Original Issuance Date: October 31, 2023
1. Policy Purpose
The purpose of this policy is to establish minimum standards for compliance with the Native American Graves Protection and Repatriation Act (NAGPRA) (Public Law 101-601) throughout the University of Wisconsin (UW) System. This policy does not supersede any stricter standards set by the institution and state or federal law. In the event of a conflict with state or federal law, the law must control.
2. Responsible UW System Officer
The President of the University of Wisconsin System. The Tribal Liaison will serve as the representative for the President.
3. Scope and Institutional Responsibilities
This policy applies to all University of Wisconsin institutions. Institutions must adopt their own policies by December 31, 2023, using this System policy as the minimum standard. Each institution may also elect to develop its own procedures and/or guidance to support compliance with this policy.
The scope is limited to cultural items subject to and as defined in NAGPRA [25 U.S.C. § 3001(3)] (human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony) that are under control of the institution or are being reviewed for acquisition or accessioning.
Nothing in this policy may be read or interpreted to conflict with the Wisconsin Public Records Law.
4. Background
As stated by the National Park Service (NPS): “Since 1990, Federal law has provided for the repatriation and disposition of certain Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. By enacting NAGPRA, Congress recognized that human remains of any ancestry ‘must at all times be treated with dignity and respect’…. With this law, Congress sought to encourage a continuing dialogue between museums and Indian Tribes and Native Hawaiian organizations and to promote a greater understanding between the groups while at the same time recognizing the important function museums serve in society by preserving the past” [NPS NAGPRA Home page].
The University of Wisconsin Institutions qualify as “museums” under NAGPRA and therefore must adhere to the requirements of that law, as administered by the NPS National NAGPRA Program. The following policy reflects the UW System’s commitment to complying with both the letter and the spirit of the law, and to coordinating this work with Regent Policy Document (RPD) 8-2, Tribal Consultation.
5. Definitions
This policy uses terms defined in NAGPRA (25 U.S.C. § 3001) and the implementing regulations (especially 43 CFR 10.2), such as “human remains” and “cultural items;” for convenience, the legal definitions are repeated below. In the event that these legal definitions are updated, the definitions set forth under applicable law and regulations shall control. The UW System recognizes that the laws, regulations, and defined terms are referring to the ancestors and cultural heritage of modern-day Native American and Native Hawaiian peoples, and the terms themselves may not reflect that as clearly as more current preferred phrasings. The terms are incorporated in this policy for legal precision, and no disrespect is intended in their use. Other terms included below are defined for the purposes of this policy and may have different meanings when used in other settings.
Accession / Accessioning: The formal and legal documentation of an incoming repository transaction, including a gift, purchase, exchange, transfer, or field collection. Also includes establishment of legal title and/or custody [National Park Service (NPS) Managing Archeological Collections Glossary].
Acquisition / Acquisitioning: A process to obtain custody of an object, document, or collection that involves physical transfer [NPS Glossary].
Ancestors / Ancestral Remains: See Human Remains.
Authorized Tribal Representative: A Tribal member who has official authority from their current government to discuss and make decisions about cultural items and repatriation on behalf of the Tribe. This role is often fulfilled by Tribal Historic Preservation Officers (THPO) or NAGPRA Representatives but can be individuals with other position titles (see also Indian tribe official).
Collection: Material remains that are excavated or removed during a survey, excavation or other study of a prehistoric or historic resource, and associated records that are prepared or assembled in connection with the survey, excavation or other study [36 CFR 79, Curation of Federally-Owned and Administered Archeological Collections].
Consultation: A process involving the exchange of information, open discussion, and joint deliberations with respect to potential issues, changes, or actions by all interested parties [HR 101-877]. In NAGPRA practice, this can include both scheduled, formal consultation sessions and informal communications between authorized representatives. This definition includes consultations mandated by NAGPRA, [25 U.S.C. § 3004-3005] and by state law or Regent Policy.
Control: Having a legal interest in human remains, funerary objects, sacred objects, or objects of cultural patrimony sufficient to lawfully permit the museum or Federal agency to treat the objects as part of its collection for purposes of NAGPRA whether or not those objects are in the physical custody of the Institution. Generally, a museum or Federal agency that has loaned human remains, funerary objects, sacred objects, or objects of cultural patrimony to another individual, museum or Federal agency is considered to retain control of those human remains, funerary objects, sacred objects, or objects of cultural patrimony for purposes of these regulations [43 CFR 10.2 (a)(3)(ii)].
Cultural Items: As defined in NAGPRA, cultural items include human remains and:
- Associated Funerary Objects: “Objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later, and both the human remains and associated funerary objects are presently in the possession or control of a museum or Federal agency” [25 U.S.C. § 3001(3)(A)].
- Unassociated Funerary Objects: “Objects that, as part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later, where the remains are not in the possession or control of the Federal agency or museum and the objects can be identified by a preponderance of the evidence as related to specific individuals or families or to known human remains or, by a preponderance of the evidence, as having been removed from a specific burial site of an individual culturally affiliated with a particular Indian tribe” [25 U.S.C. § 3001(3)(B)].
- Sacred Objects: Specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents [25 U.S.C. § 3001(3)(C)].
- Objects of Cultural Patrimony: “An object having ongoing historical traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group” [25 U.S.C. § 3001(3)(D)].
Funerary Objects: “[I]tems that, as part of the death rite or ceremony of a culture, are reasonably believed to have been placed intentionally at the time of death or later with or near individual human remains. Funerary objects must be identified by a preponderance of the evidence as having been removed from a specific burial site of an individual affiliated with a particular Indian tribe or Native Hawaiian organization or as being related to specific individuals or families or to known human remains. The term burial site means any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which, as part of the death rite or ceremony of a culture, individual human remains were deposited, and includes rock cairns or pyres which do not fall within the ordinary definition of gravesite” [43 CFR 10.2 (d)(2)].
Human Remains ( Ancestors ): “The physical remains of the body of a person of Native American ancestry. This phrase does not include remains or portions of remains that may reasonably be determined to have been freely given or naturally shed by the individual from whose body they were obtained, such as hair made into mats, ropes, or nets). For the purposes of determining cultural affiliation, human remains incorporated into a funerary object, sacred object, or object of cultural patrimony must be considered as part of that item” [43 CFR 10.2 (d)(1)].
Indian Tribe: “Any tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians” [25 U.S.C. § 3001(7)].
Indian Tribe Official “…[T]he principal leader of an Indian tribe or Native Hawaiian organization or the individual officially designated by the governing body of an Indian tribe or Native Hawaiian organization or as otherwise provided by tribal code, policy, or established procedure as responsible for matters relating to these regulations” [43 CFR 10.2 (b)(4)].
Institution: Any of the following: UW-Eau Claire; UW-Green Bay; UW-La Crosse; UW-Madison; UW-Milwaukee; UW-Oshkosh; UW-Parkside; UW-Platteville; UW-River Falls; UW-Stevens Point; UW-Stout; UW-Superior; UW-Whitewater; any branch campuses/additional locations; and UW System Administration.
Institution Representative: Any entity (faculty, academic staff, or university staff) who has the authority to act and make decisions related to NAGPRA on behalf of their Institution (see Museum Official). This person may or may not also serve dually as a Unit Representative.
Lineal Descendant: “Any individual tracing their ancestry directly and without interruption by means of the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization or by the common law system of descendance to a known Native American individual whose remains, funerary objects, or sacred objects are being claimed under these regulations” [i.e., NAGPRA] [43 CFR 10.2(b)(1)].
Museum: “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” [25 U.S.C. § 3001(8)].
Museum official: “…[T]he official within a museum designated as being responsible for matters relating to these regulations” [43 CFR 10.2 (a)(4)].
Native American: Of, or relating to, a tribe, nation, people, or culture that is indigenous to the United States [25 U.S.C. § 3001(9), 43 CFR 10.2 (d)].
Object: A collective term to include any individual item, biological or non-biological, in a collection. This includes simple items (bone), composite items (a kachina doll, made of many different parts and materials), and can also refer to associated collection materials (like archives). This term encompasses traditional collection terms like “artifact,” “material” and “specimen.”
Possession: “Having physical custody of human remains, funerary objects, sacred objects, or objects of cultural patrimony with a sufficient legal interest to lawfully treat the objects as part of its collection for purposes of NAGPRA. Generally, an Institution would not be considered to have possession of human remains, funerary objects, sacred objects, or objects of cultural patrimony on loan from another individual, museum, or Federal agency” [43 CFR 10.2 (a)(3)(i)].
Repatriate ( Repatriation ): To transfer physical custody of and legal interest in (return of possession or control of) Native American cultural items to lineal descendants, culturally affiliated Indian tribes, and Native Hawaiian organizations [25 U.S.C. § 3005(f), 25 U.S.C. s 3009]
Tribal Nation: See Indian tribe.
Unit Representative: Any entity (faculty, academic staff, or university staff) who is actively involved in NAGPRA-related activities and has the authority to make NAGPRA-related decisions on behalf of their unit at the Institution, in any way (see Museum Official ). Usually, this person must defer some decisions to the Institution Representative.
Wisconsin Tribes: “American Indian Tribal governments in Wisconsin” [RPD 8-2, Tribal Consultation].
6. Policy Statement
A. UW System
The UW System adopts the following policy on NAGPRA compliance.
I. UW System Oversight
1. UW System will serve as the single point of communication to the Board of Regents concerning NAGPRA compliance activities.
2. UW System will designate a UW System NAGPRA Director, who will serve as the point of contact for Institution Representatives and whose responsibilities will include, at minimum:
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- On an annual basis, identify the full scope of NAGPRA issues across all institutions;
- Provide to the Board of Regents with a copy to Wisconsin Indian Tribe Officials an annual update on institution NAGPRA activities;
- Assist with institution-to-institution collaboration regarding NAGPRA efforts, including tribal consultation;
- Ensure consistent reporting across the UW System to the National NAGPRA Office;
- Maintain and make available UW System-wide resources and documentation relating to NAGPRA compliance; and
- Ensure documentation is consistent with confidentiality provisions in federal and state law, and protective of sensitive information.
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3. UW System will sponsor a UW System NAGPRA Advisory Committee. This committee will meet twice a year, with additional meetings as necessary, to provide oversight and guidance on Institutional NAGPRA compliance activities and specific matters as requested by the UW System NAGPRA Director. This advisory committee will include, at minimum:
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- The UW System NAGPRA Director;
- Members selected from the Institution Representatives;
- Members selected from the UW System Office of Policy Analysis & Research, the Office of Legal Counsel, and/or other UW System offices as deemed appropriate;
- The UW System Tribal Liaison; and
- At least three and no more than seven Board members of the Wisconsin Inter-Tribal Repatriation Committee (WITRC), to be identified and approved by WITRC before each NAGPRA Advisory Committee meeting. Inclusion of WITRC members will help fulfill the commitment made in RPD 8-2, Tribal Consultation to developing “strong, collaborative relationships with the sovereign American Indian Tribes in Wisconsin.”
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II. Consultation
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- The UW System NAGPRA Director will facilitate formal NAGPRA-related consultation with Wisconsin Tribes, other Tribal nations and/or the National NAGPRA Office as needed, and will coordinate those efforts with the UW System Tribal Liaison to ensure compatibility with activities conducted under RPD 8-2, Tribal Consultation. This work might include organizing and hosting joint consultation sessions that involve more than one institution.
- The UW System NAGPRA Director will provide an update on NAGPRA compliance activities for the annual tribal consultation meeting held under RPD 8-2, Tribal Consultation.
- The UW System will maintain a webpage for NAGPRA compliance that includes, at minimum:
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- Current contact information for the UW System NAGPRA Director;
- Current contact information for each Institution Representative;
- A process by which Tribal nations can submit NAGPRA-related questions or claims;
- Links to institution NAGPRA-related web pages; and
- Material that is consistent with confidentiality provisions in federal and state law, and protective of sensitive information.
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III. Training
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- The UW System will develop and provide resources to all institutions for training relating to NAGPRA compliance, under the direction and approval of the advisory committee.
- The UW System NAGPRA Director will provide updates to Institution Representatives as necessary regarding federal changes or updates to NAGPRA regulations or policies.
IV. Documentation
The UW System will maintain copies of all NAGPRA compliance activities in a centralized location and in compliance with Regent Policy Document 3-2, Public Records Management.
B. UW Institutions
Each institution must adopt a policy on NAGPRA compliance that includes, at minimum, all applicable components outlined below.
I. Institutional Oversight
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- Each institution must name an Institution Representative to oversee and ensure compliance with UW System and institution-specific policies related to NAGPRA, and to serve as the main point of contact with UW System for NAGPRA-related issues. The Institution Representative will also oversee the NAGPRA-related efforts of that institution’s Unit Representatives.
- Each institution must clearly commit to compliance with all federal, state, and local laws pertaining to human remains and cultural items.
II. Consultation:
All requirements below shall be executed in a manner consistent with the RPD 8-2, Tribal Consultation.
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- Each institution must strive to resolve questions or issues concerning treatment and disposition/repatriation of human remains/ancestors and cultural items through consultation with Tribal nations.
- Each institution must supply relevant, information concerning NAGPRA-eligible collections as requested by Authorized Tribal Representatives. If the requested information will require some time to compile, the Unit Representative will provide an estimated time frame for completion and report all responsive activities to the Institution Representative.
- Each institution must make available clear instructions and contact information to Tribal nations, outlining its process for requesting a consultation
- Each institution must accommodate consultation with an Authorized Tribal Representative in a manner of their choosing whenever practicable. All consultation sessions must be proctored by either the Institution Representative or the UW System NAGPRA Director.
- Each institution must consult as needed with Tribal nations to negotiate and approve practices for addressing information that meet the needs of the UW System, the institution, and the Tribal nations during the NAGPRA process, subject to applicable law. Some topics to address could include:
- Traditional care practices and preferences, storage requirements (including rehousing, if requested), handling, and access;
- The specific collection(s) and/or objects of concern, and subjects or types of information that are considered confidential;
- Recording preferences or restrictions before, during, and after consultation sessions, including note taking and use of recording devices (including cameras); and
- Information allowed to be made available to tribal members, institution staff, researchers, government officials, the press, or members of the public who submit a request for information.
- Each institution shall endeavor to collaborate with other institutions to combine formal consultation sessions at the request of Authorized Tribal Representatives.
- Each Institution Representative must maintain a standard record of all planned formal consultation sessions and report them to the UW System NAGPRA Director in advance (see Reporting Obligations below).
- Each Institution Representative must report the institution’s annual NAGPRA compliance activities at the annual tribal consultation meeting conducted by the UW System under RPD 8-2, Tribal Consultation. The frequency of reporting for each Institution Representative will be at the discretion of the UW System NAGPRA Director.
III. Identification of NAGPRA-Eligible Human Remains/Ancestors and Cultural Items
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- Each institution must develop a strategic plan and appropriate protocols for identifying and reporting NAGPRA-eligible human remains/ancestors and cultural items in the control of the institution. The plan and protocols must address identification of such items in existing collections, new acquisitions, and new discoveries, and must be routinely reviewed. The reporting protocol must include communication within the institution, to the UW System, to Authorized Tribal Representatives as appropriate, and to the National NAGPRA Office.
- If control is determined to belong to Federal agencies or State entities, the institution will confer with the agency or entity regarding either transfer or management according to a long-term repository agreement.
- Each institution is also encouraged to consult with Tribal nations regarding identification of other items under the institution’s control that might be culturally sensitive even though they are not covered by NAGPRA or this policy.
IV. Reporting and Acquisition
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- Each institution, within three months of the effective date of this policy, will provide a summary and status listing of NAGPRA-eligible collections and cultural items to the UW System NAGPRA Director.
- If new (i.e., not previously reported) human remains/ancestors or cultural items are discovered within existing collections or new acquisitions that are under the control of the institution, the Unit Representative will report such findings to the Institution Representative within 30 days, and the Institution Representative will report them to the UW System NAGPRA Director within 90 days of the date of acquisition or discovery. The report will also address how the institution intends to comply with 43 CFR 10.13 (Future Applicability).
- Each institution must establish oversight and review processes for evaluating collections being considered for acquisition through purchase, donation, or other means (e.g., curation agreements) to identify potential NAGPRA issues in those collections. These processes must also meet the requirements of international, Federal, State, and local laws and UW System and institution policies.
- Institutions that manage any long-term repository contracts or temporary custody agreements with other entities must maintain clear documentation concerning legal control as well as the management of and access to these collections that comply with both tribal guidance and each contract or agreement.
V. Care, Storage, and Handling
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- Each institution must have policies regarding care, storage, and handling of human remains/ancestors and cultural items. These policies should comply with current preferences of Authorized Tribal Representatives, when possible and as appropriate, and should be documented by the Unit Representative and made available to both the Institution Representative and the appropriate Authorized Tribal Representative(s).
- Every attempt will be made to identify past treatments performed on human remains/ancestors and cultural items, to take steps to isolate and eliminate exposure to harmful chemicals, and to report all known treatments to appropriate Authorized Tribal Representatives once identified.
- When possible and appropriate, each institution must make reasonable efforts to provide a process for facilitating ceremonies on its property in a manner that meets with Authorized Tribal Representatives’ requests, employee and visitor safety, and facility/building policies.
VI. Photography/Imaging and Archives
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- Each institution must adopt policies that address imaging (photographs, scans, 3-D models, etc.) or documentation of cultural items, including access to and security of these files. These policies should make reasonable efforts to incorporate guidance received during tribal consultation.
VII. Display and Interpretation
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- Each institution must prohibit the display of cultural items, no matter their repatriation status, unless permission on a case-by-case basis has been received from one or more Authorized Tribal Representatives.
- Each institution will collaborate with the tribes for interpretation and exhibition of cultural objects.
VIII. Physical Access
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- Each institution must restrict access to buildings, rooms, or areas of rooms where cultural items are stored. Access to these areas must be thoroughly reviewed in advance and monitored. Requests for access by Authorized Tribal Representatives must be accommodated as soon as reasonably possible, taking into account staff availability, building access, and preparation logistics.
- Each institution must prohibit unsupervised access to buildings, rooms, or areas of rooms where human remains/ancestors and cultural items are stored unless training has been completed regarding NAGPRA compliance and appropriate care and handling procedures, except in case of emergencies.
IX. Research Access, Loans, and Other Activities
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- Each institution must host a webpage for NAGPRA compliance that includes, at minimum:
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- A link to the UW System NAGPRA compliance webpage;
- Current contact information for the Institution Representative; and
- A summary of reported NAGPRA activities, with links to publicly available information such as Federal Register entries and the National NAGPRA Program databases.
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- Each institution must refuse research or loan requests for any cultural items that are the subject of a repatriation request or that have been approved for repatriation without permission from the Authorized Tribal Representative. Per NAGPRA Regulations, requests from Tribal nations for documentation relating to NAGPRA-eligible collections must not be construed as authorizing either: 1) The initiation of new scientific studies of the human remains and associated funerary objects; or 2) Other means of acquiring or preserving additional scientific information from the remains and objects. [43 CFR 10.9(e)(5)(iii)]
- Each institution must prohibit the scientific investigation or loan of potential cultural items that have not yet been formally claimed under the provisions of NAGPRA until determination of non-coverage or tribal consultation is complete and recommendations have been received. Scientific investigation for the purpose of reporting requirements to the National NAGPRA Office is a permissible exception, although institutions are encouraged to proceed only after tribal guidance has been received.
X. Training
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- Each institution must require and provide scheduled and routine training on NAGPRA compliance to all applicable employees. Institution Representatives and Unit Representatives must provide proof of current trained status prior to engaging in NAGPRA compliance activities.
- Each institution must review and update (if necessary) its training protocols at least every 2 years, to ensure compliance with current federal regulations and other applicable state and local laws.
XI. General Reporting Obligations
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- Unit Representatives must report all NAGPRA compliance activities to the Institution Representative in a consistent and clear format and in a timely manner. This includes tribal communication (outside of formal consultation) and documentation provided to Authorized Tribal Representatives and the National NAGPRA Office. Such reports can be in either a digital or paper format but cannot be solely verbal.
- Institution Representatives must report summaries of all NAGPRA compliance activities to the UW System NAGPRA Director in a consistent and clear format and in a timely manner. This includes tribal communication (outside of formal consultation) and documentation provided to Authorized Tribal Representatives and the National NAGPRA Office. Such reports can be in either a digital or paper format but cannot be solely verbal.
- Institution Representatives must maintain comprehensive records of NAGPRA compliance.
XII. Consequences of Noncompliance
Each institution must state that violations of this policy and/or associated policies, protocols, or procedures may be subject to disciplinary action in accordance with institutional policies and procedures. Note that NAGPRA law includes civil and criminal penalties for compliance violations. Please see the NAGPRA Enforcement webpage for further details.
7. Related Documents
Native American Graves Protection and Repatriation Act (Public Law 101-601)
Native American Graves Protection and Repatriation Act (Regulations)
RPD 3-2, Public Records Management
8. Policy History
Original Issuance Date: October 31, 2023
9. Scheduled Review
December 2026