible under NAGPRA, National NAGPRA, in conjunction with Interior's Office of the Solicitor, should reassess whether Alaska Native Claims Settlement Act (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.
Agency Affected: Department of the Interior: Office of the Solicitor
Status: Closed - Implemented
Comments: Interior's Office of the Solicitor issued a memorandum in March 2011 that concludes that NAGPRA does not include ANCSA corporations within its definition of Indian tribes and that National NAGPRA must not include them in their list. Furthermore, on July 5, 2011, Interior published an interim final rule in the Federal Register that removed the definition of "Indian tribe" from the NAGPRA regulations because it was inconsistent with the statutory definition of the term.
Recommendation: To improve NAGPRA implementation, and to improve the confidence in the Review Committee and its support among NAGPRA practitioners, Secretary of the Interior should 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.
Agency Affected: Department of the Interior
Status: Open
Comments: In March 2011, the Department of the Interior stated that in 2008 a new Designated Federal Officer to the NAGPRA review committee was appointed by the National Park Service and new procedures were put in place. The department also provided two notices in the Federal Register soliciting nominations for the review committee and a briefing paper discussing the nominees and the appointment process. We will continue to monitor the department's progress in implementing this recommendation.
Recommendation: To improve NAGPRA implementation, and 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, the Secretaries of Agriculture, Defense, the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should 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.
Agency Affected: Department of Agriculture
Status: Closed - Implemented
Comments: The U.S. Department of Agriculture (USDA) provided repatriation data to National NAGPRA. This data was included in the NAGPRA Review Committee's 2010 and 2011 Annual Reports to Congress and in National NAGPRA's Fiscal Year 2011 Interim and Final Reports. All of these documents are publicly available on National NAGPRA's website. USDA reports that, as of September 30, 2011, it had repatriated 1,032 human remains of the 5,355 human remains listed in notices. For associated funerary objects, USDA reports that it had repatriated 16,951 of the 34,322 associated funerary objects listed in notices.
Recommendation: To improve NAGPRA implementation, and 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, the Secretaries of Agriculture, Defense, the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should 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.
Agency Affected: Department of Defense
Status: Closed - Implemented
Comments: The Department of Defense (DOD) provided to National NAGPRA repatriation data. This data was included in the NAGPRA Review Committee's 2010 and 2011 Annual Reports to Congress and in National NAGPRA's Fiscal Year 2011 Interim and Final Reports. All of these documents are publicly available on National NAGPRA's website. DOD reports that, as of September 30, 2011, it had repatriated 2,751 human remains of the 2,840 human remains listed in notices. For associated funerary objects, DOD reports that it had repatriated 50,923 of the 53,877 associated funerary objects listed in notices.
Recommendation: To improve NAGPRA implementation, and 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, the Secretaries of Agriculture, Defense, the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should 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.
Agency Affected: Department of the Interior
Status: Closed - Implemented
Comments: The Department of the Interior provided repatriation data to National NAGPRA. This data was included in the NAGPRA Review Committee's 2010 and 2011 Annual Reports to Congress and in National NAGPRA's Fiscal Year 2011 Interim and Final Reports. All of these documents are publicly available on National NAGPRA's website. Interior reports that, as of September 30, 2011, it had repatriated 6,057 human remains of the 7,276 human remains listed in notices. For associated funerary objects, Interior reports that it had repatriated 67,104 of the 118,617 associated funerary objects listed in notices.
Recommendation: To improve NAGPRA implementation, and 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, the Secretaries of Agriculture, Defense, the Interior, and the Chief Executive Officer of the Tennessee Valley Authority should 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.
Agency Affected: Tennessee Valley Authority
Status: Open
Comments: On June 9, 2011 , the Tennessee Valley Authority (TVA) submitted a letter to Congress with its responses to our recommendations. Speaking of this particular recommendation, TVA stated that it is committed to following the practice of providing all notices of inventory completion to the National NAGPRA staff within the Department of the Interior on a regular basis. As of May 2012, TVA had not submitted any repatriation data to National NAGPRA. We will continue to monitor TVA's implementation of this recommendation.