The Native American Graves Protection and Repatriation Act: Legislative and Regulatory Responses in California, Colorado, and Texas
Abstract
This research offers a comparative study of state-led responses to the federal Native American Graves Protection and Repatriation Act of 1990 and the 2024 regulatory revisions, analyzing Texas in relation to Colorado and California. Although an impactful Act, NAGPRA has left Indigenous tribes turning to supplementary state initiatives to protect their graves and repatriate sacred items. Evidence indicates that closing NAGPRA’s loopholes and omissions through state-level initiatives can advance the repatriation process and contribute to long-awaited justice for Indigenous communities. In this respect, California has done the most to enhance the fragmented federal approach and Texas the least. The research investigates Texas’ reticence to further the protection and repatriation of sacred objects despite the possibilities exemplified by Colorado and California and unpacks intersecting barriers to effective action. The results indicate that a cultural elevation of private property rights, political competition over scarce resources, limited tribal recognition and legal definitions as well as institutional complexities help explain inaction in the Lone Star state.
The Native American Graves Protection and Repatriation Act: Legislative and Regulatory Responses in California, Colorado, and Texas
Life, death, and the transition in-between carries great significance in Indigenous cultures. From ceremonies to sacred songs, Indigenous peoples have established practices to ensure a restful state for the deceased. Specifically, the dead, along with their belongings, should remain undisturbed. Across time, however, foreign monarchs, Western religious institutions, and a complicated national character have contributed to the erasure of Indigenous identity, customs, and items worldwide (Falcon 9). In addition, the removal and scientific study of Indigenous remains and culturally sacred objects without tribal consent has proved to be a thorny, long-standing point of contention. For Indigenous communities, ancestral remains and items “discovered” by outside parties are not simply “artifacts” to be scientifically analyzed but rather significant and sacred elements of their cultural history.
Grave-robbing for private collections and scientific research became prevalent during the 18th and 19th centuries. Yet, it was not until the late 20th century that the United States Congress sought to rectify these offences with passage of the Native American Graves Protection and Repatriation Act of 1990, a landmark initiative that set the foundation for future regulatory and legislative protections. While unquestionably important, the NAGPRA was written by legislators with little to no knowledge of Indigenous laws or customs (Harms 605). Consequently, it contained significant omissions and left considerable room for misconception and confusion over Indigenous affairs. While the legislation was strengthened through federal regulations from the Department of the Interior in 2024 to clarify and improve how federal entities (museums, agencies, and universities in receipt of federal support) must conduct consultation, identification, repatriation, and consent processes as well as treat unaffiliated remains, NAGPRA still only applies to federal entities/institutions in receipt of federal funds and federal and tribal lands.
Notable deficiencies in the NAGPRA include ill-defined terms, applicability restrictions to federally recognized tribes, exclusion of “artifacts” found on private-land, lack of funding for implementation, verification, and evaluation, and finally a lack of respect for Indigenous customs and laws. Unsurprisingly, therefore, states have responded to the legislation in significantly different ways. Colorado has invested in building direct relations with its tribes through respectful interactions and systematic protections (Harms 631). California has gone further in enacting a state version of the NAGPRA; a near-replica of the national version, but one that plugs several key deficiencies (Turner 5). These efforts have enhanced the Indigenous repatriation process while improving wider relationships between the state and Indigenous peoples.
This research reviews the problematic background that necessitated the NAGPRA, analyzes its omissions, and unpacks state-level responses. In so doing, it highlights the challenges stemming from lackluster federal efforts, inconsistencies in implementation, and complexities in inter-governmental legislative and regulatory approaches.
Methodology
This research opens with an extensive scholarly literature review of the background, development, and compromises embedded within the NAGPRA, as well as the proactive measures that Colorado and California have implemented to alleviate impediments to repatriation processes. Following this discussion, the study addresses the systematic insufficiencies in Texas’ response. To add further depth of understanding, the paper incorporates primary evidence from a semi-structured expert interview with Jessica Ulmer, Head of Compliance for NAGPRA at The University of Texas at Austin’s Archeological Research Laboratory (TARL), conducted on November 4th, 2025. The research utilizes an in-depth case study approach to explain the struggle to repatriate sacred Indigenous objects in the Lone Star state.
Critical Literature Review
History
During the late 18th century to early 19th century, grave-looting of Indigenous remains dramatically increased throughout the United States. Indigenous graves were desecrated for scientific research and personal collections without consultation with Indigenous communities (Trope and Echo-Hawk 42). President Thomas Jefferson personally looted graves on his Virginia property, thereby legitimating and promoting desecration under the guise of scientific inquiry (Wiley 7).
It was not until the late 19th century that Indigenous tribes were legally determined to be sovereign nations. However, their independence remained restricted. At the peak of the grave-looting era, Indigenous peoples lacked the legal rights to counter the looting of ancestral graves and sacred objects and federal action during the assimilation era, such as the Code of Indian Offences of 1883, which prohibited Indigenous people from practicing their religion, compounded the problem.
While resistance among Indigenous peoples had been episodic and typically localized throughout United States history, limited gains were achieved in the form of the Indian Citizenship Act (1924) and the National Congress of American Indians (1944). By the 1960s, however, the American Indian Movement (AIM) marked the beginning of an integrated political organization. The AIM later proved to be particularly important in driving the passage of the American Indian Religious Freedom Act (AIRFA) in 1978, which protected Indigenous peoples right to practice their religious customs and beliefs (Falcon 17). The passage of the AIRFA also proved critical for repatriation as it returned attention to the issue of grave-looting and paved the way for the NAGPRA in 1990. This federal attempt to address grave-looting on Indigenous grounds and mandate the return of remains and sacred objects was supposed to be a national response to a centuries old problem. However, the NAGPRA’s gaps still proved to be substantial.
Unclear Terms
A foundational challenge limiting the efficacy of the NAGPRA is the definition of specific terms. For example, funerary objects are divided into two subcategories in the NAGPRA: unassociated and associated items. As defined by the Association on American Indian Affairs, “Associated funerary objects’ includes objects placed with or near individual human remains as part of a death rite or ceremony where the human remains and objects are now in the possession of control of a Federal agency or museum, or ‘exclusively’ made for burial purposes or to contain human remains” (NAGPRA Compliance). Unassociated items are those in which the remains are not in federal possession alongside the corresponding item. This distinction creates confusion and conflict between tribes and the holding institution because the difference between the definitions is whether an object is or is not accompanied by remains in the institution’s inventory. Additionally, federal institutions and museums are only required to repatriate associated funerary items, not unassociated items.
Much the same applies to the definition of “sacred” items. Again, defined by the Association on American Indian Affairs, “‘Sacred objects’ are those ceremonial objects which are needed by traditional Native American religious leaders for the present-day practice of traditional Native American religions. This includes both the use of the objects in ceremonies currently conducted by traditional practitioners and instances where the objects are needed to renew ceremonies that are a part of a traditional religion” (NAGPRA Compliance). This overly narrow definition excludes older sacred items that are no longer used in contemporary ceremonies. The definition itself, therefore, hinders repatriation and permits holding institutions to refuse returns on the basis that the requested remains or items have no present-day role in Indigenous ceremonies.
Private Land Protections
The NAGPRA’s reach has similarly been limited by its distinction between public and private land protections. The legislation stipulates that only remains and items found on federal lands and tribal lands are protected (Trope 13). Tribal lands are defined as, “all lands within the exterior boundaries of a reservation, whether or not the land is owned by the tribe, Indian individuals or non-Indians, all dependent Indian communities, and any lands administered for Native Hawaiians…” whereas Federal lands are defined to include, “non-tribal land controlled or owned by the United States…” (Trope 13). Private and non-federally owned lands are explicitly excluded. This leaves much to state discretion as well as the individual. States and institutions are able to exclude provisions (unless federal funding, tribal treaties, or state law is involved) and private landowners have argued that the NAGPRA promotes the unconstitutional act of infringing upon and taking private property (Schmidt 51).
Limitation to Federal Tribes
A further stipulation of the NAGPRA is that it only allows repatriation requests from federally recognized tribes (Colton and Cordova 29). The request for federal recognition as an Indigenous tribe is a lengthy and costly process and numerous tribes are excluded (Owens-Barber 24). Not only must unrecognized tribes declare a cultural affiliation, but they must contend with and navigate competition from federally recognized tribes. Federally recognized tribes have actively opposed non-recognized tribes to reduce competition over already limited federal benefits (Weiss and Springer).
Without federal recognition, smaller tribes often fall victim to the justification that ancestral remains were found to be “culturally unidentifiable” by an institution or museum. Typically, institutions use DNA analysis to confirm ancestral links. However, in Indigenous law, desecrating remains by testing their blood is impermissible without tribal consent, thereby further complicating the process of cultural identification (Owens-Barber 32). Complicating matters further, the NAGPRA does not specify the qualifying closeness between the tribe and the remains (Wiley 23). This lack of declaration leaves the assertion of a cultural link up to the institution. Institutions often classify remains or sacred object as “culturally unidentifiable” because of the difficulty of determining its lineal descent (Harms 619). As a case in point, in 2016, Dr. Mario Garza from the Miakan-Garza Band of Coahuiltecans (MGBC) requested three remains of their ancestors from the Texas Archeological Research Lab (TARL) at University of Texas at Austin. In 2020, after several years of sending requests and letters, the MGBC was denied repatriation as TARL determined the remains as “culturally unidentifiable” (Colton at Cordova 34). In September of the same year, the MGBC appealed the decision following the changing of NAGPRA guidelines. However, TARL again claimed there was no sufficient evidence for a lineal connection. The engagement remains ongoing, despite 2024 revisions of the NAGPRA (Colton at Cordova 34).
Compounding these challenges, consultation with tribes is only a legal requirement with federally recognized tribes, unless otherwise specified by state law (THC Section 106 Review process). The absence of policy regarding tribal consultation with non-federally recognized tribes creates ambiguity for institutions and increases possibilities for denial. Without mandatory consultations, the handling and display of found items and remains are the decision of state institutions and museums. Ultimately, there are many documented cases where tribes have no input regarding the handling of “artifacts” they cannot repatriate. Situating the NAGPRA within the wider relationship between federal government and Indigenous peoples, there has been a long-established lack of communication and understanding, mostly in anthropological fields (Rebardi 5). Congress no longer requires written consultation requests following the 2024 NAGPRA revisions. As a result, institutions have bypassed consultation and stalled requests in the process of doing so (Owens-Barber 30). Moreover, the process of consulting tribes requires sufficient funding, something many state institutions lack (Harms 629).
Lack of Funding and Implementation
Implementing new policy on a nationwide scale is typically a long, complex, and heavily compromised process, impacted by vested interests and lobbying, as well as the appropriations process. To ensure compliance with the NAGPRA, Congress was expected to adequately financially support states as they started to implement new repatriation policies (Colton and Cordova 38). The implementation of the NAGPRA includes the auditing of collections to the U.S Department of the Interior and the National Park Service, something that takes a considerable amount of time and the reconfiguring of finances. The aim of the audits was to distinguish the cultural identity and geographical location of each item or remains, but the process is both a lengthy and a costly one (Trope 7). The National Association of Tribal Historic Preservation Officers (NATHPO) has criticized the NAGPRA for inadequate funding and poor implementation, claiming Congress did not allocate sufficient funding or training for institutions (Harms 608). Chronic underfunding has denied institutions the proper staff, technology, training, and other preservative resources to care for their inventory and evaluate repatriation cases, leaving states to take the initiative to seek federal grants to expedite auditing and assess repatriation cases (Jaffe et al.).
State-led Implementation
The inadequacies of the NAGPRA have led a handful of states to devise their own repatriation approaches. Top among these is California, which enacted the strongest state-led version of the NAGPRA (CalNAGPRA) in 2001, aiming to address the difficulties encountered in the federal law. While CalNAGPRA was criticized by both Indigenous tribes and archeologists for replicating the federal NAGPRA (Hoefert 1), Assembly Bill No. 275, passed in 2020, did much to amend these deficiencies. Specifically, AB 275 broadened the definition of a state tribe, expanded what is deemed as customary knowledge or oral documentation, specified ambiguous terms, and promoted consultation (Hoefert 2). The revisions have eased tribal frustrations about the repatriation of remains and amplified Indigenous voices throughout the process (Hoefert 47). Importantly, the prioritization of Indigenous involvement has allowed the CalNAGPRA to fulfill the intent of the national framework. For example, AB 275 has required Californian universities to designate more liaisons for consultation with Indigenous tribes in the state, appoint members nominated by Native American Heritage Commission to university NAGPRA committees, establish procedures to handle disputes, and implement statewide policies, all of which will benefit both federally and non-federally recognized tribes (CalNAGPRA).
Colorado
While only California and Arizona have enacted state versions of the NAGPRA, Colorado has sought to realize the intent of the federal law through enhanced governmental-tribal relationships. Colorado prioritizes consultation to ensure tribal voices are empowered in repatriation efforts. By re-working reburial laws, consulting, sharing cultural liaisons, and more, tribes have noted the state’s continued collaborative efforts (History Colorado). Additionally, Colorado has worked with Indigenous tribes to close the NAGPRA’s loopholes through History Colorado, the state’s official historical organization (History Colorado). In 2008, for example, History Colorado in collaboration with the Colorado Commission for Indian Affairs and the Southern Ute Tribe and Mountain Ute Tribe developed the “Process for Consultation, Transfer and Reburial of Culturally Unidentifiable Native American Human Remains and Associated Funerary Objects Originating from State and Private Lands” (History Colorado). This process emphasizes ethical handling of “culturally unidentifiable” remains and objects and its reburial on lands in close proximation of its original discovery. Furthermore, the process also handles the difficulties and protocols associated with private and state lands. Additionally, the removal of Indigenous remains upon discovery must have a representative from one of the Colorado Ute tribes present during (History Colorado).
Colorado has also made serious efforts to fund repatriation processes, including winning numerous program grants under Section 10 of NAGPRA. In 1994, four years after the NAGPRA was enacted, the federal government accepted that the initial legislation placed a substantial financial burden on the states and opened a competitive, project-based grant program (Harms 14). Colorado was amongst the first states to seek federal assistance to properly implement NAGPRA protocols, and across the next two decades, the state received over $2,000,000 in grants (Harms 14). This money has improved consultation, inventory audit, inspection, and overall repatriations, with state institutions and museums reporting that 88% of 4,100 Indigenous remains and objects have been made available for repatriation (Propublica). Figure 1 below summarizes the results of these efforts.
Texas Case Study
As noted above, deficiencies in the federal NAGPRA include ambiguous terms, exclusion of non-federally recognized tribes, private land protocols, inadequate funding, improper implementation, and a lack of respect for Indigenous laws and practices. While Colorado and California have addressed these shortcomings legislatively and non-legislatively respectively, Texas has chosen not to do so for several reasons.
Private lands
Perhaps not surprising given the Lone Star state’s long-established focus on private landownership rights, Texas has no legislation to address the absence of private land protocols in the NAGPRA. In 1969, the state passed the Texas Antiquities Code to protect archeological and historical sites, but this applies exclusively to public lands. The Antiquities Code of Texas is enforced by the Texas historical Commission (THC), which manages historical sites and oversees consultations with Indigenous tribes (THC). According to THC protocols, the state does not have a legal obligation to consult with Indigenous tribes upon discovery of remains or objects on private lands. Instead, authority and discretion rests with the landowner (THC). Although the NAGPRA and Antiquities Code of Texas require consultation for discoveries on federal and state lands respectively, Jessica Ulmer, Head of Compliance for NAGPRA at The University of Texas at Austin’s Archeological Research Laboratory (TARL), underscored the dilemma for Indigenous peoples in a personal interview: “Texas does not really have formal requirements for consultation” for private lands, and for state lands “’consultation’ is not defined” (J. Ulmer, personal communication, November 4, 2025). Consequently, reburial becomes more difficult or impossible as they have no established consultation or relationship with the private landowner involved (Harms 606). It is worth noting that Indigenous peoples often bring a different perspective to land ownership, further complicating these disputes (Harms 608).
State legislative efforts
Just two bills pertaining to repatriation have been proposed since the 70th Texas Legislature in 1987 and neither survived the legislative process. House Bill 321/Senate Bill 609 proposed by Representative Guerrero and Senator Santiesteban sought to implement penalties for violations against Indigenous remains or objects. When asked about the bill’s failure, Jessica Ulmer commented, “I imagine it is pretty hard to have really strict penalties…they made it vague on purpose to protect the privacy of institutions and expedite the process of compliance” (J. Ulmer, personal communication, November 4, 2025). Additionally, the Review Committee for the NAGPRA is deficient in enforcement. In Jessica Ulmer’s words, “they [the Review Committee] can tell you that is not in good faith or out of compliance of NAGPRA, but they cannot enforce the suggestions made in the Review Committee…there is not much they can do other than write strongly worded letters” (J. Ulmer, personal communication, November 4, 2025). In 2023, House Bill 5248 proposed by Representative Zwiener during the 88th legislature recommended the creation of a task force to provide suggestions for Indigenous repatriation held by the state’s agencies and establishments. As with the prior attempt decades earlier, HB 5248 failed to pass and was left pending in committee. While most bills fail in Texas’ biennial legislative sessions, the lack of interest in Indigenous concerns or appetite for repatriation is starkly evident by the infrequency of attempted reform.
Regulatory challenges for Texas Tribes
NAGPRA’s 2024 regulatory revisions eased repatriation procedural requirements for already federally recognized tribes but simultaneously tightened the definition of eligible claimants. In so doing, it weakened the inclusion and bargaining power of state-recognized tribes and undercut institutions willingness to consult them in the repatriation process. Jessica Ulmer explains the critically important barrier to attaining recognition, “there is a lot of checkboxes to go off but essentially you have to be established since the year 1900…it can take decades to get all the paperwork needed” (J. Ulmer, personal communication, November 4, 2025). While the strict standards approach filters the out “pretender” tribes, it also prohibits repatriation to Indigenous people without federal recognition and complicates the recognition process. While non-federally recognized groups in Texas have advocated for a category of state recognition, the 2024 revisions reaffirm the primacy of federally recognized tribes. As Jessica Ulmer explains, the 2024 changes “have made it much more difficult for states like California who have that accredited process in their version of NAGPRA and made it possible to repatriate to state recognized tribes and now that directly clashes with NAGPRA” (J. Ulmer, personal communication, November 4, 2025). Additionally, the Texas legislature has resisted the establishment of state recognized tribes and the 2024 regulations have only solidified that resistance. Non-federally recognized groups in Texas may have documented proof up until a certain year after 1900 and, therefore, find themselves hindered by the process (J. Ulmer, personal communication, November 4, 2025). Moreover, the lack of documentation is itself often a function of Texas’ history of pushing out Indigenous groups.
Perhaps the most significant element of the 2024 NAGPRA revisions for Texas and nationally pertained to the category title “culturally unidentifiable” (CUI), which previously allowed institutions to retain items indefinitely. Prior to the revisions, institutions would categorize remains as CUI in which “you needed very minimal information, essentially the MNI (Minimum Number of Individuals), county, institution, and that was it” (J. Ulmer, personal communication, November 4, 2025). In Texas, many institutions would categorize their inventory as CUI due to the dispersion of Texas Indigenous peoples. The 2024 revisions required institutions to actively determine the affiliation of thousands of remains and sacred items within a specified time frame and apply updated standards for doing so. Before the revisions, anthropologists and archeologists in Texas used DNA analysis to determine affiliation (Owens-Barber 32). Now, institutions must now gain permission, consult, and research with federally recognized tribes beforehand. The “Duty of Care” in the 2024 revisions stipulates the ethical handling of remains, permission for activities that may incur damage, and consultation with Indigenous peoples, all of which take years of effort, patience, cooperation, and ample resources of funding. While the CUI revisions are a significant step forward, they require effort, cooperation, and funding to implement, all of which depend on a political commitment that Texas has yet to show. They also centralize the role of federally recognized tribes as key players to the detriment of other Indigenous peoples.
“Law without Teeth”
As an under-funded mandate, the NAGPRA is commonly referred to as a law without teeth. This is especially true where states have chosen not to supplement the limited federal grants, as in Texas where NAGPRA dedicated state funding is unavailable. Texas has 28 federally recognized tribes linked to its lands, but only three of these are located within state borders. The lack of unified Indigenous voices impedes institutional and tribal ability to fund repatriation and reburial requests. Jessica Ulmer discusses reburial cases, “…no one really has a lot of money, and a lot of the reburial grants actually come from the institutions side. So, you can apply for a reburial grant but, as a state institution, you’re not supposed for to pay outside entities for services unless it’s a contract” (J. Ulmer, personal communication, November 4, 2025). This creates a chaotic legal process between the institution and the tribe that becomes highly variable on a case-by-case basis.
Tribal specific grants for repatriation cases are similarly variable. Because Indigenous tribes were not awarded automatic funding to repatriate the remains and object of their ancestors, there are tribe-specific grants from the National Park Service’s Historic Preservation Fund (HPF). Most tribes have a designated Tribal Historic Preservation Officer (THPO) who takes on the unofficial duties of a NAGPRA liaison. Yet, as Ulmer comments, “they don’t really have the time to write grants, there’s already so much on their plates” (J. Ulmer, personal communication, November 4, 2025). In a personal interview, Ulmer continues to speak about the funds that the Texas THPOs can be granted, “in a recent hearing, one of them [tribes] said the THPO’s office has a budget of $100,000 a year, which is ridiculously low and it comes from a pot that has not changed…when you get new THPOs and federally recognized tribes they all share from the same pot” (J. Ulmer, personal communication, November 4, 2025). While this has created competition among federally-recognized tribes elsewhere, Jessica Ulmer sees the main tensions in Texas as between federally recognized and non-recognized tribes. She summarizes the conflict as follows, “’if you don’t have enough proof [for recognition], it’s like you’re taking away resources from legitimate tribes’ is one of the mindsets that goes through…of course there is always the ‘we-had-to-do-it-so-you-do-too’ kind of thing” (J. Ulmer, personal communication, November 4, 2025). The tension between non-federally recognized and federally recognized tribes only reinforces the added hoops that non-federally recognized tribes must jump through.
Continuing Challenges for Texas Tribes
Talks of Alamo reconstruction in 2014 sparked outrage from the Tap Pilam Coahuiltecan Nation (TPCN), a non-federally recognized tribe in Texas, with over a thousand ancestors buried on the grounds. In what turned into lawsuits, the city denied the TPCN access to the historic site, which had been used for honorary ancestral ceremonies (Colton and Cordova 32). Furthermore, the state denied the TPCN’s appeal to discrimination under the Texas Religious Freedom Restoration Act, stating they lacked recognition as a tribe and, therefore, they were not Indigenous. This case demonstrated the struggles of non-federally recognized tribes and highlighted the gulf between Texas values and Indigenous ceremonies. While both Colorado and California have demonstrated their willingness to incorporate Indigenous customs and laws into state legislation, Texas has shown little interest in bridging the gap.
Reflecting these cultural and political challenges, unsuccessful repatriation cases continue to be a pattern in Texas. Only 30% of 4,500 remains and object reported by Texas institutions have been made available for repatriation (Propublica 2025). Although Figure 2 below only shows institutions with the largest collections, it exemplifies the pattern seen across Texas. While these numbers are likely to improve given the 2024 NAGPRA revisions regulations, Texas has historically lagged in its efforts to determine cultural affiliation and the catch-up process promises to be a long and challenging one. To make their collections available for return, Texas institutions need to gain funding, consult with tribes, determine cultural affiliation, and process the legal paperwork.
The complexity of the process is well illustrated by a dispute between the Miakan-Garza Band of Coahuiltecans (MGBC) and UT Austin’s Texas Archeological Research Lab (TARL). In 2016, the MGBC requested the remains of three claimed ancestors uncovered over 60 years prior by TARL. In 2020, their request was denied on the grounds that TARL could not establish a connection between the remains and the MGBC (Colton and Cordova 29). After the denial, Dr. Garza, Cultural Preservation Officer of the MGBC, claimed the remains were treated disrespectfully by the institution, that TARL had acted irresponsibly toward remains in the past, and the determination of cultural affiliation from Texas State University implied TARL used improper methods of determination. Chief of Staff Carlos Martinez stated in his letter to Dr. Graza that the specifically requested remains were objected by two federally recognized tribes (the Caddo Nation and the Alabama-Coushatta Tribe of Texas) on the grounds that the territory where they were uncovered overlapped with their geological history. The dispute remains ongoing and the 2024 NAGPRA revisions have yet to change these results.
University of Texas at Austin
As the above case makes clear, repatriation to non-federally recognized tribes in Texas is challenging. It is instructive to examine a leading institution to better understand this complexity and how the repatriation process works. For UT Austin, Jessica Ulmer makes it clear, “my policy is that any time I have a request that comes from the non-federally recognized groups, I just immediately take those requests and consult with federally recognized tribes…that is the best possibility as of now and wherever is goes it goes” (J. Ulmer, personal communication, November 4, 2025). Essentially, the decision of repatriation relies on the judgment of federally recognized Indigenous groups. When a federally recognized tribe expresses disapproval, the institution must legally prioritize their conclusion.
Ulmer is clear that TARL demonstrates a cooperative and consultative effort with federally recognized tribes. For example, “teaching collections” are comprised of remains from older forensic cold cases in Texas while native remains fall under the NAGPRA and tribal law (J. Ulmer, personal communication, November 4, 2025). To ethically and legally deal with the remains of native cold cases, TARL practices group consultations where Ulmer invites tribes that have expressed a desire to participate in a zoom meeting. She elaborates, “Once we give the updates and presentations, I will create a breakout room that’s for the tribes only so that they can have a tribal caucus to discuss what they are not comfortable with in front of someone from outside of the tribe” (J. Ulmer, personal communication, November 4, 2025). These meetings facilitate a space where tribes can decide how to move forward while continuing to respect each other’s customs and beliefs. Ulmer also conducts one-on-one consultations with tribes that feel more comfortable doing so, stating that, “any communication helps cut down on any of the conflict” (J. Ulmer, personal communication, November 4, 2025). To meet the Duty of Care requirements, Ulmer stresses the importance of communicating which requests are feasible and which are not. Sharing the limitations that come with both space and staff restrictions exhibits TARL’s desired transparency, which Ulmer believes aids understanding and negotiation.
Beyond tribal negotiations, the repatriation process also involves legal complexities. Before TARL can approve repatriation cases, the legal team of UT Austin must sign off. According to Ms. Ulmer, “legal has a completely different view in sight of things they are working with because their whole purpose is to protect the university and its properties…NAGPRA is considered a property law which adds additional complications” (J. Ulmer, personal communication, November 4, 2025). The legal team is responsible for representing the interests of the university, and to take the “property” of the university (that remains and sacred object are legally considered), infringes upon that interest. Consequently, to complete repatriation whilst protecting university interests, the legal team and TARL must negotiate a solution. Ulmer illustrates the minutia of these negotiations by pointing to UT’s legal team arguing that the boxes and bags holding the remains being UT property and, therefore, cannot be repatriated with the remains. Ulmer states, “So, we had to explain any material that touches human remains cannot be reused as it is a biohazard and there is also trace amounts of the ancestor on there that the tribes would like back” (J. Ulmer, personal communication, November 4, 2025). Overall, while the process is a detailed and complex one, Ulmer believes TARL’s increasing transparency is improving tribal relationships.
Conclusions
The federal NAGPRA of 1990 and the 2024 regulatory revisions have provided an important national framework for the repatriation of sacred Indigenous remains and objects. However, important insufficiencies in the legislation continue to undermine the ethos of the repatriation process, leaving states considerable discretion over whether to craft a more proactive path forward. California and Colorado have taken the initiative to do so in their own distinct ways. Texas has not. California has enacted the CalNAGPRA to prioritize Indigenous voices, expanding recognition to non-federally recognized tribes—a process ironically rendered more difficult by the 2024 federal revisions. CalNAGPRA has also given meaning to ambiguous terminology, validated customary knowledge and evidence, and promoted consultation with its tribes. Colorado by contrast, has taken proactive measures via the state historical society. Long before the 2024 federal revisions, History Colorado adopted protocols to handle “culturally unidentifiable” remains in an ethical manner and has developed protocols for private land disputes.
Texas is not alone in eschewing state action, but as one of the largest holders of archaeological artifacts in the United States, it is the most significant state to do so. Several factors explain its reticence, including a cultural emphasis on private property, fiscal conservativism, a political distaste for regulation, and the fact that the state has just three federally recognized tribes, in turn lowering political pressure on elected officials and holding institutions. Additionally, much of Texas land is in private hands, rendering the NAGPRA a less effective framework in a state that prioritizes property rights. The result is that federally supported institutions engage in a game of compliance rather than embrace a culture of repatriation. For sure, UT Austin’s TARL is working proactively to implement the revised regulatory procedures and further transparency during repatriation cases. Moreover, the state does have general cemetery and antiquities laws. However, it has shown little appetite for spearheading further protections for its Indigenous communities.
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