Comment #1: Throughout the policy, recommended to remove references to Human Remains and Cultural Items in the “custody” of the Universities of Wisconsin (not within their possession or control). It is argued that including “custody” within the scope of the policy is inconsistent with the act and regulations. Doing so would make Institutions responsible for certain actions under NAGPRA for items in their physical custody, but that are under the possession or control of another institution (such as loaned items).
Response #1: No change made. NAPGRA regulations apply to “any institution or State or local government agency (including any institution of higher learning) within the United States that receives Federal funds and has possession or control of a holding or collection” (see 43 CFR 10.1(b)(1)(i)). Therefore, the law and regulations broadly apply to any Institutions with collections that receive federal funding, all Universities of Wisconsin. UW institutions that have legal possession or control of Human Remains or Cultural Items (as defined in NAGPRA – see below) are defined as “Museums” under the regulations. Museums have a Duty of Care and are required to “preserve any Human Remains or Cultural Items in its custody or in its possession or control” (see 43 CFR 10.1(d)). This indicates that Human Remains and Cultural Items in either the custody or possession/control of a UW institution can be subject to certain requirements. As a counterpoint, it could be argued that UW institutions without legal possession/control of any Human Remains or Cultural Items do not technically qualify as Museums as defined under NAGPRA. Therefore, a UW institution without legal control of Human Remains or Cultural Items could claim that they are not subject to Duty of Care requirements for collections in their custody. All institutions fall under the UW System umbrella, however, complicating this hypothetical individual applicability. Additionally, holdings unknowingly subject to NAGPRA are commonly discovered under the control of UW institutions. And most importantly, the spirit of the law clearly intends for the protection of Human Remains and Cultural Items wherever NAGPRA applies. Therefore, the safest course of action for all UW institutions from both an ethical and a liability standpoint is to follow a NAGPRA policy which accounts for all Human Remains or Cultural Items, regardless of whether they fall under custody or possession/control.
Human Remains are defined under NAGPRA as any physical part of a Native American individual to which a museum cannot prove a right of possession (see 43 CFR 10.2 “Human remains”).
Cultural Items are defined under NAGPRA as “a funerary object, sacred object, or object of cultural patrimony according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization.” (see 43 CFR 10.2 “Cultural items”)
Comment #2: In Section 5, it was recommended to generally reference and link to NAGPRA definitions within the Act (25 U.S.C. § 3001) and regulations (43 CFR 10.2) rather than repeating legal definitions.
Response #2: Recommendation incorporated into policy. Definitions were split into Section 5.A and Section 5.B. Section 5.A is titled “Legal Terms” and lists important NAGPRA terms with reference to the act and regulations. Section 5.B is titled “Other Terms” and defines other important terms within the policy not found within the act or regulations.
Comment #3: Throughout the policy, recommended to clarify minor details by removing or rephrasing various sentences and sections which were vague or unnecessary: Section 6.A.I.1; Section 6.A.II.1; Section 6.B.IV.4; Section 6.B.IX.3; Section 6.B.IX.4; Section 6.B.IX.5.
Response #3: Recommendation incorporated into policy.
Comment #4: Recommended to clarify requirements for reporting compliance activities (Section 6.B.II.8) and the status of NAGPRA-eligible holdings (Section 6.B.IV.1).
Response #4: Recommendation incorporated into policy. Required annual reports 30 days before the annual consultation and made additional reporting requirements at the discretion of the UW System NAGPRA Director. Combined Section 6.B.II.8 into Section 6.B.IV.1 under “Reporting and Acquisition.”
Comment #5: Throughout the policy, recommended to remove “NAGPRA-eligible” wording as it is not defined in the policy or potentially re-word to “collections likely subject to NAGPRA”.
Response #5: Recommendation incorporated into policy. Decided to define “NAGPRA-eligible” in Section 5.B rather than removing all references to the word. Some references to “NAGPRA-eligible” were removed or re-worded, but the term is a useful, shorter description in some parts of the policy.
Comment #6: For Sections 6.B.VI and 6.B.VII, inquired as to whether Photography/Imaging policy could be combined with Display and Interpretation policy and broadened into a Duty of Care stipulation. Questioned if 6.B.VII.2 is necessary.
Response #6: No change made. Duty of Care (see 43 CFR 10.1(d)) is a diverse subject which is the basis for concepts throughout the policy, in addition to these two sections. Creating a single section solely for Duty of Care might require a significant rewrite of the policy that would not be overly advantageous. Keeping sections separated into imaging; display and interpretation; physical access; research and loans; etc. allows for the addressing of Duty of Care and other aspects of NAGPRA in one place for those specific circumstances. Development of guidelines for Duty of Care is planned.
Comment #7: Throughout the policy, recommend emphasizing the concerns of Tribal Representatives who want to protect sensitive information that is shared during consultation from becoming publicly available through public records law and corresponding policies.
Response #7: No change made. This recommendation addresses concerns brought by tribal representatives who rightfully want to ensure that sensitive cultural knowledge, cultural practices, and private information offered in consultation are safeguarded from being made available to the public. The public records law and corresponding policies have the potential to require such information become public in certain circumstances. Section 6.B.II.5 adequately addresses this concern by requiring NAGPRA practitioners to consult with tribal representatives on this topic. Resources and training provided by the UW System will further assist NAGPRA practitioners in protecting sensitive information while also complying with the public records law and corresponding policies.
Comment #8: In Section A.II.2, recommended including institutional representatives at annual consultation for reporting and answering specific questions about NAGPRA compliance at their UW institution.
Response #8: No change made. The annual consultation covers many topics in addition to NAGPRA compliance. At the most recent consultation, the NAGPRA update was limited to an overview of approximately 10 minutes. Since this will likely continue to be the case, specific questions about NAGPRA compliance at UW institutions are better suited to individual consultations concerning those UW institutions.
Comment #9: Throughout the policy, recommended addressing the convoluted topic of consultation in the policy, especially in terms of the significant onus that is put on Tribal Nations to seek consultation; and the differences of consultation under NAGPRA to that of the Tribal Consultation policy (RPD 8-2), which does not necessarily conflict, but does not overlap.
Response #9: No change made. The policy adequately ensures that Tribal Nations will be consulted in circumstances where NAGPRA applies, although UW institutions may go beyond in their own institutional policies. Further specifics of how consultation is carried out will be addressed by UW System resources and training.
Comment #10: In Section B.X., recommended more specifications on which individuals (employees, consultants, students, interns, volunteers) need training, and what that training entails.
Response #10: Recommendation incorporated into policy. Clarified that the UW System will develop and provide resources to all UW institutions for training related to NAGPRA compliance and that such training will be required annually. The scope of who must receive training was specified to UW employees and students who regularly access holdings which might contain Human Remains and Cultural Items. Those with irregular access and non-UW employees (like volunteers and consultants) would not be covered by this requirement, but Section 6.B.VII was clarified to prohibit unsupervised access to NAGPRA holdings unless training has been completed. Such individuals would be able to assist with NAGPRA compliance activities without a training requirement, but importantly, they would not be allowed unsupervised access to Human Remains and Cultural Items without this training. “Current trained status” was defined in Section 5.B.
Comment #11: In Section 6.A.1.3, recommended adjusting the composition of the UW NAGPRA Advisory Committee to include any members of WITRC who want to participate.
Response #11: Recommendation incorporated into policy. Additionally, specified that members must be Authorized Tribal Representatives.
Comment #12: Inquired if the UW System will assist with providing resources to assist with consultation efforts.
Response #12: No change made. Currently, UW institutions are expected to fund their own consultations with no significant resources, aside from the assistance of the UW System NAGPRA director, being made available.
Comment #13: Commented that access to Human Remains and Cultural Items should be kept to as few people as possible.
Response #13: No change made. Access to Human Remains and Cultural Items is restricted by the policy. Care, storage, and handling policies should also comply with current preferences of Authorized Tribal Representatives which should include preferences for access.
