Native American Graves Protection and Repatriation Act Systematic Process for Disposition and Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony, 63202-63260 [2022-22376]
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Proposed Rules
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
[NPS–WASO–NAGPRA–33190;
PPWOCRADN0–PCU00RP14.550000]
RIN 1024–AE19
Native American Graves Protection
and Repatriation Act Systematic
Process for Disposition and
Repatriation of Native American
Human Remains, Funerary Objects,
Sacred Objects, and Objects of
Cultural Patrimony
Office of the Secretary, Interior.
Proposed rule.
AGENCY:
ACTION:
The Department of the
Interior proposes to revise regulations to
improve implementation of the Native
American Graves Protection and
Repatriation Act of 1990. These
proposed regulations would clarify and
improve upon the systematic process for
the disposition and repatriation of
Native American human remains,
funerary objects, sacred objects, or
objects of cultural patrimony. The
proposed changes would provide a stepby-step roadmap for museums and
Federal agencies to comply with
requirements within specific timelines
to facilitate the required disposition and
repatriation. The proposed changes
would describe the processes in
accessible language with clear timelines
and terms, reduce ambiguity, and
improve efficiency in meeting the
requirements. In addition, the proposed
changes emphasize consultation in
every step and defer to the customs,
traditions, and Native American
traditional knowledge of lineal
descendants, Indian Tribes, and Native
Hawaiian organizations.
DATES: Comments on the proposed rule
must be received by 11:59 p.m. EDT on
January 17, 2023.
Federal Advisory Committee Act
Meetings: The Native American Graves
Protection and Repatriation Review
Committee (Review Committee) will
meet virtually during the comment
period. The National Park Service will
announce the exact dates and times of
the Review Committee meetings in the
Federal Register, once scheduled. These
meetings will be open to the public and
there will be time for public comment.
Tribal Consultation Sessions: The
Department of the Interior will conduct
consultation sessions with Indian Tribes
virtually during the comment period.
The Department of the Interior will
announce the exact meeting dates and
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SUMMARY:
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times of the consultation sessions, once
scheduled, on https://www.doi.gov/
priorities/tribal-consultation/upcomingtribal-consultations and by letter to
Tribal leaders.
Native Hawaiian Consultation
Sessions: The Department of the Interior
will conduct consultation sessions with
the Native Hawaiian Community
virtually during the comment period.
The Department of the Interior’s Office
of Native Hawaiian Relations will invite
the Native Hawaiian Community to
participate and provide the exact
meeting dates and times of the
consultation sessions, once scheduled.
Public Listening Sessions: The
Department of the Interior will host
virtual listening sessions during the
comment period. The National Park
Service will announce the exact dates
and times of the listening sessions, once
scheduled, on https://www.nps.gov/
orgs/1335/events.htm. These meetings
will be open to the public.
Information Collection Requirements:
If you wish to comment on the
information collection requirements in
this proposed rule, please note that the
Office of Management and Budget
(OMB) is required to decide concerning
the collection of information contained
in this proposed rule between 30 and 60
days after publication of this proposed
rule in the Federal Register. Therefore,
comments should be submitted to OMB
by December 19, 2022.
ADDRESSES: You may submit written
comments, identified by the Regulation
Identifier Number (RIN) 1024–AE19, by
any one of the following methods:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Mail to: National NAGPRA
Program, National Park Service, 1849 C
Street NW, Mail Stop 7360, Washington
DC 20240. Attn: Melanie O’Brien,
Manager NAGPRA Rule Comments.
Instructions: All submissions received
must include the words ‘‘National Park
Service’’ or ‘‘NPS’’ and the RIN (1024–
AE19) for this rulemaking. Comments
received may be posted without change
to https://www.regulations.gov,
including any personal information
provided. Written comments will not be
accepted by fax, email, or in any way
other than those specified above. The
NPS will not accept bulk comments in
any format (hard copy or electronic)
submitted on behalf of others.
Oral Comments: Register for
opportunities to make oral comments at:
https://www.nps.gov/orgs/1335/
events.htm. The consultation sessions
listed above are for federally recognized
Indian Tribes and for representatives of
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the Native Hawaiian Community. All
oral comments by other members of the
public must be made during specified
sessions of the Review Committee
meetings or public listening sessions.
Oral comments will be recorded and
submitted for the record and oral
commenters should include a written
copy of their statement prior to the
public meeting. Time for oral comments
may be limited.
Information Collection Requirements:
Written comments and suggestions on
the information collection requirements
should be submitted by the date
specified above in DATES to https://
www.reginfo.gov/public/do/PRAMain.
Find this particular information
collection by selecting ‘‘Currently under
Review—Open for Public Comments’’ or
by using the search function. Please
provide a copy of your comments to the
NPS Information Collection Clearance
Officer (ADIR–ICCO), 12201 Sunrise
Valley Drive, Reston, VA 20191. Please
include ‘‘1024–AE19’’ in the subject line
of your comments.
FOR FURTHER INFORMATION CONTACT:
Melanie O’Brien, National NAGPRA
Program, National Park Service, (202)
354–2201, melanie_o’brien@nps.gov.
Questions regarding the NPS’s
information collection request may be
submitted to Phadrea Ponds, NPS
Information Collection Clearance
Officer, phadrea_ponds@nps.gov. Please
include ‘‘1024–AE19’’ in the subject line
of your email request.
SUPPLEMENTARY INFORMATION:
I. Background
II. Previous Federal Actions
III. Development of the Proposed Rule
A. Cultural Affiliation
B. Consultation
C. Discovery on Federal or Tribal Lands
D. Comprehensive Agreements
E. Control
F. Funerary Objects
G. Stay of Repatriation for Scientific Study
H. Summaries
I. Acknowledged and Adjudicated
Aboriginal Land
J. Federal Lands and Boarding Schools
IV. Overview of Major Proposed Changes
V. Section-by-Section Summary of Proposed
Changes
A. Authority
B. Section 10.1 Introduction
C. Section 10.2 Definitions for This Part
D. Section 10.3 Cultural and
Geographical Affiliation
E. Section 10.4 General
F. Section 10.5 Discovery
G. Section 10.6 Excavation
H. Section 10.7 Disposition
I. Section 10.8 General
J. Section 10.9 Repatriation of
Unassociated Funerary Objects, Sacred
Objects, and Objects of Cultural
Patrimony
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K. Section 10.10 Repatriation of Human
Remains and Associated Funerary
Objects
L. Section 10.11 Civil Penalties
M. Section 10.12 Review Committee
VI. Public Engagement and Request for
Comments
VII. Compliance With Other Laws, Executive
Orders and Department Policy
I. Background
The Native American Graves
Protection and Repatriation Act of 1990
(NAGPRA or Act) (25 U.S.C. 3001 et
seq.) requires the disposition and
repatriation of Native American human
remains, funerary objects, sacred
objects, and objects of cultural
patrimony to lineal descendants, Indian
Tribes, and Native Hawaiian
organizations (NHOs). The Act governs
the disposition of human remains or
cultural items removed from Federal or
Tribal lands (25 U.S.C. 3002); requires
the inventory of human remains and
associated funerary objects in holdings
or collections (25 U.S.C. 3003); requires
a summary of unassociated funerary
objects, sacred objects, and objects of
cultural patrimony in holdings or
collections (25 U.S.C. 3004); governs the
repatriation of human remains or
cultural items in holdings or collections
(25 U.S.C. 3005); creates a Federal
advisory committee to monitor and
review the inventory and identification
process and repatriation activities (25
U.S.C. 3006); and authorizes civil
penalties for museums that fail to
comply with the Act (25 U.S.C. 3007).
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II. Previous Federal Actions
The Secretary of the Interior
(Secretary) is responsible for
implementation of the Act, including
the issuance of regulations
implementing and interpreting its
provisions (25 U.S.C. 3011). The
regulations are codified at 43 CFR part
10. The Department of the Interior
(Department) published the initial rule
to implement NAGPRA in 1995 at 60 FR
62134 (December 4, 1995).
Subsequently, the Department
published additional rules concerning:
• Civil penalties, at 68 FR 16354
(April 3, 2003);
• Future applicability, at 72 FR 13184
(March 21, 2007);
• Culturally unidentifiable human
remains, at 75 FR 12378 (March 15,
2010);
• Technical amendments, at 78 FR
27078 (May 9, 2013);
• The definition of ‘‘Indian tribe,’’ at
79 FR 33482 (June 11, 2014); and
• Disposition of unclaimed cultural
items, at 80 FR 68465 (November 5,
2015).
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The Department also publishes
annual adjustments to civil penalties for
inflation under the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015.
III. Development of the Proposed Rule
As part of the Department’s regulatory
review in accordance with the
Regulatory Flexibility Act and E.O.
13563, the Department regularly seeks
public input on how we may best
achieve regulatory ends. Over the past
12 years, parties affected by the
definitions and procedures established
in 43 CFR part 10 have commented, in
various forums, that some of the
regulatory provisions should be
amended to improve implementation of
the Act.
The following paragraphs detail the
degree of consultation, coordination,
and collaboration in this review, and the
nature of public comments that the
Department received from lineal
descendants, Indian Tribes, NHOs,
Federal agencies, museums, national
museum and scientific organizations,
Indian Tribal historic preservation
organizations, the Review Committee,
and interested members of the public.
From March to July of 2011, the
Department consulted with Indian
Tribes, NHOs, the Review Committee,
Federal agencies, and the public on full
revisions to the regulations
implementing the Act. This effort
resulted from the Department’s
publication of a final rule for the
disposition of culturally unidentifiable
human remains in March of 2010 (75 FR
12378) which solicited comments on the
final rule. Many of those comments
requested broader changes to the entire
regulatory process. In April 2012 (77 FR
12378), the Department published a
proposed rule to revise the regulations
for accuracy and consistency based on
some of those comments. Additional
comments on that proposed rule
requested changes that went beyond the
scope of accuracy and consistency.
Since 2012, the Department has heard
repeatedly from Indian Tribes, NHOs,
museums, and Federal agencies on the
implementation of the Act through the
regulations. From 2012 to 2019 at 21
meetings of the Review Committee,
public commenters have highlighted
concerns with the regulations or
challenges in implementing its
procedures. The Review Committee has
heard frequently that the regulations
themselves pose barriers to successful
and expedient repatriation.
As a result of previous consultation,
public comment, and input from the
Review Committee, the Department
developed a draft text of regulatory
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revisions and on July 8, 2021, provided
Indian Tribes and NHOs with an
invitation to consult on the draft text.
Along with the draft text, the
Department provided a summary of the
2011 consultation with Indian Tribes
and NHOs and how the draft text was
responsive to that input. The
Department hosted consultation
sessions with Indian Tribes on August
9, 13, and 16, 2021, and with NHOs on
August 17, 2021. In addition, the
Department accepted written input until
September 30, 2021. In total, we
received 71 individual comment letters,
which when combined with oral
comments from consultation sessions,
yielded over 700 specific comments on
sections of the draft text.
The Department reviewed each
comment provided during consultation
and in writing and, wherever possible,
adjusted the proposed regulations to
address them. In a separate document,
the Department has provided a
summary of each comment and specific
detailed responses. An overview of the
major comments received is provided
here, and specific adjustments made to
the proposed regulations in response to
comments are noted throughout Part V.
Section-by-Section Summary of
Proposed Changes.
A. Cultural Affiliation
We received a total of 179 comments
on the definitions in the draft text of
‘‘cultural affiliation’’ and ‘‘geographical
affiliation’’ and on the section for
establishing cultural affiliation. Some of
these comments requested an alternative
process be developed utilizing the
Secretary and the Review Committee to
facilitate repatriation of human remains
currently labeled as ‘‘culturally
unidentifiable.’’ These same comments
requested we strike most of the section
on cultural affiliation, citing to the
language in the Act (25 U.S.C.
3003(d)(2)(C) and 3005(a)(4)). Most
comments focused on clarifying that one
type of information was sufficient for
finding cultural affiliation, especially
geographic information. Some
comments requested prioritizing the list
of information or giving more weight to
certain lines of information. Several
comments suggested adopting language
from the California statute on deference
to traditional Native American
knowledge as expert opinion. We
received many supportive comments on
the addition of multiple cultural
affiliations and closest cultural
affiliation.
In response, the Department proposes
to define a new term, ‘‘affiliation,’’ in
the proposed regulations and to
combine the process for identifying
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cultural and geographical affiliation into
a single section. The Department also
proposes to define Native American
traditional knowledge which is referred
to throughout the proposed revision in
identifying affiliation and cultural items
and in conducting consultation. In
response to several comments, the
Department considered how an
alternative process might work,
considering the legal limitations on the
Secretary and the Review Committee
under the Act. The roles of the Secretary
and the Review Committee are advisory
only in this part of the repatriation
process, and an alternative process
limited by that role seems overly
complicated and intrusive rather than
helpful or expeditious.
See Part V. Section-by-Section
Summary of Proposed Changes, C.
Section 10.2 Definitions for this part
and D. Section 10.3 Cultural and
Geographical affiliation.
B. Consultation
We received a total of 115 comments
on the term ‘‘consultation’’ and the
related regulatory provisions. Nearly all
comments appreciated the definition,
but some comments suggested aligning
it with definitions found in 36 CFR part
800, Executive Order 13175, or the U.N.
Declaration on the Rights of Indigenous
Peoples. Some comments requested the
definition make clear consultation is
more than a procedural step and that
consultation must be a meaningful,
responsive, and accountable process.
Several comments questioned the
requirement for Indian Tribes and NHOs
to make written requests to consult.
In response, the Department proposes
to define ‘‘consultation’’ to seek
consensus and to require a record of
consultation that explains, if applicable,
why consensus or agreement could not
be achieved. The requirement for a
written request to consult (which can
include email) is necessary to establish
a required timeline for responding to a
request.
See Part V. Section-by-Section
Summary of Proposed Changes, C.
Section 10.2 Definitions for this part,
Plan of Action in E. Section 10.4
General, and Require that Consultation
Seek Consensus, in J. Section 10.9
Repatriation of unassociated funerary
objects, sacred objects, and objects of
cultural patrimony and K. Section 10.10
Repatriation of human remains and
associated funerary objects.
C. Discovery on Federal or Tribal Lands
We received more than 100 comments
on the draft text for discoveries on
Federal or Tribal lands. Most of the
comments were directed at two issues—
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(1) notification or consultation with
Indian Tribes or NHOs when a
discovery occurs, and (2) the timelines
for action by the appropriate official
after a discovery. The comments
recommended that the requirements of
the existing regulations at § 10.4 be
reinstated, specifically, immediate
telephone notification and written
confirmation by the person who makes
the discovery. Many comments
expressed concern over the draft text
paragraph on evaluating the potential
for an excavation.
In response, the Department proposes
to require written documentation
(which can include email but not text
messages) of a discovery within 24
hours. The Department proposes
additional timelines in this section to
ensure adequate time for consultation, a
plan of action, and securing, protecting,
monitoring, or, if required, excavation of
the discovery.
See Part V. Section-by-Section
Summary of Proposed Changes, F.
Section 10.5 Discovery.
D. Comprehensive Agreements
We received 66 comments on the draft
text on comprehensive agreements. The
majority of comments requested plans of
action be reinstated, and many
comments remarked on the utility of a
plan of action in responding to
discoveries or excavations and
promoting consultation and
coordination between land managers
and Indian Tribes. A few comments
requested changes to provide for
immediate reburial of human remains or
cultural items without any procedural
requirements that might delay a
reburial. A few comments requested
tribal preference be incorporated into
both the plan of action and
comprehensive agreements.
In response, the Department proposes
to move the requirement for a plan of
action in the existing regulations at
§ 10.5 to the beginning of the subpart,
and provide the requirements, in three
separate steps, for a required plan of
action before a planned activity,
including an excavation, or after a
discovery.
See Part V. Section-by-Section
Summary of Proposed Changes, E.
Section 10.4 General and references in
F. Section 10.5 Discovery and G. Section
10.6 Excavation.
E. Control
We received a total of 68 comments
on the term ‘‘control’’ as defined in the
draft text. Many comments requested it
be replaced with the statutory term
‘‘possession or control.’’ Other
comments requested removing the use
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of ‘‘legal interest’’ from the definition, as
the Act does not recognize a museum or
Federal agency has a lawful interest in
human remains or cultural items other
than the ‘‘right of possession.’’ A few
comments suggested museums and
Federal agencies should be jointly and
severally liable for compliance with
NAGPRA’s inventory, summary, and
repatriation obligations. The same
comments requested the removal of the
new term ‘‘custody.’’
In response, the Department proposes
to define the term as ‘‘possession or
control’’ as used in the Act. Further, the
Department has added clarifications to
address how the Act did not intend for
this term to confer any legal rights upon
a Federal agency or museum, but
instead act as an element of
applicability of the Act’s repatriation
provisions. The Department also
proposes other regulatory revisions to
require Federal agencies and museums
to share information and increase efforts
to complete inventories, summaries, and
repatriation of human remains and
cultural items under loan or repository
agreements to other entities.
See Part V. Section-by-Section
Summary of Proposed Changes, C.
Section 10.2 Definitions for this part,
and I. Section 10.8 General.
F. Funerary Object
We received 64 comments on the
definitions of ‘‘funerary object,’’
‘‘associated funerary object,’’ and
‘‘unassociated funerary object.’’ Many
comments requested revisions to require
consultation and include the authority
of Indian Tribes and NHOs in the
definition.
In response, the Department proposes
to clarify long-standing confusion over
the distinction between associated and
unassociated funerary objects. For both
associated and unassociated funerary
objects, broad categorical
identifications, including everything
from a burial site or specific area, may
meet these definitions depending on the
information available and the results of
consultation.
See Part V. Section-by-Section
Summary of Proposed Changes, C.
Section 10.2 Definitions for this part.
G. Stay of Repatriation for a Scientific
Study
We received 55 comments on the draft
text carrying out the provision of the
Act if human remains or cultural items
are indispensable for completion of a
specific scientific study the outcome of
which would be of major benefit to the
United States (25 U.S.C. 3005(b)). Half
of the comments recommended the
provisions should only apply to human
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remains and associated funerary objects,
and not to unassociated funerary
objects, sacred objects, and objects of
cultural patrimony. Other comments
suggested the provisions of the Act were
intended to be limited to studies
ongoing when the Act was passed in
1990. Other comments suggested
clarifying changes.
In response, the Department has
clarified some of the provisions, but has
retained the provisions applying to both
human remains and cultural items as in
the Act (25 U.S.C. 3005(b)). The
recommendation that this provision
apply retroactively runs counter to the
prospective applicability of the Act and
would conflict with the Act.
See Part V. Section-by-Section
Summary of Proposed Changes, J.
Section 10.9 Repatriation of
unassociated funerary objects, sacred
objects, and objects of cultural
patrimony, and K. Section 10.10
Repatriation of human remains and
associated funerary objects.
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H. Summaries
We received 54 comments on the
provision in the draft text requiring that
museums and Federal agencies prepare
and submit a summary of unassociated
funerary objects, sacred objects, and
objects of cultural patrimony in its
holding or collection. Comments
pointed out that the summary is
prepared before consultation and that
Indian Tribes and NHOs are the best
parties to determine whether any item
in a holding or collection fits a
NAGPRA category. Museums and
Federal agencies could potentially use
the draft text requirement to evade
preparing a summary, claiming that they
do not have such objects when they
might.
In response, the Department proposes
to retain language from the existing
regulations in both the opening
paragraph to the section and in the
paragraph on completing a summary.
See Part V. Section-by-Section
Summary of Proposed Changes, J.
Section 10.9 Repatriation of
unassociated funerary objects, sacred
objects, and objects of cultural
patrimony.
I. Acknowledged and Adjudicated
Aboriginal Land
We received 51 comments on the new
terms to replace ‘‘aboriginal land’’ and
‘‘aboriginal occupation.’’ Several
comments appreciated the new
definition of ‘‘acknowledged aboriginal
land’’ and some comments
recommended that ‘‘acknowledged
aboriginal land’’ be used not just in
Subpart C of the regulations, but also in
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Subpart B, either combined with the
definition of ‘‘adjudicated aboriginal
land,’’ or instead of that definition.
Some comments suggested further
clarifying language, including addition
of other sources or changes to the listed
sources. For ‘‘acknowledged aboriginal
land,’’ many comments suggested
changing the first source, ‘‘treaty sent by
the President to the United States
Senate for ratification,’’ to an earlier
stage in the treaty-making process,
while another comment suggested that it
be deleted, since only a ratified treaty is
final and authoritative.
In response, the Department proposes
to add definitions of ‘‘adjudicated
aboriginal land’’ and ‘‘acknowledged
aboriginal land’’ to distinguish the
criteria for a determination of
‘‘aboriginal land’’ under Subpart B and
the Act (25 U.S.C. 3002(a)), on the one
hand, and under Subpart C on the other.
The Department proposes to include
intertribal treaties, diplomatic
agreements, and bilateral accords
between and among Indian Tribes. In
the Act, Congress defined ‘‘the
aboriginal land of some Indian tribe’’ as
‘‘Federal land that is recognized by a
final judgement of the Indian Claims
Commission or the United States Court
of Claims,’’ and we have used that to
define ‘‘adjudicated aboriginal land.’’
The Department can neither add to this
definition nor ignore it, so the
comments requesting a change to the
application or definition of adjudicated
aboriginal land cannot be adopted.
See Part V. Section-by-Section
Summary of Proposed Changes, C.
Section 10.2 Definitions for this part.
J. Federal Lands and Boarding Schools
We received 39 comments on the
definition for ‘‘Federal lands.’’ Several
comments requested the addition of
specific language to provide for
protection and disposition of Native
American children buried at Indian
boarding schools, especially in
circumstances where the land is not or
was not owned or controlled by the U.S.
Government, but the Indian boarding
school was operated by or for the U.S.
Government. Some comments asserted
that the intentional excavation
provisions of NAGPRA (25 U.S.C.
3002(c)) could be used to authorize the
disinterment of Native children from
these cemeteries on Federal or Tribal
lands, and suggested that, for this
purpose, the Department expand the
statutory definition of ‘‘Federal lands’’
in the regulations to include any former
Indian boarding school where any
amount of Federal funding, government
certifications, or permissions were
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granted, regardless of the current
ownership of land.
In response, as discussed in the
Secretarial Memorandum establishing
the Federal Indian Boarding School
Initiative, the Department is committed
to ‘‘address[ing] the intergenerational
impact of Indian Boarding Schools to
shed light on the traumas of the past.’’
The Memorandum identifies the
NAGPRA process as a possible method
for repatriation of some Native
American children. While NAGPRA
does not require a Federal agency to
engage in an intentional excavation of
possible burial sites, (Geronimo v.
Obama, 725 F. Supp. 2d 182, 187, n. 4
(D.D.C. 2010)), we agree with the
comments that the intentional
excavation provisions of NAGPRA
apply to the human remains and
cultural items disinterred from
cemeteries on Federal or Tribal lands.
Congress did not make any distinction
in the Act between excavations from
cemeteries and excavations from other
burial sites on Federal or Tribal lands.
In fact, the definition of ‘‘burial site’’ in
the Act (25 U.S.C. 3001(1)) explicitly
refers to both a ‘‘natural or prepared
physical location.’’ Furthermore, we
agree with some comments that the
excavation provisions of NAGPRA do
not conflict with the opinion of the
United States Court of Appeals for the
Third Circuit in Thorpe v. Borough of
Thorpe, 770 F.3d 255 (3d Cir. 2014),
where the Court ruled that the
repatriation provisions of NAGPRA (25
U.S.C. 3005) did not apply to a
proposed disinterment and repatriation
of human remains. The human remains
at issue in that case, while Native
American, were not located on Federal
or Tribal lands, so the excavation
provisions were not at issue, and were
therefore not addressed by the Court of
Appeals. Thus, on Federal or Tribal
lands, any excavation must comply with
the Act, including the requirements for
consultation with (or consent from) the
appropriate Indian Tribe or NHO (25
U.S.C. 3002(c)) and the order of priority
for disposition of human remains (25
U.S.C. 3002(a)).
Unfortunately, the Department
cannot, however, amend the regulatory
definition of ‘‘Federal lands’’ as the
comments requested. Congress
specifically and explicitly defined
Federal lands based on ownership or
control, not on receipt of Federal funds
(as it did in the definition of a
‘‘museum’’). Thus, ‘‘[w]e have here an
instance where the Congress,
presumably after due consideration, has
indicated by plain language a preference
to pursue its stated goals . . . . In such
case, neither [a] court nor the agency is
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free to ignore the plain meaning of the
statute and to substitute its policy
judgment for that of Congress.’’
Alabama Power Co. v. United States
EPA, 40 F.3d 450, 456 (D.C. Cir. 1994).
See also, United Keetoowah Band of
Cherokee Indians of Okla. v. United
States HUD, 567 F.3d 1235, 1243 (10th
Cir. 2009) (same); Chevron U.S.A. v.
Natural Resources Defense Council, 467
U.S. 837, 842–43 (1984) (‘‘If the intent
of Congress is clear, that is the end of
the matter; for the court, as well as the
agency, must give effect to the
unambiguously expressed intent of
Congress’’). The Department does,
however, encourage the custodians of
records from boarding schools, whether
on Federal or Tribal lands or not, and
the current owners of those boarding
schools and cemeteries, to fully consult
with Indian Tribes and NHOs on
identification, disinterment, and
repatriation of Native American
children. The Department stands ready
to assist Indian Tribes and NHOs in that
process to the fullest extent of its
authority.
Beginning in July 2021, the
Department requested direct input from
the Review Committee on the draft
regulatory text prepared for
consultation. The Review Committee
held 14 meetings with over 50 hours of
meeting time devoted to discussion of
and development of written
recommendations on the draft
regulatory text. The Review Committee
submitted a written recommendations to
the Secretary of the Interior on March
14, 2022, and June 7, 2022. The
Department reviewed these written
recommendations, along with the
minutes and transcripts from the related
public meetings, in preparing the
proposed regulations. The major
comments received related to the
Introductory section (see proposed 10.1)
and the inventory update requirements
in Subpart C—Repatriation of human
remains or cultural items by museums
or Federal agencies (see proposed
10.10(d) and (e)). Additional
recommendations by individual
members of the Review Committee were
also submitted. The Department,
wherever possible, adjusted the
proposed regulations to address the
Review Committee recommendations.
IV. Overview of Major Proposed
Changes
The proposed revisions to these
regulations would streamline
requirements, clarify timelines and
terms, reduce ambiguity, and improve
efficiency in the systematic process for
the disposition and repatriation of
Native American human remains,
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funerary objects, sacred objects, and
objects of cultural patrimony under the
Act. The revisions being proposed today
are intended to make the regulations
more user-friendly and would:
• Reduce the number of sections and
remove duplicative language. Existing
requirements are condensed into a clear,
easy to follow, step-by-step process.
• Correct inaccuracies and
ambiguities in the existing regulations
by using consistent language and clearly
defined terms.
• Create a consistent writing style
with clear, concise headings that
describe each specific regulatory step.
• Clarify when actions are required
by lineal descendants, Indian Tribes,
Native Hawaiian organizations,
museums, and Federal agencies by
using specific timelines and deadlines.
• Provide clear instructions to Indian
Tribes, NHOs, museums, and Federal
agencies for establishing cultural and
geographical affiliation and resolving
competing claims or requests.
The proposed changes in Subpart B—
Protection of Human Remains or
Cultural Items on Federal or Tribal
Lands would:
• Replace the requirement for Federal
agencies to publish two notices in a
newspaper of general circulation for
human remains or cultural items
removed from Federal lands with a
requirement for Federal agencies to
submit one notice to the Manager,
National NAGPRA Program, for
publication in the Federal Register.
• Require certain actions be taken by
Indian Tribes, NHOs, and the State of
Hawai‘i Department of Hawaiian Home
Lands (DHHL) for discoveries or
excavations on Tribal lands, including
responding to a discovery, certifying
that an activity may resume, authorizing
an excavation, and documenting in
writing the disposition of human
remains or cultural items.
• Require Federal agencies and DHHL
on Federal lands in the United States
and Tribal lands in Hawai‘i to develop
a plan of action or comprehensive
agreement, in consultation with lineal
descendants, Indian Tribes, and NHOs,
that includes instructions for protecting,
stabilizing, or covering human remains
or cultural items in situ, if appropriate.
• Clarify that the jurisdiction of a
Federal agency to issue a permit under
Section 4 of the Archaeological
Resources Protection Act (ARPA) for an
excavation is no broader than it is under
ARPA.
The proposed changes in Subpart C—
Museum or Federal Agency Holdings or
Collections would:
• Remove the term ‘‘culturally
unidentifiable’’ (i.e., when cultural
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affiliation cannot be determined for
human remains) and integrate the
concept of repatriation through
geographic origin into the overall
affiliation and inventory process.
• Require repatriation of associated
funerary objects together with human
remains to an Indian Tribe or NHO with
cultural or geographical affiliation.
• Require updated inventories for
human remains and associated funerary
objects previously included in an
inventory but not published in a notice
of inventory completion. For the
updated inventory, the proposed
regulations would require a museum or
Federal agency to initiate consultation,
consult with requesting parties, and
determine if there is a known lineal
descendant or a connection between the
human remains and associated funerary
objects and Indian Tribes or NHOs with
cultural or geographical affiliation.
• Require museums and Federal
agencies to submit a notice of inventory
completion within 6 months of
completing or updating an inventory of
human remains and associated funerary
objects with a known lineal descendant
or a connection to an Indian Tribe or
NHO with cultural or geographical
affiliation.
• Require museums and Federal
agencies to send repatriation statements
to the National NAGPRA Program. In
the existing regulations, museums and
Federal agencies are not required to
report on any actions that occur after the
publication of a notice. The proposed
regulations would require both Federal
agencies and museums to provide the
Manager, National NAGPRA Program,
with a copy of the written statement
completing the repatriation, as
recommended by the Government
Accountability Office in a 2010 report
on the implementation of the Act.
• Require museums to submit a
statement describing holdings or
collections in its custody to the
responsible Federal agency, if known,
and to the Manager, National NAGPRA
Program. If a museum cannot identify a
person, institution, state or local agency,
or Federal agency that likely has
possession or control of the holding or
collection, it must submit a statement to
the Manager, National NAGPRA
Program. In the existing regulations,
museums have no requirement to report
on Federal holdings or collections. The
proposed changes would align with the
Department’s response to the
Government Accountability Office’s
2010 report on the implementation of
the Act.
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V. Section-by-Section Summary of
Proposed Changes
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regulatory requirements and
summarizes the proposed changes.
Table 1 shows how the Department
proposes to reorganize the existing
TABLE 1—SUMMARY OF PROPOSED CHANGES
Existing 43
CFR
section
Proposed 43
CFR section
10.1 .....................
10.15 ...................
10.1
10.2 .....................
10.2
10.14 ...................
10.3
10.2
10.3
10.4
10.5
.....................
.....................
.....................
.....................
10.4
10.4 .....................
10.5
10.3
10.5
10.6
10.7
.....................
.....................
.....................
.....................
10.6
N/A ......................
10.8
10.8 .....................
10.9 .....................
10.10 ...................
10.11 ...................
10.13 ...................
10.9
10.10
10.11 ...................
10.10
10.12 ...................
10.11
10.16 ...................
10.17 ...................
10.12
10.7
Summary of proposed changes
• Adds paragraphs on Accountability, Duty of care, Delivery of written documents, and Deadlines and
timelines.
• Informs parties of the result in failing to claim or request human remains or cultural items prior to disposition or repatriation.
• Clarifies final agency action in a specific paragraph.
• Revises definitions for consistency and to reduce ambiguities.
• Adds new terms to clarify requirements.
• Removes obsolete terms.
• Implements Congressional intent by defining ‘‘affiliation’’ as a connection between human remains or cultural items and an Indian Tribe or NHO. Affiliation is established by identifying cultural or geographical
affiliation.
• Adds new paragraphs to assist when there are multiple Indian Tribes or NHOs with affiliation.
• Provides a general overview to the responsibilities of Indian Tribes, NHOs, Federal agencies, and DHHL
under the Act.
• Outlines the requirements in three steps for a plan of action, developed in consultation with Indian Tribes
and NHOs.
• Consolidates compliance options for land management activities that might result in a discovery or excavation of human remains or cultural items.
• Reduces and streamlines requirements for discoveries.
• Provides a clear, documented process and timeline for resuming activities after a discovery.
• Removes duplicative language and simplifies the excavation requirements.
• Clarifies and limits when a permit under Section 4 of ARPA is required.
• Adds process for disposition to a lineal descendant and clarifies requirements for disposition on Tribal
lands.
• Requires publication of notices in the Federal Register (rather than in newspapers) to improve the effectiveness of the notification and reduce burden on Indian Tribes and NHOs.
• Provides a general overview to the responsibilities of museums and Federal agencies for holdings and
collections subject to the Act.
• Requires museums to submit statements on holdings or collections in their custody but not in their possession or control one year after the effective date of the final rule.
• Clarifies when and what actions are required for repatriation of human remains or cultural items in a simple step-by-step process.
• Updates the deadlines for completing summaries and inventories to the effective date of the final rule.
• Integrates the timelines into the step-by-step process for any new holdings or collections, newly recognized Indian Tribes, new museums, or amendments to previous decisions.
• Establishes timelines, deadlines, and instructions for responding to requests for human remains or cultural items and completing repatriations.
• Requires updated inventories two years after the effective date of the final rule and notices of inventory
completion six months after updating or completing an inventory.
• Eliminates ‘‘culturally unidentifiable’’ when cultural affiliation cannot be determined.
• Requires repatriation of associated funerary objects with human remains that have a cultural or geographical affiliation.
• Removes the limited definition of a failure to comply.
• Replaces the dual hearing process with a single hearing process to contest the failure to comply or the
penalty assessment.
• Consolidates and clarifies the responsibilities of and procedures for the Review Committee.
• Clarifies requirements and the process for informal dispute resolution through informal negotiations and
request before the Review Committee.
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A. Authority
NAGPRA, 25 U.S.C. 3001 et seq., is
the primary authority for the issuance of
regulations implementing and
interpreting the Act’s provisions. The
authority section continues to cite 25
U.S.C. 9 which authorizes the Secretary
to make such regulations as he or she
may think fit for carrying into effect the
various provisions of any act relating to
Indian affairs. Because the Act is Indian
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law (Yankton Sioux Tribe v. United
States Army Corps of Engineers, 83 F.
Supp 2d 1047, 1056 (D.S.D. 2000)), the
Secretary may promulgate any
regulations needed to implement it
under the broad authority to supervise
and manage Indian affairs given by
Congress (United States v. Eberhardt,
789 F.2d 1354, 1360 (9th Cir. 1986)).
Although 43 CFR part 10 previously
cited one provision of the
Archaeological Resources Protection Act
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(ARPA, 16 U.S.C. 470dd(2)) as an
authority, the Department has
determined that reliance on ARPA as
authority for these regulations is
unnecessary.
B. Section 10.1
Introduction
This section of the proposed rule
would reorganize for readability and
restate in plain language the purpose
and general requirements found in the
existing regulations. In response to
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consultation with Indian Tribes and
NHOs, the Department proposes the
purpose paragraph (see proposed
§ 10.1(a)) recognize and ensure
deference to the rights of lineal
descendants, Indian Tribes, and NHOs,
as provided under the Act. The
Department is specifically seeking input
during public comment on the proposed
purpose paragraph.
In the applicability paragraph (see
proposed § 10.1(b)), the Department
proposes a revision to clarify that these
regulations pertain to Native American
human remains or cultural items and
require certain actions for their
protection in the event of a discovery or
excavation on Federal or Tribal lands
after November 16, 1990, and for their
repatriation if in the possession or
control of a museum or Federal agency.
The Act does not provide express
authority for applying the discovery and
excavation provisions to land that does
not meet the definition of Federal or
Tribal lands (25 U.S.C. 3002). However,
depending on other relevant state or
local laws, human remains or cultural
items discovered or excavated from
private or state lands may be subject to
the repatriation provisions under
Subpart C.
To further clarify the applicability of
these regulations, the Department
proposes to remove the existing
paragraph § 10.1(b)(2) to correct the
misconception that human remains or
cultural items must, themselves, be
indigenous to Alaska, Hawai‘i, and the
continental United States. Under the
Act, ‘‘indigenous’’ relates to the
definition of ‘‘Native American.’’
Human remains or cultural items are
‘‘Native American’’ based on a
relationship to a tribe, people, or culture
that is indigenous to the United States.
In response to consultation with
Indian Tribes and NHOs, the
Department proposes new regulatory
provisions to address accountability by
museums and Federal agencies and to
require a duty of care for human
remains and cultural items (see
proposed § 10.1(c) and (d), respectively).
The paragraph on duty of care was
drawn from language in the existing
regulations at § 10.7(2) and (3) which
includes a requirement for Federal
agencies to consider and respect the
traditions of potential claimants (i.e.,
Indian Tribes and NHOs) including, but
not limited to, traditions regarding
housing, maintenance, and preservation,
to the maximum extent feasible
(emphasis added). During consultation,
many Indian Tribes and NHOs
requested that ‘‘to the maximum extent
feasible’’ be incorporated into the duty
of care requirement. The Department
proposes to use the phrase ‘‘to the
maximum extent possible’’ in the duty
of care requirement for both museums
and Federal agencies. In addition, this
phrase is used to describe
implementation of a plan of action
under Subpart B and in the definition of
consultation and the related regulatory
steps in both Subpart B and C. The
Department intends this phrase, ‘‘to the
maximum extent possible,’’ to mean
museums and Federal agencies will
make a reasonable effort to:
• seek consensus during consultation,
• provide appropriate treatment, care,
or handling of human remains or
cultural items, and
• incorporate identifications,
recommendations, and Native American
traditional knowledge (see definition
below) in making determinations.
Proposed § 10.1(e) would: (1)
consolidate and clarify those
requirements governing the delivery of
written documents that are currently
dispersed throughout the existing
regulations; and (2) provide for delivery
of written documents by email with
proof of receipt, and explicitly exclude
delivery of written documents by text
message or social media message.
Proposed § 10.1(f) would describe
how deadlines and timelines for written
documents are calculated based on
business days, i.e., Monday through
Friday, and that documents are deeded
timely based on the sent date.
The Department also proposes to
relocate to this Introduction section
existing regulatory provisions regarding
(1) failure to make a claim or a request
(see proposed § 10.1(g)), (2) judicial
jurisdiction (see proposed § 10.1(h)),
and (3) final agency action (see
proposed § 10.1(i)). Regarding final
agency action, ‘‘a final determination
making the Act or this part
inapplicable’’ is intended to be
construed broadly across the regulatory
process, including some circumstances
where a Federal agency’s failure to
comply with a regulatory requirement or
deadline may demonstrate its
determination that either the Act or this
part is inapplicable. Regarding judicial
jurisdiction (25 U.S.C. 3009(3)) nothing
in the Act or these regulations is
intended to abrogate any concurrent
Tribal jurisdiction that may exist with
respect to alleged violations of similar
Tribal laws on Tribal lands.
Table 2 shows how the Department
proposes to reorganize the existing
regulatory requirements.
TABLE 2—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.1
Existing 43 CFR section
10.1(a) .........................
10.1(b) .........................
10.7(b) .........................
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10.15(a) .......................
10.11(e) .......................
10.17(a) .......................
10.15(c) .......................
10.1(c) .........................
10.15(a) .......................
10.15(d) .......................
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Proposed 43 CFR section
Purpose ...........................................................
Applicability .....................................................
New .................................................................
(2) Care for and manage . . . ........................
New .................................................................
Failure to claim prior to repatriation.
(1) Any person who fails to make a timely
claim . . .
Disputes ..........................................................
Formal and informal resolutions .....................
Exhaustion of remedies ..................................
The information collection requirements . . .
Failure to claim prior to repatriation ................
(2) If there is more than one
(1) claimant. . . .
Savings provisions ..........................................
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10.1(a) ........................
10.1(b) ........................
10.1(c) ........................
10.1(d) ........................
10.1(e) ........................
10.1(f) .........................
Purpose.
Applicability.
Accountability.
Duty of care.
Delivery of written documents.
Deadlines and timelines.
10.1(g) ........................
Failure to make a claim or a request.
10.1(h) ........................
Judicial jurisdiction.
10.1(i) .........................
10.1(j) .........................
.....................................
Final agency action.
Information collection.
Removed.
.....................................
Removed in part.
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Proposed Rules
C. Section 10.2
Part
Definitions for This
This section of the proposed rule
defines terms used throughout this part.
The Department proposes to reorganize
defined terms in alphabetical order and
remove the paragraph designations in
the existing regulations at § 10.2 in
conformance with the Federal Register
Document Drafting Handbook.
The Department does not propose any
substantive changes to the following 10
definitions: Act, discovery (replaces
‘‘inadvertent discovery’’), excavation
(replaces ‘‘intentional excavation’’),
Federal agency, Manager, National
NAGPRA Program, museum, person,
Review Committee, Secretary, and
summary. The Department proposes to
remove the following seven definitions
that are no longer used in the proposed
regulations: burial site, cultural
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affiliation (see affiliation), culturally
unidentifiable, Federal agency official,
Indian Tribe official, museum official,
and Native Hawaiian (see Native
Hawaiian organization).
Table 3 shows how the Department
proposes to add, replace, or revise terms
for consistency, to reduce ambiguities,
and to clarify requirements throughout
this part. Except as noted in the table,
all terms are explained in the immediate
section below.
TABLE 3—CHANGES TO EXISTING TERMS IN PROPOSED § 10.2
Change
Defined term
New terms .......................................
Replace terms .................................
Revise existing terms ......................
acknowledged aboriginal land.
adjudicated aboriginal land.
affiliation.
ahupua‘a.
appropriate official *.
ARPA *.
ARPA Indian lands *.
ARPA Public lands *.
consultation.
cultural item.
custody.
holding or collection.
Indian Tribe (previously reserved).
Native American traditional knowledge.
‘ohana.
right of possession.
Tribal lands of an NHO.
United States.
‘‘disposition’’ and ‘‘repatriation’’ replace ‘‘disposition’’.
‘‘possession or control’’ replaces ‘‘possession’’ and ‘‘control’’.
Federal lands.
funerary object.
human remains.
inventory.
lineal descendant.
Native American.
Native Hawaiian organization.
object of cultural patrimony.
receives Federal funds.
sacred object.
traditional religious leader.
Tribal lands.
unclaimed cultural item.
* See proposed § 10.4 and § 10.6 and related preamble section.
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1. ‘‘Acknowledged Aboriginal Land’’
and ‘‘Adjudicated Aboriginal Land’’
The Department proposes to add two
new terms to replace ‘‘aboriginal lands’’
and ‘‘aboriginal occupation,’’ which are
not defined but are used in the existing
regulations §§ 10.6 and 10.11. The new
terms, ‘‘acknowledged aboriginal land’’
and ‘‘adjudicated aboriginal land,’’
would contain the same requirements
for ‘‘aboriginal lands’’ and ‘‘aboriginal
occupation,’’ found in the existing
regulations at §§ 10.6(a)(2)(iii)(A) and
10.11(b)(2)(ii) and (c)(1)(ii), but the new
definitions would distinguish and
clarify how to apply the terms.
For ‘‘acknowledged aboriginal land,’’
the definition would elaborate on which
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treaties may be used to identify
aboriginal land and would add other
Federal, foreign, or intertribal
government documents to the list of
acceptable sources. Some examples of
other Federal documents that provide
information on aboriginal occupation by
an Indian Tribe are ‘‘Report to the
President by the Indian Peace
Commission, 1868,’’ ‘‘Annual Reports of
the Commissioner on Indian Affairs,’’
and ‘‘Alaska Natives and the Land’’ (by
the Federal Field Committee for
Development Planning in Alaska,
October 1968). A source for identifying
intertribal treaties, diplomatic
agreements, and bilateral accords is
David H. DeJong’s book ‘‘American
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Indian Treaties,’’ which identifies 63
intertribal treaties, dating between 1666
and 1903. The Department has
intentionally declined to require that
intertribal treaties, diplomatic
agreements, or bilateral accords be in
writing in recognition of traditional
forms of documentation, such as tworow wampum belts.
For ‘‘adjudicated aboriginal land,’’ the
definition is drawn from the Act (25
U.S.C. 3002(a)(2)(C)) and clarified,
based on Sections 15 and 22 of the
Indian Claims Commission Act of 1946
(Pub. L. 79–726, 60 Stat. 1049), that a
final judgment also includes a judgment
concerning a settlement (compromise of
claim) if that judgment or settlement
either explicitly recognizes certain land
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Proposed Rules
as the aboriginal land of an Indian Tribe
or adopts findings of fact that do so.
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2. ‘‘Affiliation’’
The Department proposes a new term,
‘‘affiliation,’’ and to remove the existing
definitions of ‘‘cultural affiliation’’ and
‘‘culturally unidentifiable.’’ This change
reflects Congressional intent and focus
on affiliation for the sole purpose of
disposition or repatriation. In defining
affiliation, Congress ‘‘intended to ensure
that the claimant has a reasonable
connection with the materials’’ (H. Rep.
101–877, at 14, and S. Rep. 101–473, at
6). Identifying ‘‘cultural affiliation’’ has
been a significant barrier to disposition
and repatriation under the Act, despite
the clear intent of Congress that it be
used for no other purpose than to ensure
a reasonable connection between the
human remains and cultural items and
an Indian Tribe or NHO. Defining
‘‘affiliation’’ in these regulations
without the qualifier of ‘‘cultural’’ better
aligns with Congressional intent, and
addresses concerns raised during
consultation with Indian Tribes and
NHOs about implementing the term
‘‘geographical affiliation’’ separately
from cultural affiliation. In response to
consultation with Indian Tribes and
NHOs, we have combined cultural and
geographical affiliation into this
definition and the section on affiliation.
The definition of ‘‘cultural affiliation’’
from the Act and the existing
regulations, the lines of information,
and the use of geographic relationships
consistent with the existing regulation
are all incorporated into the regulatory
process by which ‘‘affiliation’’ is
established in the proposed text at
§ 10.3.
3. ‘‘Ahupua‘a’’
The Department proposes to add a
new term, ‘‘ahupua‘a,’’ to use when
determining the Native Hawaiian
organization with the closest affiliation
to human remains or cultural items.
While the term serves a geographic
purpose, identifying a traditional land
division, an ahupua‘a may also be
associated with various traditional and
customary practices in addition to
habitation and provides important
cultural connections between its earlier
occupants or traditional users and
Native Hawaiian organizations.
Traditionally, the occupants of an
ahupua‘a are its primary stewards.
4. ‘‘Consultation’’
The Department proposes to add a
new term, ‘‘consultation,’’ using
language provided by Congress (H. Rep.
101–877, at 16). In response to
consultation with Indian Tribes and
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NHOs, the Department proposes to
require that consultation seek consensus
and incorporate identifications,
recommendations, and Native American
traditional knowledge, to the maximum
extent possible.
5. ‘‘Cultural Item’’
In response to consultation with
Indian Tribes and NHOs, the
Department proposes to add a new term,
‘‘cultural item,’’ and specifically
exclude human remains from that
definition. Although Congress included
human remains in defining cultural
items (25 U.S.C. 3001(3)), the
Department proposes throughout these
regulations to use the phrase ‘‘human
remains or cultural items’’ rather than
‘‘cultural items.’’ This edit is responsive
to requests from some Indian Tribes and
NHOs who oppose any language that
identifies people as items since this can
be seen as objectifying and
dehumanizing. This edit does not have
any impact on the applicability or scope
of these regulations.
In response to consultation with
Indian Tribes and NHOs, the
Department proposes to add to the
definition of cultural items (and to
subsequent specific definitions of
cultural items) that identification of
cultural items is according to a lineal
descendant, Indian Tribe, or NHO based
on customs, traditions, or Native
American traditional knowledge. In the
Act, the identification of cultural items
is dependent upon consultation with
lineal descendants, Indian Tribes, and
NHOs. By adding this phrase to the
definition of cultural items, the
Department seeks to emphasize that
consultation, which is required
throughout the proposed regulation, is
how a lineal descendant, Indian Tribe,
or NHO shares the information needed
to identify a cultural item.
The Act was enacted for the benefit of
Indians, therefore the canons of
construction for Indian law applies. The
Act and these regulations ‘‘are to be
construed liberally in favor of the
Indians, with ambiguous provisions
interpreted to their benefit’’ (Yankton
Sioux Tribe v. United States Army
Corps of Engineers, 83 F. Supp 2d 1047,
1056 (D.S.D. 2000)). Consistent with this
principle, the Department proposes to
require deference to lineal descendants,
Indian Tribes, and NHOs throughout the
regulations, but specifically for
identification of cultural items.
Legislative intent on the definition of
cultural item, generally, and to each
definition specifically, is clear. ‘‘The
Committee has made every effort to
incorporate the comments and address
the concerns of members of the
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scientific and museum communities
with regard to the substantive
definitions set forth in the Act, while at
the same time recognizing that there are
over 200 tribes and 200 Alaska Native
villages and Native Hawaiian
communities, each with distinct
cultures and traditional and religious
practices that are unique to each
community. Accordingly, the
definitions of sacred objects, funerary
objects, and items of cultural patrimony
will vary according to the tribe, village,
or Native Hawaiian community.’’
(Senate Rpt. 101–473, page 4).
6. ‘‘Custody’’
The Department proposes to add a
new term, ‘‘custody,’’ that would
indicate an obligation for human
remains or cultural items that is less
than ‘‘possession or control.’’ See
discussion of ‘‘possession or control’’
below. This newly defined term does
not have the same meaning as the
general meaning given to the same word
used throughout the existing
regulations, especially at § 10.6.
7. ‘‘Disposition’’
The Department proposes to replace
the term ‘‘disposition’’ in the existing
regulations at § 10.2(g)(5) with two
separate terms: ‘‘disposition’’ and
‘‘repatriation.’’ In the proposed revision,
‘‘disposition’’ applies only to Subpart B.
The proposed revision to ‘‘disposition’’
would denote that an Indian Tribe,
NHO, Federal agency, or DHHL
acknowledges and recognizes that a
lineal descendant, Indian Tribe, or NHO
has control or ownership of human
remains or cultural items removed from
Federal or Tribal lands. Although the
phrase, control or ownership, is not
defined in the Act or the proposed
regulations, it is used to refer to the
rights of lineal descendants, Indian
Tribes, and NHOs in Native American
human remains or cultural items as
acknowledged and recognized by the
Act. The phrase, control or ownership,
is used to differentiate ‘‘disposition’’
and ‘‘repatriation’’ from terms used in
other sections of the Act, such as the
‘‘right of possession,’’ which a museum
or Federal agency may use to assert its
lawful control or ownership, or
‘‘possession or control,’’ which is an
element of applicability under the Act
that itself does not determine control or
ownership or a right of possession. In
describing disposition, the Act uses the
terms ‘‘ownership,’’ ‘‘control,’’ ‘‘right of
control,’’ and ‘‘title to’’ (25 U.S.C. 3002).
Of these terms, the phrase, control or
ownership, is the most appropriate to
apply to human remains as well as
cultural items that may be subject to
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disposition and describes the existing
rights of lineal descendants, Indian
Tribes, and NHOs more accurately. The
phrase, control or ownership, is
intended to indicate that, as in the Act,
human remains or cultural items
removed from Federal or Tribal lands
belong, in the first instance, to lineal
descendants, Indian Tribes, and NHOs
and not to the Federal agency.
8. ‘‘Federal Land’’
The Department proposes to revise
the term ‘‘Federal land’’ to clarify the
lands on which Federal programs or
activities may be subject to the Act. As
in the existing regulations, ‘‘Federal
land’’ includes lands not just owned by
the United States Government, but also
lands under its control. (Note that the
general term ‘‘control’’ as used in this
discussion of Federal land is not the
same as the defined term ‘‘possession or
control’’ as used in the Act). Whether
Federal control of the lands on which it
conducts its programs or activities is
sufficient to apply these regulations
depends on the circumstances and
scope of the Federal agency’s authority,
and on the nature of State and local
jurisdiction. Because of the wide array
of agency-specific authorities that can
establish federally controlled lands, the
Federal agency officials must make such
determinations on a case-by-case basis
and, in doing so, should consult with
their legal counsel.
While Federal agency officials must
ultimately make their own
determinations as to the lands under the
control of their agency, the drafters note
that, in general, a Federal agency will
only have sufficient legal interest to
‘‘control’’ lands it does not own when
it has sufficient statutory jurisdiction
with respect to those lands or other form
of property interest in the land, such as
a lease, easement, or other agreement
with terms that have indicia of control.
See Yankton Sioux Tribe v. United
States Army Corps of Eng’rs, 396 F.
Supp 2d 1087 (D.S.D. 2005); Crow Creek
Sioux Tribe v. Brownlee, 331 F.3d 912
(D.C. Cir. 2003) (the Act still applied to
lands transferred by the U.S. Army
Corps of Engineers to South Dakota
pursuant to the Water Resources
Development Act due to a specific
statutory provision applicable to those
transferred lands). Where two or more
Federal agencies share regulatory or
management jurisdiction over federally
owned or controlled lands, the Federal
agency with primary management
authority will generally have ‘‘control’’
for purposes of implementing these
regulations.
On the other hand, the drafters note
that Federal agency participation in a
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regulatory or supervisory capacity does
not necessarily rise to the level of
Federal ‘‘control.’’ See, e.g., Castro
Romero v. Becken, 256 F.3d 349 (5th
Cir. 2001) (claims for violations of the
Act with regard to human remains
found on municipal land could not be
upheld, even though a Federal agency
was involved in the project in a
supervisory role); Western Mohegan
Tribe and Nation of New York v. New
York, 100 F. Supp. 2d 122, (N.D.N.Y.
2000), aff’d in part, vacated in part on
other grounds 246 F.3d 230 (2nd Cir.
2001) (‘‘Plaintiffs’ broad reading of the
statute is inconsistent with the Act’s
plain meaning and its legislative history
where the language ‘Federal lands’
denotes a level of dominion commonly
associated with ownership, not funding
pursuant to statutory obligations or
regulatory permits.’’). For example, the
fact that a Federal permit is required to
undertake an activity on non-Federal
land generally is not sufficient legal
interest in and of itself to ‘‘control’’ the
land within the meaning of the Act and
this proposed rule.
Indian lands outside reservation
boundaries that are held in trust by the
United States Government or are held
by an Indian landowner subject to
restrictions on alienation imposed by
the United States Government, such as
allotments, are subject to Federal
control and are treated as Federal lands
under these regulations. The control of
the United States Government over
Indian land is the same whether it is in
trust or restricted status and whether it
is within the exterior boundaries of a
reservation or not. United States v.
Ramsey, 271 U.S. 467, 471–72 (1926).
See also Cohen’s Handbook of Federal
Indian Law § 16.03[1], at 1071 (Nell
Jessup Newton ed., 2012). Since
Congress’s control is virtually the same
for trust allotments and off-reservation
allotted lands with Federal restraints on
encumbrance and alienation (restricted
fee allotments), then Federal control of
such lands as a matter of law meets the
Western Mohegan standard noted above.
The treatment of off-reservation Indian
land as ‘‘Federal land’’ for purposes of
the Act is consistent with the current
practice of the Bureau of Indian Affairs.
9. ‘‘Funerary Object’’
The Department proposes to revise
the term ‘‘funerary object’’ and align it
with the definitions in the Act for
‘‘associated funerary object’’ and
‘‘unassociated funerary object.’’ The
portion of the statutory definition that is
the same between the two terms has
been used to define ‘‘funerary object.’’
As defined in the Act, the only
difference between the definition for
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associated and unassociated funerary
objects is the location of the related
human remains. A single object may be
a funerary object if the object is
identified as having been placed with or
near human remains. Therefore,
determining if the funerary object is
associated or unassociated does not
require identifying the specific
individual with which the object was
placed, but rather, only requires
identifying the location of the related
human remains.
For example, an authorized
excavation in 1940 removed a Native
American object from what was thought
to be a village site dating between 2000
BCE to 500 CE. The object dates to the
late pre-contact period, likely between
1500–1580 CE, based on materials and
form. Fragmentary human remains were
identified during the excavation and
noted in field notes, but no human
remains were removed. Based on
information available including the
results of consultation, it is reasonable
to believe the object was placed
intentionally in this location because of
the human remains, but it is also
reasonable to believe the object was
placed there many centuries after the
human remains. Nevertheless, the object
meets the definition of a funerary object
since it was intentionally placed near
human remains.
The funerary object does not,
however, meet the definition of an
associated funerary object. Human
remains were identified, but no human
remains were removed during the
excavation. In the information available,
there is no record of human remains
being removed from the site at any other
time. Through consultation with Indian
Tribes, the funerary object was not
identified as being the kind of object
made exclusively for burial purposes or
to contain human remains.
When a funerary object is not an
associated funerary object, it may be an
unassociated funerary object if it meets
one or more of the criteria in the
definition (see proposed § 10.2 Funerary
object (2)). The funerary object is not
related to specific individuals or
families (see proposed § 10.2 Funerary
object (2)(ii)). The funerary object was
not removed from a specific burial site
or an area known to be a burial site (see
proposed § 10.2 Funerary object (2)(iii)
and (iv)). However, the funerary object
is related to known human remains
(identified in the field notes), but those
human remains were not removed from
the site (see proposed § 10.2 Funerary
object (2)(i)). Therefore, the funerary
object meets the definition of an
unassociated funerary object.
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In response to consultation with
Indian Tribes and NHOs, the
Department proposes to add to the
definition of funerary object (and to all
specific definitions of cultural items)
that identification of a funerary object is
according to a lineal descendant, Indian
Tribe, or NHO based on customs,
traditions, or Native American
traditional knowledge. In the Act, the
identification of a funerary object is
dependent upon consultation with
lineal descendants, Indian Tribes, and
NHOs. By adding this phrase to the
definition of a funerary object, the
Department seeks to emphasize that
consultation, which is required
throughout the proposed regulation, is
how a lineal descendant, Indian Tribe,
or NHO shares the information needed
to identify a funerary object.
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10. ‘‘Holding or Collection’’
The Department proposes to add a
new term ‘‘holding or collection’’ which
is not defined in the Act. The proposed
definition is drawn from dictionary
definitions as well as the International
Council of Museums’ 2007 definition.
Merriam-Webster Dictionary defines
‘‘collection’’ as ‘‘something collected;
especially: an accumulation of objects
gathered for study, comparison, or
exhibition . . .’’ and defines ‘‘holding’’
as ‘‘any property that is owned or
possessed . . .’’ The International
Council of Museums’ 2007 definition of
a museum is an institution ‘‘which
acquires, conserves, researches,
communicates and exhibits . . . for the
purposes of education, study, and
enjoyment.’’ Additional purposes in this
definition are taken from Unit 34 of
‘‘Museum Basics’’ (1993) by Timothy
Ambrose, which lists different types of
museum collections. In response to
consultation with Indian Tribes and
NHOs, we have refrained from using
offensive purposes listed in some of
these sources such as ‘‘enjoyment’’ or
‘‘personal benefit.’’ While the proposed
definition includes a wide variety of
purposes, a holding or collection under
this proposed rule would not be limited
to only these purposes.
11. ‘‘Human Remains’’
The Department proposes to revise
the term ‘‘human remains’’ to clarify
what is and what is not considered
human remains for purposes of
disposition and repatriation. The
proposed revision is based on the
explanation provided in the preamble to
the 1995 final rule (60 FR 62137,
December 4, 1995). The explanation
noted that the Act makes no distinction
between fully articulated burials and
isolated bones and teeth. The preamble
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then stated that the final rule added
language excluding ‘‘naturally shed’’
human remains from consideration
under the Act. The preamble clarified
that this exclusion does not include
human remains for which there is
evidence of purposeful disposal or
deposition. The preamble then
addressed a question asked by a
commenter who sought clarification on
the status of human remains that were
not freely given but had been
incorporated into objects that are not
cultural items as defined in the
regulations. The preamble explained
that the legislative history does not
address this question and therefore the
proper disposition of such human
remains must be determined on a caseby-case basis.
Consistent with the advice in 1995,
identification of human remains must
be made on a case-by-case basis. The
Act requires identification of all human
remains in a holding or collection,
including human remains reasonably
believed to be comingled with other
material (such as soil or faunal remains).
During consultation with lineal
descendants, Indian Tribes, and NHOs,
museums and Federal agencies should
evaluate if an entire admixture can be
treated as human remains. If such a
request is made during consultation, but
it is not possible to treat the admixture
as human remains, the record of
consultation should include the effort to
identify a mutually agreeable
alternative. The proposed definition
provides two ways human remains may
be incorporated into an object or item.
For example, depending on the results
of consultation, a scalp shirt with
human remains or a flute made with
human remains that is not a funerary
object, a sacred object, or an object of
cultural patrimony would be considered
human remains and subject to
disposition or repatriation under the Act
and the proposed regulations. Human
remains that are incorporated into a
funerary object, sacred object, or object
of cultural patrimony would not be
treated as human remains, but as a
cultural item and subject to disposition
or repatriation under the Act and the
proposed regulations.
12. ‘‘Indian Tribe’’
The Department proposes to add a
definition for the term ‘‘Indian Tribe,’’
currently reserved in the existing
regulations at § 10.2(b)(2). The list of
federally recognized Indian Tribes is the
list of Indian Tribes for the purposes of
NAGPRA. Throughout the proposed
rule, the term is used in the singular
form, but it is expected that multiple
Indian Tribes may meet the criteria
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under this part for disposition or
repatriation of the same human remains
or cultural items. Any Indian Tribe with
cultural or geographical affiliation may
submit a claim for disposition or a
request for repatriation. Two or more
Indian Tribes may agree to joint
disposition or joint repatriation of
human remains or cultural items.
Claims or requests for joint disposition
or joint repatriation should be
considered a single claim or request and
not competing claims or requests.
13. ‘‘Inventory’’
The Department proposes to revise
the term ‘‘inventory’’ to accurately
reflect the content as required by the
Act. In response to consultation with
Indian Tribes and NHOs, the
Department is aware that the existing
regulatory definition has been a barrier
to expeditious repatriation as it requires
an ‘‘item-by-item description.’’ In the
Act, an inventory is defined as a
‘‘simple itemized list.’’ The proposed
revision to the definition uses the exact
language from the Act and includes the
information required to be included in
an inventory.
14. ‘‘Lineal Descendant’’
The Department proposes to revise
the definition and remove the criteria
for determining lineal descent in the
existing regulations at §§ 10.2(b)(2) and
10.14(b). The term ‘‘lineal descendant’’
is not defined in the Act. The revised
definition would allow for disposition
or repatriation of human remains and
associated funerary objects to a ‘‘lineal
descendant’’ in the following cases:
• The identity of a particular
deceased individual is known, and a
specific living person is known to be the
direct descendant of the deceased
individual. For example, the human
remains are of the great-greatgrandfather of the living great-greatgranddaughter.
• The identity of each deceased
individual in a group of human remains
is not known, but a specific living
person is known to be the direct
descendant of all the deceased
individuals in the group. For example,
all that is known is that the human
remains of multiple individuals are the
great-great-grandfather, greatgrandfather, father, and maternal uncle
of a specific living person, who is the
direct descendant of them all under a
traditional system of descent.
Throughout the proposed rule, the
term is used in the singular form, but it
is expected that multiple lineal
descendants may meet the criteria under
this part for disposition or repatriation
of the same human remains, funerary
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objects, or sacred objects. Any lineal
descendant may submit a claim for
disposition or a request for repatriation
for human remains, funerary objects, or
sacred objects. Two or more lineal
descendants may agree to joint
disposition or joint repatriation of
human remains, funerary objects, or
sacred objects. Claims or requests for
joint disposition or joint repatriation
should be considered a single claim or
request and not competing claims or
requests.
15. ‘‘Museum’’
The Department proposes a slight
addition to the term ‘‘museum’’ to
clarify that, consistent with the Act, the
term does not include the Smithsonian
Institution. Also consistent with the
Act, the term ‘‘museum’’ includes State
or local government agencies, including
subdivisions of State or local
government agencies. Consequently, any
of the following examples may be a
museum under the Act and the
proposed regulations if they meet all the
criteria of the definition: a county
coroner’s office, a city medical
examiner’s office, a State police
department or local post, a city library,
or a city water authority.
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16. ‘‘Native American’’
The Department proposes to revise
and clarify the existing definition of
‘‘Native American.’’ The Act applies to
human remains or cultural items that
meet the definition of ‘‘Native
American.’’ ‘‘Native American’’ human
remains or cultural items are not only
items of a tribe, people, or culture that
is indigenous to the United States, but
are also items that are related to such
tribe, people, or culture. Because
Congress did not define ‘‘tribe,’’
‘‘people,’’ or ‘‘culture,’’ the proposed
definition of the term ‘‘Native
American’’ incorporates statutory and
dictionary definitions to better clarify
these terms.
17. ‘‘Native American Traditional
Knowledge’’
The Department proposes to add a
new term, ‘‘Native American traditional
knowledge,’’ for use in the definition of
‘‘consultation’’ and ‘‘cultural item’’ as
well as definitions of specific kinds of
cultural items. In response to
consultation with Indian Tribes and
NHOs, this definition is a variation on
what was suggested by a specific Indian
Tribe, but this term is rooted in the
larger concept of indigenous ways of
knowing. The proposed definition
attempts to cover the wide variety of
terminology related to this concept
while remaining consistent with the
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disposition and repatriation process
under the Act. The Department
recognizes that there is different
terminology used by and among Native
American people that incorporates this
concept. Additionally, the concept of
traditional knowledge is recognized by
a number of Federal agencies in the
context of land management activities
and the use of natural or cultural
resources. In these contexts, it is often
referred to as traditional ecological
knowledge or TEK. It may also be
referred to as indigenous knowledge or
traditional cultural knowledge. For the
limited purposes of these regulations,
the term ‘‘Native American traditional
knowledge’’ is inclusive of all these
terms and may provide information
needed to identify affiliation (either
cultural or geographical), funerary
objects, lineal descendants, objects of
cultural patrimony, and sacred objects.
We welcome additional input on the
specifics in this definition as well as its
use in the regulatory text.
18. ‘‘Native Hawaiian Organization’’
The Department proposes to revise
the term ‘‘Native Hawaiian
organization’’ (NHO) by incorporating
the definition of ‘‘Native Hawaiian’’
from the Act. While the Act uses the
phrase ‘‘aboriginal people’’ to define
Native Hawaiian, the proposed
regulations use the phrase ‘‘indigenous
people’’ to better relate to the definition
of Native American and distinguish
from the use of aboriginal elsewhere in
the Act and regulations referring to
land. The proposed definition would
include those entities that the Secretary,
through the Office of Native Hawaiian
Relations, has identified on the most
current Native Hawaiian Organization
Notification List. The Department also
proposes to include in the definition of
NHO the Hawaiian Homes Commission
Act (HHCA) Beneficiary Associations
and Homestead Associations. Although
the Act names Hui Malama I Na Kupuna
O Hawai‘i Nei as a Native Hawaiian
organization, that group ceased to exist
in 2015, so the proposed definition does
not include it.
Throughout the proposed rule,
‘‘Native Hawaiian organization’’ is used
in the singular form, but it is expected
that multiple NHOs may meet the
criteria under this part for disposition or
repatriation of the same human remains
or cultural items. Any NHO with
affiliation may submit a claim for
disposition or a request for repatriation
under the proposed rule. Two or more
NHOs may agree to joint disposition or
joint repatriation of human remains or
cultural items. Claims or requests for
joint disposition or joint repatriation
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would be considered a single request
and not competing claims or requests.
19. ‘‘Object of Cultural Patrimony’’
The Department proposes to revise
the definition of ‘‘object of cultural
patrimony’’ to clarify what a Native
American group or culture is for
purposes of the definition. In response
to consultation with Indian Tribes and
NHOs and a specific suggestion from an
Indian Tribe, the Department also
proposes to add a sentence to recognize
that a caretaker may have been
entrusted with responsibility for an
object and may have even conferred that
responsibility on another caretaker, but
the object can still be an object of
cultural patrimony. In response to
consultation with Indian Tribes and
NHOs, the Department proposes to add
to the definition (and to all specific
definitions of cultural items) that
identification of an object of cultural
patrimony is according to an Indian
Tribe or NHO based on customs,
traditions, or Native American
traditional knowledge. In the Act, the
identification of an object of cultural
patrimony is dependent upon
consultation with lineal descendants,
Indian Tribes, and NHOs. By adding
this phrase to the definition of an object
of cultural patrimony, the Department
seeks to emphasize that consultation,
which is required throughout the
proposed regulation, is how an Indian
Tribe or NHO shares the information
needed to identify an object of cultural
patrimony.
20. ‘‘ ‘Ohana’’
To emphasize the importance of the
familial or kinship relationship in
Hawai‘i, the Department proposes to
add a new term ‘‘ ‘ohana,’’ used in the
definition of ‘‘Native Hawaiian
organization’’ and in determining the
NHO with the closest affiliation.
21. ‘‘Possession or Control’’
In response to consultation with
Indian Tribes and NHOs, the
Department proposes to replace the two
separate terms in the existing
regulations ‘‘possession’’ and ‘‘control’’
into one term, as used in the Act,
‘‘possession or control.’’ Congress used
these two words as a single term
throughout the Act except for ‘‘right of
possession’’ (discussed later). The
phrase ‘‘possession or control’’ as used
in the Act connotes a singular interest
in human remains or cultural items and
utilizes the two elements of the phrase
only to address the physical location of
the human remains or cultural items. In
the Act, having possession or control
means a museum or Federal agency may
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make decisions about human remains or
cultural items without having to request
permission from some other entity or
person (an interest). This interest is
present regardless of the physical
location of the human remains or
cultural items. For a similar example, a
person has the same interest in property
that is in the person’s home as in
property that same person keeps in an
offsite storage unit. The person can
make decisions about the property in
the storage unit without having to
request permission from the storage
facility. Regardless of the physical
location of the property, the person’s
interest in the property is the same
whether it is in their home or in the
custody of the storage facility.
The Department also proposes to
define a separate term, ‘‘custody,’’ that
would indicate an obligation that is less
than ‘‘possession or control.’’ Whether a
Federal agency or museum has a
sufficient interest in human remains or
cultural items to establish possession or
control is a legal determination that
must be made on a case-by-case basis.
However, when a museum with custody
of human remains or cultural items
cannot identify any person, institution,
State or local government agency, or
Federal agency with possession or
control, the museum should presume it
has possession or control for purposes
of repatriation under the Act. When a
Federal agency cannot determine if
human remains or cultural items came
into its possession or control before or
after November 16, 1990, or cannot
identify the type of land the human
remains or cultural items were removed
from, the Federal agency should
presume it has possession or control for
purposes of repatriation under the Act.
This determination alone does not
create any legal rights or indicate that a
museum or Federal agency has a ‘‘right
of possession’’ to human remains or
cultural items; it is merely a
jurisdictional requirement for
application of the Act to human remains
or cultural items subject to repatriation
by the appropriate museum or Federal
agency.
The Department received several
comments through consultation with
Indian Tribes and NHOs requesting that
it expand the scope of the term
‘‘possession or control’’ to include both
those entities that have possession or
control as defined in the existing
regulations and those entities that
merely have custody as defined in this
proposed rule. In some cases, this
request would make multiple entities
concurrently responsible for fulfilling
the Act’s inventory, summary, and
repatriation processes. The Department
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has declined to make this change as
such an interpretation is inconsistent
with the framework and legislative
history of the Act. Congress provided no
indication in the Act or its legislative
history that such an expansive
interpretation was its intent, and
various features of the Act, including
civil penalties, right of possession, and
museum obligations, presume that a
single museum or Federal agency would
be responsible for compliance with the
Act. However, the Department
acknowledges the underlying intent of
this request to ensure repatriation of all
holdings or collections subject to the
Act and has proposed other revisions
that seek to address this issue by
directing museums and Federal agencies
to share greater information and
increase efforts to complete inventories,
summaries, and repatriation of human
remains and cultural items in the
custody of other entities.
22. ‘‘Receives Federal Funds’’
The Department proposes to revise
the term ‘‘receives Federal funds’’ to
clarify that any recipient of Federal
financial assistance would be deemed to
receive Federal funds under this part.
The definition is drawn from the
interpretation of comparable terms from
the Rehabilitation Act of 1973, Title IX
of the Education Amendments of 1972,
as amended, implementing regulations,
and OMB’s Requirements, Cost
Principles, and Audit Requirements for
Federal Awards (2 CFR part 200). The
‘‘Receives Federal funds’’ requirement
may be satisfied by direct or indirect
receipt of funds from the Federal
government. Satisfaction of the
requirement through indirect funding is
permissible and consistent with the
Supreme Court’s decision in Grove City
College v. Bell, 465 U.S. 555 (1982).
For example, an educational
institution that accepts no direct Federal
financial assistance is deemed to receive
Federal financial assistance when it
enrolls students who receive Federal
grants that must be used for educational
purposes (34 CFR part 106). A Tribal
museum receives Federal funds for
purposes of repatriation if the Indian
Tribe of which the museum is a part
receives Federal financial assistance. A
county library receives Federal funds for
purposes of repatriation if its State
government or other agency provides a
subaward to the library as part of a
Federal grant or award. The term also
underscores that the U.S. Government’s
payments that are compensatory, such
as payments in lieu of taxes paid under
the Payments in Lieu of Taxes Act, as
amended (31 U.S.C. 6901 et seq.) are not
considered Federal financial assistance
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(and see McMullen v. Wakulla County
Board of County Commissioners, 650
Fed. Appx. 703 (11th Cir. 2016)).
23. ‘‘Repatriation’’
The Department proposes to replace
the term ‘‘disposition’’ in the existing
regulations at § 10.2(g)(5) with two
separate terms: ‘‘disposition’’ and
‘‘repatriation’’ used consistently
throughout the regulations. In the
proposed revision, ‘‘repatriation’’
applies only to Subpart C and has been
incorporated into the title of that
subpart. The proposed revision would
denote that a museum or Federal agency
acknowledges and recognizes that a
lineal descendant, Indian Tribe, or NHO
has control or ownership of human
remains or cultural items in a holding
or collection. Although the phrase,
control or ownership, is not defined in
the Act or the regulations, it is used to
refer to the rights of lineal descendants,
Indian Tribes, and NHOs in Native
American human remains or cultural
items acknowledged and recognized by
the Act. The phrase, control or
ownership, is used to differentiate
‘‘disposition’’ and ‘‘repatriation’’ from
terms used in other sections of the Act,
such as the ‘‘right of possession,’’ which
a museum or Federal agency may use to
assert its lawful control or ownership, or
‘‘possession or control,’’ which is an
element of applicability under the Act
that itself does not determine control or
ownership or a right of possession. In
describing repatriation, the Act uses the
terms ‘‘return,’’ ‘‘owned,’’ and ‘‘owned
or controlled’’ (25 U.S.C. 3005). Of these
terms, the phrase, control or ownership,
is the most appropriate to apply to
human remains as well as cultural items
that may be subject to repatriation and
describes the existing rights of lineal
descendants, Indian Tribes, and NHOs
more accurately. The phrase, control or
ownership, is intended to indicate that,
as in the Act, human remains and
cultural items in holdings or collections
belong, in the first instance, to lineal
descendants, Indian Tribes, and NHOs
and not to the museum or Federal
agency unless the museum or Federal
agency is able to prove a ‘‘right of
possession.’’ By using ‘‘right of
possession’’ as a standard of
repatriation, the Act establishes that
museums and Federal agencies do not
have a rightful legal interest in human
remains or cultural items unless the
museum or Federal agency can prove an
authoritative transfer of that ‘‘right of
possession.’’
24. ‘‘Right of Possession’’
The Department proposes a new
defined term ‘‘right of possession’’ by
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moving the text from the existing
regulations at § 10.10(a)(2). The Act
recognizes a ‘‘right of possession’’ to
cultural items; however, Congress
acknowledged that this right is qualified
with respect to human remains and
associated funerary objects. The Act
utilizes the concept of right of
possession first as a defense against
criminal sanctions for the sale,
purchase, use, or transport for profit of
human remains (18 U.S.C. 1170); and
again, where museums and Federal
agencies are permitted to assert a right
of possession to unassociated funerary
objects, sacred objects, and objects of
cultural patrimony with evidence (25
U.S.C. 3005).
Congress did not provide a process for
a museum or Federal agency to assert a
right of possession to human remains
and associated funerary objects. This
approach is consistent with Congress’
intent to distinguish human remains
and associated funerary objects from
cultural items as quasi-property.
Applicable common law in the United
States generally accepts that human
remains and associated burial items
cannot be ‘‘owned’’ in the same manner
as conventional property. The Act (25
U.S.C. 3001 (13)) follows the common
law by distinguishing between the
property attributes of Native American
unassociated funerary objects, sacred
objects, or objects of cultural patrimony,
and the quasi-property attributes of
Native American human remains and
associated funerary objects.
Congress acknowledged that the right
of possession to unassociated funerary
objects, sacred objects, or object of
cultural patrimony, as defined in the
Act, may be subject to a Fifth
Amendment takings analysis, and that
these objects may potentially be
considered property. A right of
possession for prehistoric cultural items
fitting these categories might be shown
through a written authorization from a
competent authority to excavate,
remove, and curate such items from a
particular area or site. Although
Congress also determined that the
original acquisition of Native American
human remains and associated funerary
objects which were exhumed, removed,
or otherwise obtained with full
knowledge and consent of the next of
kin or the official governing body of the
appropriate Indian Tribe or NHO is
deemed to give right of possession to
those human remains and associated
funerary objects, Congress chose not to
make that right of possession to human
remains and associated funerary objects
subject to a Fifth amendment takings
analysis. Congress was clear that it did
not intend to categorize human remains
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and associated funerary objects as
property under the Act, as had been its
approach for unassociated funerary
objects, sacred objects, or object of
cultural patrimony. Thus, a Fifth
Amendment taking does not result from
the repatriation of human remains and
associated funerary objects.
In the proposed revision, the
Department interprets ‘‘voluntary
consent’’ and ‘‘full knowledge and
consent’’ considering the history of
Indian country and recognizes that
‘‘voluntary consent’’ and ‘‘full
knowledge and consent’’ does not
include ‘‘consent’’ given under duress
or as a result of bribery, blackmail,
fraud, misrepresentation, or duplicity
on the part of the recipient. As such,
consent in this definition must be
shown to have been fully free, prior, and
informed consent.
25. ‘‘Sacred Object’’
In response to consultation with
Indian Tribes and NHOs, the
Department proposes to revise that a
sacred object is, in the words of the Act,
‘‘needed’’ for a traditional Native
American religious practice. Such
practice could include the need to
ritually inter the object. The Department
proposes to add to the definition of
sacred object (and to all specific
definitions of cultural items) that
identification of a sacred object is
according to a lineal descendant, Indian
Tribe, or NHO based on customs,
traditions, or Native American
traditional knowledge. In the Act, the
identification of a sacred object is
dependent upon consultation with
lineal descendants, Indian Tribes, and
NHOs. By adding this phrase to the
definition of a sacred object, the
Department seeks to emphasize that
consultation, which is required
throughout the proposed regulation, is
how a lineal descendant, Indian Tribe,
or NHO shares the information needed
to identify a sacred object.
26. ‘‘Traditional Religious Leader’’
The Department proposes to revise
the term ‘‘traditional religious leader’’ in
response to consultation with Indian
Tribes and NHOs. The term is not
defined in the Act and the proposed
revisions are intended to clarify and
simplify the definition. The proposed
revisions intend to place the authority
for identifying a traditional religious
leader in the hands of an Indian Tribe
or NHO. There is no requirement for an
Indian Tribe or NHO to disclose
information about the cultural,
ceremonial, or religious practices or
cultural duties or leadership role used
to identify a traditional religious leader.
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63215
27. ‘‘Tribal Lands’’
The Department proposes to revise
the term ‘‘Tribal lands’’ by removing the
provision in the existing regulations
related to a taking of property without
compensation within the meaning of the
Fifth Amendment of the United States
Constitution (25 U.S.C. 3001(13)).
Comments to the 1995 final rule sought
clarification regarding the application of
NAGPRA to privately owned lands
within the exterior boundaries of an
Indian reservation. To address any
potential conflict, the final rule codified
language stating that the regulations will
not apply to Tribal lands to the extent
that any particular action authorized or
required will result in such a taking of
property. A review of the legislative
history for the Act shows this concept
does not apply to the statute as enacted
and therefore is removed from the
definition of Tribal lands.
28. ‘‘Tribal Lands of an NHO’’
The Department proposes to add a
new term ‘‘Tribal lands of an NHO’’ to
more accurately describe a subset of
Tribal lands in Hawai1i so it can be
applied in the regulatory process in
Subpart B. In the Act, priority for
disposition of human remains or
cultural items from Tribal lands is in the
Indian Tribe or NHO on whose Tribal
lands the human remains or cultural
items were removed. While the Tribal
lands of an Indian Tribe is clearly
identified by the definition of Tribal
lands, the application of this priority on
Tribal lands in Hawai1i is not clear from
the definition of Tribal lands alone. This
definition provides for an NHO to take
on responsibility for the provisions of
the Act from the State of Hawai1i DHHL.
When an NHO has a lease or license
from DHHL pursuant to the Hawaiian
Homes Commission Act (HHCA), that
NHO can elect to take on any of the
responsibilities under Subpart B of the
proposed regulations on its Tribal lands
(see proposed §§ 10.5(c), 10.6(a), and
10.7(c)).
29. ‘‘Unclaimed Cultural Items’’
The Department proposes to revise
the term ‘‘unclaimed cultural items’’ for
clarity. The proposed revision retains
the same central requirement of the
existing definition but removes the more
regulatory process part of the existing
regulation to the regulatory text (see
proposed § 10.7(e)).
30. ‘‘United States’’
The Department proposes to add a
new term ‘‘United States’’ to provide a
geographical descriptor throughout this
part.
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D. Section 10.3 Cultural and
Geographical Affiliation
This section of the proposed rule
would improve the organizational
structure of the existing regulations and
better align the requirements with
Congressional intent. The Department
proposes to relocate existing regulatory
provisions at § 10.14 to Subpart AGeneral.
The proposed revisions would remove
the criteria for determining lineal
descent in the existing regulations at
§ 10.14(b), as it is repetitive of the
definition for lineal descendant and not
necessary. In conjunction with the
defined term ‘‘affiliation,’’ the proposed
revisions reflect the intent of Congress
that for purposes of disposition or
repatriation, all that is required is a
reasonable connection between human
remains or cultural items and an Indian
Tribe or NHO (H. Rep. 101–877, at 14,
and S. Rep. 101–473, at 6). The
proposed revisions identify two kinds of
affiliation for purposes of disposition or
repatriation: cultural or geographical.
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1. Cultural Affiliation
For cultural affiliation, the proposed
revisions clarify the existing
requirements by moving ‘‘cultural
affiliation’’ to this section to include not
only what it is, but also how it is
established and what it does not require.
The proposed revisions simplify the
information and criteria needed to
identify cultural affiliation by removing
extraneous or duplicative language that
has often been a barrier to repatriation.
The proposed revisions also clearly
explain that more than one Indian Tribe
or NHO may have a cultural affiliation
to human remains or cultural items.
For example, assume that the only
information available for individual
human remains shows that the human
remains were removed from a particular
site and that the human remains have a
date range spanning 1,000 years. Indian
Tribe A has a relationship of shared
group identity to an earlier group who
occupied the site at some point during
that 1,000-year span. Similarly, Indian
Tribe B has a shared group identity with
a different earlier group that also
occupied the site at different point
during that 1,000-year span. Even
though Indian Tribe A and Indian Tribe
B do not themselves have a relationship
of shared group identity, both Indian
Tribe A and Indian Tribe B have a
cultural affiliation with the human
remains from that site.
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In response to consultation with
Indian Tribes and NHOs, the
Department emphasizes that ‘‘a
preponderance of the evidence’’ is a
similar standard to a ‘‘reasonableness’’
requirement, both of which are common
legal concepts. In both standards, a
‘‘more likely than not’’ assessment is
required, such that the reasonableness
requirement for tracing cultural
affiliation is satisfied by a
preponderance of the evidence
establishing cultural affiliation.
Congressional report language states
cultural affiliation ‘‘shall be established
by a simple preponderance of the
evidence,’’ and that phrase is used in
the proposed revisions.
2. Geographical Affiliation
For geographical affiliation, the
proposed revisions draw on language in
the Act requiring the identification of
‘‘the geographical and cultural
affiliation’’ (25 U.S.C. 3003(a)) and
include the information and criteria
needed to establish geographical
affiliation. The proposed revisions
clarify, as under the existing regulations
at § 10.11, ‘‘geographical affiliation’’ is
identified by tracing a relationship
between an Indian Tribe or NHO and a
geographic area connected to the human
remains or cultural items. While
cultural affiliation requires a simple
preponderance of the evidence given the
information available, geographical
affiliation only requires that the
information be available. The proposed
revisions also clearly explain that more
than one Indian Tribe or NHO may have
a geographical affiliation to human
remains or cultural items.
For example, assume that the
geographic area connected to human
remains and associated funerary objects
is the Tribal lands of Indian Tribe L, the
adjudicated aboriginal land of Indian
Tribe N, and the acknowledged
aboriginal land of Indian Tribes M, N,
O, and P. All the Indian Tribes (L, M,
N, O, and P) have a geographical
affiliation with the human remains. Any
information beyond the geographic area,
for example when the human remains or
cultural items were removed or types of
associated funerary objects, may provide
information sufficient to identify a more
specific cultural affiliation to one or
more of the Indian Tribes but must not
be used to limit the geographical
affiliation to all the Indian Tribes.
The proposed revision states (in
response to consultation with Indian
Tribes and NHOs) that the information
used to identify geographical affiliation
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may provide information sufficient to
also establish cultural affiliation.
Because geographical information is one
line of information that may be used for
cultural affiliation, that information
alone may be sufficient to establish
cultural affiliation as well as
geographical affiliation.
3. Multiple Affiliations and Closest
Affiliations
The proposed revisions provide clear
instructions to Indian Tribes, NHOs,
museums, and Federal agencies for
making and considering single claims or
requests and for resolving competing
claims or requests by identifying the
Indian Tribe or NHO with the closest
affiliation (see proposed § 10.3(c) and
(d)). The proposed revisions clearly
explain that two or more Indian Tribes
or Native Hawaiian organization may
submit a claim for disposition or a
request for repatriation and may claim
joint disposition or request joint
repatriation of human remains or
cultural items. Joint claims or requests
are considered a single claim or request
and not competing claims or requests.
In rare cases when there are
competing claims or requests, museums
and Federal agencies must identify the
‘‘closest cultural affiliation’’ (25 U.S.C.
3002(a)(2)(B)) and the ‘‘most appropriate
claimant’’ (25 U.S.C. 3005 (e)). The Act
provides no process for making these
identifications, but in the inventory and
notification provisions of the Act (25
U.S.C. 3003(d)(2)(B) and (C)), there is a
distinction made between two types of
cultural affiliation: clearly identifiable
as to tribal origin and not clearly
identifiable as being culturally affiliated
but determined by a reasonable belief.
The Department proposes to use this
language to inform how a museum or
Federal agency might resolve competing
claims for disposition or requests for
repatriation. The standard for
establishing cultural affiliation in the
first instance is always a preponderance
of the evidence, but when multiple
Indian Tribes or NHOs meet that
standard and have submitted competing
claims or requests, these paragraphs
provide a priority order to differentiate
between culturally affiliated Indian
Tribes. In resolving competing claims or
requests, a museum or Federal agency
may identify one or more Indian Tribes
or NHOs with the closest affiliation.
Table 4 shows how the Department
proposes to reorganize the existing
regulatory requirements regarding
cultural or geographical affiliation.
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TABLE 4—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.3
Existing 43 CFR section
10.14(c) .............
Criteria for determining cultural affiliation .................
...........................
10.14(f)
10.14(d)
10.14(e)
10.11(c)
10.3(a).
10.14(a) ............
10.14(b) ............
Standard of proof ......................................................
A finding of cultural affiliation . . .
Evidence.
Disposition of culturally unidentifiable human remains and associated funerary objects.
New ...........................................................................
New ...........................................................................
General ......................................................................
Criteria for determining lineal descent ......................
E. Section 10.4
General
.............
............
............
.............
This section of the proposed rule
would provide a general overview to
Subpart B and clarify the
responsibilities of Indian Tribes, NHOs,
Federal agencies, and the State of
Hawai‘i Department of Hawaiian Home
Lands (DHHL) for human remains or
cultural items on Federal or Tribal
lands. This section would consolidate
general information in the existing
regulations at §§ 10.3, 10.4, and 10.5.
The Department proposes to revise the
title of Subpart B (in response to
consultation with Indian Tribes and
NHOs) to better reflect the intent of
Congress for this section of the Act (25
U.S.C. 3002).
1. Appropriate Official
The Department proposes to employ a
new term, ‘‘appropriate official,’’ to
denote the person or persons
responsible for completing the
regulatory requirements related to a
discovery, excavation, and disposition
of human remains or cultural items on
Federal or Tribal lands. The revision
would improve consistency with the
Act by requiring certain actions be taken
by the appropriate official for an Indian
Tribe, NHO, Federal agency, and DHHL
concerning discoveries, excavations,
and disposition on Federal or Tribal
lands.
2. Plan of Action
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Proposed 43 CFR section
On all Federal lands in the United
States or on some Tribal lands in
Hawai‘i, the Department proposes (in
response to consultation with Indian
Tribes and NHOs) to move the existing
regulatory requirement for a plan of
action to the beginning of the subpart.
In the existing regulations, § 10.5(e)
requires Federal agency officials to
prepare, approve, and sign a written
plan of action after consultation and
before a planned activity that may result
in the excavation of human remains or
cultural items. The proposed revisions
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10.3(b) ..............
10.3(c) ..............
10.3(d) ..............
...........................
10.2 ..................
Cultural affiliation. (1) Information. (2) Criteria. (3)
Multiple cultural affiliations.
Geographical affiliation. (1) Information. (2) Criteria.
(3) Multiple geographical affiliations.
Multiple affiliations.
Closest affiliation.
Removed.
Lineal descendant means.
would require a plan of action before for
any planned activity that may result in
the discovery or excavation of human
remains or cultural items as well as after
a discovery of human remains or
cultural items and before authorizing an
excavation that may result in the
discovery or excavation of human
remains or cultural items. The
Department proposes to simplify the
plan of action in three separate steps
(see proposed § 10.4(b)): (1) Step 1—
Initiate consultation; (2) Step 2—
Consult with requesting parties; and (3)
Step 3—Approve and sign the plan of
action. Consulting parties listed in
§ 10.4(b)(1) would not be considered the
same as consulting parties under other
applicable law, specifically under 36
CFR part 800. The Department proposes
to use specific terms to clarify the
distinction between a consulting party
(as defined in § 10.4(b)(1)(i)) and a
requesting party (any consulting party
that submits a written request to
consult).
In response to consultation with
Indian Tribes and NHOs, the
Department proposes to require that
consultation seek consensus, to the
maximum extent possible, on the
content of the plan of action. In
addition, a record of consultation must
include the effort made to seek
consensus or describe efforts to identify
a mutually agreeable alternative. The
consultation record must note the
concurrence, disagreement, or
nonresponse of the requesting parties to
the plan of action. These requirements
are used throughout the proposed
regulations whenever consultation with
requesting parties is required. The
Department proposes to remove some of
the existing requirements for a plan of
action that are not necessary and overly
intrusive. Depending on the results of
consultation, any of these elements may
be included in a plan of action but are
no longer the minimum requirement for
a plan of action. Specifically, the
Department proposes to remove the
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following items from a plan of action in
the existing regulations at § 10.5(e):
(1) The kinds of objects considered as
cultural items;
(2) The specific information used to
determine disposition;
(4) The planned archaeological
recording;
(5) The kinds of analysis planned for
each kind of object; and
(8) The nature of reports to be
prepared.
The Department proposes to include
in a plan of action the preference of
requesting parties for stabilizing and
covering human remains or cultural
items in situ, protecting and relocating
human remains or cultural items, if
removed, or providing appropriate
treatment, care, or handling of human
remains or cultural items. For example,
under the proposed regulations, a plan
of action might indicate that requesting
parties prefer protection of human
remains or cultural items in situ, but
when that is not possible, the plan of
action may require that the appropriate
official protect and relocate the human
remains or cultural items by burying
them in a nearby location. Once
disposition under § 10.7 is complete
(including any required notice
publication and claim), the claimants
may determine the care, custody, or
physical transfer of the human remains
or cultural items, including deciding to
leave the human remains or cultural
items buried in the nearby location.
In response to consultation with
Indian Tribes and NHOs and based the
experience of Federal agencies with
these requirements since 1990, the
Department is aware of a preference by
some Indian Tribes for allowing natural
exposure or erosion of human remains
or cultural items to continue, without
covering or removing human remains or
cultural items. In those cases, a plan of
action may indicate that requesting
parties prefer the appropriate official
take no action upon the discovery of
human remains or cultural items that
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are naturally exposed. The plan of
action should also indicate what the
appropriate official will do if the human
remains or cultural items cannot be left
in place. If disposition under § 10.7 is
required because the human remains or
cultural items could not be left in place,
the claimants (after notice publication
and claim, if required) may determine
the care, custody, or physical transfer of
the human remains or cultural items,
including returning them to a safe
location to continue a natural process.
3. Comprehensive Agreement
The Department proposes to retain the
option for Federal agencies or DHHL to
enter into a comprehensive agreement
for all land managing activities on
Federal or Tribal lands under its
responsibility. The proposed regulations
would require a comprehensive
agreement be consented to by a majority
of requesting parties and include, at
minimum, the information required in a
plan of action.
Table 5 shows how the Department
proposes to reorganize the existing
regulatory requirements on Federal or
Tribal lands after November 16, 1990.
TABLE 5—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.4
Existing 43 CFR section
10.3(c) ...............
Proposed 43 CFR section
10.4(f) ...............
10.5(g) ..............
Procedures ................................................................
(1) . . . determine whether a planned activity may
result . . .
Notification requirement in authorizations.
New ...........................................................................
Initiation of consultation .............................................
Consulting parties ......................................................
Provision of information .............................................
Requests for information ...........................................
Written plan of action ................................................
Comprehensive agreements .....................................
Procedures ................................................................
(3) planned activity subject to NHPA
Federal agency officials.
Traditional religious leaders ......................................
F. Section 10.5
Discovery
10.4(g) ..............
10.5(b)
10.5(a)
10.5(c)
10.5(d)
10.5(e)
10.5(f)
10.3(c)
..............
..............
...............
..............
..............
...............
...............
This section of the proposed rule
would implement the requirements of
the Act regarding a discovery of human
remains or cultural items on Federal or
Tribal lands after November 16, 1990
(25 U.S.C. 3002(d)). This section would
include and clarify the requirements in
the existing regulations at § 10.4(b)
through (e) regarding discoveries.
1. Reporting and Documentation
Requirements Upon Discovery
The proposed language in § 10.5(a)
and (b) would prescribe specific
reporting and documentation
procedures that any person who knows
or has reason to know of a discovery
must take upon discovery of human
remains or cultural items. Specifically,
the proposed language would:
10.4 ..................
To ensure compliance with the Act, any permit, license, lease . . .
10.4(a) ..............
10.4(b) ..............
Appropriate official.
Plan of action.
(1) Step 1: Initiate consultation
10.4(c) ..............
10.4(d) ..............
(2) Step 2: Consult with requesting parties.
(3) Step 3: Approve and sign the plan of action.
Comprehensive agreement.
Federal agency coordination with other laws.
...........................
Removed. See §§ 10.2 and 10.4(b)(2).
• Establish reporting timeframes
(immediately with written
documentation in 24 hours),
requirements to secure and protect the
discovery, and documentation
requirements to include the location
and contents of the discovery.
• Provide clear instructions for
reporting the discovery in Table 1 to
§ 10.5, which identifies the appropriate
official and the additional point of
contact who must be informed of a
discovery, based on the location of the
discovery.
2. Timeframes To Respond to Discovery
The Department also proposes to
require the appropriate official respond
to any discovery on Federal or Tribal
lands and keep the existing regulations’
timeline of three days. On Tribal lands,
the existing regulations only
recommend actions by an appropriate
official by using the verb ‘‘may’’ in the
existing regulation at § 10.4(e). The
Department proposes to change this to
‘‘require,’’ on Tribal lands in Alaska and
the continental United States, that the
appropriate official for an Indian Tribe
respond to a discovery and certify that
an activity may resume (see proposed
§ 10.5(c) and (e)), with an option to
delegate this responsibility to the
Bureau of Indian Affairs or another
Federal agency. On Tribal lands of an
NHO, the NHO may accept
responsibility for discoveries on its
Tribal lands; otherwise DHHL is
responsible for discoveries on Tribal
lands in Hawai‘i. Table 6 shows the
name of each requirement and a
shortened version of the deadline in the
proposed revisions.
TABLE 6—DISCOVERY
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Requirement
Deadline (no later than)
Report a discovery ...................................................................................
Cease any nearby activity ........................................................................
Respond to a discovery ............................................................................
Approve and sign a plan of action ...........................................................
Certify an activity may resume .................................................................
Resume an activity ...................................................................................
3. Plan of Action
On all Federal lands in the United
States or on Tribal lands in Hawai‘i, the
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24 hours after a discovery.
Immediately.
3 days after a report of a discovery.
30 days after a report of a discovery.
35 days after a report of a discovery.
30 days after certification.
Department proposes (in response to
consultation with Indian Tribes and
NHOs) to revise the existing notification
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and consultation requirements for
discoveries under § 10.4(d)(iii) and (iv)
by requiring a plan of action. Although
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the Act does not require consultation on
a discovery, the Department proposes to
require the appropriate official, in
consultation with Indian Tribes or
NHOs, prepare, approve, and sign a plan
of action within 30 days of a discovery.
The Department hopes that by requiring
a plan of action after a discovery,
Federal agencies and DHHL will be
encouraged to engage in consultation
earlier and develop a plan of action
prior to a discovery. The requirement
for a plan of action is waived if, prior
to the discovery, the appropriate official
approved and signed a comprehensive
agreement or plan of action, or if an
NHO agreed to be responsible for
discoveries on its Tribal lands.
4. Certification and Resumption of
Activity
The Department proposes to provide
additional time for the appropriate
official to certify an activity related to a
discovery may resume. In the existing
regulations at § 10.4(d) and (e), the
appropriate official on Federal or Tribal
lands must certify receipt of a
notification of a discovery within three
days and the activity related to the
discovery may resume 30 days later.
The existing regulations do not allow for
any additional time and do not provide
a mechanism for the appropriate official
to prevent an activity from resuming 33
days after a discovery.
The Department proposes to build in
an additional 35 days, if needed, for
consultation with Indian Tribes and
NHOs, evaluation of the discovery, and
to carry out a plan of action (see
proposed § 10.5(e)). The Department is
specifically seeking input during public
comment on this timeline. The Act
requires that an activity may resume 30
days after the appropriate official
certifies that notification of a discovery
was received (25 U.S.C. 3002(d)(1), last
sentence). The legislative history clearly
indicates that reporting a discovery is
not meant to be an impediment to
resuming a lawful activity on Federal or
Tribal lands. However, the Department
63219
proposes to allow an additional 35 days
in the timeline by separating the
requirements for responding to a
discovery within 3 days from the
requirements for certifying that an
activity may resume within 30 days.
This would allow a maximum of 65
business days (35 business days to
certify and 30 business days later
resume the activity) after a discovery on
Federal or Tribal lands before an
activity could resume. If the appropriate
official determines an earlier date for
resuming the activity is acceptable,
there is no restriction against certifying
the activity may resume within less than
65 days. The proposed change would
allow the appropriate official more time,
if needed, to consult with Indian Tribes
and NHOs, evaluate the potential need
for an excavation, and carry out the
steps in a plan of action.
Table 7 shows how the Department
proposes to reorganize the existing
regulatory requirements regarding a
discovery.
TABLE 7—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.5
(1) Existing 43 CFR section
10.4(b)
10.4(c)
10.4(d)
10.4(e)
10.4(d)
10.4(d)
10.4(e)
10.4(a)
..............
...............
..............
..............
..............
..............
..............
..............
G. Section 10.6
Discovery ...................................................................
Ceasing activity .........................................................
(1) As soon as possible, but no later than three (3)
working days . . .
(1) (iv) Initiate consultation ........................................
(2) Resumption of activity .........................................
10.5(a) ..............
10.5(b) ..............
10.5(c) ..............
Report any discovery.
Cease any nearby activity.
Respond to a discovery.
10.5(d) ..............
10.5(e) ..............
Approve and sign a plan of action.
Certify that an activity may resume.
General ......................................................................
...........................
Removed.
Excavation
This section of the proposed rule
would implement the requirements of
the Act regarding excavation of human
remains or cultural items on Federal or
Tribal lands after November 16, 1990
(25 U.S.C. 3002(c)). This section would
include and clarify the requirements in
the existing regulations at § 10.3(b) and
(c) regarding excavations.
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1. Jurisdiction to Issue ARPA Permit
The Department proposes to revise
the existing regulations to clarify the
jurisdiction of a Federal agency to issue
a permit under Section 4 of the
Archaeological Resources Protection Act
(ARPA) for an excavation. This
proposed change, based on the
legislative history of NAGPRA, would
address requests from Federal agencies
and DHHL to correct the scope of
jurisdiction in the existing regulations at
§ 10.3(b)(1), which requires the Bureau
of Indian Affairs to take certain actions
on private lands for which they do not
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have jurisdictional authority. The
Department proposes that an excavation
on Federal or Tribal lands would only
require a permit under the ARPA (16
U.S.C. 470cc) if the excavation would
occur on ‘‘Indian lands’’ or ‘‘public
lands’’ under ARPA (referred to and
defined as ‘‘ARPA Indian lands’’ and
‘‘ARPA public lands’’), subject to the
exemptions in the ARPA Uniform
Regulations. ARPA’s definition of
‘‘Indian lands’’ and ‘‘public lands’’ is
narrower than ‘‘Tribal lands’’ and
‘‘Federal lands’’ under NAGPRA, which
is why the Department proposes to
include the ARPA definitions in these
proposed regulations. The legislative
history of NAGPRA makes clear that
Congress intended to protect human
remains and cultural items by requiring
ARPA permits be issued for NAGPRA
excavations when a permit is also
required under ARPA.
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2. Requirement for Consent to
Excavation
Consistent with the Act, the proposed
language in § 10.6(a) would require, on
Tribal lands, an Indian Tribe or NHO to
consent in writing to an excavation. On
Tribal lands in Alaska and the
continental United States, an Indian
Tribe may delegate this responsibility to
the Bureau of Indian Affairs or another
Federal agency. On Tribal lands of an
NHO, the NHO may accept
responsibility for excavations on its
Tribal lands; otherwise DHHL is
responsible for excavations on Tribal
lands in Hawai‘i.
3. Requirement for Plan of Action Prior
To Authorizing Excavation
On all Federal lands in the United
States or on Tribal lands in Hawai‘i, the
Department proposes (in response to
consultation with Indian Tribes and
NHOs) to revise the notification and
consultation requirements for
excavations under existing § 10.3(c)(1)
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Proposed Rules
by requiring a plan of action prior to
authorizing an excavation of human
remains or cultural items. The Act
requires consultation with the
appropriate Indian Tribe or NHO prior
to permitting an excavation, and the
Department proposes to require the
appropriate official, in consultation
with Indian Tribes and NHOs, prepare,
approve, and sign a plan of action prior
to authorizing an excavation of human
remains or cultural items as proof of
consultation. The Department hopes
that by requiring a plan of action before
authorizing an excavation, Federal
agencies and DHHL will be encouraged
to engage in consultation earlier and
develop a plan of action prior to any
need for an excavation. The requirement
for a plan of action is waived if, prior
to authorizing the excavation of human
remains or cultural items, the
appropriate official approved and
signed a comprehensive agreement or
plan of action, or if an NHO agreed to
be responsible for excavations on its
Tribal lands.
Table 8 shows how the Department
proposes to reorganize the existing
regulatory requirements regarding
excavation and consultation.
TABLE 8—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.6
(1) Existing 43 CFR section
10.3(b) ..............
(1) Proposed 43 CFR section
10.3(a) ..............
10.3(b) ..............
Specific Requirements. (1) . . . following the requirements of ARPA . . .
(2) . . . in the case of tribal lands, consent of, the
appropriate . . .
(4) Proof of the consultation or consent is shown
. . .
Procedures.
(4) . . . on tribal lands, the Indian tribe or NHO
may . . .
Procedures ................................................................
(1) . . . the Federal agency official must notify in
writing . . .
(2) . . . must complete a written plan of action . . .
General ......................................................................
(3) The disposition of the objects . . . .....................
H. Section 10.7
Disposition
10.3(b) ..............
10.3(c) ...............
10.3(c) ...............
This section of the proposed rule
would implement the requirements of
the Act regarding the disposition of
human remains or cultural items
removed from Federal or Tribal lands
after November 16, 1990 (25 U.S.C.
3002(a) and (b)). This section would
include and clarify the requirements in
the existing regulations at §§ 10.6 and
10.7 regarding dispositions.
1. Consistent Use of the Term
‘‘Disposition’’
The Department proposes to replace
the term ‘‘disposition’’ in the existing
regulations with two separate terms:
‘‘disposition’’ and ‘‘repatriation.’’ In the
proposed revision, ‘‘disposition’’
applies consistently throughout but only
to Subpart B. In the existing regulations,
‘‘disposition’’ and the undefined word
custody are used interchangeably at
10.6 ..................
10.6(a) ..............
A permit under Section 4 of ARPA is required when
. . .
On Tribal lands.
10.6(b) ..............
On Federal lands in the United States or on Tribal
lands in Hawai‘i.
...........................
...........................
Removed.
Removed.
times while ‘‘disposition’’ is also used
as a catch-all term for any transfer of
human remains or cultural items under
the regulations. The Act uses the terms
‘‘ownership,’’ ‘‘right of control of the
disposition,’’ and ‘‘disposition of and
control over’’ in describing this process
(25 U.S.C. 3002). In the proposed
revision, ‘‘disposition’’ is the title of this
section and means the appropriate
official acknowledges and recognizes a
lineal descendant, Indian Tribe, or
Native Hawaiian organization has
control or ownership of human remains
or cultural items removed from Federal
or Tribal lands.
2. Timeline for Disposition
In response to consultation with
Indian Tribes and NHOs, the
Department proposes to require that
disposition occur as soon as possible,
but no later than one year, after the
discovery or excavation of human
remains or cultural items on Federal or
Tribal lands. In the existing regulations,
there is no deadline for disposition, and
the Department is aware of many
instances where human remains or
cultural items have not completed the
regulatory process for years or even
decades after discovery or excavation.
This timeline will ensure that, on all
Federal lands in the United States or on
Tribal lands in Hawai‘i, when
disposition cannot be completed within
one year, the Federal agency or DHHL
reports the human remains or cultural
items to the Manager, National
NAGPRA Program.
The Department proposes to clarify
the requisite steps for disposition by
establishing a step-by-step process with
corresponding deadlines. Table 9 shows
the name of each step and a shortened
version of the deadline in the proposed
revisions.
TABLE 9—STEP-BY-STEP PROCESS FOR DISPOSITION
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Step number and name
Step
Step
Step
Step
Step
Deadline (no later than)
1—Inform consulting parties ............................................................
2—Submit a notice of intended disposition .....................................
3—Receive and consider a claim for disposition ............................
4—Respond to a claim for disposition .............................................
5—Disposition of the human remains or cultural items ..................
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6 months after a discovery or excavation.
6 months after Step 1.
Any time after notice publication.
30 days after Step 3.
90 days after Step 4.
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3. Priority for Disposition
The Department proposes to simplify
and clarify information contained in the
existing regulations at § 10.6(a). The
proposed revisions are consistent with
the Act and the existing regulations in
establishing the priority for disposition
(see proposed § 10.7(a)), which can be
simplified to be:
(1) Lineal descendants,
(2) Tribal lands Indian Tribe or NHO,
(3) Indian Tribe or NHO with clear
cultural affiliation,
(4) Indian Tribe or NHO with
reasonably identified cultural affiliation,
(5)(i) Adjudicated aboriginal land
Indian Tribe, and
(5)(ii) Indian Tribe with a stronger
cultural relationship than (5)(i).
4. Align Disposition to a Lineal
Descendant or on Tribal Lands to the
Act
The Department proposes to remove
the requirement in the existing
regulations at § 10.6(c) for publishing
notices or requiring claims for
disposition to a lineal descendant. The
existing regulations do not provide any
requirements for disposition of human
remains or cultural items from Tribal
lands. The Department proposes to
require written documentation for
disposition to a lineal descendant or on
Tribal lands to better align with the Act
(25 U.S.C. 3002(a)(1) and (2)(A); note
the lack of a requirement for a notice or
claim). On Tribal lands in Alaska and
the continental United States, an Indian
Tribe may delegate its responsibilities
for disposition to the Bureau of Indian
Affairs or another Federal agency. On
Tribal lands of an NHO, the NHO may
accept responsibility for dispositions on
its Tribal lands; otherwise DHHL is
responsible for dispositions on Tribal
lands in Hawai‘i.
63221
5. Revise Requirements for Notices and
Claims for Disposition
a stay of disposition to acquire further
evidence or information.
The Department proposes to revise
language in the existing regulations at
§ 10.6(c) describing the requirements for
Federal agencies to publish notices,
receive claims, and complete
dispositions in one paragraph with long,
complex sentences. On all Federal lands
in the United States and on Tribal lands
in Hawai‘i, the proposed revisions
would provide five clearly written steps
to complete the disposition of human
remains or cultural items and establish
deadlines and timelines.
The Department proposes to change
the notice publication requirement in
the existing regulations at § 10.6(c) that
requires two publications of a notice in
local area newspapers at least one week
apart. This requirement has become
increasingly burdensome given the
general changes in newspaper
publications since 1995. The
Department proposes to require only
one publication in the Federal Register
by the Manager, National NAGPRA
Program.
The Department proposes a new
requirement for completing dispositions
by sending claimants and the Manager,
National NAGPRA Program, a written
disposition statement. In the case of
joint claims for disposition, the
disposition statement would identify
and be sent to all claimants. In the case
of competing claims for disposition, the
proposed revisions give guidance and
timelines for identifying the most
appropriate claimant and completing
the disposition. The Act requires that
the Federal agency apply the priority
order and determine the ‘‘closest
cultural affiliation’’ based on the
evidence before it (25 U.S.C.
3002(a)(2)(B)) and does not provide for
6. Unclaimed Human Remains or
Cultural Items
The Department proposes to move the
existing section at § 10.7 to be a
paragraph under the larger disposition
section and modify the existing
timeline. On all Federal lands in the
United States or on Tribal lands in
Hawai‘i, when disposition cannot be
completed within one year of a
discovery, excavation, or notice of
intended disposition, the proposed
revisions require that the Federal agency
or DHHL must report the human
remains or cultural items to the
Manager, National NAGPRA Program.
These provisions would apply to any
human remains or cultural items that
were discovered or excavated on
Federal lands in the United States or on
Tribal lands in Hawai‘i after November
16, 1990, even if it has been more than
one year since the discovery,
excavation, or notice of intended
disposition. Federal agencies and DHHL
should submit a list of all unclaimed
human remains or cultural items
removed from Federal or Tribal lands.
As in the existing regulations at § 10.7(c)
through (e), the proposed revisions
would provide a process whereby a
Federal agency or DHHL may transfer or
reinter unclaimed human remains or
cultural items, after it publishes a notice
of proposed transfer or reinterment.
The Department proposes to clarify
the requisite steps for unclaimed human
remains or cultural items by
establishing a step-by-step process with
corresponding deadlines. Table 10
shows the name of each step and a
shortened version of the deadline in the
proposed revisions.
TABLE 10—STEP-BY-STEP PROCESS FOR UNCLAIMED HUMAN REMAINS OR CULTURAL ITEMS
Step number and name
Deadline (no later than)
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Step 1—Submit a list of unclaimed cultural items ...................................
Step 2—Agree to transfer or decide to reinter human remains or cultural items.
Step 3—Submit a notice of proposed transfer or reinterment .................
Step 4—Transfer or reinter the human remains or cultural items ...........
Table 11 shows how the Department
proposes to reorganize and revise the
1 year after effective date, update by Dec 31 each year.
Any time after Step 1.
30 days after Step 2.
90 days after Step 3.
existing regulatory requirements
regarding disposition.
TABLE 11—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.7
(1) Existing 43 CFR section
10.6(a) ..............
10.15(d) ............
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Priority of custody ......................................................
New ...........................................................................
Savings provisions ....................................................
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10.7(a) ..............
10.7(b) ..............
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Priority for disposition.
To a lineal descendant.
(3) After the disposition statement is sent . . .
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TABLE 11—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.7—Continued
(1) Existing 43 CFR section
10.15(d) ............
10.10(c) .............
10.6(c) ...............
New ...........................................................................
Savings provisions ....................................................
(3) . . . from expressly relinquishing title to . .
Final notice, claims and disposition with respect to
Federal lands.
10.15(d) ............
10.10(c) .............
10.7 ...................
10.7(b) ..............
Savings provisions ....................................................
(3) . . .from expressly relinquishing title to . . .
Disposition of unclaimed . . . ...................................
(1) Submit a list of items . . .
10.7(c) ...............
. . . upon request, transfer . . .
10.7(d) ..............
10.7(e) ..............
. . . reinter . . .
(2) Publish a notice of the proposed transfer or reinterment . . .
New ...........................................................................
Savings provisions.
(3) . . . from expressly relinquishing title to . . .
Custody of human remains . . . ...............................
(2) Care for and manage . . . ..................................
(3) To the maximum extent feasible . . . .................
This section carries out . . . .....................................
(1) Submit the list required . . . ...............................
(3) Send to the Manager, National NAGPRA Program . . .
10.15(d) ............
10.10(c) .............
10.6(b) ..............
10.7(b) ..............
10.7(a) ..............
10.7(e) ..............
I. Section 10.8 General
This section of the proposed rule
would provide a general overview to
Subpart C and clarify the requirements
for museums and Federal agency with
possession or control of holdings or
collections. The section would
consolidate general information in the
existing regulations at §§ 10.8(a),
10.9(a), 10.11(e), and 10.17(a). The
Department proposes to revise the title
of Subpart C (in response to
consultation with Indian Tribes and
NHOs) to better reflect the intent of
Congress for these sections of the Act
(25 U.S.C. 3003–3005).
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1. Clarify Who Has Responsibility for
Holdings or Collections
The Department proposes to clarify,
regardless of the physical location of a
holding or collection, who is
responsible for carrying out the
requirements of the Act. The proposed
revisions would provide both museums
and Federal agencies with instructions
on determining possession or control of
holdings or collections. As discussed in
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10.7(c) ..............
On Tribal lands.
(4) After the disposition statement
10.7(d) ..............
On Federal lands in the United States or on Tribal
lands in Hawai‘i.
(1) Step 1: Inform consulting parties.
(2) Step 2: Submit a notice of intended disposition.
(3) Step 3: Receive and consider a claim for disposition.
(4) Step 4: Respond to a claim for disposition.
(5) Step 5: Disposition of the human remains or cultural items.
(5)(iii) After the disposition statement . . .
10.7(e) ..............
Unclaimed human remains or cultural items . . .
(1) Step 1: Submit a list of unclaimed human remains or cultural items.
(2) Step 2: Agree to transfer or decide to reinter
human remains or cultural items.
(3) Step 3: Submit a notice of proposed transfer or
reinterment.
(4) Step 4: Transfer or reinter the human remains or
cultural items.
(4)(ii) After transfer or reinterment occurs . . .
10.1(d) ..............
Removed.
Duty of care.
Removed.
the definition section, whether a
museum or Federal agency has
possession or control is a legal
determination that must be made on a
case-by-case basis. However, when a
museum with custody of human
remains or cultural items cannot
identify any person, institution, State or
local government agency, or Federal
agency with possession or control, the
museum should presume it has
possession or control for purposes of
Subpart C. When a Federal agency
cannot determine if human remains or
cultural items came into its possession
or control before or after November 16,
1990, or cannot identify the type of land
the human remains or cultural items
were removed from, the Federal agency
should presume it has possession or
control for purposes of Subpart C.
2. Museums With Custody of a Federal
Agency Holding or Collection
The Department proposes two new
requirements aimed at locating Federal
collections in non-Federal museums
(see proposed § 10.8(c)). Specifically,
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the proposed language would require
that:
• A museum must submit a statement
describing Federal holdings or
collections in its custody to the
responsible Federal agency and to the
Manager, National NAGPRA Program,
no later than one year after the effective
date of the final rule; and
• Within 120 days of receiving such
a statement, the Federal agency must
acknowledge its possession or control of
a holding or collection, acknowledge
that it does not have possession or
control of a holding or collection, or
acknowledge it has joint possession or
control with the museum.
These new requirements are a direct
response to requests from Federal
agencies and Indian Tribes who struggle
to locate Federal collections in nonFederal museums. In 2010, the
Government Accountability Office
commented on this issue in its report on
Federal agency compliance with the
Act. Addressing this issue, the
Department’s detailed response to the
Government Accountability Office’s
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report stated, ‘‘These instances illustrate
the importance of repositories notifying
agencies upon discovery of Federal
collections in their possession.’’ This
requirement is consistent with the
conditions for repositories holding
Federal collections under 36 CFR part
79, its referenced Federal property
management authorities, and the
Secretary’s authority to prescribe
regulations relating to Indian affairs
under 25 U.S.C 9 (United States v.
Eberhardt, 780 F.2d 1354, 1360 (9th
Cir.1986)).
If a museum has custody of a holding
or collection from multiple agencies or
is unsure which Federal agency has
possession or control of the holding or
collection, the museum must send
information on the holding or collection
to any Federal agency that might have
an interest and to the Manager, National
NAGPRA Program. If a museum is
unsure of who the appropriate point of
contact is for a Federal agency, the
Department recommends contacting the
Federal Preservation Officer to assist in
identifying the appropriate agency
contact. The Advisory Council on
Historic Preservation keeps an updated
list at https://www.achp.gov/protectinghistoric-properties/fpo-list. In
responding to such statement, a Federal
agency need not perform exhaustive
research to determine whether it has
possession or control of the collection,
but it must merely assess the museum’s
statement on possession or control
based on the information available to
the Federal agency.
3. Museums With Custody of Other
Holdings or Collections
The Department proposes a new
requirement for museums with custody
of holdings or collections for which the
museum cannot identify who has
possession or control. The museum
would be required to submit a statement
63223
describing holdings or collections in its
custody for which it cannot identify any
person, institution, State or local
government agency, or Federal agency
with possession or control. The
statement would be sent to the Manager,
National NAGPRA Program, no later
than one year after the effective date of
the final rule. This new requirement is
a direct response to requests from
Indian Tribes who struggle to determine
their rights to holdings or collections in
the custody, but not in the possession or
control, of a museum. The Manager,
National NAGPRA Program, would
share this information with appropriate
parties to determine possession and
control and proceed with the inventory,
summary, and repatriation processes.
Table 12 shows how the Department
proposes to reorganize and add to the
existing regulatory requirements for
museum or Federal agency holdings or
collections.
TABLE 12—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.8
(1) Existing 43
CFR section
(1) Proposed 43 CFR section
10.8(a) ................
10.9(a)
General .....................................................................
New ...........................................................................
10.8(a) ..............
10.8(b) ..............
10.8(c) ..............
10.8(d) ..............
10.11(e) ..............
10.17(a) ..............
Disputes ....................................................................
Formal and informal resolutions.
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J. Section 10.9 Repatriation of
Unassociated Funerary Objects, Sacred
Objects, and Objects of Cultural
Patrimony
This section of the proposed rule
would implement the requirements of
the Act regarding summaries of holdings
or collections to facilitate the
repatriation of unassociated funerary
objects, sacred objects, or objects of
cultural patrimony (25 U.S.C. 3004 and
3005). In response to consultation with
Indian Tribes and NHOs, the
Department proposes to retain the
existing requirement that a museum or
Federal agency prepare a summary for
any holding or collection that may
contain unassociated funerary objects,
sacred objects, or objects of cultural
patrimony. NAGPRA requires ‘‘Each
Federal agency or museum which has
possession or control over holdings or
collections of Native American
unassociated funerary objects, sacred
objects, or objects of cultural patrimony
shall provide a written summary of such
objects based upon available
information held by such agency or
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10.8(e) ..............
Museum holding or collection.
Federal agency holding or collection
Museums with custody of a Federal agency holding
or collection.
Museums with custody of other holdings or collections.
Contesting actions on repatriation.
museum’’ (25 U.S.C. 3004(a)). The
statutory language is unclear whether
summaries should include only the
unassociated funerary objects, sacred
objects, or objects of cultural patrimony,
or the entire collection which may
include these cultural items. The Act
was enacted for the benefit of Indians
and therefore the canon of construction
applies that statutes ‘‘are to be
construed liberally in favor of the
Indians, with ambiguous provisions
interpreted to their benefit’’ (Yankton
Sioux Tribe v. United States Army
Corps of Engineers, 83 F. Supp 2d 1047,
1056 (D.S.D. 2000)). The legislative
history and statutory language are clear
that the summary is intended as an
initial step in bringing an Indian Tribe
and Native Hawaiian organization into
consultation with a museum or Federal
agency. As Indian Tribes and NHOs
noted during consultation,
identification of specific sacred objects
or objects of cultural patrimony must be
done in consultation with Indian Tribe
or NHO representatives and traditional
religious leaders since few, if any,
museums or Federal agencies have the
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Sfmt 4702
necessary personnel to make such
identifications. Further, identification of
specific unassociated funerary objects,
sacred objects, and objects of cultural
patrimony would require a museum or
Federal agency to complete an item-by
item listing first. That would be directly
contrary to Congress’s admonition that a
summary should not be an object-byobject listing (25 U.S.C. 3004(b)(1)(A)).
The Department proposes to
consolidate the requirements for
repatriation of unassociated funerary
objects, sacred objects, and objects of
cultural patrimony into a seven-step
process in a single section. These same
requirements are currently spread out
among the existing regulations at
§§ 10.8, 10.10, and 10.13. In addition,
the Department proposes to add more
detailed instructions for evaluating
multiple requests for repatriation and
resolving stays of repatriation than
currently in the existing regulations at
§ 10.10(c).
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Proposed Rules
1. Establish a Step-by-Step Process for
Repatriation
The Department proposes to clarify
the requisite steps for repatriation by
establishing a step-by-step process with
corresponding deadlines. Table 13
shows the name of each step and a
shortened version of the deadline in the
proposed revisions.
TABLE 13—STEP-BY-STEP PROCESS FOR REPATRIATION
Step number and name
Deadline (no later than)
Step 1—Complete a summary . . . .........................................................
Step 2—Initiate consultation .....................................................................
Step 3—Consult with requesting parties ..................................................
Step 4—Receive and consider a request for repatriation ........................
Step 5—Respond to a request for repatriation ........................................
Step 6—Submit a notice of intended repatriation ....................................
Step 7—Repatriation of the unassociated funerary object, sacred object, or objects of cultural patrimony.
The intent of these proposed revisions
is to correct inaccuracies and
ambiguities in the existing regulations
by using a clear, easy to follow, step-bystep process, and ensure a timely
resolution of any requests for
repatriation. For example, the proposed
revisions would clarify, consistent with
the Act, that invitations to consult
follow the completion of a summary. In
the existing regulations at § 10.8(d)(2),
consultation is initiated ‘‘no later than
the completion of the summary
process.’’
The proposed revisions would also
directly address a required step that
lacks explanation or deadlines in the
existing regulations. The Department
proposes in Step 5 to require a museum
or Federal agency to respond no later
than 60 days after receiving a request for
repatriation. The Department also
proposes four specific options for the
response, summarized as follows:
(1) Accept the request and agree to the
repatriation.
(2) Reject the request, explain why,
and ask for more information.
(3) Assert and prove a right of
possession and refuse repatriation.
(4) Determine the most appropriate
requestor among competing requests.
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2. Update Deadlines, Establish New
Timelines, and Clarify Procedures
To update deadlines for completing a
summary, the proposed revisions
integrate all the deadlines for
completing a summary in the first
paragraph (see proposed § 10.9(a), Table
1 to § 10.9). The proposed revisions
would identify the past required
deadlines for completing a summary
(i.e., November 16, 1993). The Act does
not clearly indicate when museums or
Federal agencies must complete a
summary after the statutory deadline for
reporting had passed. The existing
regulations at § 10.13 provide these
requirements for newly acquired or
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6 months for a new collection.
30 days after Step 1.
10 days after a request, propose a timeline for consultation.
Any time after a summary is complete.
60 days after Step 4.
30 days after Step 5.
90 days after notice publication.
newly regulated holdings or collections
beginning in 2007. The proposed
revisions use the same deadlines as the
existing regulations.
To establish new timelines, the
proposed revisions would require in
Step 2 a written request to consult. This
new requirement for a written request to
consult (which can include email) is
necessary to then require a museum or
Federal agency to respond to the request
within 10 days. In this same
subparagraph, the proposed revisions
require requests to consult be submitted
prior to a notice publication. This
requirement ensures the repatriation
process moves forward by certain
deadlines in later steps. After
publication of a notice, any party, even
if they have not requested to consult,
can make a request for repatriation as a
competing claim (see proposed
§ 10.9(f)(4)).
To clarify procedures, the proposed
revisions would require in Step 4 that
any party wishing to make a request for
repatriation must do so in writing. In
the existing regulations at §§ 10.8 and
10.10, there are references to making
requests for repatriation, but not until
the very end of the process under
notification in the existing regulations at
§ 10.10(a)(3) is it clear that such a
request must be in writing. The
Department is specifically seeking input
during public comment on the
deadlines for responding to a request for
repatriation and sending a repatriation
statement.
3. Require That Consultation Seek
Consensus
In response to consultation with
Indian Tribes and NHOs, the
Department proposes to require that
consultation seek consensus, to the
maximum extent possible. In addition, a
record of consultation must include the
effort made to seek consensus or
describe efforts to identify a mutually
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Sfmt 4702
agreeable alternative. For any
determination considered during the
consultation process, the consultation
record must note the concurrence,
disagreement, or nonresponse of the
requesting parties. These requirements
are used throughout the proposed
regulations whenever consultation with
requesting parties is required.
4. Protect Sensitive Information and
Disclose Hazardous Substances
The Department proposes to remove
the existing regulations at
§ 10.8(d)(4)(iii) because it requires
Indian Tribes and NHOs to provide
information about funerary objects,
sacred objects, or objects of cultural
patrimony. This kind of information is
often very sensitive and providing it in
writing or in the absence of qualified
persons within the Indian Tribe or NHO
might be inappropriate. The proposed
language would still provide for an
exchange of information about the types
of objects that might be unassociated
funerary objects, sacred objects, or
objects of cultural patrimony, but would
do so in a way to allow for sensitive
information to be protected.
In the existing regulations at
§ 10.10(e), museums and Federal
agencies must inform Indian Tribes and
NHOs about any potentially hazardous
substances used to treat any of the
objects only after repatriation has
occurred. The proposed revisions would
require a museum or Federal agency to
disclose information about the presence
of any potentially hazardous substances
first in the summary (see proposed
§ 10.9(a)(1)(v)) and second in the notice
of intended repatriation (see proposed
§ 10.9(f)(1)(vi)).
5. Clarify Requirements for Notices
The proposed revisions clearly
outline informational requirements for a
Federal Register notice and do so with
greater detail than the existing
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regulations at § 10.8(f). To protect
potentially sensitive information, the
only location information that would be
required is the county and State where
the unassociated funerary object, sacred
object, or object of cultural patrimony
were removed, if known. Other
informational requirements of a Federal
Register notice would include: (1) the
identification of the cultural item
specifically as an unassociated funerary
object, a sacred object, an object of
cultural patrimony, or both a sacred
object and an object of cultural
patrimony; (2) the requestor, with no
requirement that other lineal
descendants or Indian Tribes or NHOs
with cultural affiliation be listed in the
notice; and (3) a brief abstract of the
information showing the requestor is a
lineal descendant or an Indian Tribe or
NHO with cultural affiliation.
In enumerating the unassociated
funerary objects, sacred objects, or
objects of cultural patrimony in a notice,
museums and Federal agencies would
be encouraged to count in a way that
reduces the chances of having to issue
a correction notice. For example,
identifying 3 lots of shell beads means
that no matter the exact number of
beads present, the count would stand,
whereas identifying exactly 1,960 shell
beads in a notice would mean that if
additional (or fewer) beads were located
before repatriation occurs, a correction
notice would be required because the
number of objects would have changed.
63225
6. Written Repatriation Statement
The Department proposes to require a
new document to complete the
repatriation of an unassociated funerary
object, sacred object, or object of
cultural patrimony to a requestor. A
written repatriation statement would be
sent to and would identify all requestors
in the case of joint requests. In
accordance with the recommendation
by the Government Accountability
Office in a 2010 report on the
implementation of the Act, a copy of the
repatriation statement would also be
sent to the Manager, National NAGPRA
Program. Table 14 shows how the
Department proposes to reorganize the
existing regulatory requirements for
repatriation of unassociated funerary
objects, sacred objects, and objects of
cultural patrimony.
TABLE 14—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.9
Existing 43 CFR section
10.8(b) ..............
10.8(e) ..............
10.10(e) ............
Proposed 43 CFR section
10.13(b) ............
Contents of summaries .............................................
Using summaries to determine affiliation ..................
. . . inform recipients of repatriation . . . treatment
with potentially hazardous substances.
New holdings or collections ......................................
10.13(d) ............
10.8(c) ...............
New Federal funds.
Completion ................................................................
10.13(b) ............
(3) Previously prepared summary or inventory. ........
10.8(d) ..............
Consultation ...............................................................
(1) Consulting parties ................................................
(2) Initiation of consultation .......................................
New ...........................................................................
10.13(c) .............
New Indian Tribes .....................................................
10.8(d) ..............
(4) Requests for information .....................................
10.9(a) ..............
10.9(b) ..............
10.9(c) ..............
New ...........................................................................
10.8(d) ..............
(3) Provision of information .......................................
New ...........................................................................
10.10(a) ............
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10.8(f) ...............
10.10(e) ............
10.13(b)
10.13(e)
10.10(a)
10.10(d)
............
............
............
............
10.10(f) .............
10.15(d) ............
10.10(c) .............
10.10(c) .............
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(1) Criteria .................................................................
New ...........................................................................
Notification .................................................................
. . . treatment with potentially hazardous substances.
(2) Additional pieces or fragments. ...........................
Amendment of previous decision.
(3) Notification ...........................................................
Place and manner of repatriation.
Record of repatriation.
Savings provisions.
(2) Circumstances where there are multiple requests for repatriation.
Exceptions .................................................................
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10.9(d) ..............
10.9(e) ..............
10.9(f) ...............
Step 1: Complete a summary of . . .
(1) A summary must include . . .
(1)(v) The presence of any potentially hazardous
substances . . .
(2) After [effective date of final rule], . . . must submit a summary . . .
(3) Prior to [effective date of final rule], . . . must
have submitted a summary . . .
(4) After [effective date of final rule], . . . acquires
possession or control of a holding or collection
that contains . . .
Step 2: Initiate consultation.
(1) Consulting parties are . . .
(2) An invitation to consult must . . .
(3) Any consulting party . . . must . . .
(4) . . . identifies a new consulting party . . .
(4)(ii) . . . after the addition of a Tribal entity to the
list of federally recognized Indian Tribes . . .
Step 3: Consult with requesting parties
(1) . . . a museum or Federal agency must ask for
the following information . . .
(2) The consultation process must . . .
(3) The museum or Federal agency must prepare a
record of consultation . . .
(4) . . . A museum or Federal agency must provide
access to the additional information . . .
Step 4: Receive and consider a request for repatriation.
(1) A request for repatriation . . . must be received
. . .
(2) Requests from two or more . . .
(3) A request for repatriation must satisfy . . .
Step 5: Respond to a request for repatriation.
Step 6: Submit a notice of intended repatriation
(1)(vi) . . . the presence of any potentially hazardous
(3) If the number or identity . . . changes . . .
10.9(g) ..............
Step 7: Repatriation of the unassociated funerary
object, sacred object, or object of cultural patrimony.
10.9(h) ..............
Evaluating competing requests for repatriation.
10.9(i) ...............
Stay of repatriation.
Sfmt 4702
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Proposed Rules
TABLE 14—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.9—Continued
Existing 43 CFR section
10.8(d) ..............
I (4)(iii) Kinds of cultural items
K. Section 10.10 Repatriation of
Human Remains and Associated
Funerary Objects
This section of the proposed rule
would implement the requirements of
the Act regarding inventories of
holdings or collections to facilitate the
repatriation of human remains and
associated funerary objects (25 U.S.C.
3003 and 3005). The Department
proposes to consolidate the
requirements for repatriation of human
remains and associated funerary objects
into an eight-step process in a single
section. These same requirements are
currently spread out among the existing
regulations at §§ 10.9, 10.10, 10.11, and
10.13. In addition, the Department
proposes to add more detailed
instructions for evaluating multiple
requests for repatriation and resolving
stays of repatriation than currently in
the existing provisions at § 10.10(c).
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1. Eliminate ‘‘Culturally Unidentifiable’’
On March 15, 2010, the Department
issued a final rule with request for
comment that codified procedures for
the disposition of culturally
unidentifiable Native American human
remains in the possession or control of
museums or Federal agencies (75 FR
12378, March 15, 2010). These
procedures require museums and
Federal agencies to consult with, and
transfer control of, culturally
unidentifiable human remains to the
Indian Tribes and NHOs from whose
Tribal lands or from whose aboriginal
lands the human remains were
removed.
Comments on the March 15, 2010,
final rule raised concerns that the
financial burden on museums of
consultation and disposition of
culturally unidentifiable human
remains would be ‘‘tremendous,’’
‘‘onerous,’’ ‘‘overwhelming,’’ ‘‘ruinous,’’
or ‘‘significant.’’ However, since the Act
became law in 1990, museums and
Federal agencies have accounted for
over 84,000 Native American human
remains in notices, including over
21,000 culturally unidentifiable human
remains, with no indication that a single
museum has suffered overwhelming or
ruinous consequences from compliance
with the Act. Every year since 1994,
Congress has provided approximately
$2 million dollars in grant funds for
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....................................
Removed.
consultation and repatriation activities
to assist in compliance with the Act.
Comments for the March 15, 2010,
final rule also raised questions about
what types of relationships were
required for disposition of culturally
unidentifiable human remains. Using a
geographic relationship between an
Indian Tribe or NHO and human
remains and associated funerary objects
for the purpose of repatriation aligns
with the Act’s requirements for
museums and Federal agencies to
‘‘identify the geographical and cultural
affiliation of such items’’ and with the
general intent of repatriation under the
Act. As noted in the response to
comments for the March 15, 2010, final
rule, the disposition of human remains,
funerary objects, sacred objects, and
objects of cultural patrimony to Indian
Tribes and NHOs based on criteria other
than cultural affiliation was clearly
anticipated by Congress.
Section 3002(a)(2) of the Act which
was used as the model for the March 15,
2010, final rule specifically authorizes
disposition of human remains, funerary
objects, sacred objects, or objects of
cultural patrimony removed from
Federal or Tribal lands after November
16, 1990 to the Indian Tribe or NHO on
whose Tribal lands the human remains
or cultural items were removed, to the
Indian Tribe or NHO with cultural
affiliation to the human remains or
cultural items, or to the Indian Tribe
having aboriginally occupied the
Federal land where the human remains
or cultural items were removed.
Significantly, under the Act, ownership
or control of human remains or cultural
items based on Tribal lands origin is
given a higher priority than cultural
affiliation. Consistent with the terms of
the Act, the 2010 rule codified a process
for disposition of culturally
unidentifiable human remains to the
Indian Tribe or NHO from whose Tribal
lands, at the time of excavation or
removal, or from whose aboriginal land
the human remains were removed. In
addition to the Act, the implementing
regulations rely on the specific
recommendations from the Review
Committee for disposition of culturally
unidentifiable human remains and
additional information gleaned from
culturally unidentifiable inventories.
The existing regulations are consistent
with the Department’s determination
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that it was reasonable and appropriate
for the disposition of culturally
unidentifiable human remains to be
based on geographical information given
that the designation of ‘‘culturally
unidentifiable’’ is often due to a lack of
information occasioned by some
collection practices rather than a lack of
geographical information.
To streamline the existing regulations
at § 10.11 regarding disposition of
human remains and associated funerary
objects currently referred to as
culturally unidentifiable, the
Department proposes to incorporate the
concepts underlying the existing
regulations more logically into the
overall inventory and repatriation
process. As a result, the Department also
proposes to generally remove the term
‘‘culturally unidentifiable’’ as the
streamlining of these concepts would
make this term no longer serve a useful
regulatory purpose. Further, this
proposed change is intended to more
accurately reflect the geographically
focused analysis required for an
inventory of human remains and
associated funerary objects. As
discussed above, the proposed revisions
identify two kinds of affiliation for
purposes of repatriation: cultural or
geographical. As discussed in more
detail below, the proposed revisions
would require that an inventory of
human remains and associated funerary
objects include determinations of both
cultural and geographical affiliation or
an explanation why no affiliation could
be identified.
2. Require Repatriation of Associated
Funerary Objects
While the existing regulations at
§ 10.11 mandate the disposition of
certain categories of culturally
unidentifiable human remains by
museums and Federal agencies upon
receipt of a claim, the transfer of
culturally unidentifiable associated
funerary objects under the existing
regulations is at the discretion of the
museum or Federal agency. Following
publication of the 2007 proposed rule
(72 FR 58582, October 16, 2007), the
Department received numerous
comments on the voluntary transfer of
culturally unidentifiable associated
funerary objects. Most of the comments
stated that transfer of such objects
should also be mandatory. These
comments were carefully considered,
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but the Department determined that this
area of law was not clearly resolved at
that time and needed further
consideration. The March 15, 2010, final
rule retained the voluntary transfer
provision. After the publication of the
final rule, the Department received
additional comments on this issue,
which have been reviewed in the
development of the proposed revisions.
The Department proposes to require
repatriation of associated funerary
objects whenever repatriation of the
related human remains occurs. In the
Act, Congress differentiated human
remains and associated funerary objects
from unassociated funerary objects,
sacred objects, and objects of cultural
patrimony. Congress did this both in its
treatment of these items throughout the
Act and in its assessment of the
potential legal interests at stake for
those items, for example, by
differentiating the use and analysis of
right of possession for human remains
and associated funerary objects from a
right of possession for cultural items.
With respect to the Act, Congress
acknowledged that no general property
interest exists either in human remains
or in the funerary objects associated
with them in a burial. This follows
common law principles indicating that
the next-of-kin of a deceased individual
have a quasi-property right of control
over the lawful disposition of the
decedent’s remains. For these reasons,
the proposed revision would require
63227
repatriation of associated funerary
objects whenever the repatriation of
human remains is required. Such an
action, based on this guidance from
Congress, would not result in a taking
of property within the meaning of the
Fifth Amendment of the United States
Constitution.
3. Establish a Step-By-Step Process for
Repatriation
The Department proposes to clarify
the requisite steps for repatriation of
human remains and associated funerary
objects by establishing a step-by-step
process with corresponding deadlines.
Table 15 shows the name of each step
and a shortened version of the deadline
in the proposed revisions.
TABLE 15: STEP-BY-STEP PROCESS FOR REPATRIATION
Step number and name
Deadline (no later than)
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Step 1—Compile an itemized list of human remains and associated funerary objects.
Step 2—Initiate consultation .....................................................................
Step 3—Consult with requesting parties ..................................................
Step 4—Complete/update an inventory ...................................................
Step 5—Submit a notice of inventory completion ....................................
Step 6—Receive and consider a request for repatriation ........................
Step 7—Respond to a request for repatriation ........................................
Step 8—Repatriation of the human remains and associated funerary
objects.
The intent of these proposed revisions
is to correct inaccuracies and
ambiguities in the existing regulations
by using a clear, easy to follow, step-bystep process, and ensures a timely
resolution of any requests for
repatriation. For example, the proposed
revisions would clarify, consistent with
the Act, that invitations to consult are
required before completing an
inventory. In the existing regulations at
§ 10.9(b)(2), consultation is initiated ‘‘as
early as possible, no later in the
inventory process than the time at
which investigation into the cultural
affiliation . . . is being conducted.’’
The proposed revision would also
directly address a required step that
lacks explanation or deadlines in the
existing regulations. The Department
proposes in Step 7 to require a museum
or Federal agency to respond no later
than 30 days after receiving a request for
repatriation. The Department also
proposes three specific options for the
response, summarized as follows:
(1) Accept the request and agree to the
repatriation.
(2) Reject the request, explain why,
and ask for more information.
(3) Determine the most appropriate
requestor among competing requests.
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Before deadline in Step 4.
Before deadline in Step 4.
10 days after a request, propose a timeline for consultation.
2 years for a new collection/2 years after effective date for update.
6 months after Step 4.
Any time after notice publication.
30 days after Step 6.
90 days after Step 7.
4. Update Deadlines, Establish New
Timelines, and Clarify Procedures
To update deadlines for completing
an inventory, the proposed revisions
integrate all the deadlines in Step 4 (see
proposed § 10.10(d), Table 1 to § 10.10).
The proposed revisions would identify
the past required deadlines for
completing an inventory (i.e., November
16, 1995). The Act does not clearly
indicate when museums or Federal
agencies must complete an inventory
after the statutory deadline for
reporting. The existing regulations at
§ 10.13 provided these requirements for
newly acquired or newly regulated
holdings or collections beginning in
2007. The proposed revisions use the
same deadlines as the existing
regulations.
To establish new timelines, the
proposed revisions would require in
Step 2 a written request to consult. This
new requirement for a written request to
consult (which can include email) is
necessary to then require a museum or
Federal agency to respond to the request
within 10 days. In this same
subparagraph, the proposed revisions
require requests to consult be submitted
prior to a notice publication. This
requirement ensures the repatriation
process moves forward by certain
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Fmt 4701
Sfmt 4702
deadlines in later steps. After
publication of a notice, any party, even
if they have not consulted, can make a
request for repatriation as a competing
request (see proposed § 10.10(g)(2)).
To clarify procedures, the proposed
revisions would require in Step 6 that
any party wishing to make a request for
repatriation must do so in writing. In
the existing regulations at §§ 10.9, 10.10,
and 10.11, there are references to
making requests for repatriation, but not
until the very end of the process under
notification in the existing regulations at
§ 10.10(b)(2) is it clear that such a
request must be in writing. The
Department is specifically seeking input
during public comment on the
deadlines for responding to a request for
repatriation and sending a repatriation
statement.
5. Require That Consultation Seek
Consensus
In response to consultation with
Indian Tribes and NHOs, the
Department proposes to require that
consultation seek consensus, to the
maximum extent possible. In addition, a
record of consultation must include the
effort made to seek consensus or
describe efforts to identify a mutually
agreeable alternative. For any
determination considered during the
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consultation process, the consultation
record must note the concurrence,
disagreement, or nonresponse of the
requesting parties. These requirements
are used throughout the proposed
regulations whenever consultation with
requesting parties is required.
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6. Require Inventory Determinations
and Updates
The proposed revisions would require
that an inventory include specific
determinations for human remains and
associated funerary objects. In the
existing regulations at § 10.9(d), two
separate lists of human remains and
associated funerary objects comprise the
inventory: (1) those with cultural
affiliation and (2) those with no cultural
affiliation. The Department proposes to
revise this requirement to require, for
each entry in the itemized list of human
remains and associated funerary objects,
a determination of one or more of the
following:
(1) There is a known lineal
descendant;
(2) There is a connection between the
human remains and associated funerary
objects and an Indian Tribe or NHO
through cultural affiliation;
(3) There is a connection between the
human remains and associated funerary
objects and an Indian Tribe or NHO
through geographical affiliation; or
(4) There is no connection between
the human remains and associated
funerary objects and any Indian Tribe or
NHO.
The Department proposes to require
museums and Federal agencies update
an inventory for any human remains
and associated funerary objects
previously included in an inventory but
not published in a notice of inventory
completion by the effective date of the
final rule. To update an inventory, a
museum or Federal agency would be
required to initiate consultation, consult
with requesting parties, and determine
if there is a connection between the
human remains and associated funerary
objects and an Indian Tribe or NHO
through cultural or geographical
affiliation. The updated inventory
would be sent to all identified
consulting parties and the Manager,
National NAGPRA Program, no later
than 2 years after the effective date of
the final rule. Any museum may request
an extension to update its inventory.
Consistent with the Act (25 U.S.C.
3003(c)) and the existing regulations at
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§ 10.9(f), only museums may request
extension to update an inventory.
Federal agencies may not request
extensions.
7. Protect Sensitive Information and
Disclose Hazardous Substances
The Department proposes to remove
the existing regulations at
§ 10.9(b)(4)(iii) because it requires
Indian Tribes and NHOs to provide
information about the kinds of objects
they consider to be funerary objects.
This kind of information is often very
sensitive and providing it in writing or
in the absence of qualified persons
within the Indian Tribe or NHO might
be inappropriate. The proposed
language would still provide for an
exchange of information about the types
of objects that might be funerary objects
but would do so in a way to allow for
sensitive information to be protected.
In the existing regulations at
§ 10.10(e), museums and Federal
agencies must inform Indian Tribes and
NHOs about any potentially hazardous
substances used to treat human remains
or funerary objects only after
repatriation has occurred. The proposed
revisions would require a museum or
Federal agency to disclose information
about the presence of any potentially
hazardous substances first in the
itemized list (see proposed § 10.10(a)(6))
and second in the notice of inventory
completion (see proposed
§ 10.10(e)(2)(vii)).
8. Clarify Requirements for Notices
The proposed revisions clearly
outline informational requirements for a
Federal Register notice and reduce the
information required in the existing
regulations at § 10.9(e)(2). To protect
potentially sensitive information, the
only location information that would be
required is the county and State where
the human remains and associated
funerary objects were removed, if
known. To facilitate requests for
repatriation, any lineal descendant or
Indian Tribe or NHO with cultural or
geographical affiliation would be
identified in the notice. The notice
would require only a brief abstract of
the information used to identify the
lineal descendant or Indian Tribe or
NHO with cultural or geographical
affiliation.
In enumerating the associated
funerary objects in a notice, museums
and Federal agencies would be
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Fmt 4701
Sfmt 4702
encouraged to count in a way that
reduces the chances of having to issue
a correction notice. For example,
identifying 3 lots of shell beads means
that no matter the exact number of
beads present, the count would stand,
whereas identifying exactly 1,960 shell
beads in a notice would mean that if
additional (or fewer) beads were located
before repatriation occurs, a correction
notice would be required because the
number of objects would have changed.
9. Written Repatriation Statement
The Department proposes to require a
new document to complete the
repatriation of human remains and
associated funerary objects to a
requestor. A written repatriation
statement would be sent to and would
identify all requestors in the case of
joint requests. In accordance with the
recommendation by the Government
Accountability Office in a 2010 report
on the implementation of the Act, a
copy of the repatriation statement
would also be sent to the Manager,
National NAGPRA Program.
10. Transfer or Reinterment of Human
Remains and Associated Funerary
Objects
The Department proposes a new
process for transfer or reinterment of
human remains and associated funerary
objects. This provision would apply in
limited circumstances where there is no
connection between the human remains
and associated funerary objects and any
Indian Tribe or NHO. Under such
circumstances, a museum or Federal
agency would have the discretion to
agree to transfer the human remains and
associated funerary objects to an Indian
Tribe, NHO, or Indian group, or to
reinter the human remains and
associated funerary objects. In the
existing regulations at § 10.10(g)(2)(ii),
this same process is available to
museums and Federal agencies but
requires a recommendation from the
Review Committee and the concurrence
of the Secretary. The new provision
would require publication of a notice
and a repatriation statement but would
eliminate the costly and burdensome
process of making a request to the
Review Committee.
Table 16 shows how the Department
proposes to reorganize the existing
regulatory requirements for an inventory
of human remains and associated
funerary object.
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63229
TABLE 16—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.10
Existing 43 CFR section
Proposed 43 CFR section
10.9(c) ...............
Required Information .................................................
10.10(e) ............
. . . inform recipients of repatriation . . . treatment
with potentially hazardous substances.
Consultation ...............................................................
(1) Consulting parties.
(2) Initiation of consultation.
(3) Provision of information.
New ...........................................................................
10.9(b) ..............
10.13(c) .............
New Indian Tribes .....................................................
10.9(b) ..............
(4) Requests for information .....................................
10.10(a) ............
10.10(b) ............
10.10(c) ............
New ...........................................................................
10.9(e) ..............
10.9(d) ..............
(5) . . . upon request, additional documentation
. . ..
Documents. Two separate documents comprise the
inventory:
10.10(d) ............
(1) a listing of culturally affiliated . . . ......................
(2) a listing of culturally unidentifiable . . . ..............
10.9(c) ...............
10.13(b) ............
(4) A summary of the evidence, including consultation . . ..
(1) New holdings or collections .................................
10.13(d) ............
10.9(f) ...............
New Federal funds
Completion ................................................................
10.11(b) ............
10.11(c) .............
Consultation ...............................................................
Disposition of culturally unidentifiable human remains and associated funerary objects.
(1) . . . must offer to transfer control . . .
10.9(f) ...............
Completion ................................................................
10.13(b) ............
(3) Previously prepared summary or inventory . . .
10.9(e) ..............
10.11(d) ............
10.10(e) ............
Notification .................................................................
Notification .................................................................
. . . treatment with potentially hazardous substances.
(2) Additional pieces or fragments . . . ....................
Amendment of previous decision.
New ...........................................................................
10.13(b) ............
10.13(e) ............
10.10(b) ............
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10.10(b) ............
10.10(d)
10.10(f)
10.15(d)
10.10(c)
............
.............
............
.............
10.10(c) .............
10.11(c) .............
10.15(b) ............
10.10(g) ............
10.9(b) ..............
10.9(c) ...............
VerDate Sep<11>2014
(1) Criteria .................................................................
New ...........................................................................
(2) Notification ...........................................................
Place and manner of repatriation.
Record of repatriation.
Savings provisions.
(2) Circumstances where there are multiple requests for repatriation . . ..
Exceptions .................................................................
(5) The exceptions listed at § 10.10(c) apply . . . ....
Failure to claim where no repatriation has occurred.
[Reserved].
(2)(ii) Recommend to the Secretary specific actions
. . .
(4) (iii) kinds of cultural items . . . ............................
(1) Accession and catalogue entries . . .
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Fmt 4701
10.10(d) ............
Step 1: Compile an itemized list of human remains
. . .
(6) The presence of any potentially hazardous substances . . .
Step 2: Initiate consultation.
(1) Consulting parties are . . .
(2) An invitation to consult must . . .
(3) Any consulting party . . . must . . .
(4) . . . identifies a new consulting party . . .
(ii) . . . after the addition of a Tribal entity to the list
of federally recognized Indian Tribes . . .
Step 3: Consult with requesting parties.
(1) . . . a museum or Federal agency must ask for
the following information . . .
(2) The consultation process must . . .
(3) The museum or Federal agency must prepare a
record of consultation . . .
(4) A museum or Federal agency must provide access to the additional information . . .
Step 4: Complete an inventory of human remains
. . .
(1) An inventory must include:
(iii) For each entry . . . a determination of one or
more . . .
(A) . . . a known lineal descendant,
(B) . . . through cultural affiliation . . .
(C) . . . through geographical affiliation . . .
(D) There is no connection . . .
(iv) An abstract of the information supporting the
determination . . .
(2) After [effective date of final rule], . . . must submit an inventory . . .
.
10.10(e) ............
(3) Prior to [effective date of final rule] . . . must
have submitted an inventory . . .
(4) No later than [2 years after the effective date of
final rule], for any . . . listed in an inventory but
not published in a notice of inventory completion
prior to [effective date of final rule] . . . submit
an updated inventory . . .
(5) Any museum may request an extension to complete or update its inventory . . .
(6) After [effective date of final rule] . . . acquires
possession or control of human remains . . .
Step 5: Submit a notice of inventory completion.
(2) (vii) . . . the presence of any potentially hazardous
(4) If the number . . . changes . . .
10.10(f) .............
10.10(g) ............
10.10(h) ............
Step 6: Receive and consider a request for repatriation.
(1) A request for repatriation . . . must be received
. . .
(2) Requests from two or more . . .
(3) A request for repatriation must satisfy . . .
Step 7: Respond to a request for repatriation.
Step 8: Repatriation of the human remains and associated funerary objects.
10.10(i) .............
Evaluating competing requests for repatriation.
10.10(j) .............
Stay of repatriation.
10.10(k) ............
Transfer or reinter human remains and associated
funerary objects.
...........................
Removed.
Sfmt 4702
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TABLE 16—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.10—Continued
Existing 43 CFR section
10.9(e) ..............
10.10(g) ............
10.11(a) ............
10.11(c) .............
10.11(d) ............
(3) A description . . . including dimensions, materials . . .
(6) This paragraph applies when a the [sic] museum
. . .
Culturally unidentifiable human remains.
General.
(2) If none of the Indian Tribes or NHOs agree to
accept . . .
(3) The Secretary may make a recommendation
. . .
(4) . . . may also transfer control of funerary objects . . .
(6) Any disposition of human remains from Indian
lands . . .
(2) Within 30 days . . . Manager, National
NAGPRA . . .
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L. Section 10.11 Civil Penalties
This section of the proposed rule
would implement the requirements of
the Act regarding the process for the
Secretary to assess civil penalties
against any museum that fails to comply
with the requirements of the Act (25
U.S.C. 3007). The Department proposes
several revisions to the existing
regulations at § 10.12 to clarify and
streamline the process for assessing civil
penalties. As noted in the proposed
rule, Federal agencies are not subject to
the assessment of civil penalties.
Federal law does include, however,
ways to allege that a Federal agency has
failed to comply with the requirements
of the Act or the regulations (or any
other Federal law or regulation). The
most broadly applicable way to allege
that a Federal agency has failed to
comply is to send an allegation to the
head of the appropriate Federal agency
or to the Federal agency’s Office of the
Inspector General. Assuming that the
alleged failure to comply is a final
agency action (see proposed § 10.1(i)),
the failure to comply could also be the
subject of a lawsuit under the
Administrative Procedure Act (5 U.S.C.
704).
1. Broaden the Options for a Failure To
Comply
The Department proposes to remove
from the existing regulations at
§ 10.12(b) the definition of ‘‘failure to
comply.’’ Consistent with the Act, the
proposed revisions would provide that
a museum that fails to comply with any
provision of the Act or Subpart C of the
regulations has failed to comply. As
under the existing regulations, each
instance of failure to comply would
constitute a separate violation. The
proposed revisions include what factors
would be relevant for determining the
number of separate violations.
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For example, if a museum fails to
include information regarding the
known presence of a potentially
hazardous substance used to treat the
human remains or associated funerary
objects in an itemized list, the number
of separate violations committed by the
museum may be calculated by
determining the number of lineal
descendants, Indian Tribes, or NHOs
named in an allegation and determined
to be aggrieved by this failure to
comply. Alternatively, if a museum
completes the repatriation of human
remains and associated funerary objects
without submitting a notice of inventory
completion, the number of separate
violations may be calculated by
determining the number of human
remains and associated funerary objects
involved in this failure to comply.
2. Allowing for a Single Hearing To
Contest
The Department proposes to
consolidate the dual hearing process in
the existing regulations—which involve
an opportunity to contest both a
substantiated failure to comply and a
penalty assessment in separate
hearings—into one single hearing. The
bifurcated hearing process adopted in
2003 (68 FR 16354, April 3, 2003) is not
legally required. The Act uses identical
language (25 U.S.C. 3007(a)) to the
Administrative Procedure Act (APA) (5
U.S.C. 554(a)). This reflects
Congressional intent that civil penalties
be adjudicated under similar procedural
requirements to the APA and not a
unique approach. Numerous
government agencies have complied
with Section 554(a) by conducting
single hearing adjudications, which
have withstood legal challenges for
procedural due process. Not only does
the single hearing process satisfy the
Administrative Procedure Act’s
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identical procedural requirements (5
U.S.C. 554(a)), but it would also provide
greater efficiencies for all parties and
quicker resolution of cases.
3. Calculation of Base Penalty Amount
The Department proposes to change
the calculation of the base penalty
amount for each instance of failure to
comply. Under the existing regulations,
the base penalty amount for each
separate violation is calculated as the
lesser of two amounts: 0.25 percent of
the museum’s annual budget or $7,475
(adjusted annually for inflation under
the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (Pub. L. 114–74)). The proposed
revision would require that the penalty
amount be calculated using only $7,475
(adjusted annually for inflation) as the
base penalty amount.
The Act, the existing regulations, and
the proposed revisions permit the
Secretary to increase the penalty
amount after considering different
factors, including an aggrieved party’s
economic and non-economic damages.
For example, economic damages could
be an Indian Tribe’s expenditures for an
attorney or other staff to prepare,
review, and file documents to compel
the museum to comply. For another
example, non-economic damages could
be a traditional religious leader’s
inability to conduct a certain ceremony
because of the museum’s failure to
comply.
In response to consultation with
Indian Tribes and NHOs, the
Department proposes to include an
additional factor for increasing the
penalty amount based on ceremonial or
cultural value of the human remains or
cultural items involved, as identified by
any aggrieved lineal descendant, Indian
Tribe, or NHO. The Secretary also may
reduce the penalty amount if the
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museum agrees to mitigate the violation.
For example, mitigation could be a
museum’s payment to an NHO for the
cost of a ceremony associated with the
repatriation of human remains or
cultural items, or the value of land that
a museum provides for the reinterment
of human remains and associated
funerary objects. Another appropriate
factor that may justify reducing a
penalty would include the museum,
through its chief executive, selfreporting the museum’s failure to
comply, by sending a written report of
the violation to the Manager, National
NAGPRA Program.
4. Options Upon Receipt of Notice
The proposed revisions describe the
actions a museum may take upon
receipt of a notice of failure to comply
and include the option for a museum to
file a petition for relief in the existing
regulations at § 10.12(i)(3). The
proposed revisions also describe the
actions a museum may take upon
receipt of a notice of assessment and
include the option for a museum to
request a hearing to contest the failure
to comply or the penalty assessment in
the existing regulations at §§ 10.12(f)(2)
and (i)(4).
5. Exhaustion of Administrative
Remedies
The proposed revisions would require
a museum to exhaust all administrative
remedies under this section prior to
seeking judicial review of the final
administrative decision of the Secretary.
This section would also make clear that
no decision would be considered to
63231
constitute final agency action subject to
judicial review during the time the
decision is subject to review under this
section of the regulations. The proposed
revisions contain provisions that would
allow for the assessment of an
additional daily penalty amount of
$1,496 per day, subject to annual
adjustments based on inflation, and
would include the Department’s options
of instituting legal action to recover
penalties and pursuing other available
legal or administrative remedies.
Table 17 shows how the Department
proposes to reorganize the existing
regulatory requirements for the
assessment of civil penalties on any
museum that fails to comply with the
requirements of the Act.
TABLE 17—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.11
Existing 43 CFR section
10.12(c)
10.12(d)
10.12(g)
10.12(e)
10.12(f)
.............
............
............
............
.............
10.12(f) .............
10.12(i) ..............
10.12(j) ..............
How to notify the Secretary . . . ..............................
Steps the Secretary may take . . . ..........................
How the Secretary determines the penalty amount.
How the Secretary notifies . . . ................................
Actions you may take upon receipt of a notice . . .
(1) Seek informal discussions . . . ...........................
Actions that you may take upon receipt of a notice
. . .
(1) Accept in writing . . . ..........................................
(3) File a petition for relief..
How the Secretary assesses the penalty . . . .........
(3) The Secretary notifies you in writing . . . ...........
Actions that you may take upon receipt of a notice
. . .
(1) Accept in writing or by payment of the proposed
penalty . . ..
(2) Request a hearing . . . .......................................
(4) Request a hearing . . . .......................................
How you request a hearing .......................................
10.12(k) .............
10.12(l) ..............
10.12(g) ............
How you appeal a decision. ......................................
The final administrative decision ...............................
(3) An additional penalty of up to ..............................
10.12(m) ...........
10.12(m) ...........
10.12(a) ............
10.12(b) ............
10.12(f) .............
10.12(i) ..............
(2) If you fail to pay the penalty
(3) Assessing a penalty . . . ....................................
The Secretary’s authority . . . ..................................
Definition of failure to comply
(3) Take no action and await . . .
(2) Seek informal discussion with the Secretary (on
the assessment).
(1) If you are assessed a civil penalty, you have
. . .
10.12(i) ..............
10.12(h) ............
10.12(h) ............
10.12(i) ..............
10.12(m) ...........
M. Section 10.12
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Proposed 43 CFR section
Review Committee
This section of the proposed rule
would implement the requirements of
the Act regarding the Federal Advisory
Review Committee (25 U.S.C. 3006).
The Department proposes to clarify the
existing provisions at §§ 10.16 and 10.17
and add new provisions to clarify the
responsibilities of the Review
Committee.
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10.11(a)
10.11(b)
10.11(c)
10.11(d)
10.11(e)
............
............
............
............
............
10.11(f) .............
10.11(g) ............
10.11(h) ............
File an allegation.
Respond to an allegation.
Calculate the penalty amount.
Notify a museum of a failure to comply.
Respond to a notice of failure to comply.
Assess the civil penalty.
Notify the museum of an assessment.
Respond to an assessment.
(2) File a written request for a hearing to contest
10.11(i) .............
10.11(j) .............
10.11(k) ............
10.11(l) .............
10.11(m) ...........
Request a hearing.
Hearings.
Appealing the administrative law judge’s decision.
Exhaustion of administrative remedies.
Failure to pay penalty or continuing failure to comply . . .
10.11(n) ............
Additional remedies.
Removed.
1. Deadline for Publishing Findings or
Recommendations
In response to consultation with
Indian Tribes and NHOs, the
Department proposes to add a
requirement that recommendations
made by the Review Committee will be
published in the Federal Register
within 90 days of the making the
finding or recommendation. This is the
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same requirement under the Federal
Advisory Committee Act (FACA) for
completing minutes of the Review
Committee meeting.
2. Add Requirements for Nominations to
the Review Committee
The Department proposes to add new
provisions to clarify which entities may
make nominations to the Secretary.
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Proposed Rules
Under the Act (25 U.S.C. 3006(b)(1)(A)),
Congress explicitly identified who is
eligible to nominate a person to three
specified slots on the Review Committee
and who is eligible to serve in two of
those slots. Only Indian Tribes, NHOs,
and ‘‘traditional Native American
religious leaders’’ are eligible to be the
nominators, and only ‘‘traditional
Indian religious leaders’’ are eligible to
serve in two of the three specified slots.
When Congress expressly identified
traditional Indian religious leaders as
being eligible to serve in two of the
three specified slots, it excluded
traditional Native Hawaiian religious
leaders.
Under the Act (25 U.S.C.
3006(b)(1)(B)), Congress did not provide
any additional requirements for
nominators beyond ‘‘national museum
organizations and scientific
organizations. The proposed addition
seeks to clarify these requirements by
defining what national museum
organizations and national scientific
organizations are, as recommended by
the Government Accountability Office
in a 2010 report on the implementation
of the Act. As many national
organizations have an abundance of
subsidiary organizations, the proposed
addition requires nominations be
submitted only through a parent
organization.
3. Add Definitions and Provisions for
Findings of Fact or Disputes
The proposed revisions describe the
finding of fact or dispute function of the
Review Committee and remove the
references in the existing regulations to
informal and formal dispute resolution.
The proposed definition of ‘‘an affected
party’’ was drawn from the Review
Committee’s Dispute Procedures. The
proposed revisions seek to clarify the
distinction between findings of fact and
disputes as well as to provide the
options for the Review Committee’s
recommendation.
Table 18 shows how the Department
proposes to reorganize the existing
regulatory requirements for the Review
Committee.
TABLE 18—CROSS-REFERENCE OF EXISTING PROVISIONS TO PROPOSED § 10.12
Existing 43 CFR section
10.16(b) .......................
10.17 ............................
Recommendations ..........................................
New .................................................................
Dispute resolutions .........................................
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VI. Public Engagement and Request for
Comments
A. Public Engagement
The Department will conduct
consultation sessions with Indian Tribes
virtually during the comment period.
The Department will announce the
exact meeting dates and times of the
consultation sessions, once scheduled,
on https://www.doi.gov/priorities/tribalconsultation/upcoming-tribalconsultations and by letter to Tribal
leaders. The Department will also
conduct consultation sessions with the
Native Hawaiian Community virtually
during the comment period. The
Department of the Interior’s Office of
Native Hawaiian Relations will invite
the Native Hawaiian Community to
participate and provide the exact
meeting dates and times of the
consultation sessions, once scheduled.
Upon request, the Department will
consider additional consultation
sessions with Indian Tribes or the
Native Hawaiian Community to ensure
sufficient opportunity to engage and
comment in advance of a final rule and
to respond to the previous requests
received for additional consultation
sessions.
One goal of the proposed regulatory
revisions is to provide specific timelines
for museums and Federal agencies to
facilitate the required repatriation. The
Department does not intend to impose
timeframes on lineal descendants,
Indian Tribes, or NHOs to request
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10.12(a) ......................
10.12(b) ......................
10.12(c) ......................
disposition or repatriation. The
Department requests feedback from
Indian Tribes and NHOs on whether
this goal has been achieved and how to
further allow Indian Tribes and NHOs
flexibility and discretion with regard to
the proposed regulatory revisions and,
in particular, the new responsibilities
under Subpart B and the proposed
deadlines under Subpart C.
The Department will also proactively
contact and consult with a subset of
smaller Indian Tribes and NHOs to
ensure that they anticipate sufficient
opportunity under the proposed
regulatory changes in Subpart C to
submit requests for repatriation of the
human remains or cultural items
anticipated to become available within
three years of a final rule. Specifically,
Indian Tribes and NHOs are currently
responsible for submitting a request to
consult, consulting, submitting a request
for repatriation, and, in some cases,
requesting transfer of human remains or
cultural items. Under the proposed
regulations, Indian Tribes and NHOs
have the same responsibilities, but are
likely to increase the number of annual
responses for each responsibility,
especially in submitting requests for
repatriation. As stated in § 10.1(g),
failure to make a claim for disposition
or a request for repatriation of human
remains or cultural items is deemed an
irrevocable waiver of any right to make
a claim or a request.
The Department will also proactively
contact and consult with Indian Tribes
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Recommendations.
Nominations.
Findings of fact or disputes on repatriation.
and NHOs to ensure that they anticipate
sufficient opportunity under the
proposed regulatory changes to take on
new responsibilities under Subpart B.
Specifically, Indian Tribes and NHOs
are currently responsible for responding
to a discovery on their Tribal lands,
consenting to an excavation on Tribal
lands, and submitting a claim for
disposition on Federal lands. Under the
proposed regulations, Indian Tribes and
NHOs will also be responsible for
delegating or accepting responsibilities
on Tribal lands, submitting a request to
consult on Federal lands, sending or
completing a disposition statement on
Tribal lands, and requesting transfer of
unclaimed human remains or cultural
items on Federal lands.
Another goal of the proposed
regulatory revisions is to improve
efficiency in meeting the requirements
of the systematic process for repatriation
under Subpart C. The Department
requests feedback from Indian Tribes,
NHOs, museums, and Federal agencies
on whether this goal has been achieved
and how to ensure the step-by-step
process for repatriation is streamlined
and simplified by the proposed
regulatory revisions under Subpart C.
The Department will proactively
contact and engage with a subset of
affected entities, which will include
Indian Tribes, NHOs, museums, and
Federal agencies, during the comment
period to understand if the proposed
regulatory revisions could impact these
entities’ capacity and resources. Under
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the proposed regulatory revisions,
museums and Federal agencies would
be required to update inventories for
any human remains and associated
funerary objects previously included in
an inventory but not published in a
notice of inventory completion within
two years of a final rule. Based on
information available to it, a museum or
Federal agency would be required to
initiate consultation, consult with
requesting parties, and determine if
there is a known lineal descendant or a
cultural or geographical affiliation.
Museums would also be able to request
extensions to update an inventory if it
has made a good faith effort but will be
unable to do so by the appropriate
deadline. Indian Tribes and NHOs
would be required to submit requests to
consult and engage in consultation.
Museums and Federal agencies would
also be required to publish notices of
inventory completion within six months
of updating the inventory.
In particular, the Department
anticipates that the human remains of
117,000 Native American individuals
currently unable to be repatriated would
become available for repatriation within
two and a half years of the effective date
of a final rule, a substantial increase
from the 84,000 individuals repatriated
in the almost 32 years since the passage
of NAGPRA. At this time, the
Department is not aware of any capacity
and resource limitations that would
prevent these entities from completing
the new requirement to update
inventories, submit requests to consult,
engage in consultation, and publish
notices following the effective date of a
final rule.
B. Requests for Comments
In addition to the public engagement
and outreach discussed above, the
Department solicits comment from the
public on the entirety of this proposed
rule. The Department is interested in
receiving comments from the public on
the cost-benefit and regulatory
flexibility analyses, including the
conclusions about the expected costs of
complying with the proposed rule. In
particular, the Department is interested
in responses to the following questions:
a. For each regulatory requirement,
does the estimated time per response
seem reasonable? If not, what range of
time per response would be more
reasonable for a specific regulatory
requirement? For example, Federal
agencies and museums are required to
initiate and conduct consultation under
both the existing regulations and the
proposed regulations. We estimate the
time per response ranges from ten hours
to 300 hours, depending on the size and
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complexity of the consultation, for a
median of 155 hours.
b. For Subpart B, is the estimated
number of annual discoveries on
Federal or Tribal lands reasonable? We
used the average number of notices on
Federal lands over the last three years,
but we have no data on the number of
discoveries on Tribal lands to inform
this estimate.
c. For Subpart C, is the estimated
number of museums and Federal
agencies required to update inventory
data under the proposed regulations
reasonable? We estimate 414 museums
and 19 Federal agencies will be required
to update inventories within three years
after promulgation of a final rule. We
estimate that 33% of those museums
and Federal agencies will submit
inventory updates each year for three
years. We assume fewer inventory
records will require less time to update.
We assume museums previously
prepared and submitted inventories in
accordance with the existing regulations
and an update to that inventory requires
less time than submission of a new
inventory. We estimate the time per
response will range from less than one
hour to 100 hours, depending on the
size and complexity of the update, for
a median of 50.25 hours.
d. For Subpart C, many museums and
Federal agencies update inventories at
their own discretion, going beyond what
is required by the Act and the existing
regulations, which only requires use of
‘‘information possessed by such
museum or Federal agency’’ (25 U.S.C.
3003(a)). Given the potential expense of
more extensive studies not required by
the Act or the revised regulations, how
should the Department account for these
costs in this rulemaking? We also
request public data about the potential
costs of updating inventories under the
revised regulations.
e. For Subpart C, is the estimated
number of museums required to report
on Federal holdings or collections
reasonable? We estimate the number of
museums required to submit statements
is 5% of all museums that previously
submitted information under the
existing regulations.
f. Is the estimated number of
competing claims for disposition or
competing requests for repatriation
reasonable?
g. Using data on implementation since
2012, we estimate it will take an
additional 26 years to complete the
consultation and notification process for
all 117,000 Native American human
remains currently pending in the
existing regulatory framework. Is this
26-year time horizon reasonable? Will
the proposed regulatory requirements
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63233
result in a change in consultation
activities per year, and if so, how should
the Department account for the change
in costs to Indian Tribes or NHOs for
engaging in consultation?
C. Use of Received Feedback
The Department will use all received
feedback to inform a final rule and may
make changes to a final rule based on
received feedback that is within the
scope of this proposed rule.
VII. Compliance With Other Laws,
Executive Orders and Department
Policy
A. Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) in OMB will review all
significant regulatory actions. OIRA has
determined that this rule is a significant
regulatory action.
Executive Order 13563 reaffirms the
principles of Executive 12866 while
calling for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. Executive Order 13563
emphasizes further that regulations
must be based on the best available
science and that the rulemaking process
must allow for public participation and
an open exchange of ideas. We have
developed this rule in a manner
consistent with these requirements.
B. Advancing Racial Equity and Support
for Underserved Communities Through
the Federal Government (Executive
Order 13985)
This proposed rule is expected to
advance racial equity in agency actions
and programs, in accordance with the
Executive Order 13985.
C. Regulatory Flexibility Act
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.).
This certification is based on the costbenefit and regulatory flexibility
analyses found in the report entitled
‘‘Benefit-Cost and Regulatory Flexibility
Threshold Analyses: Native American
Graves Protection and Repatriation Act
Regulations’’ that may be viewed online
at on https://www.regulations.gov.
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D. Small Business Regulatory
Enforcement Fairness Act
This rule is not a major rule under the
Small Business Regulatory Enforcement
Fairness Act (5 U.S.C. 804(2)). This rule:
a. Does not have an annual effect on
the economy of $100 million or more.
b. Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State,
local or tribal government agencies, or
geographic regions.
c. Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
E. 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.
F. Takings (Executive Order 12630)
This rule does not affect a taking of
private property or otherwise have
taking implications under Executive
Order 12630. A takings implication
assessment is not required.
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G. Federalism (Executive Order 13132)
Under the criteria in Section 1 of
Executive Order 13132, this rule does
not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement. A federalism summary
impact statement is not required.
H. Civil Justice Reform (Executive Order
12988)
This rule complies with the
requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of § 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
(b) Meets the criteria of § 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.
I. Consultation With Indian Tribes
(Executive Order 13175 and Department
Policy)
The Department strives to strengthen
its government-to-government
relationship with Indian Tribes through
a commitment to consultation with
Indian Tribes and recognition of their
right to self-governance and tribal
sovereignty. We have evaluated this rule
under the Department’s consultation
policy and under the criteria in
Executive Order 13175 and have
identified direct Tribal implications.
Accordingly, we have developed this
proposed rule after consulting with
federally recognized Indian Tribes as
detailed in this preamble. In addition,
we developed this proposed rule in
consultation with the Native American
Graves Protection and Repatriation
Review Committee, which includes
members nominated by Indian Tribes.
J. Paperwork Reduction Act (PRA) (44
U.S.C. 3501 et seq.)
1. Overview
The Paperwork Reduction Act (PRA)
provides that an agency may not
conduct or sponsor, and a person is not
required to respond to, a ‘‘collection of
information,’’ unless it displays a
currently valid OMB control number.
Collections of information include any
request or requirement that persons
obtain, maintain, retain, or report
information to an agency, or disclose
information to a third party or to the
public (44 U.S.C. 3502(3) and 5 CFR
1320.3(c)).These proposed regulations
contains existing and new information
collection requirements that are subject
to review by OMB under the PRA. OMB
previously reviewed and approved
information collection related to 43 CFR
part 10 and assigned the following OMB
control number 1024–0144 (expires 4/
30/2025).
The information collection activities
in this proposed rule are described
below along with estimates of the
annual burdens. These activities, along
with annual burden estimates, do not
include activities that are considered
usual and customary industry practices.
Included in the burden estimates are the
time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
each component of the proposed
information collection requirements.
The Department of the Interior
requests comment on any aspect of this
information collection, including:
a. Whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
b. The accuracy of the estimate of the
burden for this collection of
information, including the validity of
the methodology and assumptions used;
c. Ways to enhance the quality,
utility, and clarity of the information to
be collected; and
d. How the agency might minimize
the burden of the collection of
information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms of
information technology, e.g., permitting
electronic submission of response.
2. Summary of Proposed Information
Collection Requirements
Title of Collection: Native American
Graves Protection and Repatriation
Regulations.
OMB Control Number: 1024–0144.
Form Number: None.
Type of Review: Revision of a
currently approved collection.
Respondents/Affected Public: Any
person, any affected party, lineal
descendants, Indian Tribes, Native
Hawaiian organizations, and State and
local governments, universities, and
museums, that receive Federal funds
and have possession or control of Native
American human remains and cultural
items.
Respondent’s Obligation: Mandatory,
voluntary, and required to obtain or
retain a benefit.
Frequency of Collection: On occasion.
Total Estimated Number of Annual
Responses: 2,212
Estimated Completion Time per
Response: Varies from 1 hour to 300
hours depending on respondent and/or
activity.
Total Estimated Number of Annual
Burden Hours: 35,878.
Total Estimated Annual Non Hour
Burden Cost: None.
SUMMARY BY SUBPART OF THE PROPOSED REGULATIONS
Information
collections
Subpart
Subpart A—General .......................................................................................
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Respondents
0
None.
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63235
SUMMARY BY SUBPART OF THE PROPOSED REGULATIONS—Continued
Information
collections
Subpart
Subpart B—Protection of Human Remains or Cultural Items on Federal or
Tribal Lands.
Subpart C—Repatriation of Human Remains or Cultural Items by Museums
or Federal Agencies.
Subpart D—Review Committee ......................................................................
Subpart A—General does not contain
any information collection requirements
subject to the PRA. References to
written documents in this Subpart refer
to the specific information collection
requirements in the three subparts
below.
Subpart B—Protection of Human
Remains or Cultural Items on Federal or
Tribal Lands contains six information
collection requirements subject to the
PRA. On Federal or Tribal lands, any
person who knows or has reason to
know of the discovery of human
remains or cultural items must provide
specified information to third parties.
On Federal lands, an Indian Tribe or
NHO may submit a claim for disposition
1
5
1
1
1
16
1
Respondents
Any person.
Indian Tribes or NHOs.
Any person.
Indian Tribes or NHOs.
Lineal descendants.
Museums.
Any affected party.
by disclosing specified information to
third parties. On Tribal lands, an Indian
Tribe or NHO must maintain specified
records and in one instance, disclose
specified information to third parties.
Subpart C—Repatriation of Human
Remains or Cultural Items by Museums
or Federal Agencies contains 19
information collection requirements
subject to the PRA. State and local
governments, universities, and
museums that receive Federal funds and
have possession or control of Native
American human remains, funerary
objects, sacred objects, or objects of
cultural patrimony must submit
information to the Federal government,
maintain specified records, and disclose
specified information to third parties.
Lineal descendants, Indian Tribes, or
NHOs may submit a request for
repatriation by disclosing specified
information to third parties. Any person
alleging a failure to comply may
voluntarily submit information to the
Federal government. Museums may
respond to a civil penalty action by
submitting information to the Federal
government.
In the proposed regulations, Subpart
D—Review Committee contains one
information collection requirements
subject to the PRA. Any affected party
may voluntarily submit information to
the Federal government.
Information collection requirement
Proposed rule
Proposed New Information Collection Requirements in Subpart B
Report a discovery on Federal or Tribal lands ...............................................................................
Respond to a discovery ..................................................................................................................
Consent to an excavation ...............................................................................................................
Submit a claim for disposition .........................................................................................................
Delegate or accept responsibility on Tribal land .............................................................................
Send or complete a disposition statement ......................................................................................
§ 10.5(a)–(b)
§ 10.5(c)(1) and § 10.5(e)
§ 10.6(a)
§ 10.7(d)(3)
§ 10.5(c)(2)–(3);
§ 10.6(a)(2)–(3)
§ 10.7(c)(2)–(3)
§ 10.7(b) and § 10.7(c)
Currently Approved Information Collections Requirements in Subpart C
New Summary/Inventory (private and state or local museums) .....................................................
Updated Summary/Inventory Data (private and state or local museums) .....................................
Notices for publication in the Federal Register (private and state or local museums) .................
Initiate Consultation and Request Information (private and state or local museums) (previously
Notify Tribes).
Response to requests for information (state or local museums) ....................................................
§ 10.9(a) and § 10.10(d)
§ 10.9(a) and § 10.10(d)
§ 10.9(f) and § 10.10(e)
§ 10.10(b)–(c)
Removed
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Proposed New Information Collection Requirements in Subpart C
Conduct consultation .......................................................................................................................
Submit a request for repatriation ....................................................................................................
Document physical transfer ............................................................................................................
File an allegation of failure to comply .............................................................................................
Respond to a civil penalty action ....................................................................................................
Submit statements describing holdings or collection ......................................................................
Make a record of consultation .........................................................................................................
Respond to a request for repatriation .............................................................................................
Send a repatriation statement .........................................................................................................
Evaluate competing requests and resolve stays of repatriation .....................................................
Transfer or reinter human remains and associated funerary objects .............................................
§ 10.9(c) and § 10.10(c)
§ 10.9(d) and § 10.10(f)
§ 10.9(g)(2) and § 10.10(h)(2)
§ 10.11(a)
§ 10.11(e), (h), (i), and (k)
§ 10.8(c)–(d)
§ 10.9(c)(3) and § 10.10(c)(3)
§ 10.9(e) and § 10.10(g)
§ 10.9(g) and § 10.10(h)
§ 10.9(h)–(i) and § 10.10(i)–(j)
§ 10.10(k)
Proposed New Information Collection Requirements in Subpart D
Request assistance of the Review Committee ...............................................................................
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§ 10.12(c)
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3. Information That Is Not an
Information Collection Subject to the
PRA
Lineal descendants, Indian Tribes,
and Native Hawaiian organizations may
take certain actions that are not
information collections subject to the
PRA. Written documents requesting to
consult are acknowledgements that
entail no burden other than that
necessary to identify the respondent, the
date, the respondent’s address, and the
nature of the consultation.
Federal agencies and the Department
of Hawaiian Home Lands (DHHL) must
take certain actions that are not
information collections subject to the
PRA. The Hawaiian Homes Commission
Act, 1920 (HHCA), 42 Stat. 108, is a
cooperative federalism statute, a
compound of interdependent Federal
and State law that establishes a Federal
law framework but also provides for
implementation through State law (see
81 FR 29777 and 29787, May 13, 2016,
43 CFR 47 and 48, Land Exchange
Procedures and Procedures to Amend
the Hawaiian Homes Commission Act,
1920). These written documents are
required by employees of the Federal
government or DHHL when acting
within the scope of their employment.
Indian Tribes, Native Hawaiian
organizations, and Indian groups that
are not federally recognized may take
certain actions to request transfer of
human remains or cultural items that
are not information collections subject
to the PRA. These actions impact fewer
than ten persons and occur less often
than annually.
Indian Tribes, Native Hawaiian
organizations, traditional religious
leaders, national museum organizations,
and national scientific organizations
may take certain actions that are not
information collections subject to the
PRA. These actions are generally
solicited through a notice in the Federal
Register, impact fewer than ten persons,
and occur less often than annually.
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4. Burden Estimates
The Department has identified 26
information collections in the proposed
regulations. In total, we estimate that we
will receive, annually, 2,212 responses
totaling 35,878 annual hour burden. We
estimate the annual dollar value is
$2,304,481 (rounded). We estimate the
frequency of response for each of the
information collections is once per year,
but the number of respondents may not
be the same as the number of responses,
depending on the type of information
collected. In our estimate, we have only
used the number of responses to
simplify our estimate and remain
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consistent across the types of
information collected. For some
information collections, the time per
response varies widely because of
differences in activity, size, and
complexity.
5. Written Comments or Additional
Information
Written comments and suggestions on
the information collection requirements
should be submitted by the date
specified above in DATES to https://
www.reginfo.gov/public/do/PRAMain.
Find this particular information
collection by selecting ‘‘Currently under
Review—Open for Public Comments’’ or
by using the search function. Please
provide a copy of your comments to the
NPS Information Collection Clearance
Officer (ADIR–ICCO), 12201 Sunrise
Valley Drive, (MS–242) Reston, VA
20191 (mail); or phadrea_ponds@
nps.gov (email). Please include OMB
Control Number 1024–0144 in the
subject line of your comments.
To request additional information
about this ICR, contact Melanie O’Brien,
Manager, National NAGPRA Program by
email at melanie_o’brien@nps.gov, or by
telephone at (202) 354–2204.
Individuals in the United States who are
deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States. You may
also view the ICR at https://
www.reginfo.gov/public/do/PRAMain.
K. National Environmental Policy Act
(NEPA)
This rule does not constitute a major
Federal action significantly affecting the
quality of the human environment. A
detailed statement under the National
Environmental Policy Act of 1969 is not
required because the rule is covered by
a categorical exclusion under 43 CFR
46.210(i): ‘‘Policies, directives,
regulations, and guidelines: that are of
an administrative, financial, legal,
technical, or procedural nature; or
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-bycase.’’ We have also determined that the
rule does not involve any of the
extraordinary circumstances listed in 43
CFR 46.215 that would require further
analysis under the National
Environmental Policy Act.
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L. Effects on the Energy Supply
(Executive Order 13211)
This rulemaking is not a significant
energy action under the definition in
Executive Order 13211; the rule is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy, and the rule has not otherwise
been designated by the Administrator of
OIRA as a significant energy action. A
Statement of Energy Effects in not
required.
M. Clarity of This Rule
We are required by Executive Orders
12866 (§ 1(b)(12)) and 13563 (§ 1(a)),
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
proposed 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.
N. Public Availability of Comments
Before including your address, phone
number, email 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 may 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.
For access to the docket to read
background documents or comments
received, go to https://
www.regulations.gov and enter RIN
1024–AE19 in the search box.
Drafting Information
This proposed rule was prepared by
staff of the National NAGPRA Program,
National Park Service; Office of
Regulations and Special Park Uses,
National Park Service; Office of Native
Hawaiian Relations; Office of Regulatory
Affairs & Collaborative Action, Office of
the Assistant Secretary—Indian Affairs;
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and Office of the Solicitor, Division of
Parks and Wildlife and Division of
Indian Affairs, Department of the
Interior. This proposed rule was
prepared in consultation with the
Native American Graves Protection and
Repatriation Review Committee under
the Act (25 U.S.C. 3006(c)(7)).
List of Subjects in 43 CFR Part 10
Administrative practice and
procedure, Alaska, Cemeteries,
Citizenship and naturalization, Colleges
and universities, Hawaiian Natives,
Historic preservation, Human remains,
Indians, Indians-claims, Indians-law,
Indians-lands, Museums, Penalties,
Public lands, Reporting and
recordkeeping requirements, Treaties.
■ In consideration of the foregoing, the
Department of the Interior proposes to
revise 43 CFR Part 10 as follows:
PART 10—NATIVE AMERICAN
GRAVES PROTECTION AND
REPATRIATION REGULATIONS
Subpart A—GENERAL
Sec.
10.1 Introduction.
10.2 Definitions for this part.
10.3 Cultural and geographical affiliation.
Subpart B—Protection of Human Remains
or Cultural Items on Federal or Tribal Lands
10.4 General.
10.5 Discovery.
10.6 Excavation.
10.7 Disposition.
Subpart C—REPATRIATION OF HUMAN
REMAINS OR CULTURAL ITEMS BY
MUSEUMS OR FEDERAL AGENCIES
10.8 General.
10.9 Repatriation of unassociated funerary
objects, sacred objects, and objects of
cultural patrimony.
10.10 Repatriation of human remains and
associated funerary objects.
10.11 Civil penalties.
Subpart D—REVIEW COMMITTEE
10.12 Review Committee.
Authority: 25 U.S.C. 3001 et seq. and 25
U.S.C. 9.
Subpart A—General
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§ 10.1
Introduction.
(a) Purpose. These regulations provide
a systematic process for the disposition
and repatriation of Native American
human remains, funerary objects, sacred
objects, and objects of cultural
patrimony under the Native American
Graves Protection and Repatriation Act
(Act) of November 16, 1990. The Act
recognized the rights of lineal
descendants, Indian Tribes, and Native
Hawaiian organizations in Native
American human remains or cultural
items subject to this part. Consistent
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with the Act’s express language and
Congress’s intent in enacting the statute,
these regulations require museums and
Federal agencies to complete timely
dispositions and repatriations through
consultation and collaboration with
lineal descendants, Indian Tribes, and
Native Hawaiian organizations. In
implementing this systematic process,
museums and Federal agencies must
defer to the customs, traditions, and
Native American traditional knowledge
of lineal descendants, Indian Tribes,
and Native Hawaiian organizations.
(b) Applicability. These regulations
pertain to Native American human
remains, funerary objects, sacred
objects, and objects of cultural
patrimony and require certain actions
to:
(1) Protect Human Remains or
Cultural Items on Federal or Tribal
Lands in the event of a discovery or
excavation after November 16, 1990;
and
(2) Repatriate Human Remains or
Cultural Items in the possession or
control of:
(i) Any Federal agency, regardless of
the physical location of the holding or
collection; or
(ii) Any institution or State or local
government agency (including any
institution of higher learning) within the
United States that receives Federal
funds, regardless of the physical
location of the holding or collection.
(c) Accountability. These regulations
are applicable to and binding on all
museums and Federal agencies for
implementing the systematic process for
the disposition and repatriation of
human remains or cultural items under
this part.
(d) Duty of care. Prior to disposition
or repatriation, these regulations require
a museum or Federal agency to care for,
safeguard, and preserve all human
remains or cultural items in its custody
or in its possession or control. Upon
request of a lineal descendant, Indian
Tribe, or Native Hawaiian organization,
a museum or Federal agency must, to
the maximum extent possible:
(1) Consult, collaborate, and obtain
consent on the appropriate treatment,
care, or handling of human remains or
cultural items;
(2) Incorporate and accommodate
customs, traditions, and Native
American traditional knowledge in
practices or treatments of human
remains or cultural items; and
(3) Limit access to and research on
human remains or cultural items.
(e) Delivery of written documents.
These regulations require written
documents to be sent or delivered, such
as requests for repatriation, claims for
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disposition, invitations or requests to
consult, or notices for publication.
(1) The written documents must be
sent by:
(i) Email, with proof of receipt,
(ii) Personal delivery with proof of
delivery date,
(iii) Private delivery service with
proof of date sent, or
(iv) Certified mail.
(2) Communication to the Manager,
National NAGPRA Program, should be
sent electronically to nagpra_info@
nps.gov. If electronic submission is not
possible, physical delivery may be sent
to 1849 C Street NW, Mail Stop 7360,
Washington, DC 20240. If either of these
addresses change, a notice with the new
address must be published in the
Federal Register within 5 days of the
change.
(f) Deadlines and timelines. These
regulations require certain actions be
taken by a specific date. Unless stated
otherwise in these regulations:
(1) Days mean business days, i.e.,
Monday through Friday. For any action
by an Indian Tribe, Native Hawaiian
organization, Federal agency, or the
Manager, National NAGPRA Program,
business days do not include days
during which the Federal government is
closed because of a Federal holiday,
lapse in appropriations, or other
reasons.
(2) Written documents are deemed
timely based on the date sent, not the
date received.
(3) Parties sending or receiving
written documents under these
regulations must document the date sent
or date received, as appropriate, when
these regulations require those parties to
act based on the date sent or date
received.
(g) Failure to make a claim or a
request. Failure to make a claim for
disposition or a request for repatriation
before the disposition, repatriation,
transfer, or reinterment of human
remains or cultural items under this part
is deemed an irrevocable waiver of any
right to make a claim or a request for the
human remains or cultural items once
the disposition, repatriation, transfer, or
reinterment of the human remains or
cultural items has occurred.
(h) Judicial jurisdiction. The United
States district courts have jurisdiction
over any action by any person alleging
a violation of the Act or this part.
(i) Final agency action. For purposes
of the Administrative Procedure Act (5
U.S.C. 704), any of the following actions
by a Federal agency constitutes a final
agency action under this part:
(1) A final determination making the
Act or this part inapplicable;
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(2) A final denial of a claim for
disposition or a request for repatriation;
and
(3) A final disposition or repatriation
determination.
(j) Information collection. The
information collection requirements
contained in this part have been
approved by the Office of Management
and Budget under 44 U.S.C. 3501 et seq.
and assigned control number 1024–
0144. A Federal agency may not
conduct or sponsor, and you are not
required to respond to, the collection of
information under this part unless the
Federal agency provides a currently
valid OMB control number.
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§ 10.2
Definitions for this part.
Act means the Native American
Graves Protection and Repatriation Act.
Acknowledged aboriginal land means
land whose occupation by an Indian
Tribe has been recognized in any of the
following sources:
(1) A treaty sent by the President to
the United States Senate for ratification;
(2) An Act passed by Congress;
(3) An Executive Order;
(4) A treaty between a foreign or
colonial government and an Indian
Tribe signed before the establishment of
the United States Government or prior
to the land becoming incorporated in
the United States;
(5) Another Federal document or
foreign government document providing
information that reasonably shows
aboriginal occupation; or
(6) Intertribal treaties, diplomatic
agreements, and bilateral accords
between and among Indian Tribes.
Adjudicated aboriginal land means
land whose occupation by an Indian
Tribe has been recognized by a final
judgment of the Indian Claims
Commission or the United States Court
of Claims. A final judgment also
includes a judgment concerning a
settlement as long as that judgment or
settlement either explicitly recognizes
certain land as the aboriginal land of an
Indian Tribe or adopts findings of fact
that do so.
Affiliation means a connection
between human remains or cultural
items and an Indian Tribe or Native
Hawaiian organization.
Ahupua‘a (singular and plural) means
a land division in Hawai‘i usually
extending from the uplands to the sea
which traditionally was, and in some
cases remains, self-sustaining or whose
occupants were or are permitted access
to or trade resources with the
neighboring ahupua‘a.
Appropriate official means any
representative authorized by a
delegation of authority within an Indian
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Tribe, Native Hawaiian organization,
Federal agency, or Department of
Hawaiian Home Lands (DHHL) that has
responsibility for human remains or
cultural items on Federal or Tribal
lands.
ARPA means the Archaeological
Resources Protection Act of 1979, as
amended (16 U.S.C. 470aa–mm) and the
relevant Federal agency regulations
implementing that statute.
ARPA Indian lands means lands of
Indian Tribes, or individual Indians,
which are either held in trust by the
United States Government or subject to
a restriction against alienation imposed
by the United States Government,
except for any subsurface interests in
lands not owned or controlled by an
Indian Tribe or an individual Indian.
ARPA Public lands means lands
owned and administered by the United
States Government as part of:
(1) The national park system,
(2) The national wildlife refuge
system,
(3) The national forest system, and
(4) All other lands the fee title to
which is held by the United States
Government, other than lands on the
Outer Continental Shelf and lands
which are under the jurisdiction of the
Smithsonian Institution.
Consultation means a process to seek
consensus through the exchange of
information, open discussion, and joint
deliberations and by incorporating
identifications, recommendations, and
Native American traditional knowledge,
to the maximum extent possible.
Cultural items means a funerary
object, sacred object, or object of
cultural patrimony according to a lineal
descendant, Indian Tribe, or Native
Hawaiian organization based on
customs, traditions, or Native American
traditional knowledge.
Custody means having an obligation
to care for the object or item but not a
sufficient interest in the object or item
to constitute possession or control. In
general, custody through a loan, lease,
license, bailment, or other similar
arrangement is not a sufficient interest
to constitute possession or control,
which resides with the loaning, leasing,
licensing, bailing, or otherwise
transferring museum or Federal agency.
Discovery means exposing, finding, or
removing human remains or cultural
items whether intentionally or
inadvertently on Federal or Tribal lands
without a written authorization for an
excavation under § 10.6.
Disposition means an appropriate
official acknowledges and recognizes a
lineal descendant, Indian Tribe, or
Native Hawaiian organization has
control or ownership of human remains
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or cultural items removed from Federal
or Tribal lands.
Excavation means intentionally
exposing, finding, or removing human
remains or cultural items on Federal or
Tribal lands with a written
authorization under § 10.6.
Federal agency means any
department, agency, or instrumentality
of the United States Government. This
term does not include the Smithsonian
Institution.
Federal lands means any lands other
than Tribal lands that is controlled or
owned by the United States
Government. For purposes of this
definition, control refers to lands not
owned by the United States
Government, but in which the United
States Government has a sufficient legal
interest to permit it to apply these
regulations without abrogating a
person’s existing legal rights. Whether
the United States Government has a
sufficient legal interest to control lands
it does not own is a legal determination
that a Federal agency must make on a
case-by-case basis. Federal lands
include:
(1) Any lands selected by, but not yet
conveyed to, an Alaska Native
Corporation or group organized under
the Alaska Native Claims Settlement Act
(43 U.S.C. 1601 et seq.);
(2) Any lands other than Tribal lands
that are held by the United States
Government in trust for an individual
Indian or lands owned by an individual
Indian and subject to a restriction on
alienation by the United States
Government; and
(3) Any lands subject to a statutory
restriction, lease, easement, agreement,
or similar arrangement containing terms
that grant to the United States
Government indicia of control over
those lands.
Funerary object means any object
reasonably believed to have been placed
intentionally with or near human
remains. A funerary object is any object
connected, either at the time of death or
later, to a death rite or ceremony of a
Native American culture according to a
lineal descendant, Indian Tribe, or
Native Hawaiian organization based on
customs, traditions, or Native American
traditional knowledge. This term does
not include any object returned or
distributed to living persons according
to traditional custom after it has been
displayed as part of a death rite or
ceremony of a Native American culture.
Funerary objects are either associated
funerary objects or unassociated
funerary objects.
(1) Associated funerary object means
the human remains related to the
funerary object are, or were after
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November 16, 1990, in the possession or
control of any museum or Federal
agency or removed from Federal or
Tribal lands. Any object made
exclusively for burial purposes or to
contain human remains is always an
associated funerary object regardless of
the location or existence of any related
human remains.
(2) Unassociated funerary object
means any funerary object that is not an
associated funerary object and is
identified by a preponderance of the
evidence as one or more of the
following:
(i) Related to human remains but the
human remains were not removed or the
location of the human remain is
unknown,
(ii) Related to specific individuals or
families,
(iii) Removed from a specific burial
site of an individual or individuals with
cultural affiliation to an Indian Tribe or
Native Hawaiian organization, or
(iv) Removed from a specific area
where a burial site of an individual or
individuals with cultural affiliation to
an Indian Tribe or Native Hawaiian
organization is known to have existed,
but the burial site is no longer extant.
Holding or collection means an
accumulation of one or more objects,
items, or human remains for any
temporary or permanent purpose,
including:
(1) Academic interest;
(2) Accession;
(3) Catalog;
(4) Comparison;
(5) Conservation;
(6) Education;
(7) Examination;
(8) Exhibition;
(9) Forensic purposes;
(10) Interpretation;
(11) Preservation;
(12) Public benefit;
(13) Research;
(14) Scientific interest; or
(15) Study.
Human remains means the physical
remains of the body of a Native
American individual. This term does
not include human remains or portions
of human remains that may reasonably
be determined to have been freely given
or naturally shed by the individual from
whose body they were obtained. When
human remains are reasonably believed
to be comingled with other material
(such as soil or faunal remains), the
entire admixture may be treated as
human remains.
(1) Human remains incorporated into
a funerary object, sacred object, or object
of cultural patrimony are considered
part of the cultural item rather than
human remains.
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(2) Human remains incorporated into
an object or item that is not a funerary
object, sacred object, or object of
cultural patrimony are considered
human remains.
Indian Tribe means any tribe, band,
nation, or other organized group or
community of Indians, including any
Alaska Native village (as defined in, or
established pursuant to, the Alaska
Native Claims Settlement Act (43 U.S.C.
1601 et seq.)), recognized as eligible for
the special programs and services
provided by the United States
Government to Indians because of their
status as Indians by its inclusion on the
list of recognized Indian Tribes
published by the Secretary under the
Act of November 2, 1994 (25 U.S.C.
5131).
Inventory means a simple itemized
list of human remains and associated
funerary objects in a holding or
collection that includes the results of
consultation and determinations about
cultural and geographical affiliation.
Lineal descendant means:
(1) A living person tracing his or her
ancestry, either by means of traditional
Native American kinship systems, or by
the common-law system of descent, to a
known individual whose human
remains, funerary objects, or sacred
objects are subject to this part; or
(2) A living person tracing his or her
ancestry, either by means of traditional
Native American kinship systems, or by
the common-law system of descent, to
all the known individuals represented
by comingled human remains (example:
the human remains of two individuals
have been comingled, and a living
person may trace his or her ancestry
directly to both of the deceased
individuals).
Manager, National NAGPRA Program,
means the official of the Department of
the Interior designated by the Secretary
as responsible for administration of the
Act and this part.
Museum means any institution or
State or local government agency
(including any institution of higher
learning) that has possession or control
of human remains or cultural items and
receives Federal funds. The term does
not include the Smithsonian Institution.
Native American means of, or relating
to, a tribe, people, or culture that is
indigenous to the United States. To be
considered Native American under this
part, human remains or cultural items
must bear some relationship to a tribe,
people, or culture indigenous to the
United States.
(1) A tribe is an Indian Tribe.
(2) A people comprise the entire body
of persons who constitute a community,
tribe, nation, or other group by virtue of
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a common culture, history, religion,
language, race, ethnicity, or similar
feature. The Native Hawaiian
Community is a ‘‘people.’’
(3) A culture comprises the
characteristic features of everyday
existence shared by people in a place or
time.
Native American traditional
knowledge means knowledge,
philosophies, beliefs, traditions, skills,
and practices that are developed,
embedded, and often safeguarded by
Native Americans. Native American
traditional knowledge contextualizes
relationships between and among
people, the places they inhabit, and the
broader world around them, covering a
wide variety of information, including,
but not limited to, cultural, ecological,
religious, scientific, societal, spiritual,
and technical knowledge. Native
American traditional knowledge may
be, but is not required to be, developed,
sustained, and passed through time,
often forming part of a cultural or
spiritual identity.
Native Hawaiian organization means
any organization that:
(1) Serves and represents the interests
of Native Hawaiians, who are
descendants of the indigenous people
who, before 1778, occupied and
exercised sovereignty in the area that
now constitutes the State of Hawai‘i;
(2) Has as a primary and stated
purpose the provision of services to
Native Hawaiians; and
(3) Has expertise in Native Hawaiian
affairs, and includes but is not limited
to:
(i) The Office of Hawaiian Affairs
established by the constitution of the
State of Hawai‘i;
(ii) Native Hawaiian organizations
(including ‘ohana) who are registered
with the Secretary’s Office of Native
Hawaiian Relations; and
(iii) Hawaiian Homes Commission Act
(HHCA) Beneficiary Associations and
Homestead Associations as defined
under 43 CFR 47.10.
Object of cultural patrimony means an
object that has ongoing historical,
traditional, or cultural importance
central to a Native American group,
including any constituent sub-group
(such as a band, clan, lineage,
ceremonial society, or other
subdivision), according to an Indian
Tribe or Native Hawaiian organization
based on customs, traditions, or Native
American traditional knowledge. An
object of cultural patrimony may have
been entrusted to a caretaker, along with
the authority to confer that
responsibility to another caretaker. The
object must be reasonably identified as
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being of such importance central to the
group that it:
(1) Cannot or could not be alienated,
appropriated, or conveyed by any
person, including its caretaker,
regardless of whether the person is a
member of the group, and
(2) Must have been considered
inalienable by the group at the time the
object was separated from the group.
‘Ohana (family) means a group of
people who are not lineal descendants
but comprise a Native Hawaiian
organization whose members have a
familial or kinship relationship with
each other.
Person means:
(1) An individual, partnership,
corporation, trust, institution,
association, or any other private entity;
or
(2) Any representative, official,
employee, agent, department, or
instrumentality of the United States
Government or of any Indian Tribe or
Native Hawaiian organization, or of any
State or subdivision of a State.
Possession or control means having a
sufficient interest in an object or item to
independently direct, manage, oversee,
or restrict the use of the object or item.
A museum or Federal agency may have
possession or control regardless of
whether the object or item is in its
physical custody. In general, custody
through a loan, lease, license, bailment,
or other similar arrangement is not a
sufficient interest to constitute
possession or control, which resides
with the loaning, leasing, licensing,
bailing, or otherwise transferring
museum or Federal agency.
Receives Federal funds means an
institution or agency of a State or local
government (including an institution of
higher learning) directly or indirectly
receives Federal financial assistance
after November 16, 1990, including any
grant; cooperative agreement; loan;
contract; use of Federal facilities,
property, or services; or other
arrangement involving the transfer of
anything of value for a public purpose
authorized by a law of the United States
Government. This term includes Federal
financial assistance provided for any
purpose that is received by a larger
entity of which the institution or agency
is a part. For example, if an institution
or agency is a part of a State or local
government or a private university, and
the State or local government or private
university receives Federal financial
assistance for any purpose, then the
institution or agency receives Federal
funds for the purpose of these
regulations. This term does not include
procurement of property or services by
and for the direct benefit or use of the
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United States Government or Federal
payments that are compensatory.
Repatriation means a museum or
Federal agency acknowledges and
recognizes a lineal descendant, Indian
Tribe, or Native Hawaiian organization
has control or ownership of human
remains or cultural items in a holding
or collection.
Review Committee means the advisory
committee established under the Act.
Right of possession means possession
or control obtained with the voluntary
consent of a person or group that had
authority of alienation. Right of
possession is given through the original
acquisition of:
(1) An unassociated funerary object, a
sacred object, or an object of cultural
patrimony from an Indian Tribe or
Native Hawaiian organization with the
voluntary consent of a person or group
with authority to alienate the object; or
(2) Human remains and associated
funerary objects which were exhumed,
removed, or otherwise obtained with
full knowledge and consent of the next
of kin or, when no next of kin is
ascertainable, the official governing
body of the appropriate Indian Tribe or
Native Hawaiian organization.
Sacred object means an object that is
a specific ceremonial object needed by
a traditional religious leader for the
practice of traditional Native American
religion by present-day adherents,
according to a lineal descendant, Indian
Tribe, or Native Hawaiian organization
based on customs, traditions, or Native
American traditional knowledge. While
many items might be imbued with
sacredness in a culture, this term is
specifically limited to objects needed for
the observance or renewal of Native
American religious ceremonies.
Secretary means the Secretary of the
Interior or a designee.
Summary means a written description
of a holding or collection that may
contain an unassociated funerary object,
sacred object, or object of cultural
patrimony.
Traditional religious leader means a
person who, based on cultural,
ceremonial, or religious practices, is
considered by an Indian Tribe or Native
Hawaiian organization as being
responsible for performing cultural
ceremonies or exercising a leadership
role.
Tribal lands means:
(1) All lands that are within the
exterior boundaries of any Indian
reservation;
(2) All lands that are dependent
Indian communities; and
(3) All lands administered by the
Department of Hawaiian Home Lands
(DHHL) under the Hawaiian Homes
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Commission Act of 1920 (HHCA, 42
Stat. 108) and Section 4 of the Act to
Provide for the Admission of the State
of Hawai‘i into the Union (73 Stat. 4),
including ‘‘available lands’’ and
‘‘Hawaiian home lands.’’
Tribal lands of an NHO means Tribal
lands in Hawai‘i that are under the
stewardship of a Native Hawaiian
organization that has been issued a lease
or license under HHCA section
204(a)(2), second paragraph, second
proviso, or section 207(c)(1)(B).
Unclaimed human remains or
cultural items means human remains or
cultural items removed from Federal
lands in the United States or from Tribal
lands in Hawai‘i whose disposition has
not occurred under this part.
United States means the 50 States and
the District of Columbia.
§ 10.3 Cultural and Geographical
Affiliation.
Throughout this part, affiliation
ensures that disposition or repatriation
of human remains or cultural items is
based on a reasonable connection to an
Indian Tribe or Native Hawaiian
organization. Affiliation is established
by identifying the cultural and
geographical affiliation of the human
remains or cultural items using this
section.
(a) Cultural affiliation. Cultural
affiliation is identified by reasonably
tracing a relationship of shared group
identity between an Indian Tribe or
Native Hawaiian organization and an
identifiable earlier group connected to
the human remains or cultural items.
Cultural affiliation is established by a
simple preponderance of the evidence
given the information available,
including the results of consultation.
Cultural affiliation does not require
exhaustive studies of the human
remains or cultural items or continuity
through time. Cultural affiliation is not
precluded solely because of reasonable
gaps in the information.
(1) Information. One or more of the
following equally relevant types of
information may be used to identify
cultural affiliation:
(i) Anthropological;
(ii) Archaeological;
(iii) Biological;
(iv) Folkloric;
(v) Geographical;
(vi) Historical;
(vii) Kinship;
(viii) Linguistic;
(ix) Oral Traditional; or
(x) Other relevant information or
expert opinion, including Native
American traditional knowledge which
alone may be sufficient to identify
cultural affiliation.
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(2) Criteria. Using the information
available, each of the following criteria
for cultural affiliation must be
identified:
(i) One or more earlier groups
connected to the human remains or
cultural items;
(ii) One or more Indian Tribes or
Native Hawaiian organizations; and
(iii) A relationship of shared group
identity between the earlier group and
the Indian Tribe or Native Hawaiian
organization reasonably traced through
time.
(3) Multiple cultural affiliations. An
identifiable earlier group may have a
relationship to more than one Indian
Tribe or Native Hawaiian organization.
As two or more earlier groups may be
connected to human remains or cultural
items, a relationship may be reasonably
traced to two or more Indian Tribes or
Native Hawaiian organizations that do
not themselves have a shared group
identity.
(b) Geographical affiliation.
Geographical affiliation is identified by
reasonably tracing a relationship
between an Indian Tribe or Native
Hawaiian organization and a geographic
area connected to the human remains or
cultural items. Geographical affiliation
is established by the information
available, including the results of
consultation.
(1) Information. Existing records,
inventories, catalogues, relevant studies,
or other pertinent data may be used to
identify the:
(i) Geographic origin of the human
remains or cultural items and
(ii) Basic facts surrounding the
acquisition and accession of the human
remains or cultural items.
(2) Criteria. Using the information
available, each of the following criteria
for geographical affiliation must be
identified:
(i) A geographic area connected to the
human remains or cultural items;
(ii) One or more Indian Tribes or
Native Hawaiian organizations; and
(iii) A relationship between the
geographic area and the Indian Tribe or
Native Hawaiian organization, based on
the identification of the geographic area
as:
(A) The Tribal lands of the Indian
Tribe or Native Hawaiian organization,
(B) The adjudicated aboriginal land of
the Indian Tribe, or
(C) The acknowledged aboriginal land
of the Indian Tribe.
(3) Multiple geographical affiliations.
A geographic area may have a
relationship to more than one Indian
Tribe or Native Hawaiian organization.
Information used for geographical
affiliation may provide information
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sufficient to identify cultural affiliation
under paragraph (a) of this section but
must not be used to limit geographical
affiliation.
(c) Multiple affiliations. When
affiliation of human remains or cultural
items is established with two or more
Indian Tribes or Native Hawaiian
organizations, any of the Indian Tribes
or Native Hawaiian organizations may
submit a claim for disposition or a
request for repatriation. Two or more
Indian Tribes or Native Hawaiian
organizations with affiliation may agree
to joint disposition or joint repatriation
of the human remains or cultural items.
(1) Single claims or requests. Claims
or requests for joint disposition or joint
repatriation of human remains or
cultural items are considered a single
claim or request and not competing
claims or requests. Notices and
statements for joint disposition or joint
repatriation of human remains or
cultural items required under this part
must identify all joint requestors.
(2) Competing claims or requests.
Under §§ 10.7, 10.9, and 10.10, when
there are competing claims for
disposition or competing requests for
repatriation of human remains or
cultural items, it may be necessary to
determine the Indian Tribe or Native
Hawaiian organization with the closest
affiliation under paragraph (d) of this
section.
(d) Closest affiliation. (1) The Indian
Tribe with the closest affiliation, in the
following order, is:
(i) The Indian Tribe whose cultural
affiliation is clearly identified.
(ii) The Indian Tribe whose cultural
affiliation is not clearly identified but is
reasonably identified by the information
available, including the circumstances
surrounding the acquisition of the
human remains or cultural items.
(iii) The Indian Tribe whose
geographical affiliation is based on the
Tribal lands of the Indian Tribe.
(iv) The Indian Tribe whose
geographical affiliation is based on the
adjudicated aboriginal land of the
Indian Tribe.
(v) The Indian Tribe whose
geographical affiliation is based on the
acknowledged aboriginal land of the
Indian Tribe.
(2) The Native Hawaiian organization
with the closest cultural affiliation, in
the following order, is:
(i) An ‘ohana that can trace an
unbroken connection of named
individuals to one or more of the human
remains or cultural items, but not
necessarily to all of the human remains
or cultural items from a specific site.
(ii) An ‘ohana that can trace a
relationship to the ahupua‘a where the
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63241
human remains or cultural items were
removed and a direct kinship to one or
more of the human remains or cultural
items, but not necessarily an unbroken
connection of named individuals.
(iii) An organization with affiliation
only to the earlier occupants of the
ahupua‘a where the human remains or
cultural items were removed, and not to
the earlier occupants of any other
ahupua‘a.
(iv) An organization with affiliation to
either:
(A) The earlier occupants of the
ahupua‘a where the human remains or
cultural items were removed, as well as
to the earlier occupants of other
ahupua‘a on the same island, but not to
the earlier occupants of all ahupua‘a on
that island, or to the earlier occupants
of any other island of the Hawaiian
archipelago, or
(B) The earlier occupants of another
island who accessed the ahupua‘a
where the human remains or cultural
items were removed for traditional or
customary practices and were buried
there.
(v) An organization with affiliation to
the earlier occupants of all ahupua‘a on
the island where the human remains or
cultural items were removed, but not to
the earlier occupants of any other island
of the Hawaiian archipelago.
(vi) An organization with affiliation to
the earlier occupants of more than one
island in the Hawaiian archipelago that
has been in continuous existence from
a date prior to 1893.
(vii) Any other Native Hawaiian
organization with affiliation.
Subpart B—Protection of Human
Remains or Cultural Items on Federal
or Tribal Lands
§ 10.4
General.
Whenever an Indian Tribe, Native
Hawaiian organization, Federal agency,
or the State of Hawai‘i Department of
Hawaiian Home Lands (DHHL) has
responsibility for human remains or
cultural items on Federal or Tribal
lands, it must comply with the
requirements of this subpart. To ensure
compliance with the Act, any permit,
license, lease, right-of-way, or other
authorization issued by an Indian Tribe,
Native Hawaiian organization, Federal
agency, or DHHL for an activity on
Federal or Tribal lands must include a
requirement that the person responsible
for the activity comply with § 10.5 upon
the discovery of human remains or
cultural items. Prior to any excavation
of human remains or cultural items on
Federal or Tribal lands, an Indian Tribe,
Native Hawaiian organization, Federal
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agency, or DHHL must comply with
§ 10.6.
(a) Appropriate official. To ensure
compliance with the Act, the Indian
Tribe, Native Hawaiian organization,
Federal agency, or DHHL that has
responsibility for human remains or
cultural items on Federal or Tribal lands
must designate one or more appropriate
officials, as shown in Table 1 of this
section. The appropriate official is
responsible for carrying out the
requirements of this subpart.
(b) Plan of action. On Federal lands in
the United States or on Tribal lands in
Hawai‘i, a plan of action is required for
any planned activity (including an
excavation authorized under § 10.6) that
is likely to result in a discovery or
excavation of human remains or cultural
items. Determining the likelihood of
discovery or excavation must be based
upon previous studies, discoveries, or
excavations in the general proximity of
the planned activity. Information from
and the expertise of Native American
cultural practitioners, while not
required, may assist in determining the
likelihood of discovery or excavation. In
consultation with any lineal
descendants, Indian Tribes, or Native
Hawaiian organizations, the appropriate
official must prepare, approve, and sign
a plan of action.
(1) Step 1—Initiate consultation.
Before the planned activity begins, the
appropriate official must identify
consulting parties and make a good-faith
effort to invite the parties to consult.
(i) Consulting parties are any lineal
descendant and any Indian Tribe or
Native Hawaiian organization with
potential affiliation.
(ii) An invitation to consult must be
in writing and must include:
(A) A description of the planned
activity and its general location;
(B) The names of all identified
consulting parties; and
(C) A proposed timeline and method
for consultation.
(iii) Any consulting party, regardless
of whether the party has received an
invitation to consult, must submit a
written request to consult. A written
request to consult may be submitted to
the appropriate official at any time.
(2) Step 2—Consult with requesting
parties. No later than 10 days after
receiving a written request to consult,
the appropriate official must respond in
writing with a proposed timeline for
consultation. The proposed timeline
must allow for consultation to occur
before the planned activity begins.
(i) In the response to the requesting
party, the appropriate official must ask
a requesting party for the following
information, if not already provided:
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(A) Recommendations on the
proposed timeline and method for
consultation; and
(B) The name, phone number, email
address, or mailing address for any
authorized representative, traditional
religious leaders, and known lineal
descendant who should participate in
consultation.
(ii) The consultation process must
seek consensus, to the maximum extent
possible, on the content of the plan of
action.
(iii) The appropriate official must
prepare a record of consultation that
includes the effort made to seek
consensus. If recommendations by
requesting parties are not possible, the
record of consultation must describe
efforts to identify a mutually agreeable
alternative. The appropriate official
must record the concurrence,
disagreement, or nonresponse of the
requesting parties to the plan of action.
(3) Step 3—Approve and sign the plan
of action. Before the planned activity
begins, the appropriate official must
approve and sign a plan of action and
must provide a copy to all consulting
parties. At a minimum, the written plan
of action must include:
(i) A description of the planned
activity and its general location;
(ii) A list of all consulting parties
identified under paragraph (b)(1) of this
section;
(iii) A record of consultation under
paragraph (b)(2) of this section;
(iv) The preference of requesting
parties for:
(A) Stabilizing and covering human
remains or cultural items in situ;
(B) Protecting and relocating human
remains or cultural items, if removed; or
(C) Providing the appropriate
treatment, care, or handling of human
remains or cultural items; and
(v) The timeline and method for:
(A) Informing all identified consulting
parties of a discovery;
(B) Evaluating the potential need for
an excavation; and
(C) Completing the disposition, to
include publication of a notice of
intended disposition, under § 10.7.
(c) Comprehensive agreement. To
facilitate compliance with the Act, a
Federal agency or DHHL may develop a
written comprehensive agreement for all
land managing activities on Federal or
Tribal lands, or portions thereof, under
its responsibility. The written
comprehensive agreement must:
(1) Be developed in consultation with
any Indian Tribe or Native Hawaiian
organization identified under paragraph
(b)(1) of this section and requesting to
consult under paragraph (b)(2) of this
section;
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(2) Include, at minimum, a plan of
action under paragraph (b)(3) of this
section;
(3) Be consented to by a majority of
requesting parties or lineal descendants
identified under paragraph (b)(2) of this
section. Evidence of consent will be by
the authorized representative’s signature
on the agreement or by official
correspondence to the Federal agency or
DHHL; and
(4) Be signed by the appropriate
official for the Federal agency or DHHL.
(d) Federal agency coordination with
other laws. To manage compliance with
the Act, a Federal agency may
coordinate its responsibility under this
subpart with its responsibilities under
other relevant Federal laws. Compliance
with this subpart does not relieve a
Federal agency of the responsibility for
compliance with the National Historic
Preservation Act (54 U.S.C. 306108,
commonly known as Section 106) or the
Archeological and Historic Preservation
Act (54 U.S.C. 312501–312508).
TABLE 1 TO § 10.4—APPROPRIATE
OFFICIAL
For human remains or
cultural items on . . .
The appropriate official is a representative for the . . .
Federal lands in the
United States.
Federal agency with
primary management authority.
Indian Tribe.
Tribal lands in Alaska
and the continental
United States.
Tribal lands in Hawai‘i
§ 10.5
DHHL.
Discovery.
When a discovery of human remains
or cultural items on Federal or Tribal
lands occurs, any person who knows or
has reason to know of the discovery
must inform the appropriate official for
the responsible Indian Tribe, Native
Hawaiian organization, Federal agency,
or DHHL. For any planned activity on
Federal lands in the United States or on
Tribal lands in Hawai‘i that is likely to
result in a discovery of human remains
or cultural items, the appropriate
official must, in consultation with
Indian Tribes and Native Hawaiian
organizations, prepare, approve, and
sign a plan of action under § 10.4(b),
unless the discovery is already covered
by a signed comprehensive agreement
under § 10.4(c).
(a) Report any discovery. Any person
who knows or has reason to know of a
discovery of human remains or cultural
items on Federal or Tribal lands must
immediately report the discovery to the
appropriate official and any additional
point of contact shown in Table 1 of this
section. The person making the
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discovery must make a reasonable effort
to secure and protect the human
remains or cultural items, including, as
appropriate, stabilizing or covering the
human remains or cultural items. No
later than 24 hours after the discovery,
the person making the discovery must
send written documentation of the
discovery, including the steps taken to
secure and protect the human remains
or cultural items, to the appropriate
official and the additional point of
contact shown in Table 1 of this section.
(b) Cease any nearby activity. To
ensure compliance with the Act, any
permit, license, lease, right-of-way, or
other authorization issued by an Indian
Tribe, Native Hawaiian organization,
Federal agency, or DHHL for an activity
on Federal or Tribal lands must include
a requirement that the person
responsible for the activity comply with
this paragraph upon the discovery of
human remains or cultural items. If a
discovery is related to any such activity
(including but not limited to
construction, mining, logging, or
agriculture), the person responsible for
the activity must:
(1) Immediately stop all activity
around the discovery;
(2) Immediately report the discovery
to the appropriate official and any
additional point of contact shown in
Table 1 of this section;
(3) Make a reasonable effort to secure
and protect the human remains or
cultural items, including, as
appropriate, stabilizing and covering the
human remains or cultural items;
(4) No later than 24 hours after the
discovery, send written documentation
of the discovery to the appropriate
official and any additional point of
contact stating:
(i) The general location and contents
of the discovery,
(ii) The activity related to the
discovery,
(iii) The steps taken to secure and
protect the human remains or cultural
items, and
(iv) Confirmation that all activity
around the discovery has stopped and
will not resume until the date in a
written certification issued under
paragraph (e) of this section.
(c) Respond to a discovery. No later
than three days after receiving written
documentation of a discovery, the
appropriate official must respond to a
discovery. The appropriate official must
comply with the requirements of this
section immediately upon learning of
the discovery even if the discovery has
not been properly reported.
(1) The appropriate official must make
a written record showing a reasonable
effort to:
(i) Take steps to secure and protect
the human remains or cultural items;
(ii) Verify that any activity around the
discovery has stopped; and
(iii) Report the discovery to any
additional point of contact shown in
Table 1 of this section.
(2) On Tribal lands in Alaska and the
continental United States, the Indian
Tribe may delegate its responsibility for
the discovery to the appropriate official
for the Bureau of Indian Affairs or the
Federal agency with primary
management authority. If both the
Federal agency and the Indian Tribe
consent in writing, the appropriate
official for the Bureau of Indian Affairs
or the Federal agency with primary
management authority is responsible for
completing the requirements in
paragraph (d) of this section.
(3) On Tribal lands of an NHO, the
Native Hawaiian organization may agree
in writing to be responsible for
discoveries on its Tribal lands and then
must respond to any discovery under
this paragraph. If the Native Hawaiian
organization has not agreed in writing to
be responsible for discoveries, the
appropriate official for DHHL is
responsible for completing the
requirements in paragraph (d) of this
section for any discoveries on those
Tribal lands of an NHO.
63243
(d) Approve and sign a plan of action.
On Federal lands in the United States or
on Tribal lands in Hawai‘i, the
appropriate official, in consultation
with Indian Tribes and Native Hawaiian
organizations, must prepare, approve,
and sign a plan of action under § 10.4(b)
no later than 30 days after receiving
written documentation of a discovery.
To the maximum extent possible, the
appropriate official must carry out the
plan of action for any human remains or
cultural items. This requirement does
not apply if, before receiving written
documentation of the discovery:
(1) The appropriate official signed a
plan of action under § 10.4(b);
(2) The appropriate official signed a
comprehensive agreement under
§ 10.4(c); or
(3) A Native Hawaiian organization
agreed in writing to be responsible for
discoveries on its Tribal lands under
paragraph (c)(3) of this section.
(e) Certify that an activity may
resume. No later than 35 days after
receiving written documentation of a
discovery, the appropriate official must
send a written certification to the person
responsible for the activity that the
activity may resume. The written
certification must provide:
(1) A copy of the signed plan of action
or comprehensive agreement with
redaction of any confidential or
sensitive information to the extent of
applicable law;
(2) Instructions for protecting,
stabilizing, or covering the human
remains or cultural items, if appropriate;
(3) A proposed timeline and method
for evaluating the potential need for and
authorization of an excavation of the
human remains or cultural items, if
applicable; and
(4) The date (no later than 30 days
after the date of the written certification)
on which lawful activity may resume
around the discovery.
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TABLE 1 TO § 10.5—REPORT A DISCOVERY ON FEDERAL OR TRIBAL LANDS
Where the discovery is on . . .
The appropriate official is the representative
for the . . .
And the additional point of contact is the . . .
Federal lands in the United States * ..................
Federal agency with primary management authority.
Indian Tribe ......................................................
Any Indian Tribe or Native Hawaiian organization with potential affiliation, if known.
Bureau of Indian Affairs or the Federal agency
with primary management authority, if any.
Any Native Hawaiian organization with potential affiliation, if known.
Alaska Native Corporation or group organized
under ANCSA.
Tribal lands in Alaska and the continental
United States.
Tribal lands in Hawai‘i ........................................
* Federal lands in Alaska selected but not yet
conveyed under the Alaska Native Claims
Settlement Act (ANCSA, 43 U.S.C. 1601).
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DHHL ................................................................
Bureau of Land Management or Federal
agency with primary management authority.
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Excavation.
When an excavation of human
remains or cultural items on Federal or
Tribal lands is needed, the appropriate
official may authorize the excavation
only after complying with this section.
The appropriate official must take
reasonable steps to evaluate the
potential need for an excavation of
human remains or cultural items. A
permit under Section 4 of ARPA (16
U.S.C. 470cc) is required when the
excavation is on Federal or Tribal lands
that are also ARPA Indian lands or
ARPA Public lands, and there is no
applicable permit exception or
exemption under the ARPA uniform
regulations at 18 CFR 1312, 32 CFR 229,
36 CFR 296, or 43 CFR 7.
(a) On Tribal lands. Before an
excavation of human remains or cultural
items may occur, the appropriate official
must consent in writing by providing a
written authorization for the excavation.
(1) At minimum, the written
authorization must document:
(i) The reasonable steps taken to
evaluate the potential need for an
excavation of human remains or cultural
items; and
(ii) Any permit that the Indian Tribe
or Native Hawaiian organization legally
requires.
(2) On Tribal lands in Alaska and the
continental United States, the Indian
Tribe may delegate its responsibility for
authorizing the excavation to the
appropriate official for the Bureau of
Indian Affairs or the Federal agency
with primary management authority. If
both the Federal agency and the Indian
Tribe consent in writing, the
appropriate official for the Bureau of
Indian Affairs or the Federal agency
with primary management authority is
responsible for completing the
requirements in paragraph (b) of this
section.
(3) On Tribal lands of an NHO, the
Native Hawaiian organization may agree
in writing to be responsible for
excavations on its Tribal lands and then
must provide written authorizations
under this paragraph. If the Native
Hawaiian organization has not agreed in
writing to be responsible for
excavations, the appropriate official for
DHHL is responsible for completing the
requirements in paragraph (b) of this
section for any excavations on those
Tribal lands of an NHO.
(b) On Federal lands in the United
States or on Tribal lands in Hawai‘i.
Before an excavation of human remains
or cultural items may occur, the
appropriate official, must prepare,
approve, and sign a plan of action under
§ 10.4(b) and must provide a written
authorization for the excavation.
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(1) Prior to authorizing an excavation,
the appropriate official, in consultation
with Indian Tribes and Native Hawaiian
organizations, must prepare, approve,
and sign a plan of action under
§ 10.4(b). To the maximum extent
possible, the appropriate official must
carry out the plan of action for any
human remains or cultural items. This
requirement does not apply if prior to
authorizing the excavation:
(i) The appropriate official signed a
plan of action under § 10.4(b);
(ii) The appropriate official signed a
comprehensive agreement under
§ 10.4(c); or
(iii) A Native Hawaiian organization
agreed in writing to be responsible for
excavations on its Tribal lands under
paragraph (a)(3) of this section.
(2) At minimum, the written
authorization must document:
(i) The reasonable steps taken to
evaluate the potential need for an
excavation of human remains or cultural
items; and
(ii) Any permit that the Federal
agency or DHHL legally requires.
§ 10.7
Disposition.
When human remains or cultural
items are removed from Federal or
Tribal lands, as soon as possible (but no
later than one year) after the discovery
or excavation of the human remains or
cultural items, the appropriate official
must determine the lineal descendant,
Indian Tribe, or Native Hawaiian
organization that has priority for
disposition of human remains or
cultural items using this section. On
Federal lands in the United States or on
Tribal lands in Hawai‘i, when the
appropriate official cannot reasonably
determine any Indian Tribe or Native
Hawaiian organization with priority for
disposition of human remains or
cultural items, the appropriate official
must report the human remains or
cultural items as unclaimed under
paragraph (e) of this section.
(a) Priority for disposition. The
disposition of human remains or
cultural items removed from Federal or
Tribal lands is determined in the
following priority order:
(1) The known lineal descendants, if
any, for human remains and associated
funerary objects;
(2) The Indian Tribe or Native
Hawaiian organization from whose
Tribal lands the human remains or
cultural items originated;
(3) The Indian Tribe or Native
Hawaiian organization with the closest
cultural affiliation according to the
priority order at § 10.3(d); or
(4) For human remains or cultural
items from adjudicated aboriginal land,
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the Indian Tribe with the strongest
relationship to the human remains or
cultural items who makes a claim for
disposition, which is:
(i) The adjudicated aboriginal land
Indian Tribe who claims the human
remains or cultural items, or
(ii) A different Indian Tribe who
claims the human remains or cultural
items and shows, by a preponderance of
the evidence, a stronger cultural
relationship to the human remains or
cultural items than the adjudicated
aboriginal land Indian Tribe.
(b) To a lineal descendant. When a
lineal descendant is determined for
human remains and associated funerary
objects removed from Federal or Tribal
lands, the appropriate official for the
Indian Tribe, Native Hawaiian
organization, Federal agency, or DHHL
must send a written disposition
statement to the lineal descendant. The
disposition statement must
acknowledge and recognize the lineal
descendant has ownership or control of
the human remains and associated
funerary objects.
(1) Before sending the disposition
statement, the appropriate official must
consult with the lineal descendant on
the care, custody, and physical transfer
of the human remains and associated
funerary objects.
(2) After sending the disposition
statement, the appropriate official must:
(i) Document any physical transfer by
recording the contents, recipient, and
method of delivery; and
(ii) Protect sensitive information, as
identified by the lineal descendant,
from disclosure to the general public to
the extent consistent with applicable
law;
(3) After the disposition statement is
sent, nothing in the Act or this part:
(i) Limits the authority of the Indian
Tribe, Native Hawaiian organization,
Federal agency, or DHHL to enter into
any agreement with the lineal
descendant concerning the care or
custody of the human remains and
associated funerary objects, or
(ii) Limits any procedural or
substantive right which may otherwise
be secured to the lineal descendant.
(c) On Tribal lands. When a lineal
descendant cannot be determined for
human remains and associated funerary
objects, or in the case of unassociated
funerary objects, sacred objects, or
objects of cultural patrimony, the
appropriate official for the Indian Tribe
or Native Hawaiian organization from
whose Tribal lands the human remains
or cultural items were removed must
complete a written disposition
statement.
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(1) The written disposition statement
must acknowledge and recognize:
(i) A lineal descendant could not be
ascertained and
(ii) The Indian Tribe or Native
Hawaiian organization has control or
ownership of the human remains or
cultural items.
(2) On Tribal lands in Alaska and the
continental United States, the Indian
Tribe may delegate its responsibility for
disposition of human remains or
cultural items to the appropriate official
for the Bureau of Indian Affairs or the
Federal agency with primary
management authority. If both the
Federal agency and the Indian Tribe
consent in writing, the appropriate
official for the Bureau of Indian Affairs
or the Federal agency with primary
management authority is responsible for
completing the requirements in
paragraph (d) of this section.
(3) On Tribal lands of an NHO, the
Native Hawaiian organization may agree
in writing to be responsible for
disposition of human remains or
cultural items from its Tribal lands and
then must provide written disposition
statements under this paragraph. If the
Native Hawaiian organization has not
agreed in writing to be responsible for
dispositions, the appropriate official for
DHHL is responsible for completing the
requirements in paragraph (d) of this
section for any dispositions from those
Tribal lands of an NHO.
(4) After the disposition statement is
complete, nothing in the Act or this
part:
(i) Limits the authority of a Federal
agency to enter into any agreement with
the Indian Tribe or Native Hawaiian
organization concerning the care or
custody of the human remains or
cultural items,
(ii) Limits any procedural or
substantive right which may otherwise
be secured to the Indian Tribe or Native
Hawaiian organization, or
(iii) Prevents the governing body of an
Indian Tribe or Native Hawaiian
organization from expressly
relinquishing its control or ownership of
human remains, funerary objects, or
sacred objects.
(d) On Federal lands in the United
States or on Tribal lands in Hawai‘i.
When a lineal descendant cannot be
determined for human remains and
associated funerary objects, or in the
case of unassociated funerary objects,
sacred objects, or objects of cultural
patrimony, the appropriate official for
the Federal agency or DHHL must
determine the Indian Tribe or Native
Hawaiian organization with priority for
disposition under paragraph (a) of this
section. When the appropriate official
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cannot reasonably determine any Indian
Tribe or Native Hawaiian organization
with priority for disposition of human
remains or cultural items, the Federal
agency or DHHL must report the human
remains or cultural items as unclaimed
under paragraph (e) of this section. On
Tribal lands in Hawai‘i, this
requirement is waived if the Native
Hawaiian organization agreed in writing
to be responsible for disposition of
human remains or cultural items from
its Tribal lands under paragraph (c)(3) of
this section.
(1) Step 1—Inform consulting parties.
As soon as possible but no later than six
months after a discovery or excavation
of human remains or cultural items, the
appropriate official must send a written
document informing all consulting
parties identified in the plan of action
under § 10.4(b)(1). Consultation on the
disposition of human remains or
cultural items may continue until
publication of a notice of intended
disposition under paragraph (d)(2) of
this section. The appropriate official
must send a written document to the
consulting parties that includes:
(i) A description of the human
remains or cultural items including the
general location and date of discovery or
excavation;
(ii) The name of each Indian Tribe or
Native Hawaiian organization identified
as having priority for disposition of the
human remains or cultural items and a
brief abstract of the information used to
make that identification; and
(iii) A request that if the Indian Tribe
or Native Hawaiian organization wishes
to submit a claim for disposition of the
human remains or cultural items, it
should do so in writing no later than 30
days after publication of a notice in the
Federal Register.
(2) Step 2—Submit a notice of
intended disposition. No earlier than 30
days and no later than six months after
informing consulting parties, the
appropriate official must submit a
notice of intended disposition to the
Manager, National NAGPRA Program,
for publication in the Federal Register.
If the human remains or cultural items
are evidence in an ongoing civil or
criminal action under ARPA, the
deadline for the notice is extended until
the conclusion of the ARPA case.
(i) A notice of intended disposition
must conform to the mandatory format
of the Federal Register and include:
(A) A brief description of the human
remains or cultural items, including the
county and state where the human
remains or cultural items were removed;
(B) The identity of the human remains
or cultural items specifically as human
remains, associated funerary objects,
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unassociated funerary objects, sacred
objects, objects of cultural patrimony, or
both sacred objects and objects of
cultural patrimony, and a brief abstract
of the information used to make that
identification;
(C) The name of each Indian Tribe or
Native Hawaiian organization with
priority for disposition of the human
remains or cultural items and a brief
abstract of the information used to make
that identification;
(D) The name, phone number, email
address, and mailing address for the
appropriate official who is responsible
for receiving written claims for
disposition of the human remains or
cultural items;
(E) The date (to be calculated by the
Federal Register 30 days from the date
of publication) after which the
appropriate official may send a
disposition statement to a claimant; and
(F) The date (to be calculated by the
Federal Register one year from the date
of publication) on which the human
remains or cultural items will become
unclaimed human remains or cultural
items if no written claim is received
from an Indian Tribe or Native
Hawaiian organization.
(ii) No later than 15 days after
receiving a notice of intended
disposition, the Manager, National
NAGPRA Program, will:
(A) Approve for publication in the
Federal Register a notice of intended
disposition that conforms to the
requirements under paragraph (d)(2)(i)
of this section; or
(B) Return to the Federal agency or
DHHL any submission that does not
meet the requirements under paragraph
(d)(2)(i) of this section.
(3) Step 3—Receive and consider a
claim for disposition. After publication
of a notice of intended disposition in
the Federal Register, any Indian Tribe
or Native Hawaiian organization may
submit to the appropriate official a
written claim for disposition of human
remains or cultural items.
(i) A claim for disposition of human
remains or cultural items must be
received by the appropriate official
before the appropriate official sends a
disposition statement for the human
remains or cultural items to a claimant
under paragraph (d)(5) of this section or
the transfer or reinterment of the human
remains or cultural items under
paragraph (e)(4) of this section. Any
claim for disposition received by the
appropriate official no later than 30
days after publication of a notice must
be considered. A claim for disposition
received by the appropriate official
before the publication of the notice of
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intended disposition is dated the same
date the notice was published.
(ii) Claims from two or more Indian
Tribes or Native Hawaiian organizations
who agree to joint disposition of the
human remains or cultural items are
considered a single claim and not
competing claims.
(iii) A claim for disposition must
satisfy one of the following criteria:
(A) The claim is from an Indian Tribe
or Native Hawaiian organization
identified in the notice of intended
disposition with priority for disposition,
or
(B) The claim is not from an Indian
Tribe or Native Hawaiian organization
identified in the notice of intended
disposition, and shows that the claimant
is a lineal descendant, Indian Tribe, or
Native Hawaiian organization having
priority for disposition under paragraph
(a) of this section.
(4) Step 4—Respond to a claim for
disposition. No earlier than 30 days after
publication of a notice of intended
disposition but no later than 30 days
after receiving a claim for disposition,
the appropriate official must send a
written response to the claimant with a
copy to any other party identified in the
notice with priority for disposition.
(i) In the written response, the
appropriate official must state one of the
following:
(A) The claim meets the criteria under
paragraph (d)(3) of this section. The
appropriate official will send a
disposition statement to the claimant
under paragraph (d)(5) of this section,
unless the appropriate official receives
additional, competing claims for
disposition of human remains or
cultural items.
(B) The claim does not meet the
criteria under paragraph (d)(3) of this
section. The appropriate official must
provide a detailed explanation why the
claim does not meet the criteria and an
opportunity for the claimant to provide
additional information to meet the
criteria.
(C) The appropriate official has
received competing claims for
disposition of the human remains or
cultural items that meet the criteria and
must determine the most appropriate
claimant using the procedures and
timelines under paragraph (d)(4)(ii) of
this section.
(ii) At any time before sending a
disposition statement for human
remains or cultural items under
paragraph (d)(5) of this section, the
appropriate official may receive
additional, competing claims for
disposition of the human remains or
cultural items that meet the criteria
under paragraph (d)(3) of this section.
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The appropriate official must determine
the most appropriate claimant using the
priority for disposition under paragraph
(a) of this section.
(A) No later than 10 days after
receiving a competing claim, the
appropriate official must send a written
letter to each claimant identifying all
claimants and the date each claim was
received,
(B) No later than 120 days after
informing the claimants of competing
claims, the appropriate official must
send a written determination to each
claimant identifying the most
appropriate claimant(s), and
(C) No earlier than 30 days but no
later than 90 days after sending a
determination of the most appropriate
claimant(s), the appropriate official
must send a disposition statement to the
most appropriate claimant(s) under
paragraph (d)(5) of this section.
(5) Step 5—Disposition of the human
remains or cultural items. No later than
90 days after responding to a claim for
disposition that meets the criteria, the
appropriate official must send a written
disposition statement to the claimant(s)
and a copy to the Manager, National
NAGPRA Program. The disposition
statement must acknowledge and
recognize the claimant(s) has control or
ownership of the human remains or
cultural items. Disposition must be in a
manner that, to the maximum extent
possible, respects the traditions of the
lineal descendant, Indian Tribe, or
Native Hawaiian organization. In the
case of joint claims for disposition, the
disposition statement must be sent to
and must identify all claimants.
(i) Before sending the disposition
statement, the appropriate official must
consult with the claimant(s) on the care,
custody, and physical transfer of the
human remains or cultural items.
(ii) After sending the disposition
statement, the appropriate official must:
(A) Document any physical transfer
by recording the contents, recipient(s),
and method of delivery and
(B) Protect sensitive information, as
identified by the claimant(s), from
disclosure to the general public to the
extent consistent with applicable law.
(iii) After the disposition statement is
sent, nothing in the Act or this part:
(A) Limits the authority of the Federal
agency or DHHL to enter into any
agreement with the Indian Tribe or
Native Hawaiian organization
concerning the care or custody of the
human remains or cultural items,
(B) Limits any procedural or
substantive right which may otherwise
be secured to the Indian Tribe or Native
Hawaiian organization, or
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(C) Prevents the governing body of an
Indian Tribe or Native Hawaiian
organization from expressly
relinquishing its control or ownership of
human remains, funerary objects, or
sacred objects.
(e) Unclaimed human remains or
cultural items removed from Federal
lands in the United States or from Tribal
lands in Hawai‘i. When the appropriate
official cannot complete the disposition
of human remains or cultural items
under paragraph (d) of this section, the
Federal agency or DHHL must report the
human remains or cultural items as
unclaimed. The appropriate official
must, to the maximum extent possible,
respect the traditions of the Indian Tribe
or Native Hawaiian organization that
may have priority for disposition under
paragraph (a) of this section.
(1) Step 1—Submit a list of unclaimed
cultural items. No later than [DATE 395
DAYS AFTER DATE OF PUBLICATION
OF THE FINAL RULE IN THE
FEDERAL REGISTER], the Federal
agency or DHHL must submit to the
Manager, National NAGPRA Program, a
list of all unclaimed cultural items in its
custody. The Federal agency or DHHL
must submit updates to its list of
unclaimed cultural items by December
31 each year.
(i) Human remains or cultural items
are unclaimed when:
(A) One year after publishing a notice
of intended disposition under paragraph
(d)(2) of this section, no Indian Tribe or
Native Hawaiian organization submits a
written claim for disposition, or
(B) One year after discovery or
excavation of the human remains or
cultural items, the appropriate official
could not reasonably identify any lineal
descendant, Indian Tribe, or Native
Hawaiian organization with priority for
disposition under paragraph (a) of this
section.
(ii) A list of unclaimed human
remains or cultural items must include:
(A) A brief description of the human
remains or cultural items, including the
county and state where the human
remains or cultural items were removed;
(B) The names of all consulting
parties and an abstract of the results of
consultation;
(C) If known, the identity of the
human remains or cultural items
specifically as human remains,
associated funerary objects,
unassociated funerary objects, sacred
objects, objects of cultural patrimony, or
both sacred objects and objects of
cultural patrimony, and a brief abstract
of the information used to make that
identification; and
(D) If known, the name of each Indian
Tribe or Native Hawaiian organization
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with priority for disposition under
paragraph (a) of this section and a brief
abstract of the information used to make
that identification.
(iii) At any time before transferring or
reinterring human remains or cultural
items under paragraph (e)(4) of this
section, the appropriate official may
receive a claim for disposition of the
human remains or cultural items and
must evaluate whether the claim meets
the criteria under paragraph (d)(3) of
this section. Any agreement to transfer
or decision to reinter the human
remains or cultural items under this
paragraph is stayed until the claim for
disposition is resolved under paragraph
(d) of this section. No later than 10 days
after receiving a claim for disposition,
the appropriate official must send a
written letter to each claimant or
requestor identifying all claimants and
requestors and the date each claim or
request was received.
(A) If the claim meets the criteria
under paragraph (d)(3) of this section
and a notice of intended disposition was
published under paragraph (d)(2) of this
section, the appropriate official must
respond in writing under paragraph
(d)(4) and proceed with disposition
under (d)(5) of this section.
(B) If the claim meets the criteria
under paragraph (d)(3) of this section
but no notice of intended disposition
was published, the appropriate official
must submit a notice of intended
disposition under paragraph (d)(2),
respond in writing under paragraph
(d)(4), and proceed with disposition
under (d)(5) of this section.
(C) No later than 90 days after
responding to a claim for disposition
that meets the criteria, the appropriate
official must send a written letter to
each claimant or requestor identifying
the claimant that has control or
ownership of the human remains or
cultural items.
(D) If the claim does not meet the
criteria under paragraph (d)(3) of this
section, the appropriate official must
respond in writing under paragraph
(d)(4) and may proceed with transfer or
reinterment under paragraph (e)(2) of
this section.
(2) Step 2—Agree to transfer or decide
to reinter human remains or cultural
items. Subject to the requirements in
paragraph (e)(3) of this section, and at
the discretion of the Federal agency or
DHHL, a Federal agency or DHHL may:
(i) Agree in writing to transfer
unclaimed cultural items to a requestor
that agrees to treat the human remains
or cultural items according to the
requestor’s laws and customs.
Unclaimed cultural items must be
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requested in writing and may only be
requested by:
(A) An Indian Tribe or Native
Hawaiian organization, or
(B) An Indian group that is not
federally recognized but has a
relationship to unclaimed human
remains or associated funerary objects.
(ii) Decide in writing to reinter
unclaimed human remains or funerary
objects according to applicable laws and
policies.
(3) Step 3—Submit a notice of
proposed transfer or reinterment. No
later than 30 days after agreeing to
transfer or deciding to reinter the
human remains or cultural items, the
Federal agency or DHHL must submit a
notice of proposed transfer or
reinterment to the Manager, National
NAGPRA Program for publication in the
Federal Register. The Federal agency or
DHHL must send a copy of the
published notice to any Indian Tribe or
Native Hawaiian organization identified
as having a priority for disposition
under paragraph (a) of this section.
(i) A notice of proposed transfer or
reinterment must conform to the
mandatory format of the Federal
Register and include:
(A) The details provided in the list of
unclaimed cultural items under
paragraph (e)(1) of this section;
(B) The name of each Indian Tribe,
Native Hawaiian organization, or Indian
group requesting the human remains or
cultural items or a statement that the
Federal agency or DHHL will reinter the
human remains or funerary objects;
(C) The name, phone number, email
address, and mailing address for the
appropriate official who is responsible
for receiving written claims for
disposition of the human remains or
cultural items; and
(D) The date (to be calculated by the
Federal Register 30 days from the date
of publication) after which the Federal
agency or DHHL may proceed with the
transfer or reinterment of the human
remains or cultural items.
(ii) No later than 15 days after
receiving a notice of proposed transfer
or reinterment, the Manager, National
NAGPRA Program, will:
(A) Approve for publication in the
Federal Register a notice of proposed
transfer or reinterment that conforms to
the requirements under paragraph
(e)(3)(i) of this section; or
(B) Return to the Federal agency or
DHHL any submission that does not
meet the requirements under paragraph
(e)(3)(i) of this section.
(4) Step 4—Transfer or reinter the
human remains or cultural items. No
earlier than 30 days and no later than 90
days after publication of a notice of
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63247
proposed transfer or reinterment, the
appropriate official must transfer or
reinter the human remains or cultural
items.
(i) After transferring or reinterring, the
appropriate official must:
(A) Document the transfer by
recording the contents, recipient, and
method of delivery,
(B) Document the reinterment by
recording the contents of the
reinterment,
(C) Protect sensitive information
about the human remains or cultural
items from disclosure to the general
public to the extent consistent with
applicable law.
(ii) After transfer or reinterment
occurs, nothing in the Act or this part:
(A) Limits the authority of the Federal
agency or DHHL to enter into any
agreement with the requestor
concerning the care or custody of the
human remains or cultural items,
(B) Limits any procedural or
substantive right which may otherwise
be secured to the Indian Tribe or Native
Hawaiian organization, or
(C) Prevents the governing body of an
Indian Tribe or Native Hawaiian
organization from expressly
relinquishing its control or ownership of
human remains, funerary objects, or
sacred objects.
Subpart C—Repatriation of Human
Remains or Cultural Items by
Museums or Federal Agencies
§ 10.8
General.
Each museum and Federal agency that
has possession or control of a holding or
collection that may contain human
remains, funerary objects, sacred
objects, or objects of cultural patrimony
must comply with the requirements of
this subpart, regardless of the physical
location of the holding or collection.
Each museum and Federal agency must
identify one or more authorized
representatives who are responsible for
carrying out the requirements of this
subpart.
(a) Museum holding or collection. A
museum must comply with this subpart
for all holdings or collections under its
possession or control that contain
human remains or cultural items,
including a new holding or collection or
a previously lost or previously unknown
holding or collection.
(1) A museum must determine
whether it has sufficient interest in a
holding or collection to constitute
possession or control on a case-by-case
basis given the relevant information
about the holding or collection.
(i) A museum may have custody of a
holding or collection but not possession
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or control. In general, custody through
a loan, lease, license, bailment, or other
similar arrangement is not sufficient
interest to constitute possession or
control, which resides with the loaning,
leasing, licensing, bailing, or otherwise
transferring museum or Federal agency.
(ii) If a museum has custody of a
holding or collection, the museum may
be required to report the holding or
collection under paragraphs (c) or (d) of
this section.
(2) Any museum that completes
repatriation of human remains and
cultural items or transfers or reinters
human remains and associated funerary
objects in good faith under this subpart
shall not be liable for claims by an
aggrieved party or for claims of breach
of fiduciary duty, public trust, or
violations of state law that are
inconsistent with the provisions of the
Act or this part.
(b) Federal agency holding or
collection. A Federal agency must
comply with this subpart for all
holdings or collections in its possession
or control that contain human remains
and cultural items, including a
previously lost or previously unknown
holding or collection. A Federal agency
must determine if a holding or
collection:
(1) Was in its possession or control on
or before November 16, 1990; or
(2) Came into its possession or control
after November 16, 1990, and was
removed from:
(i) An unknown location, or
(ii) Lands that are neither Federal nor
Tribal lands as defined in this part.
(c) Museums with custody of a
Federal agency holding or collection. No
later than [DATE 395 DAYS AFTER
DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER], each museum that has
custody of a Federal agency holding or
collection that contains Native
American human remains or cultural
items must submit a statement
describing that holding or collection to
the authorized representatives of the
Federal agency most likely to have
possession or control and to the
Manager, National NAGPRA Program.
(1) No later than 120 days following
receipt of a museum’s statement, the
Federal agency must respond to the
museum and the Manager, National
NAGPRA program, with a written
acknowledgement of one of the
following:
(i) The Federal agency has possession
or control of the holding or collection;
(ii) The Federal agency does not have
possession or control of the holding or
collection; or
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(iii) The Federal agency and the
museum have joint possession or
control of the holding or collection.
(2) Failure to issue such a
determination by the deadline will
constitute acknowledgement that the
Federal agency has possession or
control. The Federal agency is
ultimately responsible for the
requirements of this subpart for all
holdings or collections under its
possession or control, regardless of the
physical location of the holdings or
collection.
(d) Museums with custody of other
holdings or collections. No later than
[DATE 395 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], each
museum that has custody of a holding
or collection that contains Native
American human remains or cultural
items and for which it cannot identify
any person, institution, State or local
government agency, or Federal agency
with possession or control of the
holding or collection, must submit a
statement describing that holding or
collection to the Manager, National
NAGPRA Program.
(e) Contesting actions on repatriation.
An affected party under § 10.12(c)(1)
who wishes to contest actions made by
museums or Federal agencies under this
subpart is encouraged to do so through
informal negotiations to achieve a fair
resolution of the matter. Informal
negotiations may include requesting the
assistance of the Manager, National
NAGPRA Program, or the Review
Committee under § 10.12.
§ 10.9 Repatriation of unassociated
funerary objects, sacred objects, and
objects of cultural patrimony.
Each museum and Federal agency that
has possession or control of a holding or
collection that may contain an
unassociated funerary object, sacred
object, or object of cultural patrimony
must follow the steps in this section.
The purpose of this section is to provide
general information about a holding or
collection to lineal descendants, Indian
Tribes, and Native Hawaiian
organizations to facilitate repatriation.
(a) Step 1—Complete a summary of a
holding or collection. Based on the
information available, a museum or
Federal agency must submit to the
Manager, National NAGPRA Program, a
summary describing its holding or
collection that may contain
unassociated funerary objects, sacred
objects, and objects of cultural
patrimony. Depending on the scope of
the holding or collection, a museum or
Federal agency may organize its
summary into sections based on
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geographic area, accession or catalog
name or number, or other defining
attributes. A museum or Federal agency
must ensure the summary is
comprehensive and covers all holdings
or collections relevant to this section.
(1) A summary must include:
(i) The estimated number and a
general description of the holding or
collection, including any potential
unassociated funerary objects, sacred
objects, and objects of cultural
patrimony;
(ii) The county and state where the
potential unassociated funerary objects,
sacred objects, and objects of cultural
patrimony were removed;
(iii) The acquisition history
(provenance) of the potential
unassociated funerary objects, sacred
objects, and objects of cultural
patrimony;
(iv) Other information relevant for
identifying:
(A) A lineal descendant or an Indian
Tribe or Native Hawaiian organization
with cultural affiliation;
(B) Any object or item as an
unassociated funerary object, sacred
object, or object of cultural patrimony;
and
(v) The presence of any potentially
hazardous substances used to treat any
of the unassociated funerary objects,
sacred objects, or objects of cultural
patrimony, if known.
(2) After [DATE 30 DAYS AFTER
DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER], a museum or Federal
agency must submit a summary to the
Manager, National NAGPRA Program,
by the deadline in Table 1 of this
section.
(3) Prior to [DATE 30 DAYS AFTER
DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER], a museum or Federal
agency must have submitted a summary
to the Manager, National NAGPRA
Program:
(i) By November 16, 1993, for
unassociated funerary objects, sacred
objects, and objects of cultural
patrimony subject to the Act;
(ii) By October 20, 2007, for
unassociated funerary objects, sacred
objects, and objects of cultural
patrimony acquired or located after
November 16, 1993;
(iii) By April 20, 2010, for
unassociated funerary objects, sacred
objects, and objects of cultural
patrimony in the possession or control
of a museum that received Federal
funds for the first time after November
16, 1993;
(iv) Within six months of acquiring or
locating unassociated funerary objects,
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sacred objects, and objects of cultural
patrimony after October 20, 2007; or
(v) Within three years of receiving
Federal funds for the first time after
April 20, 2010.
(4) After [DATE 30 DAYS AFTER
DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER], when a holding or
collection previously included in a
summary is transferred to a museum or
Federal agency, The museum or Federal
agency acquiring possession or control
of the holding or collection may rely on
the previously completed summary. The
museum or Federal agency must submit
the previously completed summary to
the Manager, National NAGPRA
Program, no later than 30 days after
acquiring the holding or collection. The
museum or Federal agency must submit
a summary to the Manager, National
NAGPRA Program, no later than the
deadline in Table 1 of this section and
must initiate consultation under
paragraph (b) of this section.
(b) Step 2—Initiate consultation. No
later than 30 days after completing a
summary, a museum or Federal agency
must identify consulting parties based
on information available and make a
good-faith effort to invite the parties to
consult.
(1) Consulting parties are any lineal
descendant and any Indian Tribe or
Native Hawaiian organization with
potential affiliation.
(2) An invitation to consult must be
in writing and must include:
(i) The summary described in
paragraph (a)(1) of this section;
(ii) The names of all identified
consulting parties; and
(iii) A proposed timeline and method
for consultation.
(3) Any consulting party, regardless of
whether the party has received an
invitation to consult, must submit a
written request to consult. A written
request to consult may be submitted at
any time before the publication of a
notice of intended repatriation under
paragraph (f) of this section.
(4) When a museum or Federal agency
identifies a new consulting party under
paragraph (b)(1) of this section, the
museum or Federal agency must make
a good-faith effort to invite the party to
consult and must send an invitation to
consult under paragraph (b)(2) of this
section. An invitation to consult must
be sent to new consulting parties:
(i) No later than 10 days after
identifying a new consulting party
based on new information; or
(ii) No later than six months after the
addition of a Tribal entity to the list of
federally recognized Indian Tribes
published in the Federal Register
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pursuant to the Act of November 2, 1994
(25 U.S.C. 5131).
(c) Step 3—Consult with requesting
parties. No later than 10 days after
receiving a written request to consult, a
museum or Federal agency must
respond in writing with a proposed
timeline for consultation. Consultation
on an unassociated funerary object,
sacred object, or object of cultural
patrimony may continue until the
museum or Federal agency sends a
repatriation statement for that object to
a requestor under paragraph (g) of this
section.
(1) In the response to the requesting
party, a museum or Federal agency must
ask a requesting party for the following
information, if not already provided:
(i) Recommendations on the proposed
timeline and method for consultation;
and
(ii) The name, phone number, email
address, or mailing address for any
authorized representative, traditional
religious leader, and known lineal
descendant who should participate in
consultation.
(2) The consultation process must
seek consensus, to the maximum extent
possible, on determining:
(i) Lineal descendants;
(ii) Indian Tribes or Native Hawaiian
organizations with cultural affiliation;
(iii) The types of objects that might be
unassociated funerary objects, sacred
objects, or objects of cultural patrimony;
and
(iv) The appropriate treatment, care,
and handling of unassociated funerary
objects, sacred objects, or objects of
cultural patrimony.
(3) The museum or Federal agency
must prepare a record of consultation
that includes the effort made to seek
consensus. If recommendations by
requesting parties are not possible, the
record of consultation must describe
efforts to identify a mutually agreeable
alternative. For any determination
considered during the consultation
process, the museum or Federal agency
must record the concurrence,
disagreement, or nonresponse of the
requesting parties.
(4) At any time before a museum or
Federal agency sends a repatriation
statement for an unassociated funerary
object, sacred object, or object of
cultural patrimony to a requestor under
paragraph (g) of this section, the
museum or Federal agency may receive
a request from a consulting party for
access to records, catalogues, relevant
studies, or other pertinent data related
to the holding or collection. A museum
or Federal agency must provide access
to the additional information in a
reasonable manner and for the limited
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purpose of determining affiliation and
acquisition history of the unassociated
funerary object, sacred object, or object
of cultural patrimony.
(d) Step 4—Receive and consider a
request for repatriation. After a
summary is complete, any lineal
descendant, Indian Tribe, or Native
Hawaiian organization may submit to
the museum or Federal agency a written
request for repatriation of an
unassociated funerary object, sacred
object, or object of cultural patrimony.
(1) A request for repatriation of an
unassociated funerary object, sacred
object, or object of cultural patrimony
must be received by the museum or
Federal agency before the museum or
Federal agency sends a repatriation
statement for that unassociated funerary
object, sacred object, or object of
cultural patrimony to a requestor under
paragraph (g) of this section. A request
for repatriation received by the museum
or Federal agency before the deadline
for completing a summary is dated the
same date as the deadline for
completing the summary.
(2) Requests from two or more lineal
descendants, Indian Tribes, or Native
Hawaiian organizations who agree to
joint repatriation of the unassociated
funerary object, sacred object, or object
of cultural patrimony are considered a
single request and not competing
requests.
(3) A request for repatriation must
satisfy all the following criteria:
(i) Each unassociated funerary object,
sacred object, or object of cultural
patrimony being requested meets the
definition of an unassociated funerary
object, a sacred object, or an object of
cultural patrimony;
(ii) The request is from a lineal
descendant or an Indian Tribe or Native
Hawaiian organization with cultural
affiliation; and
(iii) The request includes information
to support a finding that the museum or
Federal agency does not have right of
possession to the unassociated funerary
object, sacred object, or object of
cultural patrimony.
(e) Step 5—Respond to a request for
repatriation. No later than 60 days after
receiving a request for repatriation, a
museum or Federal agency must send a
written response to the requestor. Using
all information available, including
relevant records, catalogs, existing
studies, and the results of consultation,
a museum or Federal agency must
determine if the request for repatriation
satisfies the criteria under paragraph (d)
of this section. In the written response,
the museum or Federal agency must
state one of the following:
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(1) The request meets the criteria
under paragraph (d) of this section. The
museum or Federal agency will submit
a notice of intended repatriation under
paragraph (f) of this section.
(2) The request does not meet the
criteria under paragraph (d) of this
section. The museum or Federal agency
must provide a detailed explanation
why the request does not meet the
criteria and an opportunity for the
requestor to provide additional
information to meet the criteria.
(3) The request meets the criteria
under paragraph (d)(3)(i) and (ii) of this
section, but the museum or Federal
agency asserts a right of possession to
the unassociated funerary object, sacred
object, or object of cultural patrimony
and refuses to complete repatriation of
the requested object to the requestor.
The museum or Federal agency must
provide information to prove that the
museum or Federal agency has a right
of possession to the unassociated
funerary object, sacred object, or object
of cultural patrimony.
(4) The museum or Federal agency
has received competing requests for
repatriation of the unassociated funerary
object, sacred object, or object of
cultural patrimony that meet the criteria
and must determine the most
appropriate requestor using the
procedures and timelines under
paragraph (h) of this section.
(f) Step 6—Submit a notice of
intended repatriation. No later than 30
days after responding to a request for
repatriation that meets the criteria, a
museum or Federal agency must submit
a notice of intended repatriation to the
Manager, National NAGPRA Program,
for publication in the Federal Register.
The museum or Federal agency may
include in a single notice all
unassociated funerary objects, sacred
objects, or objects of cultural patrimony
with the same requestor.
(1) A notice of intended repatriation
must conform to the mandatory format
of the Federal Register and include:
(i) The number of unassociated
funerary object, sacred object, or object
of cultural patrimony and a brief
description of each object (counted
separately or by lot);
(ii) The county and state where the
unassociated funerary object, sacred
object, or object of cultural patrimony
were removed;
(iii) The acquisition history
(provenance) of the unassociated
funerary object, sacred object, or object
of cultural patrimony, including the
circumstances surrounding its
acquisition;
(iv) The identity of each unassociated
funerary object, sacred object, or object
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of cultural patrimony specifically as an
unassociated funerary object, a sacred
object, an object of cultural patrimony,
or both a sacred object and an object of
cultural patrimony, and a brief abstract
of the information used to make that
identification;
(v) The lineal descendant, Indian
Tribe, or Native Hawaiian organization
requesting repatriation of the
unassociated funerary object, sacred
object, or object of cultural patrimony
and a brief abstract of the information
showing the requestor is a lineal
descendant or an Indian Tribe or Native
Hawaiian organization with cultural
affiliation;
(vi) Information about the presence of
any potentially hazardous substances
used to treat the unassociated funerary
object, sacred object, or object of
cultural patrimony, if known;
(vii) The name, phone number, email
address, and mailing address for the
authorized representative of the
museum or Federal agency who is
responsible for receiving requests for
repatriation; and
(viii) The date (to be calculated by the
Federal Register 30 days from the date
of publication) after which the museum
or Federal agency may send a
repatriation statement to the requestor.
(2) No later than 15 days after
receiving a notice of intended
repatriation, the Manager, National
NAGPRA Program, will:
(i) Approve for publication in the
Federal Register a notice of intended
repatriation that conforms to the
requirements under paragraph (f)(1) of
this section; or
(ii) Return to the museum or Federal
agency any submission that does not
meet the requirements under paragraph
(f)(1) of this section.
(3) If the number or identity of
unassociated funerary objects, sacred
objects, or objects of cultural patrimony
stated in a published notice of intended
repatriation changes before the museum
or Federal agency sends a repatriation
statement under paragraph (g) of this
section, the museum or Federal agency
must submit a correction notice to the
Manager, National NAGPRA Program. A
museum or Federal agency is not
required to submit a correction notice if
there are additional pieces belonging to
an unassociated funerary object, sacred
object, or object of cultural patrimony
previously identified in a notice and
repatriation is to the same requestor. No
later than 10 days after determining the
new number or new identity of the
unassociated funerary object, sacred
object, or object of cultural patrimony,
the museum or Federal agency must
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submit a correction notice containing, as
applicable:
(i) The corrected number of
unassociated funerary object, sacred
object, or object of cultural patrimony
and corrected brief description of each
object;
(ii) The corrected identity of the
unassociated funerary objects, sacred
objects, or objects of cultural patrimony
specifically as an unassociated funerary
object, a sacred object, an object of
cultural patrimony, or both a sacred
object and an object of cultural
patrimony, and corrected brief abstract
of the information used to make that
identification;
(iii) The name, phone number, email
address, and mailing address for the
authorized representative of the
museum or Federal agency who is
responsible for receiving requests for
repatriation; and
(iv) The date (to be calculated by the
Federal Register 30 days from the date
of publication) after which the museum
or Federal agency may send a
repatriation statement to the requestor.
(4) At any time before sending a
repatriation statement for an
unassociated funerary object, sacred
object, or object of cultural patrimony
under paragraph (g) of this section, the
museum or Federal agency may receive
additional, competing requests for
repatriation of that object that meet the
criteria under paragraph (d) of this
section. The museum or Federal agency
must determine the most appropriate
requestor the procedures and timelines
under paragraph (h) of this section.
(g) Step 7—Repatriation of the
unassociated funerary object, sacred
object, or object of cultural patrimony.
No earlier than 30 days and no later
than 90 days after publication of a
notice of intended repatriation, a
museum or Federal agency must send a
written repatriation statement to the
requestor and a copy to the Manager,
National NAGPRA Program. The
repatriation statement must
acknowledge and recognize the
requestor has control or ownership of
the requested unassociated funerary
object, sacred object, or object of
cultural patrimony. In the case of joint
requests for repatriation, the repatriation
statement must be sent to and must
identify all requestors.
(1) Before sending the repatriation
statement, the museum or Federal
agency must consult with the requestor
on the care, custody, and physical
transfer of the unassociated funerary
object, sacred object, or object of
cultural patrimony,
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(2) After sending the repatriation
statement, the museum or Federal
agency must:
(i) Document any physical transfer of
the unassociated funerary object, sacred
object, or object of cultural patrimony
by recording the contents, recipient, and
method of delivery, and
(ii) Protect sensitive information, as
identified by the requestor, from
disclosure to the general public to the
extent consistent with applicable law.
(3) After the repatriation statement is
sent, nothing in the Act or this part
limits the authority of the museum or
Federal agency to enter into any
agreement with the requestor
concerning the care or custody of the
unassociated funerary object, sacred
object, or object of cultural patrimony.
(h) Evaluating competing requests for
repatriation. At any time before sending
a repatriation statement for an
unassociated funerary object, sacred
object, or object of cultural patrimony
under paragraph (g) of this section, a
museum or Federal agency may receive
additional, competing requests for
repatriation of that object that meet the
criteria under paragraph (d) of this
section. The museum or Federal agency
must determine the most appropriate
requestor using this paragraph.
(1) For an unassociated funerary
object or sacred object, in the following
priority order, the most appropriate
requestor is:
(i) The lineal descendant, if any, or
(ii) The Indian Tribe or Native
Hawaiian organization with the closest
cultural affiliation according to the
priority order at § 10.3(d).
(2) For an object of cultural
patrimony, the most appropriate
requestor is the Indian Tribe or Native
Hawaiian organization with the closest
cultural affiliation according to the
priority order at § 10.3(d).
(3) No later than 10 days after
receiving a competing request, a
museum or Federal agency must send a
written letter to each requestor
identifying all requestors and the date
each request was received.
(4) No later than 120 days after
informing the requestors of competing
requests, a museum or Federal agency
must send a written determination to
each requestor and the Manager,
National NAGPRA Program. The
determination must be one of the
following:
(i) The most appropriate requestor has
been determined and the competing
requests were received before the
publication of a notice of intended
repatriation. The museum or Federal
agency must:
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(A) Identify the most appropriate
requestor and explain how the
determination was made,
(B) Submit a notice of intended
repatriation in accordance with
paragraph (f) of this section no later
than 30 days after sending the
determination, and
(C) No earlier than 30 days and no
later than 90 days after publication of
the notice of intended repatriation, the
museum or Federal agency must send a
repatriation statement to the most
appropriate requestor under paragraph
(g) of this section.
(ii) The most appropriate requestor
has been determined and a notice of
intended repatriation was previously
published. The museum or Federal
agency must:
(A) Identify the most appropriate
requestor and explain how the
determination was made,
(B) No earlier than 30 days and no
later than 90 days after sending a
determination of the most appropriate
requestor, the museum or Federal
agency must send a repatriation
statement to the most appropriate
requestor under paragraph (g) of this
section.
(iii) The most appropriate requestor
cannot be determined, and the
repatriation is stayed under paragraph
(i) of this section. The museum or
Federal agency must explain why the
most appropriate requestor could not be
determined.
(i) Stay of repatriation. Repatriation
under paragraph (g) of this section is
stayed if:
(1) A court of competent jurisdiction
has enjoined the repatriation. When
there is a final resolution of the legal
case or controversy in favor of a
requestor, the museum or Federal
agency must:
(i) No later than 10 days after a
resolution, send a written statement of
the resolution to each requestor and the
Manager, National NAGPRA Program,
(ii) No earlier than 30 days and no
later than 90 days after sending the
written statement, the museum or
Federal agency must send a repatriation
statement to the requestor under
paragraph (g) of this section, unless a
court of competent jurisdiction directs
otherwise.
(2) The museum or Federal agency
has received competing requests for
repatriation and, after complying with
paragraph (h) of this section, cannot
determine the most appropriate
requestor. When a most appropriate
requestor is determined by an agreement
between the parties, binding arbitration,
or means of resolution other than
through a court of competent
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jurisdiction, the museum or Federal
agency must:
(i) No later than 10 days after a
resolution, send a written determination
to each requestor and the Manager,
National NAGPRA Program,
(ii) No earlier than 30 days and no
later than 90 days after sending the
determination, the museum or Federal
agency must send a repatriation
statement to the requestor under
paragraph (g) of this section.
(3) Before the publication of a notice
of intended repatriation under
paragraph (f) of this section, the
museum or Federal agency has both
requested and received the Secretary’s
written concurrence that the
unassociated funerary object, sacred
object, or object of cultural patrimony is
indispensable for completion of a
specific scientific study, the outcome of
which would be of major benefit to the
people of the United States.
(i) To request the Secretary’s
concurrence, the museum or Federal
agency must send to the Manager,
National NAGPRA Program, a written
request of no more than 10 doublespaced pages. The written request must:
(A) Be on the letterhead of the
requesting museum or Federal agency
and be signed by an authorized
representative;
(B) Describe the specific scientific
study, the date on which the study
commenced, and how the study would
be of major benefit to the people of the
United States;
(C) Explain why retention of the
unassociated funerary object, sacred
object, or object of cultural patrimony is
indispensable for completion of the
study;
(D) Describe the steps required to
complete the study, including any
destructive analysis, and provide a
completion schedule and completion
date;
(E) Provide the position titles of the
persons responsible for each step in the
schedule; and
(F) Affirm that the study has in place
the requisite funding.
(ii) If the Secretary concurs with the
request, the Secretary will send a
written concurrence and specify the
date by which the scientific study must
be completed.
(iii) No later than 30 days after the
completion date in the Secretary’s
concurrence, the museum or Federal
agency must submit a notice of intended
repatriation in accordance with
paragraph (f) of this section.
(iv) No earlier than 30 days and no
later than 90 days after publication of
the notice of intended repatriation, the
museum or Federal agency must send a
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repatriation statement to the requestor
under paragraph (g) of this section.
TABLE 1 TO § 10.9—DEADLINES FOR COMPLETING A SUMMARY
If a museum or Federal agency . . .
. . . a summary must be submitted . . .
acquires possession or control of unassociated funerary objects, sacred objects, or objects of cultural patrimony.
locates previously lost or unknown unassociated funerary objects, sacred objects, or objects of cultural patrimony.
receives Federal funds for the first time after [DATE 30 DAYS AFTER
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL
REGISTER], and has possession or control of unassociated funerary
objects, sacred objects, or objects of cultural patrimony.
6 months after acquiring possession or control of the unassociated funerary objects, sacred objects, or objects of cultural patrimony.
6 months after locating the unassociated funerary objects, sacred objects, or objects of cultural patrimony.
3 years after receiving Federal funds for the first time after [DATE 30
DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN
THE FEDERAL REGISTER].
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§ 10.10 Repatriation of human remains and
associated funerary objects.
Each museum and Federal agency that
has possession or control of a holding or
collection that contains human remains
or associated funerary objects must
follow the steps in this section. The
purpose of this section is to provide
determinations, following consultation,
about human remains and associated
funerary objects to lineal descendants,
Indian Tribes, and Native Hawaiian
organizations to facilitate repatriation.
(a) Step 1—Compile an itemized list
of human remains and associated
funerary objects. Based on information
available, a museum or Federal agency
must compile a simple itemized list of
the human remains and associated
funerary objects in its holding or
collection. Depending on the scope of
the holding or collection, a museum or
Federal agency may organize its
inventory into sections based on
geographic area, accession or catalog
name or number, or other defining
attributes. A museum or Federal agency
must ensure the itemized list is
comprehensive and covers all holdings
or collections relevant to this section.
The itemized list must include:
(1) The number of individuals
determined in a reasonable manner
based on the information available. No
additional study or analysis is required
to determine the number of individuals.
If human remains are in a holding or
collection, the number of individuals is
at least one;
(2) The number of associated funerary
objects and types of objects (counted
separately or by lot);
(3) The county and state where the
human remains and associated funerary
objects were removed;
(4) The acquisition history
(provenance) of the human remains and
associated funerary objects;
(5) Other information relevant for
identifying a lineal descendant or an
Indian Tribe or Native Hawaiian
organization with cultural or
geographical affiliation; and
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(6) The presence of any potentially
hazardous substances used to treat any
of the human remains or associated
funerary objects, if known.
(b) Step 2—Initiate consultation.
Based on information available, a
museum or Federal agency must
identify consulting parties and make a
good-faith effort to invite the parties to
consult.
(1) Consulting parties are any lineal
descendant and any Indian Tribe or
Native Hawaiian organization with
potential affiliation.
(2) An invitation to consult must be
in writing and must include:
(i) The simple itemized list described
in paragraph (a) of this section;
(ii) The names of all identified
consulting parties; and
(iii) A proposed timeline and method
for consultation.
(3) Any consulting party, regardless of
whether the party has received an
invitation to consult, must submit a
written request to consult. A written
request to consult may be submitted at
any time before the publication of a
notice of inventory completion under
paragraph (e) of this section.
(4) When a museum or Federal agency
identifies a new consulting party under
paragraph (b)(1) of this section, the
museum or Federal agency must make
a good-faith effort to invite the party to
consult and must send an invitation to
consult under paragraph (b)(2) of this
section. An invitation to consult must
be sent to new consulting parties:
(i) No later than 10 days after
identifying a new consulting party
based on new information; or
(ii) No later than two years after the
addition of a Tribal entity to the list of
federally recognized Indian Tribes
published in the Federal Register
pursuant to the Act of November 2, 1994
(25 U.S.C. 5131).
(c) Step 3—Consult with requesting
parties. No later than 10 days after
receiving a written request to consult, a
museum or Federal agency must
respond in writing with a proposed
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timeline for consultation. Consultation
on human remains and associated
funerary objects may continue until the
museum or Federal agency sends a
repatriation statement for those human
remains and associated funerary objects
to a requestor under paragraph (h) of
this section.
(1) In the response to the requesting
party, a museum or Federal agency must
ask a requesting party for the following
information, if not already provided:
(i) Recommendations on the proposed
timeline and method for consultation;
and
(ii) The name, phone number, email
address, or mailing address for any
authorized representative, traditional
religious leaders, and known lineal
descendant who should participate in
consultation.
(2) The consultation process must
seek consensus, to the maximum extent
possible, on determining:
(i) Lineal descendants;
(ii) Indian Tribes or Native Hawaiian
organizations with cultural or
geographical affiliation;
(iii) The types of objects that might be
associated funerary objects, including
any objects that were made exclusively
for burial purposes or to contain human
remains; and
(iv) The appropriate treatment, care,
and handling of human remains and
associated funerary objects.
(3) The museum or Federal agency
must prepare a record of consultation
that includes the effort made to seek
consensus. If recommendations by
requesting parties are not possible, the
record of consultation must describe
efforts to identify a mutually agreeable
alternative. For any determination
considered during the consultation
process, the museum or Federal agency
must record the concurrence,
disagreement, or nonresponse of the
requesting parties.
(4) At any time before the museum or
Federal agency sends a repatriation
statement for human remains and
associated funerary objects to a
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requestor under paragraph (h) of this
section, a museum or Federal agency
may receive a request from a consulting
party for access to records, catalogues,
relevant studies, or other pertinent data
related to those human remains and
associated funerary objects. A museum
or Federal agency must provide access
to the additional information in a
reasonable manner and for the limited
purpose of determining affiliation and
acquisition history of the human
remains and associated funerary objects.
(d) Step 4—Complete an inventory of
human remains and associated funerary
objects. Based on information available
and the results of consultation, a
museum or Federal agency must submit
to all consulting parties and the
Manager, National NAGPRA Program,
an inventory of all human remains and
associated funerary objects in its
holding or collection.
(1) An inventory must include:
(i) The names of all consulting parties
and an abstract of the results of
consultation;
(ii) The information from the simple
itemized list compiled under paragraph
(a) of this section;
(iii) For each entry in the itemized
list, a determination of one or more of
the following:
(A) There is a known lineal
descendant,
(B) There is a connection between the
human remains and associated funerary
objects and an Indian Tribe or Native
Hawaiian organization through cultural
affiliation,
(C) There is a connection between the
human remains and associated funerary
objects and an Indian Tribe or Native
Hawaiian organization through
geographical affiliation, or
(D) There is no connection between
the human remains and associated
funerary objects and any Indian Tribe or
Native Hawaiian organization; and
(iv) An abstract of the information
supporting that determination
including:
(A) The lineal descendant or the
Indian Tribe or Native Hawaiian
organization with cultural or
geographical affiliation, or
(B) An explanation why no Indian
Tribes or Native Hawaiian organizations
with cultural or geographical affiliation
could be reasonably identified.
(2) After [DATE 30 DAYS AFTER
DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER], a museum or Federal
agency must submit an inventory to all
consulting parties and the Manager,
National NAGPRA Program, by the
deadline in Table 1 of this section.
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(3) Prior to [DATE 30 DAYS AFTER
DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER], a museum or Federal
agency must have submitted an
inventory to all consulting parties and
the Manager, National NAGPRA
Program:
(i) By November 16, 1995, for human
remains or associated funerary objects
subject to the Act;
(ii) By April 20, 2009, for human
remains or associated funerary objects
acquired or located after November 16,
1995;
(iii) By April 20, 2012, for human
remains or associated funerary objects
in the possession or control of a
museum that received Federal funds for
the first time after November 16, 1995;
(iv) Within two years of acquiring or
locating the human remains or
associated funerary objects after April
20, 2009; or
(v) Within five years of receiving
Federal funds for the first time after
April 20, 2012.
(4) No later than [DATE 760 DAYS
AFTER DATE OF PUBLICATION OF
THE FINAL RULE IN THE FEDERAL
REGISTER], for any human remains or
associated funerary objects listed in an
inventory but not published in a notice
of inventory completion prior to [DATE
30 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], a
museum or Federal agency must:
(i) Initiate consultation as described
under paragraph (b) of this section;
(ii) Consult with requesting parties as
described under paragraph (c) of this
section;
(iii) Update its inventory to include
the requirements described under
paragraph (d)(1) of this section and
ensure the inventory is comprehensive
and covers all holdings or collections
relevant to this section; and
(iv) Submit an updated inventory to
all consulting parties and the Manager,
National NAGPRA Program.
(5) Any museum may request an
extension to complete or update its
inventory if it has made a good faith
effort but will be unable to do so by the
appropriate deadline. A request for an
extension must be submitted to the
Manager, National NAGPRA Program,
before the appropriate deadline. The
Manager, National NAGPRA Program
will publish in the Federal Register a
list of all museums who request an
extension and the Secretary’s
determination on the request. A request
for an extension must include:
(i) Information showing the initiation
of consultation and any requests to
consult;
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(ii) The names of all consulting
parties and an abstract of the results of
consultation;
(iii) The estimated number of the
human remains and associated funerary
objects in the holding or collection; and
(iv) A written plan for completing or
updating the inventory, which includes,
at minimum:
(A) The specific steps required to
complete or update the inventory;
(B) A schedule for completing each
step and estimated inventory
completion or update date;
(C) Position titles of the persons
responsible for each step in the
schedule; and
(D) A proposal to obtain any requisite
funding needed to complete or update
the inventory.
(6) After [DATE 30 DAYS AFTER
DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL
REGISTER], when a holding or
collection previously included in an
inventory is transferred to a museum or
Federal Agency, subject to the
limitations in 18 U.S.C. 1170 (a), the
museum or Federal agency acquiring
possession or control of the holding or
collection may rely on the previously
completed or updated inventory. The
museum or Federal agency must submit
the previously completed or updated
inventory to the Manager, National
NAGPRA Program no later than 30 days
after acquiring the holding or collection
and must initiate consultation under
paragraph (b) of this section. The
museum or Federal agency must submit
an inventory to all consulting parties
and the Manager, National NAGPRA
Program, no later than the deadline in
Table 1 of this section.
(e) Step 5—Submit a notice of
inventory completion. No later than six
months after completing or updating an
inventory under paragraph (d) of this
section, a museum or Federal agency
must submit a notice of inventory
completion for human remains and
associated funerary objects with a
known lineal descendant or a
connection to an Indian Tribe or Native
Hawaiian organization with cultural or
geographical affiliation. The museum or
Federal agency may include in a single
notice all human remains and
associated funerary objects having the
same lineal descendant or the same
Indian Tribes or Native Hawaiian
organizations with cultural or
geographical affiliation.
(1) The notice of inventory
completion must be sent to the:
(i) Lineal descendants and Indian
Tribes or Native Hawaiian organizations
identified in the inventory, and
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(ii) Manager, National NAGPRA
Program, for publication in the Federal
Register.
(2) A notice of inventory completion
must conform to the mandatory format
of the Federal Register and include:
(i) The number of individuals
determined in a reasonable manner
based on the information available. No
additional study or analysis is required
to determine the number of individuals.
If human remains are in a holding or
collection, the number of individuals is
at least one.
(ii) The number of associated funerary
objects and types of objects (counted
separately or by lot);
(iii) The county and state where the
human remains and associated funerary
objects were removed;
(iv) The acquisition history
(provenance) of the human remains and
associated funerary objects, including
the circumstances surrounding their
acquisition;
(v) The lineal descendant or an Indian
Tribe or Native Hawaiian organization
with cultural or geographical affiliation
and a brief abstract of the information
used to make that identification;
(vi) When cultural affiliation has been
determined, a statement whether
cultural affiliation was clearly identified
or was based on the totality of the
circumstances surrounding acquisition
history of the human remains and
associated funerary objects;
(vii) Information about the presence of
any potentially hazardous substances
used to treat the human remains or
associated funerary objects, if known;
(viii) The name, phone number, email
address, and mailing address for the
authorized representative of the
museum or Federal agency who is
responsible for receiving requests for
repatriation; and
(ix) The date (to be calculated by the
Federal Register 30 days from the date
of publication) after which the museum
or Federal agency may send a
repatriation statement to a requestor.
(3) No later than 15 days after
receiving a notice of inventory
completion, the Manager, National
NAGPRA Program, will:
(i) Approve for publication in the
Federal Register a notice of inventory
completion that conforms to the
requirements under paragraph (e)(2) of
this section; or
(ii) Return to the museum or Federal
agency any submission that does not
meet the requirements under paragraph
(e)(2) of this section.
(4) If the number of individuals or the
number of associated funerary objects
stated in a published notice of inventory
completion changes before the museum
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or Federal agency sends a repatriation
statement under paragraph (h) of this
section, the museum or Federal agency
must submit a correction notice to the
Manager, National NAGPRA Program. A
museum or Federal agency is not
required to publish a correction notice
if there are additional pieces belonging
to human remains or associated
funerary objects previously identified in
a notice and repatriation is to the same
requestor. No later than 10 days after
determining the new number of
individuals or associated funerary
objects, the museum or Federal agency
must submit a correction notice
containing, as applicable:
(i) The corrected number of
individuals;
(ii) The corrected number of
associated funerary objects and types of
objects,
(iii) The name, phone number, email
address, and mailing address for the
authorized representative of the
museum or Federal agency who is
responsible for receiving requests for
repatriation, and
(iv) The date (to be calculated by the
Federal Register 30 days from the date
of publication) after which the museum
or Federal agency may send a
repatriation statement to the requestor.
(f) Step 6—Receive and consider a
request for repatriation. After
publication of a notice of inventory
completion in the Federal Register, any
lineal descendant, Indian Tribe, or
Native Hawaiian organization may
submit to the museum or Federal agency
a written request for repatriation of
human remains and associated funerary
objects.
(1) A request for repatriation of
human remains and associated funerary
objects must be received by the museum
or Federal agency before the museum or
Federal agency sends a repatriation
statement for those human remains and
associated funerary objects under
paragraph (h) of this section. Any
request for repatriation received by the
museum or Federal agency no later than
30 days after publication of a notice
must be considered. A request for
repatriation received by the museum or
Federal agency before the publication of
the notice of inventory completion is
dated the same date the notice was
published.
(2) Requests from two or more lineal
descendants, Indian Tribes, or Native
Hawaiian organizations who agree to
joint repatriation of the human remains
and associated funerary objects are
considered a single request and not
competing requests.
(3) A request for repatriation must
satisfy one of the following criteria:
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(i) The request is from a lineal
descendant, Indian Tribe, or Native
Hawaiian organization identified in the
notice of inventory completion, or
(ii) The request is not from a lineal
descendant, Indian Tribe, or Native
Hawaiian organization identified in the
notice of inventory completion, and
shows, by a preponderance of the
evidence, that the requestor is a lineal
descendant or an Indian Tribe or Native
Hawaiian organization with cultural or
geographical affiliation.
(g) Step 7—Respond to a request for
repatriation. No earlier than 30 days
after publication of a notice of inventory
completion but no later than 30 days
after receiving a request for repatriation,
a museum or Federal agency must send
a written response to the requestor with
a copy to any other party identified in
the notice of inventory completion.
Using all information available,
including relevant records, catalogs,
existing studies, and the results of
consultation, a museum or Federal
agency must determine if the request
satisfies the criteria under paragraph (f)
of this section.
(1) In the written response, the
museum or Federal agency must state
one of the following:
(i) The request meets the criteria
under paragraph (f) of this section. The
museum or Federal agency will send a
repatriation statement to the requestor
under paragraph (h) of this section,
unless the museum or Federal agency
receives additional, competing requests
for repatriation.
(ii) The request does not meet the
criteria under paragraph (f) of this
section. The museum or Federal agency
must provide a detailed explanation
why the request does not meet the
criteria, and an opportunity for the
requestor to provide additional
information to meet the criteria.
(iii) The museum or Federal agency
has received competing requests for
repatriation that meet the criteria and
must determine the most appropriate
requestor using the procedures and
timelines under paragraph (i) of this
section.
(2) At any time before sending a
repatriation statement for human
remains and associated funerary objects
under paragraph (h) of this section, the
museum or Federal agency may receive
additional, competing requests for
repatriation of those human remains
and associated funerary objects that
meet the criteria under paragraph (f) of
this section. The museum or Federal
agency must determine the most
appropriate requestor the procedures
and timelines under paragraph (i) of this
section.
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(h) Step 8—Repatriation of the human
remains and associated funerary
objects. No later than 90 days after
responding to a request for repatriation
that meets the criteria, a museum or
Federal agency must send a written
repatriation statement to the requestor
and a copy to the Manager, National
NAGPRA Program. The repatriation
statement must acknowledge and
recognize the requestor has control or
ownership of the requested human
remains and associated funerary objects.
In the case of joint requests for
repatriation, the repatriation statement
must be sent to and must identify all
requestors.
(1) Before sending the repatriation
statement, the museum or Federal
agency must consult with the requestor
on the care, custody, and physical
transfer of the human remains and
associated funerary objects.
(2) After sending the repatriation
statement, the museum or Federal
agency must:
(i) Document any physical transfer of
the human remains and associated
funerary objects by recording the
contents, recipient, and method of
delivery, and
(ii) Protect sensitive information, as
identified by the requestor, from
disclosure to the general public to the
extent consistent with applicable law.
(3) After the repatriation statement is
sent, nothing in the Act or this part
limits the authority of the museum or
Federal agency to enter into any
agreement with the requestor
concerning the care or custody of the
human remains and associated funerary
objects.
(i) Evaluating competing requests for
repatriation. At any time before sending
a repatriation statement for human
remains and associated funerary objects
under paragraph (h) of this section, a
museum or Federal agency may receive
additional, competing requests for
repatriation of those human remains
and associated funerary objects that
meets the criteria under paragraph (f) of
this section. The museum or Federal
agency must determine the most
appropriate requestor using this
paragraph.
(1) In the following priority order, the
most appropriate requestor is:
(i) The known lineal descendant, if
any; or
(ii) The Indian Tribe or Native
Hawaiian organization with the closest
affiliation according to the priority order
at § 10.3(d).
(2) No later than 10 days after
receiving a competing request, a
museum or Federal agency must send a
written letter to each requestor
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identifying all requestors and the date
each request for repatriation was
received.
(3) No later than 120 days after
informing the requestors of competing
requests, a museum or Federal agency
must send a written determination to
each requestor and the Manager,
National NAGPRA Program. The
determination must be one of the
following:
(i) The most appropriate requestor has
been determined. The museum or
Federal agency must:
(A) Identify the most appropriate
requestor and explain how the
determination was made,
(B) No earlier than 30 days and no
later than 90 days after sending a
determination of the most appropriate
requestor, the museum or Federal
agency must send a repatriation
statement to the most appropriate
requestor under paragraph (h) of this
section.
(ii) The most appropriate requestor
cannot be determined, and the
repatriation is stayed under paragraph
(j) of this section. The museum or
Federal agency must explain why the
most appropriate requestor could not be
determined.
(j) Stay of repatriation. Repatriation
under paragraph (h) of this section is
stayed if:
(1) A court of competent jurisdiction
has enjoined the repatriation. When
there is a final resolution of the legal
case or controversy in favor of a
requestor, the museum or Federal
agency must:
(i) No later than 10 days after a
resolution, send a written statement of
the resolution to each requestor and the
Manager, National NAGPRA Program,
(ii) No earlier than 30 days and no
later than 90 days after sending the
written statement, the museum or
Federal agency must send a repatriation
statement to the requestor under
paragraph (h) of this section, unless a
court of competent jurisdiction directs
otherwise.
(2) The museum or Federal agency
has received competing requests for
repatriation and, after complying with
paragraph (i) of this section, cannot
determine the most appropriate
requestor. When a most appropriate
requestor is determined by an agreement
between the parties, binding arbitration,
or means of resolution other than
through a court of competent
jurisdiction, the museum or Federal
agency must:
(i) No later than 10 days after a
resolution, send a written determination
to each requestor and the Manager,
National NAGPRA Program,
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(ii) No earlier than 30 days and no
later than 90 days after sending the
determination, the museum or Federal
agency must send a repatriation
statement to the requestor under
paragraph (h) of this section.
(3) Before the publication of a notice
of inventory completion under
paragraph (e) of this section, the
museum or Federal agency has both
requested and received the Secretary’s
written concurrence that the human
remains and associated funerary objects
are indispensable for completion of a
specific scientific study, the outcome of
which would be of major benefit to the
people of the United States.
(i) To request the Secretary’s
concurrence, the museum or Federal
agency must send to the Manager,
National NAGPRA Program, a written
request of no more than 10 doublespaced pages. The written request must:
(A) Be on the letterhead of the
requesting museum or Federal agency
and be signed by an authorized
representative;
(B) Describe the specific scientific
study, the date on which the study
commenced, and how the study would
be of major benefit to the people of the
United States;
(C) Explain why retention of the
human remains and associated funerary
objects is indispensable for completion
of the study;
(D) Describe the steps required to
complete the study, including any
destructive analysis, and provide a
completion schedule and completion
date;
(E) Provide the position titles of the
persons responsible for each step in the
schedule; and
(F) Affirm that the study has in place
the requisite funding.
(ii) If the Secretary concurs with the
request, the Secretary will send a
written concurrence and specify the
date by which the scientific study must
be completed.
(iii) No later than 30 days after the
completion date in the Secretary’s
concurrence, the museum or Federal
agency must submit a notice of intended
repatriation in accordance with
paragraph (e) of this section.
(iv) No earlier than 30 days after
publication of the notice of inventory
completion and no later than 90 days
after responding to a request for
repatriation, the museum or Federal
agency must send a repatriation
statement to the requestor under
paragraph (h) of this section.
(k) Transfer or reinter human remains
and associated funerary objects. For
human remains and associated funerary
objects with no connection to an Indian
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Tribe or Native Hawaiian organization
determined in the inventory, a museum
or Federal agency, at its discretion, may
agree to transfer or decide to reinter the
human remains and associated funerary
objects. The museum or Federal agency
must ensure it has initiated consultation
under paragraph (b) of this section, if
any.
(1) Step 1—Agree to transfer or decide
to reinter. Subject to the requirements in
paragraph (k)(2) of this section, a
museum or Federal agency may:
(i) Agree in writing to transfer the
human remains and associated funerary
objects to a requestor that agrees to treat
the human remains and associated
funerary objects according to the
requestor’s laws and customs. Human
remains and associated funerary objects
must be requested in writing and may
only be requested by:
(A) An Indian Tribe or Native
Hawaiian organization, or
(B) An Indian group that is not
federally recognized but has a
relationship to the human remains and
associated funerary objects.
(ii) Decide in writing to reinter the
human remains and associated funerary
objects according to applicable laws and
policies.
(2) Step 2—Submit a notice of
proposed transfer or reinterment. No
later than 30 days after agreeing to
transfer or deciding to reinter the
human remains and associated funerary
objects, the museum or Federal agency
must submit a notice of proposed
transfer or reinterment to the Manager,
National NAGPRA Program, for
publication in the Federal Register.
(i) A notice of proposed transfer or
reinterment must conform to the
mandatory format of the Federal
Register and include:
(A) The number of individuals
determined in a reasonable manner
based on the information available. No
additional study or analysis is required
to determine the number of individuals.
If human remains are in a holding or
collection, the number of individuals is
at least one.;
(B) The number of associated funerary
objects and type of objects (counted
separately or by lot);
(C) The county and state where the
human remains and associated funerary
objects were removed, if known;
(D) The acquisition history
(provenance) of the human remains and
associated funerary objects, including
the circumstances surround their
acquisition;
(E) The names of all consulting parties
and an abstract of the results of
consultation;
(F) A brief abstract of the information
that explains why no Indian Tribes or
Native Hawaiian organizations with
cultural or geographical affiliation could
be reasonably identified;
(G) Information about the presence of
any potentially hazardous substances
used to treat the human remains and
associated funerary objects, if known;
(H) The Indian Tribe, Native
Hawaiian organization, or Indian group
requesting the human remains and
associated funerary objects or a
statement that the museum or Federal
agency will reinter the human remains
and associated funerary objects;
(I) The name, phone number, email
address, and mailing address for the
authorized representative of the
museum or Federal agency who is
responsible for receiving requests for
repatriation; and
(J) The date (to be calculated by the
Federal Register 30 days from the date
of publication) after which the museum
or Federal agency may proceed with the
transfer or reinterment of the human
remains and associated funerary objects.
(ii) No later than 15 days after
receiving a notice of proposed transfer
or reinterment, the Manager, National
NAGPRA Program, will:
(A) Approve for publication in the
Federal Register a notice of proposed
transfer or reinterment that conforms to
the requirements under paragraph
(k)(2)(i) of this section; or
(B) Return to the museum or Federal
agency any submission that does not
meet the requirements under paragraph
(k)(2)(i) of this section.
(iii) After publication of a notice, if
the museum or Federal agency receives
a request for repatriation of the human
remains and associated funerary objects
before transfer or reinterment, the
museum or Federal agency must
evaluate whether the request meets the
criteria under paragraph (f) of this
section.
(A) If the request for repatriation
meets the criteria under paragraph (f) of
this section, the museum or Federal
agency must respond in writing under
paragraph (g) of this section and
proceed with repatriation under
paragraph (h) of this section.
(B) If the request does not meet the
criteria under paragraph (f) of this
section, the museum or Federal agency
must respond in writing under
paragraph (g) of this section and
proceed with transfer or reinterment
under paragraph (k)(3) of this section.
(3) Step 3—Transfer or reinter the
human remains and associated funerary
objects. No earlier than 30 days and no
later than 90 days after publication of a
notice of proposed transfer or
reinterment, the museum or Federal
agency must transfer or reinter the
human remains and associated funerary
objects. After transferring or reinterring,
the museum or Federal agency must:
(i) Document the transfer of the
human remains and associated funerary
objects by recording the contents,
recipient, and method of delivery,
(ii) Document the reinterment by
recording the contents of the
reinterment,
(iii) Protect sensitive information from
disclosure to the general public to the
extent consistent with applicable law.
(4) After transfer or reinterment
occurs, nothing in the Act or this part
limits the authority of the museum or
Federal agency to enter into any
agreement with the requestor
concerning the care or custody of the
human remains and associated funerary
objects.
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TABLE 1 TO § 10.10—DEADLINES FOR COMPLETING AN INVENTORY
If a museum or Federal agency . . .
an inventory must be submitted . . .
acquires possession or control of human remains or associated funerary objects.
locates previously lost or unknown human remains or associated funerary objects.
receives Federal funds for the first time after [DATE 30 DAYS AFTER
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL
REGISTER], and has possession or control of human remains or associated funerary objects.
2 years after acquiring possession or control of human remains or associated funerary objects.
2 years after locating the human remains or associated funerary objects.
5 years after receiving Federal funds for the first time after [DATE 30
DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN
THE FEDERAL REGISTER].
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§ 10.11
Civil penalties.
Any museum that fails to comply
with the requirements of the Act or this
subpart may be assessed a civil penalty
by the Secretary. This section does not
apply to Federal agencies, but a Federal
agency’s failure to comply with the
requirements of the Act or this part may
be subject to other remedies under
Federal law. Each instance of failure to
comply will constitute a separate
violation. The Secretary must serve the
museum with a written notice of failure
to comply under paragraph (d) of this
section or a notice of assessment under
paragraph (g) of this section by personal
delivery with proof of delivery date,
certified mail with return receipt, or
private delivery service with proof of
delivery date.
(a) File an allegation. Any person may
file an allegation of failure to comply by
sending a written allegation to the
Manager, National NAGPRA Program.
Each allegation:
(1) Must include the full name,
mailing address, telephone number, and
(if available) email address of the person
alleging the failure to comply;
(2) Must identify the specific
provision or provisions of the Act or
this subpart that the museum is alleged
to have violated;
(3) Must enumerate the separate
violations alleged, including facts to
support the number of separate
violations. The number of separate
violations is determined by establishing
relevant factors such as:
(i) The number of lineal descendants,
Indian Tribes, or Native Hawaiian
organizations named in the allegation
and determined to be aggrieved by the
failure to comply; or
(ii) The number of individuals or the
number of funerary objects, sacred
objects, or objects of cultural patrimony
involved in the failure to comply;
(4) Should include information
showing that the museum has
possession or control of the Native
American cultural items involved in the
alleged failure to comply; and
(5) Should include information
showing that the museum receives
Federal funds.
(b) Respond to an allegation. Within
90 days of receiving an allegation, the
Secretary must review the allegation
and determine if the allegation meets
the requirements of paragraph (a) of this
section. After review, the Secretary may
investigate the facts in an allegation to
ensure all relevant information is
available.
(1) The Secretary may request any
additional relevant information from the
person making the allegation, the
museum, or other parties. The Secretary
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may conduct any investigation that is
necessary to determine whether an
alleged failure to comply is
substantiated. The Secretary may also
investigate appropriate factors for
justifying an increase or reduction to
any penalty amount that may be
calculated.
(2) The Secretary, after reviewing all
relevant information, must determine
one of the following for each alleged
failure to comply:
(i) The alleged failure to comply is
substantiated, the number of separate
violations is identified, and a civil
penalty is an appropriate remedy. The
Secretary will calculate the proposed
penalty amount under paragraph (c) of
this section and notify the museum
under paragraph (d) of this section;
(ii) The alleged failure to comply is
substantiated, the number of separate
violations is identified, but a civil
penalty is not an appropriate remedy.
The Secretary will notify the museum
under paragraph (d) of this section; or
(iii) The alleged failure to comply is
unsubstantiated. The Secretary will
send a written determination to the
person making the allegation and to the
museum.
(c) Calculate the penalty amount. If
the Secretary determines under
paragraph (b)(2)(i) of this section that a
civil penalty is an appropriate remedy
for a substantiated failure to comply, the
Secretary will calculate the amount of
the penalty in accordance with this
paragraph. The penalty for each separate
violation will be calculated as follows:
(1) The base penalty amount is
$7,475, subject to annual adjustments
based on inflation under the Federal
Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (Pub. L. 114–
74).
(2) The base penalty amount may be
increased after considering:
(i) The ceremonial or cultural value of
the human remains or cultural items
involved, as identified by any aggrieved
lineal descendant, Indian Tribe, or
Native Hawaiian organization;
(ii) The archaeological, historical, or
commercial value of the human remains
or cultural items involved;
(iii) The economic and non-economic
damages suffered by any aggrieved
lineal descendant, Indian Tribe, or
Native Hawaiian organization, including
expenditures by the aggrieved party to
compel the museum to comply with the
Act or this subpart;
(iv) The number of prior violations by
the museum that have occurred; or
(v) Any other appropriate factor
justifying an increase.
(3) The base penalty amount may be
reduced if:
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(i) The museum comes into
compliance;
(ii) The museum agrees to mitigate the
violation in the form of an actual or an
in-kind payment to an aggrieved lineal
descendant, Indian Tribe, or Native
Hawaiian organization;
(iii) The penalty constitutes excessive
punishment under the circumstances;
(iv) The museum is unable to pay the
full penalty and the museum has not
previously been found to have failed to
comply with the Act or this subpart.
The museum has the burden of proving
it is unable to pay by providing
verifiable, complete, and accurate
financial information to the Secretary.
The Secretary may request that the
museum provide such financial
information that is adequate and
relevant to evaluate the museum’s
financial condition, including the value
of the museum’s cash and liquid assets;
ability to borrow; net worth; liabilities;
income tax returns; past, present, and
future income; prior and anticipated
profits; expected cash flow; and the
museum’s ability to pay in installments
over time. If the museum does not
submit the requested financial
information, the museum will be
presumed to have the ability to pay the
civil penalty; or
(v) Any other appropriate factor
justifies a reduction.
(d) Notify a museum of a failure to
comply. If the Secretary determines
under paragraph (b)(2)(i) or (b)(2)(ii) of
this section that an alleged failure to
comply is substantiated, the Secretary
must serve the museum with a written
notice of failure to comply and send a
copy of the notice to each person
alleging the failure to comply and any
lineal descendant, Indian Tribe, or
Native Hawaiian organization named in
the notice of failure to comply. The
notice of failure to comply must:
(1) Provide a concise statement of the
facts believed to show a failure to
comply;
(2) Specifically reference the
provisions of the Act and this subpart
with which the museum has failed to
comply;
(3) Include the proposed penalty
amount calculated under paragraph (c)
of this section;
(4) Include, where appropriate, any
initial proposal to reduce or increase the
penalty amount or an explanation for
why the Secretary has determined that
a penalty is not an appropriate remedy;
(5) Identify the options for responding
to the notice of failure to comply under
paragraph (e) of this section; and
(6) Inform the museum that the
Secretary may assess a daily penalty
amount under paragraph (m)(1) of this
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section if the failure to comply
continues after the date the final
administrative decision of the Secretary
takes effect.
(e) Respond to a notice of failure to
comply. Within 45 days of receiving a
notice of failure to comply, a museum
may take no action and await service of
a notice of assessment under paragraph
(g) of this section, or a museum may file
a written response to the notice of
failure to comply. A response which is
not timely filed will not be considered.
Any written response must be signed by
an authorized representative of the
museum and must be sent to the
Secretary. In the written response, a
museum may:
(1) Seek an informal discussion of the
failure to comply;
(2) Request either or both of the
following forms of relief, with a full
explanation of the legal or factual basis
for the requested relief:
(i) That the Secretary reconsider the
determination of a failure to comply, or
(ii) That the Secretary reduce the
proposed penalty amount; or
(3) Accept the determination of a
failure to comply and agree in writing
that the museum will do the following,
which will constitute an agreement
between the Secretary and the museum:
(i) Pay the proposed penalty amount,
if any,
(ii) Complete the mitigation required
to reduce the penalty, if offered in the
notice, and
(iii) Waive any right to receive notice
of assessment under paragraph (g) of
this section and to request a hearing
under paragraph (i) of this section.
(f) Assess the civil penalty. After
serving a notice of failure to comply, the
Secretary may assess a civil penalty and
must consider all available, relevant
information related to the failure to
comply, including information timely
provided by the museum during any
informal discussion or request for relief,
furnished by another party, or produced
upon the Secretary’s request.
(1) The assessment of a civil penalty
is made after the latter of:
(i) The 45-day period for a response
has expired and the museum has taken
no action;
(ii) Conclusion of informal discussion,
if any;
(iii) Review and consideration of a
petition for relief, if any; or
(iv) Failure to meet the terms of an
agreement established under paragraph
(e)(3) of this section.
(2) If a petition for relief or informal
discussion warrants a conclusion that
no failure to comply has occurred, the
Secretary must send written notification
to the museum revoking the notice of
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failure to comply. No penalty is
assessed.
(g) Notify the museum of an
assessment. If the Secretary determines
to assess a civil penalty, the Secretary
will serve the museum with a notice of
assessment. Unless the museum seeks
further administrative remedies under
this section, the notice of assessment is
the final administrative decision of the
Secretary. The notice of assessment
must:
(1) Specifically reference the
provisions of the Act or this subpart
with which the museum has not
complied;
(2) Include the final amount of any
penalty calculated under paragraph (c)
of this section and the basis for
determining the penalty amount;
(3) Include, where appropriate, any
increase or reduction to the penalty
amount or an explanation for why the
Secretary has determined that a penalty
is not an appropriate remedy;
(4) Include the daily penalty amount
that the Secretary may assess under
paragraph (m)(1) of this section if the
failure to comply continues after the
date the final administrative decision of
the Secretary takes effect. The daily
penalty amount for each continuing
violation shall not exceed $1,496 per
day, subject to annual adjustments
based on inflation under the Federal
Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (Pub. L. 114–
74);
(5) Identify the options for responding
to the notice of assessment under
paragraph (h) of this section; and
(6) Notify the museum that it has the
right to seek judicial review of the final
administrative decision of the Secretary
only if it has exhausted all
administrative remedies under this
section, as set forth in paragraph (l) of
this section.
(h) Respond to an assessment. Within
45 days of receiving a notice of
assessment, a museum must do one of
the following:
(1) Accept the assessment and pay the
penalty amount by means of a certified
check made payable to the U.S.
Treasurer, Washington, DC, sent to the
Secretary. By paying the penalty
amount, the museum waives the right to
request a hearing under paragraph (i) of
this section.
(2) File a written request for a hearing
under paragraph (i) of this section to
contest the failure to comply, the
penalty assessment, or both. If the
museum does not file a written request
for a hearing within 45 days, the
museum waives the right to request a
hearing under paragraph (i) of this
section.
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(i) Request a hearing. The museum
may file a written request for a hearing
with the Departmental Cases Hearings
Division (DCHD), Office of Hearings and
Appeals (OHA), U.S. Department of the
Interior, at the mailing address specified
in the notice of assessment, or by
electronic means in accordance with an
OHA Standing Order which is available
on OHA’s website at the web address
specified in the notice of assessment. A
copy of the request must be served on
the Solicitor of the Department of the
Interior at the address specified in the
notice of assessment. The request for
hearing and any document filed
thereafter with the DCHD under
paragraphs (i) or (j) of this section are
subject to the rules that govern the
method and effective date of filing
under 43 CFR 4.22 and 4.422(a). The
request for a hearing must:
(1) Include a copy of the notice of
failure to comply and the notice of
assessment;
(2) State the relief sought by the
museum; and
(3) Include the basis for challenging
the facts used to determine the failure
to comply or the penalty assessment.
(j) Hearings. Upon receiving a request
for a hearing, DCHD will assign an
administrative law judge to the case and
promptly give notice of the assignment
to the parties. Thereafter, each filing
must be addressed to the administrative
law judge and a copy served on each
opposing party or its counsel.
(1) To the extent they are not
inconsistent with this section, the
general rules in 43 CFR part 4, subparts
A and B apply to the hearing process.
(2) Subject to the provisions of 43 CFR
1.3, a museum may appear by
authorized representative or by counsel
and may participate fully in the
proceedings. If the museum does not
appear and the administrative law judge
determines that this absence is without
good cause, the administrative law
judge may, at his or her discretion,
determine that the museum has waived
the right to a hearing and consents to
the making of a decision on the record.
(3) The Department of the Interior
counsel, designated by the Solicitor of
the Department of the Interior,
represents the Secretary in the
proceedings. Within 20 days of receipt
of its copy of the written request for
hearing, Departmental counsel must file
with the DCHD an entry of appearance
on behalf of the Secretary and the
following:
(i) Any written communications
between the Secretary and the museum
during any informal discussions under
paragraph (e)(1) of this section;
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(ii) Any petition for relief submitted
under paragraph (e)(2); and
(iii) Any other information considered
by the Secretary in reaching the
decision being challenged. Thereafter,
the museum must serve each document
filed with the administrative law judge
on Departmental counsel.
(4) In a hearing on the penalty
assessment, the amount of the penalty
assessment must be determined in
accordance with paragraph (c)(2) of this
section and will not be limited to the
amount originally assessed or by any
previous reduction, increase, or offer of
mitigation.
(5) The administrative law judge has
all powers necessary to conduct a fair,
orderly, expeditious, and impartial
hearing process, and to render a
decision under 5 U.S.C. 554–557.
(6) The administrative law judge will
render a written decision based upon
the hearing record. The decision must
set forth the findings of fact and
conclusions of law, and the reasons and
basis for them.
(7) The administrative law judge’s
decision takes effect as the final
administrative decision of the Secretary
31 days from the date of the decision
unless the museum files a notice of
appeal as described in paragraph (k) of
this section.
(k) Appealing the administrative law
judge’s decision. Any party who is
adversely affected by the decision of the
administrative law judge may appeal the
decision by filing a written notice of
appeal within 30 days of the date of the
decision. The notice of appeal must be
filed with the Interior Board of Indian
Appeals (IBIA), Office of Hearings and
Appeals, U.S. Department of the
Interior, at the mailing address specified
in the administrative law judge’s
decision, or by electronic means in
accordance with an OHA Standing
Order which is available on OHA’s
website at the web address specified in
the administrative law judge’s decision.
The notice of appeal must be
accompanied by proof of service on the
administrative law judge and the
opposing party. The notice of appeal
and any document filed thereafter with
the IBIA is subject to the rules that
govern the method and effective date of
filing in 43 CFR 4.310.
(1) To the extent they are not
inconsistent with this section, the
provisions of 43 CFR part 4, subpart D,
apply to the appeal process. The appeal
board’s decision must be in writing and
takes effect as the final penalty
assessment and the final administrative
decision of the Secretary on the date
that the appeal board’s decision is
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rendered, unless otherwise specified in
the appeal board’s decision.
(2) OHA decisions in proceedings
instituted under this section are posted
on OHA’s website.
(l) Exhaustion of administrative
remedies. A museum has the right to
seek judicial review, under 5 U.S.C. 704,
of the final administrative decision of
the Secretary only if it has exhausted all
administrative remedies under this
section. No decision, which at the time
of its rendition is subject to appeal
under this section, shall be considered
final so as to constitute agency action
subject to judicial review. The decision
being appealed shall not be effective
during the pendency of the appeal.
(m) Failure to pay penalty or
continuing failure to comply. (1) If the
failure to comply continues after the
date the final administrative decision of
the Secretary takes effect, as described
in paragraphs (g), (j)(6), or (k)(1) of this
section, or after a date identified in an
agreement under paragraph (e)(3) of this
section, the Secretary may assess an
additional daily penalty amount for
each continuing violation not to exceed
$1,496 per day, subject to annual
adjustments based on inflation under
the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (Pub. L. 114–74). In determining
the daily penalty amount, the Secretary
will consider the factors in paragraph
(c)(2) of this section. This penalty will
start to accrue on the day after the
effective date of the final administrative
decision of the Secretary or on the date
identified in an agreement under
paragraph (e)(3) of this section.
(2) If the museum fails to pay the
penalty, the Attorney General of the
United States may institute a civil
action to collect the penalty in an
appropriate U.S. District Court. In such
action, the validity and amount of the
penalty are not subject to review by the
court.
(n) Additional remedies. The
assessment of a penalty under this
section is not deemed a waiver by the
Department of the Interior of the right to
pursue other available legal or
administrative remedies.
Subpart D—REVIEW COMMITTEE
§ 10.12
Review Committee.
The Review Committee advises the
Secretary and Congress on matters
relating to sections 5, 6, and 7 of the Act
and other matters as specified in section
8 of the Act. The Review Committee is
subject to the Federal Advisory
Committee Act (FACA, 5 U.S.C. App.)
(a) Recommendations. Any
recommendation, finding, report, or
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63259
other action of the Review Committee is
advisory only and not binding on any
person. Any records and findings made
by the Review Committee may be
admissible as evidence in actions
brought by persons alleging a violation
of the Act. Findings and
recommendations made by the Review
Committee will be published in the
Federal Register within 90 days of
making the finding or recommendation.
(b) Nominations. The Review
Committee consists of seven members
appointed by the Secretary of the
Interior.
(1) Three members are appointed from
nominations submitted by Indian
Tribes, Native Hawaiian organizations,
and traditional religious leaders. At
least two of these members must be
traditional Indian religious leaders. A
traditional Indian religious leader is a
person who, based on cultural,
ceremonial, or religious practices, is
recognized by an Indian Tribe as being
responsible for performing cultural
ceremonies or exercising a leadership
role.
(2) Three members are appointed from
nominations submitted by national
museum organizations or national
scientific organizations. An organization
that is created by, is a part of, and is
governed in any way by a parent
national museum or scientific
organization must submit a nomination
through the parent organization.
National museum organizations and
national scientific organizations are
organizations that:
(i) Focus on the interests of museums
and science disciplines throughout the
United States, as opposed to a lesser
geographic scope;
(ii) Offer membership throughout the
United States, although such
membership need not be exclusive to
the United States; and
(iii) Are organized under the laws of
the United States Government.
(3) One member is appointed from a
list of more than one person developed
and consented to by all other appointed
members specified in paragraphs (b)(1)
and (b)(2) of this section.
(c) Findings of fact or disputes on
repatriation. The Review Committee
may assist any affected party through
consideration of findings of fact or
disputes related to the inventory,
summary, or repatriation provisions of
the Act. One or more of the affected
parties may request the assistance of the
Review Committee or the Secretary may
direct the Review Committee to
consider a finding of fact or dispute.
Requests for assistance must be made
before repatriation of the human
remains or cultural items has occurred.
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(1) An affected party is either a:
(i) Museum or Federal agency that has
possession or control of the human
remains or cultural items, or
(ii) Lineal descendant, or an Indian
Tribe or Native Hawaiian organization
with potential affiliation to the human
remains or cultural items.
(2) The Review Committee may make
an advisory finding of fact on questions
related to:
(i) The identity of an object as human
remains or cultural items,
(ii) The cultural or geographical
affiliation of human remains or cultural
items, or
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(iii) The repatriation of human
remains or cultural items.
(3) The Review Committee may make
an advisory recommendation on
disputes between affected parties. To
facilitate the resolution of disputes, the
Review Committee may:
(i) Consider disputes between an
affected party identified in paragraph
(c)(1)(i) of this section and an affected
party identified in paragraph (c)(1)(ii) of
this section;
(ii) Not consider disputes among
lineal descendants, Indian Tribes and
Native Hawaiian organizations;
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(iii) Not consider disputes among
museums and Federal agencies;
(iv) Request information or
presentations from any affected party;
and
(v) Make advisory recommendations
directly to the affected parties or to the
Secretary.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2022–22376 Filed 10–13–22; 8:45 am]
BILLING CODE 4312–52–P
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]]>Agencies
[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Proposed Rules]
[Pages 63202-63260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22376]
[[Page 63201]]
Vol. 87
Tuesday,
No. 200
October 18, 2022
Part III
Department of the Interior
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43 CFR Part 10
Native American Graves Protection and Repatriation Act Systematic
Process for Disposition and Repatriation of Native American Human
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural
Patrimony; Proposed Rule
Federal Register / Vol. 87 , No. 200 / Tuesday, October 18, 2022 /
Proposed Rules
[[Page 63202]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
[NPS-WASO-NAGPRA-33190; PPWOCRADN0-PCU00RP14.550000]
RIN 1024-AE19
Native American Graves Protection and Repatriation Act Systematic
Process for Disposition and Repatriation of Native American Human
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural
Patrimony
AGENCY: Office of the Secretary, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior proposes to revise regulations
to improve implementation of the Native American Graves Protection and
Repatriation Act of 1990. These proposed regulations would clarify and
improve upon the systematic process for the disposition and
repatriation of Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony. The proposed changes would
provide a step-by-step roadmap for museums and Federal agencies to
comply with requirements within specific timelines to facilitate the
required disposition and repatriation. The proposed changes would
describe the processes in accessible language with clear timelines and
terms, reduce ambiguity, and improve efficiency in meeting the
requirements. In addition, the proposed changes emphasize consultation
in every step and defer to the customs, traditions, and Native American
traditional knowledge of lineal descendants, Indian Tribes, and Native
Hawaiian organizations.
DATES: Comments on the proposed rule must be received by 11:59 p.m. EDT
on January 17, 2023.
Federal Advisory Committee Act Meetings: The Native American Graves
Protection and Repatriation Review Committee (Review Committee) will
meet virtually during the comment period. The National Park Service
will announce the exact dates and times of the Review Committee
meetings in the Federal Register, once scheduled. These meetings will
be open to the public and there will be time for public comment.
Tribal Consultation Sessions: The Department of the Interior will
conduct consultation sessions with Indian Tribes virtually during the
comment period. The Department of the Interior will announce the exact
meeting dates and times of the consultation sessions, once scheduled,
on https://www.doi.gov/priorities/tribal-consultation/upcoming-tribal-consultations and by letter to Tribal leaders.
Native Hawaiian Consultation Sessions: The Department of the
Interior will conduct consultation sessions with the Native Hawaiian
Community virtually during the comment period. The Department of the
Interior's Office of Native Hawaiian Relations will invite the Native
Hawaiian Community to participate and provide the exact meeting dates
and times of the consultation sessions, once scheduled.
Public Listening Sessions: The Department of the Interior will host
virtual listening sessions during the comment period. The National Park
Service will announce the exact dates and times of the listening
sessions, once scheduled, on https://www.nps.gov/orgs/1335/events.htm.
These meetings will be open to the public.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to decide
concerning the collection of information contained in this proposed
rule between 30 and 60 days after publication of this proposed rule in
the Federal Register. Therefore, comments should be submitted to OMB by
December 19, 2022.
ADDRESSES: You may submit written comments, identified by the
Regulation Identifier Number (RIN) 1024-AE19, by any one of the
following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail to: National NAGPRA Program, National Park Service,
1849 C Street NW, Mail Stop 7360, Washington DC 20240. Attn: Melanie
O'Brien, Manager NAGPRA Rule Comments.
Instructions: All submissions received must include the words
``National Park Service'' or ``NPS'' and the RIN (1024-AE19) for this
rulemaking. Comments received may be posted without change to https://www.regulations.gov, including any personal information provided.
Written comments will not be accepted by fax, email, or in any way
other than those specified above. The NPS will not accept bulk comments
in any format (hard copy or electronic) submitted on behalf of others.
Oral Comments: Register for opportunities to make oral comments at:
https://www.nps.gov/orgs/1335/events.htm. The consultation sessions
listed above are for federally recognized Indian Tribes and for
representatives of the Native Hawaiian Community. All oral comments by
other members of the public must be made during specified sessions of
the Review Committee meetings or public listening sessions. Oral
comments will be recorded and submitted for the record and oral
commenters should include a written copy of their statement prior to
the public meeting. Time for oral comments may be limited.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements should be
submitted by the date specified above in DATES to https://www.reginfo.gov/public/do/PRAMain. Find this particular information
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function. Please provide a copy of
your comments to the NPS Information Collection Clearance Officer
(ADIR-ICCO), 12201 Sunrise Valley Drive, Reston, VA 20191. Please
include ``1024-AE19'' in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Melanie O'Brien, National NAGPRA
Program, National Park Service, (202) 354-2201,
melanie_o'[email protected]. Questions regarding the NPS's information
collection request may be submitted to Phadrea Ponds, NPS Information
Collection Clearance Officer, [email protected]. Please include
``1024-AE19'' in the subject line of your email request.
SUPPLEMENTARY INFORMATION:
I. Background
II. Previous Federal Actions
III. Development of the Proposed Rule
A. Cultural Affiliation
B. Consultation
C. Discovery on Federal or Tribal Lands
D. Comprehensive Agreements
E. Control
F. Funerary Objects
G. Stay of Repatriation for Scientific Study
H. Summaries
I. Acknowledged and Adjudicated Aboriginal Land
J. Federal Lands and Boarding Schools
IV. Overview of Major Proposed Changes
V. Section-by-Section Summary of Proposed Changes
A. Authority
B. Section 10.1 Introduction
C. Section 10.2 Definitions for This Part
D. Section 10.3 Cultural and Geographical Affiliation
E. Section 10.4 General
F. Section 10.5 Discovery
G. Section 10.6 Excavation
H. Section 10.7 Disposition
I. Section 10.8 General
J. Section 10.9 Repatriation of Unassociated Funerary Objects,
Sacred Objects, and Objects of Cultural Patrimony
[[Page 63203]]
K. Section 10.10 Repatriation of Human Remains and Associated
Funerary Objects
L. Section 10.11 Civil Penalties
M. Section 10.12 Review Committee
VI. Public Engagement and Request for Comments
VII. Compliance With Other Laws, Executive Orders and Department
Policy
I. Background
The Native American Graves Protection and Repatriation Act of 1990
(NAGPRA or Act) (25 U.S.C. 3001 et seq.) requires the disposition and
repatriation of Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony to lineal descendants,
Indian Tribes, and Native Hawaiian organizations (NHOs). The Act
governs the disposition of human remains or cultural items removed from
Federal or Tribal lands (25 U.S.C. 3002); requires the inventory of
human remains and associated funerary objects in holdings or
collections (25 U.S.C. 3003); requires a summary of unassociated
funerary objects, sacred objects, and objects of cultural patrimony in
holdings or collections (25 U.S.C. 3004); governs the repatriation of
human remains or cultural items in holdings or collections (25 U.S.C.
3005); creates a Federal advisory committee to monitor and review the
inventory and identification process and repatriation activities (25
U.S.C. 3006); and authorizes civil penalties for museums that fail to
comply with the Act (25 U.S.C. 3007).
II. Previous Federal Actions
The Secretary of the Interior (Secretary) is responsible for
implementation of the Act, including the issuance of regulations
implementing and interpreting its provisions (25 U.S.C. 3011). The
regulations are codified at 43 CFR part 10. The Department of the
Interior (Department) published the initial rule to implement NAGPRA in
1995 at 60 FR 62134 (December 4, 1995). Subsequently, the Department
published additional rules concerning:
Civil penalties, at 68 FR 16354 (April 3, 2003);
Future applicability, at 72 FR 13184 (March 21, 2007);
Culturally unidentifiable human remains, at 75 FR 12378
(March 15, 2010);
Technical amendments, at 78 FR 27078 (May 9, 2013);
The definition of ``Indian tribe,'' at 79 FR 33482 (June
11, 2014); and
Disposition of unclaimed cultural items, at 80 FR 68465
(November 5, 2015).
The Department also publishes annual adjustments to civil penalties
for inflation under the Federal Civil Penalties Inflation Adjustment
Act Improvements Act of 2015.
III. Development of the Proposed Rule
As part of the Department's regulatory review in accordance with
the Regulatory Flexibility Act and E.O. 13563, the Department regularly
seeks public input on how we may best achieve regulatory ends. Over the
past 12 years, parties affected by the definitions and procedures
established in 43 CFR part 10 have commented, in various forums, that
some of the regulatory provisions should be amended to improve
implementation of the Act.
The following paragraphs detail the degree of consultation,
coordination, and collaboration in this review, and the nature of
public comments that the Department received from lineal descendants,
Indian Tribes, NHOs, Federal agencies, museums, national museum and
scientific organizations, Indian Tribal historic preservation
organizations, the Review Committee, and interested members of the
public.
From March to July of 2011, the Department consulted with Indian
Tribes, NHOs, the Review Committee, Federal agencies, and the public on
full revisions to the regulations implementing the Act. This effort
resulted from the Department's publication of a final rule for the
disposition of culturally unidentifiable human remains in March of 2010
(75 FR 12378) which solicited comments on the final rule. Many of those
comments requested broader changes to the entire regulatory process. In
April 2012 (77 FR 12378), the Department published a proposed rule to
revise the regulations for accuracy and consistency based on some of
those comments. Additional comments on that proposed rule requested
changes that went beyond the scope of accuracy and consistency.
Since 2012, the Department has heard repeatedly from Indian Tribes,
NHOs, museums, and Federal agencies on the implementation of the Act
through the regulations. From 2012 to 2019 at 21 meetings of the Review
Committee, public commenters have highlighted concerns with the
regulations or challenges in implementing its procedures. The Review
Committee has heard frequently that the regulations themselves pose
barriers to successful and expedient repatriation.
As a result of previous consultation, public comment, and input
from the Review Committee, the Department developed a draft text of
regulatory revisions and on July 8, 2021, provided Indian Tribes and
NHOs with an invitation to consult on the draft text. Along with the
draft text, the Department provided a summary of the 2011 consultation
with Indian Tribes and NHOs and how the draft text was responsive to
that input. The Department hosted consultation sessions with Indian
Tribes on August 9, 13, and 16, 2021, and with NHOs on August 17, 2021.
In addition, the Department accepted written input until September 30,
2021. In total, we received 71 individual comment letters, which when
combined with oral comments from consultation sessions, yielded over
700 specific comments on sections of the draft text.
The Department reviewed each comment provided during consultation
and in writing and, wherever possible, adjusted the proposed
regulations to address them. In a separate document, the Department has
provided a summary of each comment and specific detailed responses. An
overview of the major comments received is provided here, and specific
adjustments made to the proposed regulations in response to comments
are noted throughout Part V. Section-by-Section Summary of Proposed
Changes.
A. Cultural Affiliation
We received a total of 179 comments on the definitions in the draft
text of ``cultural affiliation'' and ``geographical affiliation'' and
on the section for establishing cultural affiliation. Some of these
comments requested an alternative process be developed utilizing the
Secretary and the Review Committee to facilitate repatriation of human
remains currently labeled as ``culturally unidentifiable.'' These same
comments requested we strike most of the section on cultural
affiliation, citing to the language in the Act (25 U.S.C. 3003(d)(2)(C)
and 3005(a)(4)). Most comments focused on clarifying that one type of
information was sufficient for finding cultural affiliation, especially
geographic information. Some comments requested prioritizing the list
of information or giving more weight to certain lines of information.
Several comments suggested adopting language from the California
statute on deference to traditional Native American knowledge as expert
opinion. We received many supportive comments on the addition of
multiple cultural affiliations and closest cultural affiliation.
In response, the Department proposes to define a new term,
``affiliation,'' in the proposed regulations and to combine the process
for identifying
[[Page 63204]]
cultural and geographical affiliation into a single section. The
Department also proposes to define Native American traditional
knowledge which is referred to throughout the proposed revision in
identifying affiliation and cultural items and in conducting
consultation. In response to several comments, the Department
considered how an alternative process might work, considering the legal
limitations on the Secretary and the Review Committee under the Act.
The roles of the Secretary and the Review Committee are advisory only
in this part of the repatriation process, and an alternative process
limited by that role seems overly complicated and intrusive rather than
helpful or expeditious.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part and D. Section 10.3 Cultural and
Geographical affiliation.
B. Consultation
We received a total of 115 comments on the term ``consultation''
and the related regulatory provisions. Nearly all comments appreciated
the definition, but some comments suggested aligning it with
definitions found in 36 CFR part 800, Executive Order 13175, or the
U.N. Declaration on the Rights of Indigenous Peoples. Some comments
requested the definition make clear consultation is more than a
procedural step and that consultation must be a meaningful, responsive,
and accountable process. Several comments questioned the requirement
for Indian Tribes and NHOs to make written requests to consult.
In response, the Department proposes to define ``consultation'' to
seek consensus and to require a record of consultation that explains,
if applicable, why consensus or agreement could not be achieved. The
requirement for a written request to consult (which can include email)
is necessary to establish a required timeline for responding to a
request.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part, Plan of Action in E. Section
10.4 General, and Require that Consultation Seek Consensus, in J.
Section 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony and K. Section 10.10
Repatriation of human remains and associated funerary objects.
C. Discovery on Federal or Tribal Lands
We received more than 100 comments on the draft text for
discoveries on Federal or Tribal lands. Most of the comments were
directed at two issues--(1) notification or consultation with Indian
Tribes or NHOs when a discovery occurs, and (2) the timelines for
action by the appropriate official after a discovery. The comments
recommended that the requirements of the existing regulations at Sec.
10.4 be reinstated, specifically, immediate telephone notification and
written confirmation by the person who makes the discovery. Many
comments expressed concern over the draft text paragraph on evaluating
the potential for an excavation.
In response, the Department proposes to require written
documentation (which can include email but not text messages) of a
discovery within 24 hours. The Department proposes additional timelines
in this section to ensure adequate time for consultation, a plan of
action, and securing, protecting, monitoring, or, if required,
excavation of the discovery.
See Part V. Section-by-Section Summary of Proposed Changes, F.
Section 10.5 Discovery.
D. Comprehensive Agreements
We received 66 comments on the draft text on comprehensive
agreements. The majority of comments requested plans of action be
reinstated, and many comments remarked on the utility of a plan of
action in responding to discoveries or excavations and promoting
consultation and coordination between land managers and Indian Tribes.
A few comments requested changes to provide for immediate reburial of
human remains or cultural items without any procedural requirements
that might delay a reburial. A few comments requested tribal preference
be incorporated into both the plan of action and comprehensive
agreements.
In response, the Department proposes to move the requirement for a
plan of action in the existing regulations at Sec. 10.5 to the
beginning of the subpart, and provide the requirements, in three
separate steps, for a required plan of action before a planned
activity, including an excavation, or after a discovery.
See Part V. Section-by-Section Summary of Proposed Changes, E.
Section 10.4 General and references in F. Section 10.5 Discovery and G.
Section 10.6 Excavation.
E. Control
We received a total of 68 comments on the term ``control'' as
defined in the draft text. Many comments requested it be replaced with
the statutory term ``possession or control.'' Other comments requested
removing the use of ``legal interest'' from the definition, as the Act
does not recognize a museum or Federal agency has a lawful interest in
human remains or cultural items other than the ``right of possession.''
A few comments suggested museums and Federal agencies should be jointly
and severally liable for compliance with NAGPRA's inventory, summary,
and repatriation obligations. The same comments requested the removal
of the new term ``custody.''
In response, the Department proposes to define the term as
``possession or control'' as used in the Act. Further, the Department
has added clarifications to address how the Act did not intend for this
term to confer any legal rights upon a Federal agency or museum, but
instead act as an element of applicability of the Act's repatriation
provisions. The Department also proposes other regulatory revisions to
require Federal agencies and museums to share information and increase
efforts to complete inventories, summaries, and repatriation of human
remains and cultural items under loan or repository agreements to other
entities.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part, and I. Section 10.8 General.
F. Funerary Object
We received 64 comments on the definitions of ``funerary object,''
``associated funerary object,'' and ``unassociated funerary object.''
Many comments requested revisions to require consultation and include
the authority of Indian Tribes and NHOs in the definition.
In response, the Department proposes to clarify long-standing
confusion over the distinction between associated and unassociated
funerary objects. For both associated and unassociated funerary
objects, broad categorical identifications, including everything from a
burial site or specific area, may meet these definitions depending on
the information available and the results of consultation.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part.
G. Stay of Repatriation for a Scientific Study
We received 55 comments on the draft text carrying out the
provision of the Act if human remains or cultural items are
indispensable for completion of a specific scientific study the outcome
of which would be of major benefit to the United States (25 U.S.C.
3005(b)). Half of the comments recommended the provisions should only
apply to human
[[Page 63205]]
remains and associated funerary objects, and not to unassociated
funerary objects, sacred objects, and objects of cultural patrimony.
Other comments suggested the provisions of the Act were intended to be
limited to studies ongoing when the Act was passed in 1990. Other
comments suggested clarifying changes.
In response, the Department has clarified some of the provisions,
but has retained the provisions applying to both human remains and
cultural items as in the Act (25 U.S.C. 3005(b)). The recommendation
that this provision apply retroactively runs counter to the prospective
applicability of the Act and would conflict with the Act.
See Part V. Section-by-Section Summary of Proposed Changes, J.
Section 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony, and K. Section 10.10
Repatriation of human remains and associated funerary objects.
H. Summaries
We received 54 comments on the provision in the draft text
requiring that museums and Federal agencies prepare and submit a
summary of unassociated funerary objects, sacred objects, and objects
of cultural patrimony in its holding or collection. Comments pointed
out that the summary is prepared before consultation and that Indian
Tribes and NHOs are the best parties to determine whether any item in a
holding or collection fits a NAGPRA category. Museums and Federal
agencies could potentially use the draft text requirement to evade
preparing a summary, claiming that they do not have such objects when
they might.
In response, the Department proposes to retain language from the
existing regulations in both the opening paragraph to the section and
in the paragraph on completing a summary.
See Part V. Section-by-Section Summary of Proposed Changes, J.
Section 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony.
I. Acknowledged and Adjudicated Aboriginal Land
We received 51 comments on the new terms to replace ``aboriginal
land'' and ``aboriginal occupation.'' Several comments appreciated the
new definition of ``acknowledged aboriginal land'' and some comments
recommended that ``acknowledged aboriginal land'' be used not just in
Subpart C of the regulations, but also in Subpart B, either combined
with the definition of ``adjudicated aboriginal land,'' or instead of
that definition. Some comments suggested further clarifying language,
including addition of other sources or changes to the listed sources.
For ``acknowledged aboriginal land,'' many comments suggested changing
the first source, ``treaty sent by the President to the United States
Senate for ratification,'' to an earlier stage in the treaty-making
process, while another comment suggested that it be deleted, since only
a ratified treaty is final and authoritative.
In response, the Department proposes to add definitions of
``adjudicated aboriginal land'' and ``acknowledged aboriginal land'' to
distinguish the criteria for a determination of ``aboriginal land''
under Subpart B and the Act (25 U.S.C. 3002(a)), on the one hand, and
under Subpart C on the other. The Department proposes to include
intertribal treaties, diplomatic agreements, and bilateral accords
between and among Indian Tribes. In the Act, Congress defined ``the
aboriginal land of some Indian tribe'' as ``Federal land that is
recognized by a final judgement of the Indian Claims Commission or the
United States Court of Claims,'' and we have used that to define
``adjudicated aboriginal land.'' The Department can neither add to this
definition nor ignore it, so the comments requesting a change to the
application or definition of adjudicated aboriginal land cannot be
adopted.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part.
J. Federal Lands and Boarding Schools
We received 39 comments on the definition for ``Federal lands.''
Several comments requested the addition of specific language to provide
for protection and disposition of Native American children buried at
Indian boarding schools, especially in circumstances where the land is
not or was not owned or controlled by the U.S. Government, but the
Indian boarding school was operated by or for the U.S. Government. Some
comments asserted that the intentional excavation provisions of NAGPRA
(25 U.S.C. 3002(c)) could be used to authorize the disinterment of
Native children from these cemeteries on Federal or Tribal lands, and
suggested that, for this purpose, the Department expand the statutory
definition of ``Federal lands'' in the regulations to include any
former Indian boarding school where any amount of Federal funding,
government certifications, or permissions were granted, regardless of
the current ownership of land.
In response, as discussed in the Secretarial Memorandum
establishing the Federal Indian Boarding School Initiative, the
Department is committed to ``address[ing] the intergenerational impact
of Indian Boarding Schools to shed light on the traumas of the past.''
The Memorandum identifies the NAGPRA process as a possible method for
repatriation of some Native American children. While NAGPRA does not
require a Federal agency to engage in an intentional excavation of
possible burial sites, (Geronimo v. Obama, 725 F. Supp. 2d 182, 187, n.
4 (D.D.C. 2010)), we agree with the comments that the intentional
excavation provisions of NAGPRA apply to the human remains and cultural
items disinterred from cemeteries on Federal or Tribal lands. Congress
did not make any distinction in the Act between excavations from
cemeteries and excavations from other burial sites on Federal or Tribal
lands. In fact, the definition of ``burial site'' in the Act (25 U.S.C.
3001(1)) explicitly refers to both a ``natural or prepared physical
location.'' Furthermore, we agree with some comments that the
excavation provisions of NAGPRA do not conflict with the opinion of the
United States Court of Appeals for the Third Circuit in Thorpe v.
Borough of Thorpe, 770 F.3d 255 (3d Cir. 2014), where the Court ruled
that the repatriation provisions of NAGPRA (25 U.S.C. 3005) did not
apply to a proposed disinterment and repatriation of human remains. The
human remains at issue in that case, while Native American, were not
located on Federal or Tribal lands, so the excavation provisions were
not at issue, and were therefore not addressed by the Court of Appeals.
Thus, on Federal or Tribal lands, any excavation must comply with the
Act, including the requirements for consultation with (or consent from)
the appropriate Indian Tribe or NHO (25 U.S.C. 3002(c)) and the order
of priority for disposition of human remains (25 U.S.C. 3002(a)).
Unfortunately, the Department cannot, however, amend the regulatory
definition of ``Federal lands'' as the comments requested. Congress
specifically and explicitly defined Federal lands based on ownership or
control, not on receipt of Federal funds (as it did in the definition
of a ``museum''). Thus, ``[w]e have here an instance where the
Congress, presumably after due consideration, has indicated by plain
language a preference to pursue its stated goals . . . . In such case,
neither [a] court nor the agency is
[[Page 63206]]
free to ignore the plain meaning of the statute and to substitute its
policy judgment for that of Congress.'' Alabama Power Co. v. United
States EPA, 40 F.3d 450, 456 (D.C. Cir. 1994). See also, United
Keetoowah Band of Cherokee Indians of Okla. v. United States HUD, 567
F.3d 1235, 1243 (10th Cir. 2009) (same); Chevron U.S.A. v. Natural
Resources Defense Council, 467 U.S. 837, 842-43 (1984) (``If the intent
of Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed
intent of Congress''). The Department does, however, encourage the
custodians of records from boarding schools, whether on Federal or
Tribal lands or not, and the current owners of those boarding schools
and cemeteries, to fully consult with Indian Tribes and NHOs on
identification, disinterment, and repatriation of Native American
children. The Department stands ready to assist Indian Tribes and NHOs
in that process to the fullest extent of its authority.
Beginning in July 2021, the Department requested direct input from
the Review Committee on the draft regulatory text prepared for
consultation. The Review Committee held 14 meetings with over 50 hours
of meeting time devoted to discussion of and development of written
recommendations on the draft regulatory text. The Review Committee
submitted a written recommendations to the Secretary of the Interior on
March 14, 2022, and June 7, 2022. The Department reviewed these written
recommendations, along with the minutes and transcripts from the
related public meetings, in preparing the proposed regulations. The
major comments received related to the Introductory section (see
proposed 10.1) and the inventory update requirements in Subpart C--
Repatriation of human remains or cultural items by museums or Federal
agencies (see proposed 10.10(d) and (e)). Additional recommendations by
individual members of the Review Committee were also submitted. The
Department, wherever possible, adjusted the proposed regulations to
address the Review Committee recommendations.
IV. Overview of Major Proposed Changes
The proposed revisions to these regulations would streamline
requirements, clarify timelines and terms, reduce ambiguity, and
improve efficiency in the systematic process for the disposition and
repatriation of Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony under the Act. The revisions
being proposed today are intended to make the regulations more user-
friendly and would:
Reduce the number of sections and remove duplicative
language. Existing requirements are condensed into a clear, easy to
follow, step-by-step process.
Correct inaccuracies and ambiguities in the existing
regulations by using consistent language and clearly defined terms.
Create a consistent writing style with clear, concise
headings that describe each specific regulatory step.
Clarify when actions are required by lineal descendants,
Indian Tribes, Native Hawaiian organizations, museums, and Federal
agencies by using specific timelines and deadlines.
Provide clear instructions to Indian Tribes, NHOs,
museums, and Federal agencies for establishing cultural and
geographical affiliation and resolving competing claims or requests.
The proposed changes in Subpart B--Protection of Human Remains or
Cultural Items on Federal or Tribal Lands would:
Replace the requirement for Federal agencies to publish
two notices in a newspaper of general circulation for human remains or
cultural items removed from Federal lands with a requirement for
Federal agencies to submit one notice to the Manager, National NAGPRA
Program, for publication in the Federal Register.
Require certain actions be taken by Indian Tribes, NHOs,
and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) for
discoveries or excavations on Tribal lands, including responding to a
discovery, certifying that an activity may resume, authorizing an
excavation, and documenting in writing the disposition of human remains
or cultural items.
Require Federal agencies and DHHL on Federal lands in the
United States and Tribal lands in Hawai`i to develop a plan of action
or comprehensive agreement, in consultation with lineal descendants,
Indian Tribes, and NHOs, that includes instructions for protecting,
stabilizing, or covering human remains or cultural items in situ, if
appropriate.
Clarify that the jurisdiction of a Federal agency to issue
a permit under Section 4 of the Archaeological Resources Protection Act
(ARPA) for an excavation is no broader than it is under ARPA.
The proposed changes in Subpart C--Museum or Federal Agency
Holdings or Collections would:
Remove the term ``culturally unidentifiable'' (i.e., when
cultural affiliation cannot be determined for human remains) and
integrate the concept of repatriation through geographic origin into
the overall affiliation and inventory process.
Require repatriation of associated funerary objects
together with human remains to an Indian Tribe or NHO with cultural or
geographical affiliation.
Require updated inventories for human remains and
associated funerary objects previously included in an inventory but not
published in a notice of inventory completion. For the updated
inventory, the proposed regulations would require a museum or Federal
agency to initiate consultation, consult with requesting parties, and
determine if there is a known lineal descendant or a connection between
the human remains and associated funerary objects and Indian Tribes or
NHOs with cultural or geographical affiliation.
Require museums and Federal agencies to submit a notice of
inventory completion within 6 months of completing or updating an
inventory of human remains and associated funerary objects with a known
lineal descendant or a connection to an Indian Tribe or NHO with
cultural or geographical affiliation.
Require museums and Federal agencies to send repatriation
statements to the National NAGPRA Program. In the existing regulations,
museums and Federal agencies are not required to report on any actions
that occur after the publication of a notice. The proposed regulations
would require both Federal agencies and museums to provide the Manager,
National NAGPRA Program, with a copy of the written statement
completing the repatriation, as recommended by the Government
Accountability Office in a 2010 report on the implementation of the
Act.
Require museums to submit a statement describing holdings
or collections in its custody to the responsible Federal agency, if
known, and to the Manager, National NAGPRA Program. If a museum cannot
identify a person, institution, state or local agency, or Federal
agency that likely has possession or control of the holding or
collection, it must submit a statement to the Manager, National NAGPRA
Program. In the existing regulations, museums have no requirement to
report on Federal holdings or collections. The proposed changes would
align with the Department's response to the Government Accountability
Office's 2010 report on the implementation of the Act.
[[Page 63207]]
V. Section-by-Section Summary of Proposed Changes
Table 1 shows how the Department proposes to reorganize the
existing regulatory requirements and summarizes the proposed changes.
Table 1--Summary of Proposed Changes
----------------------------------------------------------------------------------------------------------------
Proposed 43
Existing 43 CFR section CFR section Summary of proposed changes
----------------------------------------------------------------------------------------------------------------
10.1.......................................... 10.1 Adds paragraphs on Accountability, Duty
10.15......................................... of care, Delivery of written documents, and
Deadlines and timelines.
Informs parties of the result in
failing to claim or request human remains or
cultural items prior to disposition or
repatriation.
Clarifies final agency action in a
specific paragraph.
10.2.......................................... 10.2 Revises definitions for consistency and
to reduce ambiguities.
Adds new terms to clarify requirements.
Removes obsolete terms.
10.14......................................... 10.3 Implements Congressional intent by
defining ``affiliation'' as a connection
between human remains or cultural items and an
Indian Tribe or NHO. Affiliation is established
by identifying cultural or geographical
affiliation.
Adds new paragraphs to assist when
there are multiple Indian Tribes or NHOs with
affiliation.
10.2.......................................... 10.4 Provides a general overview to the
10.3.......................................... responsibilities of Indian Tribes, NHOs,
10.4.......................................... Federal agencies, and DHHL under the Act.
10.5.......................................... Outlines the requirements in three
steps for a plan of action, developed in
consultation with Indian Tribes and NHOs.
Consolidates compliance options for
land management activities that might result in
a discovery or excavation of human remains or
cultural items.
10.4.......................................... 10.5 Reduces and streamlines requirements
for discoveries.
Provides a clear, documented process
and timeline for resuming activities after a
discovery.
10.3.......................................... 10.6 Removes duplicative language and
10.5.......................................... simplifies the excavation requirements.
Clarifies and limits when a permit
under Section 4 of ARPA is required.
10.6.......................................... 10.7 Adds process for disposition to a
10.7.......................................... lineal descendant and clarifies requirements
for disposition on Tribal lands.
Requires publication of notices in the
Federal Register (rather than in newspapers) to
improve the effectiveness of the notification
and reduce burden on Indian Tribes and NHOs.
N/A........................................... 10.8 Provides a general overview to the
responsibilities of museums and Federal
agencies for holdings and collections subject
to the Act.
Requires museums to submit statements
on holdings or collections in their custody but
not in their possession or control one year
after the effective date of the final rule.
10.8.......................................... 10.9 Clarifies when and what actions are
10.9.......................................... 10.10 required for repatriation of human remains or
10.10......................................... cultural items in a simple step-by-step
10.11......................................... process.
10.13......................................... Updates the deadlines for completing
summaries and inventories to the effective date
of the final rule.
Integrates the timelines into the step-
by-step process for any new holdings or
collections, newly recognized Indian Tribes,
new museums, or amendments to previous
decisions.
Establishes timelines, deadlines, and
instructions for responding to requests for
human remains or cultural items and completing
repatriations.
10.11......................................... 10.10 Requires updated inventories two years
after the effective date of the final rule and
notices of inventory completion six months
after updating or completing an inventory.
Eliminates ``culturally
unidentifiable'' when cultural affiliation
cannot be determined.
Requires repatriation of associated
funerary objects with human remains that have a
cultural or geographical affiliation.
10.12......................................... 10.11 Removes the limited definition of a
failure to comply.
Replaces the dual hearing process with
a single hearing process to contest the failure
to comply or the penalty assessment.
10.16......................................... 10.12 Consolidates and clarifies the
10.17......................................... responsibilities of and procedures for the
Review Committee.
Clarifies requirements and the process
for informal dispute resolution through
informal negotiations and request before the
Review Committee.
----------------------------------------------------------------------------------------------------------------
A. Authority
NAGPRA, 25 U.S.C. 3001 et seq., is the primary authority for the
issuance of regulations implementing and interpreting the Act's
provisions. The authority section continues to cite 25 U.S.C. 9 which
authorizes the Secretary to make such regulations as he or she may
think fit for carrying into effect the various provisions of any act
relating to Indian affairs. Because the Act is Indian law (Yankton
Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp 2d
1047, 1056 (D.S.D. 2000)), the Secretary may promulgate any regulations
needed to implement it under the broad authority to supervise and
manage Indian affairs given by Congress (United States v. Eberhardt,
789 F.2d 1354, 1360 (9th Cir. 1986)). Although 43 CFR part 10
previously cited one provision of the Archaeological Resources
Protection Act (ARPA, 16 U.S.C. 470dd(2)) as an authority, the
Department has determined that reliance on ARPA as authority for these
regulations is unnecessary.
B. Section 10.1 Introduction
This section of the proposed rule would reorganize for readability
and restate in plain language the purpose and general requirements
found in the existing regulations. In response to
[[Page 63208]]
consultation with Indian Tribes and NHOs, the Department proposes the
purpose paragraph (see proposed Sec. 10.1(a)) recognize and ensure
deference to the rights of lineal descendants, Indian Tribes, and NHOs,
as provided under the Act. The Department is specifically seeking input
during public comment on the proposed purpose paragraph.
In the applicability paragraph (see proposed Sec. 10.1(b)), the
Department proposes a revision to clarify that these regulations
pertain to Native American human remains or cultural items and require
certain actions for their protection in the event of a discovery or
excavation on Federal or Tribal lands after November 16, 1990, and for
their repatriation if in the possession or control of a museum or
Federal agency. The Act does not provide express authority for applying
the discovery and excavation provisions to land that does not meet the
definition of Federal or Tribal lands (25 U.S.C. 3002). However,
depending on other relevant state or local laws, human remains or
cultural items discovered or excavated from private or state lands may
be subject to the repatriation provisions under Subpart C.
To further clarify the applicability of these regulations, the
Department proposes to remove the existing paragraph Sec. 10.1(b)(2)
to correct the misconception that human remains or cultural items must,
themselves, be indigenous to Alaska, Hawai`i, and the continental
United States. Under the Act, ``indigenous'' relates to the definition
of ``Native American.'' Human remains or cultural items are ``Native
American'' based on a relationship to a tribe, people, or culture that
is indigenous to the United States.
In response to consultation with Indian Tribes and NHOs, the
Department proposes new regulatory provisions to address accountability
by museums and Federal agencies and to require a duty of care for human
remains and cultural items (see proposed Sec. 10.1(c) and (d),
respectively). The paragraph on duty of care was drawn from language in
the existing regulations at Sec. 10.7(2) and (3) which includes a
requirement for Federal agencies to consider and respect the traditions
of potential claimants (i.e., Indian Tribes and NHOs) including, but
not limited to, traditions regarding housing, maintenance, and
preservation, to the maximum extent feasible (emphasis added). During
consultation, many Indian Tribes and NHOs requested that ``to the
maximum extent feasible'' be incorporated into the duty of care
requirement. The Department proposes to use the phrase ``to the maximum
extent possible'' in the duty of care requirement for both museums and
Federal agencies. In addition, this phrase is used to describe
implementation of a plan of action under Subpart B and in the
definition of consultation and the related regulatory steps in both
Subpart B and C. The Department intends this phrase, ``to the maximum
extent possible,'' to mean museums and Federal agencies will make a
reasonable effort to:
seek consensus during consultation,
provide appropriate treatment, care, or handling of human
remains or cultural items, and
incorporate identifications, recommendations, and Native
American traditional knowledge (see definition below) in making
determinations.
Proposed Sec. 10.1(e) would: (1) consolidate and clarify those
requirements governing the delivery of written documents that are
currently dispersed throughout the existing regulations; and (2)
provide for delivery of written documents by email with proof of
receipt, and explicitly exclude delivery of written documents by text
message or social media message.
Proposed Sec. 10.1(f) would describe how deadlines and timelines
for written documents are calculated based on business days, i.e.,
Monday through Friday, and that documents are deeded timely based on
the sent date.
The Department also proposes to relocate to this Introduction
section existing regulatory provisions regarding (1) failure to make a
claim or a request (see proposed Sec. 10.1(g)), (2) judicial
jurisdiction (see proposed Sec. 10.1(h)), and (3) final agency action
(see proposed Sec. 10.1(i)). Regarding final agency action, ``a final
determination making the Act or this part inapplicable'' is intended to
be construed broadly across the regulatory process, including some
circumstances where a Federal agency's failure to comply with a
regulatory requirement or deadline may demonstrate its determination
that either the Act or this part is inapplicable. Regarding judicial
jurisdiction (25 U.S.C. 3009(3)) nothing in the Act or these
regulations is intended to abrogate any concurrent Tribal jurisdiction
that may exist with respect to alleged violations of similar Tribal
laws on Tribal lands.
Table 2 shows how the Department proposes to reorganize the
existing regulatory requirements.
Table 2--Cross-Reference of Existing Provisions to Proposed Sec. 10.1
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.1(a).............................. Purpose................ 10.1(a)................ Purpose.
10.1(b).............................. Applicability.......... 10.1(b)................ Applicability.
New.................... 10.1(c)................ Accountability.
10.7(b).............................. (2) Care for and manage 10.1(d)................ Duty of care.
. . ..
New.................... 10.1(e)................ Delivery of written
documents.
10.1(f)................ Deadlines and
timelines.
10.15(a)............................. Failure to claim prior
to repatriation.
(1) Any person who 10.1(g)................ Failure to make a claim
fails to make a timely or a request.
claim . . .
10.11(e)............................. Disputes............... 10.1(h)................ Judicial jurisdiction.
10.17(a)............................. Formal and informal
resolutions.
10.15(c)............................. Exhaustion of remedies. 10.1(i)................ Final agency action.
10.1(c).............................. The information 10.1(j)................ Information collection.
collection
requirements . . ..
10.15(a)............................. Failure to claim prior ....................... Removed.
to repatriation.
(2) If there is more
than one
(1) claimant. . . .
10.15(d)............................. Savings provisions..... ....................... Removed in part.
----------------------------------------------------------------------------------------------------------------
[[Page 63209]]
C. Section 10.2 Definitions for This Part
This section of the proposed rule defines terms used throughout
this part. The Department proposes to reorganize defined terms in
alphabetical order and remove the paragraph designations in the
existing regulations at Sec. 10.2 in conformance with the Federal
Register Document Drafting Handbook.
The Department does not propose any substantive changes to the
following 10 definitions: Act, discovery (replaces ``inadvertent
discovery''), excavation (replaces ``intentional excavation''), Federal
agency, Manager, National NAGPRA Program, museum, person, Review
Committee, Secretary, and summary. The Department proposes to remove
the following seven definitions that are no longer used in the proposed
regulations: burial site, cultural affiliation (see affiliation),
culturally unidentifiable, Federal agency official, Indian Tribe
official, museum official, and Native Hawaiian (see Native Hawaiian
organization).
Table 3 shows how the Department proposes to add, replace, or
revise terms for consistency, to reduce ambiguities, and to clarify
requirements throughout this part. Except as noted in the table, all
terms are explained in the immediate section below.
Table 3--Changes to Existing Terms in Proposed Sec. 10.2
----------------------------------------------------------------------------------------------------------------
Change Defined term
----------------------------------------------------------------------------------------------------------------
New terms................................... acknowledged aboriginal land.
adjudicated aboriginal land.
affiliation.
ahupua`a.
appropriate official *.
ARPA *.
ARPA Indian lands *.
ARPA Public lands *.
consultation.
cultural item.
custody.
holding or collection.
Indian Tribe (previously reserved).
Native American traditional knowledge.
`ohana.
right of possession.
Tribal lands of an NHO.
United States.
Replace terms............................... ``disposition'' and ``repatriation'' replace ``disposition''.
``possession or control'' replaces ``possession'' and ``control''.
Revise existing terms....................... Federal lands.
funerary object.
human remains.
inventory.
lineal descendant.
Native American.
Native Hawaiian organization.
object of cultural patrimony.
receives Federal funds.
sacred object.
traditional religious leader.
Tribal lands.
unclaimed cultural item.
----------------------------------------------------------------------------------------------------------------
* See proposed Sec. 10.4 and Sec. 10.6 and related preamble section.
1. ``Acknowledged Aboriginal Land'' and ``Adjudicated Aboriginal Land''
The Department proposes to add two new terms to replace
``aboriginal lands'' and ``aboriginal occupation,'' which are not
defined but are used in the existing regulations Sec. Sec. 10.6 and
10.11. The new terms, ``acknowledged aboriginal land'' and
``adjudicated aboriginal land,'' would contain the same requirements
for ``aboriginal lands'' and ``aboriginal occupation,'' found in the
existing regulations at Sec. Sec. 10.6(a)(2)(iii)(A) and
10.11(b)(2)(ii) and (c)(1)(ii), but the new definitions would
distinguish and clarify how to apply the terms.
For ``acknowledged aboriginal land,'' the definition would
elaborate on which treaties may be used to identify aboriginal land and
would add other Federal, foreign, or intertribal government documents
to the list of acceptable sources. Some examples of other Federal
documents that provide information on aboriginal occupation by an
Indian Tribe are ``Report to the President by the Indian Peace
Commission, 1868,'' ``Annual Reports of the Commissioner on Indian
Affairs,'' and ``Alaska Natives and the Land'' (by the Federal Field
Committee for Development Planning in Alaska, October 1968). A source
for identifying intertribal treaties, diplomatic agreements, and
bilateral accords is David H. DeJong's book ``American Indian
Treaties,'' which identifies 63 intertribal treaties, dating between
1666 and 1903. The Department has intentionally declined to require
that intertribal treaties, diplomatic agreements, or bilateral accords
be in writing in recognition of traditional forms of documentation,
such as two-row wampum belts.
For ``adjudicated aboriginal land,'' the definition is drawn from
the Act (25 U.S.C. 3002(a)(2)(C)) and clarified, based on Sections 15
and 22 of the Indian Claims Commission Act of 1946 (Pub. L. 79-726, 60
Stat. 1049), that a final judgment also includes a judgment concerning
a settlement (compromise of claim) if that judgment or settlement
either explicitly recognizes certain land
[[Page 63210]]
as the aboriginal land of an Indian Tribe or adopts findings of fact
that do so.
2. ``Affiliation''
The Department proposes a new term, ``affiliation,'' and to remove
the existing definitions of ``cultural affiliation'' and ``culturally
unidentifiable.'' This change reflects Congressional intent and focus
on affiliation for the sole purpose of disposition or repatriation. In
defining affiliation, Congress ``intended to ensure that the claimant
has a reasonable connection with the materials'' (H. Rep. 101-877, at
14, and S. Rep. 101-473, at 6). Identifying ``cultural affiliation''
has been a significant barrier to disposition and repatriation under
the Act, despite the clear intent of Congress that it be used for no
other purpose than to ensure a reasonable connection between the human
remains and cultural items and an Indian Tribe or NHO. Defining
``affiliation'' in these regulations without the qualifier of
``cultural'' better aligns with Congressional intent, and addresses
concerns raised during consultation with Indian Tribes and NHOs about
implementing the term ``geographical affiliation'' separately from
cultural affiliation. In response to consultation with Indian Tribes
and NHOs, we have combined cultural and geographical affiliation into
this definition and the section on affiliation. The definition of
``cultural affiliation'' from the Act and the existing regulations, the
lines of information, and the use of geographic relationships
consistent with the existing regulation are all incorporated into the
regulatory process by which ``affiliation'' is established in the
proposed text at Sec. 10.3.
3. ``Ahupua`a''
The Department proposes to add a new term, ``ahupua`a,'' to use
when determining the Native Hawaiian organization with the closest
affiliation to human remains or cultural items. While the term serves a
geographic purpose, identifying a traditional land division, an
ahupua`a may also be associated with various traditional and customary
practices in addition to habitation and provides important cultural
connections between its earlier occupants or traditional users and
Native Hawaiian organizations. Traditionally, the occupants of an
ahupua`a are its primary stewards.
4. ``Consultation''
The Department proposes to add a new term, ``consultation,'' using
language provided by Congress (H. Rep. 101-877, at 16). In response to
consultation with Indian Tribes and NHOs, the Department proposes to
require that consultation seek consensus and incorporate
identifications, recommendations, and Native American traditional
knowledge, to the maximum extent possible.
5. ``Cultural Item''
In response to consultation with Indian Tribes and NHOs, the
Department proposes to add a new term, ``cultural item,'' and
specifically exclude human remains from that definition. Although
Congress included human remains in defining cultural items (25 U.S.C.
3001(3)), the Department proposes throughout these regulations to use
the phrase ``human remains or cultural items'' rather than ``cultural
items.'' This edit is responsive to requests from some Indian Tribes
and NHOs who oppose any language that identifies people as items since
this can be seen as objectifying and dehumanizing. This edit does not
have any impact on the applicability or scope of these regulations.
In response to consultation with Indian Tribes and NHOs, the
Department proposes to add to the definition of cultural items (and to
subsequent specific definitions of cultural items) that identification
of cultural items is according to a lineal descendant, Indian Tribe, or
NHO based on customs, traditions, or Native American traditional
knowledge. In the Act, the identification of cultural items is
dependent upon consultation with lineal descendants, Indian Tribes, and
NHOs. By adding this phrase to the definition of cultural items, the
Department seeks to emphasize that consultation, which is required
throughout the proposed regulation, is how a lineal descendant, Indian
Tribe, or NHO shares the information needed to identify a cultural
item.
The Act was enacted for the benefit of Indians, therefore the
canons of construction for Indian law applies. The Act and these
regulations ``are to be construed liberally in favor of the Indians,
with ambiguous provisions interpreted to their benefit'' (Yankton Sioux
Tribe v. United States Army Corps of Engineers, 83 F. Supp 2d 1047,
1056 (D.S.D. 2000)). Consistent with this principle, the Department
proposes to require deference to lineal descendants, Indian Tribes, and
NHOs throughout the regulations, but specifically for identification of
cultural items. Legislative intent on the definition of cultural item,
generally, and to each definition specifically, is clear. ``The
Committee has made every effort to incorporate the comments and address
the concerns of members of the scientific and museum communities with
regard to the substantive definitions set forth in the Act, while at
the same time recognizing that there are over 200 tribes and 200 Alaska
Native villages and Native Hawaiian communities, each with distinct
cultures and traditional and religious practices that are unique to
each community. Accordingly, the definitions of sacred objects,
funerary objects, and items of cultural patrimony will vary according
to the tribe, village, or Native Hawaiian community.'' (Senate Rpt.
101-473, page 4).
6. ``Custody''
The Department proposes to add a new term, ``custody,'' that would
indicate an obligation for human remains or cultural items that is less
than ``possession or control.'' See discussion of ``possession or
control'' below. This newly defined term does not have the same meaning
as the general meaning given to the same word used throughout the
existing regulations, especially at Sec. 10.6.
7. ``Disposition''
The Department proposes to replace the term ``disposition'' in the
existing regulations at Sec. 10.2(g)(5) with two separate terms:
``disposition'' and ``repatriation.'' In the proposed revision,
``disposition'' applies only to Subpart B. The proposed revision to
``disposition'' would denote that an Indian Tribe, NHO, Federal agency,
or DHHL acknowledges and recognizes that a lineal descendant, Indian
Tribe, or NHO has control or ownership of human remains or cultural
items removed from Federal or Tribal lands. Although the phrase,
control or ownership, is not defined in the Act or the proposed
regulations, it is used to refer to the rights of lineal descendants,
Indian Tribes, and NHOs in Native American human remains or cultural
items as acknowledged and recognized by the Act. The phrase, control or
ownership, is used to differentiate ``disposition'' and
``repatriation'' from terms used in other sections of the Act, such as
the ``right of possession,'' which a museum or Federal agency may use
to assert its lawful control or ownership, or ``possession or
control,'' which is an element of applicability under the Act that
itself does not determine control or ownership or a right of
possession. In describing disposition, the Act uses the terms
``ownership,'' ``control,'' ``right of control,'' and ``title to'' (25
U.S.C. 3002). Of these terms, the phrase, control or ownership, is the
most appropriate to apply to human remains as well as cultural items
that may be subject to
[[Page 63211]]
disposition and describes the existing rights of lineal descendants,
Indian Tribes, and NHOs more accurately. The phrase, control or
ownership, is intended to indicate that, as in the Act, human remains
or cultural items removed from Federal or Tribal lands belong, in the
first instance, to lineal descendants, Indian Tribes, and NHOs and not
to the Federal agency.
8. ``Federal Land''
The Department proposes to revise the term ``Federal land'' to
clarify the lands on which Federal programs or activities may be
subject to the Act. As in the existing regulations, ``Federal land''
includes lands not just owned by the United States Government, but also
lands under its control. (Note that the general term ``control'' as
used in this discussion of Federal land is not the same as the defined
term ``possession or control'' as used in the Act). Whether Federal
control of the lands on which it conducts its programs or activities is
sufficient to apply these regulations depends on the circumstances and
scope of the Federal agency's authority, and on the nature of State and
local jurisdiction. Because of the wide array of agency-specific
authorities that can establish federally controlled lands, the Federal
agency officials must make such determinations on a case-by-case basis
and, in doing so, should consult with their legal counsel.
While Federal agency officials must ultimately make their own
determinations as to the lands under the control of their agency, the
drafters note that, in general, a Federal agency will only have
sufficient legal interest to ``control'' lands it does not own when it
has sufficient statutory jurisdiction with respect to those lands or
other form of property interest in the land, such as a lease, easement,
or other agreement with terms that have indicia of control. See Yankton
Sioux Tribe v. United States Army Corps of Eng'rs, 396 F. Supp 2d 1087
(D.S.D. 2005); Crow Creek Sioux Tribe v. Brownlee, 331 F.3d 912 (D.C.
Cir. 2003) (the Act still applied to lands transferred by the U.S. Army
Corps of Engineers to South Dakota pursuant to the Water Resources
Development Act due to a specific statutory provision applicable to
those transferred lands). Where two or more Federal agencies share
regulatory or management jurisdiction over federally owned or
controlled lands, the Federal agency with primary management authority
will generally have ``control'' for purposes of implementing these
regulations.
On the other hand, the drafters note that Federal agency
participation in a regulatory or supervisory capacity does not
necessarily rise to the level of Federal ``control.'' See, e.g., Castro
Romero v. Becken, 256 F.3d 349 (5th Cir. 2001) (claims for violations
of the Act with regard to human remains found on municipal land could
not be upheld, even though a Federal agency was involved in the project
in a supervisory role); Western Mohegan Tribe and Nation of New York v.
New York, 100 F. Supp. 2d 122, (N.D.N.Y. 2000), aff'd in part, vacated
in part on other grounds 246 F.3d 230 (2nd Cir. 2001) (``Plaintiffs'
broad reading of the statute is inconsistent with the Act's plain
meaning and its legislative history where the language `Federal lands'
denotes a level of dominion commonly associated with ownership, not
funding pursuant to statutory obligations or regulatory permits.'').
For example, the fact that a Federal permit is required to undertake an
activity on non-Federal land generally is not sufficient legal interest
in and of itself to ``control'' the land within the meaning of the Act
and this proposed rule.
Indian lands outside reservation boundaries that are held in trust
by the United States Government or are held by an Indian landowner
subject to restrictions on alienation imposed by the United States
Government, such as allotments, are subject to Federal control and are
treated as Federal lands under these regulations. The control of the
United States Government over Indian land is the same whether it is in
trust or restricted status and whether it is within the exterior
boundaries of a reservation or not. United States v. Ramsey, 271 U.S.
467, 471-72 (1926). See also Cohen's Handbook of Federal Indian Law
Sec. 16.03[1], at 1071 (Nell Jessup Newton ed., 2012). Since
Congress's control is virtually the same for trust allotments and off-
reservation allotted lands with Federal restraints on encumbrance and
alienation (restricted fee allotments), then Federal control of such
lands as a matter of law meets the Western Mohegan standard noted
above. The treatment of off-reservation Indian land as ``Federal land''
for purposes of the Act is consistent with the current practice of the
Bureau of Indian Affairs.
9. ``Funerary Object''
The Department proposes to revise the term ``funerary object'' and
align it with the definitions in the Act for ``associated funerary
object'' and ``unassociated funerary object.'' The portion of the
statutory definition that is the same between the two terms has been
used to define ``funerary object.'' As defined in the Act, the only
difference between the definition for associated and unassociated
funerary objects is the location of the related human remains. A single
object may be a funerary object if the object is identified as having
been placed with or near human remains. Therefore, determining if the
funerary object is associated or unassociated does not require
identifying the specific individual with which the object was placed,
but rather, only requires identifying the location of the related human
remains.
For example, an authorized excavation in 1940 removed a Native
American object from what was thought to be a village site dating
between 2000 BCE to 500 CE. The object dates to the late pre-contact
period, likely between 1500-1580 CE, based on materials and form.
Fragmentary human remains were identified during the excavation and
noted in field notes, but no human remains were removed. Based on
information available including the results of consultation, it is
reasonable to believe the object was placed intentionally in this
location because of the human remains, but it is also reasonable to
believe the object was placed there many centuries after the human
remains. Nevertheless, the object meets the definition of a funerary
object since it was intentionally placed near human remains.
The funerary object does not, however, meet the definition of an
associated funerary object. Human remains were identified, but no human
remains were removed during the excavation. In the information
available, there is no record of human remains being removed from the
site at any other time. Through consultation with Indian Tribes, the
funerary object was not identified as being the kind of object made
exclusively for burial purposes or to contain human remains.
When a funerary object is not an associated funerary object, it may
be an unassociated funerary object if it meets one or more of the
criteria in the definition (see proposed Sec. 10.2 Funerary object
(2)). The funerary object is not related to specific individuals or
families (see proposed Sec. 10.2 Funerary object (2)(ii)). The
funerary object was not removed from a specific burial site or an area
known to be a burial site (see proposed Sec. 10.2 Funerary object
(2)(iii) and (iv)). However, the funerary object is related to known
human remains (identified in the field notes), but those human remains
were not removed from the site (see proposed Sec. 10.2 Funerary object
(2)(i)). Therefore, the funerary object meets the definition of an
unassociated funerary object.
[[Page 63212]]
In response to consultation with Indian Tribes and NHOs, the
Department proposes to add to the definition of funerary object (and to
all specific definitions of cultural items) that identification of a
funerary object is according to a lineal descendant, Indian Tribe, or
NHO based on customs, traditions, or Native American traditional
knowledge. In the Act, the identification of a funerary object is
dependent upon consultation with lineal descendants, Indian Tribes, and
NHOs. By adding this phrase to the definition of a funerary object, the
Department seeks to emphasize that consultation, which is required
throughout the proposed regulation, is how a lineal descendant, Indian
Tribe, or NHO shares the information needed to identify a funerary
object.
10. ``Holding or Collection''
The Department proposes to add a new term ``holding or collection''
which is not defined in the Act. The proposed definition is drawn from
dictionary definitions as well as the International Council of Museums'
2007 definition. Merriam-Webster Dictionary defines ``collection'' as
``something collected; especially: an accumulation of objects gathered
for study, comparison, or exhibition . . .'' and defines ``holding'' as
``any property that is owned or possessed . . .'' The International
Council of Museums' 2007 definition of a museum is an institution
``which acquires, conserves, researches, communicates and exhibits . .
. for the purposes of education, study, and enjoyment.'' Additional
purposes in this definition are taken from Unit 34 of ``Museum Basics''
(1993) by Timothy Ambrose, which lists different types of museum
collections. In response to consultation with Indian Tribes and NHOs,
we have refrained from using offensive purposes listed in some of these
sources such as ``enjoyment'' or ``personal benefit.'' While the
proposed definition includes a wide variety of purposes, a holding or
collection under this proposed rule would not be limited to only these
purposes.
11. ``Human Remains''
The Department proposes to revise the term ``human remains'' to
clarify what is and what is not considered human remains for purposes
of disposition and repatriation. The proposed revision is based on the
explanation provided in the preamble to the 1995 final rule (60 FR
62137, December 4, 1995). The explanation noted that the Act makes no
distinction between fully articulated burials and isolated bones and
teeth. The preamble then stated that the final rule added language
excluding ``naturally shed'' human remains from consideration under the
Act. The preamble clarified that this exclusion does not include human
remains for which there is evidence of purposeful disposal or
deposition. The preamble then addressed a question asked by a commenter
who sought clarification on the status of human remains that were not
freely given but had been incorporated into objects that are not
cultural items as defined in the regulations. The preamble explained
that the legislative history does not address this question and
therefore the proper disposition of such human remains must be
determined on a case-by-case basis.
Consistent with the advice in 1995, identification of human remains
must be made on a case-by-case basis. The Act requires identification
of all human remains in a holding or collection, including human
remains reasonably believed to be comingled with other material (such
as soil or faunal remains). During consultation with lineal
descendants, Indian Tribes, and NHOs, museums and Federal agencies
should evaluate if an entire admixture can be treated as human remains.
If such a request is made during consultation, but it is not possible
to treat the admixture as human remains, the record of consultation
should include the effort to identify a mutually agreeable alternative.
The proposed definition provides two ways human remains may be
incorporated into an object or item. For example, depending on the
results of consultation, a scalp shirt with human remains or a flute
made with human remains that is not a funerary object, a sacred object,
or an object of cultural patrimony would be considered human remains
and subject to disposition or repatriation under the Act and the
proposed regulations. Human remains that are incorporated into a
funerary object, sacred object, or object of cultural patrimony would
not be treated as human remains, but as a cultural item and subject to
disposition or repatriation under the Act and the proposed regulations.
12. ``Indian Tribe''
The Department proposes to add a definition for the term ``Indian
Tribe,'' currently reserved in the existing regulations at Sec.
10.2(b)(2). The list of federally recognized Indian Tribes is the list
of Indian Tribes for the purposes of NAGPRA. Throughout the proposed
rule, the term is used in the singular form, but it is expected that
multiple Indian Tribes may meet the criteria under this part for
disposition or repatriation of the same human remains or cultural
items. Any Indian Tribe with cultural or geographical affiliation may
submit a claim for disposition or a request for repatriation. Two or
more Indian Tribes may agree to joint disposition or joint repatriation
of human remains or cultural items. Claims or requests for joint
disposition or joint repatriation should be considered a single claim
or request and not competing claims or requests.
13. ``Inventory''
The Department proposes to revise the term ``inventory'' to
accurately reflect the content as required by the Act. In response to
consultation with Indian Tribes and NHOs, the Department is aware that
the existing regulatory definition has been a barrier to expeditious
repatriation as it requires an ``item-by-item description.'' In the
Act, an inventory is defined as a ``simple itemized list.'' The
proposed revision to the definition uses the exact language from the
Act and includes the information required to be included in an
inventory.
14. ``Lineal Descendant''
The Department proposes to revise the definition and remove the
criteria for determining lineal descent in the existing regulations at
Sec. Sec. 10.2(b)(2) and 10.14(b). The term ``lineal descendant'' is
not defined in the Act. The revised definition would allow for
disposition or repatriation of human remains and associated funerary
objects to a ``lineal descendant'' in the following cases:
The identity of a particular deceased individual is known,
and a specific living person is known to be the direct descendant of
the deceased individual. For example, the human remains are of the
great-great-grandfather of the living great-great-granddaughter.
The identity of each deceased individual in a group of
human remains is not known, but a specific living person is known to be
the direct descendant of all the deceased individuals in the group. For
example, all that is known is that the human remains of multiple
individuals are the great-great-grandfather, great-grandfather, father,
and maternal uncle of a specific living person, who is the direct
descendant of them all under a traditional system of descent.
Throughout the proposed rule, the term is used in the singular
form, but it is expected that multiple lineal descendants may meet the
criteria under this part for disposition or repatriation of the same
human remains, funerary
[[Page 63213]]
objects, or sacred objects. Any lineal descendant may submit a claim
for disposition or a request for repatriation for human remains,
funerary objects, or sacred objects. Two or more lineal descendants may
agree to joint disposition or joint repatriation of human remains,
funerary objects, or sacred objects. Claims or requests for joint
disposition or joint repatriation should be considered a single claim
or request and not competing claims or requests.
15. ``Museum''
The Department proposes a slight addition to the term ``museum'' to
clarify that, consistent with the Act, the term does not include the
Smithsonian Institution. Also consistent with the Act, the term
``museum'' includes State or local government agencies, including
subdivisions of State or local government agencies. Consequently, any
of the following examples may be a museum under the Act and the
proposed regulations if they meet all the criteria of the definition: a
county coroner's office, a city medical examiner's office, a State
police department or local post, a city library, or a city water
authority.
16. ``Native American''
The Department proposes to revise and clarify the existing
definition of ``Native American.'' The Act applies to human remains or
cultural items that meet the definition of ``Native American.''
``Native American'' human remains or cultural items are not only items
of a tribe, people, or culture that is indigenous to the United States,
but are also items that are related to such tribe, people, or culture.
Because Congress did not define ``tribe,'' ``people,'' or ``culture,''
the proposed definition of the term ``Native American'' incorporates
statutory and dictionary definitions to better clarify these terms.
17. ``Native American Traditional Knowledge''
The Department proposes to add a new term, ``Native American
traditional knowledge,'' for use in the definition of ``consultation''
and ``cultural item'' as well as definitions of specific kinds of
cultural items. In response to consultation with Indian Tribes and
NHOs, this definition is a variation on what was suggested by a
specific Indian Tribe, but this term is rooted in the larger concept of
indigenous ways of knowing. The proposed definition attempts to cover
the wide variety of terminology related to this concept while remaining
consistent with the disposition and repatriation process under the Act.
The Department recognizes that there is different terminology used by
and among Native American people that incorporates this concept.
Additionally, the concept of traditional knowledge is recognized by a
number of Federal agencies in the context of land management activities
and the use of natural or cultural resources. In these contexts, it is
often referred to as traditional ecological knowledge or TEK. It may
also be referred to as indigenous knowledge or traditional cultural
knowledge. For the limited purposes of these regulations, the term
``Native American traditional knowledge'' is inclusive of all these
terms and may provide information needed to identify affiliation
(either cultural or geographical), funerary objects, lineal
descendants, objects of cultural patrimony, and sacred objects. We
welcome additional input on the specifics in this definition as well as
its use in the regulatory text.
18. ``Native Hawaiian Organization''
The Department proposes to revise the term ``Native Hawaiian
organization'' (NHO) by incorporating the definition of ``Native
Hawaiian'' from the Act. While the Act uses the phrase ``aboriginal
people'' to define Native Hawaiian, the proposed regulations use the
phrase ``indigenous people'' to better relate to the definition of
Native American and distinguish from the use of aboriginal elsewhere in
the Act and regulations referring to land. The proposed definition
would include those entities that the Secretary, through the Office of
Native Hawaiian Relations, has identified on the most current Native
Hawaiian Organization Notification List. The Department also proposes
to include in the definition of NHO the Hawaiian Homes Commission Act
(HHCA) Beneficiary Associations and Homestead Associations. Although
the Act names Hui Malama I Na Kupuna O Hawai`i Nei as a Native Hawaiian
organization, that group ceased to exist in 2015, so the proposed
definition does not include it.
Throughout the proposed rule, ``Native Hawaiian organization'' is
used in the singular form, but it is expected that multiple NHOs may
meet the criteria under this part for disposition or repatriation of
the same human remains or cultural items. Any NHO with affiliation may
submit a claim for disposition or a request for repatriation under the
proposed rule. Two or more NHOs may agree to joint disposition or joint
repatriation of human remains or cultural items. Claims or requests for
joint disposition or joint repatriation would be considered a single
request and not competing claims or requests.
19. ``Object of Cultural Patrimony''
The Department proposes to revise the definition of ``object of
cultural patrimony'' to clarify what a Native American group or culture
is for purposes of the definition. In response to consultation with
Indian Tribes and NHOs and a specific suggestion from an Indian Tribe,
the Department also proposes to add a sentence to recognize that a
caretaker may have been entrusted with responsibility for an object and
may have even conferred that responsibility on another caretaker, but
the object can still be an object of cultural patrimony. In response to
consultation with Indian Tribes and NHOs, the Department proposes to
add to the definition (and to all specific definitions of cultural
items) that identification of an object of cultural patrimony is
according to an Indian Tribe or NHO based on customs, traditions, or
Native American traditional knowledge. In the Act, the identification
of an object of cultural patrimony is dependent upon consultation with
lineal descendants, Indian Tribes, and NHOs. By adding this phrase to
the definition of an object of cultural patrimony, the Department seeks
to emphasize that consultation, which is required throughout the
proposed regulation, is how an Indian Tribe or NHO shares the
information needed to identify an object of cultural patrimony.
20. `` `Ohana''
To emphasize the importance of the familial or kinship relationship
in Hawai`i, the Department proposes to add a new term `` `ohana,'' used
in the definition of ``Native Hawaiian organization'' and in
determining the NHO with the closest affiliation.
21. ``Possession or Control''
In response to consultation with Indian Tribes and NHOs, the
Department proposes to replace the two separate terms in the existing
regulations ``possession'' and ``control'' into one term, as used in
the Act, ``possession or control.'' Congress used these two words as a
single term throughout the Act except for ``right of possession''
(discussed later). The phrase ``possession or control'' as used in the
Act connotes a singular interest in human remains or cultural items and
utilizes the two elements of the phrase only to address the physical
location of the human remains or cultural items. In the Act, having
possession or control means a museum or Federal agency may
[[Page 63214]]
make decisions about human remains or cultural items without having to
request permission from some other entity or person (an interest). This
interest is present regardless of the physical location of the human
remains or cultural items. For a similar example, a person has the same
interest in property that is in the person's home as in property that
same person keeps in an offsite storage unit. The person can make
decisions about the property in the storage unit without having to
request permission from the storage facility. Regardless of the
physical location of the property, the person's interest in the
property is the same whether it is in their home or in the custody of
the storage facility.
The Department also proposes to define a separate term,
``custody,'' that would indicate an obligation that is less than
``possession or control.'' Whether a Federal agency or museum has a
sufficient interest in human remains or cultural items to establish
possession or control is a legal determination that must be made on a
case-by-case basis. However, when a museum with custody of human
remains or cultural items cannot identify any person, institution,
State or local government agency, or Federal agency with possession or
control, the museum should presume it has possession or control for
purposes of repatriation under the Act. When a Federal agency cannot
determine if human remains or cultural items came into its possession
or control before or after November 16, 1990, or cannot identify the
type of land the human remains or cultural items were removed from, the
Federal agency should presume it has possession or control for purposes
of repatriation under the Act. This determination alone does not create
any legal rights or indicate that a museum or Federal agency has a
``right of possession'' to human remains or cultural items; it is
merely a jurisdictional requirement for application of the Act to human
remains or cultural items subject to repatriation by the appropriate
museum or Federal agency.
The Department received several comments through consultation with
Indian Tribes and NHOs requesting that it expand the scope of the term
``possession or control'' to include both those entities that have
possession or control as defined in the existing regulations and those
entities that merely have custody as defined in this proposed rule. In
some cases, this request would make multiple entities concurrently
responsible for fulfilling the Act's inventory, summary, and
repatriation processes. The Department has declined to make this change
as such an interpretation is inconsistent with the framework and
legislative history of the Act. Congress provided no indication in the
Act or its legislative history that such an expansive interpretation
was its intent, and various features of the Act, including civil
penalties, right of possession, and museum obligations, presume that a
single museum or Federal agency would be responsible for compliance
with the Act. However, the Department acknowledges the underlying
intent of this request to ensure repatriation of all holdings or
collections subject to the Act and has proposed other revisions that
seek to address this issue by directing museums and Federal agencies to
share greater information and increase efforts to complete inventories,
summaries, and repatriation of human remains and cultural items in the
custody of other entities.
22. ``Receives Federal Funds''
The Department proposes to revise the term ``receives Federal
funds'' to clarify that any recipient of Federal financial assistance
would be deemed to receive Federal funds under this part. The
definition is drawn from the interpretation of comparable terms from
the Rehabilitation Act of 1973, Title IX of the Education Amendments of
1972, as amended, implementing regulations, and OMB's Requirements,
Cost Principles, and Audit Requirements for Federal Awards (2 CFR part
200). The ``Receives Federal funds'' requirement may be satisfied by
direct or indirect receipt of funds from the Federal government.
Satisfaction of the requirement through indirect funding is permissible
and consistent with the Supreme Court's decision in Grove City College
v. Bell, 465 U.S. 555 (1982).
For example, an educational institution that accepts no direct
Federal financial assistance is deemed to receive Federal financial
assistance when it enrolls students who receive Federal grants that
must be used for educational purposes (34 CFR part 106). A Tribal
museum receives Federal funds for purposes of repatriation if the
Indian Tribe of which the museum is a part receives Federal financial
assistance. A county library receives Federal funds for purposes of
repatriation if its State government or other agency provides a
subaward to the library as part of a Federal grant or award. The term
also underscores that the U.S. Government's payments that are
compensatory, such as payments in lieu of taxes paid under the Payments
in Lieu of Taxes Act, as amended (31 U.S.C. 6901 et seq.) are not
considered Federal financial assistance (and see McMullen v. Wakulla
County Board of County Commissioners, 650 Fed. Appx. 703 (11th Cir.
2016)).
23. ``Repatriation''
The Department proposes to replace the term ``disposition'' in the
existing regulations at Sec. 10.2(g)(5) with two separate terms:
``disposition'' and ``repatriation'' used consistently throughout the
regulations. In the proposed revision, ``repatriation'' applies only to
Subpart C and has been incorporated into the title of that subpart. The
proposed revision would denote that a museum or Federal agency
acknowledges and recognizes that a lineal descendant, Indian Tribe, or
NHO has control or ownership of human remains or cultural items in a
holding or collection. Although the phrase, control or ownership, is
not defined in the Act or the regulations, it is used to refer to the
rights of lineal descendants, Indian Tribes, and NHOs in Native
American human remains or cultural items acknowledged and recognized by
the Act. The phrase, control or ownership, is used to differentiate
``disposition'' and ``repatriation'' from terms used in other sections
of the Act, such as the ``right of possession,'' which a museum or
Federal agency may use to assert its lawful control or ownership, or
``possession or control,'' which is an element of applicability under
the Act that itself does not determine control or ownership or a right
of possession. In describing repatriation, the Act uses the terms
``return,'' ``owned,'' and ``owned or controlled'' (25 U.S.C. 3005). Of
these terms, the phrase, control or ownership, is the most appropriate
to apply to human remains as well as cultural items that may be subject
to repatriation and describes the existing rights of lineal
descendants, Indian Tribes, and NHOs more accurately. The phrase,
control or ownership, is intended to indicate that, as in the Act,
human remains and cultural items in holdings or collections belong, in
the first instance, to lineal descendants, Indian Tribes, and NHOs and
not to the museum or Federal agency unless the museum or Federal agency
is able to prove a ``right of possession.'' By using ``right of
possession'' as a standard of repatriation, the Act establishes that
museums and Federal agencies do not have a rightful legal interest in
human remains or cultural items unless the museum or Federal agency can
prove an authoritative transfer of that ``right of possession.''
24. ``Right of Possession''
The Department proposes a new defined term ``right of possession''
by
[[Page 63215]]
moving the text from the existing regulations at Sec. 10.10(a)(2). The
Act recognizes a ``right of possession'' to cultural items; however,
Congress acknowledged that this right is qualified with respect to
human remains and associated funerary objects. The Act utilizes the
concept of right of possession first as a defense against criminal
sanctions for the sale, purchase, use, or transport for profit of human
remains (18 U.S.C. 1170); and again, where museums and Federal agencies
are permitted to assert a right of possession to unassociated funerary
objects, sacred objects, and objects of cultural patrimony with
evidence (25 U.S.C. 3005).
Congress did not provide a process for a museum or Federal agency
to assert a right of possession to human remains and associated
funerary objects. This approach is consistent with Congress' intent to
distinguish human remains and associated funerary objects from cultural
items as quasi-property. Applicable common law in the United States
generally accepts that human remains and associated burial items cannot
be ``owned'' in the same manner as conventional property. The Act (25
U.S.C. 3001 (13)) follows the common law by distinguishing between the
property attributes of Native American unassociated funerary objects,
sacred objects, or objects of cultural patrimony, and the quasi-
property attributes of Native American human remains and associated
funerary objects.
Congress acknowledged that the right of possession to unassociated
funerary objects, sacred objects, or object of cultural patrimony, as
defined in the Act, may be subject to a Fifth Amendment takings
analysis, and that these objects may potentially be considered
property. A right of possession for prehistoric cultural items fitting
these categories might be shown through a written authorization from a
competent authority to excavate, remove, and curate such items from a
particular area or site. Although Congress also determined that the
original acquisition of Native American human remains and associated
funerary objects which were exhumed, removed, or otherwise obtained
with full knowledge and consent of the next of kin or the official
governing body of the appropriate Indian Tribe or NHO is deemed to give
right of possession to those human remains and associated funerary
objects, Congress chose not to make that right of possession to human
remains and associated funerary objects subject to a Fifth amendment
takings analysis. Congress was clear that it did not intend to
categorize human remains and associated funerary objects as property
under the Act, as had been its approach for unassociated funerary
objects, sacred objects, or object of cultural patrimony. Thus, a Fifth
Amendment taking does not result from the repatriation of human remains
and associated funerary objects.
In the proposed revision, the Department interprets ``voluntary
consent'' and ``full knowledge and consent'' considering the history of
Indian country and recognizes that ``voluntary consent'' and ``full
knowledge and consent'' does not include ``consent'' given under duress
or as a result of bribery, blackmail, fraud, misrepresentation, or
duplicity on the part of the recipient. As such, consent in this
definition must be shown to have been fully free, prior, and informed
consent.
25. ``Sacred Object''
In response to consultation with Indian Tribes and NHOs, the
Department proposes to revise that a sacred object is, in the words of
the Act, ``needed'' for a traditional Native American religious
practice. Such practice could include the need to ritually inter the
object. The Department proposes to add to the definition of sacred
object (and to all specific definitions of cultural items) that
identification of a sacred object is according to a lineal descendant,
Indian Tribe, or NHO based on customs, traditions, or Native American
traditional knowledge. In the Act, the identification of a sacred
object is dependent upon consultation with lineal descendants, Indian
Tribes, and NHOs. By adding this phrase to the definition of a sacred
object, the Department seeks to emphasize that consultation, which is
required throughout the proposed regulation, is how a lineal
descendant, Indian Tribe, or NHO shares the information needed to
identify a sacred object.
26. ``Traditional Religious Leader''
The Department proposes to revise the term ``traditional religious
leader'' in response to consultation with Indian Tribes and NHOs. The
term is not defined in the Act and the proposed revisions are intended
to clarify and simplify the definition. The proposed revisions intend
to place the authority for identifying a traditional religious leader
in the hands of an Indian Tribe or NHO. There is no requirement for an
Indian Tribe or NHO to disclose information about the cultural,
ceremonial, or religious practices or cultural duties or leadership
role used to identify a traditional religious leader.
27. ``Tribal Lands''
The Department proposes to revise the term ``Tribal lands'' by
removing the provision in the existing regulations related to a taking
of property without compensation within the meaning of the Fifth
Amendment of the United States Constitution (25 U.S.C. 3001(13)).
Comments to the 1995 final rule sought clarification regarding the
application of NAGPRA to privately owned lands within the exterior
boundaries of an Indian reservation. To address any potential conflict,
the final rule codified language stating that the regulations will not
apply to Tribal lands to the extent that any particular action
authorized or required will result in such a taking of property. A
review of the legislative history for the Act shows this concept does
not apply to the statute as enacted and therefore is removed from the
definition of Tribal lands.
28. ``Tribal Lands of an NHO''
The Department proposes to add a new term ``Tribal lands of an
NHO'' to more accurately describe a subset of Tribal lands in
Hawai[revaps]i so it can be applied in the regulatory process in
Subpart B. In the Act, priority for disposition of human remains or
cultural items from Tribal lands is in the Indian Tribe or NHO on whose
Tribal lands the human remains or cultural items were removed. While
the Tribal lands of an Indian Tribe is clearly identified by the
definition of Tribal lands, the application of this priority on Tribal
lands in Hawai[revaps]i is not clear from the definition of Tribal
lands alone. This definition provides for an NHO to take on
responsibility for the provisions of the Act from the State of
Hawai[revaps]i DHHL. When an NHO has a lease or license from DHHL
pursuant to the Hawaiian Homes Commission Act (HHCA), that NHO can
elect to take on any of the responsibilities under Subpart B of the
proposed regulations on its Tribal lands (see proposed Sec. Sec.
10.5(c), 10.6(a), and 10.7(c)).
29. ``Unclaimed Cultural Items''
The Department proposes to revise the term ``unclaimed cultural
items'' for clarity. The proposed revision retains the same central
requirement of the existing definition but removes the more regulatory
process part of the existing regulation to the regulatory text (see
proposed Sec. 10.7(e)).
30. ``United States''
The Department proposes to add a new term ``United States'' to
provide a geographical descriptor throughout this part.
[[Page 63216]]
D. Section 10.3 Cultural and Geographical Affiliation
This section of the proposed rule would improve the organizational
structure of the existing regulations and better align the requirements
with Congressional intent. The Department proposes to relocate existing
regulatory provisions at Sec. 10.14 to Subpart A-General.
The proposed revisions would remove the criteria for determining
lineal descent in the existing regulations at Sec. 10.14(b), as it is
repetitive of the definition for lineal descendant and not necessary.
In conjunction with the defined term ``affiliation,'' the proposed
revisions reflect the intent of Congress that for purposes of
disposition or repatriation, all that is required is a reasonable
connection between human remains or cultural items and an Indian Tribe
or NHO (H. Rep. 101-877, at 14, and S. Rep. 101-473, at 6). The
proposed revisions identify two kinds of affiliation for purposes of
disposition or repatriation: cultural or geographical.
1. Cultural Affiliation
For cultural affiliation, the proposed revisions clarify the
existing requirements by moving ``cultural affiliation'' to this
section to include not only what it is, but also how it is established
and what it does not require. The proposed revisions simplify the
information and criteria needed to identify cultural affiliation by
removing extraneous or duplicative language that has often been a
barrier to repatriation. The proposed revisions also clearly explain
that more than one Indian Tribe or NHO may have a cultural affiliation
to human remains or cultural items.
For example, assume that the only information available for
individual human remains shows that the human remains were removed from
a particular site and that the human remains have a date range spanning
1,000 years. Indian Tribe A has a relationship of shared group identity
to an earlier group who occupied the site at some point during that
1,000-year span. Similarly, Indian Tribe B has a shared group identity
with a different earlier group that also occupied the site at different
point during that 1,000-year span. Even though Indian Tribe A and
Indian Tribe B do not themselves have a relationship of shared group
identity, both Indian Tribe A and Indian Tribe B have a cultural
affiliation with the human remains from that site.
In response to consultation with Indian Tribes and NHOs, the
Department emphasizes that ``a preponderance of the evidence'' is a
similar standard to a ``reasonableness'' requirement, both of which are
common legal concepts. In both standards, a ``more likely than not''
assessment is required, such that the reasonableness requirement for
tracing cultural affiliation is satisfied by a preponderance of the
evidence establishing cultural affiliation. Congressional report
language states cultural affiliation ``shall be established by a simple
preponderance of the evidence,'' and that phrase is used in the
proposed revisions.
2. Geographical Affiliation
For geographical affiliation, the proposed revisions draw on
language in the Act requiring the identification of ``the geographical
and cultural affiliation'' (25 U.S.C. 3003(a)) and include the
information and criteria needed to establish geographical affiliation.
The proposed revisions clarify, as under the existing regulations at
Sec. 10.11, ``geographical affiliation'' is identified by tracing a
relationship between an Indian Tribe or NHO and a geographic area
connected to the human remains or cultural items. While cultural
affiliation requires a simple preponderance of the evidence given the
information available, geographical affiliation only requires that the
information be available. The proposed revisions also clearly explain
that more than one Indian Tribe or NHO may have a geographical
affiliation to human remains or cultural items.
For example, assume that the geographic area connected to human
remains and associated funerary objects is the Tribal lands of Indian
Tribe L, the adjudicated aboriginal land of Indian Tribe N, and the
acknowledged aboriginal land of Indian Tribes M, N, O, and P. All the
Indian Tribes (L, M, N, O, and P) have a geographical affiliation with
the human remains. Any information beyond the geographic area, for
example when the human remains or cultural items were removed or types
of associated funerary objects, may provide information sufficient to
identify a more specific cultural affiliation to one or more of the
Indian Tribes but must not be used to limit the geographical
affiliation to all the Indian Tribes.
The proposed revision states (in response to consultation with
Indian Tribes and NHOs) that the information used to identify
geographical affiliation may provide information sufficient to also
establish cultural affiliation. Because geographical information is one
line of information that may be used for cultural affiliation, that
information alone may be sufficient to establish cultural affiliation
as well as geographical affiliation.
3. Multiple Affiliations and Closest Affiliations
The proposed revisions provide clear instructions to Indian Tribes,
NHOs, museums, and Federal agencies for making and considering single
claims or requests and for resolving competing claims or requests by
identifying the Indian Tribe or NHO with the closest affiliation (see
proposed Sec. 10.3(c) and (d)). The proposed revisions clearly explain
that two or more Indian Tribes or Native Hawaiian organization may
submit a claim for disposition or a request for repatriation and may
claim joint disposition or request joint repatriation of human remains
or cultural items. Joint claims or requests are considered a single
claim or request and not competing claims or requests.
In rare cases when there are competing claims or requests, museums
and Federal agencies must identify the ``closest cultural affiliation''
(25 U.S.C. 3002(a)(2)(B)) and the ``most appropriate claimant'' (25
U.S.C. 3005 (e)). The Act provides no process for making these
identifications, but in the inventory and notification provisions of
the Act (25 U.S.C. 3003(d)(2)(B) and (C)), there is a distinction made
between two types of cultural affiliation: clearly identifiable as to
tribal origin and not clearly identifiable as being culturally
affiliated but determined by a reasonable belief. The Department
proposes to use this language to inform how a museum or Federal agency
might resolve competing claims for disposition or requests for
repatriation. The standard for establishing cultural affiliation in the
first instance is always a preponderance of the evidence, but when
multiple Indian Tribes or NHOs meet that standard and have submitted
competing claims or requests, these paragraphs provide a priority order
to differentiate between culturally affiliated Indian Tribes. In
resolving competing claims or requests, a museum or Federal agency may
identify one or more Indian Tribes or NHOs with the closest
affiliation.
Table 4 shows how the Department proposes to reorganize the
existing regulatory requirements regarding cultural or geographical
affiliation.
[[Page 63217]]
Table 4--Cross-Reference of Existing Provisions to Proposed Sec. 10.3
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.14(c)..................... Criteria for determining ............................. Cultural affiliation.
cultural affiliation. (1) Information. (2)
Criteria. (3) Multiple
cultural affiliations.
10.14(f)..................... Standard of proof....... 10.3(a)......................
10.14(d)..................... A finding of cultural
affiliation . . .
10.14(e)..................... Evidence................
10.11(c)..................... Disposition of 10.3(b)...................... Geographical
culturally affiliation. (1)
unidentifiable human Information. (2)
remains and associated Criteria. (3) Multiple
funerary objects. geographical
affiliations.
New..................... 10.3(c)...................... Multiple affiliations.
New..................... 10.3(d)...................... Closest affiliation.
10.14(a)..................... General................. ............................. Removed.
10.14(b)..................... Criteria for determining 10.2......................... Lineal descendant means.
lineal descent.
----------------------------------------------------------------------------------------------------------------
E. Section 10.4 General
This section of the proposed rule would provide a general overview
to Subpart B and clarify the responsibilities of Indian Tribes, NHOs,
Federal agencies, and the State of Hawai`i Department of Hawaiian Home
Lands (DHHL) for human remains or cultural items on Federal or Tribal
lands. This section would consolidate general information in the
existing regulations at Sec. Sec. 10.3, 10.4, and 10.5. The Department
proposes to revise the title of Subpart B (in response to consultation
with Indian Tribes and NHOs) to better reflect the intent of Congress
for this section of the Act (25 U.S.C. 3002).
1. Appropriate Official
The Department proposes to employ a new term, ``appropriate
official,'' to denote the person or persons responsible for completing
the regulatory requirements related to a discovery, excavation, and
disposition of human remains or cultural items on Federal or Tribal
lands. The revision would improve consistency with the Act by requiring
certain actions be taken by the appropriate official for an Indian
Tribe, NHO, Federal agency, and DHHL concerning discoveries,
excavations, and disposition on Federal or Tribal lands.
2. Plan of Action
On all Federal lands in the United States or on some Tribal lands
in Hawai`i, the Department proposes (in response to consultation with
Indian Tribes and NHOs) to move the existing regulatory requirement for
a plan of action to the beginning of the subpart. In the existing
regulations, Sec. 10.5(e) requires Federal agency officials to
prepare, approve, and sign a written plan of action after consultation
and before a planned activity that may result in the excavation of
human remains or cultural items. The proposed revisions would require a
plan of action before for any planned activity that may result in the
discovery or excavation of human remains or cultural items as well as
after a discovery of human remains or cultural items and before
authorizing an excavation that may result in the discovery or
excavation of human remains or cultural items. The Department proposes
to simplify the plan of action in three separate steps (see proposed
Sec. 10.4(b)): (1) Step 1--Initiate consultation; (2) Step 2--Consult
with requesting parties; and (3) Step 3--Approve and sign the plan of
action. Consulting parties listed in Sec. 10.4(b)(1) would not be
considered the same as consulting parties under other applicable law,
specifically under 36 CFR part 800. The Department proposes to use
specific terms to clarify the distinction between a consulting party
(as defined in Sec. 10.4(b)(1)(i)) and a requesting party (any
consulting party that submits a written request to consult).
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that consultation seek consensus, to the
maximum extent possible, on the content of the plan of action. In
addition, a record of consultation must include the effort made to seek
consensus or describe efforts to identify a mutually agreeable
alternative. The consultation record must note the concurrence,
disagreement, or nonresponse of the requesting parties to the plan of
action. These requirements are used throughout the proposed regulations
whenever consultation with requesting parties is required. The
Department proposes to remove some of the existing requirements for a
plan of action that are not necessary and overly intrusive. Depending
on the results of consultation, any of these elements may be included
in a plan of action but are no longer the minimum requirement for a
plan of action. Specifically, the Department proposes to remove the
following items from a plan of action in the existing regulations at
Sec. 10.5(e):
(1) The kinds of objects considered as cultural items;
(2) The specific information used to determine disposition;
(4) The planned archaeological recording;
(5) The kinds of analysis planned for each kind of object; and
(8) The nature of reports to be prepared.
The Department proposes to include in a plan of action the
preference of requesting parties for stabilizing and covering human
remains or cultural items in situ, protecting and relocating human
remains or cultural items, if removed, or providing appropriate
treatment, care, or handling of human remains or cultural items. For
example, under the proposed regulations, a plan of action might
indicate that requesting parties prefer protection of human remains or
cultural items in situ, but when that is not possible, the plan of
action may require that the appropriate official protect and relocate
the human remains or cultural items by burying them in a nearby
location. Once disposition under Sec. 10.7 is complete (including any
required notice publication and claim), the claimants may determine the
care, custody, or physical transfer of the human remains or cultural
items, including deciding to leave the human remains or cultural items
buried in the nearby location.
In response to consultation with Indian Tribes and NHOs and based
the experience of Federal agencies with these requirements since 1990,
the Department is aware of a preference by some Indian Tribes for
allowing natural exposure or erosion of human remains or cultural items
to continue, without covering or removing human remains or cultural
items. In those cases, a plan of action may indicate that requesting
parties prefer the appropriate official take no action upon the
discovery of human remains or cultural items that
[[Page 63218]]
are naturally exposed. The plan of action should also indicate what the
appropriate official will do if the human remains or cultural items
cannot be left in place. If disposition under Sec. 10.7 is required
because the human remains or cultural items could not be left in place,
the claimants (after notice publication and claim, if required) may
determine the care, custody, or physical transfer of the human remains
or cultural items, including returning them to a safe location to
continue a natural process.
3. Comprehensive Agreement
The Department proposes to retain the option for Federal agencies
or DHHL to enter into a comprehensive agreement for all land managing
activities on Federal or Tribal lands under its responsibility. The
proposed regulations would require a comprehensive agreement be
consented to by a majority of requesting parties and include, at
minimum, the information required in a plan of action.
Table 5 shows how the Department proposes to reorganize the
existing regulatory requirements on Federal or Tribal lands after
November 16, 1990.
Table 5--Cross-Reference of Existing Provisions to Proposed Sec. 10.4
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.3(c)...................... Procedures.............. 10.4......................... To ensure compliance
(1) . . . determine with the Act, any
whether a planned permit, license, lease
activity may result . . . . .
..
10.4(g)...................... Notification requirement
in authorizations.
New..................... 10.4(a)...................... Appropriate official.
10.5(b)...................... Initiation of 10.4(b)...................... Plan of action.
10.5(a)...................... consultation. (1) Step 1: Initiate
10.5(c)...................... Consulting parties...... consultation
Provision of information
10.5(d)...................... Requests for information (2) Step 2: Consult with
requesting parties.
10.5(e)...................... Written plan of action.. (3) Step 3: Approve and
sign the plan of
action.
10.5(f)...................... Comprehensive agreements 10.4(c)...................... Comprehensive agreement.
10.3(c)...................... Procedures.............. 10.4(d)...................... Federal agency
(3) planned activity coordination with other
subject to NHPA. laws.
10.4(f)...................... Federal agency
officials.
10.5(g)...................... Traditional religious ............................. Removed. See Sec. Sec.
leaders. 10.2 and 10.4(b)(2).
----------------------------------------------------------------------------------------------------------------
F. Section 10.5 Discovery
This section of the proposed rule would implement the requirements
of the Act regarding a discovery of human remains or cultural items on
Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(d)).
This section would include and clarify the requirements in the existing
regulations at Sec. 10.4(b) through (e) regarding discoveries.
1. Reporting and Documentation Requirements Upon Discovery
The proposed language in Sec. 10.5(a) and (b) would prescribe
specific reporting and documentation procedures that any person who
knows or has reason to know of a discovery must take upon discovery of
human remains or cultural items. Specifically, the proposed language
would:
Establish reporting timeframes (immediately with written
documentation in 24 hours), requirements to secure and protect the
discovery, and documentation requirements to include the location and
contents of the discovery.
Provide clear instructions for reporting the discovery in
Table 1 to Sec. 10.5, which identifies the appropriate official and
the additional point of contact who must be informed of a discovery,
based on the location of the discovery.
2. Timeframes To Respond to Discovery
The Department also proposes to require the appropriate official
respond to any discovery on Federal or Tribal lands and keep the
existing regulations' timeline of three days. On Tribal lands, the
existing regulations only recommend actions by an appropriate official
by using the verb ``may'' in the existing regulation at Sec. 10.4(e).
The Department proposes to change this to ``require,'' on Tribal lands
in Alaska and the continental United States, that the appropriate
official for an Indian Tribe respond to a discovery and certify that an
activity may resume (see proposed Sec. 10.5(c) and (e)), with an
option to delegate this responsibility to the Bureau of Indian Affairs
or another Federal agency. On Tribal lands of an NHO, the NHO may
accept responsibility for discoveries on its Tribal lands; otherwise
DHHL is responsible for discoveries on Tribal lands in Hawai`i. Table 6
shows the name of each requirement and a shortened version of the
deadline in the proposed revisions.
Table 6--Discovery
------------------------------------------------------------------------
Requirement Deadline (no later than)
------------------------------------------------------------------------
Report a discovery..................... 24 hours after a discovery.
Cease any nearby activity.............. Immediately.
Respond to a discovery................. 3 days after a report of a
discovery.
Approve and sign a plan of action...... 30 days after a report of a
discovery.
Certify an activity may resume......... 35 days after a report of a
discovery.
Resume an activity..................... 30 days after certification.
------------------------------------------------------------------------
3. Plan of Action
On all Federal lands in the United States or on Tribal lands in
Hawai`i, the Department proposes (in response to consultation with
Indian Tribes and NHOs) to revise the existing notification and
consultation requirements for discoveries under Sec. 10.4(d)(iii) and
(iv) by requiring a plan of action. Although
[[Page 63219]]
the Act does not require consultation on a discovery, the Department
proposes to require the appropriate official, in consultation with
Indian Tribes or NHOs, prepare, approve, and sign a plan of action
within 30 days of a discovery. The Department hopes that by requiring a
plan of action after a discovery, Federal agencies and DHHL will be
encouraged to engage in consultation earlier and develop a plan of
action prior to a discovery. The requirement for a plan of action is
waived if, prior to the discovery, the appropriate official approved
and signed a comprehensive agreement or plan of action, or if an NHO
agreed to be responsible for discoveries on its Tribal lands.
4. Certification and Resumption of Activity
The Department proposes to provide additional time for the
appropriate official to certify an activity related to a discovery may
resume. In the existing regulations at Sec. 10.4(d) and (e), the
appropriate official on Federal or Tribal lands must certify receipt of
a notification of a discovery within three days and the activity
related to the discovery may resume 30 days later. The existing
regulations do not allow for any additional time and do not provide a
mechanism for the appropriate official to prevent an activity from
resuming 33 days after a discovery.
The Department proposes to build in an additional 35 days, if
needed, for consultation with Indian Tribes and NHOs, evaluation of the
discovery, and to carry out a plan of action (see proposed Sec.
10.5(e)). The Department is specifically seeking input during public
comment on this timeline. The Act requires that an activity may resume
30 days after the appropriate official certifies that notification of a
discovery was received (25 U.S.C. 3002(d)(1), last sentence). The
legislative history clearly indicates that reporting a discovery is not
meant to be an impediment to resuming a lawful activity on Federal or
Tribal lands. However, the Department proposes to allow an additional
35 days in the timeline by separating the requirements for responding
to a discovery within 3 days from the requirements for certifying that
an activity may resume within 30 days. This would allow a maximum of 65
business days (35 business days to certify and 30 business days later
resume the activity) after a discovery on Federal or Tribal lands
before an activity could resume. If the appropriate official determines
an earlier date for resuming the activity is acceptable, there is no
restriction against certifying the activity may resume within less than
65 days. The proposed change would allow the appropriate official more
time, if needed, to consult with Indian Tribes and NHOs, evaluate the
potential need for an excavation, and carry out the steps in a plan of
action.
Table 7 shows how the Department proposes to reorganize the
existing regulatory requirements regarding a discovery.
Table 7--Cross-Reference of Existing Provisions to Proposed Sec. 10.5
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.4(b)...................... Discovery............... 10.5(a)...................... Report any discovery.
10.4(c)...................... Ceasing activity........ 10.5(b)...................... Cease any nearby
activity.
10.4(d)...................... (1) As soon as possible, 10.5(c)...................... Respond to a discovery.
10.4(e)...................... but no later than three
(3) working days . ..
10.4(d)...................... (1) (iv) Initiate 10.5(d)...................... Approve and sign a plan
consultation. of action.
10.4(d)...................... (2) Resumption of 10.5(e)...................... Certify that an activity
10.4(e)...................... activity. may resume.
10.4(a)...................... General................. ............................. Removed.
----------------------------------------------------------------------------------------------------------------
G. Section 10.6 Excavation
This section of the proposed rule would implement the requirements
of the Act regarding excavation of human remains or cultural items on
Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(c)).
This section would include and clarify the requirements in the existing
regulations at Sec. 10.3(b) and (c) regarding excavations.
1. Jurisdiction to Issue ARPA Permit
The Department proposes to revise the existing regulations to
clarify the jurisdiction of a Federal agency to issue a permit under
Section 4 of the Archaeological Resources Protection Act (ARPA) for an
excavation. This proposed change, based on the legislative history of
NAGPRA, would address requests from Federal agencies and DHHL to
correct the scope of jurisdiction in the existing regulations at Sec.
10.3(b)(1), which requires the Bureau of Indian Affairs to take certain
actions on private lands for which they do not have jurisdictional
authority. The Department proposes that an excavation on Federal or
Tribal lands would only require a permit under the ARPA (16 U.S.C.
470cc) if the excavation would occur on ``Indian lands'' or ``public
lands'' under ARPA (referred to and defined as ``ARPA Indian lands''
and ``ARPA public lands''), subject to the exemptions in the ARPA
Uniform Regulations. ARPA's definition of ``Indian lands'' and ``public
lands'' is narrower than ``Tribal lands'' and ``Federal lands'' under
NAGPRA, which is why the Department proposes to include the ARPA
definitions in these proposed regulations. The legislative history of
NAGPRA makes clear that Congress intended to protect human remains and
cultural items by requiring ARPA permits be issued for NAGPRA
excavations when a permit is also required under ARPA.
2. Requirement for Consent to Excavation
Consistent with the Act, the proposed language in Sec. 10.6(a)
would require, on Tribal lands, an Indian Tribe or NHO to consent in
writing to an excavation. On Tribal lands in Alaska and the continental
United States, an Indian Tribe may delegate this responsibility to the
Bureau of Indian Affairs or another Federal agency. On Tribal lands of
an NHO, the NHO may accept responsibility for excavations on its Tribal
lands; otherwise DHHL is responsible for excavations on Tribal lands in
Hawai`i.
3. Requirement for Plan of Action Prior To Authorizing Excavation
On all Federal lands in the United States or on Tribal lands in
Hawai`i, the Department proposes (in response to consultation with
Indian Tribes and NHOs) to revise the notification and consultation
requirements for excavations under existing Sec. 10.3(c)(1)
[[Page 63220]]
by requiring a plan of action prior to authorizing an excavation of
human remains or cultural items. The Act requires consultation with the
appropriate Indian Tribe or NHO prior to permitting an excavation, and
the Department proposes to require the appropriate official, in
consultation with Indian Tribes and NHOs, prepare, approve, and sign a
plan of action prior to authorizing an excavation of human remains or
cultural items as proof of consultation. The Department hopes that by
requiring a plan of action before authorizing an excavation, Federal
agencies and DHHL will be encouraged to engage in consultation earlier
and develop a plan of action prior to any need for an excavation. The
requirement for a plan of action is waived if, prior to authorizing the
excavation of human remains or cultural items, the appropriate official
approved and signed a comprehensive agreement or plan of action, or if
an NHO agreed to be responsible for excavations on its Tribal lands.
Table 8 shows how the Department proposes to reorganize the
existing regulatory requirements regarding excavation and consultation.
Table 8--Cross-Reference of Existing Provisions to Proposed Sec. 10.6
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.3(b)...................... Specific Requirements. 10.6......................... A permit under Section 4
(1) . . . following the of ARPA is required
requirements of ARPA . when . . .
. .
10.3(b)...................... (2) . . . in the case of 10.6(a)...................... On Tribal lands.
tribal lands, consent
of, the appropriate . .
.
(4) Proof of the
consultation or consent
is shown . . ..
10.3(c)...................... Procedures.
(4) . . . on tribal
lands, the Indian tribe
or NHO may . . ..
10.3(c)...................... Procedures.............. 10.6(b)...................... On Federal lands in the
(1) . . . the Federal United States or on
agency official must Tribal lands in
notify in writing . . .. Hawai`i.
(2) . . . must complete
a written plan of
action . . ..
10.3(a)...................... General................. ............................. Removed.
10.3(b)...................... (3) The disposition of ............................. Removed.
the objects . . ..
----------------------------------------------------------------------------------------------------------------
H. Section 10.7 Disposition
This section of the proposed rule would implement the requirements
of the Act regarding the disposition of human remains or cultural items
removed from Federal or Tribal lands after November 16, 1990 (25 U.S.C.
3002(a) and (b)). This section would include and clarify the
requirements in the existing regulations at Sec. Sec. 10.6 and 10.7
regarding dispositions.
1. Consistent Use of the Term ``Disposition''
The Department proposes to replace the term ``disposition'' in the
existing regulations with two separate terms: ``disposition'' and
``repatriation.'' In the proposed revision, ``disposition'' applies
consistently throughout but only to Subpart B. In the existing
regulations, ``disposition'' and the undefined word custody are used
interchangeably at times while ``disposition'' is also used as a catch-
all term for any transfer of human remains or cultural items under the
regulations. The Act uses the terms ``ownership,'' ``right of control
of the disposition,'' and ``disposition of and control over'' in
describing this process (25 U.S.C. 3002). In the proposed revision,
``disposition'' is the title of this section and means the appropriate
official acknowledges and recognizes a lineal descendant, Indian Tribe,
or Native Hawaiian organization has control or ownership of human
remains or cultural items removed from Federal or Tribal lands.
2. Timeline for Disposition
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that disposition occur as soon as
possible, but no later than one year, after the discovery or excavation
of human remains or cultural items on Federal or Tribal lands. In the
existing regulations, there is no deadline for disposition, and the
Department is aware of many instances where human remains or cultural
items have not completed the regulatory process for years or even
decades after discovery or excavation. This timeline will ensure that,
on all Federal lands in the United States or on Tribal lands in
Hawai`i, when disposition cannot be completed within one year, the
Federal agency or DHHL reports the human remains or cultural items to
the Manager, National NAGPRA Program.
The Department proposes to clarify the requisite steps for
disposition by establishing a step-by-step process with corresponding
deadlines. Table 9 shows the name of each step and a shortened version
of the deadline in the proposed revisions.
Table 9--Step-by-Step Process for Disposition
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Inform consulting parties...... 6 months after a discovery or
excavation.
Step 2--Submit a notice of intended 6 months after Step 1.
disposition.
Step 3--Receive and consider a claim Any time after notice
for disposition. publication.
Step 4--Respond to a claim for 30 days after Step 3.
disposition.
Step 5--Disposition of the human 90 days after Step 4.
remains or cultural items.
------------------------------------------------------------------------
[[Page 63221]]
3. Priority for Disposition
The Department proposes to simplify and clarify information
contained in the existing regulations at Sec. 10.6(a). The proposed
revisions are consistent with the Act and the existing regulations in
establishing the priority for disposition (see proposed Sec. 10.7(a)),
which can be simplified to be:
(1) Lineal descendants,
(2) Tribal lands Indian Tribe or NHO,
(3) Indian Tribe or NHO with clear cultural affiliation,
(4) Indian Tribe or NHO with reasonably identified cultural
affiliation,
(5)(i) Adjudicated aboriginal land Indian Tribe, and
(5)(ii) Indian Tribe with a stronger cultural relationship than
(5)(i).
4. Align Disposition to a Lineal Descendant or on Tribal Lands to the
Act
The Department proposes to remove the requirement in the existing
regulations at Sec. 10.6(c) for publishing notices or requiring claims
for disposition to a lineal descendant. The existing regulations do not
provide any requirements for disposition of human remains or cultural
items from Tribal lands. The Department proposes to require written
documentation for disposition to a lineal descendant or on Tribal lands
to better align with the Act (25 U.S.C. 3002(a)(1) and (2)(A); note the
lack of a requirement for a notice or claim). On Tribal lands in Alaska
and the continental United States, an Indian Tribe may delegate its
responsibilities for disposition to the Bureau of Indian Affairs or
another Federal agency. On Tribal lands of an NHO, the NHO may accept
responsibility for dispositions on its Tribal lands; otherwise DHHL is
responsible for dispositions on Tribal lands in Hawai`i.
5. Revise Requirements for Notices and Claims for Disposition
The Department proposes to revise language in the existing
regulations at Sec. 10.6(c) describing the requirements for Federal
agencies to publish notices, receive claims, and complete dispositions
in one paragraph with long, complex sentences. On all Federal lands in
the United States and on Tribal lands in Hawai`i, the proposed
revisions would provide five clearly written steps to complete the
disposition of human remains or cultural items and establish deadlines
and timelines.
The Department proposes to change the notice publication
requirement in the existing regulations at Sec. 10.6(c) that requires
two publications of a notice in local area newspapers at least one week
apart. This requirement has become increasingly burdensome given the
general changes in newspaper publications since 1995. The Department
proposes to require only one publication in the Federal Register by the
Manager, National NAGPRA Program.
The Department proposes a new requirement for completing
dispositions by sending claimants and the Manager, National NAGPRA
Program, a written disposition statement. In the case of joint claims
for disposition, the disposition statement would identify and be sent
to all claimants. In the case of competing claims for disposition, the
proposed revisions give guidance and timelines for identifying the most
appropriate claimant and completing the disposition. The Act requires
that the Federal agency apply the priority order and determine the
``closest cultural affiliation'' based on the evidence before it (25
U.S.C. 3002(a)(2)(B)) and does not provide for a stay of disposition to
acquire further evidence or information.
6. Unclaimed Human Remains or Cultural Items
The Department proposes to move the existing section at Sec. 10.7
to be a paragraph under the larger disposition section and modify the
existing timeline. On all Federal lands in the United States or on
Tribal lands in Hawai`i, when disposition cannot be completed within
one year of a discovery, excavation, or notice of intended disposition,
the proposed revisions require that the Federal agency or DHHL must
report the human remains or cultural items to the Manager, National
NAGPRA Program. These provisions would apply to any human remains or
cultural items that were discovered or excavated on Federal lands in
the United States or on Tribal lands in Hawai`i after November 16,
1990, even if it has been more than one year since the discovery,
excavation, or notice of intended disposition. Federal agencies and
DHHL should submit a list of all unclaimed human remains or cultural
items removed from Federal or Tribal lands. As in the existing
regulations at Sec. 10.7(c) through (e), the proposed revisions would
provide a process whereby a Federal agency or DHHL may transfer or
reinter unclaimed human remains or cultural items, after it publishes a
notice of proposed transfer or reinterment.
The Department proposes to clarify the requisite steps for
unclaimed human remains or cultural items by establishing a step-by-
step process with corresponding deadlines. Table 10 shows the name of
each step and a shortened version of the deadline in the proposed
revisions.
Table 10--Step-by-Step Process for Unclaimed Human Remains or Cultural
Items
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Submit a list of unclaimed 1 year after effective date,
cultural items. update by Dec 31 each year.
Step 2--Agree to transfer or decide to Any time after Step 1.
reinter human remains or cultural
items.
Step 3--Submit a notice of proposed 30 days after Step 2.
transfer or reinterment.
Step 4--Transfer or reinter the human 90 days after Step 3.
remains or cultural items.
------------------------------------------------------------------------
Table 11 shows how the Department proposes to reorganize and revise
the existing regulatory requirements regarding disposition.
Table 11--Cross-Reference of Existing Provisions to Proposed Sec. 10.7
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.6(a)...................... Priority of custody..... 10.7(a)...................... Priority for
disposition.
New..................... 10.7(b)...................... To a lineal descendant.
10.15(d)..................... Savings provisions...... (3) After the
disposition statement
is sent . . .
[[Page 63222]]
New..................... 10.7(c)...................... On Tribal lands.
10.15(d)..................... Savings provisions...... (4) After the
disposition statement
10.10(c)..................... (3) . . . from expressly
relinquishing title to
. .
10.6(c)...................... Final notice, claims and 10.7(d)...................... On Federal lands in the
disposition with United States or on
respect to Federal Tribal lands in
lands. Hawai`i.
(1) Step 1: Inform
consulting parties.
(2) Step 2: Submit a
notice of intended
disposition.
(3) Step 3: Receive and
consider a claim for
disposition.
(4) Step 4: Respond to a
claim for disposition.
(5) Step 5: Disposition
of the human remains or
cultural items.
10.15(d)..................... Savings provisions...... (5)(iii) After the
disposition statement .
. .
10.10(c)..................... (3) . . .from expressly ........................
relinquishing title to
. . .
10.7......................... Disposition of unclaimed 10.7(e)...................... Unclaimed human remains
. . .. or cultural items . . .
10.7(b)...................... (1) Submit a list of (1) Step 1: Submit a
items . . . list of unclaimed human
remains or cultural
items.
10.7(c)...................... . . . upon request, (2) Step 2: Agree to
transfer . . . transfer or decide to
reinter human remains
or cultural items.
(3) Step 3: Submit a
notice of proposed
transfer or
reinterment.
(4) Step 4: Transfer or
reinter the human
remains or cultural
items.
(4)(ii) After transfer
or reinterment occurs .
. .
10.7(d)...................... . . . reinter . . .
10.7(e)...................... (2) Publish a notice of
the proposed transfer
or reinterment . . .
New.....................
10.15(d)..................... Savings provisions.
10.10(c)..................... (3) . . . from expressly ........................
relinquishing title to
. . .
10.6(b)...................... Custody of human remains Removed.
. . ..
10.7(b)...................... (2) Care for and manage 10.1(d)...................... Duty of care.
. . ..
(3) To the maximum
extent feasible . . ..
10.7(a)...................... This section carries out Removed.
. . ..
10.7(e)...................... (1) Submit the list ........................
required . . ..
(3) Send to the Manager,
National NAGPRA Program
. . .
----------------------------------------------------------------------------------------------------------------
I. Section 10.8 General
This section of the proposed rule would provide a general overview
to Subpart C and clarify the requirements for museums and Federal
agency with possession or control of holdings or collections. The
section would consolidate general information in the existing
regulations at Sec. Sec. 10.8(a), 10.9(a), 10.11(e), and 10.17(a). The
Department proposes to revise the title of Subpart C (in response to
consultation with Indian Tribes and NHOs) to better reflect the intent
of Congress for these sections of the Act (25 U.S.C. 3003-3005).
1. Clarify Who Has Responsibility for Holdings or Collections
The Department proposes to clarify, regardless of the physical
location of a holding or collection, who is responsible for carrying
out the requirements of the Act. The proposed revisions would provide
both museums and Federal agencies with instructions on determining
possession or control of holdings or collections. As discussed in the
definition section, whether a museum or Federal agency has possession
or control is a legal determination that must be made on a case-by-case
basis. However, when a museum with custody of human remains or cultural
items cannot identify any person, institution, State or local
government agency, or Federal agency with possession or control, the
museum should presume it has possession or control for purposes of
Subpart C. When a Federal agency cannot determine if human remains or
cultural items came into its possession or control before or after
November 16, 1990, or cannot identify the type of land the human
remains or cultural items were removed from, the Federal agency should
presume it has possession or control for purposes of Subpart C.
2. Museums With Custody of a Federal Agency Holding or Collection
The Department proposes two new requirements aimed at locating
Federal collections in non-Federal museums (see proposed Sec.
10.8(c)). Specifically, the proposed language would require that:
A museum must submit a statement describing Federal
holdings or collections in its custody to the responsible Federal
agency and to the Manager, National NAGPRA Program, no later than one
year after the effective date of the final rule; and
Within 120 days of receiving such a statement, the Federal
agency must acknowledge its possession or control of a holding or
collection, acknowledge that it does not have possession or control of
a holding or collection, or acknowledge it has joint possession or
control with the museum.
These new requirements are a direct response to requests from
Federal agencies and Indian Tribes who struggle to locate Federal
collections in non-Federal museums. In 2010, the Government
Accountability Office commented on this issue in its report on Federal
agency compliance with the Act. Addressing this issue, the Department's
detailed response to the Government Accountability Office's
[[Page 63223]]
report stated, ``These instances illustrate the importance of
repositories notifying agencies upon discovery of Federal collections
in their possession.'' This requirement is consistent with the
conditions for repositories holding Federal collections under 36 CFR
part 79, its referenced Federal property management authorities, and
the Secretary's authority to prescribe regulations relating to Indian
affairs under 25 U.S.C 9 (United States v. Eberhardt, 780 F.2d 1354,
1360 (9th Cir.1986)).
If a museum has custody of a holding or collection from multiple
agencies or is unsure which Federal agency has possession or control of
the holding or collection, the museum must send information on the
holding or collection to any Federal agency that might have an interest
and to the Manager, National NAGPRA Program. If a museum is unsure of
who the appropriate point of contact is for a Federal agency, the
Department recommends contacting the Federal Preservation Officer to
assist in identifying the appropriate agency contact. The Advisory
Council on Historic Preservation keeps an updated list at https://www.achp.gov/protecting-historic-properties/fpo-list. In responding to
such statement, a Federal agency need not perform exhaustive research
to determine whether it has possession or control of the collection,
but it must merely assess the museum's statement on possession or
control based on the information available to the Federal agency.
3. Museums With Custody of Other Holdings or Collections
The Department proposes a new requirement for museums with custody
of holdings or collections for which the museum cannot identify who has
possession or control. The museum would be required to submit a
statement describing holdings or collections in its custody for which
it cannot identify any person, institution, State or local government
agency, or Federal agency with possession or control. The statement
would be sent to the Manager, National NAGPRA Program, no later than
one year after the effective date of the final rule. This new
requirement is a direct response to requests from Indian Tribes who
struggle to determine their rights to holdings or collections in the
custody, but not in the possession or control, of a museum. The
Manager, National NAGPRA Program, would share this information with
appropriate parties to determine possession and control and proceed
with the inventory, summary, and repatriation processes.
Table 12 shows how the Department proposes to reorganize and add to
the existing regulatory requirements for museum or Federal agency
holdings or collections.
Table 12--Cross-Reference of Existing Provisions to Proposed Sec. 10.8
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.8(a).................... General.................... 10.8(a)................... Museum holding or
collection.
10.9(a) 10.8(b)................... Federal agency holding or
collection
New........................ 10.8(c)................... Museums with custody of a
Federal agency holding or
collection.
10.8(d)................... Museums with custody of
other holdings or
collections.
10.11(e)................... Disputes................... 10.8(e)................... Contesting actions on
repatriation.
10.17(a)................... Formal and informal
resolutions.
----------------------------------------------------------------------------------------------------------------
J. Section 10.9 Repatriation of Unassociated Funerary Objects, Sacred
Objects, and Objects of Cultural Patrimony
This section of the proposed rule would implement the requirements
of the Act regarding summaries of holdings or collections to facilitate
the repatriation of unassociated funerary objects, sacred objects, or
objects of cultural patrimony (25 U.S.C. 3004 and 3005). In response to
consultation with Indian Tribes and NHOs, the Department proposes to
retain the existing requirement that a museum or Federal agency prepare
a summary for any holding or collection that may contain unassociated
funerary objects, sacred objects, or objects of cultural patrimony.
NAGPRA requires ``Each Federal agency or museum which has possession or
control over holdings or collections of Native American unassociated
funerary objects, sacred objects, or objects of cultural patrimony
shall provide a written summary of such objects based upon available
information held by such agency or museum'' (25 U.S.C. 3004(a)). The
statutory language is unclear whether summaries should include only the
unassociated funerary objects, sacred objects, or objects of cultural
patrimony, or the entire collection which may include these cultural
items. The Act was enacted for the benefit of Indians and therefore the
canon of construction applies that statutes ``are to be construed
liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit'' (Yankton Sioux Tribe v. United States
Army Corps of Engineers, 83 F. Supp 2d 1047, 1056 (D.S.D. 2000)). The
legislative history and statutory language are clear that the summary
is intended as an initial step in bringing an Indian Tribe and Native
Hawaiian organization into consultation with a museum or Federal
agency. As Indian Tribes and NHOs noted during consultation,
identification of specific sacred objects or objects of cultural
patrimony must be done in consultation with Indian Tribe or NHO
representatives and traditional religious leaders since few, if any,
museums or Federal agencies have the necessary personnel to make such
identifications. Further, identification of specific unassociated
funerary objects, sacred objects, and objects of cultural patrimony
would require a museum or Federal agency to complete an item-by item
listing first. That would be directly contrary to Congress's admonition
that a summary should not be an object-by-object listing (25 U.S.C.
3004(b)(1)(A)).
The Department proposes to consolidate the requirements for
repatriation of unassociated funerary objects, sacred objects, and
objects of cultural patrimony into a seven-step process in a single
section. These same requirements are currently spread out among the
existing regulations at Sec. Sec. 10.8, 10.10, and 10.13. In addition,
the Department proposes to add more detailed instructions for
evaluating multiple requests for repatriation and resolving stays of
repatriation than currently in the existing regulations at Sec.
10.10(c).
[[Page 63224]]
1. Establish a Step-by-Step Process for Repatriation
The Department proposes to clarify the requisite steps for
repatriation by establishing a step-by-step process with corresponding
deadlines. Table 13 shows the name of each step and a shortened version
of the deadline in the proposed revisions.
Table 13--Step-by-Step Process for Repatriation
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Complete a summary . . ........ 6 months for a new collection.
Step 2--Initiate consultation.......... 30 days after Step 1.
Step 3--Consult with requesting parties 10 days after a request,
propose a timeline for
consultation.
Step 4--Receive and consider a request Any time after a summary is
for repatriation. complete.
Step 5--Respond to a request for 60 days after Step 4.
repatriation.
Step 6--Submit a notice of intended 30 days after Step 5.
repatriation.
Step 7--Repatriation of the 90 days after notice
unassociated funerary object, sacred publication.
object, or objects of cultural
patrimony.
------------------------------------------------------------------------
The intent of these proposed revisions is to correct inaccuracies
and ambiguities in the existing regulations by using a clear, easy to
follow, step-by-step process, and ensure a timely resolution of any
requests for repatriation. For example, the proposed revisions would
clarify, consistent with the Act, that invitations to consult follow
the completion of a summary. In the existing regulations at Sec.
10.8(d)(2), consultation is initiated ``no later than the completion of
the summary process.''
The proposed revisions would also directly address a required step
that lacks explanation or deadlines in the existing regulations. The
Department proposes in Step 5 to require a museum or Federal agency to
respond no later than 60 days after receiving a request for
repatriation. The Department also proposes four specific options for
the response, summarized as follows:
(1) Accept the request and agree to the repatriation.
(2) Reject the request, explain why, and ask for more information.
(3) Assert and prove a right of possession and refuse repatriation.
(4) Determine the most appropriate requestor among competing
requests.
2. Update Deadlines, Establish New Timelines, and Clarify Procedures
To update deadlines for completing a summary, the proposed
revisions integrate all the deadlines for completing a summary in the
first paragraph (see proposed Sec. 10.9(a), Table 1 to Sec. 10.9).
The proposed revisions would identify the past required deadlines for
completing a summary (i.e., November 16, 1993). The Act does not
clearly indicate when museums or Federal agencies must complete a
summary after the statutory deadline for reporting had passed. The
existing regulations at Sec. 10.13 provide these requirements for
newly acquired or newly regulated holdings or collections beginning in
2007. The proposed revisions use the same deadlines as the existing
regulations.
To establish new timelines, the proposed revisions would require in
Step 2 a written request to consult. This new requirement for a written
request to consult (which can include email) is necessary to then
require a museum or Federal agency to respond to the request within 10
days. In this same subparagraph, the proposed revisions require
requests to consult be submitted prior to a notice publication. This
requirement ensures the repatriation process moves forward by certain
deadlines in later steps. After publication of a notice, any party,
even if they have not requested to consult, can make a request for
repatriation as a competing claim (see proposed Sec. 10.9(f)(4)).
To clarify procedures, the proposed revisions would require in Step
4 that any party wishing to make a request for repatriation must do so
in writing. In the existing regulations at Sec. Sec. 10.8 and 10.10,
there are references to making requests for repatriation, but not until
the very end of the process under notification in the existing
regulations at Sec. 10.10(a)(3) is it clear that such a request must
be in writing. The Department is specifically seeking input during
public comment on the deadlines for responding to a request for
repatriation and sending a repatriation statement.
3. Require That Consultation Seek Consensus
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that consultation seek consensus, to the
maximum extent possible. In addition, a record of consultation must
include the effort made to seek consensus or describe efforts to
identify a mutually agreeable alternative. For any determination
considered during the consultation process, the consultation record
must note the concurrence, disagreement, or nonresponse of the
requesting parties. These requirements are used throughout the proposed
regulations whenever consultation with requesting parties is required.
4. Protect Sensitive Information and Disclose Hazardous Substances
The Department proposes to remove the existing regulations at Sec.
10.8(d)(4)(iii) because it requires Indian Tribes and NHOs to provide
information about funerary objects, sacred objects, or objects of
cultural patrimony. This kind of information is often very sensitive
and providing it in writing or in the absence of qualified persons
within the Indian Tribe or NHO might be inappropriate. The proposed
language would still provide for an exchange of information about the
types of objects that might be unassociated funerary objects, sacred
objects, or objects of cultural patrimony, but would do so in a way to
allow for sensitive information to be protected.
In the existing regulations at Sec. 10.10(e), museums and Federal
agencies must inform Indian Tribes and NHOs about any potentially
hazardous substances used to treat any of the objects only after
repatriation has occurred. The proposed revisions would require a
museum or Federal agency to disclose information about the presence of
any potentially hazardous substances first in the summary (see proposed
Sec. 10.9(a)(1)(v)) and second in the notice of intended repatriation
(see proposed Sec. 10.9(f)(1)(vi)).
5. Clarify Requirements for Notices
The proposed revisions clearly outline informational requirements
for a Federal Register notice and do so with greater detail than the
existing
[[Page 63225]]
regulations at Sec. 10.8(f). To protect potentially sensitive
information, the only location information that would be required is
the county and State where the unassociated funerary object, sacred
object, or object of cultural patrimony were removed, if known. Other
informational requirements of a Federal Register notice would include:
(1) the identification of the cultural item specifically as an
unassociated funerary object, a sacred object, an object of cultural
patrimony, or both a sacred object and an object of cultural patrimony;
(2) the requestor, with no requirement that other lineal descendants or
Indian Tribes or NHOs with cultural affiliation be listed in the
notice; and (3) a brief abstract of the information showing the
requestor is a lineal descendant or an Indian Tribe or NHO with
cultural affiliation.
In enumerating the unassociated funerary objects, sacred objects,
or objects of cultural patrimony in a notice, museums and Federal
agencies would be encouraged to count in a way that reduces the chances
of having to issue a correction notice. For example, identifying 3 lots
of shell beads means that no matter the exact number of beads present,
the count would stand, whereas identifying exactly 1,960 shell beads in
a notice would mean that if additional (or fewer) beads were located
before repatriation occurs, a correction notice would be required
because the number of objects would have changed.
6. Written Repatriation Statement
The Department proposes to require a new document to complete the
repatriation of an unassociated funerary object, sacred object, or
object of cultural patrimony to a requestor. A written repatriation
statement would be sent to and would identify all requestors in the
case of joint requests. In accordance with the recommendation by the
Government Accountability Office in a 2010 report on the implementation
of the Act, a copy of the repatriation statement would also be sent to
the Manager, National NAGPRA Program. Table 14 shows how the Department
proposes to reorganize the existing regulatory requirements for
repatriation of unassociated funerary objects, sacred objects, and
objects of cultural patrimony.
Table 14--Cross-Reference of Existing Provisions to Proposed Sec. 10.9
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.8(b)...................... Contents of summaries... 10.9(a)...................... Step 1: Complete a
summary of . . .
10.8(e)...................... Using summaries to (1) A summary must
determine affiliation. include . . .
10.10(e)..................... . . . inform recipients (1)(v) The presence of
of repatriation . . . any potentially
treatment with hazardous substances .
potentially hazardous . .
substances.
10.13(b)..................... New holdings or (2) After [effective
collections. date of final rule], .
. . must submit a
summary . . .
10.13(d)..................... New Federal funds.......
10.8(c)...................... Completion.............. (3) Prior to [effective
date of final rule], .
. . must have submitted
a summary . . .
10.13(b)..................... (3) Previously prepared (4) After [effective
summary or inventory.. date of final rule], .
. . acquires possession
or control of a holding
or collection that
contains . . .
10.8(d)...................... Consultation............ 10.9(b)...................... Step 2: Initiate
(1) Consulting parties.. consultation.
(1) Consulting parties
are . . .
(2) Initiation of (2) An invitation to
consultation. consult must . . .
New..................... (3) Any consulting party
. . . must . . .
(4) . . . identifies a
new consulting party .
. .
10.13(c)..................... New Indian Tribes....... (4)(ii) . . . after the
addition of a Tribal
entity to the list of
federally recognized
Indian Tribes . . .
10.8(d)...................... (4) Requests for 10.9(c)...................... Step 3: Consult with
information. requesting parties
(1) . . . a museum or
Federal agency must ask
for the following
information . . .
New..................... (2) The consultation
process must . . .
(3) The museum or
Federal agency must
prepare a record of
consultation . . .
10.8(d)...................... (3) Provision of (4) . . . A museum or
information. Federal agency must
provide access to the
additional information
. . .
New..................... 10.9(d)...................... Step 4: Receive and
consider a request for
repatriation.
(1) A request for
repatriation . . . must
be received . . .
(2) Requests from two or
more . . .
10.10(a)..................... (1) Criteria............ (3) A request for
repatriation must
satisfy . . .
New..................... 10.9(e)...................... Step 5: Respond to a
request for
repatriation.
10.8(f)...................... Notification............ 10.9(f)...................... Step 6: Submit a notice
of intended
repatriation
10.10(e)..................... . . . treatment with (1)(vi) . . . the
potentially hazardous presence of any
substances. potentially hazardous
10.13(b)..................... (2) Additional pieces or (3) If the number or
fragments.. identity . . . changes
. . .
10.13(e)..................... Amendment of previous
decision.
10.10(a)..................... (3) Notification........ 10.9(g)...................... Step 7: Repatriation of
10.10(d)..................... Place and manner of the unassociated
repatriation.. funerary object, sacred
object, or object of
cultural patrimony.
10.10(f)..................... Record of repatriation..
10.15(d)..................... Savings provisions......
10.10(c)..................... (2) Circumstances where 10.9(h)...................... Evaluating competing
there are multiple requests for
requests for repatriation.
repatriation.
10.10(c)..................... Exceptions.............. 10.9(i)...................... Stay of repatriation.
[[Page 63226]]
10.8(d)...................... (4)(iii) Kinds of Removed.
cultural items.
----------------------------------------------------------------------------------------------------------------
K. Section 10.10 Repatriation of Human Remains and Associated Funerary
Objects
This section of the proposed rule would implement the requirements
of the Act regarding inventories of holdings or collections to
facilitate the repatriation of human remains and associated funerary
objects (25 U.S.C. 3003 and 3005). The Department proposes to
consolidate the requirements for repatriation of human remains and
associated funerary objects into an eight-step process in a single
section. These same requirements are currently spread out among the
existing regulations at Sec. Sec. 10.9, 10.10, 10.11, and 10.13. In
addition, the Department proposes to add more detailed instructions for
evaluating multiple requests for repatriation and resolving stays of
repatriation than currently in the existing provisions at Sec.
10.10(c).
1. Eliminate ``Culturally Unidentifiable''
On March 15, 2010, the Department issued a final rule with request
for comment that codified procedures for the disposition of culturally
unidentifiable Native American human remains in the possession or
control of museums or Federal agencies (75 FR 12378, March 15, 2010).
These procedures require museums and Federal agencies to consult with,
and transfer control of, culturally unidentifiable human remains to the
Indian Tribes and NHOs from whose Tribal lands or from whose aboriginal
lands the human remains were removed.
Comments on the March 15, 2010, final rule raised concerns that the
financial burden on museums of consultation and disposition of
culturally unidentifiable human remains would be ``tremendous,''
``onerous,'' ``overwhelming,'' ``ruinous,'' or ``significant.''
However, since the Act became law in 1990, museums and Federal agencies
have accounted for over 84,000 Native American human remains in
notices, including over 21,000 culturally unidentifiable human remains,
with no indication that a single museum has suffered overwhelming or
ruinous consequences from compliance with the Act. Every year since
1994, Congress has provided approximately $2 million dollars in grant
funds for consultation and repatriation activities to assist in
compliance with the Act.
Comments for the March 15, 2010, final rule also raised questions
about what types of relationships were required for disposition of
culturally unidentifiable human remains. Using a geographic
relationship between an Indian Tribe or NHO and human remains and
associated funerary objects for the purpose of repatriation aligns with
the Act's requirements for museums and Federal agencies to ``identify
the geographical and cultural affiliation of such items'' and with the
general intent of repatriation under the Act. As noted in the response
to comments for the March 15, 2010, final rule, the disposition of
human remains, funerary objects, sacred objects, and objects of
cultural patrimony to Indian Tribes and NHOs based on criteria other
than cultural affiliation was clearly anticipated by Congress.
Section 3002(a)(2) of the Act which was used as the model for the
March 15, 2010, final rule specifically authorizes disposition of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony removed from Federal or Tribal lands after November 16, 1990
to the Indian Tribe or NHO on whose Tribal lands the human remains or
cultural items were removed, to the Indian Tribe or NHO with cultural
affiliation to the human remains or cultural items, or to the Indian
Tribe having aboriginally occupied the Federal land where the human
remains or cultural items were removed. Significantly, under the Act,
ownership or control of human remains or cultural items based on Tribal
lands origin is given a higher priority than cultural affiliation.
Consistent with the terms of the Act, the 2010 rule codified a process
for disposition of culturally unidentifiable human remains to the
Indian Tribe or NHO from whose Tribal lands, at the time of excavation
or removal, or from whose aboriginal land the human remains were
removed. In addition to the Act, the implementing regulations rely on
the specific recommendations from the Review Committee for disposition
of culturally unidentifiable human remains and additional information
gleaned from culturally unidentifiable inventories. The existing
regulations are consistent with the Department's determination that it
was reasonable and appropriate for the disposition of culturally
unidentifiable human remains to be based on geographical information
given that the designation of ``culturally unidentifiable'' is often
due to a lack of information occasioned by some collection practices
rather than a lack of geographical information.
To streamline the existing regulations at Sec. 10.11 regarding
disposition of human remains and associated funerary objects currently
referred to as culturally unidentifiable, the Department proposes to
incorporate the concepts underlying the existing regulations more
logically into the overall inventory and repatriation process. As a
result, the Department also proposes to generally remove the term
``culturally unidentifiable'' as the streamlining of these concepts
would make this term no longer serve a useful regulatory purpose.
Further, this proposed change is intended to more accurately reflect
the geographically focused analysis required for an inventory of human
remains and associated funerary objects. As discussed above, the
proposed revisions identify two kinds of affiliation for purposes of
repatriation: cultural or geographical. As discussed in more detail
below, the proposed revisions would require that an inventory of human
remains and associated funerary objects include determinations of both
cultural and geographical affiliation or an explanation why no
affiliation could be identified.
2. Require Repatriation of Associated Funerary Objects
While the existing regulations at Sec. 10.11 mandate the
disposition of certain categories of culturally unidentifiable human
remains by museums and Federal agencies upon receipt of a claim, the
transfer of culturally unidentifiable associated funerary objects under
the existing regulations is at the discretion of the museum or Federal
agency. Following publication of the 2007 proposed rule (72 FR 58582,
October 16, 2007), the Department received numerous comments on the
voluntary transfer of culturally unidentifiable associated funerary
objects. Most of the comments stated that transfer of such objects
should also be mandatory. These comments were carefully considered,
[[Page 63227]]
but the Department determined that this area of law was not clearly
resolved at that time and needed further consideration. The March 15,
2010, final rule retained the voluntary transfer provision. After the
publication of the final rule, the Department received additional
comments on this issue, which have been reviewed in the development of
the proposed revisions.
The Department proposes to require repatriation of associated
funerary objects whenever repatriation of the related human remains
occurs. In the Act, Congress differentiated human remains and
associated funerary objects from unassociated funerary objects, sacred
objects, and objects of cultural patrimony. Congress did this both in
its treatment of these items throughout the Act and in its assessment
of the potential legal interests at stake for those items, for example,
by differentiating the use and analysis of right of possession for
human remains and associated funerary objects from a right of
possession for cultural items. With respect to the Act, Congress
acknowledged that no general property interest exists either in human
remains or in the funerary objects associated with them in a burial.
This follows common law principles indicating that the next-of-kin of a
deceased individual have a quasi-property right of control over the
lawful disposition of the decedent's remains. For these reasons, the
proposed revision would require repatriation of associated funerary
objects whenever the repatriation of human remains is required. Such an
action, based on this guidance from Congress, would not result in a
taking of property within the meaning of the Fifth Amendment of the
United States Constitution.
3. Establish a Step-By-Step Process for Repatriation
The Department proposes to clarify the requisite steps for
repatriation of human remains and associated funerary objects by
establishing a step-by-step process with corresponding deadlines. Table
15 shows the name of each step and a shortened version of the deadline
in the proposed revisions.
Table 15: Step-by-Step Process for Repatriation
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Compile an itemized list of Before deadline in Step 4.
human remains and associated funerary
objects.
Step 2--Initiate consultation.......... Before deadline in Step 4.
Step 3--Consult with requesting parties 10 days after a request,
propose a timeline for
consultation.
Step 4--Complete/update an inventory... 2 years for a new collection/2
years after effective date for
update.
Step 5--Submit a notice of inventory 6 months after Step 4.
completion.
Step 6--Receive and consider a request Any time after notice
for repatriation. publication.
Step 7--Respond to a request for 30 days after Step 6.
repatriation.
Step 8--Repatriation of the human 90 days after Step 7.
remains and associated funerary
objects.
------------------------------------------------------------------------
The intent of these proposed revisions is to correct inaccuracies
and ambiguities in the existing regulations by using a clear, easy to
follow, step-by-step process, and ensures a timely resolution of any
requests for repatriation. For example, the proposed revisions would
clarify, consistent with the Act, that invitations to consult are
required before completing an inventory. In the existing regulations at
Sec. 10.9(b)(2), consultation is initiated ``as early as possible, no
later in the inventory process than the time at which investigation
into the cultural affiliation . . . is being conducted.''
The proposed revision would also directly address a required step
that lacks explanation or deadlines in the existing regulations. The
Department proposes in Step 7 to require a museum or Federal agency to
respond no later than 30 days after receiving a request for
repatriation. The Department also proposes three specific options for
the response, summarized as follows:
(1) Accept the request and agree to the repatriation.
(2) Reject the request, explain why, and ask for more information.
(3) Determine the most appropriate requestor among competing
requests.
4. Update Deadlines, Establish New Timelines, and Clarify Procedures
To update deadlines for completing an inventory, the proposed
revisions integrate all the deadlines in Step 4 (see proposed Sec.
10.10(d), Table 1 to Sec. 10.10). The proposed revisions would
identify the past required deadlines for completing an inventory (i.e.,
November 16, 1995). The Act does not clearly indicate when museums or
Federal agencies must complete an inventory after the statutory
deadline for reporting. The existing regulations at Sec. 10.13
provided these requirements for newly acquired or newly regulated
holdings or collections beginning in 2007. The proposed revisions use
the same deadlines as the existing regulations.
To establish new timelines, the proposed revisions would require in
Step 2 a written request to consult. This new requirement for a written
request to consult (which can include email) is necessary to then
require a museum or Federal agency to respond to the request within 10
days. In this same subparagraph, the proposed revisions require
requests to consult be submitted prior to a notice publication. This
requirement ensures the repatriation process moves forward by certain
deadlines in later steps. After publication of a notice, any party,
even if they have not consulted, can make a request for repatriation as
a competing request (see proposed Sec. 10.10(g)(2)).
To clarify procedures, the proposed revisions would require in Step
6 that any party wishing to make a request for repatriation must do so
in writing. In the existing regulations at Sec. Sec. 10.9, 10.10, and
10.11, there are references to making requests for repatriation, but
not until the very end of the process under notification in the
existing regulations at Sec. 10.10(b)(2) is it clear that such a
request must be in writing. The Department is specifically seeking
input during public comment on the deadlines for responding to a
request for repatriation and sending a repatriation statement.
5. Require That Consultation Seek Consensus
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that consultation seek consensus, to the
maximum extent possible. In addition, a record of consultation must
include the effort made to seek consensus or describe efforts to
identify a mutually agreeable alternative. For any determination
considered during the
[[Page 63228]]
consultation process, the consultation record must note the
concurrence, disagreement, or nonresponse of the requesting parties.
These requirements are used throughout the proposed regulations
whenever consultation with requesting parties is required.
6. Require Inventory Determinations and Updates
The proposed revisions would require that an inventory include
specific determinations for human remains and associated funerary
objects. In the existing regulations at Sec. 10.9(d), two separate
lists of human remains and associated funerary objects comprise the
inventory: (1) those with cultural affiliation and (2) those with no
cultural affiliation. The Department proposes to revise this
requirement to require, for each entry in the itemized list of human
remains and associated funerary objects, a determination of one or more
of the following:
(1) There is a known lineal descendant;
(2) There is a connection between the human remains and associated
funerary objects and an Indian Tribe or NHO through cultural
affiliation;
(3) There is a connection between the human remains and associated
funerary objects and an Indian Tribe or NHO through geographical
affiliation; or
(4) There is no connection between the human remains and associated
funerary objects and any Indian Tribe or NHO.
The Department proposes to require museums and Federal agencies
update an inventory for any human remains and associated funerary
objects previously included in an inventory but not published in a
notice of inventory completion by the effective date of the final rule.
To update an inventory, a museum or Federal agency would be required to
initiate consultation, consult with requesting parties, and determine
if there is a connection between the human remains and associated
funerary objects and an Indian Tribe or NHO through cultural or
geographical affiliation. The updated inventory would be sent to all
identified consulting parties and the Manager, National NAGPRA Program,
no later than 2 years after the effective date of the final rule. Any
museum may request an extension to update its inventory. Consistent
with the Act (25 U.S.C. 3003(c)) and the existing regulations at Sec.
10.9(f), only museums may request extension to update an inventory.
Federal agencies may not request extensions.
7. Protect Sensitive Information and Disclose Hazardous Substances
The Department proposes to remove the existing regulations at Sec.
10.9(b)(4)(iii) because it requires Indian Tribes and NHOs to provide
information about the kinds of objects they consider to be funerary
objects. This kind of information is often very sensitive and providing
it in writing or in the absence of qualified persons within the Indian
Tribe or NHO might be inappropriate. The proposed language would still
provide for an exchange of information about the types of objects that
might be funerary objects but would do so in a way to allow for
sensitive information to be protected.
In the existing regulations at Sec. 10.10(e), museums and Federal
agencies must inform Indian Tribes and NHOs about any potentially
hazardous substances used to treat human remains or funerary objects
only after repatriation has occurred. The proposed revisions would
require a museum or Federal agency to disclose information about the
presence of any potentially hazardous substances first in the itemized
list (see proposed Sec. 10.10(a)(6)) and second in the notice of
inventory completion (see proposed Sec. 10.10(e)(2)(vii)).
8. Clarify Requirements for Notices
The proposed revisions clearly outline informational requirements
for a Federal Register notice and reduce the information required in
the existing regulations at Sec. 10.9(e)(2). To protect potentially
sensitive information, the only location information that would be
required is the county and State where the human remains and associated
funerary objects were removed, if known. To facilitate requests for
repatriation, any lineal descendant or Indian Tribe or NHO with
cultural or geographical affiliation would be identified in the notice.
The notice would require only a brief abstract of the information used
to identify the lineal descendant or Indian Tribe or NHO with cultural
or geographical affiliation.
In enumerating the associated funerary objects in a notice, museums
and Federal agencies would be encouraged to count in a way that reduces
the chances of having to issue a correction notice. For example,
identifying 3 lots of shell beads means that no matter the exact number
of beads present, the count would stand, whereas identifying exactly
1,960 shell beads in a notice would mean that if additional (or fewer)
beads were located before repatriation occurs, a correction notice
would be required because the number of objects would have changed.
9. Written Repatriation Statement
The Department proposes to require a new document to complete the
repatriation of human remains and associated funerary objects to a
requestor. A written repatriation statement would be sent to and would
identify all requestors in the case of joint requests. In accordance
with the recommendation by the Government Accountability Office in a
2010 report on the implementation of the Act, a copy of the
repatriation statement would also be sent to the Manager, National
NAGPRA Program.
10. Transfer or Reinterment of Human Remains and Associated Funerary
Objects
The Department proposes a new process for transfer or reinterment
of human remains and associated funerary objects. This provision would
apply in limited circumstances where there is no connection between the
human remains and associated funerary objects and any Indian Tribe or
NHO. Under such circumstances, a museum or Federal agency would have
the discretion to agree to transfer the human remains and associated
funerary objects to an Indian Tribe, NHO, or Indian group, or to
reinter the human remains and associated funerary objects. In the
existing regulations at Sec. 10.10(g)(2)(ii), this same process is
available to museums and Federal agencies but requires a recommendation
from the Review Committee and the concurrence of the Secretary. The new
provision would require publication of a notice and a repatriation
statement but would eliminate the costly and burdensome process of
making a request to the Review Committee.
Table 16 shows how the Department proposes to reorganize the
existing regulatory requirements for an inventory of human remains and
associated funerary object.
[[Page 63229]]
Table 16--Cross-Reference of Existing Provisions to Proposed Sec. 10.10
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.9(c)...................... Required Information.... 10.10(a)..................... Step 1: Compile an
itemized list of human
remains . . .
10.10(e)..................... . . . inform recipients (6) The presence of any
of repatriation . . . potentially hazardous
treatment with substances . . .
potentially hazardous
substances.
10.9(b)...................... Consultation............ 10.10(b)..................... Step 2: Initiate
(1) Consulting parties.. consultation.
(2) Initiation of (1) Consulting parties
consultation.. are . . .
(3) Provision of (2) An invitation to
information.. consult must . . .
New..................... (3) Any consulting party
. . . must . . .
(4) . . . identifies a
new consulting party .
. .
10.13(c)..................... New Indian Tribes....... (ii) . . . after the
addition of a Tribal
entity to the list of
federally recognized
Indian Tribes . . .
10.9(b)...................... (4) Requests for 10.10(c)..................... Step 3: Consult with
information. requesting parties.
(1) . . . a museum or
Federal agency must ask
for the following
information . . .
New..................... (2) The consultation
process must . . .
(3) The museum or
Federal agency must
prepare a record of
consultation . . .
10.9(e)...................... (5) . . . upon request, (4) A museum or Federal
additional agency must provide
documentation . . .. access to the
additional information
. . .
10.9(d)...................... Documents. Two separate 10.10(d)..................... Step 4: Complete an
documents comprise the inventory of human
inventory: remains . . .
(1) An inventory must
include:
(1) a listing of (iii) For each entry . .
culturally affiliated . . a determination of
. .. one or more . . .
(A) . . . a known lineal
descendant,
(B) . . . through
cultural affiliation .
. .
(2) a listing of (C) . . . through
culturally geographical
unidentifiable . . .. affiliation . . .
(D) There is no
connection . . .
10.9(c)...................... (4) A summary of the (iv) An abstract of the
evidence, including information supporting
consultation . . .. the determination . . .
10.13(b)..................... (1) New holdings or 10.10(d)..................... (2) After [effective
collections. date of final rule], .
. . must submit an
inventory . . .
10.13(d)..................... New Federal funds .............................
10.9(f)...................... Completion.............. (3) Prior to [effective
date of final rule] . .
. must have submitted
an inventory . . .
10.11(b)..................... Consultation............ (4) No later than [2
10.11(c)..................... Disposition of years after the
culturally effective date of final
unidentifiable human rule], for any . . .
remains and associated listed in an inventory
funerary objects.. but not published in a
(1) . . . must offer to notice of inventory
transfer control . . .. completion prior to
[effective date of
final rule] . . .
submit an updated
inventory . . .
10.9(f)...................... Completion.............. (5) Any museum may
request an extension to
complete or update its
inventory . . .
10.13(b)..................... (3) Previously prepared (6) After [effective
summary or inventory . date of final rule] . .
. .. . acquires possession
or control of human
remains . . .
10.9(e)...................... Notification............ 10.10(e)..................... Step 5: Submit a notice
10.11(d)..................... Notification............ of inventory
completion.
10.10(e)..................... . . . treatment with (2) (vii) . . . the
potentially hazardous presence of any
substances. potentially hazardous
10.13(b)..................... (2) Additional pieces or (4) If the number . . .
fragments . . .. changes . . .
10.13(e)..................... Amendment of previous
decision.
New..................... 10.10(f)..................... Step 6: Receive and
consider a request for
repatriation.
(1) A request for
repatriation . . . must
be received . . .
(2) Requests from two or
more . . .
10.10(b)..................... (1) Criteria............ (3) A request for
repatriation must
satisfy . . .
New..................... 10.10(g)..................... Step 7: Respond to a
request for
repatriation.
10.10(b)..................... (2) Notification........ 10.10(h)..................... Step 8: Repatriation of
the human remains and
associated funerary
objects.
10.10(d)..................... Place and manner of
repatriation.
10.10(f)..................... Record of repatriation.
10.15(d)..................... Savings provisions.
10.10(c)..................... (2) Circumstances where 10.10(i)..................... Evaluating competing
there are multiple requests for
requests for repatriation.
repatriation . . ..
10.10(c)..................... Exceptions.............. 10.10(j)..................... Stay of repatriation.
10.11(c)..................... (5) The exceptions
listed at Sec.
10.10(c) apply . . ..
10.15(b)..................... Failure to claim where 10.10(k)..................... Transfer or reinter
no repatriation has human remains and
occurred. [Reserved]. associated funerary
objects.
10.10(g)..................... (2)(ii) Recommend to the
Secretary specific
actions . . .
10.9(b)...................... (4) (iii) kinds of ............................. Removed.
cultural items . . ..
10.9(c)...................... (1) Accession and
catalogue entries . . .
[[Page 63230]]
(3) A description . . .
including dimensions,
materials . . .
10.9(e)...................... (6) This paragraph
applies when a the
[sic] museum . . .
10.10(g)..................... Culturally
unidentifiable human
remains.
10.11(a)..................... General.................
10.11(c)..................... (2) If none of the
Indian Tribes or NHOs
agree to accept . . .
(3) The Secretary may
make a recommendation .
. .
(4) . . . may also
transfer control of
funerary objects . . .
(6) Any disposition of
human remains from
Indian lands . . .
10.11(d)..................... (2) Within 30 days . . .
Manager, National
NAGPRA . . .
----------------------------------------------------------------------------------------------------------------
L. Section 10.11 Civil Penalties
This section of the proposed rule would implement the requirements
of the Act regarding the process for the Secretary to assess civil
penalties against any museum that fails to comply with the requirements
of the Act (25 U.S.C. 3007). The Department proposes several revisions
to the existing regulations at Sec. 10.12 to clarify and streamline
the process for assessing civil penalties. As noted in the proposed
rule, Federal agencies are not subject to the assessment of civil
penalties. Federal law does include, however, ways to allege that a
Federal agency has failed to comply with the requirements of the Act or
the regulations (or any other Federal law or regulation). The most
broadly applicable way to allege that a Federal agency has failed to
comply is to send an allegation to the head of the appropriate Federal
agency or to the Federal agency's Office of the Inspector General.
Assuming that the alleged failure to comply is a final agency action
(see proposed Sec. 10.1(i)), the failure to comply could also be the
subject of a lawsuit under the Administrative Procedure Act (5 U.S.C.
704).
1. Broaden the Options for a Failure To Comply
The Department proposes to remove from the existing regulations at
Sec. 10.12(b) the definition of ``failure to comply.'' Consistent with
the Act, the proposed revisions would provide that a museum that fails
to comply with any provision of the Act or Subpart C of the regulations
has failed to comply. As under the existing regulations, each instance
of failure to comply would constitute a separate violation. The
proposed revisions include what factors would be relevant for
determining the number of separate violations.
For example, if a museum fails to include information regarding the
known presence of a potentially hazardous substance used to treat the
human remains or associated funerary objects in an itemized list, the
number of separate violations committed by the museum may be calculated
by determining the number of lineal descendants, Indian Tribes, or NHOs
named in an allegation and determined to be aggrieved by this failure
to comply. Alternatively, if a museum completes the repatriation of
human remains and associated funerary objects without submitting a
notice of inventory completion, the number of separate violations may
be calculated by determining the number of human remains and associated
funerary objects involved in this failure to comply.
2. Allowing for a Single Hearing To Contest
The Department proposes to consolidate the dual hearing process in
the existing regulations--which involve an opportunity to contest both
a substantiated failure to comply and a penalty assessment in separate
hearings--into one single hearing. The bifurcated hearing process
adopted in 2003 (68 FR 16354, April 3, 2003) is not legally required.
The Act uses identical language (25 U.S.C. 3007(a)) to the
Administrative Procedure Act (APA) (5 U.S.C. 554(a)). This reflects
Congressional intent that civil penalties be adjudicated under similar
procedural requirements to the APA and not a unique approach. Numerous
government agencies have complied with Section 554(a) by conducting
single hearing adjudications, which have withstood legal challenges for
procedural due process. Not only does the single hearing process
satisfy the Administrative Procedure Act's identical procedural
requirements (5 U.S.C. 554(a)), but it would also provide greater
efficiencies for all parties and quicker resolution of cases.
3. Calculation of Base Penalty Amount
The Department proposes to change the calculation of the base
penalty amount for each instance of failure to comply. Under the
existing regulations, the base penalty amount for each separate
violation is calculated as the lesser of two amounts: 0.25 percent of
the museum's annual budget or $7,475 (adjusted annually for inflation
under the Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015 (Pub. L. 114-74)). The proposed revision would require that
the penalty amount be calculated using only $7,475 (adjusted annually
for inflation) as the base penalty amount.
The Act, the existing regulations, and the proposed revisions
permit the Secretary to increase the penalty amount after considering
different factors, including an aggrieved party's economic and non-
economic damages. For example, economic damages could be an Indian
Tribe's expenditures for an attorney or other staff to prepare, review,
and file documents to compel the museum to comply. For another example,
non-economic damages could be a traditional religious leader's
inability to conduct a certain ceremony because of the museum's failure
to comply.
In response to consultation with Indian Tribes and NHOs, the
Department proposes to include an additional factor for increasing the
penalty amount based on ceremonial or cultural value of the human
remains or cultural items involved, as identified by any aggrieved
lineal descendant, Indian Tribe, or NHO. The Secretary also may reduce
the penalty amount if the
[[Page 63231]]
museum agrees to mitigate the violation. For example, mitigation could
be a museum's payment to an NHO for the cost of a ceremony associated
with the repatriation of human remains or cultural items, or the value
of land that a museum provides for the reinterment of human remains and
associated funerary objects. Another appropriate factor that may
justify reducing a penalty would include the museum, through its chief
executive, self-reporting the museum's failure to comply, by sending a
written report of the violation to the Manager, National NAGPRA
Program.
4. Options Upon Receipt of Notice
The proposed revisions describe the actions a museum may take upon
receipt of a notice of failure to comply and include the option for a
museum to file a petition for relief in the existing regulations at
Sec. 10.12(i)(3). The proposed revisions also describe the actions a
museum may take upon receipt of a notice of assessment and include the
option for a museum to request a hearing to contest the failure to
comply or the penalty assessment in the existing regulations at
Sec. Sec. 10.12(f)(2) and (i)(4).
5. Exhaustion of Administrative Remedies
The proposed revisions would require a museum to exhaust all
administrative remedies under this section prior to seeking judicial
review of the final administrative decision of the Secretary. This
section would also make clear that no decision would be considered to
constitute final agency action subject to judicial review during the
time the decision is subject to review under this section of the
regulations. The proposed revisions contain provisions that would allow
for the assessment of an additional daily penalty amount of $1,496 per
day, subject to annual adjustments based on inflation, and would
include the Department's options of instituting legal action to recover
penalties and pursuing other available legal or administrative
remedies.
Table 17 shows how the Department proposes to reorganize the
existing regulatory requirements for the assessment of civil penalties
on any museum that fails to comply with the requirements of the Act.
Table 17--Cross-Reference of Existing Provisions to Proposed Sec. 10.11
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.12(c)..................... How to notify the 10.11(a)..................... File an allegation.
Secretary . . ..
10.12(d)..................... Steps the Secretary may 10.11(b)..................... Respond to an
take . . .. allegation.
10.12(g)..................... How the Secretary 10.11(c)..................... Calculate the penalty
determines the penalty amount.
amount..
10.12(e)..................... How the Secretary 10.11(d)..................... Notify a museum of a
notifies . . .. failure to comply.
10.12(f)..................... Actions you may take 10.11(e)..................... Respond to a notice of
upon receipt of a failure to comply.
notice . . ..
(1) Seek informal
discussions . . ..
10.12(i)..................... Actions that you may
take upon receipt of a
notice . . .
(1) Accept in writing .
. ..
(3) File a petition for
relief..
10.12(h)..................... How the Secretary 10.11(f)..................... Assess the civil
assesses the penalty . penalty.
. ..
10.12(h)..................... (3) The Secretary 10.11(g)..................... Notify the museum of an
notifies you in writing assessment.
. . ..
10.12(i)..................... Actions that you may 10.11(h)..................... Respond to an
take upon receipt of a assessment.
notice . . .
(1) Accept in writing or
by payment of the
proposed penalty . . ..
10.12(f)..................... (2) Request a hearing . (2) File a written
. .. request for a hearing
to contest
10.12(i)..................... (4) Request a hearing .
. ..
10.12(j)..................... How you request a 10.11(i)..................... Request a hearing.
hearing. 10.11(j)..................... Hearings.
10.12(k)..................... How you appeal a 10.11(k)..................... Appealing the
decision.. administrative law
judge's decision.
10.12(l)..................... The final administrative 10.11(l)..................... Exhaustion of
decision. administrative
remedies.
10.12(g)..................... (3) An additional 10.11(m)..................... Failure to pay penalty
penalty of up to. or continuing failure
to comply . . .
10.12(m)..................... (2) If you fail to pay
the penalty
10.12(m)..................... (3) Assessing a penalty 10.11(n)..................... Additional remedies.
. . ..
10.12(a)..................... The Secretary's Removed.
authority . . ..
10.12(b)..................... Definition of failure to
comply
10.12(f)..................... (3) Take no action and
await . . .
10.12(i)..................... (2) Seek informal
discussion with the
Secretary (on the
assessment).
10.12(m)..................... (1) If you are assessed
a civil penalty, you
have . . .
----------------------------------------------------------------------------------------------------------------
M. Section 10.12 Review Committee
This section of the proposed rule would implement the requirements
of the Act regarding the Federal Advisory Review Committee (25 U.S.C.
3006). The Department proposes to clarify the existing provisions at
Sec. Sec. 10.16 and 10.17 and add new provisions to clarify the
responsibilities of the Review Committee.
1. Deadline for Publishing Findings or Recommendations
In response to consultation with Indian Tribes and NHOs, the
Department proposes to add a requirement that recommendations made by
the Review Committee will be published in the Federal Register within
90 days of the making the finding or recommendation. This is the same
requirement under the Federal Advisory Committee Act (FACA) for
completing minutes of the Review Committee meeting.
2. Add Requirements for Nominations to the Review Committee
The Department proposes to add new provisions to clarify which
entities may make nominations to the Secretary.
[[Page 63232]]
Under the Act (25 U.S.C. 3006(b)(1)(A)), Congress explicitly identified
who is eligible to nominate a person to three specified slots on the
Review Committee and who is eligible to serve in two of those slots.
Only Indian Tribes, NHOs, and ``traditional Native American religious
leaders'' are eligible to be the nominators, and only ``traditional
Indian religious leaders'' are eligible to serve in two of the three
specified slots. When Congress expressly identified traditional Indian
religious leaders as being eligible to serve in two of the three
specified slots, it excluded traditional Native Hawaiian religious
leaders.
Under the Act (25 U.S.C. 3006(b)(1)(B)), Congress did not provide
any additional requirements for nominators beyond ``national museum
organizations and scientific organizations. The proposed addition seeks
to clarify these requirements by defining what national museum
organizations and national scientific organizations are, as recommended
by the Government Accountability Office in a 2010 report on the
implementation of the Act. As many national organizations have an
abundance of subsidiary organizations, the proposed addition requires
nominations be submitted only through a parent organization.
3. Add Definitions and Provisions for Findings of Fact or Disputes
The proposed revisions describe the finding of fact or dispute
function of the Review Committee and remove the references in the
existing regulations to informal and formal dispute resolution. The
proposed definition of ``an affected party'' was drawn from the Review
Committee's Dispute Procedures. The proposed revisions seek to clarify
the distinction between findings of fact and disputes as well as to
provide the options for the Review Committee's recommendation.
Table 18 shows how the Department proposes to reorganize the
existing regulatory requirements for the Review Committee.
Table 18--Cross-Reference of Existing Provisions to Proposed Sec. 10.12
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.16(b)............................. Recommendations........ 10.12(a)............... Recommendations.
New.................... 10.12(b)............... Nominations.
10.17................................ Dispute resolutions.... 10.12(c)............... Findings of fact or
disputes on
repatriation.
----------------------------------------------------------------------------------------------------------------
VI. Public Engagement and Request for Comments
A. Public Engagement
The Department will conduct consultation sessions with Indian
Tribes virtually during the comment period. The Department will
announce the exact meeting dates and times of the consultation
sessions, once scheduled, on https://www.doi.gov/priorities/tribal-consultation/upcoming-tribal-consultations and by letter to Tribal
leaders. The Department will also conduct consultation sessions with
the Native Hawaiian Community virtually during the comment period. The
Department of the Interior's Office of Native Hawaiian Relations will
invite the Native Hawaiian Community to participate and provide the
exact meeting dates and times of the consultation sessions, once
scheduled. Upon request, the Department will consider additional
consultation sessions with Indian Tribes or the Native Hawaiian
Community to ensure sufficient opportunity to engage and comment in
advance of a final rule and to respond to the previous requests
received for additional consultation sessions.
One goal of the proposed regulatory revisions is to provide
specific timelines for museums and Federal agencies to facilitate the
required repatriation. The Department does not intend to impose
timeframes on lineal descendants, Indian Tribes, or NHOs to request
disposition or repatriation. The Department requests feedback from
Indian Tribes and NHOs on whether this goal has been achieved and how
to further allow Indian Tribes and NHOs flexibility and discretion with
regard to the proposed regulatory revisions and, in particular, the new
responsibilities under Subpart B and the proposed deadlines under
Subpart C.
The Department will also proactively contact and consult with a
subset of smaller Indian Tribes and NHOs to ensure that they anticipate
sufficient opportunity under the proposed regulatory changes in Subpart
C to submit requests for repatriation of the human remains or cultural
items anticipated to become available within three years of a final
rule. Specifically, Indian Tribes and NHOs are currently responsible
for submitting a request to consult, consulting, submitting a request
for repatriation, and, in some cases, requesting transfer of human
remains or cultural items. Under the proposed regulations, Indian
Tribes and NHOs have the same responsibilities, but are likely to
increase the number of annual responses for each responsibility,
especially in submitting requests for repatriation. As stated in Sec.
10.1(g), failure to make a claim for disposition or a request for
repatriation of human remains or cultural items is deemed an
irrevocable waiver of any right to make a claim or a request.
The Department will also proactively contact and consult with
Indian Tribes and NHOs to ensure that they anticipate sufficient
opportunity under the proposed regulatory changes to take on new
responsibilities under Subpart B. Specifically, Indian Tribes and NHOs
are currently responsible for responding to a discovery on their Tribal
lands, consenting to an excavation on Tribal lands, and submitting a
claim for disposition on Federal lands. Under the proposed regulations,
Indian Tribes and NHOs will also be responsible for delegating or
accepting responsibilities on Tribal lands, submitting a request to
consult on Federal lands, sending or completing a disposition statement
on Tribal lands, and requesting transfer of unclaimed human remains or
cultural items on Federal lands.
Another goal of the proposed regulatory revisions is to improve
efficiency in meeting the requirements of the systematic process for
repatriation under Subpart C. The Department requests feedback from
Indian Tribes, NHOs, museums, and Federal agencies on whether this goal
has been achieved and how to ensure the step-by-step process for
repatriation is streamlined and simplified by the proposed regulatory
revisions under Subpart C.
The Department will proactively contact and engage with a subset of
affected entities, which will include Indian Tribes, NHOs, museums, and
Federal agencies, during the comment period to understand if the
proposed regulatory revisions could impact these entities' capacity and
resources. Under
[[Page 63233]]
the proposed regulatory revisions, museums and Federal agencies would
be required to update inventories for any human remains and associated
funerary objects previously included in an inventory but not published
in a notice of inventory completion within two years of a final rule.
Based on information available to it, a museum or Federal agency would
be required to initiate consultation, consult with requesting parties,
and determine if there is a known lineal descendant or a cultural or
geographical affiliation. Museums would also be able to request
extensions to update an inventory if it has made a good faith effort
but will be unable to do so by the appropriate deadline. Indian Tribes
and NHOs would be required to submit requests to consult and engage in
consultation. Museums and Federal agencies would also be required to
publish notices of inventory completion within six months of updating
the inventory.
In particular, the Department anticipates that the human remains of
117,000 Native American individuals currently unable to be repatriated
would become available for repatriation within two and a half years of
the effective date of a final rule, a substantial increase from the
84,000 individuals repatriated in the almost 32 years since the passage
of NAGPRA. At this time, the Department is not aware of any capacity
and resource limitations that would prevent these entities from
completing the new requirement to update inventories, submit requests
to consult, engage in consultation, and publish notices following the
effective date of a final rule.
B. Requests for Comments
In addition to the public engagement and outreach discussed above,
the Department solicits comment from the public on the entirety of this
proposed rule. The Department is interested in receiving comments from
the public on the cost-benefit and regulatory flexibility analyses,
including the conclusions about the expected costs of complying with
the proposed rule. In particular, the Department is interested in
responses to the following questions:
a. For each regulatory requirement, does the estimated time per
response seem reasonable? If not, what range of time per response would
be more reasonable for a specific regulatory requirement? For example,
Federal agencies and museums are required to initiate and conduct
consultation under both the existing regulations and the proposed
regulations. We estimate the time per response ranges from ten hours to
300 hours, depending on the size and complexity of the consultation,
for a median of 155 hours.
b. For Subpart B, is the estimated number of annual discoveries on
Federal or Tribal lands reasonable? We used the average number of
notices on Federal lands over the last three years, but we have no data
on the number of discoveries on Tribal lands to inform this estimate.
c. For Subpart C, is the estimated number of museums and Federal
agencies required to update inventory data under the proposed
regulations reasonable? We estimate 414 museums and 19 Federal agencies
will be required to update inventories within three years after
promulgation of a final rule. We estimate that 33% of those museums and
Federal agencies will submit inventory updates each year for three
years. We assume fewer inventory records will require less time to
update. We assume museums previously prepared and submitted inventories
in accordance with the existing regulations and an update to that
inventory requires less time than submission of a new inventory. We
estimate the time per response will range from less than one hour to
100 hours, depending on the size and complexity of the update, for a
median of 50.25 hours.
d. For Subpart C, many museums and Federal agencies update
inventories at their own discretion, going beyond what is required by
the Act and the existing regulations, which only requires use of
``information possessed by such museum or Federal agency'' (25 U.S.C.
3003(a)). Given the potential expense of more extensive studies not
required by the Act or the revised regulations, how should the
Department account for these costs in this rulemaking? We also request
public data about the potential costs of updating inventories under the
revised regulations.
e. For Subpart C, is the estimated number of museums required to
report on Federal holdings or collections reasonable? We estimate the
number of museums required to submit statements is 5% of all museums
that previously submitted information under the existing regulations.
f. Is the estimated number of competing claims for disposition or
competing requests for repatriation reasonable?
g. Using data on implementation since 2012, we estimate it will
take an additional 26 years to complete the consultation and
notification process for all 117,000 Native American human remains
currently pending in the existing regulatory framework. Is this 26-year
time horizon reasonable? Will the proposed regulatory requirements
result in a change in consultation activities per year, and if so, how
should the Department account for the change in costs to Indian Tribes
or NHOs for engaging in consultation?
C. Use of Received Feedback
The Department will use all received feedback to inform a final
rule and may make changes to a final rule based on received feedback
that is within the scope of this proposed rule.
VII. Compliance With Other Laws, Executive Orders and Department Policy
A. Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in OMB will review all significant regulatory
actions. OIRA has determined that this rule is a significant regulatory
action.
Executive Order 13563 reaffirms the principles of Executive 12866
while calling for improvements in the nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
rule in a manner consistent with these requirements.
B. Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government (Executive Order 13985)
This proposed rule is expected to advance racial equity in agency
actions and programs, in accordance with the Executive Order 13985.
C. Regulatory Flexibility Act
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.). This certification is based on the cost-
benefit and regulatory flexibility analyses found in the report
entitled ``Benefit-Cost and Regulatory Flexibility Threshold Analyses:
Native American Graves Protection and Repatriation Act Regulations''
that may be viewed online at on https://www.regulations.gov.
[[Page 63234]]
D. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under the Small Business Regulatory
Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, local or tribal
government agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
E. 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.
F. Takings (Executive Order 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630. A takings
implication assessment is not required.
G. Federalism (Executive Order 13132)
Under the criteria in Section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. A federalism
summary impact statement is not required.
H. Civil Justice Reform (Executive Order 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of Sec. 3(a) requiring that all regulations
be reviewed to eliminate errors and ambiguity and be written to
minimize litigation; and
(b) Meets the criteria of Sec. 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
I. Consultation With Indian Tribes (Executive Order 13175 and
Department Policy)
The Department strives to strengthen its government-to-government
relationship with Indian Tribes through a commitment to consultation
with Indian Tribes and recognition of their right to self-governance
and tribal sovereignty. We have evaluated this rule under the
Department's consultation policy and under the criteria in Executive
Order 13175 and have identified direct Tribal implications.
Accordingly, we have developed this proposed rule after consulting with
federally recognized Indian Tribes as detailed in this preamble. In
addition, we developed this proposed rule in consultation with the
Native American Graves Protection and Repatriation Review Committee,
which includes members nominated by Indian Tribes.
J. Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.)
1. Overview
The Paperwork Reduction Act (PRA) provides that an agency may not
conduct or sponsor, and a person is not required to respond to, a
``collection of information,'' unless it displays a currently valid OMB
control number. Collections of information include any request or
requirement that persons obtain, maintain, retain, or report
information to an agency, or disclose information to a third party or
to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)).These proposed
regulations contains existing and new information collection
requirements that are subject to review by OMB under the PRA. OMB
previously reviewed and approved information collection related to 43
CFR part 10 and assigned the following OMB control number 1024-0144
(expires 4/30/2025).
The information collection activities in this proposed rule are
described below along with estimates of the annual burdens. These
activities, along with annual burden estimates, do not include
activities that are considered usual and customary industry practices.
Included in the burden estimates are the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing each
component of the proposed information collection requirements.
The Department of the Interior requests comment on any aspect of
this information collection, including:
a. Whether the collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information will have practical utility;
b. The accuracy of the estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
c. Ways to enhance the quality, utility, and clarity of the
information to be collected; and
d. How the agency might minimize the burden of the collection of
information on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of response.
2. Summary of Proposed Information Collection Requirements
Title of Collection: Native American Graves Protection and
Repatriation Regulations.
OMB Control Number: 1024-0144.
Form Number: None.
Type of Review: Revision of a currently approved collection.
Respondents/Affected Public: Any person, any affected party, lineal
descendants, Indian Tribes, Native Hawaiian organizations, and State
and local governments, universities, and museums, that receive Federal
funds and have possession or control of Native American human remains
and cultural items.
Respondent's Obligation: Mandatory, voluntary, and required to
obtain or retain a benefit.
Frequency of Collection: On occasion.
Total Estimated Number of Annual Responses: 2,212
Estimated Completion Time per Response: Varies from 1 hour to 300
hours depending on respondent and/or activity.
Total Estimated Number of Annual Burden Hours: 35,878.
Total Estimated Annual Non Hour Burden Cost: None.
Summary by Subpart of the Proposed Regulations
------------------------------------------------------------------------
Information
Subpart collections Respondents
------------------------------------------------------------------------
Subpart A--General.............. 0 None.
[[Page 63235]]
Subpart B--Protection of Human 1 Any person.
Remains or Cultural Items on 5 Indian Tribes or NHOs.
Federal or Tribal Lands.
Subpart C--Repatriation of Human 1 Any person.
Remains or Cultural Items by 1 Indian Tribes or NHOs.
Museums or Federal Agencies. 1 Lineal descendants.
16 Museums.
Subpart D--Review Committee..... 1 Any affected party.
------------------------------------------------------------------------
Subpart A--General does not contain any information collection
requirements subject to the PRA. References to written documents in
this Subpart refer to the specific information collection requirements
in the three subparts below.
Subpart B--Protection of Human Remains or Cultural Items on Federal
or Tribal Lands contains six information collection requirements
subject to the PRA. On Federal or Tribal lands, any person who knows or
has reason to know of the discovery of human remains or cultural items
must provide specified information to third parties. On Federal lands,
an Indian Tribe or NHO may submit a claim for disposition by disclosing
specified information to third parties. On Tribal lands, an Indian
Tribe or NHO must maintain specified records and in one instance,
disclose specified information to third parties.
Subpart C--Repatriation of Human Remains or Cultural Items by
Museums or Federal Agencies contains 19 information collection
requirements subject to the PRA. State and local governments,
universities, and museums that receive Federal funds and have
possession or control of Native American human remains, funerary
objects, sacred objects, or objects of cultural patrimony must submit
information to the Federal government, maintain specified records, and
disclose specified information to third parties. Lineal descendants,
Indian Tribes, or NHOs may submit a request for repatriation by
disclosing specified information to third parties. Any person alleging
a failure to comply may voluntarily submit information to the Federal
government. Museums may respond to a civil penalty action by submitting
information to the Federal government.
In the proposed regulations, Subpart D--Review Committee contains
one information collection requirements subject to the PRA. Any
affected party may voluntarily submit information to the Federal
government.
------------------------------------------------------------------------
Information collection requirement Proposed rule
------------------------------------------------------------------------
Proposed New Information Collection Requirements in Subpart B
------------------------------------------------------------------------
Report a discovery on Federal or Tribal lands Sec. 10.5(a)-(b)
Respond to a discovery....................... Sec. 10.5(c)(1) and
Sec. 10.5(e)
Consent to an excavation..................... Sec. 10.6(a)
Submit a claim for disposition............... Sec. 10.7(d)(3)
Delegate or accept responsibility on Tribal Sec. 10.5(c)(2)-(3);
land. Sec. 10.6(a)(2)-(3)
and Sec. 10.7(c)(2)-
(3)
Send or complete a disposition statement..... Sec. 10.7(b) and Sec.
10.7(c)
------------------------------------------------------------------------
Currently Approved Information Collections Requirements in Subpart C
------------------------------------------------------------------------
New Summary/Inventory (private and state or Sec. 10.9(a) and Sec.
local museums). 10.10(d)
Updated Summary/Inventory Data (private and Sec. 10.9(a) and Sec.
state or local museums). 10.10(d)
Notices for publication in the Federal Sec. 10.9(f) and Sec.
Register (private and state or local 10.10(e)
museums).
Initiate Consultation and Request Information Sec. 10.10(b)-(c)
(private and state or local museums)
(previously Notify Tribes).
Response to requests for information (state Removed
or local museums).
------------------------------------------------------------------------
Proposed New Information Collection Requirements in Subpart C
------------------------------------------------------------------------
Conduct consultation......................... Sec. 10.9(c) and Sec.
10.10(c)
Submit a request for repatriation............ Sec. 10.9(d) and Sec.
10.10(f)
Document physical transfer................... Sec. 10.9(g)(2) and
Sec. 10.10(h)(2)
File an allegation of failure to comply...... Sec. 10.11(a)
Respond to a civil penalty action............ Sec. 10.11(e), (h),
(i), and (k)
Submit statements describing holdings or Sec. 10.8(c)-(d)
collection.
Make a record of consultation................ Sec. 10.9(c)(3) and
Sec. 10.10(c)(3)
Respond to a request for repatriation........ Sec. 10.9(e) and Sec.
10.10(g)
Send a repatriation statement................ Sec. 10.9(g) and Sec.
10.10(h)
Evaluate competing requests and resolve stays Sec. 10.9(h)-(i) and
of repatriation. Sec. 10.10(i)-(j)
Transfer or reinter human remains and Sec. 10.10(k)
associated funerary objects.
------------------------------------------------------------------------
Proposed New Information Collection Requirements in Subpart D
------------------------------------------------------------------------
Request assistance of the Review Committee... Sec. 10.12(c)
------------------------------------------------------------------------
[[Page 63236]]
3. Information That Is Not an Information Collection Subject to the PRA
Lineal descendants, Indian Tribes, and Native Hawaiian
organizations may take certain actions that are not information
collections subject to the PRA. Written documents requesting to consult
are acknowledgements that entail no burden other than that necessary to
identify the respondent, the date, the respondent's address, and the
nature of the consultation.
Federal agencies and the Department of Hawaiian Home Lands (DHHL)
must take certain actions that are not information collections subject
to the PRA. The Hawaiian Homes Commission Act, 1920 (HHCA), 42 Stat.
108, is a cooperative federalism statute, a compound of interdependent
Federal and State law that establishes a Federal law framework but also
provides for implementation through State law (see 81 FR 29777 and
29787, May 13, 2016, 43 CFR 47 and 48, Land Exchange Procedures and
Procedures to Amend the Hawaiian Homes Commission Act, 1920). These
written documents are required by employees of the Federal government
or DHHL when acting within the scope of their employment.
Indian Tribes, Native Hawaiian organizations, and Indian groups
that are not federally recognized may take certain actions to request
transfer of human remains or cultural items that are not information
collections subject to the PRA. These actions impact fewer than ten
persons and occur less often than annually.
Indian Tribes, Native Hawaiian organizations, traditional religious
leaders, national museum organizations, and national scientific
organizations may take certain actions that are not information
collections subject to the PRA. These actions are generally solicited
through a notice in the Federal Register, impact fewer than ten
persons, and occur less often than annually.
4. Burden Estimates
The Department has identified 26 information collections in the
proposed regulations. In total, we estimate that we will receive,
annually, 2,212 responses totaling 35,878 annual hour burden. We
estimate the annual dollar value is $2,304,481 (rounded). We estimate
the frequency of response for each of the information collections is
once per year, but the number of respondents may not be the same as the
number of responses, depending on the type of information collected. In
our estimate, we have only used the number of responses to simplify our
estimate and remain consistent across the types of information
collected. For some information collections, the time per response
varies widely because of differences in activity, size, and complexity.
5. Written Comments or Additional Information
Written comments and suggestions on the information collection
requirements should be submitted by the date specified above in DATES
to https://www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function. Please provide a
copy of your comments to the NPS Information Collection Clearance
Officer (ADIR-ICCO), 12201 Sunrise Valley Drive, (MS-242) Reston, VA
20191 (mail); or [email protected] (email). Please include OMB
Control Number 1024-0144 in the subject line of your comments.
To request additional information about this ICR, contact Melanie
O'Brien, Manager, National NAGPRA Program by email at
melanie_o'[email protected], or by telephone at (202) 354-2204. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
You may also view the ICR at https://www.reginfo.gov/public/do/PRAMain.
K. National Environmental Policy Act (NEPA)
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 is not required
because the rule is covered by a categorical exclusion under 43 CFR
46.210(i): ``Policies, directives, regulations, and guidelines: that
are of an administrative, financial, legal, technical, or procedural
nature; or 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.'' We
have also determined that the rule does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 that would require
further analysis under the National Environmental Policy Act.
L. Effects on the Energy Supply (Executive Order 13211)
This rulemaking is not a significant energy action under the
definition in Executive Order 13211; the rule is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy, and the rule has not otherwise been designated by the
Administrator of OIRA as a significant energy action. A Statement of
Energy Effects in not required.
M. Clarity of This Rule
We are required by Executive Orders 12866 (Sec. 1(b)(12)) and
13563 (Sec. 1(a)), 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 proposed 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.
N. Public Availability of Comments
Before including your address, phone number, email 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 may
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.
For access to the docket to read background documents or comments
received, go to https://www.regulations.gov and enter RIN 1024-AE19 in
the search box.
Drafting Information
This proposed rule was prepared by staff of the National NAGPRA
Program, National Park Service; Office of Regulations and Special Park
Uses, National Park Service; Office of Native Hawaiian Relations;
Office of Regulatory Affairs & Collaborative Action, Office of the
Assistant Secretary--Indian Affairs;
[[Page 63237]]
and Office of the Solicitor, Division of Parks and Wildlife and
Division of Indian Affairs, Department of the Interior. This proposed
rule was prepared in consultation with the Native American Graves
Protection and Repatriation Review Committee under the Act (25 U.S.C.
3006(c)(7)).
List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Alaska, Cemeteries,
Citizenship and naturalization, Colleges and universities, Hawaiian
Natives, Historic preservation, Human remains, Indians, Indians-claims,
Indians-law, Indians-lands, Museums, Penalties, Public lands, Reporting
and recordkeeping requirements, Treaties.
0
In consideration of the foregoing, the Department of the Interior
proposes to revise 43 CFR Part 10 as follows:
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
Subpart A--GENERAL
Sec.
10.1 Introduction.
10.2 Definitions for this part.
10.3 Cultural and geographical affiliation.
Subpart B--Protection of Human Remains or Cultural Items on Federal or
Tribal Lands
10.4 General.
10.5 Discovery.
10.6 Excavation.
10.7 Disposition.
Subpart C--REPATRIATION OF HUMAN REMAINS OR CULTURAL ITEMS BY MUSEUMS
OR FEDERAL AGENCIES
10.8 General.
10.9 Repatriation of unassociated funerary objects, sacred objects,
and objects of cultural patrimony.
10.10 Repatriation of human remains and associated funerary objects.
10.11 Civil penalties.
Subpart D--REVIEW COMMITTEE
10.12 Review Committee.
Authority: 25 U.S.C. 3001 et seq. and 25 U.S.C. 9.
Subpart A--General
Sec. 10.1 Introduction.
(a) Purpose. These regulations provide a systematic process for the
disposition and repatriation of Native American human remains, funerary
objects, sacred objects, and objects of cultural patrimony under the
Native American Graves Protection and Repatriation Act (Act) of
November 16, 1990. The Act recognized the rights of lineal descendants,
Indian Tribes, and Native Hawaiian organizations in Native American
human remains or cultural items subject to this part. Consistent with
the Act's express language and Congress's intent in enacting the
statute, these regulations require museums and Federal agencies to
complete timely dispositions and repatriations through consultation and
collaboration with lineal descendants, Indian Tribes, and Native
Hawaiian organizations. In implementing this systematic process,
museums and Federal agencies must defer to the customs, traditions, and
Native American traditional knowledge of lineal descendants, Indian
Tribes, and Native Hawaiian organizations.
(b) Applicability. These regulations pertain to Native American
human remains, funerary objects, sacred objects, and objects of
cultural patrimony and require certain actions to:
(1) Protect Human Remains or Cultural Items on Federal or Tribal
Lands in the event of a discovery or excavation after November 16,
1990; and
(2) Repatriate Human Remains or Cultural Items in the possession or
control of:
(i) Any Federal agency, regardless of the physical location of the
holding or collection; or
(ii) Any institution or State or local government agency (including
any institution of higher learning) within the United States that
receives Federal funds, regardless of the physical location of the
holding or collection.
(c) Accountability. These regulations are applicable to and binding
on all museums and Federal agencies for implementing the systematic
process for the disposition and repatriation of human remains or
cultural items under this part.
(d) Duty of care. Prior to disposition or repatriation, these
regulations require a museum or Federal agency to care for, safeguard,
and preserve all human remains or cultural items in its custody or in
its possession or control. Upon request of a lineal descendant, Indian
Tribe, or Native Hawaiian organization, a museum or Federal agency
must, to the maximum extent possible:
(1) Consult, collaborate, and obtain consent on the appropriate
treatment, care, or handling of human remains or cultural items;
(2) Incorporate and accommodate customs, traditions, and Native
American traditional knowledge in practices or treatments of human
remains or cultural items; and
(3) Limit access to and research on human remains or cultural
items.
(e) Delivery of written documents. These regulations require
written documents to be sent or delivered, such as requests for
repatriation, claims for disposition, invitations or requests to
consult, or notices for publication.
(1) The written documents must be sent by:
(i) Email, with proof of receipt,
(ii) Personal delivery with proof of delivery date,
(iii) Private delivery service with proof of date sent, or
(iv) Certified mail.
(2) Communication to the Manager, National NAGPRA Program, should
be sent electronically to [email protected]. If electronic submission
is not possible, physical delivery may be sent to 1849 C Street NW,
Mail Stop 7360, Washington, DC 20240. If either of these addresses
change, a notice with the new address must be published in the Federal
Register within 5 days of the change.
(f) Deadlines and timelines. These regulations require certain
actions be taken by a specific date. Unless stated otherwise in these
regulations:
(1) Days mean business days, i.e., Monday through Friday. For any
action by an Indian Tribe, Native Hawaiian organization, Federal
agency, or the Manager, National NAGPRA Program, business days do not
include days during which the Federal government is closed because of a
Federal holiday, lapse in appropriations, or other reasons.
(2) Written documents are deemed timely based on the date sent, not
the date received.
(3) Parties sending or receiving written documents under these
regulations must document the date sent or date received, as
appropriate, when these regulations require those parties to act based
on the date sent or date received.
(g) Failure to make a claim or a request. Failure to make a claim
for disposition or a request for repatriation before the disposition,
repatriation, transfer, or reinterment of human remains or cultural
items under this part is deemed an irrevocable waiver of any right to
make a claim or a request for the human remains or cultural items once
the disposition, repatriation, transfer, or reinterment of the human
remains or cultural items has occurred.
(h) Judicial jurisdiction. The United States district courts have
jurisdiction over any action by any person alleging a violation of the
Act or this part.
(i) Final agency action. For purposes of the Administrative
Procedure Act (5 U.S.C. 704), any of the following actions by a Federal
agency constitutes a final agency action under this part:
(1) A final determination making the Act or this part inapplicable;
[[Page 63238]]
(2) A final denial of a claim for disposition or a request for
repatriation; and
(3) A final disposition or repatriation determination.
(j) Information collection. The information collection requirements
contained in this part have been approved by the Office of Management
and Budget under 44 U.S.C. 3501 et seq. and assigned control number
1024-0144. A Federal agency may not conduct or sponsor, and you are not
required to respond to, the collection of information under this part
unless the Federal agency provides a currently valid OMB control
number.
Sec. 10.2 Definitions for this part.
Act means the Native American Graves Protection and Repatriation
Act.
Acknowledged aboriginal land means land whose occupation by an
Indian Tribe has been recognized in any of the following sources:
(1) A treaty sent by the President to the United States Senate for
ratification;
(2) An Act passed by Congress;
(3) An Executive Order;
(4) A treaty between a foreign or colonial government and an Indian
Tribe signed before the establishment of the United States Government
or prior to the land becoming incorporated in the United States;
(5) Another Federal document or foreign government document
providing information that reasonably shows aboriginal occupation; or
(6) Intertribal treaties, diplomatic agreements, and bilateral
accords between and among Indian Tribes.
Adjudicated aboriginal land means land whose occupation by an
Indian Tribe has been recognized by a final judgment of the Indian
Claims Commission or the United States Court of Claims. A final
judgment also includes a judgment concerning a settlement as long as
that judgment or settlement either explicitly recognizes certain land
as the aboriginal land of an Indian Tribe or adopts findings of fact
that do so.
Affiliation means a connection between human remains or cultural
items and an Indian Tribe or Native Hawaiian organization.
Ahupua`a (singular and plural) means a land division in Hawai`i
usually extending from the uplands to the sea which traditionally was,
and in some cases remains, self-sustaining or whose occupants were or
are permitted access to or trade resources with the neighboring
ahupua`a.
Appropriate official means any representative authorized by a
delegation of authority within an Indian Tribe, Native Hawaiian
organization, Federal agency, or Department of Hawaiian Home Lands
(DHHL) that has responsibility for human remains or cultural items on
Federal or Tribal lands.
ARPA means the Archaeological Resources Protection Act of 1979, as
amended (16 U.S.C. 470aa-mm) and the relevant Federal agency
regulations implementing that statute.
ARPA Indian lands means lands of Indian Tribes, or individual
Indians, which are either held in trust by the United States Government
or subject to a restriction against alienation imposed by the United
States Government, except for any subsurface interests in lands not
owned or controlled by an Indian Tribe or an individual Indian.
ARPA Public lands means lands owned and administered by the United
States Government as part of:
(1) The national park system,
(2) The national wildlife refuge system,
(3) The national forest system, and
(4) All other lands the fee title to which is held by the United
States Government, other than lands on the Outer Continental Shelf and
lands which are under the jurisdiction of the Smithsonian Institution.
Consultation means a process to seek consensus through the exchange
of information, open discussion, and joint deliberations and by
incorporating identifications, recommendations, and Native American
traditional knowledge, to the maximum extent possible.
Cultural items means a funerary object, sacred object, or object of
cultural patrimony according to a lineal descendant, Indian Tribe, or
Native Hawaiian organization based on customs, traditions, or Native
American traditional knowledge.
Custody means having an obligation to care for the object or item
but not a sufficient interest in the object or item to constitute
possession or control. In general, custody through a loan, lease,
license, bailment, or other similar arrangement is not a sufficient
interest to constitute possession or control, which resides with the
loaning, leasing, licensing, bailing, or otherwise transferring museum
or Federal agency.
Discovery means exposing, finding, or removing human remains or
cultural items whether intentionally or inadvertently on Federal or
Tribal lands without a written authorization for an excavation under
Sec. 10.6.
Disposition means an appropriate official acknowledges and
recognizes a lineal descendant, Indian Tribe, or Native Hawaiian
organization has control or ownership of human remains or cultural
items removed from Federal or Tribal lands.
Excavation means intentionally exposing, finding, or removing human
remains or cultural items on Federal or Tribal lands with a written
authorization under Sec. 10.6.
Federal agency means any department, agency, or instrumentality of
the United States Government. This term does not include the
Smithsonian Institution.
Federal lands means any lands other than Tribal lands that is
controlled or owned by the United States Government. For purposes of
this definition, control refers to lands not owned by the United States
Government, but in which the United States Government has a sufficient
legal interest to permit it to apply these regulations without
abrogating a person's existing legal rights. Whether the United States
Government has a sufficient legal interest to control lands it does not
own is a legal determination that a Federal agency must make on a case-
by-case basis. Federal lands include:
(1) Any lands selected by, but not yet conveyed to, an Alaska
Native Corporation or group organized under the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.);
(2) Any lands other than Tribal lands that are held by the United
States Government in trust for an individual Indian or lands owned by
an individual Indian and subject to a restriction on alienation by the
United States Government; and
(3) Any lands subject to a statutory restriction, lease, easement,
agreement, or similar arrangement containing terms that grant to the
United States Government indicia of control over those lands.
Funerary object means any object reasonably believed to have been
placed intentionally with or near human remains. A funerary object is
any object connected, either at the time of death or later, to a death
rite or ceremony of a Native American culture according to a lineal
descendant, Indian Tribe, or Native Hawaiian organization based on
customs, traditions, or Native American traditional knowledge. This
term does not include any object returned or distributed to living
persons according to traditional custom after it has been displayed as
part of a death rite or ceremony of a Native American culture. Funerary
objects are either associated funerary objects or unassociated funerary
objects.
(1) Associated funerary object means the human remains related to
the funerary object are, or were after
[[Page 63239]]
November 16, 1990, in the possession or control of any museum or
Federal agency or removed from Federal or Tribal lands. Any object made
exclusively for burial purposes or to contain human remains is always
an associated funerary object regardless of the location or existence
of any related human remains.
(2) Unassociated funerary object means any funerary object that is
not an associated funerary object and is identified by a preponderance
of the evidence as one or more of the following:
(i) Related to human remains but the human remains were not removed
or the location of the human remain is unknown,
(ii) Related to specific individuals or families,
(iii) Removed from a specific burial site of an individual or
individuals with cultural affiliation to an Indian Tribe or Native
Hawaiian organization, or
(iv) Removed from a specific area where a burial site of an
individual or individuals with cultural affiliation to an Indian Tribe
or Native Hawaiian organization is known to have existed, but the
burial site is no longer extant.
Holding or collection means an accumulation of one or more objects,
items, or human remains for any temporary or permanent purpose,
including:
(1) Academic interest;
(2) Accession;
(3) Catalog;
(4) Comparison;
(5) Conservation;
(6) Education;
(7) Examination;
(8) Exhibition;
(9) Forensic purposes;
(10) Interpretation;
(11) Preservation;
(12) Public benefit;
(13) Research;
(14) Scientific interest; or
(15) Study.
Human remains means the physical remains of the body of a Native
American individual. This term does not include human remains or
portions of human remains that may reasonably be determined to have
been freely given or naturally shed by the individual from whose body
they were obtained. When human remains are reasonably believed to be
comingled with other material (such as soil or faunal remains), the
entire admixture may be treated as human remains.
(1) Human remains incorporated into a funerary object, sacred
object, or object of cultural patrimony are considered part of the
cultural item rather than human remains.
(2) Human remains incorporated into an object or item that is not a
funerary object, sacred object, or object of cultural patrimony are
considered human remains.
Indian Tribe means any tribe, band, nation, or other organized
group or community of Indians, including any Alaska Native village (as
defined in, or established pursuant to, the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.)), recognized as eligible for
the special programs and services provided by the United States
Government to Indians because of their status as Indians by its
inclusion on the list of recognized Indian Tribes published by the
Secretary under the Act of November 2, 1994 (25 U.S.C. 5131).
Inventory means a simple itemized list of human remains and
associated funerary objects in a holding or collection that includes
the results of consultation and determinations about cultural and
geographical affiliation.
Lineal descendant means:
(1) A living person tracing his or her ancestry, either by means of
traditional Native American kinship systems, or by the common-law
system of descent, to a known individual whose human remains, funerary
objects, or sacred objects are subject to this part; or
(2) A living person tracing his or her ancestry, either by means of
traditional Native American kinship systems, or by the common-law
system of descent, to all the known individuals represented by
comingled human remains (example: the human remains of two individuals
have been comingled, and a living person may trace his or her ancestry
directly to both of the deceased individuals).
Manager, National NAGPRA Program, means the official of the
Department of the Interior designated by the Secretary as responsible
for administration of the Act and this part.
Museum means any institution or State or local government agency
(including any institution of higher learning) that has possession or
control of human remains or cultural items and receives Federal funds.
The term does not include the Smithsonian Institution.
Native American means of, or relating to, a tribe, people, or
culture that is indigenous to the United States. To be considered
Native American under this part, human remains or cultural items must
bear some relationship to a tribe, people, or culture indigenous to the
United States.
(1) A tribe is an Indian Tribe.
(2) A people comprise the entire body of persons who constitute a
community, tribe, nation, or other group by virtue of a common culture,
history, religion, language, race, ethnicity, or similar feature. The
Native Hawaiian Community is a ``people.''
(3) A culture comprises the characteristic features of everyday
existence shared by people in a place or time.
Native American traditional knowledge means knowledge,
philosophies, beliefs, traditions, skills, and practices that are
developed, embedded, and often safeguarded by Native Americans. Native
American traditional knowledge contextualizes relationships between and
among people, the places they inhabit, and the broader world around
them, covering a wide variety of information, including, but not
limited to, cultural, ecological, religious, scientific, societal,
spiritual, and technical knowledge. Native American traditional
knowledge may be, but is not required to be, developed, sustained, and
passed through time, often forming part of a cultural or spiritual
identity.
Native Hawaiian organization means any organization that:
(1) Serves and represents the interests of Native Hawaiians, who
are descendants of the indigenous people who, before 1778, occupied and
exercised sovereignty in the area that now constitutes the State of
Hawai`i;
(2) Has as a primary and stated purpose the provision of services
to Native Hawaiians; and
(3) Has expertise in Native Hawaiian affairs, and includes but is
not limited to:
(i) The Office of Hawaiian Affairs established by the constitution
of the State of Hawai`i;
(ii) Native Hawaiian organizations (including `ohana) who are
registered with the Secretary's Office of Native Hawaiian Relations;
and
(iii) Hawaiian Homes Commission Act (HHCA) Beneficiary Associations
and Homestead Associations as defined under 43 CFR 47.10.
Object of cultural patrimony means an object that has ongoing
historical, traditional, or cultural importance central to a Native
American group, including any constituent sub-group (such as a band,
clan, lineage, ceremonial society, or other subdivision), according to
an Indian Tribe or Native Hawaiian organization based on customs,
traditions, or Native American traditional knowledge. An object of
cultural patrimony may have been entrusted to a caretaker, along with
the authority to confer that responsibility to another caretaker. The
object must be reasonably identified as
[[Page 63240]]
being of such importance central to the group that it:
(1) Cannot or could not be alienated, appropriated, or conveyed by
any person, including its caretaker, regardless of whether the person
is a member of the group, and
(2) Must have been considered inalienable by the group at the time
the object was separated from the group.
`Ohana (family) means a group of people who are not lineal
descendants but comprise a Native Hawaiian organization whose members
have a familial or kinship relationship with each other.
Person means:
(1) An individual, partnership, corporation, trust, institution,
association, or any other private entity; or
(2) Any representative, official, employee, agent, department, or
instrumentality of the United States Government or of any Indian Tribe
or Native Hawaiian organization, or of any State or subdivision of a
State.
Possession or control means having a sufficient interest in an
object or item to independently direct, manage, oversee, or restrict
the use of the object or item. A museum or Federal agency may have
possession or control regardless of whether the object or item is in
its physical custody. In general, custody through a loan, lease,
license, bailment, or other similar arrangement is not a sufficient
interest to constitute possession or control, which resides with the
loaning, leasing, licensing, bailing, or otherwise transferring museum
or Federal agency.
Receives Federal funds means an institution or agency of a State or
local government (including an institution of higher learning) directly
or indirectly receives Federal financial assistance after November 16,
1990, including any grant; cooperative agreement; loan; contract; use
of Federal facilities, property, or services; or other arrangement
involving the transfer of anything of value for a public purpose
authorized by a law of the United States Government. This term includes
Federal financial assistance provided for any purpose that is received
by a larger entity of which the institution or agency is a part. For
example, if an institution or agency is a part of a State or local
government or a private university, and the State or local government
or private university receives Federal financial assistance for any
purpose, then the institution or agency receives Federal funds for the
purpose of these regulations. This term does not include procurement of
property or services by and for the direct benefit or use of the United
States Government or Federal payments that are compensatory.
Repatriation means a museum or Federal agency acknowledges and
recognizes a lineal descendant, Indian Tribe, or Native Hawaiian
organization has control or ownership of human remains or cultural
items in a holding or collection.
Review Committee means the advisory committee established under the
Act.
Right of possession means possession or control obtained with the
voluntary consent of a person or group that had authority of
alienation. Right of possession is given through the original
acquisition of:
(1) An unassociated funerary object, a sacred object, or an object
of cultural patrimony from an Indian Tribe or Native Hawaiian
organization with the voluntary consent of a person or group with
authority to alienate the object; or
(2) Human remains and associated funerary objects which were
exhumed, removed, or otherwise obtained with full knowledge and consent
of the next of kin or, when no next of kin is ascertainable, the
official governing body of the appropriate Indian Tribe or Native
Hawaiian organization.
Sacred object means an object that is a specific ceremonial object
needed by a traditional religious leader for the practice of
traditional Native American religion by present-day adherents,
according to a lineal descendant, Indian Tribe, or Native Hawaiian
organization based on customs, traditions, or Native American
traditional knowledge. While many items might be imbued with sacredness
in a culture, this term is specifically limited to objects needed for
the observance or renewal of Native American religious ceremonies.
Secretary means the Secretary of the Interior or a designee.
Summary means a written description of a holding or collection that
may contain an unassociated funerary object, sacred object, or object
of cultural patrimony.
Traditional religious leader means a person who, based on cultural,
ceremonial, or religious practices, is considered by an Indian Tribe or
Native Hawaiian organization as being responsible for performing
cultural ceremonies or exercising a leadership role.
Tribal lands means:
(1) All lands that are within the exterior boundaries of any Indian
reservation;
(2) All lands that are dependent Indian communities; and
(3) All lands administered by the Department of Hawaiian Home Lands
(DHHL) under the Hawaiian Homes Commission Act of 1920 (HHCA, 42 Stat.
108) and Section 4 of the Act to Provide for the Admission of the State
of Hawai`i into the Union (73 Stat. 4), including ``available lands''
and ``Hawaiian home lands.''
Tribal lands of an NHO means Tribal lands in Hawai`i that are under
the stewardship of a Native Hawaiian organization that has been issued
a lease or license under HHCA section 204(a)(2), second paragraph,
second proviso, or section 207(c)(1)(B).
Unclaimed human remains or cultural items means human remains or
cultural items removed from Federal lands in the United States or from
Tribal lands in Hawai`i whose disposition has not occurred under this
part.
United States means the 50 States and the District of Columbia.
Sec. 10.3 Cultural and Geographical Affiliation.
Throughout this part, affiliation ensures that disposition or
repatriation of human remains or cultural items is based on a
reasonable connection to an Indian Tribe or Native Hawaiian
organization. Affiliation is established by identifying the cultural
and geographical affiliation of the human remains or cultural items
using this section.
(a) Cultural affiliation. Cultural affiliation is identified by
reasonably tracing a relationship of shared group identity between an
Indian Tribe or Native Hawaiian organization and an identifiable
earlier group connected to the human remains or cultural items.
Cultural affiliation is established by a simple preponderance of the
evidence given the information available, including the results of
consultation. Cultural affiliation does not require exhaustive studies
of the human remains or cultural items or continuity through time.
Cultural affiliation is not precluded solely because of reasonable gaps
in the information.
(1) Information. One or more of the following equally relevant
types of information may be used to identify cultural affiliation:
(i) Anthropological;
(ii) Archaeological;
(iii) Biological;
(iv) Folkloric;
(v) Geographical;
(vi) Historical;
(vii) Kinship;
(viii) Linguistic;
(ix) Oral Traditional; or
(x) Other relevant information or expert opinion, including Native
American traditional knowledge which alone may be sufficient to
identify cultural affiliation.
[[Page 63241]]
(2) Criteria. Using the information available, each of the
following criteria for cultural affiliation must be identified:
(i) One or more earlier groups connected to the human remains or
cultural items;
(ii) One or more Indian Tribes or Native Hawaiian organizations;
and
(iii) A relationship of shared group identity between the earlier
group and the Indian Tribe or Native Hawaiian organization reasonably
traced through time.
(3) Multiple cultural affiliations. An identifiable earlier group
may have a relationship to more than one Indian Tribe or Native
Hawaiian organization. As two or more earlier groups may be connected
to human remains or cultural items, a relationship may be reasonably
traced to two or more Indian Tribes or Native Hawaiian organizations
that do not themselves have a shared group identity.
(b) Geographical affiliation. Geographical affiliation is
identified by reasonably tracing a relationship between an Indian Tribe
or Native Hawaiian organization and a geographic area connected to the
human remains or cultural items. Geographical affiliation is
established by the information available, including the results of
consultation.
(1) Information. Existing records, inventories, catalogues,
relevant studies, or other pertinent data may be used to identify the:
(i) Geographic origin of the human remains or cultural items and
(ii) Basic facts surrounding the acquisition and accession of the
human remains or cultural items.
(2) Criteria. Using the information available, each of the
following criteria for geographical affiliation must be identified:
(i) A geographic area connected to the human remains or cultural
items;
(ii) One or more Indian Tribes or Native Hawaiian organizations;
and
(iii) A relationship between the geographic area and the Indian
Tribe or Native Hawaiian organization, based on the identification of
the geographic area as:
(A) The Tribal lands of the Indian Tribe or Native Hawaiian
organization,
(B) The adjudicated aboriginal land of the Indian Tribe, or
(C) The acknowledged aboriginal land of the Indian Tribe.
(3) Multiple geographical affiliations. A geographic area may have
a relationship to more than one Indian Tribe or Native Hawaiian
organization. Information used for geographical affiliation may provide
information sufficient to identify cultural affiliation under paragraph
(a) of this section but must not be used to limit geographical
affiliation.
(c) Multiple affiliations. When affiliation of human remains or
cultural items is established with two or more Indian Tribes or Native
Hawaiian organizations, any of the Indian Tribes or Native Hawaiian
organizations may submit a claim for disposition or a request for
repatriation. Two or more Indian Tribes or Native Hawaiian
organizations with affiliation may agree to joint disposition or joint
repatriation of the human remains or cultural items.
(1) Single claims or requests. Claims or requests for joint
disposition or joint repatriation of human remains or cultural items
are considered a single claim or request and not competing claims or
requests. Notices and statements for joint disposition or joint
repatriation of human remains or cultural items required under this
part must identify all joint requestors.
(2) Competing claims or requests. Under Sec. Sec. 10.7, 10.9, and
10.10, when there are competing claims for disposition or competing
requests for repatriation of human remains or cultural items, it may be
necessary to determine the Indian Tribe or Native Hawaiian organization
with the closest affiliation under paragraph (d) of this section.
(d) Closest affiliation. (1) The Indian Tribe with the closest
affiliation, in the following order, is:
(i) The Indian Tribe whose cultural affiliation is clearly
identified.
(ii) The Indian Tribe whose cultural affiliation is not clearly
identified but is reasonably identified by the information available,
including the circumstances surrounding the acquisition of the human
remains or cultural items.
(iii) The Indian Tribe whose geographical affiliation is based on
the Tribal lands of the Indian Tribe.
(iv) The Indian Tribe whose geographical affiliation is based on
the adjudicated aboriginal land of the Indian Tribe.
(v) The Indian Tribe whose geographical affiliation is based on the
acknowledged aboriginal land of the Indian Tribe.
(2) The Native Hawaiian organization with the closest cultural
affiliation, in the following order, is:
(i) An `ohana that can trace an unbroken connection of named
individuals to one or more of the human remains or cultural items, but
not necessarily to all of the human remains or cultural items from a
specific site.
(ii) An `ohana that can trace a relationship to the ahupua`a where
the human remains or cultural items were removed and a direct kinship
to one or more of the human remains or cultural items, but not
necessarily an unbroken connection of named individuals.
(iii) An organization with affiliation only to the earlier
occupants of the ahupua`a where the human remains or cultural items
were removed, and not to the earlier occupants of any other ahupua`a.
(iv) An organization with affiliation to either:
(A) The earlier occupants of the ahupua`a where the human remains
or cultural items were removed, as well as to the earlier occupants of
other ahupua`a on the same island, but not to the earlier occupants of
all ahupua`a on that island, or to the earlier occupants of any other
island of the Hawaiian archipelago, or
(B) The earlier occupants of another island who accessed the
ahupua`a where the human remains or cultural items were removed for
traditional or customary practices and were buried there.
(v) An organization with affiliation to the earlier occupants of
all ahupua`a on the island where the human remains or cultural items
were removed, but not to the earlier occupants of any other island of
the Hawaiian archipelago.
(vi) An organization with affiliation to the earlier occupants of
more than one island in the Hawaiian archipelago that has been in
continuous existence from a date prior to 1893.
(vii) Any other Native Hawaiian organization with affiliation.
Subpart B--Protection of Human Remains or Cultural Items on Federal
or Tribal Lands
Sec. 10.4 General.
Whenever an Indian Tribe, Native Hawaiian organization, Federal
agency, or the State of Hawai`i Department of Hawaiian Home Lands
(DHHL) has responsibility for human remains or cultural items on
Federal or Tribal lands, it must comply with the requirements of this
subpart. To ensure compliance with the Act, any permit, license, lease,
right-of-way, or other authorization issued by an Indian Tribe, Native
Hawaiian organization, Federal agency, or DHHL for an activity on
Federal or Tribal lands must include a requirement that the person
responsible for the activity comply with Sec. 10.5 upon the discovery
of human remains or cultural items. Prior to any excavation of human
remains or cultural items on Federal or Tribal lands, an Indian Tribe,
Native Hawaiian organization, Federal
[[Page 63242]]
agency, or DHHL must comply with Sec. 10.6.
(a) Appropriate official. To ensure compliance with the Act, the
Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL
that has responsibility for human remains or cultural items on Federal
or Tribal lands must designate one or more appropriate officials, as
shown in Table 1 of this section. The appropriate official is
responsible for carrying out the requirements of this subpart.
(b) Plan of action. On Federal lands in the United States or on
Tribal lands in Hawai`i, a plan of action is required for any planned
activity (including an excavation authorized under Sec. 10.6) that is
likely to result in a discovery or excavation of human remains or
cultural items. Determining the likelihood of discovery or excavation
must be based upon previous studies, discoveries, or excavations in the
general proximity of the planned activity. Information from and the
expertise of Native American cultural practitioners, while not
required, may assist in determining the likelihood of discovery or
excavation. In consultation with any lineal descendants, Indian Tribes,
or Native Hawaiian organizations, the appropriate official must
prepare, approve, and sign a plan of action.
(1) Step 1--Initiate consultation. Before the planned activity
begins, the appropriate official must identify consulting parties and
make a good-faith effort to invite the parties to consult.
(i) Consulting parties are any lineal descendant and any Indian
Tribe or Native Hawaiian organization with potential affiliation.
(ii) An invitation to consult must be in writing and must include:
(A) A description of the planned activity and its general location;
(B) The names of all identified consulting parties; and
(C) A proposed timeline and method for consultation.
(iii) Any consulting party, regardless of whether the party has
received an invitation to consult, must submit a written request to
consult. A written request to consult may be submitted to the
appropriate official at any time.
(2) Step 2--Consult with requesting parties. No later than 10 days
after receiving a written request to consult, the appropriate official
must respond in writing with a proposed timeline for consultation. The
proposed timeline must allow for consultation to occur before the
planned activity begins.
(i) In the response to the requesting party, the appropriate
official must ask a requesting party for the following information, if
not already provided:
(A) Recommendations on the proposed timeline and method for
consultation; and
(B) The name, phone number, email address, or mailing address for
any authorized representative, traditional religious leaders, and known
lineal descendant who should participate in consultation.
(ii) The consultation process must seek consensus, to the maximum
extent possible, on the content of the plan of action.
(iii) The appropriate official must prepare a record of
consultation that includes the effort made to seek consensus. If
recommendations by requesting parties are not possible, the record of
consultation must describe efforts to identify a mutually agreeable
alternative. The appropriate official must record the concurrence,
disagreement, or nonresponse of the requesting parties to the plan of
action.
(3) Step 3--Approve and sign the plan of action. Before the planned
activity begins, the appropriate official must approve and sign a plan
of action and must provide a copy to all consulting parties. At a
minimum, the written plan of action must include:
(i) A description of the planned activity and its general location;
(ii) A list of all consulting parties identified under paragraph
(b)(1) of this section;
(iii) A record of consultation under paragraph (b)(2) of this
section;
(iv) The preference of requesting parties for:
(A) Stabilizing and covering human remains or cultural items in
situ;
(B) Protecting and relocating human remains or cultural items, if
removed; or
(C) Providing the appropriate treatment, care, or handling of human
remains or cultural items; and
(v) The timeline and method for:
(A) Informing all identified consulting parties of a discovery;
(B) Evaluating the potential need for an excavation; and
(C) Completing the disposition, to include publication of a notice
of intended disposition, under Sec. 10.7.
(c) Comprehensive agreement. To facilitate compliance with the Act,
a Federal agency or DHHL may develop a written comprehensive agreement
for all land managing activities on Federal or Tribal lands, or
portions thereof, under its responsibility. The written comprehensive
agreement must:
(1) Be developed in consultation with any Indian Tribe or Native
Hawaiian organization identified under paragraph (b)(1) of this section
and requesting to consult under paragraph (b)(2) of this section;
(2) Include, at minimum, a plan of action under paragraph (b)(3) of
this section;
(3) Be consented to by a majority of requesting parties or lineal
descendants identified under paragraph (b)(2) of this section. Evidence
of consent will be by the authorized representative's signature on the
agreement or by official correspondence to the Federal agency or DHHL;
and
(4) Be signed by the appropriate official for the Federal agency or
DHHL.
(d) Federal agency coordination with other laws. To manage
compliance with the Act, a Federal agency may coordinate its
responsibility under this subpart with its responsibilities under other
relevant Federal laws. Compliance with this subpart does not relieve a
Federal agency of the responsibility for compliance with the National
Historic Preservation Act (54 U.S.C. 306108, commonly known as Section
106) or the Archeological and Historic Preservation Act (54 U.S.C.
312501-312508).
Table 1 to Sec. 10.4--Appropriate Official
------------------------------------------------------------------------
The appropriate official is
For human remains or cultural items on . . a representative for the . .
. .
------------------------------------------------------------------------
Federal lands in the United States........ Federal agency with primary
management authority.
Tribal lands in Alaska and the continental Indian Tribe.
United States.
Tribal lands in Hawai`i................... DHHL.
------------------------------------------------------------------------
Sec. 10.5 Discovery.
When a discovery of human remains or cultural items on Federal or
Tribal lands occurs, any person who knows or has reason to know of the
discovery must inform the appropriate official for the responsible
Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL.
For any planned activity on Federal lands in the United States or on
Tribal lands in Hawai`i that is likely to result in a discovery of
human remains or cultural items, the appropriate official must, in
consultation with Indian Tribes and Native Hawaiian organizations,
prepare, approve, and sign a plan of action under Sec. 10.4(b), unless
the discovery is already covered by a signed comprehensive agreement
under Sec. 10.4(c).
(a) Report any discovery. Any person who knows or has reason to
know of a discovery of human remains or cultural items on Federal or
Tribal lands must immediately report the discovery to the appropriate
official and any additional point of contact shown in Table 1 of this
section. The person making the
[[Page 63243]]
discovery must make a reasonable effort to secure and protect the human
remains or cultural items, including, as appropriate, stabilizing or
covering the human remains or cultural items. No later than 24 hours
after the discovery, the person making the discovery must send written
documentation of the discovery, including the steps taken to secure and
protect the human remains or cultural items, to the appropriate
official and the additional point of contact shown in Table 1 of this
section.
(b) Cease any nearby activity. To ensure compliance with the Act,
any permit, license, lease, right-of-way, or other authorization issued
by an Indian Tribe, Native Hawaiian organization, Federal agency, or
DHHL for an activity on Federal or Tribal lands must include a
requirement that the person responsible for the activity comply with
this paragraph upon the discovery of human remains or cultural items.
If a discovery is related to any such activity (including but not
limited to construction, mining, logging, or agriculture), the person
responsible for the activity must:
(1) Immediately stop all activity around the discovery;
(2) Immediately report the discovery to the appropriate official
and any additional point of contact shown in Table 1 of this section;
(3) Make a reasonable effort to secure and protect the human
remains or cultural items, including, as appropriate, stabilizing and
covering the human remains or cultural items;
(4) No later than 24 hours after the discovery, send written
documentation of the discovery to the appropriate official and any
additional point of contact stating:
(i) The general location and contents of the discovery,
(ii) The activity related to the discovery,
(iii) The steps taken to secure and protect the human remains or
cultural items, and
(iv) Confirmation that all activity around the discovery has
stopped and will not resume until the date in a written certification
issued under paragraph (e) of this section.
(c) Respond to a discovery. No later than three days after
receiving written documentation of a discovery, the appropriate
official must respond to a discovery. The appropriate official must
comply with the requirements of this section immediately upon learning
of the discovery even if the discovery has not been properly reported.
(1) The appropriate official must make a written record showing a
reasonable effort to:
(i) Take steps to secure and protect the human remains or cultural
items;
(ii) Verify that any activity around the discovery has stopped; and
(iii) Report the discovery to any additional point of contact shown
in Table 1 of this section.
(2) On Tribal lands in Alaska and the continental United States,
the Indian Tribe may delegate its responsibility for the discovery to
the appropriate official for the Bureau of Indian Affairs or the
Federal agency with primary management authority. If both the Federal
agency and the Indian Tribe consent in writing, the appropriate
official for the Bureau of Indian Affairs or the Federal agency with
primary management authority is responsible for completing the
requirements in paragraph (d) of this section.
(3) On Tribal lands of an NHO, the Native Hawaiian organization may
agree in writing to be responsible for discoveries on its Tribal lands
and then must respond to any discovery under this paragraph. If the
Native Hawaiian organization has not agreed in writing to be
responsible for discoveries, the appropriate official for DHHL is
responsible for completing the requirements in paragraph (d) of this
section for any discoveries on those Tribal lands of an NHO.
(d) Approve and sign a plan of action. On Federal lands in the
United States or on Tribal lands in Hawai`i, the appropriate official,
in consultation with Indian Tribes and Native Hawaiian organizations,
must prepare, approve, and sign a plan of action under Sec. 10.4(b) no
later than 30 days after receiving written documentation of a
discovery. To the maximum extent possible, the appropriate official
must carry out the plan of action for any human remains or cultural
items. This requirement does not apply if, before receiving written
documentation of the discovery:
(1) The appropriate official signed a plan of action under Sec.
10.4(b);
(2) The appropriate official signed a comprehensive agreement under
Sec. 10.4(c); or
(3) A Native Hawaiian organization agreed in writing to be
responsible for discoveries on its Tribal lands under paragraph (c)(3)
of this section.
(e) Certify that an activity may resume. No later than 35 days
after receiving written documentation of a discovery, the appropriate
official must send a written certification to the person responsible
for the activity that the activity may resume. The written
certification must provide:
(1) A copy of the signed plan of action or comprehensive agreement
with redaction of any confidential or sensitive information to the
extent of applicable law;
(2) Instructions for protecting, stabilizing, or covering the human
remains or cultural items, if appropriate;
(3) A proposed timeline and method for evaluating the potential
need for and authorization of an excavation of the human remains or
cultural items, if applicable; and
(4) The date (no later than 30 days after the date of the written
certification) on which lawful activity may resume around the
discovery.
Table 1 to Sec. 10.5--Report a Discovery on Federal or Tribal Lands
------------------------------------------------------------------------
The appropriate And the additional
official is the point of contact
Where the discovery is on . . . representative for is the . . .
the . . .
------------------------------------------------------------------------
Federal lands in the United Federal agency Any Indian Tribe
States *. with primary or Native
management Hawaiian
authority. organization with
potential
affiliation, if
known.
Tribal lands in Alaska and the Indian Tribe...... Bureau of Indian
continental United States. Affairs or the
Federal agency
with primary
management
authority, if
any.
Tribal lands in Hawai`i......... DHHL.............. Any Native
Hawaiian
organization with
potential
affiliation, if
known.
* Federal lands in Alaska Bureau of Land Alaska Native
selected but not yet conveyed Management or Corporation or
under the Alaska Native Claims Federal agency group organized
Settlement Act (ANCSA, 43 with primary under ANCSA.
U.S.C. 1601). management
authority.
------------------------------------------------------------------------
[[Page 63244]]
Sec. 10.6 Excavation.
When an excavation of human remains or cultural items on Federal or
Tribal lands is needed, the appropriate official may authorize the
excavation only after complying with this section. The appropriate
official must take reasonable steps to evaluate the potential need for
an excavation of human remains or cultural items. A permit under
Section 4 of ARPA (16 U.S.C. 470cc) is required when the excavation is
on Federal or Tribal lands that are also ARPA Indian lands or ARPA
Public lands, and there is no applicable permit exception or exemption
under the ARPA uniform regulations at 18 CFR 1312, 32 CFR 229, 36 CFR
296, or 43 CFR 7.
(a) On Tribal lands. Before an excavation of human remains or
cultural items may occur, the appropriate official must consent in
writing by providing a written authorization for the excavation.
(1) At minimum, the written authorization must document:
(i) The reasonable steps taken to evaluate the potential need for
an excavation of human remains or cultural items; and
(ii) Any permit that the Indian Tribe or Native Hawaiian
organization legally requires.
(2) On Tribal lands in Alaska and the continental United States,
the Indian Tribe may delegate its responsibility for authorizing the
excavation to the appropriate official for the Bureau of Indian Affairs
or the Federal agency with primary management authority. If both the
Federal agency and the Indian Tribe consent in writing, the appropriate
official for the Bureau of Indian Affairs or the Federal agency with
primary management authority is responsible for completing the
requirements in paragraph (b) of this section.
(3) On Tribal lands of an NHO, the Native Hawaiian organization may
agree in writing to be responsible for excavations on its Tribal lands
and then must provide written authorizations under this paragraph. If
the Native Hawaiian organization has not agreed in writing to be
responsible for excavations, the appropriate official for DHHL is
responsible for completing the requirements in paragraph (b) of this
section for any excavations on those Tribal lands of an NHO.
(b) On Federal lands in the United States or on Tribal lands in
Hawai`i. Before an excavation of human remains or cultural items may
occur, the appropriate official, must prepare, approve, and sign a plan
of action under Sec. 10.4(b) and must provide a written authorization
for the excavation.
(1) Prior to authorizing an excavation, the appropriate official,
in consultation with Indian Tribes and Native Hawaiian organizations,
must prepare, approve, and sign a plan of action under Sec. 10.4(b).
To the maximum extent possible, the appropriate official must carry out
the plan of action for any human remains or cultural items. This
requirement does not apply if prior to authorizing the excavation:
(i) The appropriate official signed a plan of action under Sec.
10.4(b);
(ii) The appropriate official signed a comprehensive agreement
under Sec. 10.4(c); or
(iii) A Native Hawaiian organization agreed in writing to be
responsible for excavations on its Tribal lands under paragraph (a)(3)
of this section.
(2) At minimum, the written authorization must document:
(i) The reasonable steps taken to evaluate the potential need for
an excavation of human remains or cultural items; and
(ii) Any permit that the Federal agency or DHHL legally requires.
Sec. 10.7 Disposition.
When human remains or cultural items are removed from Federal or
Tribal lands, as soon as possible (but no later than one year) after
the discovery or excavation of the human remains or cultural items, the
appropriate official must determine the lineal descendant, Indian
Tribe, or Native Hawaiian organization that has priority for
disposition of human remains or cultural items using this section. On
Federal lands in the United States or on Tribal lands in Hawai`i, when
the appropriate official cannot reasonably determine any Indian Tribe
or Native Hawaiian organization with priority for disposition of human
remains or cultural items, the appropriate official must report the
human remains or cultural items as unclaimed under paragraph (e) of
this section.
(a) Priority for disposition. The disposition of human remains or
cultural items removed from Federal or Tribal lands is determined in
the following priority order:
(1) The known lineal descendants, if any, for human remains and
associated funerary objects;
(2) The Indian Tribe or Native Hawaiian organization from whose
Tribal lands the human remains or cultural items originated;
(3) The Indian Tribe or Native Hawaiian organization with the
closest cultural affiliation according to the priority order at Sec.
10.3(d); or
(4) For human remains or cultural items from adjudicated aboriginal
land, the Indian Tribe with the strongest relationship to the human
remains or cultural items who makes a claim for disposition, which is:
(i) The adjudicated aboriginal land Indian Tribe who claims the
human remains or cultural items, or
(ii) A different Indian Tribe who claims the human remains or
cultural items and shows, by a preponderance of the evidence, a
stronger cultural relationship to the human remains or cultural items
than the adjudicated aboriginal land Indian Tribe.
(b) To a lineal descendant. When a lineal descendant is determined
for human remains and associated funerary objects removed from Federal
or Tribal lands, the appropriate official for the Indian Tribe, Native
Hawaiian organization, Federal agency, or DHHL must send a written
disposition statement to the lineal descendant. The disposition
statement must acknowledge and recognize the lineal descendant has
ownership or control of the human remains and associated funerary
objects.
(1) Before sending the disposition statement, the appropriate
official must consult with the lineal descendant on the care, custody,
and physical transfer of the human remains and associated funerary
objects.
(2) After sending the disposition statement, the appropriate
official must:
(i) Document any physical transfer by recording the contents,
recipient, and method of delivery; and
(ii) Protect sensitive information, as identified by the lineal
descendant, from disclosure to the general public to the extent
consistent with applicable law;
(3) After the disposition statement is sent, nothing in the Act or
this part:
(i) Limits the authority of the Indian Tribe, Native Hawaiian
organization, Federal agency, or DHHL to enter into any agreement with
the lineal descendant concerning the care or custody of the human
remains and associated funerary objects, or
(ii) Limits any procedural or substantive right which may otherwise
be secured to the lineal descendant.
(c) On Tribal lands. When a lineal descendant cannot be determined
for human remains and associated funerary objects, or in the case of
unassociated funerary objects, sacred objects, or objects of cultural
patrimony, the appropriate official for the Indian Tribe or Native
Hawaiian organization from whose Tribal lands the human remains or
cultural items were removed must complete a written disposition
statement.
[[Page 63245]]
(1) The written disposition statement must acknowledge and
recognize:
(i) A lineal descendant could not be ascertained and
(ii) The Indian Tribe or Native Hawaiian organization has control
or ownership of the human remains or cultural items.
(2) On Tribal lands in Alaska and the continental United States,
the Indian Tribe may delegate its responsibility for disposition of
human remains or cultural items to the appropriate official for the
Bureau of Indian Affairs or the Federal agency with primary management
authority. If both the Federal agency and the Indian Tribe consent in
writing, the appropriate official for the Bureau of Indian Affairs or
the Federal agency with primary management authority is responsible for
completing the requirements in paragraph (d) of this section.
(3) On Tribal lands of an NHO, the Native Hawaiian organization may
agree in writing to be responsible for disposition of human remains or
cultural items from its Tribal lands and then must provide written
disposition statements under this paragraph. If the Native Hawaiian
organization has not agreed in writing to be responsible for
dispositions, the appropriate official for DHHL is responsible for
completing the requirements in paragraph (d) of this section for any
dispositions from those Tribal lands of an NHO.
(4) After the disposition statement is complete, nothing in the Act
or this part:
(i) Limits the authority of a Federal agency to enter into any
agreement with the Indian Tribe or Native Hawaiian organization
concerning the care or custody of the human remains or cultural items,
(ii) Limits any procedural or substantive right which may otherwise
be secured to the Indian Tribe or Native Hawaiian organization, or
(iii) Prevents the governing body of an Indian Tribe or Native
Hawaiian organization from expressly relinquishing its control or
ownership of human remains, funerary objects, or sacred objects.
(d) On Federal lands in the United States or on Tribal lands in
Hawai`i. When a lineal descendant cannot be determined for human
remains and associated funerary objects, or in the case of unassociated
funerary objects, sacred objects, or objects of cultural patrimony, the
appropriate official for the Federal agency or DHHL must determine the
Indian Tribe or Native Hawaiian organization with priority for
disposition under paragraph (a) of this section. When the appropriate
official cannot reasonably determine any Indian Tribe or Native
Hawaiian organization with priority for disposition of human remains or
cultural items, the Federal agency or DHHL must report the human
remains or cultural items as unclaimed under paragraph (e) of this
section. On Tribal lands in Hawai`i, this requirement is waived if the
Native Hawaiian organization agreed in writing to be responsible for
disposition of human remains or cultural items from its Tribal lands
under paragraph (c)(3) of this section.
(1) Step 1--Inform consulting parties. As soon as possible but no
later than six months after a discovery or excavation of human remains
or cultural items, the appropriate official must send a written
document informing all consulting parties identified in the plan of
action under Sec. 10.4(b)(1). Consultation on the disposition of human
remains or cultural items may continue until publication of a notice of
intended disposition under paragraph (d)(2) of this section. The
appropriate official must send a written document to the consulting
parties that includes:
(i) A description of the human remains or cultural items including
the general location and date of discovery or excavation;
(ii) The name of each Indian Tribe or Native Hawaiian organization
identified as having priority for disposition of the human remains or
cultural items and a brief abstract of the information used to make
that identification; and
(iii) A request that if the Indian Tribe or Native Hawaiian
organization wishes to submit a claim for disposition of the human
remains or cultural items, it should do so in writing no later than 30
days after publication of a notice in the Federal Register.
(2) Step 2--Submit a notice of intended disposition. No earlier
than 30 days and no later than six months after informing consulting
parties, the appropriate official must submit a notice of intended
disposition to the Manager, National NAGPRA Program, for publication in
the Federal Register. If the human remains or cultural items are
evidence in an ongoing civil or criminal action under ARPA, the
deadline for the notice is extended until the conclusion of the ARPA
case.
(i) A notice of intended disposition must conform to the mandatory
format of the Federal Register and include:
(A) A brief description of the human remains or cultural items,
including the county and state where the human remains or cultural
items were removed;
(B) The identity of the human remains or cultural items
specifically as human remains, associated funerary objects,
unassociated funerary objects, sacred objects, objects of cultural
patrimony, or both sacred objects and objects of cultural patrimony,
and a brief abstract of the information used to make that
identification;
(C) The name of each Indian Tribe or Native Hawaiian organization
with priority for disposition of the human remains or cultural items
and a brief abstract of the information used to make that
identification;
(D) The name, phone number, email address, and mailing address for
the appropriate official who is responsible for receiving written
claims for disposition of the human remains or cultural items;
(E) The date (to be calculated by the Federal Register 30 days from
the date of publication) after which the appropriate official may send
a disposition statement to a claimant; and
(F) The date (to be calculated by the Federal Register one year
from the date of publication) on which the human remains or cultural
items will become unclaimed human remains or cultural items if no
written claim is received from an Indian Tribe or Native Hawaiian
organization.
(ii) No later than 15 days after receiving a notice of intended
disposition, the Manager, National NAGPRA Program, will:
(A) Approve for publication in the Federal Register a notice of
intended disposition that conforms to the requirements under paragraph
(d)(2)(i) of this section; or
(B) Return to the Federal agency or DHHL any submission that does
not meet the requirements under paragraph (d)(2)(i) of this section.
(3) Step 3--Receive and consider a claim for disposition. After
publication of a notice of intended disposition in the Federal
Register, any Indian Tribe or Native Hawaiian organization may submit
to the appropriate official a written claim for disposition of human
remains or cultural items.
(i) A claim for disposition of human remains or cultural items must
be received by the appropriate official before the appropriate official
sends a disposition statement for the human remains or cultural items
to a claimant under paragraph (d)(5) of this section or the transfer or
reinterment of the human remains or cultural items under paragraph
(e)(4) of this section. Any claim for disposition received by the
appropriate official no later than 30 days after publication of a
notice must be considered. A claim for disposition received by the
appropriate official before the publication of the notice of
[[Page 63246]]
intended disposition is dated the same date the notice was published.
(ii) Claims from two or more Indian Tribes or Native Hawaiian
organizations who agree to joint disposition of the human remains or
cultural items are considered a single claim and not competing claims.
(iii) A claim for disposition must satisfy one of the following
criteria:
(A) The claim is from an Indian Tribe or Native Hawaiian
organization identified in the notice of intended disposition with
priority for disposition, or
(B) The claim is not from an Indian Tribe or Native Hawaiian
organization identified in the notice of intended disposition, and
shows that the claimant is a lineal descendant, Indian Tribe, or Native
Hawaiian organization having priority for disposition under paragraph
(a) of this section.
(4) Step 4--Respond to a claim for disposition. No earlier than 30
days after publication of a notice of intended disposition but no later
than 30 days after receiving a claim for disposition, the appropriate
official must send a written response to the claimant with a copy to
any other party identified in the notice with priority for disposition.
(i) In the written response, the appropriate official must state
one of the following:
(A) The claim meets the criteria under paragraph (d)(3) of this
section. The appropriate official will send a disposition statement to
the claimant under paragraph (d)(5) of this section, unless the
appropriate official receives additional, competing claims for
disposition of human remains or cultural items.
(B) The claim does not meet the criteria under paragraph (d)(3) of
this section. The appropriate official must provide a detailed
explanation why the claim does not meet the criteria and an opportunity
for the claimant to provide additional information to meet the
criteria.
(C) The appropriate official has received competing claims for
disposition of the human remains or cultural items that meet the
criteria and must determine the most appropriate claimant using the
procedures and timelines under paragraph (d)(4)(ii) of this section.
(ii) At any time before sending a disposition statement for human
remains or cultural items under paragraph (d)(5) of this section, the
appropriate official may receive additional, competing claims for
disposition of the human remains or cultural items that meet the
criteria under paragraph (d)(3) of this section. The appropriate
official must determine the most appropriate claimant using the
priority for disposition under paragraph (a) of this section.
(A) No later than 10 days after receiving a competing claim, the
appropriate official must send a written letter to each claimant
identifying all claimants and the date each claim was received,
(B) No later than 120 days after informing the claimants of
competing claims, the appropriate official must send a written
determination to each claimant identifying the most appropriate
claimant(s), and
(C) No earlier than 30 days but no later than 90 days after sending
a determination of the most appropriate claimant(s), the appropriate
official must send a disposition statement to the most appropriate
claimant(s) under paragraph (d)(5) of this section.
(5) Step 5--Disposition of the human remains or cultural items. No
later than 90 days after responding to a claim for disposition that
meets the criteria, the appropriate official must send a written
disposition statement to the claimant(s) and a copy to the Manager,
National NAGPRA Program. The disposition statement must acknowledge and
recognize the claimant(s) has control or ownership of the human remains
or cultural items. Disposition must be in a manner that, to the maximum
extent possible, respects the traditions of the lineal descendant,
Indian Tribe, or Native Hawaiian organization. In the case of joint
claims for disposition, the disposition statement must be sent to and
must identify all claimants.
(i) Before sending the disposition statement, the appropriate
official must consult with the claimant(s) on the care, custody, and
physical transfer of the human remains or cultural items.
(ii) After sending the disposition statement, the appropriate
official must:
(A) Document any physical transfer by recording the contents,
recipient(s), and method of delivery and
(B) Protect sensitive information, as identified by the
claimant(s), from disclosure to the general public to the extent
consistent with applicable law.
(iii) After the disposition statement is sent, nothing in the Act
or this part:
(A) Limits the authority of the Federal agency or DHHL to enter
into any agreement with the Indian Tribe or Native Hawaiian
organization concerning the care or custody of the human remains or
cultural items,
(B) Limits any procedural or substantive right which may otherwise
be secured to the Indian Tribe or Native Hawaiian organization, or
(C) Prevents the governing body of an Indian Tribe or Native
Hawaiian organization from expressly relinquishing its control or
ownership of human remains, funerary objects, or sacred objects.
(e) Unclaimed human remains or cultural items removed from Federal
lands in the United States or from Tribal lands in Hawai`i. When the
appropriate official cannot complete the disposition of human remains
or cultural items under paragraph (d) of this section, the Federal
agency or DHHL must report the human remains or cultural items as
unclaimed. The appropriate official must, to the maximum extent
possible, respect the traditions of the Indian Tribe or Native Hawaiian
organization that may have priority for disposition under paragraph (a)
of this section.
(1) Step 1--Submit a list of unclaimed cultural items. No later
than [DATE 395 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER], the Federal agency or DHHL must submit to the
Manager, National NAGPRA Program, a list of all unclaimed cultural
items in its custody. The Federal agency or DHHL must submit updates to
its list of unclaimed cultural items by December 31 each year.
(i) Human remains or cultural items are unclaimed when:
(A) One year after publishing a notice of intended disposition
under paragraph (d)(2) of this section, no Indian Tribe or Native
Hawaiian organization submits a written claim for disposition, or
(B) One year after discovery or excavation of the human remains or
cultural items, the appropriate official could not reasonably identify
any lineal descendant, Indian Tribe, or Native Hawaiian organization
with priority for disposition under paragraph (a) of this section.
(ii) A list of unclaimed human remains or cultural items must
include:
(A) A brief description of the human remains or cultural items,
including the county and state where the human remains or cultural
items were removed;
(B) The names of all consulting parties and an abstract of the
results of consultation;
(C) If known, the identity of the human remains or cultural items
specifically as human remains, associated funerary objects,
unassociated funerary objects, sacred objects, objects of cultural
patrimony, or both sacred objects and objects of cultural patrimony,
and a brief abstract of the information used to make that
identification; and
(D) If known, the name of each Indian Tribe or Native Hawaiian
organization
[[Page 63247]]
with priority for disposition under paragraph (a) of this section and a
brief abstract of the information used to make that identification.
(iii) At any time before transferring or reinterring human remains
or cultural items under paragraph (e)(4) of this section, the
appropriate official may receive a claim for disposition of the human
remains or cultural items and must evaluate whether the claim meets the
criteria under paragraph (d)(3) of this section. Any agreement to
transfer or decision to reinter the human remains or cultural items
under this paragraph is stayed until the claim for disposition is
resolved under paragraph (d) of this section. No later than 10 days
after receiving a claim for disposition, the appropriate official must
send a written letter to each claimant or requestor identifying all
claimants and requestors and the date each claim or request was
received.
(A) If the claim meets the criteria under paragraph (d)(3) of this
section and a notice of intended disposition was published under
paragraph (d)(2) of this section, the appropriate official must respond
in writing under paragraph (d)(4) and proceed with disposition under
(d)(5) of this section.
(B) If the claim meets the criteria under paragraph (d)(3) of this
section but no notice of intended disposition was published, the
appropriate official must submit a notice of intended disposition under
paragraph (d)(2), respond in writing under paragraph (d)(4), and
proceed with disposition under (d)(5) of this section.
(C) No later than 90 days after responding to a claim for
disposition that meets the criteria, the appropriate official must send
a written letter to each claimant or requestor identifying the claimant
that has control or ownership of the human remains or cultural items.
(D) If the claim does not meet the criteria under paragraph (d)(3)
of this section, the appropriate official must respond in writing under
paragraph (d)(4) and may proceed with transfer or reinterment under
paragraph (e)(2) of this section.
(2) Step 2--Agree to transfer or decide to reinter human remains or
cultural items. Subject to the requirements in paragraph (e)(3) of this
section, and at the discretion of the Federal agency or DHHL, a Federal
agency or DHHL may:
(i) Agree in writing to transfer unclaimed cultural items to a
requestor that agrees to treat the human remains or cultural items
according to the requestor's laws and customs. Unclaimed cultural items
must be requested in writing and may only be requested by:
(A) An Indian Tribe or Native Hawaiian organization, or
(B) An Indian group that is not federally recognized but has a
relationship to unclaimed human remains or associated funerary objects.
(ii) Decide in writing to reinter unclaimed human remains or
funerary objects according to applicable laws and policies.
(3) Step 3--Submit a notice of proposed transfer or reinterment. No
later than 30 days after agreeing to transfer or deciding to reinter
the human remains or cultural items, the Federal agency or DHHL must
submit a notice of proposed transfer or reinterment to the Manager,
National NAGPRA Program for publication in the Federal Register. The
Federal agency or DHHL must send a copy of the published notice to any
Indian Tribe or Native Hawaiian organization identified as having a
priority for disposition under paragraph (a) of this section.
(i) A notice of proposed transfer or reinterment must conform to
the mandatory format of the Federal Register and include:
(A) The details provided in the list of unclaimed cultural items
under paragraph (e)(1) of this section;
(B) The name of each Indian Tribe, Native Hawaiian organization, or
Indian group requesting the human remains or cultural items or a
statement that the Federal agency or DHHL will reinter the human
remains or funerary objects;
(C) The name, phone number, email address, and mailing address for
the appropriate official who is responsible for receiving written
claims for disposition of the human remains or cultural items; and
(D) The date (to be calculated by the Federal Register 30 days from
the date of publication) after which the Federal agency or DHHL may
proceed with the transfer or reinterment of the human remains or
cultural items.
(ii) No later than 15 days after receiving a notice of proposed
transfer or reinterment, the Manager, National NAGPRA Program, will:
(A) Approve for publication in the Federal Register a notice of
proposed transfer or reinterment that conforms to the requirements
under paragraph (e)(3)(i) of this section; or
(B) Return to the Federal agency or DHHL any submission that does
not meet the requirements under paragraph (e)(3)(i) of this section.
(4) Step 4--Transfer or reinter the human remains or cultural
items. No earlier than 30 days and no later than 90 days after
publication of a notice of proposed transfer or reinterment, the
appropriate official must transfer or reinter the human remains or
cultural items.
(i) After transferring or reinterring, the appropriate official
must:
(A) Document the transfer by recording the contents, recipient, and
method of delivery,
(B) Document the reinterment by recording the contents of the
reinterment,
(C) Protect sensitive information about the human remains or
cultural items from disclosure to the general public to the extent
consistent with applicable law.
(ii) After transfer or reinterment occurs, nothing in the Act or
this part:
(A) Limits the authority of the Federal agency or DHHL to enter
into any agreement with the requestor concerning the care or custody of
the human remains or cultural items,
(B) Limits any procedural or substantive right which may otherwise
be secured to the Indian Tribe or Native Hawaiian organization, or
(C) Prevents the governing body of an Indian Tribe or Native
Hawaiian organization from expressly relinquishing its control or
ownership of human remains, funerary objects, or sacred objects.
Subpart C--Repatriation of Human Remains or Cultural Items by
Museums or Federal Agencies
Sec. 10.8 General.
Each museum and Federal agency that has possession or control of a
holding or collection that may contain human remains, funerary objects,
sacred objects, or objects of cultural patrimony must comply with the
requirements of this subpart, regardless of the physical location of
the holding or collection. Each museum and Federal agency must identify
one or more authorized representatives who are responsible for carrying
out the requirements of this subpart.
(a) Museum holding or collection. A museum must comply with this
subpart for all holdings or collections under its possession or control
that contain human remains or cultural items, including a new holding
or collection or a previously lost or previously unknown holding or
collection.
(1) A museum must determine whether it has sufficient interest in a
holding or collection to constitute possession or control on a case-by-
case basis given the relevant information about the holding or
collection.
(i) A museum may have custody of a holding or collection but not
possession
[[Page 63248]]
or control. In general, custody through a loan, lease, license,
bailment, or other similar arrangement is not sufficient interest to
constitute possession or control, which resides with the loaning,
leasing, licensing, bailing, or otherwise transferring museum or
Federal agency.
(ii) If a museum has custody of a holding or collection, the museum
may be required to report the holding or collection under paragraphs
(c) or (d) of this section.
(2) Any museum that completes repatriation of human remains and
cultural items or transfers or reinters human remains and associated
funerary objects in good faith under this subpart shall not be liable
for claims by an aggrieved party or for claims of breach of fiduciary
duty, public trust, or violations of state law that are inconsistent
with the provisions of the Act or this part.
(b) Federal agency holding or collection. A Federal agency must
comply with this subpart for all holdings or collections in its
possession or control that contain human remains and cultural items,
including a previously lost or previously unknown holding or
collection. A Federal agency must determine if a holding or collection:
(1) Was in its possession or control on or before November 16,
1990; or
(2) Came into its possession or control after November 16, 1990,
and was removed from:
(i) An unknown location, or
(ii) Lands that are neither Federal nor Tribal lands as defined in
this part.
(c) Museums with custody of a Federal agency holding or collection.
No later than [DATE 395 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER], each museum that has custody of a
Federal agency holding or collection that contains Native American
human remains or cultural items must submit a statement describing that
holding or collection to the authorized representatives of the Federal
agency most likely to have possession or control and to the Manager,
National NAGPRA Program.
(1) No later than 120 days following receipt of a museum's
statement, the Federal agency must respond to the museum and the
Manager, National NAGPRA program, with a written acknowledgement of one
of the following:
(i) The Federal agency has possession or control of the holding or
collection;
(ii) The Federal agency does not have possession or control of the
holding or collection; or
(iii) The Federal agency and the museum have joint possession or
control of the holding or collection.
(2) Failure to issue such a determination by the deadline will
constitute acknowledgement that the Federal agency has possession or
control. The Federal agency is ultimately responsible for the
requirements of this subpart for all holdings or collections under its
possession or control, regardless of the physical location of the
holdings or collection.
(d) Museums with custody of other holdings or collections. No later
than [DATE 395 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER], each museum that has custody of a holding or
collection that contains Native American human remains or cultural
items and for which it cannot identify any person, institution, State
or local government agency, or Federal agency with possession or
control of the holding or collection, must submit a statement
describing that holding or collection to the Manager, National NAGPRA
Program.
(e) Contesting actions on repatriation. An affected party under
Sec. 10.12(c)(1) who wishes to contest actions made by museums or
Federal agencies under this subpart is encouraged to do so through
informal negotiations to achieve a fair resolution of the matter.
Informal negotiations may include requesting the assistance of the
Manager, National NAGPRA Program, or the Review Committee under Sec.
10.12.
Sec. 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony.
Each museum and Federal agency that has possession or control of a
holding or collection that may contain an unassociated funerary object,
sacred object, or object of cultural patrimony must follow the steps in
this section. The purpose of this section is to provide general
information about a holding or collection to lineal descendants, Indian
Tribes, and Native Hawaiian organizations to facilitate repatriation.
(a) Step 1--Complete a summary of a holding or collection. Based on
the information available, a museum or Federal agency must submit to
the Manager, National NAGPRA Program, a summary describing its holding
or collection that may contain unassociated funerary objects, sacred
objects, and objects of cultural patrimony. Depending on the scope of
the holding or collection, a museum or Federal agency may organize its
summary into sections based on geographic area, accession or catalog
name or number, or other defining attributes. A museum or Federal
agency must ensure the summary is comprehensive and covers all holdings
or collections relevant to this section.
(1) A summary must include:
(i) The estimated number and a general description of the holding
or collection, including any potential unassociated funerary objects,
sacred objects, and objects of cultural patrimony;
(ii) The county and state where the potential unassociated funerary
objects, sacred objects, and objects of cultural patrimony were
removed;
(iii) The acquisition history (provenance) of the potential
unassociated funerary objects, sacred objects, and objects of cultural
patrimony;
(iv) Other information relevant for identifying:
(A) A lineal descendant or an Indian Tribe or Native Hawaiian
organization with cultural affiliation;
(B) Any object or item as an unassociated funerary object, sacred
object, or object of cultural patrimony; and
(v) The presence of any potentially hazardous substances used to
treat any of the unassociated funerary objects, sacred objects, or
objects of cultural patrimony, if known.
(2) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], a museum or Federal agency must submit a
summary to the Manager, National NAGPRA Program, by the deadline in
Table 1 of this section.
(3) Prior to [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER], a museum or Federal agency must have
submitted a summary to the Manager, National NAGPRA Program:
(i) By November 16, 1993, for unassociated funerary objects, sacred
objects, and objects of cultural patrimony subject to the Act;
(ii) By October 20, 2007, for unassociated funerary objects, sacred
objects, and objects of cultural patrimony acquired or located after
November 16, 1993;
(iii) By April 20, 2010, for unassociated funerary objects, sacred
objects, and objects of cultural patrimony in the possession or control
of a museum that received Federal funds for the first time after
November 16, 1993;
(iv) Within six months of acquiring or locating unassociated
funerary objects,
[[Page 63249]]
sacred objects, and objects of cultural patrimony after October 20,
2007; or
(v) Within three years of receiving Federal funds for the first
time after April 20, 2010.
(4) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], when a holding or collection previously
included in a summary is transferred to a museum or Federal agency, The
museum or Federal agency acquiring possession or control of the holding
or collection may rely on the previously completed summary. The museum
or Federal agency must submit the previously completed summary to the
Manager, National NAGPRA Program, no later than 30 days after acquiring
the holding or collection. The museum or Federal agency must submit a
summary to the Manager, National NAGPRA Program, no later than the
deadline in Table 1 of this section and must initiate consultation
under paragraph (b) of this section.
(b) Step 2--Initiate consultation. No later than 30 days after
completing a summary, a museum or Federal agency must identify
consulting parties based on information available and make a good-faith
effort to invite the parties to consult.
(1) Consulting parties are any lineal descendant and any Indian
Tribe or Native Hawaiian organization with potential affiliation.
(2) An invitation to consult must be in writing and must include:
(i) The summary described in paragraph (a)(1) of this section;
(ii) The names of all identified consulting parties; and
(iii) A proposed timeline and method for consultation.
(3) Any consulting party, regardless of whether the party has
received an invitation to consult, must submit a written request to
consult. A written request to consult may be submitted at any time
before the publication of a notice of intended repatriation under
paragraph (f) of this section.
(4) When a museum or Federal agency identifies a new consulting
party under paragraph (b)(1) of this section, the museum or Federal
agency must make a good-faith effort to invite the party to consult and
must send an invitation to consult under paragraph (b)(2) of this
section. An invitation to consult must be sent to new consulting
parties:
(i) No later than 10 days after identifying a new consulting party
based on new information; or
(ii) No later than six months after the addition of a Tribal entity
to the list of federally recognized Indian Tribes published in the
Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C.
5131).
(c) Step 3--Consult with requesting parties. No later than 10 days
after receiving a written request to consult, a museum or Federal
agency must respond in writing with a proposed timeline for
consultation. Consultation on an unassociated funerary object, sacred
object, or object of cultural patrimony may continue until the museum
or Federal agency sends a repatriation statement for that object to a
requestor under paragraph (g) of this section.
(1) In the response to the requesting party, a museum or Federal
agency must ask a requesting party for the following information, if
not already provided:
(i) Recommendations on the proposed timeline and method for
consultation; and
(ii) The name, phone number, email address, or mailing address for
any authorized representative, traditional religious leader, and known
lineal descendant who should participate in consultation.
(2) The consultation process must seek consensus, to the maximum
extent possible, on determining:
(i) Lineal descendants;
(ii) Indian Tribes or Native Hawaiian organizations with cultural
affiliation;
(iii) The types of objects that might be unassociated funerary
objects, sacred objects, or objects of cultural patrimony; and
(iv) The appropriate treatment, care, and handling of unassociated
funerary objects, sacred objects, or objects of cultural patrimony.
(3) The museum or Federal agency must prepare a record of
consultation that includes the effort made to seek consensus. If
recommendations by requesting parties are not possible, the record of
consultation must describe efforts to identify a mutually agreeable
alternative. For any determination considered during the consultation
process, the museum or Federal agency must record the concurrence,
disagreement, or nonresponse of the requesting parties.
(4) At any time before a museum or Federal agency sends a
repatriation statement for an unassociated funerary object, sacred
object, or object of cultural patrimony to a requestor under paragraph
(g) of this section, the museum or Federal agency may receive a request
from a consulting party for access to records, catalogues, relevant
studies, or other pertinent data related to the holding or collection.
A museum or Federal agency must provide access to the additional
information in a reasonable manner and for the limited purpose of
determining affiliation and acquisition history of the unassociated
funerary object, sacred object, or object of cultural patrimony.
(d) Step 4--Receive and consider a request for repatriation. After
a summary is complete, any lineal descendant, Indian Tribe, or Native
Hawaiian organization may submit to the museum or Federal agency a
written request for repatriation of an unassociated funerary object,
sacred object, or object of cultural patrimony.
(1) A request for repatriation of an unassociated funerary object,
sacred object, or object of cultural patrimony must be received by the
museum or Federal agency before the museum or Federal agency sends a
repatriation statement for that unassociated funerary object, sacred
object, or object of cultural patrimony to a requestor under paragraph
(g) of this section. A request for repatriation received by the museum
or Federal agency before the deadline for completing a summary is dated
the same date as the deadline for completing the summary.
(2) Requests from two or more lineal descendants, Indian Tribes, or
Native Hawaiian organizations who agree to joint repatriation of the
unassociated funerary object, sacred object, or object of cultural
patrimony are considered a single request and not competing requests.
(3) A request for repatriation must satisfy all the following
criteria:
(i) Each unassociated funerary object, sacred object, or object of
cultural patrimony being requested meets the definition of an
unassociated funerary object, a sacred object, or an object of cultural
patrimony;
(ii) The request is from a lineal descendant or an Indian Tribe or
Native Hawaiian organization with cultural affiliation; and
(iii) The request includes information to support a finding that
the museum or Federal agency does not have right of possession to the
unassociated funerary object, sacred object, or object of cultural
patrimony.
(e) Step 5--Respond to a request for repatriation. No later than 60
days after receiving a request for repatriation, a museum or Federal
agency must send a written response to the requestor. Using all
information available, including relevant records, catalogs, existing
studies, and the results of consultation, a museum or Federal agency
must determine if the request for repatriation satisfies the criteria
under paragraph (d) of this section. In the written response, the
museum or Federal agency must state one of the following:
[[Page 63250]]
(1) The request meets the criteria under paragraph (d) of this
section. The museum or Federal agency will submit a notice of intended
repatriation under paragraph (f) of this section.
(2) The request does not meet the criteria under paragraph (d) of
this section. The museum or Federal agency must provide a detailed
explanation why the request does not meet the criteria and an
opportunity for the requestor to provide additional information to meet
the criteria.
(3) The request meets the criteria under paragraph (d)(3)(i) and
(ii) of this section, but the museum or Federal agency asserts a right
of possession to the unassociated funerary object, sacred object, or
object of cultural patrimony and refuses to complete repatriation of
the requested object to the requestor. The museum or Federal agency
must provide information to prove that the museum or Federal agency has
a right of possession to the unassociated funerary object, sacred
object, or object of cultural patrimony.
(4) The museum or Federal agency has received competing requests
for repatriation of the unassociated funerary object, sacred object, or
object of cultural patrimony that meet the criteria and must determine
the most appropriate requestor using the procedures and timelines under
paragraph (h) of this section.
(f) Step 6--Submit a notice of intended repatriation. No later than
30 days after responding to a request for repatriation that meets the
criteria, a museum or Federal agency must submit a notice of intended
repatriation to the Manager, National NAGPRA Program, for publication
in the Federal Register. The museum or Federal agency may include in a
single notice all unassociated funerary objects, sacred objects, or
objects of cultural patrimony with the same requestor.
(1) A notice of intended repatriation must conform to the mandatory
format of the Federal Register and include:
(i) The number of unassociated funerary object, sacred object, or
object of cultural patrimony and a brief description of each object
(counted separately or by lot);
(ii) The county and state where the unassociated funerary object,
sacred object, or object of cultural patrimony were removed;
(iii) The acquisition history (provenance) of the unassociated
funerary object, sacred object, or object of cultural patrimony,
including the circumstances surrounding its acquisition;
(iv) The identity of each unassociated funerary object, sacred
object, or object of cultural patrimony specifically as an unassociated
funerary object, a sacred object, an object of cultural patrimony, or
both a sacred object and an object of cultural patrimony, and a brief
abstract of the information used to make that identification;
(v) The lineal descendant, Indian Tribe, or Native Hawaiian
organization requesting repatriation of the unassociated funerary
object, sacred object, or object of cultural patrimony and a brief
abstract of the information showing the requestor is a lineal
descendant or an Indian Tribe or Native Hawaiian organization with
cultural affiliation;
(vi) Information about the presence of any potentially hazardous
substances used to treat the unassociated funerary object, sacred
object, or object of cultural patrimony, if known;
(vii) The name, phone number, email address, and mailing address
for the authorized representative of the museum or Federal agency who
is responsible for receiving requests for repatriation; and
(viii) The date (to be calculated by the Federal Register 30 days
from the date of publication) after which the museum or Federal agency
may send a repatriation statement to the requestor.
(2) No later than 15 days after receiving a notice of intended
repatriation, the Manager, National NAGPRA Program, will:
(i) Approve for publication in the Federal Register a notice of
intended repatriation that conforms to the requirements under paragraph
(f)(1) of this section; or
(ii) Return to the museum or Federal agency any submission that
does not meet the requirements under paragraph (f)(1) of this section.
(3) If the number or identity of unassociated funerary objects,
sacred objects, or objects of cultural patrimony stated in a published
notice of intended repatriation changes before the museum or Federal
agency sends a repatriation statement under paragraph (g) of this
section, the museum or Federal agency must submit a correction notice
to the Manager, National NAGPRA Program. A museum or Federal agency is
not required to submit a correction notice if there are additional
pieces belonging to an unassociated funerary object, sacred object, or
object of cultural patrimony previously identified in a notice and
repatriation is to the same requestor. No later than 10 days after
determining the new number or new identity of the unassociated funerary
object, sacred object, or object of cultural patrimony, the museum or
Federal agency must submit a correction notice containing, as
applicable:
(i) The corrected number of unassociated funerary object, sacred
object, or object of cultural patrimony and corrected brief description
of each object;
(ii) The corrected identity of the unassociated funerary objects,
sacred objects, or objects of cultural patrimony specifically as an
unassociated funerary object, a sacred object, an object of cultural
patrimony, or both a sacred object and an object of cultural patrimony,
and corrected brief abstract of the information used to make that
identification;
(iii) The name, phone number, email address, and mailing address
for the authorized representative of the museum or Federal agency who
is responsible for receiving requests for repatriation; and
(iv) The date (to be calculated by the Federal Register 30 days
from the date of publication) after which the museum or Federal agency
may send a repatriation statement to the requestor.
(4) At any time before sending a repatriation statement for an
unassociated funerary object, sacred object, or object of cultural
patrimony under paragraph (g) of this section, the museum or Federal
agency may receive additional, competing requests for repatriation of
that object that meet the criteria under paragraph (d) of this section.
The museum or Federal agency must determine the most appropriate
requestor the procedures and timelines under paragraph (h) of this
section.
(g) Step 7--Repatriation of the unassociated funerary object,
sacred object, or object of cultural patrimony. No earlier than 30 days
and no later than 90 days after publication of a notice of intended
repatriation, a museum or Federal agency must send a written
repatriation statement to the requestor and a copy to the Manager,
National NAGPRA Program. The repatriation statement must acknowledge
and recognize the requestor has control or ownership of the requested
unassociated funerary object, sacred object, or object of cultural
patrimony. In the case of joint requests for repatriation, the
repatriation statement must be sent to and must identify all
requestors.
(1) Before sending the repatriation statement, the museum or
Federal agency must consult with the requestor on the care, custody,
and physical transfer of the unassociated funerary object, sacred
object, or object of cultural patrimony,
[[Page 63251]]
(2) After sending the repatriation statement, the museum or Federal
agency must:
(i) Document any physical transfer of the unassociated funerary
object, sacred object, or object of cultural patrimony by recording the
contents, recipient, and method of delivery, and
(ii) Protect sensitive information, as identified by the requestor,
from disclosure to the general public to the extent consistent with
applicable law.
(3) After the repatriation statement is sent, nothing in the Act or
this part limits the authority of the museum or Federal agency to enter
into any agreement with the requestor concerning the care or custody of
the unassociated funerary object, sacred object, or object of cultural
patrimony.
(h) Evaluating competing requests for repatriation. At any time
before sending a repatriation statement for an unassociated funerary
object, sacred object, or object of cultural patrimony under paragraph
(g) of this section, a museum or Federal agency may receive additional,
competing requests for repatriation of that object that meet the
criteria under paragraph (d) of this section. The museum or Federal
agency must determine the most appropriate requestor using this
paragraph.
(1) For an unassociated funerary object or sacred object, in the
following priority order, the most appropriate requestor is:
(i) The lineal descendant, if any, or
(ii) The Indian Tribe or Native Hawaiian organization with the
closest cultural affiliation according to the priority order at Sec.
10.3(d).
(2) For an object of cultural patrimony, the most appropriate
requestor is the Indian Tribe or Native Hawaiian organization with the
closest cultural affiliation according to the priority order at Sec.
10.3(d).
(3) No later than 10 days after receiving a competing request, a
museum or Federal agency must send a written letter to each requestor
identifying all requestors and the date each request was received.
(4) No later than 120 days after informing the requestors of
competing requests, a museum or Federal agency must send a written
determination to each requestor and the Manager, National NAGPRA
Program. The determination must be one of the following:
(i) The most appropriate requestor has been determined and the
competing requests were received before the publication of a notice of
intended repatriation. The museum or Federal agency must:
(A) Identify the most appropriate requestor and explain how the
determination was made,
(B) Submit a notice of intended repatriation in accordance with
paragraph (f) of this section no later than 30 days after sending the
determination, and
(C) No earlier than 30 days and no later than 90 days after
publication of the notice of intended repatriation, the museum or
Federal agency must send a repatriation statement to the most
appropriate requestor under paragraph (g) of this section.
(ii) The most appropriate requestor has been determined and a
notice of intended repatriation was previously published. The museum or
Federal agency must:
(A) Identify the most appropriate requestor and explain how the
determination was made,
(B) No earlier than 30 days and no later than 90 days after sending
a determination of the most appropriate requestor, the museum or
Federal agency must send a repatriation statement to the most
appropriate requestor under paragraph (g) of this section.
(iii) The most appropriate requestor cannot be determined, and the
repatriation is stayed under paragraph (i) of this section. The museum
or Federal agency must explain why the most appropriate requestor could
not be determined.
(i) Stay of repatriation. Repatriation under paragraph (g) of this
section is stayed if:
(1) A court of competent jurisdiction has enjoined the
repatriation. When there is a final resolution of the legal case or
controversy in favor of a requestor, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written
statement of the resolution to each requestor and the Manager, National
NAGPRA Program,
(ii) No earlier than 30 days and no later than 90 days after
sending the written statement, the museum or Federal agency must send a
repatriation statement to the requestor under paragraph (g) of this
section, unless a court of competent jurisdiction directs otherwise.
(2) The museum or Federal agency has received competing requests
for repatriation and, after complying with paragraph (h) of this
section, cannot determine the most appropriate requestor. When a most
appropriate requestor is determined by an agreement between the
parties, binding arbitration, or means of resolution other than through
a court of competent jurisdiction, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written
determination to each requestor and the Manager, National NAGPRA
Program,
(ii) No earlier than 30 days and no later than 90 days after
sending the determination, the museum or Federal agency must send a
repatriation statement to the requestor under paragraph (g) of this
section.
(3) Before the publication of a notice of intended repatriation
under paragraph (f) of this section, the museum or Federal agency has
both requested and received the Secretary's written concurrence that
the unassociated funerary object, sacred object, or object of cultural
patrimony is indispensable for completion of a specific scientific
study, the outcome of which would be of major benefit to the people of
the United States.
(i) To request the Secretary's concurrence, the museum or Federal
agency must send to the Manager, National NAGPRA Program, a written
request of no more than 10 double-spaced pages. The written request
must:
(A) Be on the letterhead of the requesting museum or Federal agency
and be signed by an authorized representative;
(B) Describe the specific scientific study, the date on which the
study commenced, and how the study would be of major benefit to the
people of the United States;
(C) Explain why retention of the unassociated funerary object,
sacred object, or object of cultural patrimony is indispensable for
completion of the study;
(D) Describe the steps required to complete the study, including
any destructive analysis, and provide a completion schedule and
completion date;
(E) Provide the position titles of the persons responsible for each
step in the schedule; and
(F) Affirm that the study has in place the requisite funding.
(ii) If the Secretary concurs with the request, the Secretary will
send a written concurrence and specify the date by which the scientific
study must be completed.
(iii) No later than 30 days after the completion date in the
Secretary's concurrence, the museum or Federal agency must submit a
notice of intended repatriation in accordance with paragraph (f) of
this section.
(iv) No earlier than 30 days and no later than 90 days after
publication of the notice of intended repatriation, the museum or
Federal agency must send a
[[Page 63252]]
repatriation statement to the requestor under paragraph (g) of this
section.
Table 1 to Sec. 10.9--Deadlines for Completing a Summary
------------------------------------------------------------------------
. . . a summary must be
If a museum or Federal agency . . . submitted . . .
------------------------------------------------------------------------
acquires possession or control of 6 months after acquiring
unassociated funerary objects, sacred possession or control of the
objects, or objects of cultural unassociated funerary objects,
patrimony. sacred objects, or objects of
cultural patrimony.
locates previously lost or unknown 6 months after locating the
unassociated funerary objects, sacred unassociated funerary objects,
objects, or objects of cultural sacred objects, or objects of
patrimony. cultural patrimony.
receives Federal funds for the first 3 years after receiving Federal
time after [DATE 30 DAYS AFTER DATE OF funds for the first time after
PUBLICATION OF THE FINAL RULE IN THE [DATE 30 DAYS AFTER DATE OF
FEDERAL REGISTER], and has possession PUBLICATION OF THE FINAL RULE
or control of unassociated funerary IN THE FEDERAL REGISTER].
objects, sacred objects, or objects of
cultural patrimony.
------------------------------------------------------------------------
Sec. 10.10 Repatriation of human remains and associated funerary
objects.
Each museum and Federal agency that has possession or control of a
holding or collection that contains human remains or associated
funerary objects must follow the steps in this section. The purpose of
this section is to provide determinations, following consultation,
about human remains and associated funerary objects to lineal
descendants, Indian Tribes, and Native Hawaiian organizations to
facilitate repatriation.
(a) Step 1--Compile an itemized list of human remains and
associated funerary objects. Based on information available, a museum
or Federal agency must compile a simple itemized list of the human
remains and associated funerary objects in its holding or collection.
Depending on the scope of the holding or collection, a museum or
Federal agency may organize its inventory into sections based on
geographic area, accession or catalog name or number, or other defining
attributes. A museum or Federal agency must ensure the itemized list is
comprehensive and covers all holdings or collections relevant to this
section. The itemized list must include:
(1) The number of individuals determined in a reasonable manner
based on the information available. No additional study or analysis is
required to determine the number of individuals. If human remains are
in a holding or collection, the number of individuals is at least one;
(2) The number of associated funerary objects and types of objects
(counted separately or by lot);
(3) The county and state where the human remains and associated
funerary objects were removed;
(4) The acquisition history (provenance) of the human remains and
associated funerary objects;
(5) Other information relevant for identifying a lineal descendant
or an Indian Tribe or Native Hawaiian organization with cultural or
geographical affiliation; and
(6) The presence of any potentially hazardous substances used to
treat any of the human remains or associated funerary objects, if
known.
(b) Step 2--Initiate consultation. Based on information available,
a museum or Federal agency must identify consulting parties and make a
good-faith effort to invite the parties to consult.
(1) Consulting parties are any lineal descendant and any Indian
Tribe or Native Hawaiian organization with potential affiliation.
(2) An invitation to consult must be in writing and must include:
(i) The simple itemized list described in paragraph (a) of this
section;
(ii) The names of all identified consulting parties; and
(iii) A proposed timeline and method for consultation.
(3) Any consulting party, regardless of whether the party has
received an invitation to consult, must submit a written request to
consult. A written request to consult may be submitted at any time
before the publication of a notice of inventory completion under
paragraph (e) of this section.
(4) When a museum or Federal agency identifies a new consulting
party under paragraph (b)(1) of this section, the museum or Federal
agency must make a good-faith effort to invite the party to consult and
must send an invitation to consult under paragraph (b)(2) of this
section. An invitation to consult must be sent to new consulting
parties:
(i) No later than 10 days after identifying a new consulting party
based on new information; or
(ii) No later than two years after the addition of a Tribal entity
to the list of federally recognized Indian Tribes published in the
Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C.
5131).
(c) Step 3--Consult with requesting parties. No later than 10 days
after receiving a written request to consult, a museum or Federal
agency must respond in writing with a proposed timeline for
consultation. Consultation on human remains and associated funerary
objects may continue until the museum or Federal agency sends a
repatriation statement for those human remains and associated funerary
objects to a requestor under paragraph (h) of this section.
(1) In the response to the requesting party, a museum or Federal
agency must ask a requesting party for the following information, if
not already provided:
(i) Recommendations on the proposed timeline and method for
consultation; and
(ii) The name, phone number, email address, or mailing address for
any authorized representative, traditional religious leaders, and known
lineal descendant who should participate in consultation.
(2) The consultation process must seek consensus, to the maximum
extent possible, on determining:
(i) Lineal descendants;
(ii) Indian Tribes or Native Hawaiian organizations with cultural
or geographical affiliation;
(iii) The types of objects that might be associated funerary
objects, including any objects that were made exclusively for burial
purposes or to contain human remains; and
(iv) The appropriate treatment, care, and handling of human remains
and associated funerary objects.
(3) The museum or Federal agency must prepare a record of
consultation that includes the effort made to seek consensus. If
recommendations by requesting parties are not possible, the record of
consultation must describe efforts to identify a mutually agreeable
alternative. For any determination considered during the consultation
process, the museum or Federal agency must record the concurrence,
disagreement, or nonresponse of the requesting parties.
(4) At any time before the museum or Federal agency sends a
repatriation statement for human remains and associated funerary
objects to a
[[Page 63253]]
requestor under paragraph (h) of this section, a museum or Federal
agency may receive a request from a consulting party for access to
records, catalogues, relevant studies, or other pertinent data related
to those human remains and associated funerary objects. A museum or
Federal agency must provide access to the additional information in a
reasonable manner and for the limited purpose of determining
affiliation and acquisition history of the human remains and associated
funerary objects.
(d) Step 4--Complete an inventory of human remains and associated
funerary objects. Based on information available and the results of
consultation, a museum or Federal agency must submit to all consulting
parties and the Manager, National NAGPRA Program, an inventory of all
human remains and associated funerary objects in its holding or
collection.
(1) An inventory must include:
(i) The names of all consulting parties and an abstract of the
results of consultation;
(ii) The information from the simple itemized list compiled under
paragraph (a) of this section;
(iii) For each entry in the itemized list, a determination of one
or more of the following:
(A) There is a known lineal descendant,
(B) There is a connection between the human remains and associated
funerary objects and an Indian Tribe or Native Hawaiian organization
through cultural affiliation,
(C) There is a connection between the human remains and associated
funerary objects and an Indian Tribe or Native Hawaiian organization
through geographical affiliation, or
(D) There is no connection between the human remains and associated
funerary objects and any Indian Tribe or Native Hawaiian organization;
and
(iv) An abstract of the information supporting that determination
including:
(A) The lineal descendant or the Indian Tribe or Native Hawaiian
organization with cultural or geographical affiliation, or
(B) An explanation why no Indian Tribes or Native Hawaiian
organizations with cultural or geographical affiliation could be
reasonably identified.
(2) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], a museum or Federal agency must submit an
inventory to all consulting parties and the Manager, National NAGPRA
Program, by the deadline in Table 1 of this section.
(3) Prior to [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER], a museum or Federal agency must have
submitted an inventory to all consulting parties and the Manager,
National NAGPRA Program:
(i) By November 16, 1995, for human remains or associated funerary
objects subject to the Act;
(ii) By April 20, 2009, for human remains or associated funerary
objects acquired or located after November 16, 1995;
(iii) By April 20, 2012, for human remains or associated funerary
objects in the possession or control of a museum that received Federal
funds for the first time after November 16, 1995;
(iv) Within two years of acquiring or locating the human remains or
associated funerary objects after April 20, 2009; or
(v) Within five years of receiving Federal funds for the first time
after April 20, 2012.
(4) No later than [DATE 760 DAYS AFTER DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL REGISTER], for any human remains or
associated funerary objects listed in an inventory but not published in
a notice of inventory completion prior to [DATE 30 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], a museum or
Federal agency must:
(i) Initiate consultation as described under paragraph (b) of this
section;
(ii) Consult with requesting parties as described under paragraph
(c) of this section;
(iii) Update its inventory to include the requirements described
under paragraph (d)(1) of this section and ensure the inventory is
comprehensive and covers all holdings or collections relevant to this
section; and
(iv) Submit an updated inventory to all consulting parties and the
Manager, National NAGPRA Program.
(5) Any museum may request an extension to complete or update its
inventory if it has made a good faith effort but will be unable to do
so by the appropriate deadline. A request for an extension must be
submitted to the Manager, National NAGPRA Program, before the
appropriate deadline. The Manager, National NAGPRA Program will publish
in the Federal Register a list of all museums who request an extension
and the Secretary's determination on the request. A request for an
extension must include:
(i) Information showing the initiation of consultation and any
requests to consult;
(ii) The names of all consulting parties and an abstract of the
results of consultation;
(iii) The estimated number of the human remains and associated
funerary objects in the holding or collection; and
(iv) A written plan for completing or updating the inventory, which
includes, at minimum:
(A) The specific steps required to complete or update the
inventory;
(B) A schedule for completing each step and estimated inventory
completion or update date;
(C) Position titles of the persons responsible for each step in the
schedule; and
(D) A proposal to obtain any requisite funding needed to complete
or update the inventory.
(6) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], when a holding or collection previously
included in an inventory is transferred to a museum or Federal Agency,
subject to the limitations in 18 U.S.C. 1170 (a), the museum or Federal
agency acquiring possession or control of the holding or collection may
rely on the previously completed or updated inventory. The museum or
Federal agency must submit the previously completed or updated
inventory to the Manager, National NAGPRA Program no later than 30 days
after acquiring the holding or collection and must initiate
consultation under paragraph (b) of this section. The museum or Federal
agency must submit an inventory to all consulting parties and the
Manager, National NAGPRA Program, no later than the deadline in Table 1
of this section.
(e) Step 5--Submit a notice of inventory completion. No later than
six months after completing or updating an inventory under paragraph
(d) of this section, a museum or Federal agency must submit a notice of
inventory completion for human remains and associated funerary objects
with a known lineal descendant or a connection to an Indian Tribe or
Native Hawaiian organization with cultural or geographical affiliation.
The museum or Federal agency may include in a single notice all human
remains and associated funerary objects having the same lineal
descendant or the same Indian Tribes or Native Hawaiian organizations
with cultural or geographical affiliation.
(1) The notice of inventory completion must be sent to the:
(i) Lineal descendants and Indian Tribes or Native Hawaiian
organizations identified in the inventory, and
[[Page 63254]]
(ii) Manager, National NAGPRA Program, for publication in the
Federal Register.
(2) A notice of inventory completion must conform to the mandatory
format of the Federal Register and include:
(i) The number of individuals determined in a reasonable manner
based on the information available. No additional study or analysis is
required to determine the number of individuals. If human remains are
in a holding or collection, the number of individuals is at least one.
(ii) The number of associated funerary objects and types of objects
(counted separately or by lot);
(iii) The county and state where the human remains and associated
funerary objects were removed;
(iv) The acquisition history (provenance) of the human remains and
associated funerary objects, including the circumstances surrounding
their acquisition;
(v) The lineal descendant or an Indian Tribe or Native Hawaiian
organization with cultural or geographical affiliation and a brief
abstract of the information used to make that identification;
(vi) When cultural affiliation has been determined, a statement
whether cultural affiliation was clearly identified or was based on the
totality of the circumstances surrounding acquisition history of the
human remains and associated funerary objects;
(vii) Information about the presence of any potentially hazardous
substances used to treat the human remains or associated funerary
objects, if known;
(viii) The name, phone number, email address, and mailing address
for the authorized representative of the museum or Federal agency who
is responsible for receiving requests for repatriation; and
(ix) The date (to be calculated by the Federal Register 30 days
from the date of publication) after which the museum or Federal agency
may send a repatriation statement to a requestor.
(3) No later than 15 days after receiving a notice of inventory
completion, the Manager, National NAGPRA Program, will:
(i) Approve for publication in the Federal Register a notice of
inventory completion that conforms to the requirements under paragraph
(e)(2) of this section; or
(ii) Return to the museum or Federal agency any submission that
does not meet the requirements under paragraph (e)(2) of this section.
(4) If the number of individuals or the number of associated
funerary objects stated in a published notice of inventory completion
changes before the museum or Federal agency sends a repatriation
statement under paragraph (h) of this section, the museum or Federal
agency must submit a correction notice to the Manager, National NAGPRA
Program. A museum or Federal agency is not required to publish a
correction notice if there are additional pieces belonging to human
remains or associated funerary objects previously identified in a
notice and repatriation is to the same requestor. No later than 10 days
after determining the new number of individuals or associated funerary
objects, the museum or Federal agency must submit a correction notice
containing, as applicable:
(i) The corrected number of individuals;
(ii) The corrected number of associated funerary objects and types
of objects,
(iii) The name, phone number, email address, and mailing address
for the authorized representative of the museum or Federal agency who
is responsible for receiving requests for repatriation, and
(iv) The date (to be calculated by the Federal Register 30 days
from the date of publication) after which the museum or Federal agency
may send a repatriation statement to the requestor.
(f) Step 6--Receive and consider a request for repatriation. After
publication of a notice of inventory completion in the Federal
Register, any lineal descendant, Indian Tribe, or Native Hawaiian
organization may submit to the museum or Federal agency a written
request for repatriation of human remains and associated funerary
objects.
(1) A request for repatriation of human remains and associated
funerary objects must be received by the museum or Federal agency
before the museum or Federal agency sends a repatriation statement for
those human remains and associated funerary objects under paragraph (h)
of this section. Any request for repatriation received by the museum or
Federal agency no later than 30 days after publication of a notice must
be considered. A request for repatriation received by the museum or
Federal agency before the publication of the notice of inventory
completion is dated the same date the notice was published.
(2) Requests from two or more lineal descendants, Indian Tribes, or
Native Hawaiian organizations who agree to joint repatriation of the
human remains and associated funerary objects are considered a single
request and not competing requests.
(3) A request for repatriation must satisfy one of the following
criteria:
(i) The request is from a lineal descendant, Indian Tribe, or
Native Hawaiian organization identified in the notice of inventory
completion, or
(ii) The request is not from a lineal descendant, Indian Tribe, or
Native Hawaiian organization identified in the notice of inventory
completion, and shows, by a preponderance of the evidence, that the
requestor is a lineal descendant or an Indian Tribe or Native Hawaiian
organization with cultural or geographical affiliation.
(g) Step 7--Respond to a request for repatriation. No earlier than
30 days after publication of a notice of inventory completion but no
later than 30 days after receiving a request for repatriation, a museum
or Federal agency must send a written response to the requestor with a
copy to any other party identified in the notice of inventory
completion. Using all information available, including relevant
records, catalogs, existing studies, and the results of consultation, a
museum or Federal agency must determine if the request satisfies the
criteria under paragraph (f) of this section.
(1) In the written response, the museum or Federal agency must
state one of the following:
(i) The request meets the criteria under paragraph (f) of this
section. The museum or Federal agency will send a repatriation
statement to the requestor under paragraph (h) of this section, unless
the museum or Federal agency receives additional, competing requests
for repatriation.
(ii) The request does not meet the criteria under paragraph (f) of
this section. The museum or Federal agency must provide a detailed
explanation why the request does not meet the criteria, and an
opportunity for the requestor to provide additional information to meet
the criteria.
(iii) The museum or Federal agency has received competing requests
for repatriation that meet the criteria and must determine the most
appropriate requestor using the procedures and timelines under
paragraph (i) of this section.
(2) At any time before sending a repatriation statement for human
remains and associated funerary objects under paragraph (h) of this
section, the museum or Federal agency may receive additional, competing
requests for repatriation of those human remains and associated
funerary objects that meet the criteria under paragraph (f) of this
section. The museum or Federal agency must determine the most
appropriate requestor the procedures and timelines under paragraph (i)
of this section.
[[Page 63255]]
(h) Step 8--Repatriation of the human remains and associated
funerary objects. No later than 90 days after responding to a request
for repatriation that meets the criteria, a museum or Federal agency
must send a written repatriation statement to the requestor and a copy
to the Manager, National NAGPRA Program. The repatriation statement
must acknowledge and recognize the requestor has control or ownership
of the requested human remains and associated funerary objects. In the
case of joint requests for repatriation, the repatriation statement
must be sent to and must identify all requestors.
(1) Before sending the repatriation statement, the museum or
Federal agency must consult with the requestor on the care, custody,
and physical transfer of the human remains and associated funerary
objects.
(2) After sending the repatriation statement, the museum or Federal
agency must:
(i) Document any physical transfer of the human remains and
associated funerary objects by recording the contents, recipient, and
method of delivery, and
(ii) Protect sensitive information, as identified by the requestor,
from disclosure to the general public to the extent consistent with
applicable law.
(3) After the repatriation statement is sent, nothing in the Act or
this part limits the authority of the museum or Federal agency to enter
into any agreement with the requestor concerning the care or custody of
the human remains and associated funerary objects.
(i) Evaluating competing requests for repatriation. At any time
before sending a repatriation statement for human remains and
associated funerary objects under paragraph (h) of this section, a
museum or Federal agency may receive additional, competing requests for
repatriation of those human remains and associated funerary objects
that meets the criteria under paragraph (f) of this section. The museum
or Federal agency must determine the most appropriate requestor using
this paragraph.
(1) In the following priority order, the most appropriate requestor
is:
(i) The known lineal descendant, if any; or
(ii) The Indian Tribe or Native Hawaiian organization with the
closest affiliation according to the priority order at Sec. 10.3(d).
(2) No later than 10 days after receiving a competing request, a
museum or Federal agency must send a written letter to each requestor
identifying all requestors and the date each request for repatriation
was received.
(3) No later than 120 days after informing the requestors of
competing requests, a museum or Federal agency must send a written
determination to each requestor and the Manager, National NAGPRA
Program. The determination must be one of the following:
(i) The most appropriate requestor has been determined. The museum
or Federal agency must:
(A) Identify the most appropriate requestor and explain how the
determination was made,
(B) No earlier than 30 days and no later than 90 days after sending
a determination of the most appropriate requestor, the museum or
Federal agency must send a repatriation statement to the most
appropriate requestor under paragraph (h) of this section.
(ii) The most appropriate requestor cannot be determined, and the
repatriation is stayed under paragraph (j) of this section. The museum
or Federal agency must explain why the most appropriate requestor could
not be determined.
(j) Stay of repatriation. Repatriation under paragraph (h) of this
section is stayed if:
(1) A court of competent jurisdiction has enjoined the
repatriation. When there is a final resolution of the legal case or
controversy in favor of a requestor, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written
statement of the resolution to each requestor and the Manager, National
NAGPRA Program,
(ii) No earlier than 30 days and no later than 90 days after
sending the written statement, the museum or Federal agency must send a
repatriation statement to the requestor under paragraph (h) of this
section, unless a court of competent jurisdiction directs otherwise.
(2) The museum or Federal agency has received competing requests
for repatriation and, after complying with paragraph (i) of this
section, cannot determine the most appropriate requestor. When a most
appropriate requestor is determined by an agreement between the
parties, binding arbitration, or means of resolution other than through
a court of competent jurisdiction, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written
determination to each requestor and the Manager, National NAGPRA
Program,
(ii) No earlier than 30 days and no later than 90 days after
sending the determination, the museum or Federal agency must send a
repatriation statement to the requestor under paragraph (h) of this
section.
(3) Before the publication of a notice of inventory completion
under paragraph (e) of this section, the museum or Federal agency has
both requested and received the Secretary's written concurrence that
the human remains and associated funerary objects are indispensable for
completion of a specific scientific study, the outcome of which would
be of major benefit to the people of the United States.
(i) To request the Secretary's concurrence, the museum or Federal
agency must send to the Manager, National NAGPRA Program, a written
request of no more than 10 double-spaced pages. The written request
must:
(A) Be on the letterhead of the requesting museum or Federal agency
and be signed by an authorized representative;
(B) Describe the specific scientific study, the date on which the
study commenced, and how the study would be of major benefit to the
people of the United States;
(C) Explain why retention of the human remains and associated
funerary objects is indispensable for completion of the study;
(D) Describe the steps required to complete the study, including
any destructive analysis, and provide a completion schedule and
completion date;
(E) Provide the position titles of the persons responsible for each
step in the schedule; and
(F) Affirm that the study has in place the requisite funding.
(ii) If the Secretary concurs with the request, the Secretary will
send a written concurrence and specify the date by which the scientific
study must be completed.
(iii) No later than 30 days after the completion date in the
Secretary's concurrence, the museum or Federal agency must submit a
notice of intended repatriation in accordance with paragraph (e) of
this section.
(iv) No earlier than 30 days after publication of the notice of
inventory completion and no later than 90 days after responding to a
request for repatriation, the museum or Federal agency must send a
repatriation statement to the requestor under paragraph (h) of this
section.
(k) Transfer or reinter human remains and associated funerary
objects. For human remains and associated funerary objects with no
connection to an Indian
[[Page 63256]]
Tribe or Native Hawaiian organization determined in the inventory, a
museum or Federal agency, at its discretion, may agree to transfer or
decide to reinter the human remains and associated funerary objects.
The museum or Federal agency must ensure it has initiated consultation
under paragraph (b) of this section, if any.
(1) Step 1--Agree to transfer or decide to reinter. Subject to the
requirements in paragraph (k)(2) of this section, a museum or Federal
agency may:
(i) Agree in writing to transfer the human remains and associated
funerary objects to a requestor that agrees to treat the human remains
and associated funerary objects according to the requestor's laws and
customs. Human remains and associated funerary objects must be
requested in writing and may only be requested by:
(A) An Indian Tribe or Native Hawaiian organization, or
(B) An Indian group that is not federally recognized but has a
relationship to the human remains and associated funerary objects.
(ii) Decide in writing to reinter the human remains and associated
funerary objects according to applicable laws and policies.
(2) Step 2--Submit a notice of proposed transfer or reinterment. No
later than 30 days after agreeing to transfer or deciding to reinter
the human remains and associated funerary objects, the museum or
Federal agency must submit a notice of proposed transfer or reinterment
to the Manager, National NAGPRA Program, for publication in the Federal
Register.
(i) A notice of proposed transfer or reinterment must conform to
the mandatory format of the Federal Register and include:
(A) The number of individuals determined in a reasonable manner
based on the information available. No additional study or analysis is
required to determine the number of individuals. If human remains are
in a holding or collection, the number of individuals is at least one.;
(B) The number of associated funerary objects and type of objects
(counted separately or by lot);
(C) The county and state where the human remains and associated
funerary objects were removed, if known;
(D) The acquisition history (provenance) of the human remains and
associated funerary objects, including the circumstances surround their
acquisition;
(E) The names of all consulting parties and an abstract of the
results of consultation;
(F) A brief abstract of the information that explains why no Indian
Tribes or Native Hawaiian organizations with cultural or geographical
affiliation could be reasonably identified;
(G) Information about the presence of any potentially hazardous
substances used to treat the human remains and associated funerary
objects, if known;
(H) The Indian Tribe, Native Hawaiian organization, or Indian group
requesting the human remains and associated funerary objects or a
statement that the museum or Federal agency will reinter the human
remains and associated funerary objects;
(I) The name, phone number, email address, and mailing address for
the authorized representative of the museum or Federal agency who is
responsible for receiving requests for repatriation; and
(J) The date (to be calculated by the Federal Register 30 days from
the date of publication) after which the museum or Federal agency may
proceed with the transfer or reinterment of the human remains and
associated funerary objects.
(ii) No later than 15 days after receiving a notice of proposed
transfer or reinterment, the Manager, National NAGPRA Program, will:
(A) Approve for publication in the Federal Register a notice of
proposed transfer or reinterment that conforms to the requirements
under paragraph (k)(2)(i) of this section; or
(B) Return to the museum or Federal agency any submission that does
not meet the requirements under paragraph (k)(2)(i) of this section.
(iii) After publication of a notice, if the museum or Federal
agency receives a request for repatriation of the human remains and
associated funerary objects before transfer or reinterment, the museum
or Federal agency must evaluate whether the request meets the criteria
under paragraph (f) of this section.
(A) If the request for repatriation meets the criteria under
paragraph (f) of this section, the museum or Federal agency must
respond in writing under paragraph (g) of this section and proceed with
repatriation under paragraph (h) of this section.
(B) If the request does not meet the criteria under paragraph (f)
of this section, the museum or Federal agency must respond in writing
under paragraph (g) of this section and proceed with transfer or
reinterment under paragraph (k)(3) of this section.
(3) Step 3--Transfer or reinter the human remains and associated
funerary objects. No earlier than 30 days and no later than 90 days
after publication of a notice of proposed transfer or reinterment, the
museum or Federal agency must transfer or reinter the human remains and
associated funerary objects. After transferring or reinterring, the
museum or Federal agency must:
(i) Document the transfer of the human remains and associated
funerary objects by recording the contents, recipient, and method of
delivery,
(ii) Document the reinterment by recording the contents of the
reinterment,
(iii) Protect sensitive information from disclosure to the general
public to the extent consistent with applicable law.
(4) After transfer or reinterment occurs, nothing in the Act or
this part limits the authority of the museum or Federal agency to enter
into any agreement with the requestor concerning the care or custody of
the human remains and associated funerary objects.
Table 1 to Sec. 10.10--Deadlines for Completing an Inventory
------------------------------------------------------------------------
an inventory must be submitted
If a museum or Federal agency . . . . . .
------------------------------------------------------------------------
acquires possession or control of human 2 years after acquiring
remains or associated funerary objects. possession or control of human
remains or associated funerary
objects.
locates previously lost or unknown 2 years after locating the
human remains or associated funerary human remains or associated
objects. funerary objects.
receives Federal funds for the first 5 years after receiving Federal
time after [DATE 30 DAYS AFTER DATE OF funds for the first time after
PUBLICATION OF THE FINAL RULE IN THE [DATE 30 DAYS AFTER DATE OF
FEDERAL REGISTER], and has possession PUBLICATION OF THE FINAL RULE
or control of human remains or IN THE FEDERAL REGISTER].
associated funerary objects.
------------------------------------------------------------------------
[[Page 63257]]
Sec. 10.11 Civil penalties.
Any museum that fails to comply with the requirements of the Act or
this subpart may be assessed a civil penalty by the Secretary. This
section does not apply to Federal agencies, but a Federal agency's
failure to comply with the requirements of the Act or this part may be
subject to other remedies under Federal law. Each instance of failure
to comply will constitute a separate violation. The Secretary must
serve the museum with a written notice of failure to comply under
paragraph (d) of this section or a notice of assessment under paragraph
(g) of this section by personal delivery with proof of delivery date,
certified mail with return receipt, or private delivery service with
proof of delivery date.
(a) File an allegation. Any person may file an allegation of
failure to comply by sending a written allegation to the Manager,
National NAGPRA Program. Each allegation:
(1) Must include the full name, mailing address, telephone number,
and (if available) email address of the person alleging the failure to
comply;
(2) Must identify the specific provision or provisions of the Act
or this subpart that the museum is alleged to have violated;
(3) Must enumerate the separate violations alleged, including facts
to support the number of separate violations. The number of separate
violations is determined by establishing relevant factors such as:
(i) The number of lineal descendants, Indian Tribes, or Native
Hawaiian organizations named in the allegation and determined to be
aggrieved by the failure to comply; or
(ii) The number of individuals or the number of funerary objects,
sacred objects, or objects of cultural patrimony involved in the
failure to comply;
(4) Should include information showing that the museum has
possession or control of the Native American cultural items involved in
the alleged failure to comply; and
(5) Should include information showing that the museum receives
Federal funds.
(b) Respond to an allegation. Within 90 days of receiving an
allegation, the Secretary must review the allegation and determine if
the allegation meets the requirements of paragraph (a) of this section.
After review, the Secretary may investigate the facts in an allegation
to ensure all relevant information is available.
(1) The Secretary may request any additional relevant information
from the person making the allegation, the museum, or other parties.
The Secretary may conduct any investigation that is necessary to
determine whether an alleged failure to comply is substantiated. The
Secretary may also investigate appropriate factors for justifying an
increase or reduction to any penalty amount that may be calculated.
(2) The Secretary, after reviewing all relevant information, must
determine one of the following for each alleged failure to comply:
(i) The alleged failure to comply is substantiated, the number of
separate violations is identified, and a civil penalty is an
appropriate remedy. The Secretary will calculate the proposed penalty
amount under paragraph (c) of this section and notify the museum under
paragraph (d) of this section;
(ii) The alleged failure to comply is substantiated, the number of
separate violations is identified, but a civil penalty is not an
appropriate remedy. The Secretary will notify the museum under
paragraph (d) of this section; or
(iii) The alleged failure to comply is unsubstantiated. The
Secretary will send a written determination to the person making the
allegation and to the museum.
(c) Calculate the penalty amount. If the Secretary determines under
paragraph (b)(2)(i) of this section that a civil penalty is an
appropriate remedy for a substantiated failure to comply, the Secretary
will calculate the amount of the penalty in accordance with this
paragraph. The penalty for each separate violation will be calculated
as follows:
(1) The base penalty amount is $7,475, subject to annual
adjustments based on inflation under the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74).
(2) The base penalty amount may be increased after considering:
(i) The ceremonial or cultural value of the human remains or
cultural items involved, as identified by any aggrieved lineal
descendant, Indian Tribe, or Native Hawaiian organization;
(ii) The archaeological, historical, or commercial value of the
human remains or cultural items involved;
(iii) The economic and non-economic damages suffered by any
aggrieved lineal descendant, Indian Tribe, or Native Hawaiian
organization, including expenditures by the aggrieved party to compel
the museum to comply with the Act or this subpart;
(iv) The number of prior violations by the museum that have
occurred; or
(v) Any other appropriate factor justifying an increase.
(3) The base penalty amount may be reduced if:
(i) The museum comes into compliance;
(ii) The museum agrees to mitigate the violation in the form of an
actual or an in-kind payment to an aggrieved lineal descendant, Indian
Tribe, or Native Hawaiian organization;
(iii) The penalty constitutes excessive punishment under the
circumstances;
(iv) The museum is unable to pay the full penalty and the museum
has not previously been found to have failed to comply with the Act or
this subpart. The museum has the burden of proving it is unable to pay
by providing verifiable, complete, and accurate financial information
to the Secretary. The Secretary may request that the museum provide
such financial information that is adequate and relevant to evaluate
the museum's financial condition, including the value of the museum's
cash and liquid assets; ability to borrow; net worth; liabilities;
income tax returns; past, present, and future income; prior and
anticipated profits; expected cash flow; and the museum's ability to
pay in installments over time. If the museum does not submit the
requested financial information, the museum will be presumed to have
the ability to pay the civil penalty; or
(v) Any other appropriate factor justifies a reduction.
(d) Notify a museum of a failure to comply. If the Secretary
determines under paragraph (b)(2)(i) or (b)(2)(ii) of this section that
an alleged failure to comply is substantiated, the Secretary must serve
the museum with a written notice of failure to comply and send a copy
of the notice to each person alleging the failure to comply and any
lineal descendant, Indian Tribe, or Native Hawaiian organization named
in the notice of failure to comply. The notice of failure to comply
must:
(1) Provide a concise statement of the facts believed to show a
failure to comply;
(2) Specifically reference the provisions of the Act and this
subpart with which the museum has failed to comply;
(3) Include the proposed penalty amount calculated under paragraph
(c) of this section;
(4) Include, where appropriate, any initial proposal to reduce or
increase the penalty amount or an explanation for why the Secretary has
determined that a penalty is not an appropriate remedy;
(5) Identify the options for responding to the notice of failure to
comply under paragraph (e) of this section; and
(6) Inform the museum that the Secretary may assess a daily penalty
amount under paragraph (m)(1) of this
[[Page 63258]]
section if the failure to comply continues after the date the final
administrative decision of the Secretary takes effect.
(e) Respond to a notice of failure to comply. Within 45 days of
receiving a notice of failure to comply, a museum may take no action
and await service of a notice of assessment under paragraph (g) of this
section, or a museum may file a written response to the notice of
failure to comply. A response which is not timely filed will not be
considered. Any written response must be signed by an authorized
representative of the museum and must be sent to the Secretary. In the
written response, a museum may:
(1) Seek an informal discussion of the failure to comply;
(2) Request either or both of the following forms of relief, with a
full explanation of the legal or factual basis for the requested
relief:
(i) That the Secretary reconsider the determination of a failure to
comply, or
(ii) That the Secretary reduce the proposed penalty amount; or
(3) Accept the determination of a failure to comply and agree in
writing that the museum will do the following, which will constitute an
agreement between the Secretary and the museum:
(i) Pay the proposed penalty amount, if any,
(ii) Complete the mitigation required to reduce the penalty, if
offered in the notice, and
(iii) Waive any right to receive notice of assessment under
paragraph (g) of this section and to request a hearing under paragraph
(i) of this section.
(f) Assess the civil penalty. After serving a notice of failure to
comply, the Secretary may assess a civil penalty and must consider all
available, relevant information related to the failure to comply,
including information timely provided by the museum during any informal
discussion or request for relief, furnished by another party, or
produced upon the Secretary's request.
(1) The assessment of a civil penalty is made after the latter of:
(i) The 45-day period for a response has expired and the museum has
taken no action;
(ii) Conclusion of informal discussion, if any;
(iii) Review and consideration of a petition for relief, if any; or
(iv) Failure to meet the terms of an agreement established under
paragraph (e)(3) of this section.
(2) If a petition for relief or informal discussion warrants a
conclusion that no failure to comply has occurred, the Secretary must
send written notification to the museum revoking the notice of failure
to comply. No penalty is assessed.
(g) Notify the museum of an assessment. If the Secretary determines
to assess a civil penalty, the Secretary will serve the museum with a
notice of assessment. Unless the museum seeks further administrative
remedies under this section, the notice of assessment is the final
administrative decision of the Secretary. The notice of assessment
must:
(1) Specifically reference the provisions of the Act or this
subpart with which the museum has not complied;
(2) Include the final amount of any penalty calculated under
paragraph (c) of this section and the basis for determining the penalty
amount;
(3) Include, where appropriate, any increase or reduction to the
penalty amount or an explanation for why the Secretary has determined
that a penalty is not an appropriate remedy;
(4) Include the daily penalty amount that the Secretary may assess
under paragraph (m)(1) of this section if the failure to comply
continues after the date the final administrative decision of the
Secretary takes effect. The daily penalty amount for each continuing
violation shall not exceed $1,496 per day, subject to annual
adjustments based on inflation under the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74);
(5) Identify the options for responding to the notice of assessment
under paragraph (h) of this section; and
(6) Notify the museum that it has the right to seek judicial review
of the final administrative decision of the Secretary only if it has
exhausted all administrative remedies under this section, as set forth
in paragraph (l) of this section.
(h) Respond to an assessment. Within 45 days of receiving a notice
of assessment, a museum must do one of the following:
(1) Accept the assessment and pay the penalty amount by means of a
certified check made payable to the U.S. Treasurer, Washington, DC,
sent to the Secretary. By paying the penalty amount, the museum waives
the right to request a hearing under paragraph (i) of this section.
(2) File a written request for a hearing under paragraph (i) of
this section to contest the failure to comply, the penalty assessment,
or both. If the museum does not file a written request for a hearing
within 45 days, the museum waives the right to request a hearing under
paragraph (i) of this section.
(i) Request a hearing. The museum may file a written request for a
hearing with the Departmental Cases Hearings Division (DCHD), Office of
Hearings and Appeals (OHA), U.S. Department of the Interior, at the
mailing address specified in the notice of assessment, or by electronic
means in accordance with an OHA Standing Order which is available on
OHA's website at the web address specified in the notice of assessment.
A copy of the request must be served on the Solicitor of the Department
of the Interior at the address specified in the notice of assessment.
The request for hearing and any document filed thereafter with the DCHD
under paragraphs (i) or (j) of this section are subject to the rules
that govern the method and effective date of filing under 43 CFR 4.22
and 4.422(a). The request for a hearing must:
(1) Include a copy of the notice of failure to comply and the
notice of assessment;
(2) State the relief sought by the museum; and
(3) Include the basis for challenging the facts used to determine
the failure to comply or the penalty assessment.
(j) Hearings. Upon receiving a request for a hearing, DCHD will
assign an administrative law judge to the case and promptly give notice
of the assignment to the parties. Thereafter, each filing must be
addressed to the administrative law judge and a copy served on each
opposing party or its counsel.
(1) To the extent they are not inconsistent with this section, the
general rules in 43 CFR part 4, subparts A and B apply to the hearing
process.
(2) Subject to the provisions of 43 CFR 1.3, a museum may appear by
authorized representative or by counsel and may participate fully in
the proceedings. If the museum does not appear and the administrative
law judge determines that this absence is without good cause, the
administrative law judge may, at his or her discretion, determine that
the museum has waived the right to a hearing and consents to the making
of a decision on the record.
(3) The Department of the Interior counsel, designated by the
Solicitor of the Department of the Interior, represents the Secretary
in the proceedings. Within 20 days of receipt of its copy of the
written request for hearing, Departmental counsel must file with the
DCHD an entry of appearance on behalf of the Secretary and the
following:
(i) Any written communications between the Secretary and the museum
during any informal discussions under paragraph (e)(1) of this section;
[[Page 63259]]
(ii) Any petition for relief submitted under paragraph (e)(2); and
(iii) Any other information considered by the Secretary in reaching
the decision being challenged. Thereafter, the museum must serve each
document filed with the administrative law judge on Departmental
counsel.
(4) In a hearing on the penalty assessment, the amount of the
penalty assessment must be determined in accordance with paragraph
(c)(2) of this section and will not be limited to the amount originally
assessed or by any previous reduction, increase, or offer of
mitigation.
(5) The administrative law judge has all powers necessary to
conduct a fair, orderly, expeditious, and impartial hearing process,
and to render a decision under 5 U.S.C. 554-557.
(6) The administrative law judge will render a written decision
based upon the hearing record. The decision must set forth the findings
of fact and conclusions of law, and the reasons and basis for them.
(7) The administrative law judge's decision takes effect as the
final administrative decision of the Secretary 31 days from the date of
the decision unless the museum files a notice of appeal as described in
paragraph (k) of this section.
(k) Appealing the administrative law judge's decision. Any party
who is adversely affected by the decision of the administrative law
judge may appeal the decision by filing a written notice of appeal
within 30 days of the date of the decision. The notice of appeal must
be filed with the Interior Board of Indian Appeals (IBIA), Office of
Hearings and Appeals, U.S. Department of the Interior, at the mailing
address specified in the administrative law judge's decision, or by
electronic means in accordance with an OHA Standing Order which is
available on OHA's website at the web address specified in the
administrative law judge's decision. The notice of appeal must be
accompanied by proof of service on the administrative law judge and the
opposing party. The notice of appeal and any document filed thereafter
with the IBIA is subject to the rules that govern the method and
effective date of filing in 43 CFR 4.310.
(1) To the extent they are not inconsistent with this section, the
provisions of 43 CFR part 4, subpart D, apply to the appeal process.
The appeal board's decision must be in writing and takes effect as the
final penalty assessment and the final administrative decision of the
Secretary on the date that the appeal board's decision is rendered,
unless otherwise specified in the appeal board's decision.
(2) OHA decisions in proceedings instituted under this section are
posted on OHA's website.
(l) Exhaustion of administrative remedies. A museum has the right
to seek judicial review, under 5 U.S.C. 704, of the final
administrative decision of the Secretary only if it has exhausted all
administrative remedies under this section. No decision, which at the
time of its rendition is subject to appeal under this section, shall be
considered final so as to constitute agency action subject to judicial
review. The decision being appealed shall not be effective during the
pendency of the appeal.
(m) Failure to pay penalty or continuing failure to comply. (1) If
the failure to comply continues after the date the final administrative
decision of the Secretary takes effect, as described in paragraphs (g),
(j)(6), or (k)(1) of this section, or after a date identified in an
agreement under paragraph (e)(3) of this section, the Secretary may
assess an additional daily penalty amount for each continuing violation
not to exceed $1,496 per day, subject to annual adjustments based on
inflation under the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (Pub. L. 114-74). In determining the daily
penalty amount, the Secretary will consider the factors in paragraph
(c)(2) of this section. This penalty will start to accrue on the day
after the effective date of the final administrative decision of the
Secretary or on the date identified in an agreement under paragraph
(e)(3) of this section.
(2) If the museum fails to pay the penalty, the Attorney General of
the United States may institute a civil action to collect the penalty
in an appropriate U.S. District Court. In such action, the validity and
amount of the penalty are not subject to review by the court.
(n) Additional remedies. The assessment of a penalty under this
section is not deemed a waiver by the Department of the Interior of the
right to pursue other available legal or administrative remedies.
Subpart D--REVIEW COMMITTEE
Sec. 10.12 Review Committee.
The Review Committee advises the Secretary and Congress on matters
relating to sections 5, 6, and 7 of the Act and other matters as
specified in section 8 of the Act. The Review Committee is subject to
the Federal Advisory Committee Act (FACA, 5 U.S.C. App.)
(a) Recommendations. Any recommendation, finding, report, or other
action of the Review Committee is advisory only and not binding on any
person. Any records and findings made by the Review Committee may be
admissible as evidence in actions brought by persons alleging a
violation of the Act. Findings and recommendations made by the Review
Committee will be published in the Federal Register within 90 days of
making the finding or recommendation.
(b) Nominations. The Review Committee consists of seven members
appointed by the Secretary of the Interior.
(1) Three members are appointed from nominations submitted by
Indian Tribes, Native Hawaiian organizations, and traditional religious
leaders. At least two of these members must be traditional Indian
religious leaders. A traditional Indian religious leader is a person
who, based on cultural, ceremonial, or religious practices, is
recognized by an Indian Tribe as being responsible for performing
cultural ceremonies or exercising a leadership role.
(2) Three members are appointed from nominations submitted by
national museum organizations or national scientific organizations. An
organization that is created by, is a part of, and is governed in any
way by a parent national museum or scientific organization must submit
a nomination through the parent organization. National museum
organizations and national scientific organizations are organizations
that:
(i) Focus on the interests of museums and science disciplines
throughout the United States, as opposed to a lesser geographic scope;
(ii) Offer membership throughout the United States, although such
membership need not be exclusive to the United States; and
(iii) Are organized under the laws of the United States Government.
(3) One member is appointed from a list of more than one person
developed and consented to by all other appointed members specified in
paragraphs (b)(1) and (b)(2) of this section.
(c) Findings of fact or disputes on repatriation. The Review
Committee may assist any affected party through consideration of
findings of fact or disputes related to the inventory, summary, or
repatriation provisions of the Act. One or more of the affected parties
may request the assistance of the Review Committee or the Secretary may
direct the Review Committee to consider a finding of fact or dispute.
Requests for assistance must be made before repatriation of the human
remains or cultural items has occurred.
[[Page 63260]]
(1) An affected party is either a:
(i) Museum or Federal agency that has possession or control of the
human remains or cultural items, or
(ii) Lineal descendant, or an Indian Tribe or Native Hawaiian
organization with potential affiliation to the human remains or
cultural items.
(2) The Review Committee may make an advisory finding of fact on
questions related to:
(i) The identity of an object as human remains or cultural items,
(ii) The cultural or geographical affiliation of human remains or
cultural items, or
(iii) The repatriation of human remains or cultural items.
(3) The Review Committee may make an advisory recommendation on
disputes between affected parties. To facilitate the resolution of
disputes, the Review Committee may:
(i) Consider disputes between an affected party identified in
paragraph (c)(1)(i) of this section and an affected party identified in
paragraph (c)(1)(ii) of this section;
(ii) Not consider disputes among lineal descendants, Indian Tribes
and Native Hawaiian organizations;
(iii) Not consider disputes among museums and Federal agencies;
(iv) Request information or presentations from any affected party;
and
(v) Make advisory recommendations directly to the affected parties
or to the Secretary.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-22376 Filed 10-13-22; 8:45 am]
BILLING CODE 4312-52-P
