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Deference is a word the current NAGPRA regulations use, and they define what it attaches to. Under 43 CFR 10.1(a)(3), the regulations "require deference to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations."¹ The phrase is defined at 43 CFR 10.2 as "knowledge, philosophies, beliefs, traditions, skills, and practices."² Those are "developed, embedded, and often safeguarded by or confidential to individual Native Americans, Indian Tribes, or the Native Hawaiian Community."² The definition closes with a sentence of four words: "Native American traditional knowledge is expert opinion."² Some of what a museum defers to is confidential by the definition's own terms.

What a catalog record contributes at Step 1

43 CFR 10.3 sets out three steps for determining cultural affiliation. Step 1 collects the information available, and at that stage a museum collects what it holds, "including, but not limited to, records, catalogues, relevant studies, and other pertinent data."³ Step 2 identifies the required criteria, and Step 3 makes the determination.³ Step 3 can end with the finding that cultural affiliation "cannot be clearly or reasonably identified."³ The catalog entry is where the process starts rather than where it concludes.

The regulation defines what a determination has to reach. Cultural affiliation means "there is a reasonable connection between human remains or cultural items and an Indian Tribe or Native Hawaiian organization based on a relationship of shared group identity."² It "may be identified clearly by the information available or reasonably by the geographical location or acquisition history of the human remains or cultural items."²

Consultation has a definition and three stated purposes

43 CFR 10.2 gives consultation as "the exchange of information, open discussion, and joint deliberations made between all parties in good-faith and in order to" three stated ends.² The first stated purpose is to "seek, discuss, and consider the views of all parties," and the second is to "strive for consensus, agreement, or mutually acceptable alternatives."² The third is to "enable meaningful consideration of the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations."²

Consultation is not new. Under 25 U.S.C. 3003(b)(1)(A), inventories and identifications are to be "completed in consultation with tribal government and Native Hawaiian organization officials and traditional religious leaders."⁴ The final rule of December 13, 2023, effective January 12, 2024, extended the time for museums to consult and update those inventories to five years rather than the two years proposed.⁵

The notices have prescribed contents

Two notices are published in the Federal Register. Under 43 CFR 10.9, a notice of intended repatriation carries five items. They are an abstract of the compiled information, the total number and brief description of the objects, and the requesting party.⁶ The last two are the name, phone number, email address, and mailing address of the museum's authorized representative, and a date the Federal Register calculates 30 days from publication.⁶ The requesting party is given as "The lineal descendant (whose name may be withheld), Indian Tribe, or Native Hawaiian organization requesting repatriation."⁶ Whether to withhold that name is settled before the notice is filed.

Under 43 CFR 10.10(e)(2), a notice of inventory completion carries an abstract, the determination made, and the total number of individuals and associated funerary objects "counted separately or by lot."⁷ The remaining two items are the authorized representative's contact details and the same calculated date.⁷ Both notices are five items long, and in both the first item is an abstract of a longer document.

Consent attaches to exhibition, access, and research

The duty of care includes a consent requirement, and the regulation names the three activities it attaches to. Under 43 CFR 10.1(d)(3), a museum must "Obtain free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations."¹ That consent comes "prior to allowing any exhibition of, access to, or research on human remains or cultural items."¹ The Code of Ethics for Museums was adopted in 1993, when the body was the American Association of Museums, and revised in 2000. It asks separately that competing claims of ownership "be handled openly, seriously, responsively and with respect for the dignity of all parties involved."⁸

What a museum decides, and what we read

The museum makes the determinations the regulation assigns to it, in consultation with the parties the regulation names: cultural affiliation, what a consultation produced, whether consent has been given, and what may be published. Where a draft states a determination, it states one already made. We advise on none of it, and every document a client sends us is treated in confidence.

Reading two documents together answers some of what is left. We compare an object's description in a catalog entry with its description in a notice abstract. We check whether a count given as individuals in one document is given as lots in another. We look for a name the record marks as withheld and confirm it has not survived into a draft.

Museum text stays in use long after the person who wrote it has gone. A label written decades ago can still be on the wall, and a catalog entry written before 1990 is still among the records step one collects. Neither carries a note saying when it was written or what was known then.