Native American Graves Protection and Repatriation Act (NAGPRA) Procedures

I. Purpose

Pursuant to the NAGPRA Policy (the “Policy”), the University has developed the following procedures to comply with the Native American Graves Protection and Repatriation Act and its implementing regulations (collectively, and as they may be amended from time to time, “NAGPRA”). These procedures will be applied whenever the University becomes aware of human remains, funerary objects, sacred objects or objects of cultural patrimony potentially subject to NAGPRA (collectively, “Cultural Items”) in its physical custody; inadvertently discovers Cultural Items in the course of its academic or research activities; or receives a repatriation request for Cultural Items.

Nothing in these procedures is intended to conflict with, and all steps in these procedures shall be done in accordance with, NAGPRA.

These procedures use the NAGPRA terminology summarized in the Policy, in addition to other terms defined herein.

II. NAGPRA Review Committee

The NAGPRA Coordinator will establish the NAGPRA Review Committee. The Committee will be made up of at least five (5) faculty and staff members with relevant expertise selected by the NAGPRA Coordinator. The NAGPRA Coordinator will convene the Committee as circumstances require.

III. Discovery of Cultural Items That Have Been in the University’s Possession or Control

This Section applies when the University discovers Cultural Items that have been in its possession or control.

1. In consultation with Native American tribes and Native Hawaiian organizations (collectively, “Tribes”) and traditional religious leaders, the University will:
   • Prepare an inventory of human remains and associated funerary objects in the University’s legal possession or control;
   • Prepare a summary of unassociated funerary objects, sacred objects, and objects of cultural patrimony in the University’s legal possession or control.
2. After consulting with the Tribes and/or traditional religious leaders, the NAGPRA Coordinator will propose to the NAGPRA Review Committee a draft inventory and/or summary. When determining a Cultural Item’s cultural affiliation, the NAGPRA Coordinator should take into account the consultation with the Tribes and/or traditional religious leaders, and all other available information, which may include biological, archeological, anthropological, geographical, kinship, linguistic, folkloric, oral tradition, historical, or other relevant information and expert opinion. The determination of cultural affiliation will be based upon an overall evaluation of the totality of the circumstances and established by a preponderance of the evidence. The NAGPRA Review Committee will review and evaluate the NAGPRA Coordinator’s recommendation, including any information the NAGPRA Coordinator relied upon. The NAGPRA Review Committee may approve the proposed inventory or summary or may request that the NAGPRA Coordinator provide further information or revise its proposal.
3. If the NAGPRA Review Committee approves a proposed inventory or summary and the inventory or summary identifies or provides a likely identification of cultural affiliation of Cultural Items with one or more Tribes, the NAGPRA Coordinator will send copies of the approved inventory or summary to such Tribe(s) no later than six (6) months after completion.
   • If an inventory results in a determination that human remains are of an identifiable individual, the NAGPRA Coordinator will notify the lineal descendant of the deceased individual, if known, and the Tribe of which the deceased individual was culturally affiliated.
   • If a summary results in a determination that Cultural Items are or are likely to be culturally affiliated with one or more Tribes, then the NAGPRA Coordinator will send a copy of the summary to such Tribes, lineal descendants (when known), and the Manager of the National NAGPRA Program.

IV. Discovery of Cultural Items in the University’s Physical Custody but Not in Its Legal Possession or Control

This Section IV applies when the University discovers Cultural Items that have been in its physical custody, but that the University does not possess or control. In the event the University discovers such Cultural Items, the University will seek to determine the lawful possessor of the Cultural Items. The lawful possessor is generally the landowner at the time the Cultural Items were removed from the land, and is usually the party responsible for NAGPRA compliance, if applicable. The University will contact the lawful possessor of those Cultural Items, where known, so that the individual or entity may carry out these obligations.

V. Inadvertent Discovery

If University faculty, staff or students inadvertently discover Cultural Items on Federal or tribal lands in the course of conducting field research or other University activities (including subsequent discovery in the lab), the principal investigator or other person with responsibility for the activity (the “PI”) will immediately cease activity in the area of the inadvertent discovery. The PI will also immediately notify the NAGPRA Coordinator and either the responsible Federal agency official for Federal land or the responsible tribal official for tribal lands. Notice to the Federal agency or responsible tribal official must be by immediate telephone notification of the inadvertent discovery, with written confirmation (preferably by certified mail). Notice to the NAGPRA Coordinator should similarly be by immediate telephone notification, with written confirmation by email. The PI must make a reasonable effort to protect the Cultural Items discovered.

After giving the notices described above, the PI will provide information requested by the NAGPRA Coordinator and the Office of the General Counsel to determine whether the Cultural Items are in the University’s legal possession or control. If the Cultural Items are in the University’s legal possession or control, the NAGPRA Coordinator will initiate the procedures described in Section III. If the Cultural Items are not in the University’s legal possession or control, then Section IV will apply and University will comply with instructions provided by the legal possessor or owner regarding proper handling of the Cultural Items and the requirements of NAGPRA.

If the inadvertent discovery of Cultural Items occurs on property that is neither Federal nor tribal land, then NAGPRA may not apply. However, other Federal, state, or local laws may apply. In the event of such a discovery, the PI should immediately notify the person or entity that granted the PI access to the property and the NAGPRA Coordinator.

VI. Information Requests

The NAGPRA Coordinator will respond to requests for information from the Tribes and the National NAGPRA Program.

VII. Repatriation and Disposition

In the event that the University receives a request for repatriation or disposition of a Cultural Item in its legal possession or control, the NAGPRA Coordinator will determine whether repatriation or disposition is appropriate, given the facts available. The NAGPRA Coordinator’s decision will be the result of a collaborative, transparent process, the steps of which will depend on the kind of Cultural Items that are the subject of a request or claim. The process for each category of Cultural Item is described below.

1. Culturally Affiliated Human Remains and Associated Funerary Objects.
   • When there is a request for repatriation of culturally affiliated human remains and associated funerary objects, the NAGPRA Coordinator will review the request to confirm the request has been made by a lineal descendant or culturally affiliated, federally recognized Tribe.
   • If the request did not come from a lineal descendent or culturally affiliated, federally recognized Tribe, the NAGPRA Coordinator will deny the request and send a written response to the requester. If the request did come from a lineal descendent or culturally affiliated, federally recognized Tribe, the NAGPRA Coordinator will tentatively approve the request, send a written response to the requestor, and send a Notification of Intent to Repatriate (NIR) to the National NAGPRA Program for publication in the Federal Register. The NAGPRA Coordinator must wait thirty (30) days from the publication of the NIR before proceeding with any request, during which time other requestors may present counterclaims.
   • If, by the above-mentioned deadline, there is no counterclaim from other lineal descendants or culturally affiliated, federally recognized Tribes, or there is a counterclaim and it has been resolved, the NAGPRA Coordinator will prepare an agreement to formally transfer control to the requester(s) (a “Repatriation Agreement”), with terms mutually agreeable to the parties, in consultation with the Office of the General Counsel. The Repatriation Agreement will include a time, place and manner for the physical transfer.
2. Culturally Unidentifiable Human Remains and Associated Funerary Objects.
   • The NAGPRA Coordinator will initiate consultation, within ninety (90) days of receiving a request for disposition of culturally unidentifiable human remains and associated funerary objects or, if the NAGPRA Coordinator receives no request, before any offer to transfer control of culturally unidentifiable human remains and associated funerary objects.
   • The consultation must be with all Tribes (i) from whose tribal lands, at the time of the removal, the human remains and associated funerary objects were removed and (ii) from whose aboriginal lands the human remains and associated funerary objects were removed. If, through consultation, the University and Tribes are able to agree on a plan for disposition, the NAGPRA Coordinator will prepare a Repatriation Agreement, with terms mutually agreeable to the parties, in consultation with the Office of the General Counsel. The Repatriation Agreement will include a time, place and manner for the physical transfer.
   • If none of the Tribes described in paragraph (b) above agree to accept the culturally unidentifiable human remains and associated funerary objects, the University may transfer control to other Tribes or, upon receiving a recommendation from the Secretary or authorized representative, may transfer control to a Tribe that is not federally recognized.
3. Unassociated Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony.
   • When there is a request for repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony, the NAGPRA Coordinator will confirm that the request is from a culturally affiliated, federally recognized Tribe.
   • If the request did not come from a culturally affiliated, federally recognized Tribe, the NAGPRA Coordinator will deny the request and send a written response to the requester. If the request did come from a culturally affiliated, federally recognized Tribe, the NAGPRA Coordinator will tentatively approve the request, send a written response to the requestor, and send a NIR to the National NAGPRA Program for publication in the Federal Register. The NAGPRA Coordinator must wait thirty (30) days from the publication of the NIR before proceeding with any request, during which time other requestors may present counterclaims.
   • If, by the above-mentioned deadline, there is no counterclaim from other culturally affiliated, federally recognized Tribes, or there is a counterclaim and it has been resolved, the NAGPRA Coordinator will prepare a Repatriation Agreement, with terms mutually agreeable to the parties, in consultation with the Office of the General Counsel. The Repatriation Agreement will include a time, place and manner for the physical transfer.

VIII. Ongoing NAGPRA Obligations

1. The NAGPRA Coordinator is responsible for maintaining a record of requests and repatriations. The University will retain records of repatriations in perpetuity.
2. The NAGPRA Coordinator, in consultation with the NAGPRA Review Committee, will maintain a centralized record of all Cultural Items in the University’s physical custody.
3. If the NAGPRA Coordinator becomes aware of Cultural Items in the University’s legal possession or control that were not previously included in a notice of inventory completion or summary submitted to the National NAGPRA Program, the NAGPRA Coordinator will inform the University Provost and request that the NAGPRA Review Committee begin work on an amended inventory and/or summary.

IX. Future Loans

The NAGPRA Coordinator must approve, in advance in writing, any proposed loans of Cultural Items to the University or to any party for research or teaching under the University’s auspices. A faculty or staff person supporting the proposed loan should provide a proposed loan agreement for the NAGPRA Coordinator’s consideration or work with the NAGPRA Coordinator to prepare a loan agreement. The loan agreement must be executed by an authorized signatory for the University prior to accepting the Cultural Items.

X. Teaching and Research

If a Covered Party wishes to use Cultural Items in teaching or research activities, the Covered Party must obtain the NAGPRA Coordinator’s prior written approval. The NAGPRA Coordinator may consult with the NAGPRA Review Committee and will consider, among other things, whether the relevant Tribe has consented to the teaching or research activity.

NAGPRA Coordinator

Kathryn Mellouk
Associate Vice President
Research Compliance
617-358-4730
kateski@bu.edu