Native American Graves Protection and Repatriation Act Regulations-Disposition of Culturally Unidentifiable Human Remains, 58582-58590 [E7-20209]

Agencies

• Office of the Secretary
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 199 (Tuesday, October 16, 2007)]
[Proposed Rules]
[Pages 58582-58590]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-2]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

RIN 1024-AD68


Native American Graves Protection and Repatriation Act 
Regulations--Disposition of Culturally Unidentifiable Human Remains

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule specifies procedures for the disposition of 
culturally unidentifiable human remains in the possession or control of 
museums or Federal agencies, thus implementing the Native American 
Graves Protection and Repatriation Act of 1990 (Act). Publication of 
this document is intended to solicit comments from Indian tribes, 
Native Hawaiian organizations, museums, Federal agencies, and members 
of the public before its publication as a final rule.

DATES: Written comments will be accepted through January 14, 2008.

ADDRESSES: You may submit comments, identified by the number RIN 1024-
AD68, by any of the following methods:

--Federal rulemaking portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
--Mail to: Dr. Sherry Hutt, Manager, National NAGPRA Program, National 
Park Service, Docket No. 1024-AC84, 1849 C Street, NW., (2253), 
Washington, DC 20240.
--Hand deliver to: Dr. Sherry Hutt, 1201 Eye Street, NW., 8th floor, 
Washington, DC.

FOR FURTHER INFORMATION CONTACT: Dr. Sherry Hutt, Manager, National 
NAGPRA Program, National Park Service, 1201 Eye Street, NW., 8th floor, 
Washington, DC 20240, telephone (202) 354-1479, facsimile (202) 371-
5197.

SUPPLEMENTARY INFORMATION:

Authority

    Sections 8(c)(5) and (c)(7) of the Native American Graves 
Protection and Repatriation Act (Act) (25 U.S.C. 3001 et seq.) gives 
the Review Committee the responsibility for recommending specific 
actions for developing a process for disposition of culturally 
unidentifiable human remains and consulting with the Secretary of the 
Interior (Secretary) in the development of regulations to carry out the 
Act. Section 13 charges the Secretary with promulgating regulations to 
carry out the Act. Section 5(1) of the Archaeological Resources 
Protection Act (16 U.S.C. 470aa-mm) authorizes the Secretary to 
promulgate regulations providing for the ultimate disposition of 
archaeological resources and other resources removed under the Act of 
June 27, 1960 (the Reservoir Salvage Act, as amended, also known as the 
Archeological and Historic Preservation Act of 1974, 16 U.S.C. 469-
469c-1) or the Act of June 8, 1906 (the Antiquities Act of 1906, as 
amended, 16 U.S.C. 431-433).

Background

    On November 16, 1990, President George Bush signed into law the 
Native American Graves Protection and Repatriation Act. The Act 
addresses the rights of lineal descendants, Indian tribes, and Native 
Hawaiian organizations to certain Native American human remains, 
funerary objects, sacred objects, and objects of cultural patrimony. 
Section 8 of the Act established the Native American Graves Protection 
and Repatriation Review Committee of seven private citizens to monitor 
and review implementation of the inventory and identification process 
and repatriation activities required under the Act. Section 8(c)(5) 
charged the Review Committee with compiling an inventory of culturally 
unidentifiable human remains that are in the possession or control of 
museums or Federal agencies and recommending specific actions for 
developing a process for disposition of such remains. The inventory of 
culturally unidentifiable human remains and recommendations regarding 
their disposition relate only to human remains in the possession or 
control of museums and Federal agencies and not to human remains that 
are excavated or removed from Federal or tribal lands after November 
16, 1990 under section 3 of the Act.
    Current regulations implementing the Act require museums and 
Federal agencies to retain possession of culturally unidentifiable 
human remains until final regulations are promulgated or the Secretary 
recommends otherwise. The disposition of funerary objects associated 
with culturally unidentifiable human remains is not specifically 
addressed in the Act. During deliberations over recommendations 
regarding the disposition of culturally unidentifiable human remains, 
the Review Committee considered the intrinsic relationship of human 
remains to associated funerary objects and concluded that nothing in 
the Act precludes the voluntary disposition of these cultural items by 
museums or Federal agencies to the extent allowable by Federal law.
    In 1994, the Review Committee began to formally solicit comments 
from Indian tribes, Native Hawaiian organizations, museums, and Federal 
agencies regarding the disposition of culturally unidentifiable human 
remains. The Review Committee developed its first draft of 
recommendations regarding the disposition of culturally unidentifiable 
human remains and associated funerary objects in February 1995. These 
draft recommendations were published for

[[Page 58583]]

public comment in the Federal Register (60 FR 32163, June 20, 1995). 
Copies of the draft were sent to over 3,000 Indian tribes, Native 
Hawaiian organizations, museums, Federal agencies, national museum and 
scientific organizations, and members of the public. One hundred and 
twenty-nine written comments were received during the 100-day comment 
period, representing 16 Indian tribes, 49 museums, 12 Federal agencies, 
3 national museum and scientific organizations, and 58 members of the 
public.
    Based on the comments received, a revised draft of recommendations 
regarding the disposition of culturally unidentifiable human remains 
and associated funerary objects was developed in June 1996. The revised 
draft recommendations were published for public comment in the Federal 
Register (61 FR 43071, August 20, 1996). Copies of the draft were sent 
to over 3,000 Indian tribes, Native Hawaiian organizations, museums, 
Federal agencies, national museum and scientific organizations, and 
members of the public. Forty-nine written comments were received during 
the 45-day comment period, representing 4 Indian tribes, 26 museums, 4 
Federal agencies, 6 national museum and scientific organizations, and 
11 members of the public.
    In June 1998, the Review Committee developed draft principles of 
agreement regarding the disposition of culturally unidentifiable human 
remains. The draft principles of agreement were published for public 
comment in the Federal Register on two different occasions (64 FR 
33502, June 23, 1999 and 64 FR 41135, July 29, 1999). Copies of the 
draft were sent to over 3,000 Indian tribes, Native Hawaiian 
organizations, museums, Federal agencies, national museum and 
scientific organizations, and members of the public. Eighty-nine 
written comments were received during the 70-day comment period, 
representing 13 Indian tribes, 39 museums, 4 Federal agencies, 5 
national museum and scientific organizations, and 22 members of the 
public.
    While the Review Committee developed the draft of general 
recommendations, a separate procedure was developed for consideration 
of case-by-case requests for disposition of culturally unidentifiable 
human remains and associated funerary objects based on a recommendation 
from the Secretary [43 CFR 10.9(e)(6)]. Forty-one case-by-case requests 
were received and all were referred to the Review Committee for 
consideration. Twenty-six requests were made by museums and 15 requests 
were made by Federal agencies. The Review Committee considered each 
request as part of its regular meeting agenda and recommendations were 
referred to the National Park Service for action. Responses to each 
requesting museum or Federal agency were signed by a representative of 
the Secretary as required by Sec.  10.9(e)(6).
    Of the 41 requests, the Secretary's representative recommended 
disposition of culturally unidentifiable human remains in 33 cases. 
Nine of the 33 recommended dispositions were to Indian tribes based on 
the recognition of their aboriginal occupation of the area in which the 
human remains and associated funerary objects were recovered, 8 were to 
coalitions including federally recognized Indian tribes, 11 were to 
non-federally recognized Indian groups, and 5 were to be completed 
according to applicable State law.
    Eleven of the 33 recommended dispositions also included funerary 
objects that were associated with the culturally unidentifiable human 
remains. In response to one of the requests, the representative of the 
Secretary provided a recommendation on February 7, 2000 that stated 
``the statutory language neither requires nor precludes the committee 
from making recommendations regarding the disposition of funerary 
objects associated with culturally unidentifiable human remains. While 
regulatory provisions require museums or federal agencies to retain 
possession of culturally unidentifiable human remains until final 
regulations are promulgated or the Secretary recommends otherwise, 
these provisions do not apply to associated funerary objects. A museum 
may choose to repatriate such items. However, a Notice of Inventory 
Completion must be published in the Federal Register before the 
disposition.''
    Of the 41 requests made regarding the disposition of culturally 
unidentifiable human remains, in eight cases the Secretary's 
representative recommended that the culturally unidentifiable human 
remains be retained pending completion of the inventory required under 
43 CFR 10.9.
    After circulating three drafts for public comment and considering 
the specific case-by-case requests, the Review Committee developed its 
final recommendations regarding the disposition of culturally 
unidentifiable human remains in May 2000. The recommendations were 
published on June 8, 2000 (65 FR 36462).
    The Review Committee recognized that the legislative intent of the 
Act is expressed by its title: the protection of Native American graves 
and repatriation [of Native American cultural items]. Specifically, the 
Review Committee found that the Act requires (1) the disposition of all 
Native American human remains and cultural items excavated on or 
removed from Federal lands after November 16, 1990, with disposition 
based on linkages of lineal descent, tribal land, cultural affiliation, 
or aboriginal land; (2) the repatriation of culturally affiliated human 
remains and associated funerary objects in Federal agency and museum 
collections, if requested by a culturally affiliated Indian tribe or 
Native Hawaiian organization, with repatriation based on linkages of 
lineal descent or cultural affiliation; and (3) the development of 
regulations for the disposition of unclaimed human remains and objects 
and culturally unidentifiable human remains in Federal agency and 
museum collections. Although the treatment of funerary objects 
associated with culturally unidentifiable human remains is not 
addressed in the Act, the Review Committee recognized that the Act does 
not prohibit the voluntary repatriation of these cultural items by 
museums or Federal agencies to the extent allowed by Federal law.
    Museums or Federal agencies must determine whether Native American 
human remains in their control are related to lineal descendants, 
culturally affiliated with a present-day federally recognized Indian 
tribe or Native Hawaiian organization, or are culturally 
unidentifiable. This determination must be made in consultation with 
all appropriate Indian tribes or Native Hawaiian organizations, as 
described in 43 CFR 10.9(b), and through a good faith evaluation of all 
relevant and available documentation. A determination that human 
remains are culturally unidentifiable may change to a determination of 
cultural affiliation as additional information becomes available 
through ongoing consultation or any other source. The Review Committee 
finds no statute of limitations in the Act for lineal descendants, 
Indian tribes, or Native Hawaiian organizations to make a claim, and a 
museum or Federal agency's determination that human remains are 
culturally unidentifiable may occur for different reasons.

Categories of Culturally Unidentifiable Human Remains

    The Review Committee's recommendations identified three categories 
of culturally unidentifiable

[[Page 58584]]

human remains: (1) those for which cultural affiliation could be 
determined but that the appropriate Native American group is not 
federally recognized as an Indian tribe; (2) those that represent an 
identifiable earlier group, but for which no present-day Indian tribe 
has been identified by the museum or Federal agency; and (3) those for 
which the museum or Federal agency believes that evidence is 
insufficient to identify an earlier group.

Documentation

    Documentation is required for inventory completion and 
determinations of cultural affiliation by museums or Federal agencies 
and should be prepared in accordance with the standards outlined in 43 
CFR 10.9(c) and 10.14. Documentation must occur within the context of 
the consultation process. The Review Committee proposed that additional 
study of culturally unidentifiable human remains and associated 
funerary objects is not prohibited if the appropriate parties in 
consultation agree that such study is appropriate. The Review Committee 
confirmed that once inventories have been completed, the Act may not be 
used to require new scientific studies or other means of acquiring or 
preserving additional scientific information from human remains and 
associated funerary objects.

Disposition

    The Review Committee proposed three guidelines for the disposition 
of culturally unidentifiable human remains.
    1. Respect must be the foundation for any disposition of culturally 
unidentifiable human remains. Human remains determined to be culturally 
unidentifiable are no less deserving of respect than those for which 
cultural affiliation has been established.
    2. Because there may be different reasons for human remains being 
unclaimed or determined to be culturally unidentifiable, there may be 
more than one appropriate disposition solution. Examples of appropriate 
disposition solutions include the return of human remains that are 
determined to be culturally unidentifiable that were removed from 
tribal land; human remains that are determined to be culturally 
unidentifiable that were recovered from the aboriginal land of an 
Indian tribe; or human remains that are culturally unidentifiable but 
for which there is a relationship of shared group identity with a non-
federally recognized Native American group.
    3. A museum or Federal agency may also seek the recommendation of 
the Review Committee for the disposition of culturally unidentifiable 
human remains based on criteria other than those listed above.
    The Review Committee proposed two models for determining the 
disposition of culturally unidentifiable human remains. The first model 
involved the joint recommendations by claimants and museums or Federal 
agencies. Disposition of culturally unidentifiable human remains may 
proceed in those cases where all the relevant parties have agreed in 
writing that the inventory requirements have been met and that the 
Review Committee's guidelines for respectful treatment, recognition of 
alternative disposition solutions, and the use of the Review Committee 
for disposition recommendations have been followed. The Review 
Committee noted that it had already recommended disposition of 
culturally unidentifiable human remains in cases that met the three 
guidelines.
    The second model involved the joint recommendations of regional 
consortia. The Review Committee recognized that historical and cultural 
factors, and therefore issues concerning the definition and disposition 
of culturally unidentifiable human remains, vary significantly across 
the United States. Therefore, the Review Committee recommended that 
regional solutions be developed that would best fit regional 
circumstances. The Review Committee recommended a process in which 
Indian tribes and Native Hawaiian organizations define regions within 
which the most appropriate solutions for disposition of culturally 
unidentifiable human remains might be determined. Within each region, 
the appropriate Federal agencies, museums, Indian tribes, and Native 
Hawaiian organizations would consult together and propose a framework 
and schedule to develop and implement the most appropriate model for 
their region. Dispositions agreed upon through regional consultation 
meetings would be made by the appropriate Federal agencies, museums, 
and Indian tribes. If a disposition agreement could not be reached 
through regional consultation meetings, the matter could be brought 
before the Review Committee. Any proposed regional disposition 
agreement would have to meet the Review Committee's three guidelines 
for disposition.

Inventory

    Section 8(c)(5) of the Act directs the Review Committee to compile 
an inventory of culturally unidentifiable human remains that are in the 
possession or control of museums or Federal agencies. The scope of this 
inventory was expanded to include both culturally unidentifiable human 
remains and funerary objects with which they are associated by Sec.  
10.9(d)(2).
    The Review Committee's inventory summarizes information provided by 
museums or Federal agencies in their inventories. This includes:
    1. The number of human remains and associated funerary objects 
under their control;
    2. State and county from which the human remains and associated 
funerary objects were removed;
    3. The earlier group to which the human remains and associated 
funerary objects are thought to have belonged;
    4. The date range during which the human remains and associated 
funerary objects are thought to have been originally interred; and
    5. The date when custody of the human remains and associated 
funerary objects was either transferred to an Indian tribe, Native 
Hawaiian organization, or non-federally recognized Indian group or they 
were reinterred.
    Section 8(g)(2) of the Act requires the Secretary to provide 
reasonable administrative and staff support necessary for the 
deliberations of the Review Committee. One of those duties has been 
compilation of the Review Committee's inventory of culturally 
unidentifiable human remains and associated funerary objects. The 
Review Committee's inventory was compiled from the inventories 
submitted by museums or Federal agencies under 43 CFR 10.9(e)(6). Each 
museum and Federal agency had an opportunity to verify the Review 
Committee's inventory of culturally unidentifiable human remains and 
associated funerary objects from their institution for verification 
before submission of the final inventory to the Review Committee. The 
Review Committee's inventory is posted at https://www.cr.nps.gov/nagpra/
onlinedb/index.htm and presently includes information on 118,348 human 
remains and 846,187 associated funerary objects from 614 museums or 
Federal agencies.

Section-by-Section Analysis

Section 10.1 Purpose and Applicability

    Paragraph 10.1(b)(3) provides clarification to Federal agencies as 
to when a determination constitutes final agency action as used in the 
Administrative Procedure Act (5 U.S.C. 704).

[[Page 58585]]

Section 10.2 Definitions

    Section 10.2 provides definitions of terms used throughout Part 10.
    Paragraph 10.2(e) provides additional clarification to the 
definition of cultural affiliation. Human remains and associated 
funerary objects in museum or Federal agency collections for which no 
lineal descendant or culturally affiliated Indian tribe or Native 
Hawaiian organization was determined are referred to as culturally 
unidentifiable.
    Paragraph 10.2(g)(5) provides a definition of disposition and 
identifies procedures to effectuate this process in various situations.

Section 10.9 Inventories

    Paragraph 10.9(e)(2) details the contents of notices of inventory 
completion. Additional text to clarify that such notices include 
information regarding culturally unidentifiable human remains and 
associated funerary objects to be transferred or reinterred under 43 
CFR 10.11 is proposed for addition.
    Paragraph 10.9(e)(5) directs museums or Federal agencies to supply 
additional available documentation upon the request of an Indian tribe 
or Native Hawaiian organization. Additional text to clarify that such 
documentation shall be considered a public record subject to disclosure 
except when exempted under applicable law, such as the Freedom of 
Information Act and the Privacy Act, is proposed for addition. Further, 
as required by section 5(B)(2) (Inventory For Human Remains and 
Associated Funerary Objects) of the Act, neither a request for such 
documentation nor any provisions of the regulations shall be construed 
as authorizing the initiation of new scientific studies of such human 
remains and associated funerary objects or other means of acquiring or 
preserving additional scientific information from such remains and 
objects.
    Paragraph 10.9(e)(6) is rewritten to remove the last three 
sentences that provide direction to museums and Federal agencies 
pending promulgation of Sec.  10.11.

Section 10.11 Disposition of Culturally Unidentifiable Human Remains

    This new section fulfills the Secretary's responsibility to 
promulgate regulations under sections 8(c)(5) and 13 of the Act 
regarding the process for the disposition of culturally unidentifiable 
human remains. The Department of the Interior developed this section 
after full and careful consideration of the Review Committee's 
recommendations and other relevant legislation and policy.
    Paragraph (b) concerns consultation. The drafters recognize that as 
a result of consultation a museum or Federal agency may revise its 
determination regarding the cultural affiliation of human remains and 
associated funerary objects. Notification and repatriation of human 
remains and associated funerary objects that are determined to be 
culturally affiliated with an Indian tribe or Native Hawaiian 
organization must be completed following provisions of 43 CFR 10.9(e) 
and 10.10(b).
    Paragraph (c) establishes three choices for the disposition of 
culturally unidentifiable human remains. The processes outlined in 
paragraphs (c)(1) and (c)(2) are mandatory. The process outlined in 
paragraph (c)(3) and (c)(4) are voluntary but recommended.
    Paragraph (c)(1) requires a museum or Federal agency to offer to 
transfer control of culturally unidentifiable human remains for which 
it cannot prove right of possession to Indian tribes or Native Hawaiian 
organizations according to three priority categories outlined below.
    A museum or Federal agency can obtain right of possession to Native 
American human remains by several means. Section 2(13) of the Act 
stipulates that the original acquisition of Native American human 
remains and associated funerary objects that were excavated, exhumed, 
or otherwise obtained with full knowledge and consent of the next of 
kin or the official governing body of the appropriate culturally 
affiliated Indian tribe or Native Hawaiian organization is deemed to 
give right of possession to those remains. Further, section 3(e) of the 
Act states that nothing in section 3 of the Act shall prevent the 
governing body of an Indian tribe or Native Hawaiian organization from 
expressly relinquishing control over any Native American human remains, 
or title to or control over any funerary object or sacred object.
    The priority ownership categories in Section 3(a) of the Act served 
as a reasonable model for the proposed priority categories for 
disposition of culturally unidentifiable human remains. Control of 
human remains excavated or discovered under section 3 of the Act can be 
based on lineal descent, tribal land, aboriginal land, and cultural 
relationship, as well as cultural affiliation. However, it was 
necessary to make several changes to the priority ownership categories 
in Section 3(a) of the Act to accommodate the disposition of culturally 
unidentifiable human remains. The drafters request comments from Indian 
tribes, Native Hawaiian organizations, museums, Federal agencies, and 
other interested persons regarding the appropriateness of using the 
priority structure in determining the disposition of culturally 
unidentifiable human remains.
    Paragraph (c)(1)(i) stipulates that first priority would be to the 
Indian tribe or Native Hawaiian organization on whose tribal land, at 
the time of recovery, the human remains were recovered. This category 
parallels the provisions in section 3(a)(2) of the Act regarding the 
disposition of cultural items from tribal land after November 16, 1990. 
This provision would apply to sites considered to be tribal land at the 
time the original excavation or removal occurred.
    Paragraph (c)(1)(ii) stipulates that second priority would be to 
the Indian tribe or tribes that are recognized as aboriginally 
occupying the area in which the human remains were recovered. 
Aboriginal occupation may be recognized by a final judgment of the 
Indian Claims Commission or the United States Court of Claims, or by 
treaty, act of Congress, or executive order. This category is based on 
the provisions of section 3(a)(2)(C) of the Act regarding the 
disposition of cultural items from Federal or tribal land after 
November 16, 1990. The Act specifically identified final judgments of 
the Indian Claims Commission and the United States Court of Claims as 
two sources of information regarding aboriginal occupation. Certain 
treaties, acts of Congress, and executive orders also identify areas 
aboriginally occupied by Indian tribes. Maps of the territory ceded by 
all United States treaties were originally published in the 18th Annual 
Report of the Bureau of American Ethnology to the Secretary of the 
Smithsonian Institution, 1896-1897 [Government Printing Office, 1899] 
and are available online at https://memory.loc.gov/ammem/amlaw/lwss-
ilc.html. Treaties signed before the establishment of the United States 
between the various colonial governments and Indian tribes may also be 
used to identify areas aboriginally occupied by Indian tribes.
    Paragraph (c)(1)(iii) stipulates that third priority would be to 
Indian tribes and Native Hawaiian organizations with a cultural 
relationship to the region from which the human remains were removed 
or, for human remains lacking geographic affiliation, a cultural 
relationship to the region in which the museum or Federal agency with 
control over the human remains is located. This category is similar to 
provisions of section 3(a)(2)(C)(2) of the Act regarding

[[Page 58586]]

the disposition of cultural items from Federal or tribal land after 
November 16, 1990. However, while the provisions of section 
3(a)(2)(C)(2) require a cultural relationship between an Indian tribe 
and cultural items, this paragraph requires a cultural relationship 
between an Indian tribe or Native Hawaiian organization and the region 
from which the human remains either were removed or are currently 
located. Nearly 70 percent of the 110,565 culturally unidentifiable 
human remains for which geographical information was provided were 
recovered from the same state in which the possessing museum or Federal 
agency is located. The majority of the 7,783 human remains lacking 
provenience information are likewise presumed to have been recovered 
from the immediate vicinity of the repository in which they are 
currently located.
    Paragraph (c)(1)(iv) stipulates that if it can be shown by a 
preponderance of the evidence that a different Indian tribe or Native 
Hawaiian organization has a stronger cultural relationship with the 
human remains than the Indian tribe or Native Hawaiian organization 
specified in (c)(1)(ii) or (c)(1)(iii), the Indian tribe or Native 
Hawaiian organization that has the strongest demonstrated cultural 
relationship would have priority, if upon notice, such Indian tribe or 
Native Hawaiian organization states such a claim. This provision is 
similar to the caveat in section 3(a)(2)(C)(2) of the Act regarding the 
disposition of cultural items from Federal or tribal land after 
November 16, 1990. The drafters request comments from Indian tribes, 
Native Hawaiian organizations, museums, Federal agencies, and other 
interested persons regarding the meaning of the term ``cultural 
relationship.''
    Paragraph (c)(2) provides notice that any disposition of human 
remains excavated or removed from ``Indian lands'' as defined by the 
Archaeological Resources Protection Act (ARPA) must also comply with 
the provisions of that statute and its implementing regulations. 
``Indian lands'' means ``lands of Indian tribes, or Indian individuals, 
which are either held in trust by the United States or subject to a 
restriction against alienation imposed by the United States, except for 
any subsurface interests in lands not owned or controlled by an Indian 
tribe or Indian individual'' [16 U.S.C. 470bb(4)].
    Paragraph (c)(3) establishes a process for the voluntary transfer 
of control of culturally unidentifiable human remains that are not 
transferred under provisions of paragraph (c)(1) to a non-federally 
recognized Indian group, or reinterment of culturally unidentifiable 
human remains according to State or other law. Such dispositions may be 
completed upon receipt of a recommendation from the Secretary or 
authorized representative. The Secretary will only consider 
recommending such dispositions with the written consent of all Indian 
tribes identified in paragraph (c)(1) and (c)(2), in order to ensure 
that the rights of federally recognized Indian tribes and tribal 
members are protected. The Secretary's recommendation regarding the 
disposition of culturally unidentifiable human remains or associated 
funerary objects to a non-federally recognized Indian group does not 
indicate Federal recognition of the group's status as an Indian tribe 
or the existence of a government-to-government relationship.
    Paragraph (c)(4) stipulates that a museum or Federal agency may 
transfer control of funerary objects that are associated with 
culturally unidentifiable human remains following the provisions of 
paragraphs (c)(1), (c)(2), and (c)(3). This provision is consistent 
with customary religious and spiritual beliefs that link the 
disposition of funerary objects with the human remains with which they 
were intentionally placed. The Secretary recommends that museums and 
Federal agencies transfer all funerary objects associated with 
culturally unidentifiable human remains unless such a transfer is 
otherwise prohibited under law.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and has not been reviewed 
by the Office of Management and Budget under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights or 
obligations of their recipients.
    (4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The requirements to consult with Indian tribes and Native Hawaiian 
organizations are minimal and do not constitute a significant economic 
burden. This rule will require the disposition of only those Native 
American human remains for which the controlling entity cannot prove 
right of possession [25 U.S.C. 3005].

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule will not (1) 
Have an annual effect on the economy of $100 million or more; (2) cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, local or tribal government agencies, or 
geographic regions; or (3) have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments, or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. This rule will require the disposition of only those 
Native American human remains for which the controlling museum or 
Federal agency cannot prove right of possession [25 U.S.C. 3005(c)].

Federalism (Executive Order 12612)

    In accordance with Executive Order 12612, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. A Federalism Assessment is not required.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and does not meet the requirements of sections 3(a) and 
3(b) of the order.

[[Page 58587]]

Paperwork Reduction Act

    The collection of information contained in this rule has been 
submitted to the Office of Management and Budget for approval as 
required by 44 U.S.C. 3501 et seq. The collection of this information 
will not be required until approved by the Office of Management and 
Budget. Public reporting burden for this collection of information is 
expected to average 20 hours for the exchange of summary or inventory 
information between a museum and an Indian tribe and 6 hours per 
response for the notification to the Secretary, including time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the collected 
information. Send comments regarding this burden estimate or any other 
aspects of this collection of information, including suggestions for 
reducing the burden, to Information Collection Officer, Attn: Docket 
No. 1024-AC84, National Park Service, Department of Interior Building, 
1849 C Street, NW., Room 3317, Washington, DC 20240, and the Office of 
Management and Budget, Office of Information and Regulatory Affairs, 
Attention: Desk Officer for the Department of the Interior, Washington, 
DC 20503.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment and can be Categorically 
Excluded under 516 DM 2, Appendix 1.10, ``Policies, directives, 
regulations, and guidelines that are of an administrative, financial, 
legal, technical, or procedural nature and whose environmental effects 
are too broad, speculative, or conjectural to lend themselves to 
meaningful analysis and will later be subject to the NEPA process, 
either collectively or case-by-case.''

Government-to-Government Relationship With Indian Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government to Government Relations with Native American Tribal 
Governments'' [59 FR 22951], Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments'' [65 FR 218], and 512 DM 
2, ``Departmental Responsibilities for Indian Trust Resources,'' this 
rule has a potential effect on federally recognized Indian tribes. The 
proposed rule was developed in consultation with the Native American 
Graves Protection and Repatriation Review Committee, which includes 
members nominated by Indian tribes. The Review Committee consulted with 
Indian tribes in the development of the Review Committee's 
recommendations regarding the disposition of culturally unidentifiable 
human remains that form the basis of this proposed rule. The Review 
Committee consulted with tribal representatives regarding its 
recommendations on February 16-18, 1995 in Los Angeles, CA; June 9-11, 
1996 in Billings, MT; June 25-27, 1998 in Portland, OR; and May 2-4, 
2000 in Juneau, AK. Tribal representatives were also consulted 
regarding draft text for these regulations at Review Committee meetings 
on May 2-4, 2000 in Juneau, AK; May 31-June 2, 2002 in Tulsa, OK; and 
November 8-9, 2002 in Seattle, WA.

Clarity of Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.

Drafting Information

    This proposed rule was prepared by Dr. C. Timothy McKeown in 
consultation with the Native American Graves Protection and 
Repatriation Review Committee as directed by section 8(c)(7) of the 
Act, and Jennifer Lee and Jerry Case, WASO Regulations Program, 
National Park Service.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule to the address noted at the 
beginning of this rulemaking. We also request comments from Indian 
tribes, Native Hawaiian organizations, museums, Federal agencies, and 
other interested persons regarding:
    1. The meaning of the term ``cultural relationship;'' and
    2. The appropriateness of using the priority structure in 
determining the disposition of culturally unidentifiable human remains.
    Copies of this proposed rule may be obtained by submitting a 
request to the Manager, National NAGPRA program, National Park Service, 
at the address noted at the beginning of this rulemaking. Commentors 
wishing the National Park Service to acknowledge receipt of their 
comments must submit those comments with a self-addressed, stamped 
postcard on which the following statement is made: ``Comments to Docket 
No 1024-AD68.'' The postcard will be date stamped and returned to the 
commentor.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 43 CFR Part 10

    Administrative practice and procedure, Graves, Hawaiian Natives, 
Historic preservation, Indians-claims, Museums, Reporting and record 
keeping requirements, Repatriation.
    In consideration of the foregoing, 43 CFR Part 10 is proposed to be 
amended as follows:

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION 
REGULATIONS

    1. The authority for Part 10 continues to read as follows:

    Authority: 25 U.S.C. 3001 et seq., 16 U.S.C. 470dd (2).

    2. In Sec.  10.1 revise paragraph (b)(3) to read as follows:


Sec.  10.1  Purpose and applicability.

* * * * *
    (b) * * *
    (3) Throughout this part are decision points which determine how 
this part applies in particular circumstances, e.g., a decision as to 
whether a museum ``controls'' human remains and cultural objects within 
the meaning of the regulations, or, a decision as to whether

[[Page 58588]]

an object is a ``human remain,'' ``funerary object,'' ``sacred 
object,'' or ``object of cultural patrimony'' within the meaning of the 
regulations. Any final determination making the Act or this part 
inapplicable is subject to review under section 15 of the Act. With 
respect to Federal agencies, the final denial of a request of a lineal 
descendant, Indian tribe, or Native Hawaiian organization for the 
repatriation or disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony brought under, and in 
compliance with, the Act and this part constitutes a final agency 
action under the Administrative Procedure Act (5 U.S.C. 704).
    3. Amend Sec.  10.2 by revising paragraph (e) and adding paragraph 
(g)(5) to read as follows:


Sec.  10.2  Definitions.

* * * * *
    (e)(1) What is cultural affiliation? Cultural affiliation means 
that there is a relationship of shared group identity which can be 
reasonably traced historically or prehistorically between members of a 
present-day Indian tribe or Native Hawaiian organization and an 
identifiable earlier group. Cultural affiliation is established when 
the preponderance of the evidence--based on geographical, kinship, 
biological, archeological, anthropological, linguistic, folklore, oral 
tradition, historical evidence, or other information or expert 
opinion--reasonably leads to such a conclusion.
    (2) What does culturally unidentifiable mean? Culturally 
unidentifiable refers to human remains and associated funerary objects 
in museum or Federal agency collections for which no lineal descendant 
or culturally affiliated Indian tribe or Native Hawaiian organization 
has been identified.
* * * * *
    (g) * * *
    (5) Disposition means the transfer of control over Native American 
human remains, funerary objects, sacred objects, and objects of 
cultural patrimony by a museum or Federal agency under this part. This 
part establishes disposition procedures for several different 
situations:
    (i) Custody of human remains, funerary objects, sacred objects, and 
objects of cultural patrimony excavated intentionally from, or 
discovered inadvertently on Federal or tribal lands after November 16, 
1990 is established under Sec.  10.6;
    (ii) Repatriation of human remains, funerary objects, sacred 
objects, and objects of cultural patrimony in museum and Federal agency 
collections to a lineal descendant or culturally affiliated Indian 
tribe or Native Hawaiian organization is established under Sec.  10.10.
    (iii) Disposition of culturally unidentifiable human remains, with 
or without associated funerary objects, in museum or Federal agency 
collections is established under Sec.  10.11.
    4. Amend 10.9 by revising paragraphs (e)(2), (5), and (6) as 
follows:


Sec.  10.9  Inventories.

* * * * *
    (e) * * *
    (2) The notice of inventory completion must:
    (i) Summarize the contents of the inventory in sufficient detail so 
as to enable the recipients to determine their interest in claiming the 
inventoried items;
    (ii) Identify each particular set of human remains or each 
associated funerary object and the circumstances surrounding its 
acquisition;
    (iii) Describe the human remains or associated funerary objects 
that are clearly identifiable as to cultural affiliation;
    (iv) Describe the human remains or associated funerary objects that 
are not clearly identifiable as culturally affiliated with an Indian 
tribe or Native Hawaiian organization, but that are likely to be 
culturally affiliated with a particular Indian tribe or Native Hawaiian 
organization given the totality of circumstances surrounding 
acquisition of the human remains or associated objects; and
    (v) Describe those human remains, with or without associated 
funerary objects, that are culturally unidentifiable but that may be 
transferred under Sec.  10.11.
    (3) * * *
    (4) * * *
    (5) Upon request by an Indian tribe or Native Hawaiian organization 
that has received or should have received a notice and inventory under 
paragraphs (e)(1) and (e)(2) of this section, a museum or Federal 
agency must supply additional available documentation.
    (i) For purposes of this paragraph, ``documentation'' means a 
summary of existing museum or Federal agency records including 
inventories or catalogues, relevant studies, or other pertinent data 
for the limited purpose of determining the geographical origin, 
cultural affiliation, and basic facts surrounding the acquisition and 
accession of human remains and associated funerary objects.
    (ii) Documentation supplied under this paragraph is considered a 
public record except as exempted under relevant laws. Neither a request 
for documentation nor any other provisions of this part may be 
construed as authorizing either:
    (A) The initiation of new scientific studies of the human remains 
and associated funerary objects; or
    (B) Other means of acquiring or preserving additional scientific 
information from such remains and objects.
    (6) If the museum or Federal agency official determines that the 
museum or Federal agency has possession of or control over human 
remains, with or without associated funerary objects, that cannot be 
identified as affiliated with a lineal descendent, Indian tribes, or 
Native Hawaiian organizations, the museum or Federal agency must 
provide the Manager, National NAGPRA Program notice of this result and 
a copy of the list of such culturally unidentifiable human remains and 
any associated funerary objects. The Manager, National NAGPRA Program 
must make this information available to members of the Review 
Committee. Culturally unidentifiable human remains, with or without 
associated funerary objects, are subject to disposition under Sec.  
10.11.
* * * * *
    5. Add Sec.  10.11 to read as follows:


Sec.  10.11  Disposition of culturally unidentifiable human remains.

    (a) General. This section implements section 8 (c)(5) of the Act.
    (b) Consultation. (1) The museum or Federal agency official must 
initiate consultation regarding the disposition of culturally 
unidentifiable human remains and associated funerary objects:
    (i) Within ninety (90) days of receipt of a request from an Indian 
tribe or Native Hawaiian organization to transfer control of culturally 
unidentifiable human remains and associated funerary objects; or
    (ii) Absent such a request, before any offer to transfer control of 
culturally unidentifiable human remains and associated funerary 
objects.
    (2) The museum or Federal agency official must initiate 
consultation with officials and traditional religious leaders of all 
Indian tribes and Native Hawaiian organizations:
    (i) From whose tribal lands, at the time of the removal, the human 
remains and associated funerary objects were removed;
    (ii) From whose aboriginal lands the human remains and associated 
funerary objects were removed. Aboriginal occupation may be recognized 
by a final judgment of the Indian Claims

[[Page 58589]]

Commission or the United States Court of Claims, or a treaty, Act of 
Congress, or Executive Order; and
    (iii)(A) With a cultural relationship to the region from which the 
human remains and associated funerary objects were removed; or
    (B) In the case of human remains and associated funerary objects 
lacking geographic affiliation, with a cultural relationship to the 
region in which the museum or Federal agency repository is located.
    (3) The museum or Federal agency official must provide the 
following information in writing to all Indian tribes and Native 
Hawaiian organizations with which the museum or Federal agency 
consults:
    (i) A list of all Indian tribes and Native Hawaiian organizations 
that are being, or have been, consulted regarding the particular human 
remains and associated funerary objects;
    (ii) A list of any non-federally recognized Indian groups that are 
known to have a relationship of shared group identity with the 
particular human remains and associated funerary objects; and
    (iii) An offer to provide a copy of the original inventory and 
additional documentation regarding the particular human remains and 
associated funerary objects.
    (4) During consultation, museum and Federal agency officials must 
request, as appropriate, the following information from Indian tribes 
and Native Hawaiian organizations:
    (i) The name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains and 
associated funerary objects;
    (ii) The names and appropriate methods to contact any traditional 
religious leaders who should be consulted regarding the human remains 
and associated funerary objects;
    (iii) Temporal and/or geographic criteria that the museum or 
Federal agency should use to identify groups of human remains and 
associated funerary objects for consultation;
    (iv) The names and addresses of other Indian tribes, Native 
Hawaiian organizations, or non-federally recognized Indian groups that 
should be included in the consultations; and
    (v) A schedule and process for consultation.
    (5) During consultation, the museum or Federal agency official 
should seek to develop a proposed disposition for culturally 
unidentifiable human remains and associated funerary objects that is 
mutually agreeable to the parties specified in paragraph (b)(2) of this 
section. The agreement must be consistent with this part.
    (6) If consultation results in a determination that human remains 
and associated funerary objects previously determined to be culturally 
unidentifiable are actually culturally affiliated with an Indian tribe 
or Native Hawaiian organization, the notification and repatriation of 
the human remains and associated funerary objects must be completed as 
required by Sec.  10.9 (e) and Sec.  10.10 (b).
    (c) Disposition of culturally unidentifiable human remains and 
associated funerary objects. (1) A museum or Federal agency that is 
unable to prove that it has right of possession, as defined at Sec.  
10.10 (a)(2), to culturally unidentifiable human remains must offer to 
transfer control of the human remains to Indian tribes and Native 
Hawaiian organizations in the following priority order:
    (i) The Indian tribe or Native Hawaiian organization from whose 
tribal land, at the time of the excavation or removal, the human 
remains were removed;
    (ii) The Indian tribe or tribes that are recognized as aboriginally 
occupying the area from which the human remains were removed. 
Aboriginal occupation may be recognized by a final judgment of the 
Indian Claims Commission or the United States Court of Claims, or a 
treaty, Act of Congress, or Executive Order; or
    (iii) The Indian tribe and Native Hawaiian organization with:
    (A) A cultural relationship to the region from which the human 
remains were removed, or
    (B) For human remains lacking geographic affiliation, a cultural 
relationship to the region in which the museum or Federal agency with 
control over the human remains is located.
    (iv) If it can be shown by a preponderance of the evidence that 
another Indian tribe or Native Hawaiian organization has a stronger 
cultural relationship with the human remains than an entity specified 
in paragraph (c)(1)(ii) or (c)(1)(iii) of this section, the Indian 
tribe or Native Hawaiian organization that has the strongest 
demonstrated cultural relationship, if upon notice, the Indian tribe or 
Native Hawaiian organization claims the human remains.
    (2) Any disposition of human remains excavated or removed from 
``Indian lands'' as defined by the Archaeological Resources Protection 
Act (16 U.S.C. 470bb (4)) must also comply with the provisions of that 
statute and its implementing regulations.
    (3) If none of the Indian tribes or Native Hawaiian organizations 
identified in paragraph (c)(1) of this section agrees to accept 
control, a museum or Federal agency may, upon receiving a 
recommendation from the Secretary or authorized representative:
    (i) Transfer control of culturally unidentifiable human remains to 
a non-federally recognized Indian group, or
    (ii) Reinter culturally unidentifiable human remains according to 
State or other law.
    (4) The Secretary may make a recommendation under paragraph (c)(3) 
of this section only with the written consent of all Indian tribes and 
Native Hawaiian organizations stipulated in paragraphs (c)(1) and 
(c)(2) of this section.
    (5) A museum or Federal agency may also transfer control of 
funerary objects that are associated with culturally unidentifiable 
human remains. The Secretary recommends that museums and Federal 
agencies engage in such transfers whenever Federal or State law would 
not otherwise preclude them.
    (d) Notification. (1) Disposition of culturally unidentifiable 
human remains and associated funerary objects under paragraph (c) may 
not occur until at least thirty (30) days after publication of a notice 
of inventory completion in the Federal Register as described in Sec.  
10.9.
    (2) Within 30 days of publishing the notice of inventory 
completion, the National NAGPRA Program manager must:
    (i) Revise the Review Committee inventory of culturally 
unidentifiable human remains and associated funerary objects to 
indicate the notice's publication; and
    (ii) Make the revised Review Committee inventory of culturally 
unidentifiable human remains and associated funerary objects accessible 
to Indian tribes, Native Hawaiian organizations, non-federally 
recognized Indian groups, museums, and Federal agencies.
    (e) Disputes. Any person who wishes to contest actions taken by 
museums or Federal agencies regarding the disposition of culturally 
unidentifiable human remains and associated funerary objects is 
encouraged to do so through informal negotiations to achieve a fair 
resolution of the matter. The Review Committee may facilitate the 
informal resolution of such disputes that are not resolved by good 
faith negotiation under Sec.  10.17. In addition, the United States 
District Courts have jurisdiction over any action brought that alleges 
a violation of the Act.
    6. Amend Sec.  10.12 by:

[[Page 58590]]

    A. Revising paragraphs (b)(ii), (iii), and (iv), and
    B. Adding paragraph (b)(ix) to read as follows:


Sec.  10.12  Civil penalties.

* * * * *
    (b) * * *
    (1) * * *
    (ii) After November 16, 1993, or a date specified under Sec.  
10.13, whichever deadline is applicable, has not completed summaries as 
required by the Act; or
    (iii) After November 16, 1995, or a date specified under Sec.  
10.13, or the date specified in an extension issued by the Secretary, 
whichever deadline is applicable, has not completed inventories as 
required by the Act; or
    (iv) After May 16, 1996, or 6 months after completion of an 
inventory under an extension issued by the Secretary, or 6 months after 
the date specified under Sec.  10.13, whichever deadline is applicable, 
has not notified culturally affiliated Indian tribes and Native 
Hawaiian organizations; or
* * * * *
    (ix) Does not offer to transfer control of culturally 
unidentifiable human remains for which it cannot prove right of 
possession under Sec.  10.11.
* * * * *

    Dated: October 2, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-20209 Filed 10-15-07; 8:45 am]
BILLING CODE 4310-70-P