10.1(d) Duty of care.

These regulations require a museum, Federal agency, or DHHL to care for, safeguard, and

preserve any human remains or cultural items in its custody or in its possession or control. A

museum, Federal agency, or DHHL must:

Referenced in:

Subpart C – Repatriation of Human Remains or Cultural Items by Museums or Federal

§10.10(c) Step 3-Consult on human remains or associated funerary objects. …Consultation must

address identification of:

(iv) The duty of care under § 10.1(d) for human remains or associated funerary objects.

Subpart B – Protection of Human Remains or Cultural Items on Federal or Tribal Lands

§10.4(b) Plan of action. Before a planned activity or after a discovery [on Federal or Tribal

lands], the Federal agency or DHHL must approve and sign a plan of action and must provide a

copy to all consulting parties. At minimum, the written plan of action must include: ...

§10.1(d) Duty of care. National NAGPRA Program

Frequently asked questions about §10.1(d) Duty of care.

1. What is the duty of care requirement?

2. Why is consent required?

3. Is the term “research” synonymous with the term “analysis?”

Indian Tribes, and NHOs to consult, and then seek permission from consulting parties for further

assessments (i.e., determining the number of individuals)?

8. Can I conduct research or analysis to complete the inventory if no consulting parties

respond?

9. How can we meet the deadline to update an inventory by January 10, 2029, if we must first

consult and then get consent before analyzing the human remains and associated funerary

objects?

10. What if the Tribe agrees to additional research or analysis but we will need more time to

complete the inventory as requested by the consulting parties?

11. Is consent required to move a holding or collection to a new location?

loan from another institution?

17. Who is responsible for ensuring the duty of care requirements are met or for getting consent

from Indian Tribes or NHOs?

18. What if there is disagreement between consulting parties on the duty of care?

19. Why don’t these regulations just prohibit exhibition, access, or research entirely?

20. Where did this duty of care language come from?

Section 10.1(d)(1) requires museums and Federal agencies to consult on the appropriate storage,

Section 10.1(d)(3) requires museums and Federal agencies to obtain consent from consulting

parties prior to any exhibition of, access to, or research on human remains or cultural items.

§10.1(d) Duty of care. National NAGPRA Program

As the purpose of the Act and these regulations is to facilitate the disposition or repatriation of

human remains or cultural items from museums or Federal agencies to lineal descendants, Indian

Tribes, or NHOs, all the above entities have interests in the human remains or cultural items until

the repatriation or disposition process is complete. To protect these interests, it is appropriate that

Yes. The regulation text describes analysis as a form of research: 10.1(d)(3) Research includes,

but is not limited to, any study, analysis, examination, or other means of acquiring or preserving

information about human remains or cultural items. Research of any kind on human remains or

cultural items is not required by the Act or these regulations.

“Research” equates to the term “scientific study” in the Act and means any study, analysis,

examination, or other means of acquiring or preserving information. “Research” includes any

activity to generate new or additional information beyond the information that is already

available. For example, “research” might mean osteological analysis of human remains, physical

inspection or review of collections to gather specific information, examination or segregation of

This depends on what actions a museum or Federal agency intends to take “to inventory” and if

that includes allowing access to or research on the human remains or associated funerary objects.

Consent is not required to compile an itemized list of human remains and associated funerary

objects or to initiate consultation with potentially culturally affiliated Indian Tribes or NHOs.

Consent is required prior to allowing access to or research on human remains or associated

funerary objects. See the discussion of “research” above.

To compile an itemized list, museums and Federal agencies must identify the number of

individuals in a reasonable manner based on the information available. No additional study or

analysis is required to identify the number of individuals. If human remains are present in a

obtain consent from lineal descendants, Indian Tribes, or NHOs. Until that consent is obtained,

the museum must rely on the information available (previous inventories, catalog cards,

accession records, visual inspection, etc.) to identify consulting parties, conduct consultation,

update the inventory, and submit a notice of inventory completion. (See Final Rule paragraph

152.)

§10.1(d) Duty of care. National NAGPRA Program

As noted in the question above, consent is not required to compile an itemized list of human

This depends on what the “inventory project” entails and if that includes allowing access to or

research on the human remains and associated funerary objects. Consent is not required to

compile an itemized list of human remains and associated funerary objects and to initiate

consultation with potentially culturally affiliated Indian Tribes or NHOs. Consent is required

prior to allowing access to or research on human remains or associated funerary objects.

objects was previously prepared, the first requirement for updating an inventory is to initiate

Yes. If a museum or Federal agency wishes to conduct research (or analysis or study) in order to

complete the inventory, the museum or Federal agency should seek consent to do so during

consultation. If an Indian Tribe or NHO wishes certain research or analysis be conducted prior to

completing the inventory, the Indian Tribe or NHO should convey that request during

consultation.

consult under paragraph (d)(1) or collaborate under paragraph (d)(2) of § 10.1. However, until

consulting parties respond, the museum or Federal agency must not allow any exhibition of,

access to, or research on human remains or cultural items as doing so may be subject to a failure

to comply with the requirements of these regulations. If a museum or Federal agency wished to

conduct research to include a specific scientific study of human remains or cultural items, it

§10.1(d) Duty of care. National NAGPRA Program

could do so by following the requirements for a stay of repatriation under §§ 10.9(i)(3) or

10.10(j)(3). (See Final Rule paragraph 149.)

to consult, the museum or Federal agency must complete or update the inventory by the

deadlines required under § 10.10(d) and submit a notice of inventory completion under

§ 10.10(e). As the Department noted in 1995 for the first deadline to complete an inventory in

1995 if there is no response after repeated attempts to contact Tribal officials by telephone, fax,

and mail, the museum or Federal agency official may be required to complete the inventory

without consultation to meet the regulatory deadline. The Department suggested museum and

Federal agency officials document attempts to contact Tribal officials to demonstrate good faith

compliance with these regulations and the Act. (1995 Final Rule, 60 FR 62151). (See Final Rule

paragraph 445.)

museum will need an additional 1 or 5 or even more years to complete or update its inventory, it

can only do so by first engaging in meaningful and effective consultation with lineal

descendants, Indian Tribes, and NHOs. With these changes to the regulations, we hope to

provide a clear path to repatriation where lineal descendants, Indian Tribes, and NHOs, rather

than museums and Federal agencies, can define what expeditious repatriation means. (See Final

It depends on the reason for moving the holding or collection. If the move is to care for,

collection.

In some cases, the facts of a particular move may warrant obtaining consent. For example, if

certain cultural items should not be stored in the same space as human remains, yet during the

move, the entire collection will have to be placed on the same truck or in the same storage

§10.1(d) Duty of care. National NAGPRA Program

container for a few days, the logistics of the move may cause cultural or spiritual harm to the

collection. Alternately, if an Indian Tribe covered a holding or collection ceremonially in a

certain cloth, and the logistics of the move require removing the cloth, consent should be

obtained before removing the cloth. However, in either example, if the holding or collection is in

imminent physical danger, the move may be necessary without first obtaining consent.

move and the justification.

This depends on your record of consultation and the type of item on exhibit. If, through

consultation, an Indian Tribe agreed to putting an object in an exhibit, no action is required. If,

during past consultation, an Indian Tribe requested that the museum remove certain objects from

exhibit, but the museum refused to do so, the museum should remove or cover the objects as

soon as possible. If the museum has human remains or cultural items in an exhibit but has never

can be given. For other objects that may or may not be cultural items, the museum should

carefully review information about the objects and initiate consultation with Indian Tribes or

NHOs to determine if the objects are cultural items. If immediate removal of human remains or

cultural items is not possible, covering using screens, temporary walls, curtains, vinyl paneling,

or other means of obscuring the human remains or cultural items would suffice for temporary

purposes pending consultation and obtaining consent. Temporarily closing an entire gallery or

exhibition, depending on the contents and ability to limit viewing, may be necessary but is not

required if the human remains or cultural items can be protected from view in some other way.

If a museum or Federal agency cannot identify any consulting parties for specific human remains

or cultural items, the duty of care requirement still applies. Until consulting parties are identified,

the museum or Federal agency may not be required to consult under paragraph (d)(1) or

collaborate under paragraph (d)(2) of § 10.1. Until consulting parties are identified, the museum

or Federal agency must not allow any exhibition of, access to, or research on human remains or

§10.1(d) Duty of care. National NAGPRA Program

cultural items as doing so may be subject to a failure to comply with the requirements of these

regulations. If a museum or Federal agency wished to conduct a specific scientific study of

human remains or cultural items, it could do so by following the requirements for a stay of

repatriation under §§ 10.9 or 10.10. After following the requirements of these regulations,

nothing would preclude a museum or Federal agency from exhibiting, allowing access to, or

Testing or removal of hazardous substances should be a part of consultation on human remains

or cultural items, specifically under the duty of care requirements in § 10.1(d). We cannot require

testing for or removal of hazardous substances or who should pay for that testing or removal as

there is no such requirement in the Act. We can and do require information about hazardous

substances be shared, but only when a museum or Federal agency knows about the presence of

any potentially hazardous substances. (See Final Rule paragraph 443.)

disposition or repatriation statement is sent. Nothing under the Act or these regulations allow a

museum or Federal agency to dictate any action after a disposition or repatriation statement is

sent. (See Final Rule paragraph 358.)

We have intentionally included “custody” in the duty of care requirement to ensure all Native

American human remains and cultural items are cared for, safeguarded, and preserved until the

disposition and repatriation processes are complete. However, the inclusion of museums or

Even where a collection is loaned to another institution, the loaning entity is still required to

comply with all the requirements of the Act and these regulations. Under these regulations, if the

entity that holds the loaned collection meets the definition of a museum, it would also have to

comply with certain requirements for the loaned collection and any other human remains or

§10.1(d) Duty of care. National NAGPRA Program

cultural items in its custody, including a duty of care and reporting obligations. (See Final Rule

paragraph 284.)

museums and Federal agencies in determining their respective responsibilities. We note that

Federal agencies and their repositories must still care for and manage collections that are covered

by the provisions of 36 CFR part 79 (see Final Rule paragraph 115.)

When consultation on the duty of care does not result in consensus, agreement, or mutually

agreeable alternatives, the consultation record must describe the concurrence, disagreement, or

nonresponse of the consulting parties. (See Final Rule paragraph 124.)

objects, and objects of cultural patrimony (25 U.S.C. 3005(b)). As any elimination or restriction

of 25 U.S.C. 3005(b) would require an act of Congress, we cannot remove the reference to

“scientific study” entirely or remove § 10.9(i)(3). (See Final Rule paragraph 159.)

The history of this duty of care requirement can be found in the preamble to the Final Rule: In

preparing these final regulations, we looked at not only the comments we received on the

proposed regulations but also to the legislative and regulatory history and to input from the

Review Committee on these issues. (See Final Rule paragraph 143.)

§10.1(d) Duty of care. National NAGPRA Program