Native American Graves Protection and Repatriation Act Systematic Processes for Disposition or Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony, 86452-86540 [2023-27040]
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Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
[NPS–WASO–NAGPRA–NPS0036506;
PPWOCRADN0–PCU00RP14.550000]
RIN 1024–AE19
Native American Graves Protection
and Repatriation Act Systematic
Processes for Disposition or
Repatriation of Native American
Human Remains, Funerary Objects,
Sacred Objects, and Objects of
Cultural Patrimony
Office of the Secretary, Interior.
Final rule.
AGENCY:
ACTION:
This final rule revises and
replaces definitions and procedures for
lineal descendants, Indian Tribes,
Native Hawaiian organizations,
museums, and Federal agencies to
implement the Native American Graves
Protection and Repatriation Act of 1990.
These regulations clarify and improve
upon the systematic processes for the
disposition or repatriation of Native
American human remains, funerary
objects, sacred objects, or objects of
cultural patrimony. These regulations
provide a step-by-step roadmap with
specific timelines for museums and
Federal agencies to facilitate disposition
or repatriation. Throughout these
systematic processes, museums and
Federal agencies must defer to the
Native American traditional knowledge
of lineal descendants, Indian Tribes,
and Native Hawaiian organizations.
DATES: This rule is effective January 12,
2024. Comments on the information
collection requirements in this final rule
must be submitted to the Office of
Management and Budget by January 12,
2024.
ADDRESSES: All public comments and
attachments received, as well as
supporting documentation used in the
preparation of these regulations, are
available online at https://
www.regulations.gov in Docket No.
NPS–2022–0004. 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
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), 13461 Sunrise Valley
Drive, Reston, VA 20191. Please include
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SUMMARY:
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‘‘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 (ICR)
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. In compliance
with the Providing Accountability
Through Transparency Act of 2023, the
plain language summary of the proposal
is available on https://
www.regulations.gov in the docket for
this rulemaking.
SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of Public Comments and
Responses
A. General Comments
B. Section 10.1 Introduction
C. Section 10.2 Definitions for This Part
D. Section 10.3 Determining Cultural
Affiliation
E. Subparts B and C
F. Section 10.4 General
G. Section 10.5 Discovery
H. Section 10.6 Excavation
I. Section 10.7 Disposition
J. Subpart C
K. Section 10.8 General
L. Section 10.9 Repatriation of
Unassociated Funerary Objects, Sacred
Objects, or Objects of Cultural Patrimony
M. Section 10.10 Repatriation of Human
Remains or Associated Funerary Objects
N. Section 10.11 Civil Penalties
O. Section 10.12 Review Committee
III. Response to Public Engagement and
Request for Comments
A. Public Engagement
B. Requests for Comment
C. Use of Received Feedback
IV. Compliance With Other Laws, Executive
Orders, and Department Policy
I. Background
On November 16, 1990, President
George Bush signed into law the Native
American Graves Protection and
Repatriation Act (NAGPRA or Act) (25
U.S.C. 3001, et seq.). The Act recognizes
the rights of lineal descendants, Indian
Tribes, and Native Hawaiian
organizations (NHOs) in Native
American human remains, funerary
objects, sacred objects, and objects of
cultural patrimony. The Secretary of the
Interior is responsible for promulgating
regulations to carry out the provisions of
the Act and delegated this authority to
the Assistant Secretary. Since 1993, the
Department of the Interior (Department)
has published rules under the title
‘‘Native American Graves Protection
and Repatriation Act Regulations’’
including:
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• RIN 1024–AC07, 1993 Proposed
Rule (58 FR 31122, May 28, 1993) and
1995 Final Rule (60 FR 62134,
December 4, 1995);
• RIN 1024–AC84, Civil Penalties
Final Rule (68 FR 16354, April 3, 2003)
and Future Applicability Final Rule (72
FR 13184, March 21, 2007);
• RIN 1024–AD68, 2007 Proposed
Rule Disposition of Culturally
Unidentifiable Human Remains (72 FR
58582, October 16, 2007) and 2010 Final
Rule Disposition of Culturally
Unidentifiable Human Remains (75 FR
12378, March 15, 2010); and
• RIN 1024–AE00, Disposition of
Unclaimed Cultural Items Final Rule (80
FR 68465, November 5, 2015).
II. Summary of Public Comments and
Responses
The Department (we) published a
proposed rule (RIN 1024–AE19) in the
Federal Register on October 18, 2022
(87 FR 63202, hereafter 2022 Proposed
Rule) to clarify and improve upon the
systematic processes for disposition or
repatriation of Native American human
remains and cultural items. We
accepted public comments for 90 days
via the mail, hand delivery, and the
Federal eRulemaking Portal at https://
www.regulations.gov. After considering
several requests for extensions of the
public comment period beyond the
original 90 days, we extended the
comment period an additional 14 days
until January 31, 2023.
All comments received by the
deadline are publicly available on
https://www.regulations.gov, Docket No.
NPS–2022–0004. During the comment
period, we received a total of 206
submissions which included 181
individual submissions posted to the
docket and 25 attachments as identified
by the submitter. When necessary, we
have cited to specific submissions as
NPS–2022–0004–XXXX. We received
submissions from a range of sources
including individual members of the
public, Indian Tribes, museums, and
organizations. Table 1 shows the
number of submissions by type of
submitter.
TABLE 1—SUBMISSIONS RECEIVED BY
SUBMITTER
Submitter
Individuals .............................
Federally recognized Indian
Tribes* ...............................
Museums ..............................
Museum or scientific
organizations** ..................
Native American organizations ...................................
Duplicate submissions ..........
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Submissions
95
48
13
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TABLE 1—SUBMISSIONS RECEIVED BY
SUBMITTER—Continued
Submitter
** These submissions are by professional organizations representing museums or scientific
professionals and they are separate and distinct from the museums above.
Submissions
In these final regulations, we focus
our discussion on changes from the
3
2022 Proposed Rule based on comments
1 we received during the comment period
and our further consideration of the
0 issues raised. For background on the
statutory and legislative history and
* Two submissions were on behalf of multiple Indian Tribes making the total number of case law relevant to these regulations,
Indian Tribes represented 55.
we refer the reader to the previously
Indian groups without Federal recognition .................
Federal Advisory Review
Committee .........................
Native Hawaiian organizations ...................................
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published rules under the title ‘‘Native
American Graves Protection and
Repatriation Act Regulations’’
referenced in I. Background. We
reviewed and considered all comments
prior to developing this final rule. We
have provided 124 summaries of
comments and our direct responses
below; we combined similar comments
where appropriate. Table 2 shows the
largest number of comments by issue.
TABLE 2—TOP 10 ISSUES BY NUMBER OF COMMENTS
Number of
comments
Issue
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Changes to ‘‘affiliation’’ ............................................................
Role of Indian groups without Federal recognition .................
Steps for consultation ..............................................................
Timelines under Subpart C ......................................................
Require consent or consultation before allowing scientific
study.
Duty of care, including scientific study ....................................
‘‘Possession or control’’ ...........................................................
Specific steps in Subpart C .....................................................
Purpose of this rule .................................................................
‘‘Consultation’’ ..........................................................................
In addition, we received 109
comments generally supporting the
regulations and the changes (see
Comment 1.), and we received 96
comments on the estimated burden and
information collection requirements for
the revised regulations (see Comment
4.). We received 43 comments
requesting action by the Department of
the Interior outside of the scope of these
regulations (see Comment 6.). Four
comments requested changes in these
regulations from business days to
calendar days, which is significant in
that it impacts all the timelines under
this final rule (see Comment 19).
In response to these comments and
others discussed in detail below, we
made the following major changes in the
final rule:
1. Removed ‘‘geographical affiliation’’
in its entirety, simplified the process for
cultural affiliation to provide that one
type of information, including
geographical information, is sufficient
for cultural affiliation, and replaced
‘‘preponderance of the evidence’’ with
‘‘clearly or reasonably identify’’ (§ 10.3
Determining cultural affiliation).
2. Removed all reference to Indian
groups without Federal recognition and
prioritized the rights of federally
recognized Indian Tribes in disposition
and repatriation (§ 10.2 Definitions for
this part ‘‘Indian Tribe’’ and §§ 10.7(d)
Disposition and 10.10(k) Repatriation).
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See comment and response
102
53
53
46
45
Comment
Comment
Comment
Comment
Comment
58. to 61.
3. and 39. See also Comment 91. and 114.
64.
92.
15.
44
44
42
42
39
Comment
Comment
Comment
Comment
Comment
12. to Comment 17.
49.
94.
9.
30.
3. Required free, prior, and informed
consent before any exhibition of, access
to, or research on human remains or
cultural items (§ 10.1(d) Duty of Care).
4. Extended the timeline to allow five
years (rather than two as proposed) for
museums and Federal agencies to
consult and update inventories of
human remains and associated funerary
objects (§ 10.10(d) Repatriation).
5. Replaced ‘‘business days’’ with
‘‘calendar days’’ and extended deadlines
as a result (§ 10.1(f) Deadlines).
6. Revised ‘‘consultation’’ to provide
more instruction on goals and process
(§ 10.2 Definitions for this part
‘‘Consultation’’).
7. Removed the requirement for
written requests to consult from Indian
Tribes or NHOs, and therefore removed
the requirement for a museum or
Federal agency to respond within a set
timeframe (§§ 10.4(b), 10.9(b), and
10.10(b) Initiate consultation).
Despite receiving many comments, we
have not revised the definitions or
application of ‘‘possession or control’’
and ‘‘custody.’’ As in the Act,
‘‘possession or control’’ is a
jurisdictional requirement for human
remains or cultural items subject to
these regulations and for repatriation
(§ 10.2 Definitions for this part
‘‘custody’’ and ‘‘possession or control’’).
A. General Comments
1. Comment: We received 109
comments generally supporting these
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regulations and the overall goals of
disposition or repatriation. Comments
from individuals, including many
students in high school, college, and
graduate school, offered support for the
general principle of returning ancestors
and objects to lineal descendants,
Indian Tribes, and NHOs. Museum and
museum and scientific organizations
supported the overall goals to clarify
and improve upon the systematic
processes for disposition and
repatriation. A few comments from
museums focused on the impact the
revised regulations would have on the
museum profession. One comment
stated ‘‘Overall, the language in the
proposed draft reflects contemporary
best practices around repatriation and
codification in 43 CFR part 10 makes
sense in an effort to standardize
repatriation activities across diverse
institutions, agencies, and Tribes’’
(NPS–2022–0004–0129). Another
museum commented:
A fundamental shift in priorities is
necessary at institutions who have fallen
short in their efforts to comply with the
legislation’s intent. It is time for institutions
to prioritize this work, in both the allocation
of resources and the ethical commitment to
genuinely engage in consultation with Native
Nations. The passage of these proposed
revisions is a necessary step towards
addressing the legacy of colonial injustices
imposed upon Indigenous Peoples in the
United States (NPS–2022–0004–0115).
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Many Indian Tribes and Native
American organizations also expressed
appreciation and support for the
revisions and felt the changes better
reflected Congressional intent. One
Indian Tribe stated:
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We appreciate the difficult work and
coordination the Department has undertaken
to make vast and meaningful changes to shift
the burden of NAGPRA compliance to where
it belongs—to federal agencies and museums.
We explain below several changes that we
support. While in the interest of brevity, we
focus our comments on areas of concern, the
Department should understand that our
Tribes welcome this proposed rule. With our
comments below addressed, we believe the
new regulations will better implement
NAGPRA and facilitate the repatriation of our
Ancestors and sacred objects as Congress
intended (NPS–2022–0004–0158).
DOI Response: As discussed more
fully throughout this document, we
agree with many of these statements;
and, as a result, we are publishing this
final rule. We appreciate the comments
from individuals, especially from
students, not only for supporting this
effort but for engaging in the rulemaking
process. We appreciate the supportive,
yet constructive comments from
museums and museum and scientific
organizations. We are indebted to the
many Indian Tribes who provided
comments as well as those who
provided input during consultation
throughout the process of developing
these regulations.
2. Comment: We received nine
comments generally objecting to the
changes to these regulations. One
comment stated the process was more of
a political statement than a necessity.
One comment supported the idea of
clarifying the repatriation process but
felt the proposed rule would undermine
existing efforts and result in a rushed,
transactional process. One comment felt
the proposed regulations would hinder
meaningful consultation and impede the
progress that museums, Indian Tribes,
and NHOs have made so far. One
comment believed the revisions
compounded difficulties that both
museums and Indian Tribes already face
and would reduce efficiency rather than
improve it. One comment stated that in
addition to a lack of statutory authority
for some of the revisions, the
Department had not identified any
inadequacies or difficulties in the
existing regulations, particularly with
respect to Subpart B. One comment saw
the revisions as a reversal rather than a
strengthening of Congressional intent
and stated that, as the drafted, the
revisions are ‘‘based upon ‘restorative
justice’ rather than the words and intent
of Congressional legislation, [and] has
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gone too far.’’ The comment stated the
revisions reflected a larger cultural shift
and that Native activist groups ‘‘have
urged aggressive claims for repatriation
and demanded that [T]ribal permission
be sought for the transfer of objects long
in legal circulation’’ (NPS–2022–0004–
0188). Three comments from Indian
Tribes expressed concerns that the
revisions would slow down or even stop
the work of repatriation. All three
comments believed the revisions are too
extensive and too complex and will,
ultimately, create more issues than the
revisions resolve. One of these
comments was especially concerned
that the revisions did not address two
central and persistent issues that Indian
Tribes have long asked for: enhanced
enforcement and protection of private
information.
DOI Response: As discussed more
fully throughout this document, we
disagree with many of these statements;
and, as a result, we are proceeding with
publication of this final rule despite
these objections. These regulations
reflect and implement the legal
requirements established by Congress.
We understand that some of the
timelines under this final rule will
require faster action by museums and
Federal agencies than under the existing
regulations. However, certain deadlines
can be extended or actions delayed,
provided the appropriate lineal
descendant, Indian Tribe, or NHO has
agreed to extend or delay the process.
We believe the changes in these
regulations will enhance meaningful
consultation and ensure that resulting
efforts are based on consensus or
agreement. We believe that the
increased transparency and
communication required by these
regulations will resolve some of the
existing challenges faced by all parties.
As discussed in more detail throughout
this document, these revisions are
within the Secretary’s statutory
authority and based on over 30 years of
input, comment, and experience in
implementing the Act. As reflected in
the supportive comments above, these
revisions reflect best practices and
changes in the wider professional
disciplines, while at the same time
adhering to the language and limits
provided by Congress. We have
incorporated requests from Indian
Tribes and NHOs to the maximum
extent possible, but we do not believe
these revisions will stop the work of
repatriation or create more issues than
are resolved. We do anticipate that the
work of repatriation may be slowed as
all parties adjust to the revisions in
these regulations and especially as all
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parties re-evaluate past practices
considering these simplified, clarified,
and streamlined regulations. We
reiterate here, as we have throughout
this document, that the goal of this final
rule is to clarify and improve the
systematic processes for disposition and
repatriation by making the requirements
clear to all parties involved.
3. Comment: We received 53
comments on the standing of Indian
groups without Federal recognition
under these regulations. Of that total, 40
comments supported giving standing to
Indian groups without Federal
recognition while 13 comments opposed
it. Some comments also suggested
changes to 25 CFR part 83 to recognize
more groups and that the National
NAGPRA Program should help educate
groups on how to achieve Federal
recognition.
DOI Response: The recognition
process and training concerning it are
outside the scope of these regulations.
Furthermore, as discussed below under
that definition, these regulations cannot
expand the definition of ‘‘Indian Tribe’’
beyond that provided in the Act. Indian
groups without Federal recognition,
including State recognized tribes, are
not completely excluded from the
disposition or repatriation processes. As
is the current practice, Indian groups
without Federal recognition can work
with federally recognized Indian Tribes
as part of a joint claim for disposition
or joint request for repatriation. See also
Comment 39.
4. Comment: We received 96
comments about the estimated burden
and related information collection
requirements of the proposed
regulations. Of that total, nine
comments supported some part of the
burden estimate, including agreeing that
there is a wide variation in the actual
time required because of differences in
size and complexity of the required
responses. Two of these comments
supported the overall burden estimate
and agreed that the changes would yield
long-term savings, despite the shortterm increased costs. Five of these
comments agreed that the collection of
information is necessary and has a
practical utility. One comment
specifically stated the information
collected had no practical utility and
should not be required. Five comments
suggested one way to minimize the
burden of these regulations was for the
Department to provide online resources
to assist with identifying Indian Tribes
with potential cultural affiliation.
Eighteen comments generally objected
to the burden estimate. Many of these
comments felt the methods and
assumptions were flawed and did not
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reflect the actual amount of effort
required to comply with these
regulations. Several comments stated
that the proposed regulations
significantly expanded the
administrative, staffing, and financial
burdens already imposed on museums
and Federal agencies and that museums
and Federal agencies are already facing
capacity and resource limitations that
prevent them from completing the
already burdensome requirements under
the existing regulations. Five comments
stated that, regarding the quality, utility,
and clarity of the information to be
collected, there was a disconnect
between oral statements by the National
Park Service staff and the proposed
regulations on the requirements for
consultation and reporting (see NPS–
2022–0004–0081). A few comments
stated additional financial resources
must be provided before any additional
tasks can be required and that it was
unreasonable and misguided to expect
museums and Federal agencies to
comply without providing additional
funds. Two comments stated that the
estimates should not rely on responses
from the last three years to estimate
costs due to the pandemic. One
comment requested that the General
Accountability Office estimate the costs
of the proposed regulations. One
comment questioned the authority of
the Department to collect information
that could be used to monitor the
repatriation process.
A total of 31 comments specifically
discussed the impact of these
regulations on Indian Tribes and NHOs
and suggested some possible solutions
to lessen the burden. Of that total, 18
comments suggested the Department
create a dedicated grant program for
Indian Tribes and NHOs. One of these
comments expressed that museums
have been wasting grant funds on
unnecessary tasks since 1994 and more
grant funding should be provided to
Indian Tribes and NHOs. Five
comments felt the burden on Indian
Tribes and NHOs in these regulations
was underestimated, too high, or
prohibitively expensive. One comment
from an individual stated the burden on
Indian Tribes and NHOs could not be
minimized with technology due to a
general lack of access to the internet in
Indian Country. One comment
requested the regulations provide more
funding as well as flexibility for Indian
Tribes to engage with repatriation at
their own pace. Seven comments
questioned the costs to Indian Tribes
under Subpart B of the proposed
regulations, which some estimated to be
$40 million per year.
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Eighteen comments provided input or
alternative estimates for specific tasks.
Two comments believe tasks are missing
from the estimate, such as
documentation review, correspondence
after consultation, travel arrangements,
hosting arrangements, inventory/packet/
documentation preparation, room setup,
consultation participation,
documentation of consultation,
administrative requirements, moving
items to or from storage, and
implementation of care guidance. One
comment stated the costs of physical
transfer should be included and, for a
large repatriation, staff time alone can
exceed $100,000 for physical transfer.
Two comments stated the estimate for
initiating consultation should be much
higher, from 40 hours to at least 140
hours, to include the time required to
identify consulting parties, prepare, and
distribute letters or emails, and to make
follow up phone calls. One comment
suggested the estimate for conducting
consultation be increased to provide for
staff to retrieve collections from storage
and travel by many representatives
(sometimes up to ten people) from
Indian Tribes or NHOs to conduct a
physical review. Three comments stated
the estimate for completing an inventory
was too low as even an inventory
update was an enormous undertaking
that required significant time and
resources. One of these comments noted
that a previously prepared inventory did
not reduce the necessary time, as
previous inventories are generally
‘‘woefully inadequate.’’ One of these
comments stated that, based on
experience, it takes 10 hours to
inventory one box plus an additional 6–
8 hours to describe each individual or
object in the box and an additional 40
hours per site to produce a final report.
The comment estimated that for 200
boxes, it would take 2,000 hours to
inventory the boxes, and this did not
include additional time to describe each
object or write a site report (NPS–2022–
0004–0125). One comment stated the
estimate for a summary was also
underestimated and stated it takes
anywhere from 6 months to two years to
prepare a summary and then an
additional six months for illustration
and documentation of the objects. Five
comments believe the estimate for
preparing notices (either for inventory
completion or intended to repatriation)
were underestimated. One of these
comments estimated it takes 120 hours
to facilitate a notice of inventory
completion plus additional time to
verify the information with a physical
review. Four of these comments
suggested that for each notice type, the
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minimum amount of time required was
2 hours while the maximum amount of
time was between 10 and 30 hours per
notice, plus additional time to consult
on the draft notice. One comment stated
evaluating competing requests and
resolving stays of repatriation required
significantly more time, estimating
between 100 and 1,000 hours, especially
when considering the involvement of
legal departments, executives, and
board members in those tasks. Two
comments stated the rate used to
calculate costs should be $100 to $120
per hour.
Fourteen comments provided
estimates for the total costs of Subpart
C of these regulations. For Indian Tribes
and NHOs several estimated a cost of
$17.2 million per year. For museums
and Federal agencies one comment
estimated $19.4 million per year. The
two estimates were developed by one
individual, using grant awards from
2011 to 2021 to estimate the average
cost for a notice of inventory completion
($14,416 per notice). After calculating
an estimated cost for museums and
Federal agencies to comply with the
proposed regulations, the estimate
calculated the costs for Indian Tribes
and NHOs by using the percentage of
funding awarded in grants from 2011–
2021 to museums (58%) and Indian
Tribes or NHOs (42%) to estimate a total
burden for the proposed regulations at
$91.4 million over 30 months or $36.6
million per year (see NPS–2022–0004–
0174). Other comments estimated a total
for museums only between $25 million
and $118 million per year. One museum
provided a variety of estimates based on
current project budgets which ranged
from $200,000 to $500,000 per project
per year for one museum. The comment
estimated the burden for the single
museum at 19,000 hours per year
($1.273 million per year per museum
assuming an hourly rate of $67/hour).
When applied to all 407 museums that
will be required to update inventories
under these regulations, that amounts to
the highest estimate of $518.1 million
per year for museums alone, although
the comment noted that not all
museums will require the same number
of hours). The same comment
questioned how the Department
estimated that the proposed regulations
do not impose an unfunded mandate on
State, local, or [T]ribal governments or
the private sector of more than $100
million per year (see NPS–2022–0004–
0125).
One comment detailed the hours
involved in one part of a two-part
project over 15 months. The first phase
of the project included 13 consultation
meetings which required hundreds of
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hours of time by Indian Tribes and
museum staff, including hundreds of
phone calls. Consultants hired to
develop and complete the first phase of
the project spent thousands of hours on
the first phase and travel expenses
totaled $3,000. In the first phase, 31
notices of inventory completion were
published, although the comment stated
that the number of notices could be
irrelevant as each notice involved a
single group of Indian Tribes and one
museum and could have been a single
notice. The first phase of the project
covered 1,021 individuals and 11,590
associated funerary objects. The
comment noted that these estimates do
not include the hours involved in
preparation of the original inventory of
human remains and associated funerary
objects completed in the early 1990s.
Although a total estimated cost for this
phase of the project was not provided,
elsewhere the comment suggested at
minimum $100 to $120 an hour should
be used in dollar estimates (see NPS–
2022–0004–0135). Using the lower
hourly figure and the number of hours
provided, the estimate for the first phase
of the project is $123,000 over 15
months or $98,400 per year. When
applied to all 407 museums that will be
required to update inventories under
these regulations, it equals an estimated
$40 million per year for museums.
DOI Response: We appreciate the
specific input on the estimated costs for
certain requirements in these
regulations. We have addressed many of
these comments in the revised CostBenefit and Regulatory Flexibility
Threshold Analyses for the final
regulations. We reiterate that the
Department believes the short-term
increased costs of these regulations are
justified by the associated long-term
quantitative and qualitative benefits. We
believe the information collected under
these regulations is necessary and any
information collected by the Department
under these regulations is required by
the Act for administrative purposes
(such as publishing notices) and is not
used for monitoring or evaluating the
quality of that information. The
Department will develop and provide
templates for all information collection
requirements, and we will provide
additional resources to assist with
identifying consulting parties to
minimize the burdens of these
regulations, as discussed further in
Comment 95. Any changes to the
amount of available funding through
grants are beyond the scope of these
regulations and are the purview of
Congress and the appropriations
process. We cannot limit the grant
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awards to only Indian Tribes and NHOs
as that would be inconsistent with the
Act.
Regarding the hourly rate used to
calculate costs, we used the Bureau of
Labor Statistics (BLS) News Release
USDL–23–1305, March 2023 Employer
Costs for Employee Compensation—
released June 16, 2023 (https://
www.bls.gov/news.release/ecec.nr0.htm,
accessed 12/1/2023). This is a standard
source we have used in estimating the
burden of these regulations as a part of
our compliance with the Paperwork
Reduction Act. Any person equates to
Civil workers. Table 2 lists the hourly
rate for full-time workers as $43.07,
including benefits. Lineal descendants
equate to Private Industry Workers:
Table 6 lists the hourly rate for all
workers as $40.79, including benefits.
Any Affected Party, Indian Tribes/
NHOs, Federal agencies, and museums
equates to State and Local Government
Workers. Table 3 lists the hourly rate for
Professional and related Workers as
$67.01, including benefits.
Regarding the impact of these
regulations on Indian Tribes and NHOs,
we anticipate a change in how grant
funds are awarded due to the changes in
these regulations. During the first five
years after publication of the final
regulations, grant funds will likely
continue to go to consultation and
documentation projects to consult and
update inventories. After five years, we
anticipate more grant funds will be
requested by Indian Tribes or NHOs for
repatriation assistance or for making
requests for repatriation. As noted in
Comment 102, the Notice of Funding
Opportunity for NAGPRA grants is
where any changes to the allowable
activities for grants will be made. We do
not intend to impose requirements on
lineal descendants, Indian Tribes, or
NHOs to respond to invitations to
consult or to submit claims for
disposition or requests for repatriation.
Those are actions that lineal
descendants, Indian Tribes, and NHOs
may choose to take but are not required.
We agree there are new requirements
for Indian Tribes to take certain actions
under Subpart B that under the existing
regulations are voluntary. We disagree
that all those requirements under
Subpart B are new, and we strongly
disagree with the estimate provided. As
discussed in Comment 70 and Comment
83, we disagree that the Act, the existing
regulations, or any other regulations
designate that the BIA is responsible for
discovery, excavation, and disposition
on Tribal lands in Alaska and the
continental United States. We agree that
Indian Tribes have discretion under the
existing regulations in responding to a
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discovery on Tribal lands and that the
final regulations will require Indian
Tribes to respond to discoveries on
Tribal land. This is to improve
consistency with the Act and clarify the
responsibilities in these regulations. We
understand that in some cases these
responsibilities may exceed the capacity
or resources of an Indian Tribe, and in
those cases, the Indian Tribe can
delegate these responsibilities to the
Bureau of Indian Affairs or another
Federal agency with primary
management authority. Lastly, we note
that Tribal laws, policies, and
administrative capacity vary greatly,
and the comments do not seem to take
that into account by applying a blanket
assumption of the same cost for each
Indian Tribe. The comments also do not
consider the small number of actions on
Tribal lands per year, which is not
likely to significantly change based on
the final regulations.
Regarding the alternative estimates
provided by some comments, we believe
that any estimate based on current
practice or past grant awards is
inherently flawed and does not account
for the specific objective of the proposed
and final regulations to simplify and
improve the systematic processes within
specific timeframes. We understand that
our estimates do not reflect the actual
amount of time some museums and
Federal agencies currently spend on
compliance with these regulations. We
strongly disagree, however, that our
estimates do not reflect what is required
by these regulations. In the 33 years
since the passage of the Act, each
museum or Federal agency has
approached the requirements of these
regulations in different ways, and, as a
result, there is a wide variation in how
much time and money is spent to
comply with these regulations. As noted
in the proposed regulations and
elsewhere in this document, one of our
goals in revising the regulations is to
improve efficiency and consistency in
meeting these requirements.
Necessarily, this will mean a difference
between our estimated costs for these
regulations and current practices. While
we understand the objections to our
estimates and the concerns about
insufficient funding to carry out these
requirements, the Secretary, the
Assistant Secretary, and the Department
are committed to changing the
implementation of the Act and to
clearing a path to expeditious
repatriation as Congress intended.
Concerns about the financial burden
of the Act and these regulations on
museums were expressed even before
the Act was passed. In discussing the
key compromises made to the final bill
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in 1990, Representative Campbell stated
that limiting the inventory requirement
to only human remains and associated
funerary objects ‘‘will go a long way to
reduce cost to museum and at the same
time encourage both sides to sit down
early together to discuss their options’’
(136 Cong. Rec. 31938). With this
change and the authorization of a grant
program to assist museums with the
inventory requirements, the Association
of American Museums and the Antique
Tribal Arts Dealers Association
withdrew their objections to the final
legislation.
As envisioned by Congress, most of
the requirements for repatriation under
the Act should have been completed by
1995, although extensions were
authorized in some cases. In 1990, the
Congressional Budget Office (CBO)
reviewed the Act and estimated the
legislation would cost between $20
million and $50 million over five years.
The main costs of the Act were in
preparing inventories of human
remains, estimated between $5 million
and $30 million over five years, ‘‘for
museums to provide [T]ribes with the
basic information required by the bill.’’
The CBO acknowledged that to some
extent, ‘‘the total cost is discretionary—
the more funds made available, the
more accurate and comprehensive will
be the information collected by
museums.’’ More extensive and
expensive studies might be required for
some human remains, but, as the CBO
noted, such studies were not required
by the Act. CBO noted that ‘‘If museums
were required to identify all of their
holdings definitively, the costs of this
bill would be significantly higher than
the $30 million estimate.’’ The other $15
million to $20 million in estimated costs
were for identifying funerary objects
and completing summaries as well as
for Indian Tribes to make claims and
repatriate human remains or cultural
items (H. Rpt. 101–877, at 21–22).
After nearly 33 years of
implementation, the total cost of
repatriation is clearly discretionary,
and, in addition to funds, the more time
that has been available to complete an
inventory of human remains, the more
comprehensive, extensive, and
expensive the inventories have become.
After meeting the initial deadline for
inventories in 1995, many museums and
Federal agencies have continued to
update inventories at their own
discretion, going beyond what is
required by the Act and the existing
regulations. Under the Act and the
existing regulations, an inventory of
human remains only requires use of
‘‘information possessed by such
museum or Federal agency’’ (25 U.S.C.
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3003(a)). Yet, despite the minimum
requirements, hundreds of museums
and several Federal agencies submit
updated inventories each year. The
number of museums updating inventory
data is relatively large and accounts for
multiple submissions each year from a
single museum because the data is
updated on a case-by-case basis at the
discretion of the museum.
Since 1993, the Department has
provided estimated hours for tasks
under these regulations as a part of its
compliance with the Paperwork
Reduction Act. These estimates are far
below the estimates provided by some
comments, but these estimates have
been consistently used by the
Department and reflect what the
Department believes is required by the
Act and these regulations. The 1993
Proposed Rule included an estimate of
‘‘100 hours for the exchange of
summary/inventory information
between a museum or Federal agency
and an Indian [T]ribe or Native
Hawaiian organization . . .’’ (58 FR
31124). From 1993 until publishing the
proposed regulations in 2022, we
continued to use the estimate of 100
hours per museum for a new summary
or inventory. This is far less than the
comment that stated a museum spends
19,000 hours per year on its inventory
and summary and related tasks.
The 1993 Proposed Rule included an
estimate of ‘‘six hours per response for
the notification to the Secretary,
including time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collected information’’
(58 FR 31124). In 2012, we increased
this estimate to 10 hours per notice.
This is less than the estimate provided
in the comments of 120 hours to
facilitate a notice, including gathering
and maintaining data and reviewing and
verifying the information, or the
estimated range of two hours to 30
hours, for a median of 16 hours, to just
complete the notice template. The
estimate based on previous grants
suggests a notice costs $14,416 each
which equates to between 120 hours
and 225 hours per notice, depending on
the hourly rate applied. We agree with
the one comment that stated the number
of notices is irrelevant to estimating the
burden involved. Although not
explicitly stated in the existing
regulations, the final regulations clearly
state that museums or Federal agencies
may include in a single notice all
human remains and associated funerary
object having the same lineal
descendant or cultural affiliation for
efficiency and expediency. The
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comment that stated 31 notices could
have been combined in to one notice
demonstrates the discretion museums
and Federal agencies exercise in
complying with these regulations.
The 2010 Final Rule added a new
estimate related to the new regulatory
requirements. Under the regulations,
museums and Federal agencies were
required to (1) provide to Indian Tribes
and NHOs a list of Indian groups
without Federal recognition that may
have a relationship to human remains
and associated funerary items and (2)
request from Indian Tribes and NHOs
the temporal and/or geographic criteria
used to identify the groups of human
remains to be included in consultation.
The estimated burden on museums for
this collection of information was 30
minutes total, including time for
reviewing existing data sources,
gathering and maintaining data, and
preparing a transmission to other
consulting parties. In the 2022 Proposed
Rule, we renamed this requirement
‘‘Initiating consultation and requesting
information,’’ and we increased the
estimated time required to range from
less than one hour, or 0.50 hours, up to
5 hours, or a median of 2.75 hours. This
is far less than the comments that
suggested this should be much higher
and range from 40 hours to 140 hours,
or a median of 90 hours to initiate
consultation and request information.
In preparing the Cost-Benefit and
Regulatory Flexibility Threshold
Analyses for the 2022 Proposed Rule,
we accounted for all actions that are
required under the existing regulations
to calculate the baseline conditions. We
disagree that our estimate is missing
required tasks, and the tasks identified
by comments as missing are generally
included in the estimate for conducting
consultation. The costs of conducting
consultation vary greatly, depending on
the size and complexity of the
consultation. However, we note that
consultation does not require any
specific documentation beyond what
was already prepared in the initial
summary or inventory. The additional
tasks of inventory/packet/
documentation preparation or even
moving items from storage for purposes
of consultation are not required by the
regulations. A physical inspection of a
collection is not required by these
regulations, although we understand
that for some museums, lineal
descendants, Indian Tribes, or NHOs, in
person consultation is preferred. As for
the costs of physical transfer, we
address this further in Comments 51
and 66 in this document. Physical
transfer, and any costs that accompany
that effort, are not required by these
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regulations, and we note that grants are
provided specifically for assisting with
the costs of physical transfer.
As these comments clearly
emphasize, the burden estimates vary
widely. In its 1990 evaluation of the
Act, the Congressional Budget Office
made a similar conclusion, noting
‘‘[t]here is considerable disagreement
about the nature of the inventory
required by H.R. 5237,’’ and widely
varied estimates of costs. In the end, the
CBO estimated only $5 million to $30
million over five years would be
required which reflected the ‘‘costs of
an inventory of museums’ collections,
as well as a review of existing
information to determine [Tribal]
origin’’ (H. Rpt. 101–877, at 22).
5. Comment: We received 25
comments expressing concerns for the
protection of sensitive information in
the regulations. Some comments
suggested use of the Privacy Act and the
Archeological Resources Protection Act
(ARPA) to withhold information about
human remains and cultural items.
Other comments suggested changes to
the regulations to require that museums
and Federal agencies keep sensitive
information confidential.
DOI Response: While we appreciate
the suggestions, we cannot make the
requested changes. First, neither the
Privacy Act nor ARPA apply. Deceased
individuals do not have any Privacy Act
rights, nor do executors or next-of-kin.
See, generally, OMB 1975 Guidelines,
40 FR 28, 40 FR 951 (also available at
https://www.justice.gov/paoverview_
omb-75, accessed 12/1/2023) (stating
‘‘the thrust of the Act was to provide
certain statutory rights to living as
opposed to deceased individuals’’ and
‘‘the Act did not contemplate permitting
relatives and other interested parties to
exercise rights granted by the Privacy
Act to individuals after the demise of
those individuals’’). Similarly, the
exemption from disclosure under ARPA
applies specifically to ‘‘the nature and
location of any archaeological resource
for which the excavation or removal
requires a permit or other permission
under [ARPA] or under any other
provision of Federal law’’ (16 U.S.C.
470hh(a)). Thus, the ARPA provision is
directed to archaeological resources that
would require a permit for excavation or
removal, which applies to some but not
all human remains and cultural items
under the Act and these regulations.
In the proposed regulations and in
these final regulations, the Department
has taken steps to remove requirements
for museums or Federal agencies to
disclose sensitive information in an
inventory, summary, or notice. While
we cannot dictate how a museum or
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Federal agency responds to a request for
disclosure of sensitive information, we
encourage a museum or Federal agency,
at the request of a lineal descendant,
Indian Tribe, or NHO, to ensure that
information of a particularly sensitive
nature is not made available to the
public. Since 1995, the Department has
recommended museum or Federal
officials ensure that sensitive
information does not become part of the
public record by not collecting, or
writing down, such information in the
first place (1995 Final Rule, 60 FR
62154).
6. Comment: We received 43
comments requesting additional action
by the Department of the Interior
outside of these regulations. Of that
total, nine comments requested the
Department impose NAGPRA-related
conditions on any museum that
received any Federal grant. Seven
comments requested the Department
move the National NAGPRA Program
out of the National Park Service. A total
of 11 comments requested the
Department conduct more consultation
on these regulations before issuing final
regulations; five comments requested
consultation with only Indian Tribes
and NHOs while six comments
requested consultation with all
constituents. Five comments requested
further engagement with the Department
on these regulations. Five comments
requested the Department conduct or
request an audit of the National
NAGPRA Program, Federal agency
compliance, or the grant program. Four
comments requested the Department
provide more information about the
changes to these regulations, either
through training or simplified
documents outlining the changes. One
comment requested the Department
ensure its own bureaus follow these
regulations. One comment requested the
proposed regulations be withdrawn and
the Department start a new effort to
develop these regulations in
consultation with Indian Tribes and
NHOs.
DOI Response: We appreciate the
requests for additional action by the
Department. We agree that additional
information about changes to these
regulations will be needed, and we plan
on providing as many opportunities as
we can for training sessions,
discussions, and guidance documents
once the regulations are effective. We
welcome any other suggestions for how
we can support museums, lineal
descendants, Indian Tribes, or NHOs
with these regulations. We are working
to ensure all the bureaus within the
Department of the Interior have
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adequate staffing and support to ensure
compliance with these regulations.
We decline to include in these
regulations a requirement for imposing
NAGPRA-related conditions on Federal
grants. All Federal grant recipients are
required to provide assurances that they
will comply with all applicable
requirements of Federal laws,
regulations, and policies (see
‘‘Assurances for Construction/NonConstruction Programs (SF–424D and
SF–424B)’’ at https://www.grants.gov/
forms/forms-repository/sf-424-family,
accessed 12/1/2023). While we cannot
include the requested provisions in
these regulations, we agree to work with
the Office of Management and Budget to
explore whether and how a NAGPRAspecific condition might be included in
the general assurances required for all
Federal grant programs. We decline to
withdraw the proposed regulations or to
engage in additional consultations at
this time. We are committed to
implementing the final regulations as
soon as possible to ensure these longoverdue changes are implemented.
Regarding the location of the National
NAGPRA Program, we appreciate the
input we received during Tribal
consultation in 2021 and in response to
the proposed regulations. Currently, we
have not decided about the future
location of the National NAGPRA
Program. Regarding the requests for an
audit of the National NAGPRA Program,
Federal agency compliance, or the grant
program, all Federal agency programs,
including the National NAGPRA
Program, Federal agency NAGPRA
programs, and the NAGPRA grant
program, are subject to regular internal
control reviews under the Office of
Management and Budget Circular A–
123, Management’s Responsibility for
Enterprise Risk Management and
Internal Control (revised 7/15/2016).
Along with other management and
performance evaluation processes, the
National NAGPRA Program and all
Federal agency programs undergo
routine and regular review. We will
continue to consider the need for
additional management oversight.
7. Comment: We received 22
comments concerning how the
regulations should balance the interests
of, on the one hand, repatriation, and on
the other hand, scientific study. Of that
total, 17 comments outright objected to
the regulations giving museums or
Federal agencies decision-making
authority for disposition or repatriation.
Thirteen of these comments, which
came from one submission, asserted that
decisions on cultural affiliation,
evaluation of requests, repatriation, and
competing requests should be in the
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hands of the appropriate Indian Tribes
or NHOs and not museums and Federal
agencies (see NPS–2022–0004–0157).
Four comments provided similar
sentiments. One comment requested
that an independent authority evaluate
decisions made by museums and
Federal agencies. One comment noted
that despite positive changes, the
proposed regulations still had not truly
shifted the burden of having to prove
the identity or cultural affiliation of
human remains or cultural items off
Indian Tribes or NHOs because the
regulations did not give the power of
decision making to Indian Tribes or
NHOs.
By contrast, two comments objected
to the proposed regulations claiming
that they eliminate the balance of
interests that Congress intended when it
passed the Act. Both comments
referenced or quoted from statements
made by Senators Inouye and McCain in
1992, to the effect that the Act
represents a balance between scientific
study and respectful treatment of
human remains and cultural items. One
of these comments stressed that the
proposed regulations were inherently
imbalanced because they were
developed through consultation only
with Indian Tribes and NHOs and not
with museums, scientific organizations,
and Federal agencies (see NPS–2022–
0004–0150). Citing to ‘‘. . . words such
as ‘balance’ and ‘compromise’ [in]
describing the law in a special issue of
the Arizona State Law Journal published
shortly after the bill was passed (vol. 24,
1992),’’ the other objecting comment
stated, ‘‘[i]n my view, a rule published
in 2010 (43 CFR 10.11) began to move
NAGPRA away from the balance that
Congress intended. The new regulations
proposed here would make that balance
go away entirely’’ (see NPS–2022–0004–
0172).
Three comments directly refuted the
two objecting comments as gross
misrepresentations of the Act. One of
these comments concluded that the
imbalance is because the Act vests
decision making with museums and
Federal agencies and stated ‘‘where
there is disagreement between
institutions and Tribes regarding
affiliation, it requires that the Tribes
take extraordinary lengths to press
claims. The challenge is, can this rule or
any rule really overcome the inherent
imbalance in the Act?’’ (see NPS–2022–
0004–0129). Another comment
supported the proposed regulations in
trying to shift the balance more toward
Indian Tribes and NHOs because, since
1990, repatriation has been too slow,
and the burdens placed on Indian Tribes
and NHOs has been too great. The
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comment supported the proposed
regulations as representing the
‘‘continued evolution to ensure
NAGPRA’s relevance to its true
constituents-Indian [T]ribes and Native
Hawaiian organizations’’ (see NPS–
2022–0004–0080). A third comment
refuting the objecting comments stated:
Though some argue that repatriation is a
weighing of interests between science and
human rights, that interest is absent from the
Act, which is singularly aimed at providing
restitution. The Act creates an administrative
process for repatriation and disposition to
provide restitution for harms that have been
called out by Congress as genocide and
human rights violations. The only exception
the Act provides to repatriation is when a
museum or agency can prove that they have
a ‘‘right of possession.’’ Even permitting
completion of a scientific study of major
benefit to the United States does not prevent
repatriation, and will only delay it. 25 U.S.C.
3005(b).
Museums—even well-funded ones—have
admitted that they will not be proactive with
their CUI inventories, even with the
NAGPRA funding they request, and that
instead, they will continue to work to
overcomplicate the process, based on the
current regulations and criteria outlined
there. Thus, it is imperative that the
Secretary take over this duty and correct the
Ancestors and their belongings that languish
under a label called ‘‘unidentifiable’’ (NPS–
2022–0004–0153).
DOI Response: Nowhere in the Act
did Congress say that decisions about
disposition or repatriation are made by
balancing the interests of science against
the interests of human rights. While we
are aware of the statements made by
Senators Inouye and McCain in 1992,
we understand those statements to say
that the Act itself is the product of
balancing these interests. The lengthy
process of developing, drafting, and
agreeing to the language of the Act is
how Congress ensured a balance
between scientific study and respectful
treatment of human remains and
cultural items.
To ensure all information related to
the Congressional record is available,
the documents that provide legislative
intent are available on the National
NAGPRA Program website (https://
www.nps.gov/subjects/nagpra/thelaw.htm, accessed 12/1/2023). Beyond
the two reports, the Congressional
Record provides statements by
individual members of Congress. In the
Senate, Senator Inouye’s full statement
is available in the Congressional Record
Senate (October 26, 1990) on page
35678–35679. Senator McCain’s
opening statement is on the preceding
page 35677. A discussion of the impact
of the legislation on development
activities on Federal lands by Senators
McCain and Simpson is on page 35679–
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86459
35680. In the House, Representatives
Campbell (D–CO), Rhodes (R–AZ),
Collins (D–IL), Richardson (D–NM),
Bennett (D–FL), Mink (D–HI), and Udall
(D–AZ) provided statements in the
Congressional Record House (October
22, 1990) on pages 31937–31941.
We agree with the objecting
comments that the Congressional record
is replete with references to the balance,
compromise, and agreement in both the
process to develop the Act and in the
content of the Act itself. We agree with
the objecting comments that the Act
creates a balance, but we believe that
the balance is built into the Act itself
through compromises made in the Act
before its final passage. The objecting
comments appear to indicate that the
balance Congress intended comes in
only repatriating some human remains
and even fewer associated funerary
objects (as suggested by the objecting
comments reference to the 2010 Final
Rule) or that in each decision on
disposition or repatriation, a museum or
Federal agency must balance the
interests of science with those of human
rights. We disagree with this
interpretation of the legislative history.
The Congressional record of the
House clearly identified ‘‘points of
compromise’’ in the final version of the
Act. Representatives Campbell and
Richardson stated the Act represents a
compromise on the following issues:
1. Limiting the inventory requirement to
only human remains and associated funerary
objects rather than all Native American
collections;
2. Clarifying the definition of cultural
affiliation to incorporate anthropological and
archeological criteria (i.e., traced historically
or prehistorically);
3. Adding a standard of repatriation for
unassociated funerary objects, sacred objects,
and objects of cultural patrimony by defining
‘‘right of possession;’’
4. Tightening the definitions of
unassociated funerary objects and sacred
objects;
5. Clarifying the definition of museum to
not apply to private individuals who receive
Federal payments such as social security; and
6. Balancing representation of the Review
Committee to include all groups affected by
the Act.
Representative Campbell’s statement
included two other compromises in the
final version of the Act:
The bill takes into account that many of
these items may be of considerable scientific
value and allows for current studies to
continue with repatriation occurring after the
completion of such a study. It further
acknowledges that repatriation is not the
only alternative and I encourage all sides to
try and work out agreeable compromises
where all interested parties can benefit from
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access to some of the items (136 Cong. Rec.
31938, emphasis added).
We agree with the last comment
summarized above that the only
exception to expeditious repatriation
under the Act is proving a ‘‘right of
possession’’ (25 U.S.C. 3005(c)). Any
need to complete a scientific study does
not prevent repatriation but only delays
it (25 U.S.C. 3005(b)). In addition, we
note that any need to excavate human
remains or cultural items on Federal or
Tribal lands is only permitted after
consultation (on Federal lands) or
consent (on Tribal lands), and that
regardless of any scientific study,
disposition of human remains or
cultural items to the appropriate lineal
descendant, Indian Tribe, or NHO is
always required (25 U.S.C. 3002(c)).
Accordingly, we conclude that the
objective of the systematic processes in
the Act is the disposition or repatriation
of human remains or cultural items, not
to achieve any kind of balance between
the interests of science and the interests
of human rights.
We intend these regulations to better
align with the processes for disposition
and repatriation found in the Act. In
these regulations, we cannot remove the
decision-making authority vested in
museums and Federal agencies because
doing so would be inconsistent with the
Act. We can, and have, included
requirements for museums and Federal
agencies to consult, collaborate, and, in
the case of scientific study or research,
obtain consent from lineal descendants,
Indian Tribes, or NHOs (see Comment
15). In addition, these regulations
require museums and Federal agencies
to defer to the Native American
traditional knowledge of lineal
descendants, Indian Tribes, and NHOs
in all decision-making steps.
In developing both the proposed and
final regulations, we emphasized
consultation with Indian Tribes and
NHOs and incorporated comments from
consultation to the maximum extent
possible. This does not indicate an
imbalance in the process to develop
these regulations or in the resulting
product, but rather reflects the special
relationship between the Federal
government and Indian Tribes and
NHOs (25 U.S.C. 3010). Furthermore,
while the Act is the primary authority
for these regulations, Congress
authorized the Secretary to make such
regulations for carrying into effect the
various provisions of any act relating to
Indian affairs (25 U.S.C. 9). As 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
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this provision 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)).
Finally, a statement in the
Congressional record by Senator Inouye
is directly relevant to the objective of
these revised regulations to better reflect
Congressional intent:
This legislation is designed to facilitate a
more open and cooperative relationship
between native Americans and museums. For
museums that have dealt honestly and in
good faith with native Americans, this
legislation will have little effect. For
museums and institutions which have
consistently ignored the requests of native
Americans, this legislation will give native
Americans greater ability to negotiate. Mr.
President, I believe this bill represents a
major step in correcting an injustice that
started over 100 years ago. It is appropriate
that Congress take an active role in helping
to restore these rights to native Americans
and I urge the adoption of this measure by
the Senate (136 Cong. Rec. 35678).
8. Comment: We received two
comments requesting the Department
develop guidance and a framework to
establish reburial areas for repatriated
collections. The comments point to the
U.S. Department of Agriculture, Forest
Service, as an example of how landmanaging Federal agencies can assist
and support reburials on Federal lands.
DOI Response: We appreciate the
request, and we understand the
significant issues involved with
securing lands for reburial. While this
request is outside the scope of these
regulations, the Department will
consider how guidance and policy
might be used to effectuate the
requested change.
B. Section 10.1 Introduction
9. Comment: We received 42
comments on § 10.1(a) Purpose. Of that
total, 18 comments supported the
revised paragraph, specifically the
inclusion of deference to lineal
descendants, Indian Tribes, and NHOs
in the purpose paragraph. An additional
19 comments, while generally
supportive, also suggested changes to
the paragraph. Suggested changes
include adherence to the purpose as
stated by Congress, emphasizing the
limited exceptions to disposition or
repatriation, a significant change to verb
tense, and defining and referencing
deference in the regulatory text. On the
other hand, four comments specifically
objected to the inclusions of deference
in the purpose paragraph and expressed
concerns about how deference applies
when there are disagreements among
Indian Tribes or when other
requirements or definitions do not allow
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for deference to lineal descendants,
Indian Tribes, or NHOs. One comment
generally objected to the change in the
purpose as an entire rewrite of the
regulations that would impede the
systematic repatriation process.
DOI Response: We specifically
requested input on the proposed
purpose paragraph, and we appreciate
the response and have made changes
where permissible. As many comments
indicate, the proposed purpose
paragraph was not as clear or effective
as we had intended. Although some
comments suggested we delete the
sentence on the rights the Act
recognizes, we have retained the
sentence given the number of
supporting comments we received, but
we have changed the verb tense as
requested. We have revised the purpose
paragraph as suggested by several
comments to paraphrase the language
used by Congress (H. Rpt. 101–877, at 8)
which outlines the two separate
processes for disposition and
repatriation under the Act. The purpose
paragraph uses plain language to
describe the overall goals of these two
separate processes for disposition and
repatriation (protect and restore). In
response to the objections and concerns
about deference, we have included both
consultation and deference as a part of
the purpose for these regulations to
ensure meaningful consideration of
Native American traditional knowledge
throughout these processes. It is through
consultation and deference that these
regulations ensure the rights of lineal
descendants, Indian Tribes, and NHOs
the Act recognizes.
10. Comment: We received four
comments on § 10.1(b) Applicability.
Three comments suggested editorial
changes to the paragraph while one
comment strongly supported the
paragraph, especially with its focus on
museums and Federal agencies as the
applicable party.
DOI Response: Considering the
revisions to § 10.1(a), we have made
changes to this paragraph to emphasize
the applicable parties that are
responsible for each major section of
these regulations. We tried to make this
paragraph clear that many parts of the
Act and these regulations are not
limited to Federal or Tribal lands. In
response to other comments on the
requirements of these regulations, we
have clarified that lineal descendants,
Indian Tribes, and NHOs are not
required to consult or to make a claim
for disposition or a request for
repatriation.
11. Comment: We received two
comments related to § 10.1(c)
Accountability. One comment suggested
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requiring a duty of candor by museums
and Federal agencies to disclose any
human remains or cultural items that
were destroyed, deaccessioned, lost, or
in any other way removed from the
provisions of these regulations. One
comment suggested adding transparency
to the accountability requirements.
DOI Response: We cannot make the
requested change regarding candor as it
is contrary to the requirements of the
Act. A museum or Federal agency must
compile a summary of cultural items
and an itemized list of human remains
and associated funerary objects in its
possession or control (25 U.S.C. 3003(a)
and 3004(a)). Based on the information
available, a museum or Federal agency
must determine if human remains or
cultural items that are destroyed,
deaccessioned, lost, or in any other way
removed are under its possession or
control and therefore subject to these
regulations. We note that in these
regulations, as in the proposed
regulations, a museum or Federal
agency must ensure the summary and
itemized list are comprehensive and
cover any holding or collection relevant
to § 10.9 and § 10.10.
12. Comment: We received five
comments objecting to § 10.1(d) Duty of
care because the requirements went
beyond the statutory authority and
should be recommendations not
requirements. Some of these comments
suggested that the costs to comply with
this paragraph would be substantial,
that additional curation and collections
facilities may need to be constructed,
and that conflicts might arise with
standard curation, conservation, and
preservation principles or practices.
One comment questioned how conflicts
among Indian Tribes should be handled.
Another comment stated that research
on human remains and cultural items is
necessary to determine cultural
affiliation and, therefore, the
requirements in this paragraph conflict
with the requirements in § 10.3. One
comment suggested that ‘‘to the
maximum extent possible’’ and
‘‘safeguard and preserve’’ should be
replaced with ‘‘reasonable effort’’ and a
cross-reference to requirements in 36
CFR part 79, respectively.
DOI Response: We disagree that these
requirements go beyond the statutory
authority or that these requirements
should only be recommendations. The
Secretary’s authority for promulgating
these regulations is discussed
extensively in other responses to
comments (see Comment 7), the 2010
Final Rule (75 FR 12379), and the 2022
Proposed Rule (87 FR 63207). Given the
number of supporting comments for this
paragraph during consultation in 2021,
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including from the Secretary’s Federal
Advisory Review Committee (Review
Committee), and comments on the
proposed regulations requesting we
strengthen these requirements (see
Comments 13–17), we chose not to
revise these requirements into
recommendations. We strongly disagree
with the comment that research on
human remains or cultural items is
required by the Act or these regulations
to determine cultural affiliation or for
any other purpose. Rather, the Act
explicitly and specifically does not
require new scientific studies or other
means of acquiring or preserving
information (25 U.S.C. 3003(b)(2)), and
we have incorporated similar language
into this paragraph to clarify (see
Comment 16).
Earlier drafts of these regulations
referenced 36 CFR part 79, as suggested
by one comment, but we received
substantial negative feedback on this
during consultation in 2021 and from
the Review Committee. Most of that
feedback felt the inclusion of 36 CFR
part 79 in these regulations was
confusing or concerning. Federal
agencies and their repositories must still
care for and manage collections that are
covered by the provisions of 36 CFR
part 79. Regarding speculation on
substantial costs, conflicts with
conservation and preservation
principles, and conflicts among lineal
descendants, Indian Tribes, or NHOs,
the final regulations now require
museums and Federal agencies to make
a ‘‘reasonable and good-faith effort’’ to
incorporate and accommodate Native
American traditional knowledge in the
storage, treatment, or handling of
human remains or cultural items (see
Comment 14).
13. Comment: We received 16
comments supporting § 10.1(d) Duty of
care as proposed while 23 comments
were generally supportive but suggested
changes to strengthen the requirements.
Many comments requested this
paragraph clearly apply to all Native
American collections, even those on
loan or where specific cultural items
subject to the Act have not been
identified. Some comments specifically
requested ‘‘custody’’ be deleted from the
paragraph in line with requested
changes to expand ‘‘possession or
control’’ or that this paragraph clearly
state that a museum or Federal agency
only has a duty of care and does not
have rightful ownership of Native
American human remains or cultural
items. Several comments requested a
definition of ‘‘care for, safeguard, and
preserve.’’ One comment requested this
paragraph include a requirement for the
National NAGPRA Program to make
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sporadic inspections of all museums
and Federal agencies to ensure
professional museum and archival
standards are met, including physically
securing collections through clean,
rodent-free, and locked areas with
limited access. One comment requested
additional clarifying language to ensure
these requirements do not serve as a
justification to delay or avoid
repatriation. One comment requested
two additional paragraphs be included
to require museums and Federal
agencies to provide specific and
detailed information on any study or
research of Native American collections
conducted after 1990, including copies
of published work and photographs.
DOI Response: We cannot require that
this paragraph, or this part, apply to all
Native American collections as that
would be inconsistent with the Act (25
U.S.C. 3003(a) and 3004(a)). The
requirements of this paragraph are
limited to human remains and cultural
items as defined by the Act and these
regulations. We cannot remove
‘‘custody’’ from the first sentence and
still ensure that this paragraph will
apply to human remains and cultural
items that are on loan but still subject
to the Act (see the definitions of
‘‘custody’’ and ‘‘possession or control’’
discussed elsewhere). We have
intentionally included ‘‘custody’’ in the
duty of care requirement to ensure all
Native American human remains and
cultural items are cared for,
safeguarded, and preserved until the
disposition and repatriation processes
are complete. However, the inclusion of
museums or Federal agencies with
‘‘custody’’ is not intended to limit the
ability of the museum or Federal agency
with possession or control of the human
remains or cultural items from carrying
out its responsibilities under this
paragraph or these regulations. We
cannot include the requested statement
on rightful ownership as it would be
contrary to the provisions of the Act
where a museum or Federal agency can
prove it has a right of possession to a
cultural item. We have not changed or
defined ‘‘to care for, safeguard, and
preserve,’’ and these terms should be
understood to have a standard,
dictionary definition. We believe these
terms, along with paragraphs (d)(1),
(d)(2), and (d)(3), are sufficient to ensure
an adequate standard of care for human
remains and cultural items, including
that the human remains or cultural
items are properly stored and physically
secured in a clean and locked area and
are reasonably believed to be safe from
damage or destruction by pests or
natural elements. We believe the
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timelines included in the disposition or
repatriation processes ensure that these
requirements will not be used to delay
or avoid repatriation, and we note that
any request for an extension of the
deadlines for repatriation or for a stay of
repatriation for scientific studies would
require consultation with and consent of
the appropriate lineal descendant,
Indian Tribe, or NHO. While we
appreciate the suggestion to require
information on any past research or
study be provided to lineal descendants,
Indian Tribes, or NHOs as a part of a
duty of care, this provision is already
provided for in §§ 10.9(c)(4) and
10.10(c)(4). Under the Act and these
regulations, lineal descendants, Indian
Tribes, and NHOs have a right to request
records, catalogues, relevant studies, or
other pertinent data (25 U.S.C.
3003(b)(2) and 25 U.S.C. 3004(b)(2)),
and museums and Federal agencies are
required to share that information (25
U.S.C. 3005(d)). As required by the Act,
additional information is only provided
upon request of an Indian Tribe or NHO,
and we cannot make this a requirement
that applies to all human remains or
cultural items absent such a request.
In conjunction with that reasoning,
we have removed the requirement for
lineal descendants, Indian Tribes, or
NHOs to first make a request for the
duty of care requirements that follow,
and we have removed ‘‘to the maximum
extent possible’’ from the introductory
phrase (see Comment 14). We have
revised this paragraph to include
paragraphs (d)(1), (d)(2), and (d)(3) on
what a museum or Federal agency must
do as a part of its more general duty of
care for human remains or cultural
items. These three requirements align
with the purpose of the Act, these
regulations, and Congressional intent,
which was stated as follows:
The [Senate] Committee intends the
provisions of this Act to establish a process
which shall provide a framework for
discussions between Indian [T]ribes and
museums and Federal agencies. The
Committee believes that the process
established under this Act will prevent many
of the past instances of cultural insensitivity
to Native American peoples. The Committee
has received testimony describing instances
where museums have treated Native
American human remains and funerary
objects in a manner entirely different from
the treatment of other human remains.
Several [T]ribal leaders expressed their
outrage at the manner in which Native
American human remains had been treated,
stored or displayed and the use of culturally
sensitive materials and objects in violation of
traditional Native American religious
practices. In the long history of relations
between Native Americans and museums,
these culturally insensitive practices have
occurred because of the failure of museums
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to seek the consent of or consult with Indian
[T]ribes (S. Rpt. 101–473, at 3).
Section 10.1(d)(1) requires museums
and Federal agencies to consult on the
appropriate storage, treatment, or
handling of human remains or cultural
items, which was reiterated in the
proposed regulations at §§ 10.4, 10.9,
and 10.10. In these final regulations, we
have revised those specific sections to
refer to this paragraph.
Section 10.1(d)(2) requires museums
and Federal agencies to make a
reasonable and good-faith effort to
incorporate and accommodate requests
made by consulting parties (see
Comment 14).
Section 10.1(d)(3) requires museums
and Federal agencies to obtain consent
from consulting parties prior to any
exhibition of, access to, or research on
human remains or cultural items (see
Comment 15–17).
14. Comment: Of the 23 comments
requesting we strengthen the duty of
care requirements, many requested
‘‘deference’’ replace ‘‘to the maximum
extent possible.’’ In addition, all
comments objecting to the duty of care
requirements raised concerns about the
vagueness of this phrase and the
potential for conflict between and
among consulting parties on the
implementation of this phrase.
DOI Response: We have removed the
phrase and revised § 10.1(d)(2) to
require museums and Federal agencies
make a reasonable and good-faith effort
(in place of ‘‘to the maximum extent
possible’’ in the proposed regulations)
to incorporate and accommodate the
Native American traditional knowledge
in caring for human remains or cultural
items. As the purpose of the Act and
these regulations is the disposition or
repatriation of human remains and
cultural items, museums and Federal
agencies must prioritize requests for
storage, treatment, or handling by lineal
descendants, Indian Tribes, or NHOs
who will be the future caretakers of the
human remains or cultural items. These
requests may require alterations or
exceptions to standard curation or
preservation practices. In addition, as
noted elsewhere, when consultation on
the duty of care does not result in
consensus, agreement, or mutually
agreeable alternatives, the consultation
record must describe the concurrence,
disagreement, or nonresponse of the
consulting parties.
As an example of how this
requirement might be implemented, a
consulting Indian Tribe might request
that an offering of organic material be
placed with human remains until
repatriation and physical transfer of the
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collection is complete. During
consultation, the museum and Indian
Tribe might agree on how to
accommodate this request while still
protecting and preserving the collection.
The resulting agreement might include
increased pest monitoring in the area
with the offering, enclosing the offering
in a glass jar next to the human remains
or cultural items, or identifying an
alternative location for the offering.
As another example of this
requirement, a consulting Indian Tribe
might request that a particular type of
oil or substance be applied to an animal
hide that is incorporated into a cultural
item. Traditional knowledge indicates
that the oil or substance provides both
physical and spiritual protection of the
cultural item until it is repatriated.
During consultation, the museum and
Indian Tribe could agree on the
appropriate individual, possibly a
trained conservator or a Tribal member,
and the appropriate method to apply the
substance that does not affect other
parts of the cultural item or other items
in the collection.
Other examples of requests a lineal
descendant, Indian Tribe, or NHO might
make for specific human remains or
cultural items in a collection include
smudging in a collection storage space;
using specific cloth to cover collections;
restrictions on who, how, or when
collections are handled; orienting
collections in a certain direction; storing
certain collections separately or storing
certain collections together. Each of
these requests must be considered in
light of other policies or systems, such
as safety precautions, fire suppression
systems, human resource policies, or
space limitations. Through consultation,
these requests may be incorporated and
accommodated in a mutually agreeable
way. Resources from the School for
Advanced Research and the American
Alliance of Museums are available to
assist all parties with these types of
discussions and accommodations
(‘‘Standards for Museums with Native
American Collections,’’ May 2023,
https://sarweb.org/iarc/smnac/, and
‘‘Indigenous Collections Care Guide,’’
publication pending, https://sarweb.org/
iarc/icc/, accessed 12/1/2023).
15. Comment: Of the 23 comments
requesting that we strengthen the duty
of care requirements, many requested
that museums and Federal agencies
must obtain consent from lineal
descendants, Indian Tribes, or NHOs
before any activity occurs that involves
any Native American collections, but
especially prior to allowing access to or
research on human remains and cultural
items. Some comments requested
adding a requirement to remove human
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remains or cultural items from display
or public access. Some comments
requested replacing ‘‘Limit’’ with
‘‘Prohibit’’ and include ‘‘exhibition of’’
with ‘‘access to and research on’’ in
§ 10.1(d)(3). One of the comments
objecting to the duty of care requirement
stated that a limitation on research
conflicted with the requirements for
determining cultural affiliation, which
requires research.
In addition to these comments, 45
comments on provisions for ‘‘scientific
study’’ found in Subpart C echoed these
requests that the regulations strengthen
the protection of human remains or
cultural items in holdings or collections.
Most of these comments requested that
museums and Federal agencies obtain
consent from lineal descendants, Indian
Tribes, or NHOs prior to allowing any
research on human remains or cultural
items. The second largest group of
comments suggested that museums and
Federal agencies must consult with
lineal descendants, Indian Tribes, or
NHOs prior to allowing research on
human remains or cultural items. One
comment from a museum and scientific
organization requested that the
regulations better align with the ethical
principles of professional archaeological
and anthropological organizations,
which call for input, consensus, and
informed consent from descendant
communities (NPS–2022–0004–0139).
One comment from an Indian Tribe
explained that research and scientific
studies continue to be conducted on
human remains and cultural items,
despite the repeated requests of Indian
Tribes, and this research and study has
delayed or even prevented repatriation
in some cases. The comment states:
We have raised these issues many times at
the Congressional level before the Senate
Committee on Indian Affairs and before the
NAGPRA Review Committee and nothing
was done to prevent the illegal study of our
relatives or the lengthy delays in their
repatriation and reburial. Changes must be
made now to prevent any further privileged
use of the Act by agencies and museums who
have been allowed to ignore the plain speech
in the Act regarding the study of our
deceased ancestors and their burial property.
It is plain to see that agencies and
museums have had more than enough time
(the 33 years that NAGPRA has existed plus
all the decades our relatives sat ignored and
collecting dust in museum or agency
repositories) to conduct their illegal studies
and analyses of our poor deceased relatives
and their burial property and insist that steps
be taken now to prevent any further studies
of our deceased relatives and their burial
property (NPS–2022–0004–0123).
DOI Response: In response to these
comments, we revised § 10.1(d)(3), by
replacing ‘‘Limit’’ with ‘‘Obtain free,
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prior, and informed consent’’ and
adding ‘‘exhibition of’’ to ‘‘access to or
research on human remains or cultural
items.’’ We cannot, as requested by
some comments, prohibit exhibition,
access, or research on human remains or
cultural items as that would exceed the
Secretary’s authority under the Act and
would be contrary to Congressional
intent. While the Act is the primary
authority for these regulations, Congress
authorized the Secretary to make such
regulations for carrying into effect the
various provisions of any act relating to
Indian affairs (25 U.S.C. 9). As 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
this provision 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)). Ambiguities in statutes
passed for the benefit of Indians are to
be construed to the benefit of the
Indians (Bryan v. Itasca County, 426
U.S. 373 (1976)).
The Act does not prohibit museums
or Federal agencies from conducting
scientific studies of human remains or
cultural items but does clearly state that
such studies are not authorized by or
required to comply with the Act (25
U.S.C. 3003(b)(2)). The Act allows for a
scientific study to delay, but not to
prevent, repatriation (25 U.S.C. 3005(b)).
The Act provides only one exception to
expeditious repatriation by proving a
‘‘right of possession’’ (25 U.S.C.
3005(c)). In addition, the Act allows for
excavation of human remains or cultural
items from Federal or Tribal lands for
purposes of a study, but only after
consultation (on Federal lands) or
consent (on Tribal lands) (25 U.S.C.
3002(c)). As a result, there is some
ambiguity in the Act related to scientific
study, which has been interpreted to
mean that the Act neither authorizes nor
prohibits scientific study of human
remains or cultural items. In exercising
the Secretary’s authority for these
regulations, the Department considered
both the legislative and regulatory
history related to scientific study of
human remains or cultural items subject
to the Act, as well as related
recommendations from the Review
Committee who is responsible for
monitoring the repatriation process (25
U.S.C. 3006(c)(2)).
The legislative history shows
Congress intended for the Act to give
lineal descendants, Indian Tribes, and
NHOs a more equitable voice in any
future scientific study of human
remains or cultural items. One central
goal of the Act was ‘‘to allow for the
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86463
development of agreements between
Indian [T]ribes and museums which
reflect an understanding of the
important historic and cultural value of
the remains and objects in museums
collections’’ (S. Rpt. 101–473, at 4). The
Senate Report provided a model of this
kind of agreement where a museum
agreed to return human remains to an
Indian Tribe for burial, and the Indian
Tribe chose to bury the human remains
in a specially designed crypt that could
be opened periodically to provide
access for scientists to continue the
study of the human remains. Earlier
drafts of the legislation allowed for a
request for repatriation to be denied if
the requested item was part of a
scientific study (H. Rpt. 101–877, at 11).
In explaining the substitute amendment
that ultimately became the Act,
Congress explained the change to only
delaying, not denying, repatriation for a
scientific study was a means of urging
‘‘the scientific community to enter into
mutually agreeable situations with
culturally affiliated [T]ribes in such
matters’’ (H. Rpt. 101–877, at 15).
As discussed in Comment 7, in
describing the compromises in the final
legislation, Representative Campbell
stated that the Act acknowledges ‘‘that
many of these items may be of
considerable scientific value’’ and ‘‘that
repatriation is not the only alternative.’’
Representative Campbell recommended
‘‘agreeable compromises where all
interested parties can benefit from
access to some of the items’’ (136 Cong.
Rec. 31938). Similarly, in urging the
passage of the bill, Senator Inouye
stated ‘‘[f]or museums and institutions
which have consistently ignored the
requests of native Americans, this
legislation will give native Americans
greater ability to negotiate’’ (136 Cong.
Rec. 35678). This sentiment was echoed
by Senator Akaka who stated the Act
would, among other things, ‘‘eliminate
the longstanding policy of scientific
research on future remains found’’ (136
Cong. Rec. 35678).
In its final version, the Act used the
term ‘‘scientific study’’ twice. First, in
describing what documentation may be
requested, the Act explicitly and
specifically does not require new
scientific studies on human remains or
associated funerary objects (25 U.S.C.
3003(b)(2), referred to here as ‘‘scientific
studies are not required’’). Second, the
Act requires that when a specific
scientific study of human remains,
associated funerary objects,
unassociated funerary objects, sacred
objects, or objects of cultural patrimony
will result in a major benefit to the
United States, a museum or Federal
agency may postpone repatriation but
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may not deny the request for
repatriation (25 U.S.C. 3005(b)), referred
to here as ‘‘delay for scientific study’’).
The regulations as proposed in 1993
and as promulgated in 1995 addressed
only the delay for scientific study under
the exceptions to repatriation in § 10.10.
The regulations included the statutory
language on documentation of human
remains at § 10.9 but did not include
that scientific studies are not required.
The 1995 Final Rule made a reference
to both scientific study provisions in
responding to one comment that
repatriation could not occur until a
scientific analysis was completed. The
Department responded stating:
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Section 5 (a) specifies that the geographic
and cultural affiliation of human remains and
associated funerary objects be determined ‘to
the extent possible based on information
possessed by the museum of Federal agency.’
No new scientific research is required.
Delaying repatriation until new scientific
research is completed contradicts the intent
of Congress unless that scientific research is
considered to be of major benefit to the
United States (60 FR 62156).
The 2007 Proposed Rule, Disposition
of Culturally Unidentifiable Human
Remains, added that scientific studies
are not required to the paragraph on
documentation of human remains at
§ 10.9. The 2007 Proposed Rule added
text to explain (1) any documentation
provided is a public record and (2) a
request for documentation cannot be
construed as authorizing a new
scientific study or other means of
acquiring information. These additions
were drawn directly from the Review
Committee’s recommendations on
culturally unidentifiable human
remains (discussed below).
In the 2010 Final Rule, Disposition of
Culturally Unidentifiable Human
Remains, the Department responded to
three comments on scientific study
specifically. Under General Comments,
Comment 3 summarized comments
opining that ‘‘Congress intended to
allow study of ancient, unaffiliated
remains.’’ The Department responded
that ‘‘The Act does not draw a
distinction between ‘ancient’ and more
recent remains’’ and then reiterated that
scientific studies are not required (75 FR
12380). Under Section 10.9 Other
General Comments, Comment 57
summarized comments that ‘‘requested
a clear and explicit explanation of how
the proposed rule takes into account the
potential interests of the public in
scientific research and education.’’ The
Department responded that scientific
studies are not required (75 FR 12387).
In the 2010 Final Rule, under Section
10.9(e)(5) Additional Documentation,
Comment 46 summarized 20 comments
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regarding the addition in the proposed
regulations that scientific studies are not
required. Some comments stated the
language would ‘‘create a seemingly
impossible conundrum, would severely
hinder the scientific study of ancient
remains, and are ‘an obvious attempt to
end-run Congressional intent and a
Federal court ruling in the long-fought
Kennewick Man case.’ ’’ One comment
requested language be added to clarify
that scientific studies are not prohibited,
and another comment requested
language be added to allow scientific
studies if the consulting parties agree.
The largest number of comments
requested language stating that human
remains must be treated with respect
and ‘‘should not be subject to any
further scientific research or used for
teaching purposes.’’ In response to these
comments, the Department simply
stated that the language came directly
from the Act and reflected
Congressional intent (2010 Final Rule at
12386). Since 2010, both provisions on
scientific study have been codified in
the regulations.
While the existing regulations include
both provisions on scientific study, the
existing regulations do not provide any
mechanisms for ensuring that scientific
studies are not required or for
administering the delay for scientific
study. In the 2021 draft revisions of the
regulations prepared for Tribal
consultation, the Department
introduced a procedure, through the
Secretary, to administer the delay for
scientific study but did not include any
reference that scientific studies are not
required. We received a significant
number of comments regarding both
scientific study provisions during Tribal
consultation and from the Review
Committee. As a result of this input, the
proposed regulations included in the
duty of care requirement a limitation on
‘‘access to or research on’’ human
remains or cultural items which would
provide for implementation as well as
enforcement that scientific studies are
not required. The proposed regulations
also provided procedures to administer
the delay for scientific study by both
requesting and receiving concurrence of
the Secretary as a stay of the repatriation
timeline under §§ 10.9 and 10.10.
In preparing these final regulations,
we looked at not only the comments we
received on the proposed regulations
but also to the legislative and regulatory
history discussed above and to input
from the Review Committee on these
issues. As noted above, the addition to
the regulations in 2007 that scientific
studies are not required was based on a
Review Committee recommendation.
Notably, the Review Committee’s
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recommendation was not to include the
statutory language, but to clarify that
scientific studies must be agreed to by
all parties through consultation. In its
2000 final recommendations on
culturally unidentifiable human
remains, the Review Committee
recommended:
Documentation must occur within the
context of the consultation process.
Additional study is not prohibited if the
parties (Federal agencies, museums, lineal
descendants, Indian [T]ribes, and Native
Hawaiian organizations) in consultation
agree that such study is appropriate (65 FR
36463, June 8, 2000).
Between July 2021 and June 2022, the
Review Committee reviewed and
discussed the draft regulatory text and,
in its final recommendations, developed
its own duty of care requirement:
Duty of care. Through meaningful
consultation with [T]ribes and Native
Hawaiian organizations, Federal agencies,
museums, universities, and repositories shall
provide standards of care based upon the
free, prior, and informed consent of [T]ribes
and Native Hawaiian organizations for
human remains and cultural items. Museums
and Federal agencies have an obligation to
adhere to a standard of reasonable care while
performing any act that would foreseeably
harm any cultural item in their possession or
control. This duty includes taking affirmative
steps to verify the location and condition of
all cultural items in the control of the
museum or Federal agency, and consulting
with any lineal descendants and any
culturally or geographically affiliated Indian
[T]ribes or Native Hawaiian organizations to
determine the standard of care they consider
reasonable (NPS–2002–0004–0003,
attachment page 2).
As noted in the document, one
Review Committee member objected to
the requirement of ‘‘consent’’ by Indian
Tribes or NHOs to the standards of
curatorial treatment for Native
American human remains and other
cultural items. The Review Committee
member stated ‘‘[s]uch a unilaterallyimposed requirement might not be
appropriate or reasonable, and in some
circumstances might violate existing
binding administrative agreements, legal
obligations, and/or professional
standards of the curating organization’’
(NPS–2022–0004–0003, attachment
page 2, footnote 1).
In preparing the proposed regulations,
we adopted the Review Committee’s
recommendation to include
consultation, collaboration, and consent
but, in response to the objecting
comment, caveated the requirement
with ‘‘to the maximum extent possible.’’
The proposed regulations did not
include the Review Committee’s
suggested language of ‘‘free, prior, and
informed consent’’ and the last sentence
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of the Review Committee’s
recommendation was incorporated
directly into Subpart C. In preparing
these final regulations, we revisited the
Review Committee’s recommendations
and found we were able to incorporate
the concept of ‘‘free, prior, and informed
consent’’ by clarifying the provisions in
§ 10.1 pertaining to duty of care.
Paragraph (d)(1) requires consultation,
paragraph (d)(2) requires collaboration,
and paragraph (d)(3) requires consent.
We agree with the Review Committee
member and some of the comments on
the proposed regulations that curatorial
standards and other requirements may
limit a museum or Federal agency’s
ability to incorporate or accommodate
requests from lineal descendants, Indian
Tribes, or NHOs, and, as discussed in
Comment 14, museums and Federal
agencies must make a reasonable and
good-faith effort to do so. We have
limited the requirement to obtain
consent only to the exhibition of, access
to, or research on human remains and
cultural items.
As the purpose of the Act and these
regulations is the disposition or
repatriation of human remains or
cultural items, we find it appropriate
that museums and Federal agencies
must obtain consent from lineal
descendants, Indian Tribes, or NHOs
before conducting activities that might
physically or spiritually harm human
remains or cultural items. For purposes
of the duty of care paragraph, the lineal
descendants, Indian Tribes, or NHOs are
those identified as consulting parties
under §§ 10.4(b)(1), 10.9(b)(1), and
10.10(b)(1): Consulting parties are any
lineal descendant and any Indian Tribe
or NHO with potential cultural
affiliation. If a museum or Federal
agency cannot identify any consulting
parties for specific human remains or
cultural items, the duty of care
requirement still applies. Until
consulting parties are identified, the
museum or Federal agency may not be
required to consult under paragraph
(d)(1) or collaborate under paragraph
(d)(2) of § 10.1. Until consulting parties
are identified, the museum or Federal
agency must not allow any exhibition
of, access to, or research on human
remains or cultural items as doing so
may be subject to a failure to comply
with the requirements of these
regulations. If a museum or Federal
agency wished to conduct a specific
scientific study of human remains or
cultural items, it could do so by
following the requirements for a stay of
repatriation under §§ 10.9 or 10.10.
After following the requirements of
these regulations, nothing would
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preclude a museum or Federal agency
from exhibiting, allowing access to, or
conducting research on collections that
are not subject to the Act or, after
disposition or repatriation, reaching an
agreement with the requesting lineal
descendant, Indian Tribe, or NHO.
16. Comment: We received four
comments requesting the regulations
include in § 10.10 the related statutory
language from 25 U.S.C. 3003(b)(2) on
‘‘scientific study.’’ Another comment
questioned if ‘‘scientific study’’ as used
in §§ 10.9 and 10.10 equated to a single
study that records paleopathology on an
individual or a long-term archaeological
project at a site that includes many subprojects that study different
bioarcheological and physical
anthropological topics.
DOI Response: We incorporated the
statutory language on ‘‘scientific study’’
into paragraph (d)(3) by adding two
sentences to clarify that the term
‘‘research’’ as used here equates to the
term ‘‘scientific study’’ in the Act and
to emphasize that ‘‘research’’ of any
kind is not required by the Act or these
regulations. We have defined ‘‘research’’
to mean any study, analysis,
examination, or other means of
acquiring or preserving information.
‘‘Research’’ includes any activity to
generate new or additional information
beyond the information that is already
available, for example, osteological
analysis of human remains, physical
inspection or review of collections,
examination or segregation of comingled
material (such as soil or faunal remains),
or rehousing of collections. ‘‘Research’’
is not required to identify the number of
individuals or cultural items or to
determine cultural affiliation.
For example, if a museum wished to
physically examine its collection to
identify the number of individuals or
associated funerary objects, the museum
must first obtain consent from lineal
descendants, Indian Tribes, or NHOs.
Until that consent is obtained, the
museum must rely on the information
available (previous inventories, catalog
cards, accession records, etc.) to identify
consulting parties, conduct
consultation, update the inventory, and
submit a notice of inventory
completion.
If a Federal agency wished to examine
an unprocessed collection of
archaeological material excavated from
Federal land after 1990 to identify if any
human remains or cultural items were
present, it could do so until human
remains or cultural items were
identified. At that time, any further
examination or inspection of the
collection would require obtaining
consent from a lineal descendant,
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Indian Tribe or NHO. Until that consent
is obtained, the Federal agency must
rely on the information available
(excavation location, field notes, etc.) to
identify consulting parties, conduct
consultation, and complete the
disposition of the human remains or
cultural items.
17. Comment: We received five
comments, including those by the
Review Committee, objecting to the
inclusion of unassociated funerary
objects, sacred objects, or objects of
cultural patrimony in the delay for
scientific study because it is
inconsistent with the Act and adverse to
Tribal interests. These comments
requested that the stay of repatriation in
§ 10.9 for ‘‘scientific study’’ be deleted
in its entirety (see NPS–2022–0004–
0096; NPS–2022–0004–0143; NPS–
2022–0004–0151; NPS–2022–0004–
0177; and NPS–2022–0004–0183).
DOI Response: We believe these
comments conflated the two statutory
provisions for ‘‘scientific study’’ we
outlined in response to Comment 16
(‘‘scientific studies are not required’’
and ‘‘delay for scientific study’’). We
agree that the Act limits the provision
that scientific studies are not required to
only human remains and associated
funerary objects (25 U.S.C. 3003(b)(2)).
Similar language does not appear in the
Act for unassociated funerary objects,
sacred objects, and cultural patrimony
(25 U.S.C. 3004(b)(2)).
We do not agree, however, that
extending the provision that scientific
studies are not required or the
corresponding paragraph at (d)(3) to
unassociated funerary objects, sacred
objects, or objects of cultural patrimony
is adverse to Tribal interests. Rather, we
feel this extension accomplishes the
request made by many individuals,
Indian Tribes, and Native American
organizations to prohibit all ‘‘research’’
on human remains as well as any
cultural item (see NPS–2022–0004–
0107; NPS–2022–0004–0138; NPS–
2022–0004–0158; NPS–2022–0004–
0161; and NPS–2022–0004–0187).
Therefore, paragraph (d)(3) on duty of
care that requires consent for exhibition,
access, or research applies to human
remains, associated funerary objects,
unassociated funerary objects, sacred
objects, and objects of cultural
patrimony.
We understand that the delay for
scientific study in both §§ 10.9 and
10.10 is adverse to Tribal interests and
may seem to allow or authorize
scientific studies. As one comment
stated clearly:
Finally, please note our previous statement
that we are categorically opposed to any
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scientific study of our ancestors, their burial
property or any item of our sacred or cultural
patrimony and we specifically request that
any language allowing any type of scientific
study of any NAGPRA-related item be
stricken from this rulemaking for the reasons
submitted by our Nation, above (NPS–2022–
0004–0123).
We cannot remove reference to
‘‘scientific study’’ or research from these
regulations. The delay for scientific
study applies to all ‘‘Native American
cultural items,’’ which are defined in
the Act as human remains, associated
funerary objects, unassociated funerary
objects, sacred objects, and objects of
cultural patrimony (25 U.S.C. 3005(b)).
As any elimination or restriction of 25
U.S.C. 3005(b) would require an act of
Congress, we cannot remove the
reference to ‘‘scientific study’’ entirely
or make the requested change to remove
§ 10.9(i)(3). We have, however,
strengthened the requirements under
duty of care in this final rule to ensure
better implementation and enforcement
that scientific studies are not required.
18. Comment: We received three
comments requesting clarification of
§ 10.1(e) Delivery of written documents.
One comment requested an editorial
change to the text and the other two
comments requested an explanation of
proof of receipt. One comment stated
that tracking the sending and receipt of
written documents was a considerable
burden on all parties and would require
a significant outlay of resources (NPS–
2022–0004–0135).
DOI Response: We have made the
requested editorial change to paragraph
(e)(1) and added ‘‘one of the following’’
to ‘‘must be sent by.’’ Regarding ‘‘proof
of receipt’’ for email, many email
systems include an option to request a
read receipt automatically. While these
systems may not constitute legal proof,
use of such systems is sufficient for the
purposes of these regulations. If an
email system does not provide this
option, other software or services can
provide proof of receipt for little to no
cost. However, we do not expect or
require additional software or services
to meet this requirement. The minimum
requirement to satisfy ‘‘proof of receipt’’
would be to request that the recipient
acknowledge receipt of the email. If no
acknowledgment is received, the sender
may follow up with a phone call to
ensure the email was received. A call
log or note to the file would be
sufficient ‘‘proof of receipt.’’
19. Comment: We received four
comments suggesting changes to
§ 10.1(f) Deadlines and timelines. One
comment noted that Tribal holidays
may not coincide with Federal holidays
and should be included. Another
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comment requested this paragraph
clarify that the Federal Register
calculates calendar days. One comment
questioned how the Manager, National
NAGPRA Program, will meet the notice
publication deadline if there is a lapse
in appropriations. One comment
specifically questioned the use of
business days in relation to the
requirements under § 10.5 and stated
that under the Act, ‘‘days’’ means
calendar days. By using business days,
the total maximum work stoppage under
§ 10.5 could increase to some 95
calendar days. In enacting the 30-day
stop-work period, Congress said ‘‘days,’’
which is commonly understood as
calendar days. Similarly, Rule 6(a) of
the Federal Rules of Civil Procedure
provides that, in computing any time
period specified in the Rules, in any
local rule or court order, or in any
statute that does not specify a method
of computing time, when a period is
stated in days or a longer unit of time,
every day is counted, including
intermediate Saturdays, Sundays, and
legal holidays. Furthermore, the
comment states, except for using three
‘‘working days’’ for the ministerial
certification of receipt of a notice of
discovery, the Department has always
used calendar days as the metric for
calculating a period in the existing
regulations stated in days or a longer
unit.
DOI Response: We agree that in the
Act, days means calendar days. We
appreciate the comment on Tribal
holidays, but given the great variation in
those dates, we cannot accommodate
the request to include or observe Tribal
holidays. The purpose of this paragraph
is to provide clear instruction on how to
calculate dates for the deadlines and
timelines in these regulations. Earlier
drafts of these regulations used calendar
days. We received requests during
consultation in 2021 to use business
days and to account for a lapse in
appropriations. We noted this change
would lengthen most deadlines in the
regulations but accepted the suggested
change in the proposed regulations. We
have revised paragraph (f)(1) in § 10.1 to
calendar days and included an
exception for when a deadline falls on
a Saturday, Sunday, or Federal holiday,
including a lapse in appropriations.
20. Comment: We received seven
comments suggesting changes to
§ 10.1(g) Failure to make a claim or a
request. Five comments requested we
delete this paragraph because the Act
does not provide the Secretary with the
authority to include this waiver of rights
language in the regulations. These
comments state that an Indian Tribe or
NHO must never lose its rights to claim
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disposition or request repatriation of
human remains or cultural items. One
comment requested clarification and
guidance on the application of this
paragraph to the time between sending
a repatriation statement and completing
physical transfer of human remains or
cultural items. One comment requested
the regulations require clear and concise
written proof of compliance with the
notice and consultation requirements
prior to any waiver of a right to make
a claim or a request.
DOI Response: The Secretary’s
authority for promulgating these
regulations is discussed extensively in
the 2010 Final Rule (75 FR 12379) and
the 2022 Proposed Rule (87 FR 63207).
The purpose of a disposition or
repatriation statement is to provide clear
and concise written proof that the
requirements of the Act have been
fulfilled (25 U.S.C. 3002(a) and 3005(a)).
With the disposition or repatriation
statement, the museum or Federal
agency divests itself of any interest in
the human remains or cultural items.
We cannot remove this paragraph
without jeopardizing the entire
disposition or repatriation processes
provided by the Act and these
regulations. This paragraph has been
included in these regulations since the
1993 Proposed Rule (58 FR 31132) and
ensures that any claim for disposition or
request for repatriation must be
considered by a museum or Federal
agency prior to disposition, repatriation,
transfer, or reinterment of human
remains or cultural items. Once
disposition, repatriation, transfer, or
reinterment occurs, a museum or
Federal agency cannot accept a claim or
request from another party as the
museum or Federal agency no longer
has any rights to or interest in the
human remains or cultural item. This
paragraph provides protection for lineal
descendants, Indian Tribes, and NHOs
as well as for museums and Federal
agencies that once a disposition or
repatriation statement is sent, it is not
subject to future appeal or challenge.
21. Comment: We received four
comments suggesting changes to
§ 10.1(h) Judicial jurisdiction. Three
comments requested we include the role
of the U.S. Court of Federal Claims in
resolving specific matters. One
comment asked if this paragraph
restricted the role of Tribal courts in any
related legal actions.
DOI Response: 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. Regarding the U.S. Court of
Federal Claims, we disagree with the
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suggested change. This paragraph
reflects the statutory description of
judicial jurisdiction for violations of the
Act (25 U.S.C. 3013). It is not intended
to address judicial jurisdiction for
potential constitutional violations, such
as the possibility of a Fifth Amendment
taking as described in the Act’s
definition for ‘‘right of possession’’ (25
U.S.C. 3001(13)). It is unnecessary for
these regulations to address the Court of
Federal Claims’ jurisdiction over Fifth
Amendment takings claims, which is
well-established and not specific to this
Act. Regarding collection of civil
penalties, this is already included in
§ 10.11, specifically in paragraph (m)(2)
of these regulations.
22. Comment: We received 19
comments suggesting changes to
§ 10.1(i) Final agency action. Four
comments requested clarification as to
how to interpret final agency action and
confirming that disposition or
repatriation determinations are final
agency actions. Four comments
considered the categories of final agency
action to be too narrow as written and
recommended adding language to
clarify and including examples of
determinations that would make this
part inapplicable, such as
determinations regarding plans of
action, excavations, Federal land
ownership, and possession or control.
On the other hand, one comment
described how those categories of final
agency action impermissibly broaden
the concept. Six comments urged the
Department to approve all museum
determinations under these regulations
or compel museum action, and that
such approval or failure to compel
should be defined as final agency
action. Four comments recommended
that the Assistant Secretary’s decision
not to assess a civil penalty be
considered reviewable as final agency
action.
DOI Response: The Act does not grant
the Secretary authority to approve or
compel museum determinations, other
than by assessing civil penalties for
failures to comply. Regarding civil
penalties, we have not made changes
that would make decisions to assess
civil penalties reviewable as final
agency action because, first, the Act
makes this decision permissive, not
required, and second, such decisions are
comparable to those in a criminal
context (United States v. Halper, 490
U.S. 435 (1989)) and generally
considered unreviewable under the
Administrative Procedure Act in order
to preserve prosecutorial discretion
(Heckler v. Cheney, 470 U.S. 821
(1985)). While we appreciate the
remaining recommendations, we believe
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that the concerns underlying each are
already addressed by the language as it
appeared in the proposed regulations.
First, the inclusion of any final
determination making the Act or this
part inapplicable is intentionally broad
and inclusive enough to capture the
examples and other regulatory actions
described in the comments. Second, at
the same time, because this
determination must be final, because it
is on its own terms limited to situations
where the information available to the
Federal agency has informed the
determination that the Act or this part
is inapplicable, and because the
determination in question is specific to
the application of this Act or this part,
the category is sufficiently limited in
scope so as to ensure consistency with
the Administrative Procedure Act. The
Department does not consider this
language in these regulations to redefine
final agency action, but only to clarify
its existing application across the
entirety of the Act and this part.
In addition, we have added a
paragraph (k) to this section on
severability. While this rule is intended
to create systematic processes for
implementing the Act, if a court holds
any provision of one part of this rule
invalid, it should not impact the other
parts of the rule. For example, a
decision holding a portion of Subpart B
invalid should not impact Subpart C,
since they are two separate processes for
two different situations. Similarly, a
decision holding part of the inventory
process invalid should not impact the
summary or repatriation processes. Any
decision finding any provisions in this
rule to be invalid would not impact the
remaining provisions, which would
remain in force. The intent of this rule
is to streamline the processes and
increase deference to lineal
descendants, Indian Tribes, and NHOs
as a whole, but the rule is not an
interdependent whole—other provisions
of the rule would implement that intent
even if a court declared certain
provisions invalid.
C. Section 10.2 Definitions for This Part
23. Comment: We received four
comments requesting we add new
definitions. Three comments requested
we define ‘‘deference.’’ One comment
requested we define ‘‘simple itemized
list,’’ ‘‘lot,’’ and ‘‘specific area’’ for
funerary objects.
DOI Response: We have not defined
‘‘deference’’ in these regulations. As
used in these regulations, this term is
intended to ensure meaningful
consideration of Native American
traditional knowledge of lineal
descendants, Indian Tribes, and NHOs
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throughout the systematic processes for
disposition and repatriation. The term
should be understood to have a
standard, dictionary definition: ‘‘respect
and esteem due a superior or an elder;
also affected or ingratiating regard for
another’s wishes’’ (Merriam-Webster
definition of ‘‘deference’’ https://
www.merriam-webster.com/dictionary/
deference, accessed 12/1/2023). The
requirement for deference is not
intended to remove the decision-making
responsibility of a museum or Federal
agency under the Act or these
regulations but is intended to require
that a museum or Federal agency
recognize that lineal descendants,
Indian Tribes, and NHOs are the
primary experts on their cultural
heritage. We believe the application of
deference in these regulations is clear,
and we have reinforced its application
through changes to paragraphs in
§ 10.1(a) Purpose and (d) Duty of care
and in the definition of ‘‘consultation’’
below.
We do not believe it is necessary to
define ‘‘simple itemized list,’’ ‘‘lot,’’ or
‘‘specific area.’’ Each of these terms
should be understood to have a
standard, dictionary definition, and
when a museum or Federal agency is
trying to apply them, we note that
consultation with lineal descendants,
Indian Tribes, or NHOs should inform
that decision.
24. Comment: We received six
comments supporting the definitions in
the proposed regulations. These
comments appreciated that the
definition of ‘‘cultural item’’ (and the
definitions of specific kinds of cultural
items) included language that
recognizes lineal descendants, Indian
Tribes, and NHOs are the primary
experts on their own cultural heritage.
One comment requested these
definitions be further strengthened by
requiring museums and Federal
agencies defer to the determination of
the lineal descendant, Indian Tribe, or
NHO. Similar comments were repeated
in each of the definitions of specific
kinds of cultural items.
DOI Response: We have retained the
language in the definition of ‘‘cultural
item,’’ ‘‘funerary object,’’ ‘‘sacred
object,’’ and ‘‘object of cultural
patrimony.’’ We have not added a
requirement for deference to the
determinations of lineal descendants,
Indian Tribes, or NHOs as it would be
inconsistent with the Act. Museums and
Federal agencies are responsible for
making determinations under the Act
and these regulations, but must do so
after consulting with lineal descendants,
Indian Tribes, and NHOs. We have
changed the order of the sentences to
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reflect the importance of Native
American traditional knowledge (which
includes customs and traditions) in
these definitions. Furthermore, we have
strengthened the application of these
definitions through changes to
paragraphs in § 10.1(a) Purpose and (d)
Duty of care and in the definition of
‘‘consultation’’ below.
25. Comment: We received 21
comments on the proposed definitions
of ‘‘acknowledged aboriginal land’’ and
‘‘adjudicated aboriginal land.’’ Of that
total, 13 comments suggested changes to
the definitions while eight comments
supported both definitions as proposed.
DOI Response: Due to the changes to
the definition of ‘‘cultural affiliation,’’
we are not finalizing the proposed
definitions of aboriginal land in this
rule. We believe the changes to cultural
affiliation address the concerns
expressed by the comments and ensure
consultation on and consideration of
information about aboriginal occupation
in determining cultural affiliation. We
have replaced ‘‘adjudicated aboriginal
land’’ in the regulatory text with the
elements of the definition.
26. Comment: We received 21
comments on the definition of
‘‘affiliation.’’ Of that total, 14 comments
suggested changes to the definition
while seven comments supported it.
One comment questioned if the
Secretary has the authority to alter a
definition in the statute and opposed
the generalized and simplistic meaning
of ‘‘affiliation.’’ The other comments
requested that the definition of
‘‘affiliation’’ be used to define ‘‘cultural
affiliation.’’
DOI Response: We agree with the
suggestion to add ‘‘cultural’’ before
affiliation in this definition. We have
clarified this definition by incorporating
the Congressional intent of this
definition ‘‘to ensure that the claimant
has a reasonable connection with the
materials’’ (H. Rpt. 101–877, at 14, and
S. Rpt. 101–473, at 6). The additional
language found in the definition in the
Act (traced through time and
identifiable earlier group) has been
incorporated into the procedure for
determining cultural affiliation and the
related changes explained in our
responses under § 10.3. We included in
the definition of cultural affiliation the
two ways cultural affiliation may be
identified (clearly or reasonably), taken
from the language in the Act (25 U.S.C.
3003(d)(2)).
27. Comment: We received two
comments suggesting changes to the
definition of ‘‘ahupua‘a.’’
DOI Response: We agree with the
comments and have made the suggested
changes. We appreciate the feedback
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that the definition of ahupua‘a includes
extra contextual information that is
already incorporated in § 10.3. We also
note that priority for cultural affiliation
is not given to an NHO based on the
NHO’s location or cultural practice at
the time of their claim or request but
rather priority for cultural affiliation is
based on the NHO’s relationship to the
earlier occupants of the ahupua-a from
where the human remains or cultural
items were removed or in which they
are discovered.
28. Comment: We received three
comments suggesting changes to the
definition of ‘‘appropriate official.’’ One
comment suggested that the appropriate
official be trained on the time
requirements of that job. The other
comments wanted the Department to
provide a contact list of appropriate
officials.
DOI Response: The responsible Indian
Tribe, NHO, DHHL, or Federal agency is
responsible for the training the
appropriate official. The National
NAGPRA Program maintains contact
information on its website at https://
grantsdev.cr.nps.gov/NagpraPublic/
Home/Contact (accessed 12/1/2023). We
encourage Indian Tribes, NHOs, Federal
agencies, and museums to provide or
update contact information on a regular
basis. We also point out that the
Advisory Council on Historic
Preservation keeps an updated list of
Federal Preservation Officers for each
Federal agency at https://
www.achp.gov/protecting-historicproperties/fpo-list (accessed 12/1/2023).
The National Park Service and the
Bureau of Indian Affairs maintain
contact information on Tribal Historic
Preservation Offices at https://
grantsdev.cr.nps.gov/THPO_Review/
index.cfm (accessed 12/1/2023) and
Tribal Leaders at https://www.bia.gov/
bia/ois/tribal-leaders-directory/
(accessed 12/1/2023).
29. Comment: We received 10
comments suggesting changes to the
definitions of ‘‘ARPA Indian land’’ and
‘‘ARPA public land.’’ Most of the
comments said that the definitions are
inconsistent with the Act and would
unduly narrow the application of the
Act and these regulations. One comment
noted that the definition of ‘‘ARPA
Indian land’’ includes the term
‘‘individual Indian.’’ The comment
stated that the latter term was undefined
in the proposed regulations and
suggested that it be replaced with the
defined term ‘‘lineal descendant.’’
DOI Response: We have not changed
these definitions. These definitions do
not change the application of NAGPRA.
NAGPRA applies to its fullest extent on
‘‘Federal land’’ or ‘‘Tribal land,’’ as
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defined in both the statute and these
regulations. Rather, the terms ‘‘ARPA
Indian land’’ and ‘‘ARPA public land’’
define which excavations under
NAGPRA require a permit issued under
ARPA and which do not. Specifically,
NAGPRA requires that human remains
or cultural items may only be excavated
or removed from Federal or Tribal land
if, among other requirements, ‘‘such
items are excavated or removed
pursuant to a permit issued under
[ARPA] which shall be consistent with
[NAGPRA].’’ 25 U.S.C. 3002(c)(1). Since
both NAGPRA and ARPA are intended
to protect important cultural resources,
they must be construed together.
Further, ‘‘issued under ARPA’’ is an
adjectival phrase modifying ‘‘permit.’’
Thus, it is not ARPA that ‘‘shall be
consistent with NAGPRA,’’ but rather
the ARPA permit that must be
consistent with NAGPRA. This is
supported by the NAGPRA legislative
history. The Senate Indian Affairs
Committee specifically noted that it
‘‘[intended] the notice and permit
provisions of this section to be fully
consistent with the provisions of
[ARPA]’’ (S. Rpt. 101–473, at 7).
Likewise, the House Committee on
Interior and Insular Affairs, in
discussing the stopping of work for an
inadvertent discovery, noted that,
‘‘[a]lthough a specific time limit was not
added here, the Committee does intend
to protect the remains and objects found
and does not intend to weaken any
provisions of other laws, such as
[ARPA], regarding similar situations.’’
Like the Senate Committee, the House
Committee also stated that,
‘‘[s]ubsection (c) provides that items
covered by this Act can be excavated
from Federal or [T]ribal land if proof
exists that a permit has been acquired
under Section 4 of the [ARPA]’’ (H. Rpt.
101–877, at 15 and 17).
Therefore, the provisions of ARPA,
including the scope of public land and
Indian land, are not affected by
NAGPRA. So, the terms ‘‘ARPA Indian
land’’ and ‘‘ARPA public land’’ are
defined in these regulations using the
exact same definitions of ‘‘Indian land’’
and ‘‘public land’’ in ARPA, including
use of the term ‘‘individual Indian,’’
which is used in ARPA to denote land
that is owned by an individual Indian,
who may or may not be a ‘‘lineal
descendant’’ as defined in NAGPRA.
The protection of the scope of both
statutes is reflected in these regulations
by the requirement that ARPA permits
are issued for NAGPRA excavations just
as they are for ARPA excavations,
keeping the full protections of each
statute in place, as Congress intended.
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30. Comment: We received 39
comments on the definition of
‘‘consultation.’’ Of that total, two
comments objected to the definition
because ‘‘to the maximum extent
possible’’ was a vague and troubling
standard. These two comments also
objected to the use of consensus and
requested it be removed or made a
recommendation rather than a
requirement because, as one comment
stated, ‘‘it is not within the ability of
museums to seek consensus or mediate
potential disagreements among
sovereign nations during the
consultation process’’ (NPS–2022–
0004–0136). In addition, one comment
didn’t object to the definition but
requested clarification as to whether
‘‘seek consensus’’ would mean
museums and Federal agencies must
ensure responses are received from all
parties invited to consult.
On the other hand, nine comments
supported the definition as proposed
while 27 comments supported the
definition but suggested changes to
strengthen it. Most of these comments
suggested changing ‘‘seek consensus’’ to
‘‘achieve’’ or ‘‘strive for’’ consensus,
replacing ‘‘incorporating’’ with
‘‘deferring to,’’ replacing ‘‘to the
maximum extent possible’’ with ‘‘as the
Indian Tribe or Native Hawaiian
organization understands them,’’ or
removing ‘‘to the maximum extent
possible.’’ A few comments suggested
adding that consultation is between
equal parties or that it must be
conducted in good faith. A few
comments suggested including a
requirement for museum or Federal
agency decision-makers to be present at
consultation, for consultation to be
continual, or to add ‘‘transparent’’ and
‘‘formal’’ to the definition. One
comment renewed a request to use the
definition of consultation in 36 CFR part
800.
DOI Response: Consultation is a
critical, central, and continual part of
the systematic processes for disposition
or repatriation provided by the Act and
these regulations. However, neither the
Act nor the existing regulations define
consultation. Earlier drafts of these
regulations drew directly on
Congressional report language that
‘‘consultation’’ under NAGPRA means
‘‘the open discussion and joint
deliberations with respect to potential
issues, changes, or actions by all
interested parties’’ (H. Rpt. 101–877, at
16). Specific to the inventory, Congress
emphasized the need for ‘‘cooperative
exchange of information between Indian
[T]ribes or Native Hawaiian
organizations and museums regarding
objects in museum collections’’ (S. Rpt.
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101–473, at 8). In the proposed
regulations, we added specific types of
information that are exchanged during
consultation (identifications,
recommendations, and Native American
traditional knowledge). We also drew
language from other definitions for
consultation found in 36 CFR part 800,
Executive Order 13175, and draft
guidance and language that became the
November 2022 White House
memorandum on Uniform Standards for
Tribal Consultation.
In response to comments that objected
to the proposed definition, we have
removed ‘‘to the maximum extent
possible’’ and clarified the goal of
consultation is to strive for consensus,
agreement, or mutually agreeable
alternatives. We did not and do not
intend for ‘‘consensus’’ to imply
museums or Federal agencies are
required to mediate potential or even
actual disagreements among lineal
descendants, Indian Tribes, or NHOs.
Likewise, ‘‘consensus’’ does not require
a museum or Federal agency receive a
response from every invited consulting
party before it can proceed. The
consultation record should include
efforts to invite consulting parties.
When consultation does not result in
consensus, agreement, or mutually
agreeable alternatives, the consultation
record must describe the concurrence,
disagreement, or nonresponse of the
consulting parties.
In response to comments that
requested strengthening the definition
for consultation, we have revised the
second half of the sentence to better
reflect the goals of consultation. We
have added ‘‘good faith’’ to the
definition to ensure honest and fair
consideration of all points of view and
removed it from each of the regulatory
steps on consultation. We have
expanded the definition to clearly
identify the goals of consultation,
drawing on other sources suggested by
the comments. ‘‘Seek, discuss, and
consider the views of all parties’’ comes
from language in 36 CFR part 800.16.
Although we received several comments
requesting we change ‘‘seek’’ to
‘‘achieve,’’ we have used ‘‘strive for’’
which was suggested by some
comments and is found in the
November 2022 White House
memorandum on Uniform Standards for
Tribal Consultation. We feel this change
better reflects the goal of consultation
and is stronger than ‘‘seek consensus’’
but still reflects consensus may not be
achieved. We have also added to the
goal of consensus ‘‘agreement’’ and
‘‘mutually acceptable alternatives.’’
Although we received several comments
requesting we add deference to this
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definition, we have instead added that
consultation enables consideration of
the kinds of information that can be
provided by lineal descendants, Indian
Tribes, and NHOs. This replaces the
more limited list of information in the
proposed regulations, and we expect it
will provide a more robust and clearer
record of information shared by lineal
descendants, Indian Tribes, and NHOs
during consultation.
In response to all the comments and
as noted elsewhere, when consultation
does not result in consensus, agreement,
or mutually agreeable alternatives, the
consultation record must describe the
concurrence, disagreement, or
nonresponse of the consulting parties.
Although a few comments suggested we
require in the definition that decision
makers attend consultations, we have
not included this in these regulations.
We believe this requirement may not fit
every situation and might end up
delaying or eliminating the efficiencies
of these regulations. Rather, we note
that when consultation does not result
in consensus, agreement, or mutually
acceptable alternatives, consulting
parties may wish to involve decision
makers from all parties to see if a
resolution can be found.
Lastly, we note that consultation as
defined here is different than
consultation defined in other contexts,
especially consultation between a
Federal agency and an Indian Tribe or
NHO. For purposes of disposition or
repatriation, Federal agencies are
required to comply with this definition
of consultation as well as any applicable
policy on government-to-government/
sovereign consultation that would apply
in all contexts. For purposes of
repatriation, we cannot require
museums to conduct the same level of
consultation that would be required for
a Federal agency. We feel this definition
of consultation provides requirements
that can be met by both museums and
Federal agencies, fills in a missing piece
of the Act and the existing regulations,
and ensures consultation remains a
critical, central, and continual part of
the systematic processes for disposition
or repatriation.
31. Comment: We received 20
comments on the definition of ‘‘cultural
item.’’ Of that total, 16 comments
suggested changes to the definition
while four comments supported it. Four
comments stated that changing the
definition of cultural item to exclude
human remains exceeded the
Secretary’s authority. One comment
objected to the definition without
further request for changes. One
comment suggested a grammatical
change. One comment suggested
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cultural item be broadened to include
documents and records (including
photographs) associated with human
remains or cultural items to ensure
repatriation of those documents and
records. Six comments requested the
definition of cultural items be expanded
to require Tribal consultation. The
comments pointed out that the
definitions in the Act ‘‘depend in part
on [T]ribal use and cultural significance.
25 U.S.C. 3001(3). Courts have clarified
that Indian Tribes play a role in
determining whether items possess the
requisite cultural significance to meet
NAGPRA’s definitions, especially
regarding ‘cultural patrimony.’ See
United States v. Tidwell, 191 F.3d 976,
981 (9th Cir. 1999); United States v.
Corrow, 119 F.3d 796, 805 (10th Cir.
1997).’’ (see NPS–2022–0004–0119 for
one of the six comments). Three
comments objected to the definition as
proposed because the required
deference to Indian Tribes and NHOs in
the regulations and the definitions of
cultural items had the potential to create
conflict between types of information or
among Indian Tribes or NHOs.
DOI Response: As we stated in the
proposed regulations, use of the phrase
‘‘human remains or cultural items’’ is
responsive to requests of Indian Tribes
and NHOs. The existing regulations do
not define ‘‘cultural items’’ but still use
the term to include human remains.
This change from ‘‘cultural items’’ to
‘‘human remains or cultural items’’ is
only editorial and does not have any
impact on the applicability or scope of
these regulations. This editorial change
is within the Secretary’s authority, as
the Department asserted in the 1993
Proposed Rule (58 FR 31122).
We have not made the requested
grammatical change (from singular to
plural) as it is unnecessary in regulatory
definitions. Throughout these final
regulations, a singular term includes
and applies to several persons, parties,
or things. We cannot expand the
definition to include documents and
records (including photographs) as that
would be inconsistent with the Act. We
note that requesting documents and
records (which could include
photographs) is already provided for in
§§ 10.9(c)(4) and 10.10(c)(4). Under the
Act and these regulations, lineal
descendants, Indian Tribes, and NHOs
have a right to request records,
catalogues, relevant studies, or other
pertinent data (25 U.S.C. 3003(b)(2) and
25 U.S.C. 3004(b)(2)), and museums and
Federal agencies are required to share
that information (25 U.S.C. 3005(d)). As
required by the Act, additional
information is only provided upon
request of an Indian Tribe or NHO, and
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we cannot require documents and
records be provided by including these
in the definition of cultural items. We
advise lineal descendants, Indian
Tribes, and NHOs to make their requests
as broad as possible to ensure all
information about cultural items,
including digital data, is provided.
Regarding the request to strengthen
the definition, we are unable to change
‘‘according to’’ to ‘‘as determined by’’ as
it would be inconsistent with the Act.
Museums and Federal agencies are
responsible for making determinations
under the Act and these regulations, but
must do so after consulting with lineal
descendants, Indian Tribes, and NHOs.
We have changed the order of the
sentence to reflect the importance of
Native American traditional knowledge
(which includes customs and traditions)
in this definition.
We disagree that the definition is
over-broad, a reversal of Congressional
intent, or contrary to explicit statements
in the Congressional record. Deference
to Native American traditional
knowledge is necessary to ensure the
rights of lineal descendants, Indian
Tribes, and NHOs the Act recognizes.
The addition of ‘‘according to Native
American traditional knowledge’’ in this
definition is to ensure meaningful
consideration of this information during
consultation.
We believe this addition to the
various definitions of cultural items will
lead to more informed decision-making
and help to avoid the lengthy and costly
delays in disposition or repatriation. In
crafting the definitions of cultural items,
Congress clearly intended that the
definitions ‘‘will vary according to the
[T]ribe, village, or Native Hawaiian
community’’ (S. Rpt. 101–473, at 4).
Consultation, which is required
throughout the Act prior to any
determination, is how an Indian Tribe
or NHO shares the information needed
to identify a cultural item.
32. Comment: We received 14
comments on the definition of
‘‘custody.’’ Of that total, nine comments
suggested changes to the definition
while five comments supported it. Eight
comments recommended deleting this
definition and replacing it with the
concept of possession in the definition
of ‘‘possession or control.’’ One
comment recommended replacing the
term ‘‘sufficient interest’’ with the term
‘‘legal authority.’’
DOI Response: We have not made
changes to this definition. We cannot
replace this definition with an
expanded definition for ‘‘possession or
control,’’ as discussed in the response to
comments on that definition (see
comment 49). Custody without
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‘‘possession or control’’ is a distinct
concept from ‘‘possession or control’’
itself. This distinct concept requires
definition to implement certain
requirements, including a duty of care
and certain reporting requirements.
Further, we did not replace the term
‘‘sufficient interest,’’ which is a
threshold determination that museums
and Federal agencies must make.
Changing this phrase would presume
application of the Act before that
determination has been made. As
discussed in more detail in the response
to comments for the definition of
‘‘possession or control,’’ whether a
museum or Federal agency has a
sufficient interest in an object or item to
establish ‘‘possession or control’’ is a
legal determination that must be made
on a case-by-case basis.
33. Comment: We received two
comments requesting changes to the
definition of ‘‘discovery.’’ One comment
raised a concern that removal of human
remains or cultural items from Federal
or Tribal lands is either excavation or
theft, not a discovery. One comment
questioned why the word ‘‘inadvertent’’
is no longer used with the word
‘‘discovery.’’
DOI Response: We understand the
concern but cannot make the requested
change to eliminate ‘‘removing’’ from
the definition of discovery and still
ensure that human remains or cultural
items are protected on Federal or Indian
lands under these regulations. As one
comment notes, an intentional removal
without a written authorization for an
excavation could violate other Federal
laws, depending on the circumstances.
These regulations do not replace or
supplant the other protections available
on Federal or Tribal lands. Rather this
definition and these regulations provide
a process for the disposition of those
human remains or cultural items that
may be discovered.
The definition of discovery includes
both inadvertent and intentional
discovery of human remains or cultural
items. This ensures that any human
remains or cultural items are subject to
these regulations, regardless of how they
were discovered.
34. Comment: We received seven
comments requesting clarification of the
definition of ‘‘Federal lands.’’ Four
comments did not consider the
definition to be sufficiently clear or
instructive to Federal agencies. One
comment noted that the definition
should include lands leased by the
Federal government. One comment
noted that the definition could impact
museum collections under Subpart C.
One comment noted that the definition
should include language to provide for
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the protection and disposition of Native
American children buried at Indian
boarding schools on lands not owned or
controlled by the Federal Government,
but where the Indian boarding school
was operated by or for the U.S.
Government.
DOI Response: We have not made
these changes. Whether a Federal
agency’s control of the lands on which
it conducts it programs or activities is
sufficient to apply these regulations
depends on the circumstances and
scope of that 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.
In some circumstances, the definition
may include lands leased by the Federal
agency, depending on the nature of that
lease, the Federal agency’s statutory
authority, and other case-by-case
circumstances. The Department cannot
instruct Federal agencies any further on
their own circumstances or statutory
authorities, and recommends Federal
agencies consult with their legal counsel
in making such determinations. The
definition is not applied to museum
collections in Subpart C.
Regarding lands on which Native
American children were buried at
Indian boarding schools, we cannot
amend the regulatory definition of
‘‘Federal lands’’ as requested. Congress
specifically and explicitly defined
Federal lands based on control or
ownership, 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
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);
United Keetoowah Band of Cherokee
Indians Of Okla. v. United States HUD,
567 F. 3d 1235, 1243 (10th Cir. Okla.
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’’)). However, the Department
does encourage the custodians of
records from boarding schools not on
Federal or Tribal lands, and the current
owners of those boarding schools and
cemeteries, to fully consult with lineal
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descendants, Indian Tribes, and NHOs
on identification, disinterment, and
repatriation of Native American
children. The Department stands ready
to assist lineal descendants, Indian
Tribes, and NHOs to the fullest extent
of its authority.
35. Comment: We received two
comments suggesting changes to the
definition of Federal agency to include
the Smithsonian Institution.
DOI Response: We cannot make this
change. The Act expressly excludes the
Smithsonian Institution from the
definition of Federal agency.
36. Comment: We received 22
comments on the definition of ‘‘funerary
object.’’ Of that total, 8 comments
supported the definition in the
proposed regulations while 14
comments requested changes to it. Two
comments objected to the definition as
being too expansive by replacing
‘‘preponderance of the evidence’’ in the
existing regulations with ‘‘according to’’
which the comments believed would
create ambiguity and confusion in
applying the definition. On the other
hand, two comments suggested
changing ‘‘according to’’ to be ‘‘as
determined by’’ to further strengthen the
deference to lineal descendants, Indian
Tribes, and NHOs on identification of
funerary objects. One comment
suggested integrating the definition of
funerary object in to two separate
definitions for associated and
unassociated funerary objects. This
same comment raised concerns about
the example provided in the proposed
regulations. One comment expressed
frustration with the use of acronyms for
funerary objects which the comment
stated are offensive and dismissive.
Six comments provided an extensive
argument and requested removing the
temporal limitation on human remains
related to associated funerary object
(‘‘are, or were after November 16, 1990’’)
(see NPS–2022–0004–0119 for one of
the six comments). One comment
requested clarification of and emphasis
on the location of human remains for
unassociated funerary objects. One
comment objected to the statement that
a burial site could ever be ‘‘no longer
extant.’’
DOI Response: We reemphasize that
the proposed revisions to the existing
regulations, specifically the removal of
‘‘preponderance of the evidence’’ from
the definition of funerary object, is to
align the definitions in the regulations
with those in the Act. The existing
regulations limit the definition of a
funerary object by including the
statutory language intended to apply
only to unassociated funerary objects. In
1995, the Department accepted the
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suggestion to combine the definitions of
associated funerary objects and
unassociated funerary object into a
single definition of funerary object and
in doing so, attached the statutory
language for unassociated funerary
object to all funerary objects. In 1995,
the Department asserted:
The statutory language makes it clear that
only those objects that are associated with
individual human remains are considered
funerary objects. The distinction between
associated and unassociated funerary objects
is based on whether the individual human
remains are in the possession or control of a
museum or Federal agency. (60 FR 62137).
The Department reiterated and
clarified this statement in the 2022
Proposed Rule, ‘‘. . . 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’’ (87 FR
63211). The intent of revising this
definition is to clarify long-standing
confusion over the distinction between
associated and unassociated funerary
objects and align the definitions with
those in the Act. We have retained the
single defintion for funerary object and
the two related definitions of associated
or unassociated funerary object as we
believe it clarifies the definitions.
It is important to note ‘‘individual
human remains’’ as used in the Act
means the human remains of an
individual or individuals. We have
removed ‘‘individual’’ from the
definition of funerary object to simplify
and clairfy the definition. The Act does
not require a funerary object be
identified to a specific individual.
Rather, a group of individuals may be
related to a single funerary object and
the object may be a funerary object
without identifying specifically with
which individual the object was placed.
We have retained the phrase ‘‘with or
near’’ as we believe it approporiately
expands the definition of what may be
a funerary object. As noted in the 1995
Final Rule, ‘‘[t]he clause was included
to accommodate variations in Native
American death rites or ceremonies’’ (60
FR 62138). We have retained the
requirement for the object to be
‘‘intentionally’’ placed. As noted in the
1995 Final Rule, ‘‘[t]he term is included
to emphasize the intentional nature of
death rites or ceremonies. Items that
indadvertently came into proximity or
contact with human remains are not
considered funerary objects’’ (60 FR
62137). For funerary objects, broad
categorical identifications, including
everything from a burial site or specific
area, may meet the definition of a
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funerary object depending on the
information available and the results of
consultation. As noted in the example
in the 2022 Proposed Rule, it may be
reasonable to believe an object was
placed intentionally in a location
because of the human remains even if
the object was placed there many
centuries after the human remains (87
FR 63211). As one comment suggested,
this may result in the funerary object
having a different cultural affiliation
than the human remains. We have
revised the definition of funeary object
to ensure, as in the Act, that cultural
affiliation is not a required element to
meet the definition of a funerary object.
Table 3 compares the definition of
‘‘funerary object’’ from the Act, the
existing regulations, and this final rule
and indicates the changes to the
definition in the Act by underline
(additions), strikethrough (removals),
and moved text (brackets).
Table 3: Comparison of "funerary object" definition .
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Final
§10.2 Funerary
object
. . .as part of the death rite or ceremony of a culture, are reasonably
believed to have been placed with individual hum.an remains either
at the time of death or later...
... as part of the death rite or ceremony of a culture, are reasonably
believed to have been placed intentionally [at the time of death or
laterl with or near individual hum.an remains.
. . .reasonably believed to have been placed intentionally with or
near iedi:rliEluel hum.an remains. A funerary object is any object
connected, either at the time of death or later, as p8ft ef the to a
[death rite or ceremony of a] Native American culture according to
the Native American traditional knowledge of a lineal descendants
Indian Tribe. or Native Hawaiian onzanization.
Regarding the request to strengthen
the definition, we are unable to change
‘‘according to’’ to ‘‘as determined by’’ as
it would be inconsistent with the Act.
Museums and Federal agencies are
responsible for making determinations
under the Act and these regulations, but
must do so after consulting with lineal
descendants, Indian Tribes, and NHOs.
We have changed the order of the
sentence to reflect the importance of
Native American traditional knowledge
(which includes customs and traditions)
in this definition.
We disagree that the definition is
over-broad, a reversal of Congressional
intent, or contrary to explicit statements
in the Congressional record. Deference
to Native American traditional
knowledge is necessary to ensure the
rights of lineal descendants, Indian
Tribes, and NHOs the Act recognizes.
The addition of ‘‘according to Native
American traditional knowledge’’ in this
definition is to ensure meaningful
consideration of this information during
consultation.
We believe this addition to the
various definitions of cultural items will
lead to more informed decision-making
and help to avoid the lengthy and costly
delays in disposition or repatriation. In
crafting the definitions of cultural items,
Congress clearly intended that the
definitions ‘‘will vary according to the
[T]ribe, village, or Native Hawaiian
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community’’ (S. Rpt. 101–473, at 4).
Consultation, which is required
throughout the Act prior to any
determination, is how an Indian Tribe
or NHO shares the information needed
to identify a cultural item.
In response to the extensive
comments on the definition of
‘‘associated funerary object,’’ we
appreciate and share the concern
regarding the inappropriate and
inaccurate misreading of NAGPRA. We
clearly and affirmatively state that the
Act and these regulations apply to any
museum or Federal agency that has
possession or control of Native
American human remains or cultural
items. Identification of where or when
the human remains or cultural items
were removed may impact which entity
has possession or control, but where or
when the human remains or cultural
items were removed does not impact the
identification of human remains or
cultural items for purposes of these
definitions.
We have revised the definition as
requested to remove the date and avoid
possible misunderstanding. The Act
requires that for a funerary object to be
an associated funerary object, the
related human remains must be
‘‘presently’’ in the possession or control
of a museum or Federal agency, but the
Act does not require the human remains
to be in the possession or control of the
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same museum or Federal agency as the
associated funerary object. The 1995
Final Rule clarified that when another
museum or Federal agency has
possession or control of the related
human remains, the related funerary
objects are still ‘‘associated funerary
objects’’ (60 FR 62138). By using
‘‘presently’’ in the Act, Congress
intended to distinguish associated
funerary objects from unassociated
funerary objects based on the location of
the related human remains. Where
human remains and funerary objects
were removed from a burial site and
when the location of those human
remains is known, the funerary objects
are associated funeary objects. Even if
the human remains were removed with
the funerary objects and the human
remains are properly repatriated and
reburied, the associated funerary objects
do not lose their status as associated
funerary objects. Associated funeary
objects are still associated to the human
remains as long as the location of the
human remains is known.
Regarding the other comments, we
reiterate that when the location of
human remains related to a funerary
object is unknown, the funerary objects
are unassociated funerary objects but are
still funeray objects subject to the Act
and these regulations. Additional
information about unassociated funerary
objects is necessary to satisfy the
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definition and meet the criteria for
disposition or repatriation of the
unassociated funerary objects. For
example, an object that was
intentionally placed with or near human
remains and is connected to a death rite
or ceremony of a Native American
culture meets the definition of a
funerary object. If the location of the
related human remains is unknown, the
funerary object meets the definition of
unassociated funerary object. If cultural
affiliation of the unassociated funerary
object is reasonably identified by the
geographical location where the
unassociated funerary object was
removed, the unassociated funerary
object may satisfy the criteria for
repatriation, provided the museum or
Federal agency cannot prove it has a
right of possession to the unassociated
funerary object.
We understand the comment that in
some Native American traditions a
burial site never ceases to exist, we have
retained the option for an unassociated
funerary object to be identified when in
a specific area, such as a flood plain or
a shore line, the burial site is no longer
extant. Lastly, we appreciate and will
strive to no longer use acronyms for
associated funerary objects or
unassociated funerary objects that may
be offensive. We encourage all parties to
discuss appropriate terminology during
consultation to recognize and reflect the
significance of human remains and
cultural items to lineal descendants,
Indian Tribes, and NHOs.
37. Comment: We received two
comments on the definition of ‘‘holding
or collection,’’ both supporting the
definition as proposed.
DOI Response: These regulations
retain this definition to assist all parties
with identifying the application of the
Act and these regulations.
38. Comment: We received 37
comments requesting changes to the
definition of ‘‘human remains.’’ One
comment objected to considering
human remains incorporated into a
cultural item as the cultural item and
not human remains. One comment
requested adding that soil associated
with burials and likely containing
human remains be accounted for in this
definition. Two comments requested we
remove the sentence on comingled
material (such as soil or faunal remains)
being treated as human remains while
one comment supported it.
One comment letter stated in five
separate comments that animal remains
should be included in the definition of
human remains or cultural items and a
Review Committee comment agreed.
These comments requested animal
burials be included separately and
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distinctly from cultural items because
these animals are imbued with the same
spirit as human remains and, therefore,
require the same treatment under the
Act and these regulations. An additional
comment suggested the Department look
at incorporating protections for
ceremonial animal interments.
Of the total number of comments, 13
comments requested we expand the
definition of human remains to include
casts, 3–D scans, and all other digital
data. Some of these comments also
suggested expanding the definition to
include any information or samples
taken from an individual, including
pictures, biological samples, isotope
readings, soft tissue, and any other
biological remnants. Some of these
comments requested we add that any
data collected directly relating to a
Native American individual should also
be considered human remains. A few of
these comments requested that we
require museums and Federal agencies
to provide references to all casts of
human remains, any replicas from 3–D
scans, and all other digital data
produced from human remains or
cultural items and require consultation
on the proper treatment of those
references. The comments also
requested we add that ‘‘No such casts,
replicas, or digital data scanned from
Native American human remains,
funerary objects, sacred objects or
cultural patrimony shall be offered for
sale or exchange without the free, prior,
and informed consent of the culturally
affiliated Indian Tribe or Native
Hawaiian organization. Failure to
comply shall be deemed a violation of
NAGPRA.’’ Separately, one comment
suggested the definition of human
remains be broadened to include
documents and records associated with
human remains or cultural items to
ensure repatriation of those documents
and records.
In addition, 12 comments requested
we delete from the definition the
sentence that excludes from the
definition any human remains or
portions of human remains that are
determined to have been freely given or
naturally shed.
DOI Response: We understand there is
a wide variety of opinions on how
human remains that are incorporated
into a cultural item might be identified.
The Department sought input on this
issue in the 1993 Proposed Rule and
retained the language in the 1995 Final
Rule as it was ‘‘recommended by the
Review Committee to preclude the
destruction of items that might be
culturally affiliated with one Indian
Tribe that incorporated human remains
culturally affiliated with another Indian
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86473
Tribe.’’ The 1995 Final Rule also noted
that ‘‘[d]etermination of the proper
disposition of such human remains
must necessarily be made on a case-bycase basis’’ (60 FR 62137). In the 2022
Proposed Rule, we included these two
ways human remains may be
incorporated into an object or item to
ensure, as Congress intended, that
human remains of any ancestry be
treated with respect, and any Native
American human remains must be made
available for disposition or repatriation.
We decline to make the requested
change.
Regarding an admixture of comingled
materials, 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). Museums and Federal
agencies are required to identify these
comingled materials in its itemized list
and during consultation should evaluate
if the entire admixture can be treated as
human remains. If 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, which may
include additional handling, with
consent of the lineal descendant, Indian
Tribe, or NHO, to separate the human
remains from other materials. We are
aware that comingled materials are a
significant issue for many Indian Tribes,
NHOs, museums, and Federal agencies.
The intent of this addition to the
definition is to ensure these kinds of
collections are included on an itemized
list and made available to lineal
descendants, Indian Tribes, and NHOs
during consultation and for repatriation.
The term ‘‘human remains’’ appears
in the definition section of the Act even
though it is an undefined term. We have
defined ‘‘human’’ using the commonly
understood meaning of the word, i.e., a
member of the species homo sapiens.
For this reason, we cannot make the
requested change to include animal
burials as a separate and distinct
category of human remains as that
would be inconsistent with the Act. We
note, too, that purposefully buried
remains that do not include human
remains are not included in the
definition of human remains. Other
kinds of burials and remains that are not
human remains should be carefully
considered, through consultation, as
cultural items. For example, animal
burials that are not related to the burial
of human remains and, therefore, are
not funerary objects, may be needed by
traditional Native American religious
leaders for the practice of traditional
religions and may be sacred objects.
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We cannot expand the definition of
human remains to include casts, 3–D
scans, or other digital data, documents,
or records as that would be inconsistent
with the Act. We note that the right to
request documents and records, which
could include casts, 3–D scans,
photographs, digital data, or other
information, is already provided for in
§§ 10.9(c)(4) and 10.10(c)(4). Under the
Act and these regulations, lineal
descendants, Indian Tribes, and NHOs
have a right to request records,
catalogues, relevant studies, or other
pertinent data (25 U.S.C. 3003(b)(2) and
25 U.S.C. 3004(b)(2)), and museums and
Federal agencies are required to share
that information (25 U.S.C. 3005(d)). We
advise lineal descendants, Indian
Tribes, and NHOs to make their requests
as broad as possible to ensure all
information about human remains,
including digital data, is provided. In
addition, we cannot make the requested
addition to prohibit the sale or exchange
of casts, replicas, or digital data of
human remains as that would be
inconsistent with the Act.
We have always interpreted biological
samples (including DNA), soft tissue,
and any other biological remnants to be
within the definition of human remains
and subject to the Act and these
regulations. The definition of human
remains is purposefully broad to ensure
that ANY physical remains of the body
of a Native American individual are
included (with the one exception
discussed below). In the 1993 Proposed
Rule, the Department included an
example clause in the definition of
human remains as ‘‘including, but not
limited to bones, teeth, hair, ashes, or
mummified or otherwise preserved soft
tissues of a person of Native American
ancestry’’ (58 FR 31126). In the 1995
Final Rule, the Department considered
comments requesting the definition of
human remains exclude isolated teeth,
finger bones, cut finger nails, coprolites,
blood residues, and tissue samples
taken by coroners. In response, the
Department stated:
The Act makes no distinction between
fully-articulated [sic] burials and isolated
bones and teeth. Additional text has been
added excluding ‘‘naturally shed’’ human
remains from consideration under the Act.
This exclusion does not include any human
remains for which there is evidence of
purposeful disposal or deposition. The
exemplary clause has been deleted (60 FR
62137).
Identification of human remains for
the purposes of the Act and these
regulations requires a case-by-case
assessment, in consultation with lineal
descendants, Indian Tribes, and NHOs.
Recent examples have demonstrated
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that the example clause from the 1993
Proposed Rule is beneficial in
identifying human remains subject to
the Act and these regulations, especially
when it comes to hair samples taken
from living individuals, coprolites,
blood residues, tissue samples, and
DNA extractions. The definition of
human remains is intentionally broad
and contains only one exception
(discussed below). The definition does
not include a requirement for the
human remains to be from an
archeological context, of a certain age,
or from a deceased person. The
definition does not exclude human
anatomical collections used by medical
schools for training or teaching
collections. Again, the definition of
human remains is purposefully broad to
ensure that ANY physical remains of the
body of a Native American individual
are included (with the one exception
discussed below).
We appreciate the comments
requesting removal of the sentence that
excludes human remains that were
freely given or naturally shed. We agree
with the comments of the Review
Committee that state: ‘‘[a]llowing
museums and Federal agencies to
predetermine if such remains were
freely given or naturally shed and not
report them in their inventories
deprives Indian [T]ribes and Native
Hawaiian organizations with necessary
information’’ (see NPS–2022–0004–
0096). However, we disagree that a
museum or Federal agency should be
required to complete an inventory for
human remains that were obtained with
full knowledge and consent of the
individual or next of kin. In the 1995
Final Rule, one comment requested
clarification if human remains included
blood sold or given to a blood bank by
a Native American individual (60 FR
62137). In the 2010 Final Rule, two
comments recommended excluding
human anatomical collections used by
medical schools for training from the
definition of human remains. In
response, the Department stated,
‘‘[t]hough not excluded from the
inventory provisions, medical schools
that receive Federal funds would not be
required to repatriate Native American
human remains obtained with the
voluntary consent of an individual or
group that had authority of alienation’’
(75 FR 12393).
We have revised the sentence in the
definition to require a higher standard
of information for human remains that
are excluded from the Act and these
regulations. We agree with the Review
Committee that a museum or Federal
agency must be able to prove the
original acquisition of Native American
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human remains was obtained with the
full knowledge and consent of the
individual, next of kin, or the official
governing body of the appropriate
Indian Tribe or NHO (see ‘‘right of
possession’’ 25 U.S.C. 3001(13)). In the
Act, Congress acknowledged that a right
of possession is qualified with respect to
human remains and associated funerary
objects. Congress did not provide for a
museum or Federal agency to assert a
right of possession to human remains
and associated funerary objects
identified in an inventory. 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
follows the common law by
distinguishing between the quasiproperty attributes of Native American
human remains and associated funerary
objects and the property attributes of
Native American unassociated funerary
objects, sacred objects, or objects of
cultural patrimony.
In line with applicable common law
in the United States, Congress stated
that the original acquisition of Native
American human remains 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. Therefore, these regulations
cannot require a museum or Federal
agency to complete an inventory or
repatriate Native American human
remains where the museum or Federal
agency can show it has a right of
possession.
For example, when any individual,
regardless of ancestry, dies, local or
State law dictates certain actions by law
enforcement, medical examiners, and
other local or State officials. Local or
State law generally requires consent by
the next of kin prior to any other action
by the local or State authorities. When
the deceased individual is Native
American and when no next of kin is
ascertainable, the local or State
authorities may be required to treat the
individual as human remains under the
Act and these regulations, unless the
local or State authorities obtain the full
knowledge and consent of the official
governing body of the appropriate
Indian Tribe or NHO. Coroners, medical
examiners, and other local or State
agencies should consider their
requirements under the Act and these
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regulations for any Native American
human remains.
The Department interprets ‘‘full
knowledge and consent’’ considering
the history of Indian country and
recognizes that ‘‘full knowledge and
consent’’ does not include ‘‘consent’’
given under duress or because 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.
39. Comment: We received 24
comments suggesting changes to the
definition of ‘‘Indian Tribe.’’ Several of
the comments relied on the decision
which held, based on the definition of
‘‘group’’ in the 1992 regulations at 25
CFR part 83, an Indian group without
Federal recognition was an ‘‘Indian
Tribe’’ for purposes of NAGPRA
(Abenaki Nation of Mississquoi v.
Hughes, 805 F. Supp. 234 (D.Vt., 1992),
aff’d per curiam, 900 F.2d 729 (2nd Cir.
1993)). Some comments also disagreed
with the addition of a reference to the
List Act in this definition, arguing that
the definition of Indian Tribe under
NAGPRA is different than the standard
for inclusion on the list published under
the List Act. Many of those comments
requested we reiterate the statutory
definition verbatim. A few comments
adamantly opposed any changes to the
definition of Indian Tribe beyond
federally recognized Indian Tribes.
DOI Response: NAGPRA defines
‘‘Indian [T]ribe’’ as ‘‘any [T]ribe, 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.]), which is recognized as
eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians’’ (25 U.S.C. 3001(7) (emphasis
added)). This definition was based on
the definition in the Indian SelfDetermination and Education
Assistance Act (ISDEAA), which defines
‘‘Indian [T]ribe’’ as ‘‘any Indian [T]ribe,
band, nation, or other organized group
or community, including any Alaska
Native village or regional or village
corporation as defined in or established
pursuant to the Alaska Native Claims
Settlement Act (85 Stat. 688) [43 U.S.C.
1601 et seq.], which is recognized as
eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians’’ (25 U.S.C. 5304(e) (emphasis
added)). Finally, the List Act requires
that the Secretary ‘‘publish in the
Federal Register a list of all Indian
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[T]ribes which the Secretary recognizes
to be eligible for the special programs
and services provided by the United
States to Indians because of their status
as Indians’’ (25 U.S.C. 5131(a)
(emphasis added)).
The Supreme Court of the United
States recently ruled that the ISDEAA
definition referred only to federally
recognized Tribes and Alaska Native
Corporations (Yellen v. Confederated
Tribes of the Chehalis Reservation, 141
S. Ct. 2434 (2021)). The only difference
between the ISDEAA definition and the
NAGPRA definition is Congress’s
intentional deletion of Alaska Native
Corporations (see Statement of
Representative Bill Richardson, 136
Cong. Rec. 36815). Therefore, under the
Supreme Court’s reasoning on ISDEAA,
the NAGPRA definition only applies to
federally recognized Indian Tribes.
Because Congress also used the same
language ‘‘eligible for the special
programs and services’’ in both
NAGPRA and the List Act, the list of
federally recognized Tribes is the list of
Indian Tribes for the purposes of
NAGPRA.
The Abenaki decision is not
persuasive. First, the decision not only
precedes the List Act, but also solely
relies on a definition that no longer
appears in the 25 CFR part 83
regulations. Second, the decision
focuses on that definition while
ignoring the rest of the NAGPRA
definition concerning recognition of
eligibility for services. Finally, it is a
Tribal-specific analysis that has not
been followed by any other court. In
contrast, the list of federally recognized
Tribes under the List Act is based on the
current recognition regulations in part
83, which are specifically designed ‘‘for
the Department to use to determine
whether a petitioner is an Indian [T]ribe
eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians.’’ 25 CFR 83.2. The plain
language congruence of the ISDEAA
definition, the NAGPRA definition, and
the purpose and foundation of the list
under the List Act, as confirmed by the
Yellen decision, are more persuasive
than the Abenaki case, and fully support
the definition in these regulations. The
definition in these regulations has not
been changed. The Department believes
it is important to codify this definition
and clarify any continuing
misinterpretation or misunderstanding.
Throughout these final regulations,
the term ‘‘Indian Tribe’’ 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
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86475
or cultural items. Any Indian Tribe with
cultural 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.
40. Comment: We received three
comments on the definition of
‘‘inventory.’’ Of that total, two
comments suggested changes to the
definition while one comment
supported it as proposed. The
supportive comment felt the revision
was an excellent clarification and would
streamline the inventory and overcome
a barrier to repatriation. One comment
adamantly opposed revision of the
existing regulatory definition,
specifically the removal of an ‘‘item-byitem description’’ requirement. One
comment asked if the definition meant
that (1) an inventory is not complete
unless it is informed by consultation
and (2) an initial itemized list could not
be submitted to National NAGPRA if
consultation had not occurred.
DOI Response: We decline to make
changes to the definition. Our intent is
to clarify and simplify what an
inventory must include both in the
definition and in the § 10.10. We are
aware that the existing regulatory
definition and related text have been a
barrier to expeditious repatriation. On
the other hand, we know that a lack of
transparency and accuracy in
inventories is also a barrier to
repatriation.
The Act defines an inventory as ‘‘a
simple itemized list that summarizes the
information called for by this section’’
(25 U.S.C. 3003(e)). The information
called for in an inventory is information
to identify (1) ‘‘each Native American
human remains or associated funerary
objects and the circumstances
surrounding its acquisition’’ (25 U.S.C.
3003(d)(2)(A)); and (2) ‘‘the geographical
and cultural affiliation of such item[s]’’
(25 U.S.C. 3003(a)). An inventory only
pertains to human remains and
associated funerary objects (25 U.S.C.
3003(a)). The inventory is also defined
by what is not an inventory; namely, a
summary, which is ‘‘in lieu of an objectby-object inventory’’ (25 U.S.C.
3004(b)(1)(A)) and pertains to
‘‘unassociated funerary objects, sacred
objects, or objects of cultural
patrimony’’ (25 U.S.C. 3004(a)).
The existing regulations provide a
short definition for an inventory: ‘‘the
item-by-item description of human
remains and associated funerary
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objects,’’ but also provide a more
detailed list of what an inventory must
include in § 10.9. As noted in the 1995
Final Rule, the difference between a
summary and an inventory ‘‘reflects not
only their subject matter, but also their
detail (brief overview vs. item-by-item
list), and place within the process.
Summaries represent an initial
exchange of information prior to
consultation while inventories are
documents completed in consultation
with Indian [T]ribe officials and
representing a decision by the museum
official or Federal agency official about
the cultural affiliation of human
remains and associated funerary
objects’’ (60 FR 62140).
We are keenly aware of the preference
of many, if not most, Indian Tribes and
NHOs to have all human remains and
associated funerary objects identified in
order to repatriate them together. In
reviewing the comments, the goal of
both the supporting comment and the
opposed comment is the same: allow
lineal descendants, Indian Tribes, and
NHOs to dictate the level of
documentation or collections review
required for an inventory. We agree, and
changes to § 10.1(d) Duty of care are
specifically meant to achieve this goal.
The final regulations require a museum
or Federal agency to obtain free, prior,
and informed consent prior to any
exhibition of, access to, or research on
human remains or cultural items.
In response to the questions asked, an
inventory is not complete until a
museum or Federal agency initiates
consultation with lineal descendants,
Indian Tribes, and NHOs and consults
with any consulting party that wishes to
do so. Only completed inventories that
contain the names of consulting parties
or those invited to consult should be
submitted to the National NAGPRA
Program. If there is no response to the
invitation to consult, the museum or
Federal agency must still complete or
update the inventory by the required
deadlines.
41. Comment: We received eight
comments on the definition of ‘‘lineal
descendant.’’ Of that total, four
comments suggested changes to the
definition while four comments
supported it as proposed. One comment
stated common-law system of descent is
not clear and the regulations should
revert to the existing language. One
comment requested a grammatical
change and one comment asked what
‘‘known individual’’ means. One
comment requested clarification if a
museum or Federal agency must
confirm the identity of a lineal
descendant with an Indian Tribe with
cultural affiliation or if the presence of
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a lineal descendant meant consultation
with an Indian Tribe was not required.
DOI Response: The existing
regulations refer to the ‘‘common law
system of descendance’’ and ‘‘known
Native American individual’’ in the
definition for lineal descendant. The
regulatory text adds ‘‘This standard
requires that the earlier person be
identified as an individual whose
descendants can be traced.’’ The
common law system of descent means
the customary practice of tracing
ancestry to a person’s parents,
grandparents, great-grandparents, and so
on. It does not indicate any kind of
precedent is set by previous
repatriations. There is a requirement for
the deceased individual to be known,
but that does not mean a named
individual is the only way a person
could be known. Rather, it indicates that
the deceased individual must be
identified in some way to trace ancestry
between that individual and the living
individual. We have removed the
limiting gendered language from the
definition as requested by one comment.
Both the existing regulations and this
final rule require museums and Federal
agencies to initiate consultation with
both lineal descendants and Indian
Tribes or NHOs with potential cultural
affiliation and to provide the names of
all identified consulting parties. The
existing regulations require a museum
or Federal agency convey information to
both a lineal descendant, if known, and
to the Indian Tribe or NHO with
cultural affiliation, when the inventory
results in a determination that the
human remains are of an identifiable
individual. In the proposed regulations
and this final rule, this requirement is
a part of the information shared and
requested during the consultation
process. We cannot require a museum or
Federal agency to verify the identity of
a lineal descendant with an Indian Tribe
or NHO. The statute gives lineal
descendants priority over Indian Tribes
or NHOs. Establishing a system in
which verification of lineal descendants
is through Indian [T]ribes or NHOs
could be detrimental to the rights of
lineal descendants, particularly those
that are not members of an Indian
[T]ribe or NHO. Given the diversity of
ways in which a lineal descendant may
be traced, we cannot require certain
types of documentation or evidence
needed to establish lineal descent.
Museums and Federal agencies must
determine if a request from a lineal
descendant provides sufficient
information and respond to the request
accordingly.
Throughout these final regulations,
the term ‘‘lineal descendant’’ is used in
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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 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.
42. Comment: We received one
comment suggesting a review of the
involvement of non-profits in museum
funding and a change to the definition
of ‘‘museum’’ that would replace
‘‘institution of higher learning’’ with
‘‘all educational institutions.’’
DOI Response: The requested review
is outside of the scope of this regulatory
action. We have not made the requested
change because this part of the
definition comes directly from the Act,
which is already sufficiently inclusive
of all educational institutions that have
possession or control of human remains
or cultural items and receive Federal
funds.
43. Comment: We received four
comments suggesting changes to the
definition of ‘‘Native American.’’ Two
comments expressed concern over the
inclusion in this definition of Indian
groups without Federal recognition. One
comment requested we require
consultation with Indian Tribes or
NHOs prior to any determination that
human remains or cultural items are
Native American. One comment
expressed concern that, as written, this
definition might exclude cross-border
indigenous peoples or cultures who are
indigenous to the United States but also
to Canada, Mexico, or Russia.
DOI Response: We do not intend to
include Indian groups without Federal
recognition in the definition of Tribe (as
noted elsewhere in the definition of
Indian Tribe). In determining whether
human remains or cultural items are
Native American, we cannot require
consultation prior to compiling a
summary of cultural items or an
itemized list of human remains and
associated funerary objects under
Subpart C, but we can and do require
consultation prior to any determination
of cultural affiliation or decision on a
request for repatriation. When
compiling a summary of cultural items
or an itemized list of human remains
and associated funerary objects, a
museum or Federal agency should
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include any potential Native American
human remains or cultural items to
allow for further consultation.
The Act limits the definition of Native
American to the United States, and we
cannot remove that geographical
descriptor. We believe the added
definitions for ‘‘people’’ and ‘‘culture’’
includes those who are indigenous to
locations near present day geographical
borders. Any pre-contact Tribe, people,
or culture would be included in this
definition. Native Hawaiians are
included in this definition as a
‘‘people,’’ to clarify an ambiguity left by
Congress.
44. Comment: We received 12
comments on the definition of ‘‘Native
American traditional knowledge.’’ Of
that total, six comments suggested
changes to the definition while six
comments supported it. Two comments
opposed the definition, and both
requested it be revised or removed
because it was unclear and complex,
and one comment felt it would lead to
poor decision-making or other pitfalls.
One of these comments was concerned
that this definition, along with the
required deference, would give equal or
greater weight to this type of
information than to scientific and
historical information and, when
identifying cultural items, Native
American traditional knowledge might
be used as the only type of information
instead of scientific or historical
evidence. One comment was neutral
and asked how the term changed the
current cultural affiliation process.
Three comments supported the
definition as proposed but suggested
changes to strengthen it. One comment
requested we add language to the
variety of information listed while
another comment requested we include
a reference to § 10.3. One comment
provided an extensive discussion and
specific changes to the definition to
include Indian Tribes, expert opinion,
and confidentiality.
DOI Response: We disagree that the
definition is unclear, vague, or overly
broad or that this definition is novel or
unique to these regulations. The concept
of ‘‘Native American traditional
knowledge’’ has been used broadly
among Federal agencies in the context
of land management and the use of
natural or cultural resources, although
the specific terms used might vary.
More recently, the White House Council
on Environmental Quality and the
Office of Science and Technology Policy
released government-wide guidance and
an implementation memorandum for
Federal agencies on recognizing and
including Indigenous knowledge in
Federal research, policy, and decision
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making (https://www.whitehouse.gov/
ceq/news-updates/2022/12/01/whitehouse-releases-first-of-a-kindindigenous-knowledge-guidance-forfederal-agencies/, accessed 12/1/2023).
Most certainly, this is not a new concept
to lineal descendants, Indian Tribes, or
NHOs and any difficulty understanding
this definition could be resolved
through adequate consultation. We
believe this term will lead to more
informed decision-making and help to
avoid the lengthy and sometimes costly
delays in disposition or repatriation.
Under the Act and these regulations, all
information available is equally relevant
to determining cultural affiliation, and
our intent in defining this type of
information is to ensure that Native
American traditional knowledge is
considered alongside scientific and
historical information. In response to
the question asked, this is not different
than decision-making for cultural
affiliation under the existing regulations
or the Act itself. Although it may not
have been identified as such, Congress
intended for Native American
traditional knowledge to be considered
when determining cultural affiliation or
identifying cultural items. The
definitions of funerary objects, sacred
objects, and objects of cultural
patrimony all rely on information that
may only be available to or shared by
lineal descendants, Indian Tribes, or
NHOs. Consultation, which is required
throughout the Act prior to any
determination, is how an Indian Tribe
or NHO shares the information needed
to identify a cultural item. In cases
where there is no other information,
Native American traditional knowledge
alone may identify a cultural item.
In response to the other comments,
we have added linguistics to the variety
of named information, but stress that
this list is not exhaustive. We have
added a final sentence to reiterate the
statement in § 10.3 that Native
American traditional knowledge is
expert opinion. We have added Indian
Tribes, the Native Hawaiian
Community, and confidentiality to the
definition, although in slightly different
places than was suggested.
45. Comment: We received 11
comments suggesting changes to the
definition of ‘‘Native Hawaiian
organization.’’ Most of the comments
requested revisions to paragraph (3)(i)
identifying some NHOs. One comment
expressed concern that changes to this
definition would result in a broad range
of NHOs who meet the criteria and
impact the Native Hawaiian objects that
are subject to the regulations.
DOI Response: The definition reflects
the language in the Act, which is
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binding unless stricken, modified, or
contravened by other Federal law. The
definition in the Act may be modified
if it is no longer relevant when certain
referenced terms, conditions, or entities
cease to exist. The Act includes the
Office of Hawaiian Affairs as a ‘‘Native
Hawaiian organization,’’ and the
definition in these regulations remains
unchanged. Other concerns about NHOs
are addressed by the definition as well
as the prioritization of cultural
affiliation under § 10.3. The omission of
Hui Malama I Na Kupuna O Hawai1i Nei
from the definition of a ‘‘Native
Hawaiian organization’’ is due to the
group’s dissolution rather than any
judgment as to its or any successors’
status as NHOs. The incorporation of
‘‘Native Hawaiian’’ into the definition of
a ‘‘Native Hawaiian organization,’’ and
the use of the term ‘‘indigenous people’’
rather than ‘‘aboriginal people,’’ clarifies
what constitutes an NHO and their
relevance to these regulations (2022
Proposed Rule, 87 FR 63213).
This definition and these regulations
are consistent with the government-tosovereign relationship between the
United States government and the
Native Hawaiian Community. If the
Native Hawaiian Community decides to
change its relationship with the United
States government to that of a
government-to-government relationship,
the Department may review and update
the current policy and procedures.
Throughout these final regulations,
the term ‘‘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 cultural affiliation may
submit a claim for disposition or a
request for repatriation. 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
should be considered a single claim or
request and not competing claims or
requests.
46. Comment: We received six
comments suggesting changes to the
definition of ‘‘object of cultural
patrimony.’’ One comment requested we
remove from the definition the
provision that the object must have been
considered inalienable by the group at
the time the object was separated from
the group as it seems unnecessary. One
comment questioned the use of ‘‘Native
American group’’ in the definition. One
comment suggested changing
‘‘according to’’ to be ‘‘as determined by’’
to further strengthen the deference to
lineal descendants, Indian Tribes, and
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NHOs on identification of objects of
cultural patrimony. One comment
requested an expansion of this
definition to include intellectual
property like songs, recordings, and
photos as well as digital files. Another
comment asked if this definition
included documents and photos and, if
not, then how the regulations support
the return of such objects. One comment
objected to the definition as over-broad,
a reversal of Congressional intent, and
contrary to explicit statements in the
Congressional record at the time of the
Act’s passage.
DOI Response: We do not have the
discretion to revise the definition as
suggested by these first two comments
as both are a part of the definition in the
Act. The term ‘‘group’’ or ‘‘sub-group’’
used in this definition and elsewhere in
these regulations should be understood
to have a standard, dictionary
definition: ‘‘a number of individuals
assembled together or having some
unifying relationship’’ (https://
www.merriam-webster.com/dictionary/
group, accessed 12/1/2023). We cannot
expand the definition to include
intellectual property, digital files, other
documents, or records as that would be
inconsistent with the Act. We note that
requesting documents and records
(which could include recordings,
photos, or digital files) is already
provided for in §§ 10.9(c)(4) and
10.10(c)(4). Under the Act and these
regulations, lineal descendants, Indian
Tribes, and NHOs have a right to request
records, catalogues, relevant studies, or
other pertinent data (25 U.S.C.
3003(b)(2) and 25 U.S.C. 3004(b)(2)),
and museums and Federal agencies are
required to share that information (25
U.S.C. 3005(d)). As required by the Act,
additional information is only provided
upon request of a lineal descendant,
Indian Tribe, or NHO, and we cannot
require documents and records be
provided by including these in the
definition of objects of cultural
patrimony. We advise lineal
descendants, Indian Tribes, and NHOs
to make their requests as broad as
possible to ensure all information about
objects of cultural patrimony, including
digital data, is provided.
Regarding the request to strengthen
the definition, we are unable to change
‘‘according to’’ to ‘‘as determined by’’ as
it would be inconsistent with the Act.
Museums and Federal agencies are
responsible for making determinations
under the Act and these regulations, but
must do so after consulting with lineal
descendants, Indian Tribes, and NHOs.
We have changed the order of the
sentence to reflect the importance of
Native American traditional knowledge
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(which includes customs and traditions)
in this definition.
We disagree that the definition as
proposed is over-broad, a reversal of
Congressional intent, or contrary to
explicit statements in the Congressional
record. We agree with the concerned
comment that when NAGPRA was
passed, Congress made clear that not all
objects could be deemed ‘‘sacred’’ or
‘‘cultural patrimony.’’ The definition of
object of cultural patrimony in these
regulations is consistent with the Act
and the legislative history. An object of
cultural patrimony must not only be an
object owned by the collective whole,
but must be of ongoing historical,
traditional, or cultural importance, as
indicated by the Senate (S. Rpt. 101–
473, at 5).
Deference to Native American
traditional knowledge is necessary to
ensure the rights of lineal descendants,
Indian Tribes, and NHOs the Act
recognizes. The addition of ‘‘according
to Native American traditional
knowledge’’ in this definition is to
ensure meaningful consideration of this
information during consultation.
We believe this addition to the
various definitions of cultural items will
lead to more informed decision-making
and help to avoid the lengthy and costly
delays in disposition or repatriation. In
crafting the definitions of cultural items,
Congress clearly intended that the
definitions ‘‘will vary according to the
[T]ribe, village, or Native Hawaiian
community’’ (S. Rpt. 101–473, at 4).
Consultation, which is required
throughout the Act prior to any
determination, is how an Indian Tribe
or NHO shares the information needed
to identify a cultural item.
47. Comment: We received two
comments suggesting changes to the
definition of ‘‘ ‘ohana.’’ Both comments
requested a revision of the definition to
reflect that an ‘ohana may be comprised
of lineal descendants.
DOI Response: We appreciate the
suggested change and acknowledge the
limitations of the proposed definition.
We have revised the definition
accordingly.
48. Comment: We received one
comment suggesting changes to the
definition of person to include
‘‘spiritual entity personhood’’ and
clarification that this is different from
‘‘appropriate official.’’
DOI Response: While the word
‘‘person’’ is used in a few definitions
and instances, the definition is intended
to ensure the requirements under § 10.5
Discovery are completed and to give
clear meaning to the phrase in the Act
and these regulations: ‘‘Any person who
knows or has reason to know. . . .’’
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Certain actions are required by any
individual, partnership, corporation,
trust, institution, association, or any
other private entity, or any
representative, official, employee, agent,
department, or instrumentality of the
United States Government or of any
Indian Tribe or NHO, or of any State or
subdivision of a State when a discovery
of human remains or cultural items on
Federal or Tribal lands occurs. These
actions are separate from the required
actions of an ‘‘appropriate official’’ for
that same discovery. It is possible that
a person who makes a discovery on
Federal or Tribal land may also be the
representative authorized by a
delegation of authority within an Indian
Tribe, NHO, Federal agency, or
Department of Hawaiian Home Lands
(DHHL) to be responsible for human
remains or cultural items on Federal or
Tribal lands. In those instances, the
same individual may be performing the
required actions of the person and the
appropriate official. Considering the use
of this definition, we decline to include
‘‘spiritual entity personhood.’’
49. Comment: We received 44
comments on the definition of
‘‘possession or control.’’ Of that total, 40
comments suggested changes to the
definition while four comments
supported it. A total of 17 comments
expressed concerns with museum and
Federal agency compliance. Six
comments supported using a single
definition for the term possession or
control while five comments proposed
splitting the definition into two
definitions. Five comments proposed
replacing the definition of custody with
the concept of possession. A total of 13
comments recommended expanding the
definition to include museums that only
have an obligation to care for human
remains or cultural items, for example,
a museum that received a loan of human
remains or cultural items from another
museum. One comment recommended
replacing the phrase ‘‘a sufficient
interest in an object or item to
independently direct, manage, oversee,
or restrict the use of the object or item’’
with ‘‘an interest in human remains or
cultural items, such that the museum or
Federal agency has been providing care,
direction, management, oversight, or
restrictions regarding the use of the
human remains or cultural item.’’ Two
comments recommended replacing the
phrase ‘‘sufficient interest’’ with ‘‘legal
responsibility’’ or ‘‘legal authority.’’ One
comment requested that we clarify the
meaning of sufficient interest to address
confusion over whether a museum with
mere custody by a loan, lease, license,
or bailment, has possession or control.
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One comment was concerned that the
definition as written would permit
museums that have received loans of
human remains or cultural items from
other museums to make determinations
regarding repatriations of the loaning
museum’s collection. Six comments
were concerned with museums making
unilateral determinations regarding
possession or control of human remains
or cultural items. Nine comments
expressed concerns that museums and
Federal agencies use the existing
definitions as a loophole to avoid
compliance with the Act. One comment
expressed concern that the proposed
regulations no longer include a
statement that ‘‘Federal agencies must
ensure that these requirements are met
for all collections from their lands or
generated by their actions whether the
collections are held by the Federal
agency or by a non-Federal institution.’’
DOI Response: We have not made
changes to this definition, other than to
replace physical custody with physical
location to avoid any confusion. We
received one more comment in support
of the use of a single definition than we
did recommending that the definition be
split in two. Congress used these two
words as a single term throughout the
Act, except for ‘‘right of possession.’’
And, given the overwhelming support
for the single definition during
consultation in 2021, we have not made
any other changes to this definition
from the proposed rule. Further, we did
not change the terms ‘‘sufficient
interest’’ or ‘‘independently direct’’
which are threshold determinations for
museums and Federal agencies to make
and changing these phrases as suggested
would presume application of the Act
before that determination has been
made. Whether a museum or Federal
agency 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 of the human
remains or cultural items for purposes
of repatriation under the Act and these
regulations. 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
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control of the human remains or
cultural items for purposes of
repatriation under the Act and these
regulations. This determination is a
jurisdictional requirement for
application of the Act and these
regulations to the human remains or
cultural items that may be subject to
repatriation by the appropriate museum
or Federal agency.
While we acknowledge the continued
interest in expanding the scope of the
definition to include entities that merely
have custody, we cannot make the
requested change. In some cases,
expanding the scope of the definition
would make multiple entities
concurrently responsible for fulfilling
the inventory, summary, and
repatriation process. Such an
interpretation is inconsistent with the
framework and legislative history of the
Act. Congress provided no indication
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 inventory,
summary, and repatriation provisions.
The phrase ‘‘possession or control’’ as
used in the Act connotes a singular
interest in human remains or cultural
items. Since 1993, these regulations
have defined the two elements of the
phrase only to differentiate between
physical location of the human remains
or cultural items (1993 Proposed Rule,
58 FR 31127). In the Act, having
possession or control means a museum
or Federal agency has an interest in
human remains or cultural items, or, in
other words, it may make
determinations about human remains or
cultural items without having to request
permission from some other entity or
person. 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 determinations
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.
Several comments expressed concerns
that collections loaned to other
institutions would fall outside the scope
of the Act and these regulations. We
reiterate that this is not the case. Even
where a collection is loaned to another
institution, the loaning entity is still
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required to comply with all the
requirements of the Act and these
regulations. Under these regulations, if
the entity that holds the loaned
collection meets the definition of a
museum, it would also have to comply
with certain requirements for the loaned
collection and any other human remains
or cultural items in its custody,
including a duty of care and reporting
obligations. We acknowledge that the
underlying intent of this request is to
ensure repatriation of all human
remains or cultural items subject to the
Act and that it is related to the concerns
expressed regarding compliance by
museums and Federal agencies. We
have made other revisions to address
these issues by requiring museums and
Federal agencies to share information
and increase efforts to complete
inventories, summaries, and repatriation
of human remains and cultural items,
even when they are in the custody of
other entities.
50. Comment: We received 16
comments on the definition of ‘‘receives
Federal funds.’’ Of that total, 15
comments suggested changes to the
definition while one comment
supported it. Four comments
recommended revising the phrase
‘‘institution or agency of a State or local
government’’ to ‘‘institution or State or
local government agency.’’ Two
comments considered the definition to
be overbroad or an overreach of Federal
authority. One comment expressed
constitutional concerns with the
impacts of this definition on private
property. One comment suggested
making the definition of receives
Federal funds apply to museums that
only received funds prior to November
16, 1990. Four comments sought
clarification on whether funds received
via specific Federal programs constitute
Federal funds under the Act and these
regulations.
DOI Response: We have made the
requested change to ensure consistency
between the definitions of museum and
receives Federal funds. We do not
consider this definition to be overly
broad or an overreach of Federal
authority. The regulations reflect
statutory intent as well as a robust area
of law surrounding the receipt of
Federal funds. We do not consider this
definition to unconstitutionally interfere
with private property rights. The Act
itself restricts activities that would
violate the Fifth Amendment’s
protection of property rights, though
such situations are rare. We do believe
that applying this definition to the
receipt of Federal funds prior to the
passage of the Act raises constitutional
concerns. Generally, the Fifth
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Amendment requires us to disfavor
retroactive interpretation of Federal
statutes, unless expressly provided for
by Congress. Congress did not provide
such an express instruction here.
Regarding the nature of funds received
through specific Federal programs, a
case-by-case determination as to the
nature of such funds is outside the
scope of this regulatory action. We
recommend seeking technical assistance
from the National NAGPRA Program on
specific Federal programs.
51. Comment: We received 27
comments on the definitions of
‘‘disposition’’ or ‘‘repatriation.’’ Of that
total, 11 comments requested we add
physical transfer to the definition.
Similarly, two comments requested we
add ‘‘the desired outcome’’ has
occurred, as confirmed by the lineal
descendant, Indian Tribe, or NHO. The
comments noted ‘‘[s]uch an outcome
can include, but is not limited to,
transfer of possession, reburial,
traditional use, loan agreements, etc.’’
One comment recommended including
‘‘and completes the physical transfer’’ at
the end of the definitions. Four
comments requested changes to ‘‘control
or ownership’’ in the definitions.
Alternatives suggested are ‘‘has the right
to repatriate human remains or cultural
items’’ or ‘‘has right of possession’’ or
‘‘has possession or control’’ of the
human remains or cultural items. Four
comments requested we replace
‘‘control or ownership’’ with ‘‘now has
control as a result of disposition or
repatriation.’’ One comment suggested
adding ‘‘relinquishes control’’ and
include legal transfer in the definition.
Three comments requested we define
‘‘disposition statement’’ and
‘‘repatriation statement.’’ One comment
questioned why disposition is defined
and used if repatriation encompasses all
transfers.
DOI Response: We have not made the
requested change to include physical
transfer in the definitions of disposition
or repatriation and have responded in
more detail in Comment 67. We have
accepted, in part, the suggested change
to ‘‘repatriation’’ and use ‘‘relinquish
possession or control.’’ We have
retained ‘‘ownership or control’’ in the
definition of disposition, as it is used in
the Act, and ensured throughout that
the order of the words in that phrase are
consistently applied.
There is no definition in the Act for
either disposition or repatriation. The
existing regulations use the single term
‘‘disposition’’ to mean ‘‘transfer of
control’’ which does not necessarily
equate to physical transfer in any, or all,
of the situations where the term applies.
This definition was added in 2007 to
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clarify the different procedures in the
regulations that effectuate the same
result: transfer of control over human
remains or cultural items by a museum
or Federal agency under the regulations
(2007 Final Rule, 75 FR 58585 and
58588). The existing definition does not
clarify if ‘‘transfer of control’’ means
legal transfer of control or physical
transfer of control or both. In practice
and as we advise, legal transfer of
control often occurs prior to physical
transfer of control, as physical transfer
often requires extensive planning for
transportation, scheduling, and funding.
We sought to clarify this in the draft
revisions for consultation in 2021 where
we provided two separate terms:
‘‘disposition’’ and ‘‘repatriation’’ and
neither term included physical transfer.
We received significant feedback
objecting to the implication that
museums and Federal agencies have a
legal interest in human remains or
cultural items which is conveyed or
transferred by disposition or
repatriation, as the Act does not
recognize museums or Federal agencies
have a lawful interest other than ‘‘right
of possession.’’ We revised the
definitions of ‘‘disposition’’ and
‘‘repatriation’’ to remove any
implication of a legal interest being
transferred.
These regulations provide definitions
for ‘‘disposition’’ and ‘‘repatriation,’’
and we do not believe it is necessary to
also define the related statement
because these statements are fully
explained in the regulatory text.
52. Comment: We received 11
comments suggesting changes to the
definition of ‘‘right of possession.’’ One
comment objected to the concept of a
right of possession as to any human
remains, funerary objects, or objects of
cultural patrimony. Two comments
objected to the inclusion of funerary
objects, particularly unassociated
funerary objects, in the definition. One
comment objected to the inclusion of
objects of cultural patrimony in the
definition. Six comments recommended
removing the term possession or control
from the definition and adding language
found in the explanation of the
proposed regulations. One comment
recommended describing right of
possession as possession or control,
ownership, or holding legal title. One
comment noted that determinations of
right of possession must incorporate
deference to Native American
traditional knowledge. One comment
asked for clarification on how fully free,
prior, and informed consent is proven.
DOI Response: We cannot make the
requested changes. The definition is
drawn directly from the Act itself,
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which provides for a right of possession
and applies it in some manner to human
remains, funerary objects, sacred
objects, and objects of cultural
patrimony. Moreover, we cannot delete
or alter the express meaning provided
by Congress.
We have not removed the term
possession or control because doing so
could cause confusion that might
prevent cultural items to which a
museum or Federal agency asserts a
right of possession from appearing on
summaries. Even where a museum or
Federal agency asserts a right of
possession, it must still comply with the
requirements of the Act and these
regulations for cultural items which are
in its possession or control. We have not
made ownership or legal title a
requirement because doing so would be
circular and presume the result that an
analysis of right of possession seeks to
determine. As this definition
intentionally hews closely to the Act,
we have not added any clarifying
language from the proposed regulations.
Instead, we reiterate here that a right of
possession does not include, for
example, consent given under duress or
because of bribery, blackmail, fraud,
misrepresentation, or duplicity on the
part of the recipient. Voluntary consent
may be shown by evidence that consent
was fully free, prior, and informed,
though those elements are not listed in
the definition itself. The type and extent
of such evidence will vary from case to
case.
While we agree that determinations of
right of possession must consider Native
American traditional knowledge, we
have not added that requirement to the
definition. In other places, we have
emphasized the need for deference to
Native American traditional knowledge
to ensure the rights of lineal
descendants, Indian Tribes, and NHOs
the Act recognizes. The addition of
‘‘according to Native American
traditional knowledge’’ in other
definitions is to ensure meaningful
consideration of this information during
consultation. Consultation, which is
required throughout the Act prior to any
determination, is how an Indian Tribe
or NHO shares the information needed
to identify a cultural item.
53. Comment: We received 11
comments requesting changes to the
definition of ‘‘sacred object.’’ Two
comments requested the addition of
family spiritual practices to
accommodate a broader definition of
traditional Native American religions.
One comment requested we replace
‘‘according to’’ with ‘‘as determined by’’
to strengthen the definition. Three
comments objected to the definition as
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it adhered too closely to the definition
in the Act and the existing regulations
and is too limiting by requiring the
object be needed, the adherents be
present-day, or the practice be for
observance or renewal. One comment
asked why the definition has been
revised at all from the existing
regulations and requested it be reverted
to the definition in the Act. One
comment objected to the definition as
over-broad, a reversal of Congressional
intent, and contrary to explicit
statements in the Congressional record
at the time of the Act’s passage.
One extensive comment stated that
the proposed regulations impermissibly
broaden the definition, contravenes
Congressional intent, and could create a
conflict with the Archaeological
Resources Protection Act (ARPA).
According to the comment, the
proposed definition, coupled with
explanatory language in the proposed
regulations, means that if a lineal
descendant, Indian Tribe, or NHO wants
an object, or a category of objects, then
that object or object category is, by
definition, a sacred object. By contrast,
Congress stated that a sacred object is an
object that was devoted to a traditional
religious ceremony or ritual when
possessed by a Native American and
must be used in the present-day in a
Native American religious ceremony.
Furthermore, according to the comment,
the impermissible broadening of the
term to include items that Congress did
not intend to be considered sacred
objects could conflict with ARPA
because most Native American items
removed from Federal lands are
archeological; non-NAGPRA
archeological resources removed from
Federal lands under ARPA must be
curated consisted with Federal curation
regulations; and those curation
regulations do not allow transfer or
reinterment of those archeological
resources.
DOI Response: We do not believe this
definition should include a separate
category of ‘‘spiritual practice’’ because
the language in the Act of ‘‘traditional
Native American religion’’ is broad
enough to encompass the examples in
the comment. We are unable to change
‘‘according to’’ to ‘‘as determined by’’ as
it would be inconsistent with the Act.
Museums and Federal agencies are
responsible for making determinations
under the Act and these regulations, but
must do so after consulting with lineal
descendants, Indian Tribes, and NHOs.
We have changed the order of the
sentence to reflect the importance of
Native American traditional knowledge
(which includes customs and traditions)
in this definition. We are unable to
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broaden the definition as requested by
some comments as those phrases
(needed and present-day) are the
required elements of the definition in
the Act. ‘‘Observance or renewal’’ were
incorporated into the definitions in the
1993 Proposed Rule to incorporate
language from the House and Senate
Committee reports relating to the Act
(58 FR 31122 and 58 FR 31126; 1995
Final Rule, 60 FR 62138). We have
revised the definition in the existing
regulations to clarify the definition by
removing the examples and simplifying
the sentence structure while retaining
the required elements of the definition
from the Act and the legislative history.
We disagree that the definition as
proposed is over-broad, a reversal of
Congressional intent, contrary to
explicit statements in the Congressional
record, or in conflict with ARPA. We
disagree that under the definition, any
object, or category of objects, that is
imbued with sacredness by a lineal
descendant, Indian Tribe, or NHO,
without anything more, would satisfy
the definition. All the elements
explicitly stated in the definition must
be satisfied for an object to be identified
as a sacred object. The elements of the
definition require that an object be:
• A specific ceremonial object,
• Needed by a traditional religious
leader,
• For present-day adherents to
practice traditional Native American
religion.
We also disagree that an object to be
interred cannot be a sacred object. A
specific object may be deemed to be a
sacred object if, based on Native
American traditional knowledge, in the
past, the object was ceremonially
interred as a traditional Native
American religious practice, the object
was subsequently disinterred, and
today, it is needed by a traditional
Native American religious leader to
renew the ceremonial interment of the
specific object by present-day adherents.
We agree with the comment that
when NAGPRA was passed, Congress
made clear that not all objects could be
deemed ‘‘sacred’’ or ‘‘cultural
patrimony.’’ However, this comment
reinforces the need for deference to
Native American traditional knowledge
to ensure the rights of lineal
descendants, Indian Tribes, and NHOs
the Act recognizes. The addition of
‘‘according to Native American
traditional knowledge’’ in this
definition is to ensure meaningful
consideration of this information during
consultation.
We believe this addition to the
various definitions of cultural items will
lead to more informed decision-making
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and help to avoid the lengthy and costly
delays in disposition or repatriation. In
crafting the definitions of cultural items,
Congress clearly intended that the
definitions ‘‘will vary according to the
[T]ribe, village, or Native Hawaiian
community’’ (S. Rpt. 101–473, at 4).
Consultation, which is required
throughout the Act prior to any
determination, is how an Indian Tribe
or NHO shares the information needed
to identify a cultural item. As we noted
in the 1995 Final Rule, ‘‘[i]dentification
of specific sacred objects or objects of
cultural patrimony must be done in
consultation with Indian [T]ribe
representatives, [NHOs,] and traditional
religious leaders since few, if any,
museums or Federal agencies have the
necessary personnel to make such
identifications’’ (60 FR 62148).
54. Comment: We received one
comment suggesting changes to the
definition of ‘‘summary’’ to include
associated funerary objects.
DOI Response: We cannot add
associated funerary objects to a
summary as that would be inconsistent
with the Act. An inventory pertains to
human remains and associated funerary
objects (25 U.S.C. 3003(a)), while a
summary pertains to ‘‘unassociated
funerary objects, sacred objects, or
objects of cultural patrimony’’ (25
U.S.C. 3004(a)).
55. Comment: We received five
comments suggesting changes to the
definition of ‘‘traditional religious
leader.’’ All five comments requested
broadening the definition so as not to
limit it to individuals who are
responsible or who hold a leadership
role. A broader definition will allow
Indian Tribes or NHOs to identify
traditional religious leaders. One
comment requested we update the
words used in the term itself, as they are
unnecessary, condescending, and
outdated.
DOI Response: As noted in the
comments, this definition is not in the
Act but the term is used in the Act in
the definition of sacred object, the
consultation requirements for
inventories and summaries, and the
composition of the Review Committee.
In the proposed regulations, we
intended to place the authority for
identifying a traditional religious leader
in the hands of an Indian Tribe or NHO.
We understand the term may be
offensive but given its use in the Act we
cannot change the term itself. We can,
and have, modified the definition to
ensure a lineal descendant, as well as an
Indian Tribe or NHO, can identify any
individual that the lineal descendant,
Indian Tribe, or NHO feels is the
appropriate individual to serve in this
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role. This addition of lineal descendant
aligns with statements made by the
Department in the 1995 Final Rule
regarding the role of ‘‘a member of an
Indian Tribe’’ in the existing definition
of a traditional religious leader (see 60
FR 62138, 60 FR 62151, and 60 FR
62155).
56. Comment: We received seven
comments suggesting changes to the
definition of ‘‘Tribal lands.’’ Some of the
comments objected to the deletion in
the proposed regulations of a sentence
concerning application of the Fifth
Amendment to the Constitution to
private land, reasoning that the
Department was proposing to exclude
private land within the exterior
boundaries of a reservation from the
application of the Act and these
regulations. Another comment was
concerned that the definition does not
include Tribal trust lands outside
reservation boundaries. Other comments
suggested the addition of an amendment
to the regulatory definition,
incorporating our clarification in the
preamble to the proposed regulations
that, under Supreme Court precedent,
the boundaries of Tribal trust land
constituted an informal reservation.
DOI Response: The Act defines
‘‘Tribal land’’ as ‘‘(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 Hawai1i into the Union (73 Stat. 4),
including ‘available lands’ and
‘Hawaiian home lands’ ’’ (25 U.S.C.
3001(15)). We decline to add Tribal trust
land to the common statutory definition
in the regulations because of the
possibility of unforeseen consequences
for Tribal jurisdiction. We do, however,
agree with the comments that the plain
language of the definition includes
private land within the exterior
boundaries of the reservation (McGirt v.
Oklahoma, 140 S. Ct. 659 (2019)). We
also agree that Tribal trust land outside
the exterior boundaries of a formal
reservation would, under the proposed
regulations and these regulations, be
considered an ‘‘informal reservation,’’
still qualifying as Tribal land for
purposes of NAGPRA (Oklahoma Tax
Comm’n v. Citizen Band Potawatomi
Indian Tribe of Oklahoma, 498 U.S. 505,
511 (1991)).
57. Comment: We received three
comments requesting clarification to the
definition of ‘‘United States.’’ All three
comments wanted to understand how
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the Act and the regulations apply in the
U.S. territories.
DOI Response: The Act and these
regulations only apply to the 50 states
and the District of Columbia. Unlike
other statutes referenced by one of the
comments, the Act does not provide a
definition of the United States that
includes its territories and possessions.
Any change to this limitation would
require Congressional action.
D. Section 10.3 Cultural and
Geographical Affiliation
58. Comment: We received 27
comments on § 10.3, generally. Of that
total, most comments generally
supported the elimination of the term
‘‘culturally unidentifiable.’’ A few
comments specifically objected to the
removal of ‘‘culturally unidentifiable’’
and the use of ‘‘Native American
traditional knowledge’’ and
‘‘geographical affiliation’’ because of
concerns that this would expand the
scope of what must be repatriated.
Three comments requested more direct
participation by Indian Tribes and
NHOs in determining cultural and
geographical affiliation and one
comment requested that the Secretary
determine cultural and geographical
affiliation.
DOI Response: These regulations do
not use the term ‘‘culturally
unidentifiable.’’ Because Congress
anticipated that not all human remains
could be determined to have cultural
affiliation, Congress required that the
Review Committee develop specific
actions for the disposition of any human
remains with no cultural affiliation and
thereby ensured that all Native
American human remains would be
subject to the Act. For more on the
development of these regulations, see
2007 Proposed Rule (72 FR 58582) and
2010 Final Rule (75 FR 12378). The
inclusion of Native American traditional
knowledge as a type of information that
can identify cultural affiliation is
consistent with Congressional intent
and ensures the stated purpose of these
regulations for deference to lineal
descendants, Indian Tribes, and NHOs
in determinations of cultural affiliation.
Other revisions to this section, based on
specific comments, are explained below.
In response to the noted objections,
we disagree with their limited
characterization of the scope of what
must be repatriated. To forego the use of
geographical information and Native
American traditional knowledge to limit
the number of human remains or
cultural items that may be subject to
repatriation is inconsistent with the Act,
which only provides three exceptions to
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the requirement for expeditious
repatriation (see 25 U.S.C. 3005).
59. Comment: We received 11
comments generally on the paragraph in
the proposed regulations under § 10.3
on Information for cultural affiliation (in
the final regulations, this is renumbered
§ 10.3(a) and retitled Step 1: Collect
information available.). Most comments
supported the changes to the types of
information, and a few comments
requested additional changes to types of
information.
DOI Response: We cannot make the
requested changes to prioritize the types
of information or assign them relative
values (1995 Final Rule, 60 FR 62156).
We have repeated the exact types of
information used for cultural affiliation
as provided by Congress in alphabetical
order and added Native American
traditional knowledge to call out this
newly defined type of expert opinion.
60. Comment: We received 23
comments on the paragraph in the
proposed regulations under § 10.3 on
Cultural affiliation (in the final
regulations, this is incorporated into the
introductory paragraph of § 10.3). The
comments objected to the use of
‘‘preponderance of the evidence’’ rather
than ‘‘reasonable’’ in this paragraph.
Most of these comments referenced the
language of the Act, specifically the
difference between ‘‘reasonably’’ and
‘‘reasonable belief’’ at 25 U.S.C. 3001(2),
3002(a)(2)(C), 3003(d)(2)(C), on the one
hand, and ‘‘preponderance of the
evidence’’ at 25 U.S.C. 3001(3)(B),
3002(a)(2)(C)(2), 3005(a)(4). One
comment asked what ‘‘reasonable’’
means.
DOI Response: We have replaced ‘‘a
preponderance of the evidence’’ with
‘‘reasonable.’’ As stated in the proposed
regulations, the Department reiterates
that ‘‘a preponderance of the evidence’’
is a similar standard to a
‘‘reasonableness’’ requirement and both
standards require a ‘‘more likely than
not’’ assessment (87 FR 63216).
However, we agree with the comments
that these terms have different
connotations and that ‘‘preponderance
of the evidence’’ has been misused and
misapplied in determining cultural
affiliation. We agree with the comments
that the Act envisioned a simple and
collaborative procedure to determine
cultural affiliation through consultation
with Indian Tribes and NHOs. Only
when a museum or Federal agency was
unable to determine cultural affiliation
would an Indian Tribe or NHO need to
demonstrate cultural affiliation through
a preponderance of the evidence. As
this section of the regulations describes
the initial procedure for determining
cultural affiliation, we have revised it to
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only reflect the requirement to
reasonably determine cultural
affiliation. In response to one comment,
‘‘reasonable’’ means both the procedure
to make a determination and the
determination itself are ‘‘in accordance
with reason,’’ ‘‘not extreme or
excessive,’’ and ‘‘moderate, fair’’
(https://www.merriam-webster.com/
dictionary/reasonable, accessed 12/1/
2023).
61. Comment: We received 41
comments on the paragraph in the
proposed regulations under § 10.3 titled
Geographical affiliation (in the final
regulations, this is removed). Of that
total, two comments objected to
broadening affiliation to include
geography alone. One comment
appreciated the more inclusive term but
was concerned about making
connections only based on geography.
One comment requested that
archaeological and historical
knowledge, especially of disruptions of
indigenous territories, be included as
key pieces of evidence for establishing
geographical affiliation. Six comments
supported the paragraph as proposed.
A total of 33 comments requested the
paragraph be removed in its entirety,
although these comments were
supportive of clarifying that cultural
affiliation could be based on geography
alone. Some comments were concerned
that geographical affiliation would leave
out Tribal knowledge and oral history.
One comment was concerned that as
proposed, ‘‘geographical affiliation’’
would disenfranchise Indian Tribes
under certain circumstances and
provides fewer options than are
currently available by restricting
evidence of geographical affiliation.
Most of the comments expressly
requested that geographical affiliation
be incorporated into cultural affiliation.
As proposed, the comments expressed
concern that geographical affiliation
would not simplify repatriation but
bring new complications and loopholes
to the process. The comments requested
the final regulations should develop an
efficient and less burdensome procedure
and provide that, in the absence of other
evidence, cultural affiliation need only
include one type of information that
reasonably points to a shared
relationship between an Indian Tribe
and an identifiable earlier group.
DOI Response: We have removed the
paragraph proposed at § 10.3 titled
Geographical affiliation. We have made
related changes to other paragraphs in
§ 10.3 and renamed the entire section.
We have revised the text in the final
regulations to reflect a step-by-step
procedure for determining cultural
affiliation. We have required in the step-
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by-step processes for disposition under
§ 10.7 or repatriation under §§ 10.9 and
10.10 that when cultural affiliation is
not determined, the museum or Federal
agency must briefly describe the
information considered under § 10.3(a)
and the criteria identified under
§ 10.3(b) to explain how the
determination was made. We have made
clear in the definition of cultural
affiliation, this section, and the step-bystep processes for disposition or
repatriation that cultural affiliation must
be identified either clearly by the
information available or reasonably by
the geographic origin or acquisition
history of the human remains or cultural
items.
The intent of these revisions is to
realign the geographic analysis, applied
previously to culturally unidentifiable
human remains in the existing
regulations, as part of the cultural
affiliation process. The same methods,
analyses, sources, and evidence may
inform cultural affiliation
determinations based on geographical
information as have been used in the
past and as discussed in the proposed
rule. We agree with the voluminous
comments that described museum and
Federal agency practices as overly
expansive in designating human
remains and associated funerary objects
as culturally unidentifiable. We believe
in most cases, sufficient information on
geographic origin and acquisition
history exists and can be used to either
clearly or reasonably identify Indian
Tribes or NHOs with cultural affiliation.
62. Comment: We received four
comments supporting the paragraph in
the proposed regulations under § 10.3
titled Multiple affiliations (in the final
regulations, this is renumbered § 10.3(d)
and retitled Joint disposition or
repatriation). Many other comments
suggested changing the title of the
paragraph to Joint disposition or
repatriation.
DOI Response: We have accepted and
adopted the suggested change in the
title of this paragraph.
63. Comment: We received 19
comments suggesting changes to the
paragraph in the proposed regulations
under § 10.3 titled Closest affiliation (in
the final regulations, this is renumbered
§ 10.3(e) and retitle Competing claims or
requests). One comment objected to
museums and Federal agencies making
determinations on the closest affiliation.
One comment objected to the priority
order for NHOs as it was too complex
and may result in a family or small
organization having a priority over the
Office of Native Hawaiian Affairs. Two
comments asked if the enumerated list
reflected a priority and if two Indian
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Tribes or NHOs might both be in a
single category. One comment requested
guidance on how closest affiliation
would be determined if one Tribe’s
claim is based on geographic
information and another Tribe’s claim is
based on cultural practices. One
comment requested it be clear that
museums and Federal agencies must
determine the Indian Tribe with the
closest cultural affiliation and
continually notify that Indian Tribe,
regardless of who might make a claim or
a request. Several comments requested
the regulations be revised to bring all
the priority orders together into one
provision and provided specific redline
changes to the proposed text.
DOI Response: We cannot change who
is responsible for making
determinations on the closest cultural
affiliation when, and only when, there
are competing claims or requests. This
is required by the Act at 25 U.S.C.
3002(a) and 3005(e). Museums and
Federal agencies are responsible for
making determinations under the Act
and these regulations, but must do so
after consulting with lineal descendants,
Indian Tribes, and NHOs. Based on
consultation with the Native Hawaiian
Community, it was our intention to give
priority to a family or small organization
over the Office of Native Hawaiian
Affairs when, and only when, there are
competing claims or requests. The
enumerated lists are intended to
identify a priority order, and it is
possible that two Indian Tribes or NHOs
might have the same priority. The
priority order distinguishes between
different kinds of cultural affiliation and
places affiliation based on geographic
information alone below other kinds of
cultural affiliation. There is no
obligation for a museum or Federal
agency to determine the Indian Tribe or
NHO with the closest cultural affiliation
unless and until there are competing
claims or requests. All Indian Tribes or
NHOs with cultural affiliation have an
opportunity to make claims or requests
prior to a disposition or repatriation
statement.
To avoid repetition and to clarify
when closest cultural affiliation must be
determined, we have combined
paragraph (c)(2) in § 10.3 in the
proposed regulations titled Competing
claims or requests with paragraph (d)
titled Closest affiliation to create a new
paragraph § 10.3(e) Competing claims or
requests. In conjunction with the
changes to § 10.3 described above, we
have added the standard of
‘‘preponderance of the evidence’’ to this
paragraph on completing claims or
requests. We cannot accept the
suggestion to bring the priority orders
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together in this paragraph because the
priority order established in the Act for
Federal or Tribal lands (25 U.S.C. 3002)
is broader than the priority order for the
‘‘closest cultural affiliation’’ identified
here. Where appropriate, we have
referred to this paragraph in §§ 10.7,
10.9, and 10.10.
E. Subparts B and C
64. Comment: We received 53
comments on the regulatory steps for
consultation (Initiate consultation and
Consult with requesting parties) in
§§ 10.4, 10.9, and 10.10. Three
comments supported the requirement
for museums and Federal agencies to
initiate consultation in these
paragraphs. The largest number of
comments (15) requested we remove the
requirement for consulting parties to
submit a written request to consult. In
addition, 11 comments requested that
the invitation to consult include a clear
statement that sensitive information will
not be requested, but if shared, the
consultation record will be protected
from disclosure ‘‘to any person for any
reason.’’ Five comments requested
changes to the two terms ‘‘consulting
parties’’ and ‘‘requesting parties’’ while
one comment requested adding to the
list of ‘‘consulting parties.’’ Five
comments requested deference to Indian
Tribes or NHOs on the timelines for
consultation and one comment
requested deference to documentation
submitted by Indian Tribes or NHOs
during consultation. Four comments
requested changes to ensure
consultation is not cutoff with
publication of a notice. Three comments
questioned the use of good-faith effort in
these paragraphs. Two comments
questioned how consultation can
proceed where consensus cannot be
reached. Two comments recommended
adding an upfront fee payment for
initiating consultation, like the Federal
Communications Commission. One
comment stated that consultation is not
streamlined or simplified in these
regulations.
DOI Response: We have removed the
requirement for a consulting party to
submit a written request to consult and,
consequently, the cutoff for requests to
consult before publication of a notice.
Correspondingly, we have removed the
requirement for a response to the
request to consult within 10 days. As
noted in the proposed rule, the written
request to consult was a necessary
precursor to require a museum or
Federal agency to respond by a certain
date. While a written request to consult
is no longer a requirement, we would
recommend a consulting party submit a
written request to consult to ensure
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there is a clear record in case the
museum or Federal agency does not
respond.
As noted in Comment 5, we cannot
dictate how a museum or Federal
agency requests or records sensitive
information it receives during
consultation. We can, and have,
specifically limited the information
needed to comply with these
regulations, and we encourage lineal
descendants, Indian Tribes, and NHOs
to request that museums and Federal
agencies ensure that information of a
particularly sensitive nature is not made
available to the public, pursuant to
otherwise applicable law. Since 1995,
the Department has recommended that
museum or Federal officials ensure that
sensitive information does not become
part of the public record by not
collecting, or writing down, such
information in the first place (1995
Final Rule, 60 FR 62154). We
recommend that in a response to an
invitation to consult, lineal
descendants, Indian Tribes, and NHOs
stipulate their requirements for
protecting sensitive information shared
during consultation, such as prohibiting
any audio or video recording of
consultation, requiring use of a specific
note-taker or transcriptionist, or
conducting consultation in a separate
facility with limited attendance.
We have made clarifying edits to the
paragraphs in §§ 10.4, 10.9, and 10.10,
including the requested change from
‘‘requesting parties’’ to ‘‘consulting
parties’’ throughout. We note that
consulting parties are those with
potential cultural affiliation, but this
should not impact the role of removed
and aboriginal land Indian Tribes as
consulting parties. Based on
geographical information, removed and
aboriginal land Indian Tribes are those
with potential cultural affiliation. We
have not added a requirement for
payment of an upfront fee in the
initiation of consultation. We
recommend that in a response to an
invitation to consult, lineal
descendants, Indian Tribes, and NHOs
stipulate their requirements for
conducting consultation, including any
required financial support.
In response to other comments, we
have made changes to the paragraphs in
§§ 10.4, 10.9, and 10.10 to correspond to
changes in the definition of consultation
which directly addresses comments on
deference, good-faith, and reaching
consensus. We have changed
recommendations to preferences on the
timeline and method for consultation,
but we cannot require deference in this
instance because the timeline may be
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dictated by other requirements in the
regulatory processes.
65. Comment: We received 20
comments on the regulatory steps for
submitting a notice for publication and
for receiving and considering a claim for
disposition or a request for repatriation
in §§ 10.7, 10.9, and 10.10. Four
comments supported the timeline for
the National NAGPRA Program to
approve or return a notice submission
but requested that a timeline be added
requiring museums, Federal agencies, or
DHHL to submit a revised notice. Five
comments requested clarification on the
statements in §§ 10.7 and 10.10 that any
claim or request received no later than
30 days after publication of a notice
must be considered, noting that the
preceding sentence in both sections
seemed contradictory since any claim or
request must be received before a
disposition or repatriation statement is
sent. One comment requested
grammatical edits to clarify the criteria
for a claim for disposition or request for
repatriation. Seven comments in one
submission repeatedly objected to the
30-day timeframe for lineal
descendants, Indian Tribes, or NHOs to
submit claims or requests following a
notice publication in §§ 10.7, 10.9, and
10.10. On the other hand, one comment
stated submission of claims or requests
should be limited to the 30 days after
publication notice and requests received
after that date should not be considered.
One comment disagreed with the
provisions for claims or requests to be
received before publication of a notice
while another comment felt these
provisions would ensure more
flexibility for lineal descendants, Indian
Tribes, and NHOs.
DOI Response: We do not intend to
impose deadlines on lineal descendants,
Indian Tribes, or NHOs to submit claims
for disposition or requests for
repatriation. Under these regulations, a
notice is required to identify the date
(30 days from the date of publication)
after which a disposition or repatriation
statement may be sent to a claimant or
a requestor. We intended to clarify in
these provisions that any claim or
request submitted during that 30-day
period must be considered since a
disposition or repatriation statement
may be sent immediately after that date.
With the disposition or repatriation
statement, the museum or Federal
agency divests itself of any interest in
the human remains or cultural items
and cannot accept or consider a request
from any other party.
Therefore, while there is no timeline
for lineal descendants, Indian Tribes,
and NHOs to act, a failure to do so
before a disposition or repatriation
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statement is sent is an irrevocable
waiver of any right to make a claim or
a request (see § 10.1(g) and Comment
20). For example, once a notice of any
kind publishes in the Federal Register,
there is a 30-day period for any party to
make a claim for disposition or a request
for repatriation. On day 31, if a
disposition or repatriation statement is
sent to a claimant or requestor, any
additional claims or requests will not be
considered.
We have added a timeline (14 days or
two weeks) for a museum or Federal
agency to resubmit a notice that is
returned to them under §§ 10.7, 10.9, or
10.10. We have adjusted the timeline
(from 15 days to 21 days) for the
National NAGPRA Program to accept or
return a notice. This change is related to
the change in § 10.1(f) from business
days to calendar days and does not
change the overall timeline (3 weeks).
We have removed the sentence stating
that any claim or request received no
later than 30 days after publication of a
notice must be considered. While
accurate, we understand the confusion
this sentence causes, especially
considering the objections to the 30-day
deadline. We have made grammatical
changes to the criteria to ensure clarity.
We have not made changes to the date
of a claim or request received before
publication of a notice (same date the
notice was published). We agree that
this provides flexibility for lineal
descendants, Indian Tribes, and NHOs.
In addition, we feel this provides the
opportunity for lineal descendants,
Indian Tribes, and NHOs to dictate the
timeline, as much as they can, after
publication of a notice of any kind. For
example, in a claim for disposition or a
request for repatriation, the lineal
descendant, Indian Tribe, or NHO could
request that the disposition or
repatriation statement be sent on day 31
after publication of any kind. If any
competing claims or requests are
received during the 30-day period, this
request could not be accommodated. If
no competing claims or requests are
received, nothing in these regulations
would prevent the disposition or
repatriation statement from being sent
on day 31. In addition to competing
claims or requests, other factors outside
of these regulations, such as legal
review of the statement or deaccession
policies, may require additional time
before sending the disposition or
repatriation statement.
If no competing claims or requests are
received, 31 days is the minimum
amount of time between any kind of
notice publication and sending a
disposition or repatriation statement.
Under §§ 10.7 and 10.10, the maximum
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amount of time between notice
publication and sending a disposition or
repatriation statement depends on when
a claim for disposition or request for
repatriation is received. No later than 90
days after responding to a claim for
disposition or a request for repatriation,
a disposition or repatriation statement
must be sent.
66. Comment: We received 22
comments on the regulatory steps for
disposition or repatriation under
§§ 10.7, 10.9, or 10.10. Of that total, 13
comments requested that the regulations
require documentation or notification of
physical transfer after a disposition or
repatriation statement is sent. Four
comments made a similar request for
documentation of the discretionary
physical transfer or reinterment of
human remains or cultural items under
§§ 10.7 or 10.10 specifically so, in the
future, Indian Tribes or NHOs with
cultural affiliation would be able to
request the return of those human
remains or cultural items. Three
comments requested disposition or
repatriation statements be published in
the Federal Register specifically to
further support the reviewability of
disposition or repatriation statements by
Federal agencies. On the other hand,
one comment requested a ‘‘paper
transfer’’ procedure be developed or
explained for Indian Tribes or NHOs
who do not have access to a curation
facility or other means to physically and
honorably receive human remains or
cultural items. One comment requested
clarification as to what kinds of
agreements might be entered into after
a disposition or repatriation statement is
sent. An additional 14 comments made
a similar request to include physical
transfer in the definitions of
‘‘disposition’’ or ‘‘repatriation’’ (see
Comment 51).
DOI Response: We have not made the
requested changes related to physical
transfers or reinterments for several
reasons. We have made changes to the
definition of repatriation and to what is
required after a disposition or
repatriation statement is sent.
First, there is a need to balance the
requests for additional documentation
and notification with the protection of
sensitive information. Any document
submitted to the National NAGPRA
Program is generally subject to release
under the Freedom of Information Act.
Requiring documentation of physical
transfers or reinterments to be submitted
to the National NAGPRA Program or
published in the Federal Register comes
with added risks of disclosure of
sensitive information. As we advise
museums and Federal agencies, the best
way to prevent sensitive information
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from being released is to not write it
down in the first place.
Second, as discussed in the response
to comments on the definitions in
Comment 51, it is difficult for these
regulations to require physical transfer
either as a part of or after the regulatory
processes for disposition or repatriation.
The term physical transfer is used in
these regulations to provide for an
action that, as desired by a Tribe or
NHO, may occur, but is not required to
occur, after sending a disposition or
repatriation statement. While we only
received one comment indicating this,
we know that many lineal descendants,
Indian Tribes, and NHOs prefer to not
complete physical transfer immediately
or at all. Therefore, as in the proposed
regulations, we have retained a
separation between the disposition or
repatriation statements and physical
transfer, and we have not attached any
requirements for reporting on physical
transfer in these regulations.
Documentation of physical transfer is
required but is not sent to the National
NAGPRA Program or published in the
Federal Register.
Third, the Act does not provide for or
require the involvement of the Secretary
in the physical transfer or in any other
procedure after publication of a notice.
The proposed regulations provided, and
these regulations retain, a new
requirement for the Secretary to receive
copies of disposition or repatriation
statements. This new requirement is
based on the 2010 Government
Accountability Office report on the
implementation of the Act, and the
Department will retain these documents
with the other compliance documents in
the disposition or repatriation
processes. However, we do not believe
the Department should collect any
additional documentation on the
physical transfers or publish these
disposition or repatriation statements.
We affirm our response to consultation
in 2021 that publication in the Federal
Register would be costly, inefficient,
and of little relative value. The purpose
of publishing a notice under the Act and
these regulations is to allow additional
parties to come forward. Disposition or
repatriation statements are the final step
in regulatory processes and recognize
the rights of a lineal descendant, Indian
Tribe, or NHO in the human remains or
cultural items. These statements cannot
be challenged or revoked. Publication of
those statements might lead to
confusion about which type of
publication is appealable. Although not
incorporated into the regulatory text, the
National NAGPRA Program will record
information on disposition or
repatriation statements it receives from
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both museums and Federal agencies and
will provide that information in its
databases or upon request.
The Act provides very little
instruction for this significant and
important part of the processes. The
section of the Act titled ‘‘Repatriation’’
(25 U.S.C. 3005) focuses on the
circumstances under which human
remains or cultural items must be
‘‘expeditiously returned’’ after a request
from a lineal descendant, Indian Tribe,
or NHO. The Act requires that the return
of human remains or cultural items be
‘‘in consultation with the requesting
lineal descendant or [T]ribe or
organization to determine the place and
manner of delivery of such items’’ (25
U.S.C. 3005(a)(3)). Congressional reports
state that after a notice, a museum or
Federal agency must ‘‘make
arrangements to return such items if the
appropriate [T]ribe made a request’’ (H.
Rpt. 101–877, at 11) and must allow for
‘‘mutually acceptable alternative[s] to
repatriation’’ (S. Rpt. 101–473, at 8).
The existing regulations refer to
‘‘transfer custody’’ of human remains or
cultural items from Federal land. For
holdings or collections of human
remains or cultural items with cultural
affiliation, only ‘‘repatriation’’ is used,
as in consultation must occur on the
place and manner of the repatriation
and the content and recipients of all
repatriations must be permanently
documented. Under the 2010
regulations, ‘‘transfer control’’ is used
repeatedly to describe the process for
culturally unidentifiable human
remains.
We sought to clarify this in the draft
revisions for consultation in 2021 where
we provided two separate terms:
‘‘disposition’’ and ‘‘repatriation’’ and
neither term included physical transfer.
Transfer and physical transfer were
used elsewhere after disposition or
repatriation statements. In 2021, we did
not receive any related comments on
physical transfer. In the proposed
regulations, we did not address the
separation of disposition or repatriation
from physical transfer and retained the
procedures for physical transfer that, as
desired by a Tribe or NHO, may occur,
but are not required to occur, after
disposition or repatriation (2022
Proposed Rule, 87 FR 63246, 87 FR
63250, and 87 FR 63255).
We appreciate and understand the
significance of physical transfer or other
desired outcomes for lineal
descendants, Indian Tribes, and NHOs
after museums and Federal agencies
complete the regulatory processes by
sending a disposition or repatriation
statement. We do not intend these
regulations to indicate that completion
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of the regulatory processes is the end
goal for lineal descendants, Indian
Tribes, NHOs, museums, or Federal
agencies. We know that for many lineal
descendants, Indian Tribes, and NHOs,
this work is not finished until their
ancestors and other relatives are home
or at rest. For many museums and
Federal agencies, this work is not
finished until the holding or collection
is in the hands of its rightful caretakers.
However, we also know that the
desired outcome of the disposition or
repatriation processes vary greatly
among lineal descendants, Indian
Tribes, and NHOs. If or when physical
transfer occurs depends on many
factors, including spiritual, cultural, or
religious observances, which cannot and
should not be dictated by a regulatory
process. It is, therefore, difficult for
these regulations to require physical
transfer either as a part of or after the
regulatory processes. In response to the
request for clarification on agreements
after disposition or repatriation, any
kind of agreement could occur after a
disposition or repatriation statement is
sent. We provided this language from
the Act to ensure it was clear that once
a lineal descendant, Indian Tribe, or
NHO holds all rights and interests in the
human remains or cultural items, what
comes next is not in any way dictated
by these regulations. We have removed
‘‘the care or custody’’ to ensure there is
no implied limitation on such an
agreement. Examples of agreements after
disposition or repatriation include
curation agreements, agreements to
reinter human remains or cultural items,
or agreements to analyze human
remains or cultural items. The terms of
the agreement, however, are at the
discretion of the lineal descendant,
Indian Tribe, or NHO.
67. Comment: We received 20
comments on the regulatory steps for or
after disposition or repatriation
statements in §§ 10.7, 10.9, and 10.10.
Two comments related to the
requirements for consultation on the
care, custody, and physical transfer of
human remains or cultural items. One
comment requested that we add that
museums or Federal agencies cannot
dictate care, custody, or physical
transfer before or after a disposition or
repatriation statement is sent. One
comment recommended based on
experience that consultation on care,
custody, or physical transfer only occur
after a disposition or repatriation
statement is sent. One comment
requested that the regulations require
museums and Federal agencies to pay
for care and physical transfer of human
remains or cultural items. The other
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comments suggested the following
language changes:
• Replace physical ‘‘transfer’’ with
physical ‘‘repatriation;’’
• Replace ‘‘requestors’’ with
‘‘claimants;’’
• Replace ‘‘most appropriate
claimant/requestor’’ with ‘‘closest
cultural affiliation claimants’’ and cite
to § 10.3 of this part;
• Replace disposition or repatriation
‘‘statements’’ with ‘‘documents;’’
• Replace ‘‘care, custody’’ with ‘‘the
appropriate duty of care, custody;’’ and
• Replace ‘‘delivery’’ with ‘‘escort’’ to
be sensitive to the nature of human
remains and cultural items.
DOI Response: We have made the
requested changes to require a museum
or Federal agency to consult with a
requestor on custody and physical
transfer after a disposition or
repatriation statement is sent. Nothing
under the Act or these regulations allow
a museum or Federal agency to dictate
any action after a disposition or
repatriation statement is sent.
Regardless of the disposition or
repatriation statement, a museum or
Federal agency is obligated to exercise
a duty of care for human remains or
cultural items in its custody or in its
possession or control under § 10.1(d)
and to defer to lineal descendants,
Indian Tribes, and NHOs. We cannot
require museums or Federal agencies
pay for care or physical transfer.
We have not changed ‘‘physical
transfer’’ for reasons explained in
Comment 66 on the intentional
difference between disposition or
repatriation and physical transfer. We
have not changed ‘‘requestor’’ to
‘‘claimants.’’ We have intentionally
used the terms ‘‘claim’’ and ‘‘claimant’’
to refer to the disposition process in
Subpart B and ‘‘request’’ and
‘‘requestor’’ to refer to the repatriation
process in Subpart C. We cannot make
the requested change from ‘‘most
appropriate claimant/requestor’’
because while the Indian Tribe or NHO
with the closest cultural affiliation
under § 10.3 is one possible most
appropriate claimant/requestor,
competing claims for disposition or
repatriation might involve lineal
descendants or other Indian Tribes with
a priority for disposition. We have not
changed statements to documents.
Statements are used in limited instances
in these regulations and indicate a
specific kind of document. Document is
used more broadly.
We have removed ‘‘care’’ in any use
outside of the duty of care. We have
revised the documentation of physical
transfer to not require any specific
information. While physical transfer
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must be documented, it is up to the
lineal descendant, Indian Tribe, or NHO
to dictate what the documentation
should contain to ensure protection of
sensitive information.
F. Section 10.4 General
68. Comment: We received seven
comments requesting changes to
Subpart B-Protection of human remains
or cultural items on Federal or Tribal
lands. Six of these comments requested
that the regulations acknowledge the
application of the Act to human remains
or cultural items removed from Federal
or Tribal lands that are subject to the
disposition and trafficking provisions of
the Act. The comments request a
procedure by which Indian Tribes can
report human remains and cultural
items obtained in violation of the Act
and send a clear signal to third parties
that it is a crime to sell human remains
or cultural items under NAGPRA and
other statutes, such as the
Archaeological Resources Protection Act
(ARPA). The comments specifically
request that references to human
remains and cultural items ‘‘on’’ Federal
or Tribal lands be expanded to human
remains or cultural items ‘‘located on or
removed from’’ such lands. One
comment requested stronger
requirements in the regulations to
protect Tribal cultural heritage and
sacred sites from theft or damage on
Federal lands.
DOI Response: We cannot add the
requested procedures to these
regulations. We agree that the criminal
provisions of the Act (18 U.S.C. 1170(a)
and (b)) apply to human remains or
cultural items as defined in the Act and
these regulations. The Secretary and the
Department do not have jurisdiction for
implementing those provisions of the
Act and cannot add them to these
regulations. Any human remains or
cultural items located on or removed
from Federal or Tribal lands after
November 16, 1990, are subject to these
regulations under Subpart B. If human
remains or cultural items are obtained
illegally from Federal or Tribal lands,
the processes described in these
regulations do not apply until the
human remains or cultural items are
recovered by Federal law enforcement
agents and any criminal procedures
have concluded. The title of Subpart B
highlights the procedures in §§ 10.4,
10.5, and 10.6 that provide protection to
human remains or cultural items that
are located on Federal or Tribal land.
The disposition procedures in § 10.7
apply to any human remains or cultural
items that are removed from Federal or
Tribal land. We do not believe changing
‘‘on’’ to ‘‘located on or removed from’’
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will have any impact on the application
of these regulations. We are unable to
add any requirements to these
regulations that exceed the requirements
provided in the Act for protection of
human remains or cultural items on
Federal or Tribal land.
69. Comment: We received 15
comments on § 10.4, generally. Of that
total, 14 comments suggested changes to
the section while one comment
supported it as proposed. Ten
comments requested a separate and
simplified procedure for boarding
school cemeteries on Federal lands,
such as (1) consult, (2) develop a plan
of action, and (3) disinter, with no
requirement for an ARPA permit. One
comment objected to the revisions and
found the text confusing and unclear.
One comment stated that these
regulations should not require actions
by Indian Tribes on Tribal lands. One
comment suggested removing this
section entirely and relying on the
provisions of the National Historic
Preservation Act (NHPA) because
‘‘[t]here is no need for a plan of action
independent of that already stipulated
for historic preservation requirements in
the NHPA’’ (see NPS–2022–0004–0116).
One comment requested a procedure for
Indian Tribes to make requests for a
plan of action or comprehensive
agreement, to report non-compliance of
Federal agencies, and to file suit under
the Administrative Procedures Act.
DOI Response: We cannot make the
requested change for boarding school
cemeteries. As stated in the proposed
regulations, the Act does not require a
Federal agency to engage in an
excavation of possible burial sites
(Geronimo v. Obama, 725 F. Supp. 2d
182, 187, n. 4 (D.D.C. 2010)). However,
the excavation provisions of the Act and
these regulations apply to the human
remains and cultural items disinterred
from cemeteries on Federal or Tribal
lands (2022 Proposed Rule, 87 FR
63205). The suggested simplified
procedure is already provided for in
these regulations. Any Indian Tribe or
NHO may request the excavation of a
burial site on Federal lands and, if the
Federal agency agrees, a plan of action,
including consultation with lineal
descendants, Indian Tribes, or NHOs, is
required. These regulations cannot
require that a Federal agency agree to
excavate a burial site nor can we
unilaterally state an ARPA permit is not
required for excavations at boarding
school cemeteries. However, we believe
these regulations provide a streamlined
procedure for excavations of boarding
school cemeteries through consultation
and a plan of action, and the
Department encourages any Federal
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agency that manages boarding schools
and cemeteries on Federal lands to
consult with lineal descendants, Indian
Tribes, and NHOs on identification,
disinterment, and repatriation of Native
American children. The Department
stands ready to assist Federal agencies,
Indian Tribes, and NHOs to the fullest
extent of its authority.
We have made changes to the first
paragraph in this section to clarify the
responsibilities under this section and
this Subpart. We cannot remove the
requirement for Indian Tribes to take
actions on Tribal lands as these actions
are required by the Act itself. We cannot
delete this section and rely on
provisions in the NHPA because the
scope of the Act and these regulations
can be greater than the NHPA
requirements. However, we encourage
Federal agencies to consider
coordinating requirements under these
regulations with any other required
consultation and planning efforts for
their planned activities on Federal
lands. Nothing in these regulations
would prevent an Indian Tribe from
requesting a plan of action or
comprehensive agreement from a
Federal agency, and these regulations
require a plan of action for any
discovery or excavation on Federal
lands. Federal agencies are required to
comply with these regulations for any
human remains or cultural items on
Federal lands. Federal law provides
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 regulations). 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. If the alleged failure
to comply is a final agency action (see
§ 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).
70. Comment: We received eight
comments on § 10.4(a) requiring
designation of an appropriate official.
One comment supported the change,
noting that it would increase
transparency. One comment suggested
designation of appropriate officials be
reported to the Manager, National
NAGPRA Program. Two comments
requested a training requirement be
added for Federal agency employees.
Four comments questioned whether the
Bureau of Indian Affairs (BIA) should
designate the appropriate official for
Tribal lands in Alaska and the
continental United States rather than an
Indian Tribe. Two of these comments
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stated that because the BIA is currently
responsible for discovery, excavation,
and disposition on Tribal lands in
Alaska and the continental United
States, this change would require the
BIA to notify all private landowners
within the exterior boundaries of
reservations that authority on those
lands has changed from the BIA to the
relevant Indian Tribe. The other two
comments strongly objected to this
change and requested that ‘‘. . .
NAGPRA and its implementing
regulations designate BIA as the
exclusive regulatory authority over the
discovery, excavation, and disposition
of Native American cultural items
within the exterior boundaries of any
Indian reservation. Only after this
necessary step is taken should transfer
of that jurisdiction to the Tribes be
contemplated’’ (see NPS–2022–0004–
0151).
DOI Response: We decline to make
the requested changes. Each Indian
Tribe, Federal agency, or DHHL may
designate appropriate officials in any
way that best suits its organizational
structure. For some Federal agencies,
like the National Park Service, the
appropriate officials may be the
Superintendent of each park unit. The
National NAGPRA Program cannot and
should not track or record those
designations. Each Federal agency is
also responsible for ensuring the
appropriate official receives the
necessary training.
We disagree that the Act, the existing
regulations, or the other cited
regulations designate that the BIA is
responsible for discovery, excavation,
and disposition on Tribal lands in
Alaska and the continental United
States. In the Act, Congress specifically
required that a person discovering
human remains and cultural items
notify ‘‘the Secretary of the Department,
or head of any other agency or
instrumentality of the United States,
having primary management authority
with respect to Federal lands and the
appropriate Indian [T]ribe or Native
Hawaiian organization with respect to
[T]ribal lands’’ 25 U.S.C. 3002(d)(1)
(emphasis added). Nowhere does the
Act mention the Bureau of Indian
Affairs. We agree that Indian Tribes
have discretion under the existing
regulations in responding to a discovery
on Tribal lands and that, also under the
existing regulations, the BIA is
responsible for issuing an ARPA permit
on private lands that are also Tribal
lands. Neither the existing regulations
nor the Secretary assign the BIA
responsibility for consultation,
obtaining consent, or disposition of
human remains or cultural items on
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Tribal lands. As the proposed
regulations stated, the clarification of
the appropriate official for Tribal lands
is to improve consistency with the Act
by requiring certain actions by Indian
Tribes, NHOs, and DHHL on Tribal
lands. We note that other comments
discussed below were supportive of
Indian Tribes managing and making
decisions regarding discoveries or
excavations on their Tribal lands under
§§ 10.5 and 10.6 of this part (see NPS–
2022–0004–0119, as one example).
Furthermore, the BIA does not have a
record or list of private landowners
within the exterior boundaries of a
reservation, and the Federal
Government has no obligation, besides
those instituted by Congress in the
Administrative Procedure Act, to inform
the public of changes in laws or
regulations.
71. Comment: We received 27
comments on § 10.4(b) Plan of action. Of
that total, 21 comments suggested
changes to the paragraph while six
comments supported it as proposed.
Four comments requested a statement
that plans of action and comprehensive
agreements are not required on Tribal
lands. Seven comments suggested
changes to the likelihood of a discovery
or excavation to include deference to
Indian Tribes or NHOs. One comment
requested that a plan of action be
required before a discovery occurs.
Several comments requested specific
changes to requirements of a plan of
action in paragraph (b)(3) of this section.
One comment requested clarification on
how a plan of action accommodates
immediate reburial of human remains or
cultural items. One comment objected to
leaving or relocating human remains or
cultural items without adequate
protection or security. Two comments
requested leaving or relocating human
remains or cultural items be required in
all cases. One comment requested
archaeological recording and analysis be
added back into the plan of action. One
comment requested adding
identification of human remains or
cultural items to the plan of action.
Three comments requested Indian
Tribes and NHOs be required to sign the
plan of action.
DOI Response: We have clarified that
when a Federal agency or DHHL is
responsible for a discovery or
excavation on Federal or Tribal lands, a
plan of action is required. A plan of
action is not required for a discovery or
excavation on Tribal lands when the
Indian Tribe or NHO has responsibility.
We hope this clarifies that when an
Indian Tribe delegates its responsibility
for a discovery or excavation on Tribal
lands to the BIA or another Federal
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agency, the BIA or Federal agency must
approve and sign a plan of action. In
Hawai1i, DHHL must approve and sign
a plan of action on Tribal lands unless
a NHO agrees to be responsible for
discoveries or excavations on the Tribal
lands of an NHO. In that case, a plan of
action is not required on Tribal lands of
an NHO.
We have added the phrase ‘‘in
consultation with Indian Tribes and
Native Hawaiian organizations’’ to the
likelihood of a discovery or excavation
for a planned activity. We cannot
strengthen this requirement further
because Federal agencies and DHHL
may have certain obligations under land
management authorities to allow
planned activities even when an Indian
Tribe or NHO objects. However, Federal
agencies and DHHL also have
consultation responsibilities for land
management activities that should
inform when a planned activity is likely
to result in a discovery or excavation
subject to these regulations. We cannot
require a general plan of action be
developed by all Federal agencies and
DHHL in case of discovery, but we agree
with the comment that a plan of action
is a useful tool to ensure efficiency and
effectiveness in responding to a
discovery. We believe that the
requirement for a plan of action after a
discovery will encourage Federal
agencies and DHHL to develop these
plans.
The comments requesting changes to
the content of a plan of action
demonstrate the diversity of opinions on
protecting and caring for human
remains or cultural items on Federal or
Tribal lands. Because of this diversity of
opinion, we have not made the
requested changes to the minimum
requirements for a plan of action to
ensure flexibility. The requirements for
a plan of action must be broad and
allow for modification to specific
circumstances and preferences of
consulting parties. These are minimum
requirements for a plan of action and
any consulting party can request
additional elements be added to a plan
of action during consultation. For
example, a plan of action might indicate
that the consulting parties prefer
protection of human remains or cultural
items in situ or by relocating them in a
nearby location. Alternately, a plan of
action might require the immediate
removal of human remains or cultural
items to a secure, protected facility. In
other cases, a plan of action might
instruct the appropriate official to take
no action upon the discovery of human
remains or cultural items to allow for
natural exposure or erosion.
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We cannot require a plan of action be
signed by Indian Tribes or NHOs, but an
Indian Tribe or NHO can request to sign
a plan of action. The appropriate official
must approve and sign the plan of
action by the deadlines required under
§§ 10.5 and 10.6 and identify
disposition by the deadlines required
under § 10.7 with or without receiving
a response to the invitation to consult.
These regulations do not and cannot
require a lineal descendant, Indian
Tribe, or NHO to respond to the
invitation to consult.
72. Comment: We received 14
comments on § 10.4(c) Comprehensive
agreement. Two comments supported
the paragraph as proposed while 12
comments suggested changes to it. Most
of the comments requested more detail
or additional requirements be added to
this paragraph. Some comments
requested a requirement for
comprehensive agreements to be
renewed on a regular basis. A few
comments requested Tribal policy
should be substituted for a
comprehensive agreement if applicable.
One comment asked if Indian Tribes
could execute comprehensive
agreements with other Indian Tribes.
One comment stated comprehensive
agreements should not be promoted by
these regulations because a well-crafted
plan of action works better than a
comprehensive agreement.
DOI Response: The diversity of
opinion on what a comprehensive
agreement should contain is precisely
why we decline to make any changes to
this paragraph. The comprehensive
agreement, like the plan of action, is
necessarily broad and includes only the
minimum requirements. As the
comprehensive agreement is at the
discretion of the parties involved, these
regulations should not dictate the
content or nature of the agreement.
Comprehensive agreements should
contain whatever terms or requirements
the parties wish it to contain beyond the
minimum requirements of a plan of
action.
G. Section 10.5 Discovery
73. Comment: We received three
comments on § 10.5 Discovery,
generally. One comment supported the
section as proposed and two comments
requested clarification on identifying if
discovered human remains or cultural
items are Native American.
DOI Response: We have not made any
changes. Consistent with the Act, this
section applies only in the case where
a person knows or has reason to know
that the human remains are Native
American. Whether a person knows or
has reason to know that the human
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remains are Native American is case
sensitive. We note that even where a
person does not know or have reason to
know that the human remains are
Native American, other laws addressing
the discovery of human remains likely
will apply, particularly for forensic
purposes. In such cases, the appropriate
official would identify whether the
human remains are Native American
and, if Native American, would notify
the appropriate Indian Tribes or NHOs
of the discovery. As noted in the 1995
Final Rule the drafter considered any
requirement for requiring the complete
professional identification of
inadvertently discovered human
remains, funerary objects, sacred
objects, or objects of cultural patrimony
prior to notification of the responsible
Federal or Indian Tribe officials to be
‘‘officials inconsistent with the statutory
language and the legislative history. (60
FR 62143)
74. Comment: We received six
comments on Table 1 to § 10.5(a):
Report a discovery on Federal or Tribal
lands. Three comments requested
changes to the last row of the table
related to certain Federal lands in
Alaska and seem to reference earlier
drafts of these regulations rather than
the proposed regulations. One comment
requested that Indian Tribes be
identified as the appropriate official for
Federal, State, county, or private lands
near Tribal lands.
DOI Response: We cannot make the
requested change to make Indian Tribes
the appropriate official for Federal
lands, but we note that any Indian Tribe
with potential cultural affiliation is the
additional point of contact on Federal
lands. This subpart only applies to
discoveries on Federal or Tribal lands.
Discoveries on State, county, or private
lands are subject to the laws of the State
or county.
We previously revised Table 1 to
§ 10.5(a) based on similar input we
received during consultation in 2021.
We used the exact language from the
Act to describe the additional point of
contact for Federal lands in Alaska
selected but not yet conveyed under the
Alaska Native Claims Settlement Act
(ANCSA). For all other Federal lands in
Alaska, the Indian Tribe with potential
cultural affiliation should be notified
and an Alaska Native Corporation
organized under ANCSA is only notified
when the Federal land has been selected
but not yet conveyed. Based on the
comments, we have removed ‘‘or group’’
from the table as that term is
functionally obsolete following the
recognition of Indian Tribes in Alaska.
75. Comment: We received four
comments in one submission stated that
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the proposed regulations impermissibly
require private parties to notify an
ambiguous ‘‘additional point of contact’’
of a discovery of Native American
human remains or cultural items on
Federal lands. The additional point of
contact is ‘‘any Indian Tribe or Native
Hawaiian organization with potential
cultural affiliation to the human
remains or cultural items, if known.’’
According to the comment, the Act is
unambiguous that notification of a
discovery on Federal lands is limited to
the Federal land managing agency.
DOI Response: We have not made a
change. During consultation in 2021, we
received comments requesting the
addition of Indian Tribes and NHOs as
additional points of contact for
reporting a discovery on Federal lands.
We disagree with the comment that this
provision is impermissible and
ambiguous. While the Act is the primary
authority for the issuance of regulations
implementing and interpreting the Act’s
provisions, Congress authorized the
Secretary to make such regulations for
carrying into effect the various
provisions of any act relating to Indian
affairs (25 U.S.C. 9). As 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 this provision
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)).
The additional point of contact language
is not ambiguous. Not only does this
notification requirement only apply to a
discoverer who knows of an Indian
Tribe or NHO with potential cultural
affiliation, but the reporting requirement
also only applies to a discoverer who
knows, or has reason to know, that
Native American human remains or
cultural items have been discovered.
Whether a person knows or has reason
to know that the human remains or
cultural items are subject to these
regulations is case sensitive. In cases
involving a planned activity on Federal
lands, a person performing the activity
will have reason to know that
discovered human remains or cultural
items are subject to these regulations
and most likely also will know of an
Indian Tribe or NHO with potential
cultural affiliation based on the required
plan of action.
76. Comment: We received five
comments on § 10.5(a) Report any
discovery. Of that total, three comments
suggested changes to the paragraph
while two comments supported it. Two
comments requested requiring
telephone notification while one
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comment asked if an email qualifies as
written documentation of the discovery.
DOI Response: We have added a
requirement for in-person or telephone
notification to the first sentence
requiring immediate reporting of the
discovery. Written documentation of the
discovery is required to attach the rest
of the timelines in this section. As
explained elsewhere and in § 10.1(e) of
this part, written documents may be
sent by email, with proof of receipt, or
by other methods of delivery.
77. Comment: We received nine
comments suggesting changes to
§ 10.5(b) Cease any nearby activity. Most
of these comments requested changes to
align this paragraph with the preceding
paragraph and not impose any
unintentional limits on the kind of
activity that must be ceased upon a
discovery.
DOI Response: We have revised this
paragraph to follow and refer to the
preceding paragraph. We have removed
the introductory sentence, which is
already included in § 10.4 of this part,
so as not to unintentionally limit the
kinds of activities that must be ceased
upon a discovery. As suggested by one
comment, we have added that the
written documentation of the discovery
also include any potential threats to the
discovery.
78. Comment: We received nine
comments on § 10.5(c) Respond to a
discovery. Of that total, six comments
requested changes to text in earlier
drafts of these regulations rather than to
the proposed regulations. Two
comments requested strengthening the
requirement to report the discovery to
additional points of contact to initiate
consultation. One comment requested
an explanation of what is required
under this paragraph on Tribal lands.
DOI Response: We already addressed
the concerns expressed by six comments
in the proposed regulations. The
proposed regulations require the
appropriate official to respond to a
discovery no later than three days after
receiving written documentation. The
appropriate official is required to report
the discovery to any additional point of
contact, which would be any Indian
Tribe or NHO with potential cultural
affiliation. The proposed regulations
require the Federal agency or DHHL
prepare and approve a plan of action,
which includes consultation, for any
discovery. We agree with the two
comments that requested a stronger
requirement in the paragraph to initiate
consultation. We have made changes to
paragraph (c)(1)(iii).
To clarify what this paragraph
requires on Tribal land, we provide the
following example: A film production
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company has permission from an Indian
Tribe to film on lands within the
exterior boundaries of the Indian Tribe’s
reservation. The written permission
from the Indian Tribe requires the
production company to immediately
report any discovery of human remains
or cultural items to the Director of
Tribal Cultural Affairs and the Director
of the regional BIA office by telephone
and in writing by email. During filming,
a member of the production company
finds objects eroding from a hillside that
may be human remains or cultural
items. The production company reports
the discovery by telephone and email to
the Indian Tribe and the BIA, stops all
activity around the discovery, secures
and protects the objects by covering
them, and confirms that no activity will
resume in the area until a written
certification is issued by the Indian
Tribe. No later than three days after
receiving the email from the production
company, the Director of Tribal Cultural
Affairs must make a reasonable effort to
secure and protect the objects, verify
that any activity in the area has stopped,
and notify the Director of the regional
BIA office. The Director of Tribal
Cultural Affairs must send a written
certification to the film production
company no later than 30 days after
receiving the email from the production
company and provide the date (no later
than 30 days after the date of the written
certification) on which the film
production may resume in the area
around the discovery. If an excavation is
required, the Director of Tribal Cultural
Affairs must follow the requirements
under § 10.6(a). If the objects are human
remains or cultural items and they are
removed from the hillside, the Director
of Tribal Cultural Affairs must follow
the requirements for disposition under
§ 10.7. If both the BIA and the Indian
Tribe consent in writing, the BIA could
take responsibility for any of the actions
described above related to the
discovery, excavation, or disposition.
79. Comment: We received five
comments requesting clarification of the
provisions found in §§ 10.5, 10.6, and
10.7 for a NHO to accept responsibility
for discoveries, excavations, and
dispositions on Tribal lands of an NHO.
DOI Response: To clarify, ‘‘Tribal
lands of an NHO’’ does not include
lands under a Hawaiian homestead
lease, but rather lands that the Hawaiian
Homes Commission has determined an
NHO is qualified to steward under a
lease or license pursuant to the
Hawaiian Homes Commission Act.
Although Congress affords such
opportunity in the Act, an NHO need
not accept responsibility for discoveries,
excavations, or dispositions if it believes
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it is not qualified. As noted in the
proposed rule, ‘‘[a]ccepting or declining
responsibility is an exercise of
sovereignty,’’ and ‘‘the Department
seeks to be respectful of the sovereignty
of the Native Hawaiian Community and
their right to self-determination’’ (NPS–
2022–0004–0004, pages 17 and 30). The
regulations do not prescribe how the
Hawaiian Homes Commission
implements this provision, recognizing
its authorities and responsibilities. The
term ‘‘Tribal lands of an NHO’’ reflects
the language of ‘‘Tribal lands’’ used in
the Act. The Department acknowledges
that the United States’ government-tosovereign relationship with the Native
Hawaiian Community is different from
its government-to-government
relationship with Indian Tribes and
these provisions reflect those
relationships.
80. Comment: We received three
comments on § 10.5(d) Approve and
sign a plan of action. One comment
supported the timeline while two
comments requested that the
appropriate official should seek
consensus or agreement, not just merely
engage in consultation with, Indian
Tribes and NHOs.
DOI Response: We appreciate the
support for this timeline considering
other comments addressed below.
Regarding consultation, we note that
under these regulations, consultation is
defined and includes striving for
consensus, agreement, or mutually
agreeable alternatives. This is required
for consultation under this paragraph
and any other place it is used in these
regulations.
81. Comment: We received 14
comments on § 10.5(e) Certify that an
activity may resume requesting that we
extend the timeline for resumption of
activities or provide more flexibility for
the appropriate official to extend the
timeline. Some of these comments
believe the Act does not require the
appropriate official to provide any date
on which activity may resume, and,
instead, only sets a 30-day floor to stop
an activity after a discovery occurs.
These comments also requested
clarifying edits be made to this
paragraph. Several comments on
paragraph (c) discussed above requested
a copy of the written certification be
sent to consulting parties. One comment
stated that evaluating the need for and
authorization of an excavation of human
remains or cultural items must be done
in consultation with Indian Tribes or
NHOs.
DOI Response: We specifically
requested input on this paragraph in the
proposed rule, and we appreciate the
responsive comments. However, we
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cannot make the requested change to
extend the timeline or build in
additional flexibility, as discussed in
full in the next comment and response.
We can and have made the clarifying
edits to this paragraph and added a
requirement to send a copy of the
certification to the additional points of
contact. We note that consultation is
required on a plan of action under
paragraph (d) of this section, which
includes the preference of consulting
parties for leaving or relocating human
remains or cultural items rather than
excavating. A plan of action also
requires a timeline and method for
evaluating the potential need for an
excavation, and we have removed the
redundant language in paragraph (e)(3)
of this section.
82. Comment: We received eight
extensive comments from one
submission on § 10.5(e) Certify when an
activity may resume objecting to the
additional time provided in the
proposed regulations. According to the
comment, the Act unambiguously states
that the required certification from the
appropriate official to the person
responsible for the activity is solely to
acknowledge that the responsible
official has received written notification
of the discovery, and that after 30 days,
the activity may resume. The comment
cites to Senate Report 101–473
(September 26, 1990) for the proposition
that Congress intended the stop-work
period to last only 30 days (‘‘After
notice has been received the party must
cease the activity and make all
reasonable efforts to protect the remains
or objects before resuming the activity.
The activity may resume 30 days after
notice has been received. . . Under this
section, Indian [T]ribes or native [sic]
Hawaiian organizations would be
afforded 30 days in which to make a
determination as to the appropriate
disposition for these human remains or
objects.’’). The comment also states that
expanding the stop-work period by
allowing additional time for the
appropriate official to certify receipt of
the notification would significantly
interrupt and impair activities on
Federal lands, and thereby contravene
Congressional intent, as expressed in
Senate Report 101–473 (‘‘The
Committee does not intend this section
to act as a bar to the development of
Federal or [T]ribal lands on which
human remains or objects are found.
Nor does the Committee intend this
section to significantly interrupt or
impair development activities on
Federal or [T]ribal lands.’’).
Additionally, the comment states that it
would be arbitrary and unreasonable for
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the responsible official to take up to 35
days to certify that written notice of the
discovery from the responsible person
had been received. Certification is a
ministerial task that takes little time to
complete, and the existing regulations
provide for a maximum of three working
days for doing so. Consequently, the
comment requests that the Department
continue to require the appropriate
official certify receipt within three
working days of receiving notification of
a discovery.
DOI Response: The Department
believes the provision to build in
additional days, if needed, after a
discovery is permissible. In the final
regulations, we have revised this time to
a standard 30 days for clarity. The Act
does not provide a timeframe for the
appropriate official to certify that
written notification of a discovery has
been received, nor does the Act address
the action to be taken by the appropriate
official in responding to the discovery
itself. Based on other comments about
this timeframe, we find there is some
ambiguity in the Act. While the Act is
the primary authority for the issuance of
regulations implementing and
interpreting the Act’s provisions,
Congress authorized the Secretary to
make such regulations for carrying into
effect the various provisions of any act
relating to Indian affairs (25 U.S.C. 9).
As NAGPRA 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 this provision 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)). Ambiguities
in statutes passed for the benefit of
Indians are to be construed to the
benefit of the Indians (Bryan v. Itasca
County, 426 U.S. 373 (1976)). Therefore,
we have provided in these regulations a
maximum of 60 days after written
documentation of a discovery before an
activity could resume. This timeframe
provides 30 days for the appropriate
official for a Federal agency or DHHL to
evaluate the circumstances of the
discovery and, in consultation with
Indian Tribes and NHOs, prepare,
approve, and sign a plan of action. We
have provided that no later than 30 days
after receiving documentation of the
discovery, the appropriate official for an
Indian Tribe, NHO, Federal agency, or
DHHL must certify that written
notification of the discovery has been
received and that a lawful activity may
resume on a certain date, but no later
than 30 days after the date of the written
certification. This timeframe allows the
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appropriate official for a Federal agency
or DHHL a reasonable amount of time to
consult with Indian Tribes and NHOs,
evaluate the potential need for an
excavation, and carry out the steps in a
plan of action. If the appropriate official
determines, based on the circumstances,
that a shorter timeframe is acceptable,
the lawful activity could resume in
fewer than 60 days. Moreover, we hope
that Federal agencies and DHHL will be
encouraged to engage in consultation
earlier and develop a plan of action
prior to a discovery to allow for a
shorter timeframe.
H. Section 10.6 Excavation
83. Comment: We received 26
comments suggesting changes to § 10.6
Excavation. The comments generally
disagreed with our analysis of the
relationship between NAGPRA and
ARPA, noting that it is inconsistent with
the plain language of the Act and would
unduly narrow the application of the
Act and these regulations. Some
comments suggested that, if we did not
change the interpretation, we should
add a requirement that excavations not
on ‘‘ARPA Indian land’’ or ‘‘ARPA
Public land’’ must have an equivalent
permit from another jurisdiction.
DOI Response: Our interpretation
does not change the application of the
Act. NAGPRA applies to its fullest
extent on Tribal land and Federal land,
as defined in both the statute and
regulations. Rather, we have defined
which excavations under the Act
require a permit issued under ARPA
and which do not. Specifically, the Act
requires that human remains or cultural
items may only be intentionally
excavated or removed from Federal or
Tribal land if, among other
requirements, ‘‘such items are excavated
or removed pursuant to a permit issued
under [ARPA] which shall be consistent
with [NAGPRA].’’ 25 U.S.C. 3002(c)(1).
Since both NAGPRA and ARPA are
intended to protect important cultural
resources, they must be construed
together. Further, ‘‘issued under ARPA’’
is an adjectival phrase modifying
‘‘permit.’’ Thus, it is not ARPA that
‘‘shall be consistent with NAGPRA,’’ but
rather the ARPA permit that must be
consistent with the Act. This is
supported by the legislative history. The
Senate Indian Affairs Committee
specifically noted that it ‘‘[intended] the
notice and permit provisions of this
section to be fully consistent with the
provisions of [ARPA]’’ (S. Rpt. 101–473,
at 7). Likewise, the House Committee on
Interior and Insular Affairs, in
discussing the stopping of work for an
inadvertent discovery, noted,
‘‘[a]lthough a specific time limit was not
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added here, the Committee does intend
to protect the remains and objects found
and does not intend to weaken any
provisions of other laws, such as
[ARPA], regarding similar situations.’’
Like the Senate Committee, the House
Committee also stated, ‘‘[s]ubsection (c)
provides that items covered by this Act
can be excavated from Federal or
[T]ribal land if proof exists that a permit
has been acquired under Section 4 of
the [ARPA]’’ (H. Rpt. 101–877, at 15 and
17). Therefore, the provisions of ARPA,
including the scope of public and
Indian land, are not affected by the Act.
So, the terms ‘‘ARPA Indian land’’ and
‘‘ARPA public land’’ are defined in
these regulations just as ‘‘Indian land’’
and ‘‘public land’’ are defined in ARPA,
including use of the term ‘‘individual
Indian,’’ which is used in ARPA to
denote land that is owned by an
individual Indian, who may or may not
be a ‘‘lineal descendant’’ as used in the
Act and defined in these regulations.
The protections provided for in both
statutes is reflected in these regulations
by the requirement that ARPA permits
are issued for NAGPRA excavations just
as they are for ARPA excavations,
keeping the full protections of each
statute in place, as Congress intended.
We have added the requested
requirement that excavations on Federal
or Tribal lands that are not ARPA Indian
lands or ARPA Public lands must have
an equivalent permit from the relevant
Indian Tribe, NHO, or State, if
applicable.
84. Comment: We received eight
comments on § 10.6(a) On Tribal lands.
Of that total, one comment suggested a
change to the paragraph while seven
comments supported it as proposed.
DOI Response: We cannot make the
requested change to paragraph (a)(2) to
replace ‘‘consent’’ with ‘‘respond.’’
Consent in writing from both the Indian
Tribe and the Federal agency is required
before the responsibility for an
excavation is transferred from the
Indian Tribe to the Federal agency. This
ensures all parties are aware of the
transfer and the responsibilities.
85. Comment: We received 11
comments on § 10.6(b) On Federal or
Tribal lands. Of that total, nine
comments suggested changes to the
paragraph while two comments
supported it. The comments requesting
changes all expressed concern about the
role of consultation in the preliminary
steps by an appropriate official to
evaluate the potential need for an
excavation.
DOI Response: We have removed the
sentence in § 10.6 referring to evaluation
of the potential need for an excavation.
The timeline and method for evaluating
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the potential need for an excavation is
a required part of a plan of action under
§ 10.4(b)(3)(vi) of this part. The plan of
action is required before an excavation
is authorized and requires consultation
with lineal descendants, Indian Tribes,
and NHOs. We note that consultation on
a plan of action also includes the
preference of consulting parties for
leaving or relocating human remains or
cultural items rather than excavating
them. We have made other clarifying
edits to this paragraph considering
comments we received on § 10.4(b)
under this part. We have retained the
requirement for the written
authorization to describe the steps taken
to evaluate the potential need for an
excavation. We believe this is necessary
to document how the plan of action was
implemented.
Because an Indian Tribe may delegate
its responsibilities for excavations on
Tribal lands to a Federal agency, we
have added a requirement for the plan
of action to include written consent of
the appropriate Indian Tribe or NHO.
This requirement could be fulfilled by
the written consent delegating the
responsibilities under paragraph (a)(2)
of § 10.6. On Tribal lands of an NHO,
DHHL is required to obtain written
consent from the appropriate NHO prior
to authorizing an excavation.
I. Section 10.7 Disposition
86. Comment: We received nine
comments on § 10.7 Disposition,
generally. Of that total, three comments
suggested requirements for consultation
be added to the introductory paragraph
for this section while one comment
supported the consultation
requirements as proposed in § 10.7. One
comment requested adding the
definition of disposition to the
introduction to this section. Two
comments objected to the burden this
section puts on disposition from
boarding school cemeteries on Federal
lands. One comment found this entire
section confusing and the timelines too
long. One comment objected to the
appropriate official in this section being
anyone other than an Indian Tribe or
NHO.
DOI Response: We decline to make
the requested change to add
consultation requirements in the
introductory paragraph to § 10.7. This
paragraph applies to human remains or
cultural items removed from Federal or
Tribal lands and as such must include
the requirements for the appropriate
official for an Indian Tribe on Tribal
lands as well as for the Federal agency
or DHHL. As discussed elsewhere, we
received comments requesting we
provide as much flexibility as possible
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for Indian Tribes who are responsible
for complying with this section on their
Tribal lands. As several of the
comments noted, the requirements of
§ 10.7 follow the requirements in §§ 10.5
and 10.6 which require consultation by
Federal agencies or DHHL through a
plan of action. In addition, as the
supporting comment noted,
consultation is required throughout
§ 10.7 by Federal agencies or DHHL.
Disposition is defined in § 10.2 and
the definition is used to describe what
a disposition statement must include in
this section. We have not repeated the
definition here. Regarding disposition
from boarding school cemeteries on
Federal lands, we do not believe this
will overly complicate the process. It
will require, as the existing regulations
do, that when human remains or
cultural items are removed from Federal
lands, including boarding school
cemeteries, a notice must be published
to identify the Indian Tribe with priority
for disposition. We believe these
regulations provide a streamlined
procedure for excavations of boarding
school cemeteries through consultation,
a plan of action, and a notice of
intended disposition. The Department
encourages any Federal agency that
manages boarding schools and
cemeteries on Federal lands to consult
with lineal descendants, Indian Tribes,
and NHOs on identification,
disinterment, and repatriation of Native
American children as expeditiously as
possible. The Department stands ready
to assist Federal agencies, Indian Tribes,
and NHOs to the fullest extent of its
authority.
We appreciate the concern expressed
by some comments that as written and
when read alone, the proposed
regulations state that the appropriate
official must determine disposition
without consultation. We feel that a
simple change from ‘‘determine’’ to
‘‘identify’’ will alleviate this concern.
The priority for disposition is
established by the Act and all that is
required under this section is for the
lineal descendant, Indian Tribe, or NHO
with priority for disposition be
identified and, in some cases, notified.
We have also removed the reference to
unclaimed human remains or cultural
items, as discussed in Comment 91. We
cannot make the requested change to the
appropriate official in this section.
87. Comment: We received 19
comments on § 10.7(a) Priority for
disposition. Of that total, seven
comments supported this paragraph
especially as it relates to boarding
school repatriations. One comment
requested human remains or cultural
items should only be removed from
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Federal lands with the permission and
partnership of the affected Indian Tribe.
Five comments suggested changes to the
priority order, specifically for Tribal
lands where the Indian Tribe with
cultural affiliation is not the Tribal land
Indian Tribe. Four comments requested
a significant, but grammatical, change
from ‘‘originated’’ to ‘‘were removed.’’
One comment requested disposition
should only occur if other Indian Tribes
or NHOs consent. Other comments
requesting changes to § 10.3
Determining cultural affiliation required
changes to this paragraph.
DOI Response: We reiterate that this
paragraph is drawn directly from the
Act itself and does not represent a
change in any way. We cannot add a
requirement to this section to require
permission or partnership; see the
discussion above on the requirement for
a plan of action prior to an excavation
or after a discovery. We cannot change
the priority order for Indian Tribes with
cultural affiliation and Tribal land
Indian Tribes. Under the Act, the Indian
Tribe from whose Tribal lands the
human remains or cultural items were
removed has priority over any other
Indian Tribe. Likewise, we cannot
change the use of aboriginal land in the
priority order after cultural affiliation.
Any changes to the priority order would
require Congressional action. We do
want to note here that a final judgment
of the Indian Claims Commission or the
United States Court of Claims 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 that do
so. We have made the requested
grammatical change to ‘‘originated.’’
88. Comment: We received 11
comments suggesting changes to
paragraph (b) in the proposed
regulations under § 10.7 Disposition—
To a lineal descendant (removed in the
final regulations). All these comments
requested we require notices of
intended disposition for lineal
descendants.
DOI Response: We appreciate and
agree with the need for transparency in
these regulations. However, we reiterate
that neither the Act nor the existing
regulations require publication of a
notice of intended disposition for a
lineal descendant. On Federal land, a
notice and a claim are only required
when no lineal descendant has been
ascertained. Considering comments
related to disposition on Tribal land
below, we do not believe we can extend
the requirement for publication of a
notice of intended disposition on Tribal
land to the appropriate official for an
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Indian Tribe. Therefore, we have
removed this paragraph entirely and
integrated the procedure for disposition
to lineal descendants into the two
following paragraphs.
89. Comment: We received 18
comments on paragraph (c) in the
proposed regulations under § 10.7
Disposition—On Tribal lands (in the
final regulations, this is renumbered
§ 10.7(b)). Of that total, 10 comments
requested we require notices of
intended disposition on Tribal lands.
The other eight comments requested we
remove the unnecessary burdens placed
on Indian Tribes for disposition on
Tribal lands. Five submissions
contained both requests, which seem
inconsistent with each other.
DOI Response: We believe that
requiring the appropriate official for an
Indian Tribe or NHO to submit a notice
of intended disposition for publication
in the Federal Register is an
unnecessary burden, and we decline to
make this change. We cannot alleviate
the entire burden on an Indian Tribe or
NHO for the disposition process under
this paragraph. As noted above, we have
removed the requirement for disposition
statement to be sent to a lineal
descendant, yet these regulations must
provide some procedure for an Indian
Tribe or NHO to identify if there is a
lineal descendant with priority for
disposition, which is a requirement of
the Act. The requirements in these
regulations remain like those in the
proposed regulations. On Tribal lands,
an Indian Tribe or NHO must identify
the lineal descendant, Indian Tribe, or
NHO with priority for disposition and
prepare and retain a written disposition
statement. The written disposition
statement is required because of the
priority afforded to lineal descendants
under the Act. When a lineal
descendant has not been ascertained, an
Indian Tribe or NHO must ensure a
record is made of the disposition in case
a lineal descendant wishes to assert a
priority right later.
We believe this is the minimum
burden these regulations can place on
Indian Tribes or NHOs for human
remains or cultural items removed from
Tribal lands. We note that an Indian
Tribe may delegate its responsibilities
for disposition under this paragraph. In
complex cases involving multiple
potential lineal descendants or Indian
Tribes with potential cultural affiliation,
an Indian Tribe may prefer to delegate
its responsibility to the Bureau of Indian
Affairs or another Federal agency. This
will alleviate the Indian Tribe of any
additional burden and, as a result,
require the appropriate official for the
Federal agency to inform and consult
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86493
with lineal descendants, Indian Tribe,
or NHOs; publish a notice of intended
disposition in the Federal Register;
respond to any claims for disposition;
resolve any competing claims; and send
a disposition statement. We note in
response to the comments on paragraph
(a) of this section, while we were unable
to change the priority order for
disposition, this paragraph and the
option of delegating responsibility to a
Federal agency provide opportunity for
an Indian Tribe to include Indian Tribes
with cultural affiliation in the
disposition from Tribal lands.
90. Comment: We received 12
comments on paragraph (d) in the
proposed regulations under § 10.7
Disposition—On Federal lands in the
United States or on Tribal lands in
Hawai‘i (in the final regulations, this is
renumbered § 10.7(c) and retitled On
Federal or Tribal lands). Five comments
in the same submission questioned who
is responsible for determinations in this
paragraph and suggested the appropriate
official should be a representative of an
Indian Tribe or NHO in all
circumstances. One of these comments
stated six months is too long after a
discovery or excavation to inform
consulting parties in Step 1. Four
comments requested adding criminal
actions under NAGPRA to the deadline
extension in Step 2. Two comments
were in favor of requiring notices be
published in the Federal Register while
one comment opposed this change.
DOI Response: We have clarified that
this paragraph, as in other paragraphs in
this subpart, applies when a Federal
agency or DHHL has responsibility for
disposition of human remains or
cultural items removed from Federal or
Tribal lands. We have tried to clarify
who ‘‘the appropriate official’’
represents at the beginning of each
paragraph and with the paragraph
headings that identify if the paragraph
applies ‘‘On Tribal lands’’ or ‘‘On
Federal or Tribal lands.’’ Because this
paragraph covers a wide variety of
circumstances under which human
remains or cultural items are removed
from Federal or Tribal lands, a longer
timeline is necessary for identifying and
informing consulting parties. In most
cases, however, this can occur much
faster based on the plan of action. We
have added a criminal action under
NAGPRA to Step 2. We have retained
the requirement for publication of
notices of intended disposition in the
Federal Register. We believe the revised
regulatory text will prevent the current
delays in notice publication.
91. Comment: We received 13
comments on paragraph (e) in the
proposed regulations under § 10.7
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Disposition—Unclaimed human
remains or cultural items removed from
Federal lands in the United States or
from Tribal lands in Hawai‘i (in the
final regulations, this is renumbered
§ 10.7(d) and retitled Unclaimed human
remains or cultural items removed from
Federal or Tribal lands). Five comments
emphatically and some repeatedly
objected to the concept of unclaimed
human remains or cultural items and
stated that any human remains or
cultural items removed from Federal or
Tribal lands can be identified and
claimed through effective and
meaningful consultation. Two
comments objected to the provision for
reinterment without Indian Tribes or
NHOs making the decision to do so.
Two comments objected to the inclusion
of Indian groups without Federal
recognition in this paragraph. One
comment stated the Federal agency or
DHHL has an obligation to reach out to
Indian Tribes or NHOs before human
remains or cultural items become
unclaimed. Two comments requested a
list of unclaimed cultural items be
published on the National NAGPRA
Program website. One comment
requested a requirement for reinterment
to be as close as possible to the original
site.
DOI Response: We understand the
objections raised by many comments to
this provision, but we are unable to
eliminate this paragraph because it is
required by the Act (see 25 U.S.C.
3002(b)). Regulations concerning this
part of the Act were proposed in 2013
and finalized in 2015 and contained
very similar provisions. There may be
circumstances where human remains or
cultural items are removed from Federal
or Tribal land and one year after
publication of a notice of intended
disposition, no Indian Tribe or NHO has
made a claim for disposition. In other
cases, particularly for Federal lands in
the Eastern United States, when cultural
affiliation cannot be determined and the
Federal land is not the aboriginal land
of an Indian Tribe as defined in
§ 10.7(a), the Federal agency may not be
able to identify any Indian Tribe or
NHO with priority for disposition and
the human remains or cultural items
may be unclaimed.
We believe the clarification and
simplification of the disposition process
for human remains or cultural items on
Federal or Tribal lands that precedes
this paragraph will address many of the
concerns raised by these comments and
that only a small number of human
remains or cultural items will be
unclaimed. To date, a total of 44
individuals and 164 funerary objects
have been reported as unclaimed. Since
2015, the National NAGPRA Program
has published a list of unclaimed
human remains or cultural items from
Federal or Tribal lands on its website
(https://www.nps.gov/subjects/nagpra/
unclaimed-cultural-items.htm, accessed
12/1/2023).
We have removed the option to
transfer unclaimed human remains or
cultural items to Indian groups without
Federal recognition but we have
retained the option to transfer to an
Indian Tribe or NHO or to reinter. At the
discretion of the Federal agency or
DHHL and after following the
requirements of this paragraph,
unclaimed human remains or cultural
items removed from Federal or Tribal
land may be transferred or reinterred.
As this is a discretionary action, these
regulations cannot dictate where
reinterment occurs.
J. Subpart C
92. Comment: We received 46
comments on the overall timelines in
Subpart C. Of that total, 16 comments
supported the timelines as proposed.
Several of these comments felt the
timelines were adequate and clearly
explained, especially with tables. Four
comments supported the requirements
and timeline for updated inventories
specifically. Two comments felt the
timelines achieved a balance between a
sense of urgency to repatriate and the
practical limitations of the tasks
involved. Two of these comments felt
the timelines were too long and found
the timelines to be extremely
unbalanced and specifically aimed at
benefitting museums and Federal
agencies rather than lineal descendants,
Indian Tribes, and NHOs. One comment
felt the timelines provided sufficient
opportunity for Indian Tribes and NHOs
to submit requests for repatriation.
On the other hand, 30 comments felt
the timelines were too short, unrealistic,
unworkable, and unachievable. Many of
these comments from individuals and
museums believe the timelines do not
provide adequate time for consultation
or relationship building and will result
in overwhelming Indian Tribes and
NHOs with requests to consult. Many of
the comments from Indian Tribes
requested the timelines be based on
Tribal priorities. Most of the comments
from individuals and museums felt the
timelines underestimate the work
required for repatriation. One comment
stated the changes to the regulations
were too complicated to be done
quickly. One comment stated the
timelines were not based in the real
world and provided an example of one
Federal agency that needed six months
just to acquire a signature on a letter.
One comment stated the focus of these
timelines on notice publication is
misplaced and ignores the other parts of
the process.
Some of these comments requested
more flexible timelines with no set
deadlines. Two comments predicted the
tasks involved are more likely to take 20
or 50 years to complete. Suggestions in
these comments included removing
timelines entirely, doubling all the
timelines provided, or retaining the
timelines in the existing regulations.
Three comments suggested a five-year
timeline for updating inventories. One
comment suggested changing the
timelines to only require initiation of
consultation and remove the subsequent
timelines.
DOI Response: We have extended the
deadline for museums and Federal
agencies to update inventories of human
remains and associated funerary objects
from three years to five years after the
effective date of these final regulations.
We have made other changes to the
deadlines in these regulations to
account for the change from business
days to calendar days discussed
elsewhere. We have changed the
deadline for a museum or Federal
agency to respond to a request for
repatriation from 60 days to 90 days for
both human remains and associated
funerary objects and for cultural items.
Tables 4 and 5 provide an overview
of the general timeframes under Subpart
C from the longest timeline to the
shortest timeline. Table 4 relates to
required reporting on holdings or
collections and Table 5 relates to
responding to requests for repatriation.
TABLE 4—TIMEFRAMES FOR REPORTING ON HOLDINGS OR COLLECTIONS
If a museum or Federal agency . . .
. . . it must . . .
. . . no later than . . .
See
Has human remains and associated funerary objects not published in a notice.
Receives Federal funds for the first time and has
possession or control of human remains and associated funerary objects.
Update an inventory (including consultation) ........
5 years ............................
§ 10.10(d)(3).
Complete an inventory (including consultation) ....
5 years ............................
Table 1 to § 10.10(d)(2).
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86495
TABLE 4—TIMEFRAMES FOR REPORTING ON HOLDINGS OR COLLECTIONS—Continued
If a museum or Federal agency . . .
. . . it must . . .
. . . no later than . . .
See
Receives Federal funds for the first time and has
cultural items.
Acquires or locates human remains and associated
funerary objects.
Has custody of a Federal agency holding or collection (museums only).
Has custody of a holding or collection and cannot
identify an entity with possession or control (museums only).
Acquires or locates cultural items ...........................
Completes or updates an inventory ........................
Receives a statement from a museum with custody
of a Federal agency holding or collection (Federal agencies only).
Acquires previously reported human remains or
cultural items.
Compiles a summary ...............................................
Identifies new consulting parties .............................
Compile and submit a summary ...........................
3 years ............................
Table 1 to § 10.9(a)(2).
Initiate consultation and complete an inventory ....
2 years ............................
Table 1 to § 10.10(d)(2).
Submit a statement to the Federal agency and
National NAGPRA.
Submit a statement to National NAGPRA ............
1 year .............................
§ 10.8(c).
1 year .............................
§ 10.8(d).
Compile and submit a summary ...........................
Submit a notice of inventory completion ...............
Respond to the museum and National NAGPRA
6 months .........................
6 months .........................
180 days .........................
Table 1 to § 10.9(a)(2).
§ 10.10(e).
§ 10.8(c)(1).
Inform National NAGPRA (and initiate consultation on human remains).
Initiate consultation ................................................
Initiate consultation ................................................
30 days ...........................
§ 10.9(a)(3)(i); § 10.10(d)(4)(i).
30 days ...........................
30 days ...........................
§ 10.9(b).
§ 10.9(b)(3); § 10.10(b)(3).
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TABLE 5—TIMEFRAMES FOR RESPONDING TO REQUESTS FOR REPATRIATION
If a museum or Federal agency . . .
. . . it must . . .
. . . no later than . . .
See
Receives competing requests for repatriation ..........
Receives a request for repatriation ..........................
Has completed all other steps ..................................
Agrees to a request for repatriation of cultural items
Receives competing requests for repatriation ..........
Receives a returned notice ......................................
Send a written determination ..................................
Respond to the request ...........................................
Send a repatriation statement .................................
Submit a notice of intended repatriation .................
Inform all requestors ................................................
Resubmit a notice ....................................................
180 days .........................
90 days ...........................
90 days ...........................
30 days ...........................
14 days ...........................
14 days ...........................
§ 10.9(h)(4); § 10.10(i)(3).
§ 10.9(e); § 10.10(g).
§ 10.9(g); § 10.10(h).
§ 10.9(f).
§ 10.9(h)(3); § 10.10(i)(2).
§ 10.9(f)(3); § 10.10(e)(3).
While we understand the objections
to the timelines and the concerns about
insufficient staffing and funding, the
Secretary, the Assistant Secretary, and
the Department are committed to
clearing a path to expeditious
repatriation as Congress intended. In the
32 years since the passage of the Act, we
have seen some of the largest
repatriations occur when a museum or
Federal agency changed course to invite
and defer to the input of lineal
descendants, Indian Tribes, and NHOs.
By requiring that deference throughout
these regulations, we hope more
museums and Federal agencies will
change course and complete the
regulatory requirements for repatriation.
We must stress that most of the
timelines and deadlines under these
regulations are triggered by a request for
repatriation from a lineal descendant,
Indian Tribe, or NHO. If a museum or
Federal agency is involved in
meaningful and effective consultation
with lineal descendants, Indian Tribes,
and NHOs, pressure to complete
repatriation within a set timeframe may
be significantly alleviated. The one
exception to the request requirement is
the timeline for a museum or Federal
agency to update an inventory of human
remains and associated funerary objects.
We further stress that an extension of
this deadline may be requested by any
museum that has made a good faith
effort to update its inventory. We have
added to the requirements for an
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extension the written agreement of
consulting parties to the request. If a
museum will need an additional 10 or
20 or even 50 years to complete its
inventory, it can only do so by first
engaging in meaningful and effective
consultation with lineal descendants,
Indian Tribes, and NHOs. With these
changes to the regulations, we hope to
provide a clear path to repatriation
where lineal descendants, Indian Tribes,
and NHOs, rather than museums and
Federal agencies, can define what
expeditious repatriation means.
93. Comment: We received 21
comments on the requirements in
Subpart C for museums and Federal
agencies to identify all holdings or
collections that may contain human
remains or cultural items. Most of these
comments requested additional
language to require museums and
Federal agencies produce transparent
information about the full extent of their
holdings or collections, whether in their
possession or control or custody. These
comments requested the regulations
eliminate the loophole that allows
museums and Federal agencies to avoid
disclosing information about their
holdings or collections. One comment
requested a requirement to identify
items that may have been transferred,
stolen, sold, or removed from a holding
or collection. One comment requested
standards and requirements for
museums and Federal agencies to
engage in some level of effort to identify
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holdings or collections subject to the
Act and these regulations. One comment
appreciated the inclusion of lost or
unknown holdings or collections in this
subpart but stated that ‘‘negligence to
care for native material culture is
evident time and time again. The very
fact that institutions like universities are
continuing to discover Native American
remains in their possession is absolutely
unacceptable.’’ Several comments
stressed the importance of consultation
in identifying holdings or collections
and suggested consultation should be
initiated when a museum or Federal
agency has reason to believe that human
remains or cultural items are present in
a holding or collection. One comment
requested clarification on how museums
and Federal agencies can be held
accountable for conducting a full review
of holdings or collections.
On the other hand, a few comments
questioned the Department’s authority
to require a review of all holdings or
collections and that this subpart must be
limited to only those holdings or
collections that are known to have
human remains or cultural items. A few
comments provided details on how long
it takes identify human remains or
cultural items in a holding or collection.
One comment stated it takes weeks or
months to complete a full review of a
holding or collection and if done too
quickly, human remains and cultural
items will be left behind. One comment
stated it takes 10 hours to review a
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single, standard box to identify the
presence of human remains or cultural
items. An additional six to eight hours
is needed to document each individual
or object in the box, and another 40
hours is needed to produce a final
report of the boxes from the same site.
The comment also stated a significant
amount of space is needed for this kind
of review and that can often impair the
effort to review a holding or collection.
DOI Response: There is no ambiguity
in the Act on the requirement for
museums and Federal agencies to
identify all human remains or cultural
items in holdings or collections. The
Act requires each museum or Federal
agency that ‘‘has possession or control
over holdings or collections’’ to identify
all Native American human remains or
cultural items. The Act required
museums and Federal agencies to
identify all cultural items within three
years and all human remains and
associated funerary objects within five
years. The Act provided an option for
museums to request an extension to
identify human remains and associated
funerary objects, provided the museum
had made a good faith effort to do so.
We agree that the initial step requires
producing factual and transparent
information about the holdings or
collections. While determining
possession or control of a holding or
collection is a jurisdictional
requirement and must be done on a
case-by-case basis, the Act and these
regulations make clear that the
evaluation applies to all holdings or
collections. We agree that when a
museum or Federal agency has reason to
believe human remains or cultural items
are present in a holding or collection it
must provide information to lineal
descendants, Indian Tribes, and NHOs.
We agree the Department does not
have authority under the Act to require
a museum or Federal agency review
holdings or collections that are not
subject to the Act. Only holdings or
collections, or portions of holdings or
collections, that may contain human
remains or cultural items are required to
be identified. If a museum or Federal
agency knows that a certain holding or
collection does not contain any human
remains or cultural items, the holding or
collection would not need to be
included in a summary of cultural items
or an itemized list of human remains
and associated funerary objects. For
example, a collection excavated from an
historic era ranch that does not contain
any Native American objects or items
would not need to be included on a
summary.
We disagree that the Act and these
regulations do not already require a
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museum or Federal agency to review all
holdings or collections in their
possession or control. The Act and these
regulations already impose standards
and requirements for museums and
Federal agencies to make an effort to
identify human remains and cultural
items. The standard is if a holding or
collection may contain human remains
or cultural items. The requirement is to
comply with this subpart and complete
a summary, an inventory, and notices.
The mechanisms for ensuring
accountability for a failure to comply
with this subpart are civil penalties
against museums or legal action against
Federal agencies. Any museum or
Federal agency that fails to identify a
holding or collection that contains
human remains or cultural items has
failed to comply with the Act and these
regulations.
Several comments provided examples
of human remains or cultural items that
were not identified by museums and
Federal agencies. In one case, an
‘‘archeological collection’’ was excluded
from a summary because the museum
assumed it did not contain any cultural
items. However, archival information
about the person who made the
collection clearly identifies the collector
removed objects from a funerary context
and those objects are likely unassociated
funerary objects. In another case, human
remains were found during a physical
review of a collection after the inventory
was completed and a notice published.
Museums and Federal agencies have
discretion on which holdings or
collections they include in a summary
or inventory. When a museum or
Federal agency decides to exclude a
holding or collection from a summary or
inventory, it is deciding that the Act and
these regulations are not applicable to
that holding or collection. If that
holding or collection contains human
remains or cultural items, the museum
or Federal agency has failed to comply
and could be subject to civil penalties
or other legal action. Museums and
Federal agencies also have discretion on
how to evaluate the contents of a
holding or collection. A museum or
Federal agency can choose to review
each box in a holding or collection to
determine if it contains human remains
or cultural items, but it must do so
within the timeframes required by the
Act and the regulations. Neither the Act
nor the regulations require a physical
review of a holding or collection to
comply with the summary and
inventory requirements.
Under the final regulations, consent
from lineal descendants, Indian Tribes,
or NHOs is required prior to allowing
any research on human remains or
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cultural items. We have defined
‘‘research’’ to mean any study, analysis,
examination, or other means of
acquiring or preserving information.
‘‘Research’’ includes any activity to
generate new or additional information
beyond the information that is already
available, for example, osteological
analysis of human remains, physical
inspection or review of collections,
examination or segregation of comingled
material (such as soil or faunal remains),
or rehousing of collections.
94. Comment: We received 42
comments on specific steps in the
repatriation process. Six comments from
one submission made repeated requests
to require unassociated funerary objects
be listed in the inventory so they can be
repatriated with the human remains and
associated funerary objects. One
comment requested testing for
hazardous substances be required and
two comments requested removal of
hazardous substances must be required
at the expense of museums and Federal
agencies. One comment requested
‘‘acquisition’’ be replaced with
‘‘accession’’ so as not to disrespectfully
identify human remains as objects. One
comment requested additional
information on documentation, analysis,
or exhibition be included in a summary
or an inventory.
Six comments suggested changes to
the steps for consultation. One comment
stated identifying consulting parties is a
difficult task that requires additional
time than what is provided. One
comment requested clarification on who
identifies new consulting parties. Two
comments requested clarification on if
the regulations require re-initiation of
consultations that are ongoing as of the
effective date of these regulations. One
comment requested how to proceed
when consulting parties do not respond
to invitations to consult. One comment
requested clarification on the timeline
for responding to an invitation to
consult and that Indian Tribes and
NHOs must be allowed to move at their
own pace according to each sovereign’s
capacity and resources. Three comments
suggested changes to the kinds of
information a consulting party can
request from a museum or Federal
agency, including that accession records
be specifically included or the
limitations on the use of the information
be removed.
Nine comments requested changes to
the notices and requests for repatriation
under this subpart. Four comments
requested lineal descendants not be
identified by name, and four comments
requested amended notices be required
when additional pieces of previously
repatriated human remains or cultural
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items are found. One comment
requested additional information on
documentation, analysis, or exhibition
be included in a notice. Two comments
requested that all Indian Tribes or NHOs
with cultural affiliation be notified or
consent to a request for repatriation.
Two comments suggested requests for
repatriation need not be in writing. One
comment requested changing the
timeline for sending a repatriation
statement from the variable 30 to 90
days to 60 days.
Three comments expressed concern
about the timelines for competing
requests and stays of repatriation. Two
comments requested changes to the
deadline for evaluating competing
requests to either remove the deadline
in favor of a deadline agreed upon in
consultation or to include a timeline for
requestors to submit additional
information to support their requests.
Two comments on stays of repatriation
asked who determines if a court of
competent jurisdiction enjoins the
repatriation. One comment requested
decisions made during a stay of
repatriation must be made in
consultation with requesting parties.
DOI Response: We cannot include
unassociated funerary objects in an
inventory as that would be inconsistent
with the Act. We cannot require testing
for or removal of hazardous substances
or who should pay for that testing or
removal as there is no such requirement
in the Act. We can and do require
information about hazardous substances
be shared, but only when a museum or
Federal agency knows about the
presence of any potentially hazardous
substances. Testing or removal should
be a part of consultation on human
remains or cultural items, specifically
under the duty of care requirements in
§ 10.1(d). We do not agree that
‘‘accession’’ is less disrespectful than
‘‘acquisition’’ since both are generally
applied to property or collections. The
use of ‘‘accession’’ could lead to
confusion over human remains or
cultural items that were not formally
accessioned into a holding or collection.
The Act uses the word ‘‘acquisition,’’
and we have retained that word in these
regulations. We have not required
additional information on
documentation, analysis, or exhibition
be included in a summary or inventory,
but that information may be requested
by a lineal descendant, Indian Tribe, or
NHO and discussed during consultation
on the duty of care for human remains
or cultural items.
We have not made changes to
timeline or requirements for initiating
consultation. Depending on the
provenience and provenance of the
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human remains or cultural items,
identifying Indian Tribes or NHOs with
potential cultural affiliation is not
complex and a museum or Federal
agency must make a good faith effort to
identify consulting parties within the
timeframe provided. There are several
resources that can assist museums and
Federal agencies with identifying
consulting parties, including previously
prepared summaries or inventories and
published notices. Museums and
Federal agencies are responsible for
determining if a new consulting party
can be identified. When consultation is
ongoing as of the effective date of these
regulations, there is no requirement to
re-initiate consultation, provided the
ongoing consultation included all
consulting parties.
We do not intend to impose timelines
on lineal descendants, Indian Tribes, or
NHOs to respond to an invitation to
consult and can engage in the
repatriation process at their own
discretion. However, museums and
Federal agencies are required to act
under § 10.10 within certain timelines,
and those timelines are required even if
there is no response from a lineal
descendant, Indian Tribe, or NHO to an
invitation to consult. A museum or
Federal agency must initiate
consultation prior to completing or
updating an inventory under § 10.10,
but if there is no response to the
invitation to consult, the museum or
Federal agency must complete or update
the inventory by the deadlines required
under § 10.10(d) and submit a notice of
inventory completion under § 10.10(e).
As the Department noted in 1995 for the
first deadline to complete an inventory
if there is no response after repeated
attempts to contact Tribal officials by
telephone, fax, and mail, the museum or
Federal agency official may be required
to complete the inventory without
consultation to meet the regulatory
deadline. The Department suggested
museum and Federal agency officials
document attempts to contact Tribal
officials to demonstrate good faith
compliance with these regulations and
the Act. (1995 Final Rule, 60 FR 62151).
Although the methods to contact an
Indian Tribe or NHO have changed
since 1995, this advice continues to be
applicable. Museums and Federal
agencies must document attempts to
contact lineal descendants, Indian
Tribes, or NHOs to demonstrate a goodfaith effort to consult prior to the
deadlines in these regulations.
We have not made changes to the
additional information consulting
parties can request. The language in the
regulations is taken directly from the
Act, including the limitations. The
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regulations do not prevent a consulting
party from requesting any other
information not explicitly identified
here. We feel accession records are a
type of ‘‘records.’’ As noted elsewhere,
we advise lineal descendants, Indian
Tribes, and NHOs to make their requests
as broad as possible to ensure all
information about human remains or
cultural items is available to them when
making a request for repatriation.
We have revised the required content
of a notice to simplify the regulatory
text, and we have included language to
allow for the name of a lineal
descendant to be withheld. In response
to the comments on amended notices
and to coincide with the overall changes
in the process for repatriation, we have
removed the requirement for amending
a notice. After publication of a notice
under this subpart, if additional human
remains or cultural items are identified
that were not previously included in a
summary, inventory, or notice, the
museum or Federal agency must begin
with Step 1 in each process for the
newly identified human remains or
cultural items to ensure adequate
consultation and notification occurs. We
have not required additional
information on documentation, analysis,
or exhibition be included in the notice
and feel it is important that these
regulations require only the minimum
amount of information required in a
notice to prevent unnecessary delays or
public disclosure of information. If an
Indian Tribe or NHO wishes to have
additional information included in a
notice, it should inform the museum or
Federal agency during consultation of
this preference. The proposed
regulations included requirements for
notifying other Indian Tribes or NHOs
of a request for repatriation of human
remains and associated funerary objects.
We have added these same requirements
for requests for repatriation of cultural
items; both the response to a request
and the notice of intended repatriation
must be sent to the requestor and any
other consulting party. We cannot
require museums and Federal agencies
obtain consent from other consulting
parties to a request for repatriation. Any
consulting party may submit an
additional, competing request for
repatriation before a repatriation
statement is sent. We have not removed
the requirement for a request for
repatriation to be submitted in writing.
The existing regulations contain this
same requirement, and the Act is clear
that a request for repatriation is a
requirement, although it does not
specify the request be in writing. To
require the actions that follow a request
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for repatriation be completed by a
certain date, the request for repatriation
must be in writing. Throughout these
regulations, we have provided flexibility
in the timeline for sending a repatriation
statement (between 30 and 90 days), and
we have retained that timeline.
In response to several comments, we
reiterate that competing requests for
repatriation must occur before a
repatriation statement is sent and when
a competing request is received, the
timeline for a repatriation statement
changes. If a competing request for
repatriation is received the day before a
repatriation statement is sent, the
museum or Federal agency must wait to
send the repatriation statement and
evaluate the competing requests in
accordance with the procedures and
deadlines for evaluating competing
requests for repatriation. One comment
remarked that ‘‘[g]iven the busy
schedules of Tribes and museums, and
planning costs associated with
repatriation, allowing requests a day
before a repatriation statement is
scheduled to be submitted would make
decisions and obligations between
museums and Tribe hollow and a
potential point of contention.’’ This
comment is precisely the main reason
the regulations require a repatriation
statement separate from physical
transfer. Scheduling and incurring costs
associated with physical transfer should
wait until after a repatriation statement
is sent, assuring all parties that their
decisions and obligations can be
upheld. In addition, we recommend a
museum or Federal agency send a
repatriation statement as early as
possible under the regulations to ensure
expeditious return. We further
recommend that in a request for
repatriation, the lineal descendant,
Indian Tribe, or NHO request a
repatriation statement be sent as early as
possible under the regulations. As
discussed elsewhere, if no competing
requests are received, 31 days is the
minimum amount of time between
notice publication and sending a
repatriation statement.
We decline to remove the timeline for
evaluating competing requests. We
believe it is important to require
museums and Federal agencies to make
determinations within a set timeframe,
even if that determination is that they
cannot determine the most appropriate
requestor. This option allows parties to
continue consultation but ensures all
parties have been informed of the
museum or Federal agency’s decision.
We have not added a timeline for
submission of additional information,
but we have included an option for
submission of additional information in
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the appropriate paragraphs and in
§ 10.3(e) Competing claims or requests.
We note that any request for repatriation
must provide information to meet the
criteria and that information, along with
the record of determining cultural
affiliation, should be used to determine
the most appropriate requestor. Where
competing requests are between Indian
Tribes or NHOs with cultural affiliation,
the priority order under § 10.3(e)
Competing claims or requests, as
revised, relies on how the cultural
affiliation determination was made
(clearly identified or reasonably
identified). Any party may seek
assistance of a court of competent
jurisdiction to resolve a conflict under
these regulations. Given the variables in
how a stay of repatriation might be
resolved, we cannot require
consultation after a resolution but we
can and do require notification and
repatriation within set timeframes.
95. Comment: We received 20
comments requesting that the
Department create a repository for
information related to repatriation
under this subpart. Some of these
comments requested that the repository
include information on Indian Tribes
with cultural affiliation to a
geographical location. Other comments
requested a contact database that is
updated every six months. Many of
these comments requested a digital
repository with detailed information
from inventories, summaries, and
notices that is accessible only to Indian
Tribes and NHOs and is protected from
public release under the Freedom of
Information Act. Four comments
requested the Department publish a list
of the museums and Federal agencies
with the largest collections of human
remains or cultural items.
DOI Response: We decline to add any
such requirement to the regulations as
this is a matter of policy, subject to a
wide variety of other laws, regulations,
and policy for information technology,
protection of personally identifiable
information, and special relationships
between the United States and Indian
Tribes and NHOs. The Department,
through the National NAGPRA Program,
is responsible for receiving and
maintaining many documents related to
repatriation, including inventories,
summaries, and notices. These
documents are not exempt from public
disclosure, as discussed under
Comment 5, and we are unable to
produce the kind of protected database
some of the comments requested.
We do, and have for nearly 20 years,
provided information about repatriation
through the National NAGPRA Program
website. After nearly 33 years, one of
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the best sources for information about
cultural affiliation are the over 4,400
notices that have been published in the
Federal Register. Fully text searchable
beginning in 1994, notices can easily be
searched at https://
www.federalregister.gov/ (accessed 12/
1/2023). The National NAGPRA
Program has and will continue to
improve digital maintenance and access
to data about repatriation through its
website. Since 2020, the National
NAGPRA Program has provided realtime data on inventories, summaries,
and notices at https://www.nps.gov/
subjects/nagpra/databases.htm
(accessed 12/1/2023). In addition to the
databases, since 2019, the National
NAGPRA Program has provided annual
data in searchable data visualization
tools at https://public.tableau.com/app/
profile/nationalnagpra (accessed 12/1/
2023). We are committed to developing
useful and innovative tools to share
available data securely, safely, and
publicly.
96. Comment: We received 35
comments on the provisions for a
museum or Federal agency to request
the Assistant Secretary’s written
concurrence that human remains or
cultural items are indispensable for
completion of a specific scientific study.
Most of these comments requested the
Assistant Secretary consult with Indian
Tribes and NHOs prior to issuing
written concurrence or that the request
from the museum or Federal agency
include written consent from the
appropriate Indian Tribe or NHO to the
study. A few comments requested this
section be removed entirely and the
regulations should prohibit any
scientific study of human remains or
cultural items.
DOI Response: We cannot remove the
provisions for ‘‘scientific study’’ from
these regulations as that would be
inconsistent with the Act. ‘‘Scientific
study’’ is used twice in the Act itself:
• First, the Act explicitly and
specifically does not require new
scientific studies on human remains or
associated funerary objects to complete
an inventory or determine cultural
affiliation (25 U.S.C. 3003(b)(2)).
• Second, the Act requires that when
a specific scientific study of human
remains, associated funerary objects,
unassociated funerary objects, sacred
objects, or objects of cultural patrimony
will result in a major benefit to the
United States, a museum or Federal
agency may postpone repatriation but
may not deny the request for
repatriation (25 U.S.C. 3005(b)).
The first statutory provision only
applies to human remains and
associated funerary objects (25 U.S.C.
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3003(b)(2)). Similar language does not
appear in the Act for unassociated
funerary objects, sacred objects, and
cultural patrimony (25 U.S.C.
3004(b)(2)). This is likely due to the
difference between a summary and an
inventory. As noted in the 1995 Final
Rule, the difference between a summary
and an inventory ‘‘reflects not only their
subject matter, but also their detail (brief
overview vs. item-by-item list), and
place within the process’’ (60 FR
62140). Since a summary is a brief
overview of a holding or collection,
there is no need to include the first
provision for unassociated funerary
objects, sacred objects, and cultural
patrimony.
The second statutory provision for
‘‘scientific study’’ applies to all ‘‘Native
American cultural items,’’ which are
defined in the Act as human remains,
associated funerary objects,
unassociated funerary objects, sacred
objects, and objects of cultural
patrimony (25 U.S.C. 3005(b)). The Act
refers to this exception in each of the
four paragraphs that require expeditious
repatriation (25 U.S.C. 3005(a)). As any
elimination or restriction of 25 U.S.C.
3005(b) would require an act of
Congress, we cannot remove the
provisions that allow for ‘‘scientific
study’’ entirely. We understand that
‘‘scientific study’’ in both §§ 10.9 and
10.10 is adverse to Tribal interests and
may seem to allow or authorize
scientific studies. While we cannot
remove these statutorily required
exceptions to expeditious repatriation,
we can limit the implementation of
these exceptions through the
regulations.
First, we have made changes to
§ 10.1(d) Duty of care to require
museums and Federal agencies obtain
consent from lineal descendants, Indian
Tribes, or NHOs prior to conducting any
research on human remains or cultural
items. In that paragraph, we state
‘‘research’’ equates to the term
‘‘scientific study’’ in the Act and means
any study, analysis, examination, or
other means of acquiring or preserving
information. ‘‘Research’’ includes any
activity to generate new or additional
information beyond the information that
is already available, for example,
osteological analysis of human remains,
physical inspection or review of
collections, examination or segregation
of comingled material (such as soil or
faunal remains), or rehousing of
collections. ‘‘Research’’ is not required
to identify the number of individuals or
cultural items, or to determine cultural
affiliation.
Second, the proposed regulations
provided procedures to administer the
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second statutory provision as a stay of
the repatriation timeline under §§ 10.9
and 10.10. A request to exercise this
stay of repatriation must be submitted
before publication of a notice of
intended repatriation or a notice of
inventory completion. This means that
for human remains and associated
funerary objects, a request must be made
before the deadline to publish a notice
of inventory completion (in the final
regulations, this is five years and six
months after the effective date of the
final regulations). After the notice is
published, this exemption cannot be
used to delay repatriation. The proposed
regulations and these final regulations
require the Assistant Secretary’s written
concurrence with the request and
stipulates the specific requirements for
such a request, including explaining the
‘‘major benefit’’ and why the human
remains or cultural items are
‘‘indispensable.’’ The request must also
state that the study has in place the
requisite funding and a completion
schedule and completion date.
Third, we agree with the comments
that the request must demonstrate
consent from lineal descendants, Indian
Tribes, or NHOs and that the Assistant
Secretary must consult with Indian
Tribes or NHOs before concurring with
the request. We have added these
requirements to the regulations in
§§ 10.9 and 10.10.
K. Section10.8 General
97. Comment: We received six
comments on § 10.8 General. Four
comments requested a deadline be
imposed for museums and Federal
agencies to determine possession or
control of holdings or collections. One
comment requested ‘‘authorized
representatives’’ be replaced with
‘‘appropriate official.’’ One comment
requested the regulations prohibit
museums and Federal agencies from
engaging with NAGPRA consultants or,
if consultants are engaged, they be
required to comport with the law and
the regulations, and any violations be
reviewed by the National NAGPRA
Program.
DOI Response: We have not made any
of the requested changes. Museums and
Federal agencies have deadlines to
determine possession or control of
holdings or collections under
paragraphs (c) and (d) of this section
and through the timelines requiring
repatriation under §§ 10.9 and 10.10.
The term ‘‘appropriate official’’ applies
only to Subpart B and includes Indian
Tribes and NHOs. Although this
paragraph requires an authorized
representative be identified, Subpart C
does not use this term but instead makes
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86499
the subject of these regulations the
museum or Federal agency to reinforce
who is responsible for acting under
these regulations. We cannot prohibit or
require review of NAGPRA consultants
in these regulations. A museum or
Federal agency may identify any
authorized representative it chooses to,
but the museum or Federal agency is
responsible for the actions of that
representative. Any failure to comply
with these regulations is a failure of the
museum or Federal agency who has
responsibility under this subpart.
98. Comment: We received two
comments on § 10.8(a) Museum holding
or collections, in addition to those
discussed elsewhere. One comment
requested instructions on reporting
newly acquired holdings or collection
where the museum asserts a right of
possession through donation or
excavation conducted under State law.
One comment requested clear
guidelines for museums to determine
possession or control.
DOI Response: We have not made
changes to this paragraph. We believe
this paragraph provides clear guidelines
for museums to determine possession or
control, including for any new holdings
or collections or previously lost or
unknown holdings or collections. As
discussed elsewhere, the Act and these
regulations define a right of possession
and apply it in some manner to human
remains, funerary objects, sacred
objects, and objects of cultural
patrimony. When a museum or Federal
agency asserts a right of possession to
cultural items in its holding or
collection, the museum or Federal
agency must include those cultural
items in its summary. When a museum
or Federal agency can prove it has a
right of possession to human remains, it
may exclude those physical remains
from its inventory. We note that when
human remains and associated funerary
objects are excavated from State or
private land, requirements under State
law may not equate to right of
possession and a museum (including a
State or local agency) should ensure it
can prove it has a right of possession to
human remains and associated funerary
objects independent of such
requirements.
99. Comment: We received eight
comments requesting clarification on
§ 10.8(b) Federal agency holding or
collection. All the comments questioned
why a Federal agency must determine
when or where a holding or collection
was acquired.
DOI Response: We have made
clarifying changes to this paragraph. For
a holding or collection, a Federal agency
must determine if the human remains or
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cultural items are subject to disposition
under Subpart B or repatriation under
Subpart C. To make this determination,
the Federal agency must determine
when and where the human remains or
cultural items were removed. If the
human remains or cultural items were
removed from Federal or Tribal land
after November 16, 1990, the Federal
agency must use Subpart B to complete
the disposition of those human remains
or cultural items. If the human remains
or cultural items were removed from
Federal lands on or before November 16,
1990, or after that date from an
unknown location or from lands that are
not Federal or Tribal lands, the Federal
agency must use Subpart C to complete
the repatriation of those human remains
or cultural items.
For example, if a museum has custody
of a holding or collection that was
excavated from Federal land in 1991,
the Federal agency who has
responsibility for that Federal land must
comply with Subpart B and identify the
lineal descendant, Indian Tribe, or NHO
that has priority for disposition of the
human remains or cultural items by
following the requirements of § 10.7.
Regardless of how long the human
remains or cultural items have been in
the custody of the museum, the Federal
agency has responsibilities for ensuring
the disposition of those human remains
or cultural items that were removed
from Federal land after November 16,
1990.
A Federal agency cannot apply the
summary and inventory requirements in
Subpart C to any human remains or
cultural items that were removed from
Federal or Tribal land after November
16, 1990. Under the Act, those human
remains or cultural items are subject to
disposition under Subpart B.
100. Comment: We received 18
comments on § 10.8(c) Museums with
custody of a Federal agency holding or
collection. Of the total comments, eight
comments were supportive, although
most referred to corresponding
comments on the definition of
‘‘custody.’’ One supportive comment
highlighted the presumptive language
when a Federal agency fails to decide
within the set timeline. Four comments
requested publication of museum
statements in the Federal Register or
otherwise provided to Indian Tribes and
NHOs. One comment was supportive
but concerned that Federal agencies
would be unable to respond within the
timeframe while one comment felt the
timeframe was too long and should be
much shorter. One comment questioned
how this would be enforced while one
comment was concerned this would
make Federal agencies responsible for
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holdings or collections they haven’t yet
taken responsibility for. One comment
requested the statement be more than a
statement and align with the
requirements for a summary and
inventory. One comment questioned the
Department’s authority to require
statements on non-NAGPRA collections,
requested more information on joint
possession or control, suggested
changing possession or control to
ownership or legal title, and posited
Federal agencies must first request these
statements under 36 CFR 79 rather than
through these regulations.
DOI Response: We have not made
changes to this paragraph. Elsewhere in
these regulations, we have addressed
the definition of ‘‘custody.’’ We have
not changed the deadline for a museum
to issue a statement (one year after the
effective date of the final regulations) or
for a Federal agency to respond (six
months or 180 calendar days after
receipt of the museum’s statement).
Both deadlines are important to ensure
resolution to this long-standing barrier
to repatriation. We understand and
share the concern expressed by one
comment that a Federal agency who has
not shouldered responsibility for a
collection to date will be required to
take responsibility for it in the future.
We believe that this requirement will
result in increased awareness by Federal
agencies of their responsibilities for
these holdings or collections but also in
an opportunity to hold Federal agencies
accountable for those holdings or
collections. We have not required
publication of those statements in the
Federal Register, but the statements will
be added to the records kept by the
National NAGPRA Program and will be
available upon request. We plan to
provide information on the program
website, like what we provide for other
records.
The Department has authority for both
these regulations and for 36 CFR part 79
and the Department recognizes the
overlapping nature of these regulations
for Federal agency holdings or
collections that contain human remains
or cultural items. We disagree that the
Department does not have authority to
require statements of holdings or
collections that contain human remains
or cultural items. As discussed
elsewhere, when a Federal agency
holding or collection is known to not
contain human remains or cultural
items, it is not subject to the Act or these
regulations.
101. Comment: We received eight
comments on § 10.8(d) Museums with
custody of other holdings or collections.
Five comments generally supported this
requirement but suggested it be
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broadened to include holdings or
collections that are under the control of
another entity or when control cannot
be identified, except for those under
Federal agency control. In addition,
these comments requested custody be
replaced with possession, consistent
with comments on those definitions.
Two comments opposed this
requirement and thought the deadline
was unrealistic. Both comments stated
the requirement for a museum to
identify legal ownership status of its
holdings or collections was onerous and
would require significant resources. One
of these comments stated the issue was
not a lack of information so much as it
was too much information that required
significant time to analyze and
synthesize to decide. One comment
specifically opposed any requirement
for museums to notify State and local
governments of holdings or collections,
questioned how this would work with
State repatriation laws, and suggested it
could result in legal disputes. The
comment stated many State and local
governments are unaware of NAGPRA
and do not have funding or staff to
comply with these regulations. The
comment questioned how these
regulations would apply to criminal
investigations and medical examiners
who may hold samples of biological
materials.
DOI Response: We have not made
changes to this paragraph. This
paragraph requires museums to provide
statements describing those holdings or
collections for which it cannot identify
an entity with possession or control.
Where a museum can identify that a
person, institution, or State or local
government agency has possession or
control of the holding or collection, no
statement is required. We encourage a
museum with custody of a holding or
collection that contains human remains
or cultural items to notify the entity that
has possession or control, but we do not
require that notification because doing
so would exceed the Secretary’s
authority under the Act. The entity that
has possession or control of the human
remains or cultural items is responsible
for complying with these regulations.
We understand that many museums do
not have clear documentation for
holdings or collections, and as one
comment stated, museums may be
required to undertake a comprehensive
review of the legal ownership status to
determine if the owner is, indeed,
known. This is not only a requirement
for purposes of these regulations, but is,
in general, a professional and ethical
requirement for museums. A central
tenant of collections management and
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care is documentation of not only the
objects in a holding or collection, but of
the legal ownership status of those
holdings or collections. For holdings or
collections that contain human remains
or cultural items, a museum must
ensure it can identify the legal
ownership of the holding or collection
or risk a failure to comply with these
regulations.
State and local government agencies
are included in the definition of
museum in the Act and these
regulations and where such agencies
have possession or control of human
remains or cultural items, regardless of
their physical location, and those
agencies receive Federal funds, they
must comply with the requirements for
repatriation under this subpart. Any
museum, including State or local
government agencies, that fail to comply
with these requirements are subject to
the civil penalty provisions.
As discussed elsewhere, unless local
or State authorities obtain the full
knowledge and consent of the next of
kin or the official governing body of the
appropriate Indian Tribe or NHO,
coroners, medical examiners, and other
local or State agencies should consider
their requirements under the Act and
these regulations for any Native
American human remains, including
biological samples.
102. Comment: We received six
comments on adding a new paragraph to
§ 10.8 related to making grants to Indian
Tribes, NHOs, and museums. In
addition to the statutory language on
grants, the comments suggested
including a limitation on initiation of
any new scientific study of human
remains and associated funerary objects.
DOI Response: We have not added the
requested paragraph. We do not see a
value in repeating the statutory language
regarding grants in these regulations.
We have addressed the issues of new
scientific studies under § 10.1(d) Duty of
care. The Notice of Funding
Opportunity for NAGPRA grants
provides guidance and limitations on
potential use of grant funds and is the
best place for any additional
requirements to be added.
L. Section 10.9 Repatriation of
Unassociated Funerary Objects, Sacred
Objects, or Objects of Cultural
Patrimony
103. Comment: We received 11
comments generally on § 10.9
Repatriation of unassociated funerary
objects, sacred objects, or objects of
cultural patrimony. Four comments
objected to preparation of a summary
prior to consultation with lineal
descendants, Indian Tribes, or NHOs.
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One of these comments suggested
reordering the steps so consultation
occurs before a summary is developed.
Another of these comments suggested
changing ‘‘Complete a summary’’ to
‘‘Draft a summary’’ to recognize the
need for consultation. On the other
hand, seven comments supported the
proposed regulations because it was
clear that the requirement of a summary
as a general description and the
following step-by-step procedures were
sufficient to ensure consultation prior to
any determinations.
DOI Response: We have not changed
the order of the steps as that would be
inconsistent with the Act. We have
changed ‘‘Complete a summary’’ to
‘‘Compile a summary.’’ We agree with
most of these comments that the
proposed regulations are clear that a
summary is a general description of a
holding or collection and must be
followed by consultation with lineal
descendants, Indian Tribes, and NHOs.
As the step-by-step procedures make
clear, determinations related to specific
cultural items come after a request for
repatriation is received. In its response
to the request, a museum or Federal
agency must determine if the request
meets the required criteria and, if not,
must explain why.
104. Comment: We received nine
comments on § 10.9(a) Step 1—
Complete a summary of a holding or
collection. Four comments requested
that summaries should be published in
the Federal Register or otherwise shared
with Indian Tribes and NHOs by the
National NAGPRA Program after they
are submitted. One comment requested
the summary be expanded to include all
Native American objects in a collection.
One comment requested a better
definition of when a summary is
complete because that will trigger other
deadlines. One comment stated that
when a holding or collection is
transferred, the previously prepared
summary can only be relied on if it was
sufficient in the first place. One
comment requested updated summaries
be required in these regulations while
one comment asked if previously
submitted summaries were sufficient
and did not require updates.
DOI Response: We have not included
a requirement for summaries to be
published in the Federal Register or
otherwise shared by the National
NAGPRA Program. Museums and
Federal agencies must send the
summary with an invitation to consult
to any lineal descendant and any Indian
Tribe or NHO with potential cultural
affiliation no later than 30 days after
submitting the summary to the National
NAGPRA Program. The National
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NAGPRA Program retains copies of all
summaries it has received since 1990
and will provide them upon request.
The National NAGPRA Program
maintains an online database that
identifies which museums and Federal
agencies have submitted summaries and
which Indian Tribes or NHOs were
invited to consult. We cannot require a
summary include all Native American
objects in a holding or collection as this
would be inconsistent with the Act.
These regulations require a summary to
include the entire holding or collection
which may include cultural items. We
note that only holdings or collections, or
portions of holdings or collections, that
may contain cultural items are required
to be identified in a summary.
Table 1 to § 10.9(a)(2) identifies the
deadlines for compiling a summary after
the effective date of these final
regulations for holdings or collections
that are newly acquired, previously lost
or unknown, or in the possession or
control of a museum or Federal agency
that receives Federal funds for the first
time. Prior to the effective date of these
final regulations, summaries must have
been submitted by the dates identified
in paragraph (a)(3) of this section. When
a holding or collection is transferred to
a museum or Federal agency, the
museum or Federal agency must inform
the National NAGPRA Program by
submitting the previously compiled
summary within 30 days of acquiring
the holding or collection. The museum
or Federal agency must compile its own
summary by the deadline in Table 1 to
ensure that the contents of the summary
are accurate, include any additional
information available, and reflect the
newly acquired holding or collection.
Six months is the deadline in the
existing regulations for submitting a
summary for a newly acquired or
previously lost or unknown holding or
collection and has been since 2007 (see
Future Applicability Final Rule, RIN
1024–AC84 (72 FR 13184, March 21,
2007). Anytime a museum or Federal
agency becomes aware of a holding or
collection that may contain cultural
items and that has not been submitted
in a summary, it must treat the holding
or collection as a previously lost or
unknown collection and compile a
summary within six months of
becoming aware of the holding or
collection. As discussed in other
responses, a museum or Federal agency
is responsible for complying with the
requirements of this subpart for all
holdings or collections in its possession
or control that may contain human
remains or cultural items.
Updated summaries are not required
by the existing regulations or by these
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final regulations. As discussed above,
there are requirements for a summary to
be submitted for newly acquired or
previously lost or unknown holdings or
collections. Similarly, when a new
consulting party is identified, either
based on new information or a newly
federally recognized Indian Tribe, a
museum or Federal agency must send
an invitation to consult to the new
consulting parties. Because a summary
is a general description of a holding or
collection, it does not require updates
provided the initial summary
adequately described the holding or
collection. While many museums have
submitted updated summaries under the
existing regulations, these are better
identified as new summaries covering
new or previously unreported
collections. More detailed information
about specific cultural items in a
holding or collection is more
appropriate for consultation and a
notice of intended repatriation and does
not require an updated summary.
105. Comment: We received nine
comments on § 10.9(d) Step 4—Receive
and consider a request for repatriation.
Seven comments noted that
geographical affiliation, as used in the
proposed regulations, was not one of the
criteria for a request for repatriation.
Two comments related to the third
criterion for information to support a
finding that the museum or Federal
agency does not have right of
possession. One comment felt this
would require significant resources for
Indian Tribes and NHOs while the other
comment suggested stating that if an
object meets the definition of one of the
cultural items, the definition alone is
sufficient to meet the criteria.
DOI Response: Under the Act, there
are three criteria for the repatriation of
an unassociated funerary object, sacred
object, and object of cultural patrimony:
the establishment, as appropriate, of
lineal descent or cultural affiliation; the
establishment of the identity of the
object as a cultural item; and the
presentation of evidence which, if
standing alone before the introduction
of evidence to the contrary, could
support a finding that the museum or
Federal agency did not have a right of
possession to the cultural item (25
U.S.C. 3005(a)(2) and (c)). Concerning
this last criterion, the lineal descendant,
Indian Tribe, or NHO making the
request for repatriation is not required
to do additional research on the object
and can likely use the information
provided by the museum or Federal
agency about the object to satisfy all
three criteria.
For example, a museum has
information that a pipe was acquired
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and accessioned in 1985 from an
individual donor, a doctor, who
originally received the pipe in 1965 as
a gift. During consultation, a traditional
religious leader identified the pipe as a
sacred object needed by present-day
pipe carriers for a traditional pipe
ceremony. By speaking with elders, the
traditional religious leader learned that
in 1954, the U.S. Government
terminated the Indian Tribe of the last
Native American to own the pipe.
Termination resulted in the Tribe’s land
base being sold, relocation of the Tribe’s
people to multiple urban areas
throughout the U.S., and the forced
suspension of the traditional religious
practice associated with the pipe. The
Native American owner relocated to the
metropolitan area of the museum in
1957 and was unemployed from 1963
until the end of his life in 1966. The
terminated Indian Tribe and the Indian
Tribe who identified the traditional
religious leader have a relationship of
shared group identity through their
origin stories, inter-marriage, and pipe
ceremonies. The historical context
surrounding the acquisition of the
sacred object by the museum would be
evidence to support a finding that,
while the Native American owner had
the authority to alienate the pipe, this
transaction was not made voluntarily or
fully freely. Consequently, in making its
request for repatriation of this sacred
object, the Indian Tribe could state (1)
the pipe is a sacred object, (2) the Indian
Tribe has cultural affiliation to the pipe
based on historical information,
kinship, and expert opinion, and (3) the
historical information surrounding the
acquisition of the sacred object shows
that the museum does not have a right
of possession to the sacred object.
106. Comment: We received seven
comments on § 10.9(e) Step 5—Respond
to a request for repatriation. One
comment stated that any request from a
federally recognized Indian Tribe
satisfies the criteria for repatriation and
no other criteria should be required.
Four comments believe the option for a
museum or Federal agency to assert a
right of possession was either
impossible, a loophole, absurd, or
intentionally obtuse. One comment
stated a museum or Federal agency must
show right of possession by a
preponderance of the evidence. One
comment stated that no museum or
Federal agency could have possession or
control of an object of cultural
patrimony based on the definition of
such an object.
DOI Response: The criteria identified
in paragraph (d) of this section are
drawn from the Act itself at 25 U.S.C.
3005(a)(2)—requiring identification of
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the specific type of cultural item and
cultural affiliation to the requestor and
25 U.S.C. 3005(c)—requiring
information regarding right of
possession. Right of possession is not
intended to be a loophole or
intentionally obtuse, but it is a standard
that must be applied to requests for
repatriation. The legal language of the
Act ‘‘presents evidence which, if
standing alone before the introduction
of evidence to the contrary, would
support a finding that the Federal
agency or museum did not have the
right of possession’’ has been
interpreted here to fit within the steps
of receiving and responding to a request
for repatriation. As discussed in the
previous response, a request must
include 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.
In response to the information in the
request for repatriation, a museum or
Federal agency has an opportunity to
‘‘overcome such inference and prove
that it has a right of possession to the
objects.’’ The standard applied to right
of possession is distinct from and in
some ways harder to satisfy than
preponderance of the evidence. A
museum or Federal agency must prove
it has a right of possession to refuse to
repatriate a cultural item.
A museum or Federal agency may
have possession or control of an object
of cultural patrimony, as those terms are
defined in the Act and these regulations.
It is unlikely that a museum or Federal
agency will have a right of possession to
an object of cultural patrimony, given
the definition of that term. Nevertheless,
each request for repatriation of an object
of cultural patrimony must be evaluated
based on the information available.
107. Comment: We received one
comment on § 10.9(h) Evaluating
competing requests for repatriation,
objecting to the priority order that
includes lineal descendants as it differs
from the priority order in the Act at 25
U.S.C. 3002(a).
DOI Response: We cannot make the
requested change to remove lineal
descendants from the priority order for
unassociated funerary objects or sacred
objects. The referenced priority order
applies to human remains or cultural
items removed from Federal or Tribal
lands under Subpart B of these
regulations. For holdings or collections
under Subpart C of these regulations,
the Act provides for lineal descendants
to request sacred objects under 25
U.S.C. 3005(a)(5). By definition, an
object of cultural patrimony cannot be
connected to a lineal descendant. By
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definition, an unassociated funerary
object could be connected to a lineal
descendant, provided that the related
human remains are those of a known
individual whose ancestry can be
traced. The circumstances under which
a lineal descendant can be identified for
unassociated funerary objects is limited,
but where possible, those lineal
descendants have priority when there
are competing requests.
For example, in 1880, funerary objects
were removed from the marked grave
site of a known individual shortly after
the individual’s death and burial. The
human remains were not removed. In
1940, the family of the person who
removed the funerary objects from the
grave site donated the objects to a local
historical society. Accession records
and exhibit labels at the historical
society identify the individual who was
buried with the funerary objects by
name. A lineal descendant who can
trace ancestry to the known individual
requests repatriation of the unassociated
funerary objects. After the notice of
intended repatriation is published in the
Federal Register, the Indian Tribe with
cultural affiliation also requests
repatriation of the funerary objects.
Using this paragraph, the historical
society determines the lineal
descendant is the most appropriate
requestor.
M. Section 10.10 Repatriation of
Human Remains or Associated Funerary
Objects
108. Comment: We received six
comments on § 10.10(a) Step 1—
Compile an itemized list of any human
remains and associated funerary objects.
Two comments supported this
paragraph as proposed. Two comments
requested additional language to require
the inclusion of human remains and
associated funerary objects that are
identified in documentation that cannot
be located or are known to have been
destroyed. Two comments requested
that this paragraph require consultation
prior to any analysis and allow Indian
Tribes and NHOs to dictate the level of
documentation or analysis required to
complete the itemized list.
DOI Response: We have not made the
requested changes. Based on the
information available, a museum or
Federal agency must determine if
human remains or cultural items that
are destroyed, deaccessioned, lost, or in
any other way removed are under its
possession or control and therefore
subject to these regulations. As
discussed elsewhere, a museum or
Federal agency must ensure the
itemized list is comprehensive and
covers any holding or collection that
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may contain human remains and
associated funerary objects. We note
that an itemized list may be prepared
using only documentation identifying
human remains and associated funerary
objects and there is no requirement to
physically locate the human remains
and associated funerary objects.
We have not added the requested
requirement for consultation to this
paragraph but have, nevertheless,
provided that lineal descendants, Indian
Tribes, and NHOs must consent to any
analysis of human remains and
associated funerary objects. As provided
in this paragraph, museums and Federal
agencies must identify the number of
individuals in a reasonable manner
based on the information available. No
additional study or analysis is required
to identify the number of individuals. If
human remains are present in a holding
or collection, the number of individuals
is at least one. We have made changes
to § 10.1(d) Duty of care to require
museums and Federal agencies obtain
consent from lineal descendants, Indian
Tribes, or NHOs prior to conducting any
research on human remains or cultural
items. ‘‘Research’’ includes any activity
to generate new or additional
information beyond the information that
is already available, for example,
osteological analysis of human remains,
physical inspection or review of
collections, examination or segregation
of comingled material (such as soil or
faunal remains), or rehousing of
collections. ‘‘Research’’ is not required
to identify the number of individuals or
cultural items, or to determine cultural
affiliation.
109. Comment: We received three
comments on § 10.10(b) Step 2—Initiate
consultation. All three comments
requested guidance on how to identify
consulting parties for human remains
and associated funerary objects with no
known geographical location or a broad
geographical location such as
‘‘Southwestern.’’ One of these
comments recommended that human
remains with no geographical location
information should be assumed to be
from a geographical location near the
museum or Federal agency. ‘‘For human
remains believed to be Native American
such as those with no provenance, it
makes sense to establish a presumption
for return and reburial rather than
indefinite curation of these ancestral
human remains.’’ The comment stated
broad consultation with all Indian
Tribes and NHOs ‘‘. . . is an inefficient
manner of handling disposition of
Native American human remains with
no provenance’’ (NPS–2022–0004–
0166). Another comment agreed stating
‘‘[s]ending consultation letters to all 574
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Tribes and engaging in consultation
with respondents would be extremely
burdensome for the museum or Federal
agency and could impede other
repatriation efforts’’ (NPS–2022–0004–
0125).
On the other hand, one comment
stated Indian Tribes and NHOs prefer
for museums and Federal agencies to
consult broadly with all 347 Indian
Tribes in the contiguous 48 States, 227
Indian Tribes in Alaska, and all Native
Hawaiian organizations. The comment
stated ‘‘[w]hile only approximately 4%
of individuals have no geographic
location information, they deserve to be
treated with equal respect.’’ The
comment asked for clarification because
‘‘inconsistent guidance is provided by
the Review Committee, which
encourages broad consultation, and the
National NAGPRA Program, which
encourages making arrangements with
the Tribe or Tribes whose aboriginal
homeland includes the location of the
museum’’ (NPS–2022–0004–0135).
DOI Response: We have not made
changes to this paragraph. We want to
stress that broad consultation with all
574 Indian Tribes and all NHOs is not
a requirement of either the existing
regulations or the final regulations. We
disagree that the Review Committee and
the National NAGPRA Program have
provided inconsistent guidance. Both
the Review Committee and the National
NAGPRA Program support consultation
that leads to expeditious repatriation.
Both the Review Committee and the
National NAGPRA Program advise that
broad consultation helps alleviate the
potential for competing requests or
disagreements. Under the existing
regulations and these final regulations,
a museum or Federal agency is
responsible for identifying consulting
parties and initiating consultation based
on the information available. Museums
and Federal agencies can choose to
consult broadly, even if doing so is
burdensome and less efficient.
Under these final regulations, there is
a specific timeframe for museums and
Federal agencies to consult on human
remains and associated funerary objects.
Yet, it is still up to a museum or Federal
agency to identify lineal descendants
and Indian Tribes and NHOs with
potential cultural affiliation and invite
them to consult. For example, based
only on acquisition history and the
current location of the museum, a
museum could decide its preference is
to only invite Indian Tribes who
currently reside in the county and State
where the museum is located.
Alternately, a museum could decide to
invite all Indian Tribes who previously
occupied the State where the museum is
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located to participate in consultation. Or
a museum could decide to invite all
Indian Tribes who reside in the wider
geographic region (northeast or
southwest, for example) or all 574
Indian Tribes and all NHOs to
participate in consultation. Provided the
museum is acting in good faith, any of
these options are sufficient, but a
museum or Federal agency should keep
in mind the deadline for completing or
updating an inventory and publishing a
notice of inventory completion.
110. Comment: We received four
comments on § 10.10(d) Step 4—
Complete an inventory of human
remains and associated funerary objects
that expressed concern about the
determinations that are required in an
inventory under paragraph (d)(1)(iii) of
this section.
DOI Response: We have revised the
list of determinations in an inventory
under paragraph (d)(1)(iii) to correspond
to the changes in § 10.3 Determining
cultural affiliation. For each entry in an
itemized list, the inventory must
include a determination identifying one
of the following:
1. A known lineal descendant (whose
name may be withheld);
2. The Indian Tribe or Native
Hawaiian organization with cultural
affiliation that is clearly identified by
the information available;
3. The Indian Tribe or Native
Hawaiian organization with cultural
affiliation that is reasonably identified
by the geographical location or
acquisition history; or
4. No lineal descendant or any Indian
Tribe or Native Hawaiian organization
with cultural affiliation can be clearly or
reasonably identified.
The two options for identifying
cultural affiliation come directly from
the Act, which we have also used in
defining cultural affiliation and in § 10.3
Determining cultural affiliation. In the
Act, cultural affiliation of human
remains may be (1) clearly identified or
(2) not clearly identified but determined
by a reasonable belief given the
‘‘circumstances surrounding
acquisition’’ (25 U.S.C. 3003(d)(2)(B)
and (C)). Throughout this section of the
Act, there is reference to an inventory
identifying ‘‘geographical and cultural
affiliation,’’ ‘‘geographical origin,’’
‘‘basic facts surrounding acquisition and
accession,’’ ‘‘[T]ribal origin,’’ and
‘‘totality of circumstances surrounding
acquisition of the remains or objects’’
(25 U.S.C. 3003). The existing
regulations require an inventory to
include accession and catalogue entries
and information related to the
acquisition of each object, including: the
name of the person from whom the
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object was obtained, if known; the date
of acquisition; the place each object was
acquired; and the means of acquisition.
The proposed regulations revised this
into two separate and simplified
requirements under § 10.10(a): (1) the
county and State where the human
remains and associated funerary objects
were removed and (2) the acquisition
history (provenance) of the human
remains and associated funerary objects.
In these final regulations, the
requirements under § 10.10(a) are (1) the
geographical location (provenience) by
county or State where the human
remains and associated funerary objects
were removed; and (2) the acquisition
history (provenance) of the human
remains and associated funerary objects.
‘‘Acquisition’’ is not defined in the Act
or these regulations and should be
understood to have a standard,
dictionary definition of ‘‘to get as one’s
own; to come into possession or control
of.’’ To elaborate and clarify what
information the Act requires, we have
separated the concept of acquisition into
two separate parts: ‘‘provenience’’ and
‘‘provenance’’ which both mean ‘‘origin,
source.’’ Provenance also means ‘‘the
history of ownership of a valued object
or work of art or literature’’ (https://
www.merriam-webster.com/dictionary/
acquire, https://www.merriamwebster.com/dictionary/provenience,
and https://www.merriam-webster.com/
dictionary/provenance, accessed 12/1/
2023).
Therefore, under § 10.10(a) and (d), a
museum or Federal agency must
identify both the geographical location
(provenience) from which the human
remains and associated funerary objects
were removed, but also the acquisition
history (provenance) of the human
remains and associated funerary objects.
Even in the small number of cases
where geographical location
(provenience) of human remains and
associated funerary objects is unknown,
all human remains and associated
funerary objects (as well as other
cultural items) will have some kind of
acquisition history or provenance. Even
when the only information about human
remains and associated funerary objects
is that they were ‘‘found in collections’’
of a museum, that information is
sufficient to identify the Indian Tribes
or NHOs with potential cultural
affiliation for consultation based solely
on the location of or general collection
practices of the museum.
111. Comment: We received nine
other comments on § 10.10(d) Step 4—
Complete an inventory of human
remains and associated funerary objects.
One comment objected to the
requirement for updating an inventory
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under paragraph (d)(4) of this section as
work formerly deemed ‘‘complete’’ will
now be ‘‘incomplete’’ and this
undermines the goal of improving
implementation and compliance with
the Act. One comment requested
changes to require the Assistant
Secretary to monitor the work of
museums who requested an extension.
Seven comments requested clarification
of the requirements when a holding or
collection is transferred.
DOI Response: We disagree that the
requirement to update an inventory
undermines the goal of improving
implementation and compliance with
the Act and these regulations. Just as
they were required to do in 1990,
museums and Federal agencies must
initiate consultation, consult on human
remains and associated funerary objects,
and make determinations about cultural
affiliation. In updating an inventory, the
museums or Federal agencies already
have a significant amount of
information available in the previously
prepared and submitted inventories. No
additional research or analysis is
required by these regulations. To fulfill
this requirement, a museum could send
its original inventory from 1995 along
with the other required information to
initiate consultation. In response, a
consulting party might identify those
human remains and associated funerary
objects that it wishes to consult on and
assert it has cultural affiliation to the
human remains and associated funerary
objects.
The Assistant Secretary will decide
on any request for an extension to the
inventory deadlines and will publish a
list of all museums who request an
extension in the Federal Register. This
will provide both the Assistant
Secretary and the public with
information needed to monitor the
progress of museums who have not
completed the inventory requirements
by the deadline.
We have clarified how a museum or
Federal agency may rely on a previously
completed or updated inventory after a
transfer. The museum or Federal agency
must still complete the inventory by the
required deadline but only after
initiating consultation. The criminal
provisions of NAGPRA (18 U.S.C. 1170)
clearly prohibit the sale, purchase, use
for profit, or transportation for sale or
profit of Native American human
remains. Any museum or Federal
agency that acquires possession or
control of human remains must ensure
they are not violating those provisions
in any transfer of human remains.
112. Comment: We received five
comments on the requirement to
repatriate associated funerary objects
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with all human remains, regardless of
cultural affiliation. Two of these
comments objected to the requirement.
One comment stated the Department
made a gross oversimplification of the
issues raised in a taking of property in
adding this requirement and that ‘‘[i]t is
a blanket grab for objects not previously
deemed covered under NAGPRA’’
(NPS–2022–0004–0188). Another
objecting comment believes this change
to the existing regulations ‘‘. . . is being
made without a formal review of its
Fifth Amendment takings implications
under Executive Order 12630’’ and will
‘‘create an opportunity for lawsuits to
overturn these rules—especially now
that ‘Chevron deference’ has been
significantly weakened. Experience has
shown that such litigation is detrimental
to the relationships that have been built
between museums and Native groups
over the past 30 years’’ (NPS–2022–
0004–0172). On the other hand, three
comments supported this requirement,
although one comment expressed
concern over the legal review of this
change.
DOI Response: We have not made any
change to the requirement for associated
funerary objects to be repatriated with
human remains. We have conducted a
thorough, formal review of this
requirement and these regulations.
Information and analysis related to that
review can be found in the 2022
Proposed Rule (87 FR 63226).
113. Comment: We received one
comment on § 10.10(f) Step 6—Receive
and consider a request for repatriation.
The comment stated that any request
from an Indian Tribe satisfies the
criteria for repatriation and no other
criteria should be required.
DOI Response: In this section for
human remains and associated funerary
objects, the only criteria for a request for
repatriation is that the lineal
descendant, Indian Tribe, or NHO is
identified in the notice of inventory
completion. The lineal descendant,
Indian Tribe, or NHO that is identified
in a notice of inventory completion is
determined in the inventory under
§ 10.10(d)(1) of this section and as
discussed in detail in Comment 110.
The procedures in this paragraph are
necessary to set up an opportunity for
additional requests for repatriation to be
made.
This paragraph provides an option for
a requestor that is not identified in a
notice of inventory completion. The
requestor must show, by a
preponderance of the evidence, that the
requestor is a lineal descendant or an
Indian Tribe or NHO with cultural
affiliation. A museum or Federal agency
may determine in an inventory and a
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notice of inventory completion that for
certain human remains and associated
funerary objects there is no lineal
descendant or any Indian Tribe or NHO
with cultural affiliation. This paragraph
provides that any lineal descendant,
Indian Tribe, or NHO can make a
request for repatriation of those human
remains or cultural items. The museum
or Federal agency must respond in
writing to the request within 90 days.
114. Comment: We received 17
comments on § 10.10(k) Transfer or
reinter human remains and associated
funerary objects. Of that total, two
comments supported this paragraph as
proposed. Two comments requested we
remove the option for reinternment as
museums and Federal agencies should
not be authorized to reinter human
remains or cultural items. Two
comments missed or misunderstood this
paragraph and expressed concern that
by removing the options under the
existing regulations for culturally
unidentifiable human remains, these
regulations would eradicate a way
forward for transfer of human remains
without cultural affiliation or that have
a relationship of shared group identity
to Indian groups without Federal
recognition. The Review Committee
objected to the option in this paragraph
for transfer of human remains to Indian
groups without Federal recognition and
requested a thorough legal review of this
option. The Review Committee and
others requested this paragraph include
a requirement for the Review Committee
and the Secretary to review agreements
for transfer or reinterment prior to
publication of a notice of intended
transfer or reinterment. The Review
Committee and one other comment also
requested that any notice for
reinterment include the specific law
allowing for reinterment. Four
comments requested that the regulations
specifically protect information about
any reinterment under this section or
under § 10.7 from disclosure or
dissemination and that reinterment be
as close as possible to the location
where the human remains and
associated funerary objects were
removed.
DOI Response: We have revised this
paragraph to apply only to human
remains and associated funerary objects
with no lineal descendant or no Indian
Tribe or NHO with cultural affiliation.
We believe the clarification and
simplification of the cultural affiliation
and repatriation processes for human
remains and associated funerary objects
that precedes this paragraph will
address many of the concerns raised by
these comments and that this paragraph
will apply only to a small number of
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human remains and associated funerary
objects.
We reiterate that cultural affiliation as
defined in the Act only applies to an
NHO or an Indian Tribe, which means
a federally recognized Indian Tribe. An
Indian group without Federal
recognition may have a shared group
identity to an earlier group, but such an
Indian group cannot have a cultural
affiliation as defined under the Act or
these regulations. As noted elsewhere,
Indian groups without Federal
recognition, including State recognized
tribes, are not completely excluded from
the repatriation processes. As is the
current practice, Indian groups without
Federal recognition can work with
federally recognized Indian Tribes as
part of a joint request for repatriation.
We have removed the option to
transfer unclaimed human remains or
cultural items to Indian groups without
Federal recognition. This change is in
response to the strong objections we
received from federally recognized
Indian Tribes and discussed in
Comment 3. This change also
emphasizes and recognizes that the Act
reflects the unique relationship between
the Federal government and Indian
Tribes and NHOs (25 U.S.C. 3010). This
change is also based on experience over
the last 13 years with repatriation
involving Indian groups without Federal
recognition.
We have retained the option to
transfer to an Indian Tribe or NHO or to
reinter. At the discretion of the museum
or Federal agency and after following
the requirements of this paragraph,
human remains and associated funerary
objects may be transferred or reinterred.
In Texas, for example, conflicts between
federally recognized Indian Tribes and
Indian groups without Federal
recognition have resulted in a
preference for reinterment rather than
for transfer. In California, State law
provides for more involvement of State
recognized groups in repatriation and in
many cases Indian Tribes have worked
jointly with Indian groups without
Federal recognition to complete
repatriations and reburials. This
paragraph provides for any Indian Tribe
or NHO to request and receive physical
transfer of human remains and
associated funerary objects that have no
cultural affiliation. We hope that this
will allow for even more collaboration
between federally recognized Indian
Tribes and Indian groups without
Federal recognition to achieve repose
for these human remains and associated
funerary objects.
As reinterment is a discretionary
action, these regulations cannot dictate
where reinterment occurs. The
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regulations do not require identification
of the reinterment location and do
require sensitive information be
protected from disclosure. After a
thorough legal and policy review of this
paragraph, we have determined neither
the Review Committee nor the Secretary
must review agreements between the
parties prior to publication of a notice
of intended transfer or reinterment.
N. Section 10.11 Civil Penalties
115. Comment: We received 30
comments on § 10.11 Civil penalties. Of
that total, 12 comments supported the
section as proposed. Nine comments
requested the regulations add
procedures for investigating a Federal
agency’s failure to comply with the
requirements of the Act. Three
comments objected to the revisions to
this section and requested we reinstate
or identify more limited categories for
failure to comply. One comment stated
that as proposed, the regulations ensure
all museums will fail to comply with
the requirements of the Act. Three
comments requested clarification if
certain actions, like releasing sensitive
information, would be a failure to
comply. One comment requested
clarification if museums with custody of
a Federal holding or collection are
subject to civil penalties. One comment
provided specific suggestions for this
section to include (1) a fixed timeline,
(2) a transparent procedure for
investigations, (3) involvement of an
aggrieved party, and (4) options for
aggrieved parties to appeal a final
decision.
DOI Response: We cannot expand this
section to include Federal agencies. As
noted in the regulations, Federal
agencies are not subject to the civil
penalty provisions of the Act and any
change would be inconsistent with the
Act. It is not appropriate for this section
to reference or include other Federal
laws. The most broadly applicable way
to allege that a Federal agency has failed
to comply with the Act or these
regulations is to send an allegation to
the head of the appropriate Federal
agency or to the Federal agency’s Office
of the Inspector General.
We have not revised the broad options
for a failure to comply. All the
requirements in Subpart C of these
regulations can be the subject of a civil
penalty. We have provided clear
timelines for museums, after the
effective date of these final regulations,
to ensure they are in compliance with
all these requirements. Museums should
carefully consider these timelines when
exercising the discretion they have on
how to complete the required tasks. For
example, as discussed elsewhere, a
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museum has discretion in how it
compiles an itemized list of human
remains and associated funerary objects.
Whether a specific action, like failing to
protect sensitive information,
constitutes a failure to comply will
depend on the specific circumstances. A
museum that has custody of a Federal
agency holding or collection is
responsible for sending the required
statement under § 10.8(c) and a failure
to do so could constitute a failure to
comply under this section. As discussed
in the following responses, this section
provides timelines and transparency
whenever possible. However, we note
that given the nature of investigations
and civil penalties, not all tasks can be
made public.
We have made edits to this section
and the definitions to identify the
Assistant Secretary as the individual
with delegated authority under this
section. We have made additional
updates related to the address for the
Department’s Office of Hearings and
Appeals.
116. Comment: We received 30
comments on § 10.11(a) File an
allegation. Most of these comments (25)
requested we remove the requirement
for an allegation to include the full
name, mailing address, telephone
number, and (if available) email address
of the person alleging the failure to
comply. A few of these comments also
requested we reduce the requirements
for an allegation to identify and
enumerate violations in an allegation or
to identify and enumerate the aggrieved
parties. One comment requested that
allegations be sent to the Department’s
Office of the Inspector General, rather
than the Manager, National NAGPRA
Program. Two comments requested the
regulations include a procedure for the
Department to inspect or investigate
museums proactively, rather than
depending on allegations. Two
comments requested a procedure for
Indian Tribes to report when a request
to a museum is denied or ignored.
DOI Response: We cannot provide for
anonymous allegations in these
regulations. To ensure the Assistant
Secretary can gather necessary
information on an allegation, we require
that a person alleging the failure to
comply identify themselves and provide
a method for us to contact them.
However, that does not preclude any
individual from submitting an
anonymous tip regarding a failure to
comply. While not an allegation, an
anonymous tip could provide
information for the Assistant Secretary
to investigate and determine if a failure
to comply has occurred. We have
revised the requirement to only include
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contact information (telephone or email)
in an allegation. We have revised the
requirements to enumerate violations,
but we cannot revise the requirement to
identify violations. The allegation must
contain some information to determine
if an investigation is warranted. Again,
we note that any individual could
submit a tip regarding a failure to
comply where the individual has no
information to identify a violation.
An allegation may be submitted by an
Indian Tribe or NHO when a museum
denies or ignores a request, depending
on the circumstances. Under these
regulations, a museum must respond to
a request for repatriation, and, if a
museum determines the request does
not meet the required criteria, it must
provide a detailed explanation and
provide an opportunity for the requestor
to submit additional information. If a
response to a request for repatriation is
not sent by the deadline required or if
it does provide detailed information, the
Indian Tribe or NHO could allege a
failure to comply.
Under the Act, the Secretary has
discretion for assessing a civil penalty
pursuant to the procedures established
in these regulations. The Secretary has
delegated responsibility for receiving
allegations of failure to comply to the
Manager, National NAGPRA Program,
but the Secretary has delegated
responsibility for assessing a civil
penalty to the Assistant Secretary.
While these regulations do not require
the Assistant Secretary inspect or
investigate museums proactively, the
Assistant Secretary may assess a civil
penalty to any museum that fails to
comply.
117. Comment: We received 12
comments on § 10.11(b) Respond to an
allegation. Seven comments supported
this paragraph as proposed, specifically
the timeline for the Assistant Secretary
to respond to an allegation. Four
comments requested the regulations
clarify what action the Assistant
Secretary must take in 90 days. One
comment stated that a civil penalty
must always be the appropriate remedy
to a failure to comply.
DOI Response: We have made edits to
clarify that no later than 90 days after
receiving an allegation, the Assistant
Secretary must determine if the
allegation meets the requirements and
must respond to the person making the
allegation. After that, the Assistant
Secretary may conduct any investigation
that is necessary. We cannot place time
constraints on the investigation, but we
have ensured that the Assistant
Secretary will decide on all allegations
that meet the requirements for an
allegation. The Assistant Secretary has
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reserved the option to determine that a
failure to comply is substantiated, but a
penalty is not an appropriate remedy.
118. Comment: We received nine
comments on § 10.11(c) Calculate the
penalty amount. Four comments
requested an increase in the base
penalty amount while two comments
requested penalties be calculated on a
per day, per violation basis. One
comment requested that since no
monetary value can be placed on
cultural items, the regulations should
use civil penalties primarily to facilitate
repatriation. One comment requested
the regulations not reference the
commercial value of human remains or
cultural items. One comment requested
the regulations make a connection
between the options for increasing or
decreasing a penalty amount so that the
increasing factors can be used to justify
denying any of the decreasing factors.
DOI Response: We have not increased
the base penalty amount or changed the
calculation to per day and per violation.
We believe the regulations provide
sufficient means for the Assistant
Secretary to calculate a penalty based on
the number of separate violations and
the factors for increasing the base
amount. Coupled with the broadening of
this section to include any failure to
comply, we believe civil penalties will
be an effective tool to facilitate
repatriation. We cannot remove
commercial value because that language
is in the Act itself and must be a part
of these regulations.
119. Comment: We received four
comments on § 10.11(d) Notify a
museum of a failure to comply that
requested aggrieved parties be notified
as well. We received two comments on
§ 10.11(e) Respond to a notice of failure
to comply that requested aggrieved
parties be included in any informal
discussion of the failure to comply.
DOI Response: We have included a
requirement for any lineal descendant,
Indian Tribe, or NHO named in a notice
of failure to comply to receive a copy of
the notice. If an aggrieved party is
identified in an allegation or through
the investigation of an allegation, that
party would be named in the notice of
failure to comply and receive a copy of
the notice. We cannot require aggrieved
parties be included in informal
discussions regarding the notice of
failure to comply. Prior to assessing a
civil penalty, the Assistant Secretary
may request information from any party
and must consider that information in
assessing the civil penalty. After
receiving a copy of a notice of failure to
comply, any aggrieved party may
provide information to the Assistant
Secretary related to the failure to
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comply, especially if it will inform the
penalty assessment.
120. Comment: We received two
comments related to § 10.11(h) Respond
to an assessment and four comments on
§ 10.11(n) Additional remedies. Two
comments requested clarification on
where money collected under a civil
penalty goes. Four comments requested
the Department use other civil penalties
authorized under law beyond this
section.
DOI Response: Any payments for civil
penalties are by certified check made
payable to the U.S. Treasurer and the
funds go to the general account of the
U.S. Treasury. The Department reserves
the right to pursue other available legal
or administrative remedies in the final
paragraph of this section.
O. Section 10.12 Review Committee
121. Comment: We received 16
comments on § 10.12 Review
Committee. Seven comments requested
that the monitoring responsibilities of
the Review Committee be added to this
section. Four comments requested we
expand this section to include other
responsibilities or at least caveat the
final paragraph to indicate it is not the
only action the Review Committee can
take. Three comments requested the
duty to report to Congress be added to
this section. One comment requested
the responsibilities for compiling an
inventory for certain human remains
and recommending specific actions be
added to this section, although the
comment was clear the term ‘‘culturally
unidentifiable’’ should not be used. One
comment suggested the Review
Committee take on regional cases, like
the Review Committee’s finding for
Moundville, to assist both Indian Tribes
and NHOs and museums and Federal
agencies to determine cultural affiliation
and publish those decisions.
DOI Response: We do not see a reason
to simply add the language of the Act to
these regulations. The enumerated
responsibilities in the Act are still
required regardless of their inclusion in
the regulations. However, we do agree
with many of the comments that
providing additional procedures in
these regulations for the Review
Committee may further the goals of
disposition or repatriation. Although
some comments provided suggestions
for adding language, we decline to add
any additional procedures at this time.
We commit to working with the Review
Committee to develop additional
paragraphs for this section of the
regulations. Any additions will require
additional consultation with Indian
Tribes and NHOs as well as public
comment.
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122. Comment: We received four
comments on § 10.12(a)
Recommendations requesting that we
revise 90 days to 30 days. We received
four comments discussed above that
supported the 90-day timeframe.
DOI Response: We decline to make
this change. Under the Federal Advisory
Committee Act, meeting minutes must
be certified 90 days after a public
meeting. Using this same time frame for
publication of related notices will
ensure that the meeting minutes that
support the recommendations or
findings are also available.
123. Comment: We received four
comments on § 10.12(b) Nominations.
Two comments related to the
requirement that two traditional Indian
religious leaders be nominated, at the
exclusion of a traditional Native
Hawaiian religious leader. One
comment suggested that the seventh
member be appointed from a list
developed by only the three members
nominated by Indian Tribes, NHOs, and
traditional religious leaders. One
comment requested clarification on the
limitations of national museum or
scientific organizations.
DOI Response: We cannot make the
changes requested to either the first or
last category of nominations as doing so
would be inconsistent with the Act.
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. The Act also specifies that the
Secretary choose the seventh member
from a list developed and consented to
by all the other members. The Act did
not provide any requirements beyond
‘‘national museum organizations and
scientific organizations.’’ The additional
information on these organizations was
added in response to the Government
Accountability Office report in 2010.
‘‘Lesser geographic scope’’ refers to a
scope that is less than national.
Similarly, the membership of the
organization cannot be limited to one
region of the United States.
124. Comment: We received three
comments on § 10.12(c) Findings of fact
or disputes on repatriation. One
comment supported the paragraph as
proposed. One comment requested
grammatical changes. One comment
requested we add scientists as affected
parties under this paragraph.
DOI Response: We decline to make
any of the requested changes. The Act
specifically limits the parties who may
seek facilitation of disputes to lineal
descendants, Indian Tribes, NHOs,
museums, and Federal agencies. For
findings of fact, the request must be
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from an affected party and relate to the
identity, cultural affiliation, or return of
human remains or cultural items. We do
not find that scientists alone are affected
parties in either circumstance.
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III. Response to Public Engagement and
Request for Comments
A. Public Engagement
Between October 18, 2022, and
January 31, 2023, the Department
conducted consultation sessions with
Indian Tribes and the Native Hawaiian
Community. The Department conducted
additional consultation sessions, upon
request, with Indian Tribes or the Native
Hawaiian Community to ensure
sufficient opportunity to engage and
comment in advance of this final rule
and to respond to the previous requests
received for additional consultation
sessions. During consultation, the
Department requested feedback from
Indian Tribes and NHOs on how to
further allow Indian Tribes and NHOs
flexibility and discretion regarding the
regulatory requirements and the new
responsibilities under Subpart B and the
deadlines under Subpart C.
We received several comments related
to these specific requests and have
responded to them directly elsewhere in
this document (see Comments 4, 30, 64,
65, 80, 85, 92, 94, 105, and 111). Other
comments from Indian Tribes provided
additional input on these specific
requests, and we have incorporated any
suggestions, to the extent possible, to
provide Indian Tribes and NHOs with
flexibility and discretion in these
regulatory requirements. One comment
provided specific and direct feedback
related to these specific requests, and
we are providing a summary of that
comment and a direct response here as
an illustrative example.
In the comment, the Indian Tribe
expressed concerns about the timelines
for updating inventories, specifically,
and the potential for the burden of
consultation to be placed on Indian
Tribes. The Indian Tribe requested that
the regulations provide options for
Indian Tribes to determine if or when
they wished to consult and to delay
consultation as needed. The Indian
Tribe felt that some of the regulatory
procedures were streamlined and
simplified but did not feel that
consultation was any more efficient
than the existing regulations. The Indian
Tribe believed the proposed regulations
stressed consultation and repatriation
requests at the end of the inventory,
rather than at the beginning, and
requested that the regulations be revised
to stress the requirement for
consultation at the beginning of the
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process. The Indian Tribe also asked to
extend the deadline for the updated
inventory and that the regulations make
clear that a request for an extension of
the deadline is an option. The Indian
Tribe stated, ‘‘At issue is not the
regulatory process, but the fact that the
majority of museums do not know what
they have in their collections. Any
attempts to project a budget or
timeframe for resources needed tend to
be woefully inadequate. Museums also
seem unwilling to review their
collection boxes physically or lack the
expertise to review osteological
material’’ (NPS–2022–0004–0185). The
Indian Tribe provided an example of a
recent consultation that resulted in the
identification of an additional 19 sites
and 500 funerary objects during a
cursory review. The Indian Tribe
expressed a concern echoed in many
comments from all constituents that the
new deadlines would result in ancestors
being left behind and a general lack of
due diligence on the part of museums
and Federal agencies.
As discussed elsewhere in this
document, we do not intend to impose
requirements on lineal descendants,
Indian Tribes, or NHOs to respond to
invitations to consult or to submit
requests for repatriation. Those are
actions that lineal descendants, Indian
Tribes, and NHOs may choose to take,
but are not required. However,
museums and Federal agencies are
required to act within certain timelines,
and those timelines are required even if
there is no response from a lineal
descendant, Indian Tribe, or NHO to an
invitation to consult. In § 10.10, a
museum or Federal agency must initiate
consultation prior to completing or
updating an inventory, but if there is no
response to the invitation to consult, the
museum or Federal agency must
complete or update the inventory by the
deadlines required under § 10.10(d) and
submit a notice of inventory completion
under § 10.10(e). We stress that an
extension of this deadline may be
requested by any museum that has made
a good faith effort to update its
inventory. We have added to the
requirements for an extension the
written agreement of consulting parties
to the request. If a museum will need
additional time to complete its
inventory, it can only do so by first
engaging in meaningful and effective
consultation with lineal descendants,
Indian Tribes, and NHOs. With these
changes to the regulations, we hope to
provide a clear path to repatriation
where lineal descendants, Indian Tribes,
and NHOs, rather than museums or
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Federal agencies, define what
‘‘expeditious’’ repatriation means.
Regarding due diligence and the
potential for human remains or cultural
items to be left behind, we note that the
Act and these regulations impose
standards and requirements for
museums and Federal agencies to make
an effort to identify human remains and
cultural items. Any museum or Federal
agency that fails to identify a holding or
collection that contains human remains
or cultural items has failed to comply
with the Act and these regulations. It is
therefore advantageous for a museum or
Federal agency to be broadly inclusive
of collections, especially those that
might contain human remains.
The Department proactively engaged
with a subset of affected entities,
including Indian Tribes, NHOs,
museums, and Federal agencies, to
understand if the regulatory revisions
could impact these entities’ capacity
and resources. The Department
requested feedback from Indian Tribes,
NHOs, museums, and Federal agencies
on how to ensure the step-by-step
process for repatriation is streamlined
and simplified by the regulatory
revisions under Subpart C. In preparing
the proposed regulations, the
Department was 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.
As discussed elsewhere in this
document, but especially in Comment 4,
we received substantial and specific
feedback on the impact to capacity and
resources under these regulations. We
have addressed many of these
comments in the revised Cost-Benefit
and Regulatory Flexibility Threshold
Analyses for the final regulations. We
have incorporated any suggestions, to
the extent possible, to ensure the stepby-step process for repatriation is
streamlined and simplified under
Subpart C. The same submission from
an Indian Tribe provided specific and
direct feedback related to this specific
request as well, and we are providing a
summary of that comment and a direct
response here as an illustrative example.
The Indian Tribe stated its staff would
be overwhelmed by requests to consult
and requested that the regulations make
clear that, after receiving an invitation
to consult from a museum or Federal
agency, Indian Tribes should be allowed
to move at their own pace according to
each sovereign’s capacity and resources.
The Indian Tribe stated that it currently
consults or has consulted with 347
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entities on NAGPRA collections, and
every year that number increases. The
Indian Tribe explained that, depending
on size, scope, and context of the
collection, some consultations require
mere hours while others require years of
sustained work. The Indian Tribe
believes there is no way to truly
calculate the costs or to accurately
forecast if there will be sufficient
opportunity to submit requests and
engage in meaningful consultation. The
Indian Tribe explained that, based on
experience, review of collections is
often necessary as museums fail to
accurately identify funerary objects and
other cultural items. The Indian Tribe
requested that the regulations allow
flexibility, to be guided by
considerations and consultations with
Indian Tribes.
Throughout these regulations, we
require museums and Federal agencies
to defer to the Native American
traditional knowledge of lineal
descendants, Indian Tribes, and NHOs.
We have required museums and Federal
agencies to not only consult but also
obtain consent prior to allowing
exhibition of, access to, or research on
Native American human remains or
cultural items. We have reiterated the
requirements of the Act for museums
and Federal agencies to rely on the
information available (previous
inventories, catalog cards, accession
records, etc.) to identify consulting
parties, conduct consultation, determine
cultural affiliation, update the
inventory, and submit a notice of
inventory completion. Any museum or
Federal agency that fails to identify a
holding or collection that contains
human remains or cultural items has
failed to comply with the Act and these
regulations. It is therefore advantageous
for a museum or Federal agency to be
broadly inclusive of collections,
especially those that might contain
funerary objects or other cultural items.
B. Requests for Comments
In addition to the public engagement
and outreach discussed above, the
Department solicited comment from the
public on the entirety of the proposed
rule. The Department received
comments from the public on the costbenefit and regulatory flexibility
analyses, including the conclusions
about the expected costs of complying
with the rule. In particular, the
Department requested responses to the
following questions about the proposed
regulations (labeled a through g):
a. For each regulatory requirement,
does the estimated time per response
seem reasonable? If not, what range of
time per response would be more
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reasonable for a specific regulatory
requirement?
As noted elsewhere in this document,
we received several comments that
provided input or alternative estimates
for specific tasks. Two comments stated
the rate used to calculate costs should
be increased to $100 to $120 per hour.
A few comments provided estimated
costs to Indian Tribes and NHOs of
$17.2 million per year. This estimate
was developed using grant awards from
2011 to 2021 to estimate the average
cost for a notice of inventory completion
($14,416 per notice). After calculating
an estimated cost for museums and
Federal agencies to comply with the
regulations, the estimate calculated the
costs for Indian Tribes and NHOs by
applying the percentage of funding
awarded in grants from 2011–2021 to
museums (58%) and Indian Tribes or
NHOs (42%) to estimate a total burden
for the regulations at $91.4 million over
30 months or $36.6 million per year
(NPS–2022–004–0174).
One museum provided a variety of
estimates based on current project
budgets which ranged from $200,000 to
$500,000 per project per year for one
museum. The comment estimated the
burden for the single museum at 19,000
hours per year ($1.273 million per year
per museum assuming an hourly rate of
$67/hour). When applied to all 407
museums that will be required to update
inventories under these regulations, that
amounts to the highest estimate of
$518.1 million per year for museums
alone, although the comment noted that
not all museums will require the same
number of hours (NPS–2022–004–0125).
One individual detailed the hours
involved in one part of a two-part
project over 15 months. While a total
estimated cost was not provided,
elsewhere the comment suggested at
minimum $100 to $120 an hour should
be used in dollar estimates. Using the
lower hourly figure and the rough
number of hours provided, the estimate
for the first phase of the project is
$123,000 over 15 months or $98,400 per
year. When applied to all 407 museums
that will be required to update
inventories under these regulations, it
equals an estimated $40 million per year
for museums. The comment noted that
these estimates do not include the hours
involved in preparation of the original
inventory of human remains and
associated funerary objects completed in
the early 1990s (NPS–2022–004–0135).
Each of these estimates uses a
different method to estimate the costs
for repatriation of human remains and
associated funerary objects, but we do
not feel they accurately estimate the
costs of compliance with either the
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86509
existing regulations or this regulatory
action. We believe that any estimate
based on current practice or past grant
awards is inherently flawed and does
not account for the specific objective of
this regulatory action to simplify and
improve the systematic processes within
specific timeframes. We agree that our
estimates do not reflect the actual
amount of time some museums and
Federal agencies currently spend on
compliance with these regulations. We
strongly disagree, however, that our
estimates do not reflect what is required
by these regulations. In the 33 years
since the passage of the Act, each
museum or Federal agency has
approached the requirements of these
regulations in different ways, and, as a
result, there is a wide variation in how
much time and money is spent to
comply with these regulations. As one
of the goals for this regulatory action is
to improve efficiency and consistency in
meeting these requirements, this will
necessarily mean a difference between
the estimated costs and current
practices.
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.
Our initial estimate relied on an
average of 11 notices of intended
disposition submitted by Federal
agencies in the three years (FY2019 = 13,
FY2020 = 9, and FY2021 = 10). In the
most recent year, seven notices were
submitted (FY2022). We received input
from Federal agencies that the estimate
is low, likely because of underreporting.
Federal agencies provided higher
estimates for the number of annual
discoveries and the time per response
which are incorporated into the revised
Cost-Benefit and Regulatory Flexibility
Threshold Analyses for the final
regulations. The number of discoveries
and excavations on Tribal lands remains
unknown.
For example, in estimating the
number of responses to a discovery on
Federal lands, we relied on input from
Federal agencies and increased the
estimated number from 11 responses to
60 responses each year. One Federal
agency with a large land area reported
an average of 20 discoveries per year,
leaving most stabilized in place and not
excavated or removed, and thus not
listed in notices of intended disposition.
Another Federal agency with a smaller
land area reported an average of 5
discoveries per year. This change to the
number of responses for one regulatory
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requirement impact others that build off
this number. For example, we estimate
that the number of Federal agencies
conducting consultation is 50% of the
discoveries on Federal lands.
Federal agencies also provided
estimates on the time per response for
each regulatory requirement. For
responding to a discovery, they
estimated it spanned from 8 hours to 40
hours. Given that a response is required
within 3 days, we feel the maximum
amount of time may not exceed 30
hours (one person for 8 hours for 3 days
plus one person for 6 hours total). We
estimate the time per response ranges
from 10 hours to 30 hours, depending
on the size and complexity of the
discovery, for a median of 20 hours. As
Table 6 below shows, changes to both
the number of responses and to the time
per response resulted in a significant
increase to our estimated costs under
Subpart B.
TABLE 6—CHANGES TO ESTIMATED COSTS IN SUBPART B
Number of
responses
Estimate
Annual hours
Annual costs
2022 Proposed Regulations * ....................................................................................
2023 Final Regulations * ............................................................................................
65
318
465.5
6,599.5
$29,738
473,568
Change ...............................................................................................................
+253
+6,134
+443,830
* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating 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 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.
As discussed elsewhere in this
document, we received several
comments on our estimated costs in
Subpart C. One of these comments
noted that a previously prepared
inventory did not reduce the necessary
time, as previous inventories are
generally ‘‘woefully inadequate.’’ Two
comments stated that the estimates
should not rely on responses from the
last three years to estimate costs due to
the pandemic. We received consistent
feedback that the estimate is low and
does not reflect real costs. Some
comments provided alternative
estimates on the time per response
which we incorporated into our
estimate or explained why we were
unable to incorporate the suggestion.
Despite the concerns that the pandemic
has resulted in fewer submissions, the
available information does not support
this, and in fact, we have had more
submissions in the last two years than
in any previous year. Our estimate relies
on the average number of submissions
by museums and Federal agencies over
the last four or five years or calculates
an estimate based on those submissions
(NPS, National NAGPRA Program
Annual Reports, https://www.nps.gov/
subjects/nagpra/reports.htm, accessed
12/1/2023).
Specifically for the number of
museums and Federal agencies required
to update an inventory, we estimate 407
museums and 122 Federal agencies will
be required to update inventories within
five years after promulgation of a final
rule. The final regulatory action will
allow for inventory updates to be
combined by geographic location or
other defining features. We have revised
the estimated number of updated
inventories based on comments.
As the size of collections vary greatly,
we analyzed previously reported
inventory data to estimate the number of
updated inventories as both a high
estimate (by inventory records) and a
low estimate (by geographic location).
We calculated a high estimate using the
number of inventory records, according
to the original inventory submission and
previous updates, and for every 10
inventory records, we estimate one
updated inventory will be required. We
calculated a low estimate using the
number of unique geographical States
from which the human remains were
removed, according to the original
inventory submission and previous
updates, and for each State represented,
we estimated one updated inventory
will be required. We calculated a
median value for each estimate and
divided the total number of updated
inventories by five years for an
estimated number of annually updated
inventories in each estimate.
While we modified our estimate for
the number of updated inventories
between the baseline conditions and the
final regulatory action, we did not
change the time required for each
response. Federal agencies provided
estimates on the time per response that
spanned from 50 hours to 218 hours, but
some of those estimates included time
for preparing a notice which is
calculated separately. In response to
comments, we increased the estimated
time per response to range from 5 hours
to 200 hours, depending on the size and
complexity of the update, for a median
of 102.5 hours. As Table 7 below shows,
this resulted in a smaller change to the
baseline costs estimate in the number of
responses, but much larger changes in
the number of hours and costs.
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TABLE 7—CHANGES TO ESTIMATED COSTS IN SUBPART C
Number of
responses
Estimate
2022 Baseline: Proposed Regulations * ......................................................................................
2023 Baseline: Final Regulations * ..............................................................................................
Change .................................................................................................................................
1,218
1,232
+14
Annual hours
36,750.25
73,475.50
+36,725.25
Annual costs
$2,361,014
4,916,458
+2,555,444
* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate.
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In other cases, we relied on other
available data to calculate an estimated
number of responses. In estimating the
responses to a request for repatriation,
we relied on the number of notices as
the two requirements have a direct
connection. We estimate requests for
repatriation are 80% of the total number
of notices of inventory completion
(which precede a request) and 100% of
the notice of intended repatriation
(which follow a request). Depending on
the regulatory framework (baseline
conditions under the existing
regulations or under the final regulatory
action), the same calculation applies but
results in a different number of
estimated responses.
In the final regulatory action,
museums and Federal agencies have
specific options for responding to a
request and responses should be based
on information available in previously
prepared summaries, inventories, and
notices. Federal agencies provided
estimates on the time per response that
spanned from 8 hours to 25 hours. One
comment requested the timeframe for
responding to a request for repatriation
be increased to a minimum of one year.
We disagree with this suggestion and
have not adopted it. Throughout the
86511
final regulatory action, a response to a
request for repatriation is required
within 90 days of receiving the request,
or at maximum, 480 hours for one full
time employee (12 weeks × 40 hours per
week). We find this maximum estimate
to be an extreme circumstance for an
action based only on available
information and with set options for a
response. We estimate the time per
response will range from 4 hours to 150
hours, depending on the complexity of
the request, for a median of 77 hours.
Table 8 shows the change in our
estimate from the 2022 Proposed Rule to
the final regulations.
TABLE 8—CHANGES TO ESTIMATED COSTS IN SUBPART C
Number of
responses
Estimate
2022 Regulatory Action years 1–3: Proposed Regulations * ......................................................
2023 Regulatory Action years 1–5: Final Regulations * ..............................................................
Change .................................................................................................................................
Annual hours
2,962
3,086
+124
Annual costs
46,262.25
172,360.50
+126,098.25
$2,971,955
11,536,684
+8,564,729
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* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate.
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.
We did not receive specific comments
on how to account for costs that go
beyond what is required by the Act. A
few comments stated they did not
understand this question as museums
and Federal agencies only do the
minimum required by the Act and these
regulations. As discussed elsewhere in
this document, we received several
estimates on the costs of updating
inventories, but these estimates were,
with two exceptions, not based on
actual expenses incurred.
The Society for American
Archaeology (SAA) estimated annual
costs to museums and Federal agencies
of $250 million for repatriation of
human remains and funerary objects.
This estimate is based on the current
museum completion rate of 21%, the
amount of funding awarded through
grants ($50 million since 1994), and a
multiplying factor of 10, representing
additional funds provided by museums,
Federal agencies, and Indian Tribes
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outside of grant funds (https://
documents.saa.org/container/docs/
default-source/doc-governmentaffairs/
final_scia_testimony_
02162022.pdf?sfvrsn=63d7c331_2,
accessed 12/1/2023).
One museum estimated annual costs
to museums and Federal agencies of
more than $117 million for repatriation
of human remains and funerary objects.
This estimate is based on the costs
incurred by the museum over the past
20 years to repatriate 3,490 items
multiplied by the total number of
human remains and associated funerary
objects currently pending repatriation
(Field Museum of Natural History
(FMNH) Background062722 available at
https://www.reginfo.gov/public/do/
viewEO12866Meeting?viewRule=true&
rin=1024-AE19&
meetingId=139323&acronym=1024-DOI/
NPS, accessed 12/1/2023).
One comment from an individual
estimated annual costs to museums and
Federal agencies of nearly $20 million
for repatriation of human remains and
funerary objects. This estimate is based
on a detailed analysis of grants awarded
to museums since 2011 and the
resulting number of notices published
by those museums. The estimate then
applies an average cost per notice to the
number of human remains pending
notification under the existing
regulations. The shorter timeframe in
this estimate (30 months) is based on
the proposed regulatory action requiring
notice publication within two years and
six months after promulgation of final
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regulations (https://
www.regulations.gov/comment/NPS2022-0004-0174, accessed 12/1/2023).
Given the enormous variation in these
estimates and past estimates related to
these regulations, we have continued to
employ the method used in the initial
estimate but revised the number of
responses and time per response based
on comments. We believe we have
accounted for all actions that are
required under the existing regulations
to calculate the baseline conditions and
under these final regulations to estimate
the future costs. Table 9 shows a
summary of other annual estimates for
inventories.
TABLE 9—OTHER ANNUAL ESTIMATES
FOR INVENTORIES
Estimated
costs
$524,380
2,971,955
5,300,000
6,000,000
11,536,684
19,400,000
25,000,000
40,048,800
117,000,000
250,000,000
518,111,000
Reference
2010 Final Rule (75 FR 12402).
2022 Proposed Rule Analysis (see
NPS–2022–0004–0002).
1993 Proposed Rule (58 FR
31124).
1990 H. Rpt. 101–877, at 22.
2023 Final Rule Analysis.
NPS–2022–0004–0174.
NPS–2022–0004–0131.
NPS–2022–0004–0135.
NPS–2022–0004–0136.
SAA (cited above).
NPS–2022–0004–0125.
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
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submitted information under the
existing regulations.
We only received specific input from
Federal agencies on this estimate. A few
stated the estimate was too low or
unreasonable but did not offer any
alternative estimates or related data.
One Federal agency stated it has more
than 150 non-federal repositories.
Another Federal agency stated only 10%
of the 170 identified non-federal
repositories have submitted inventory
and summary information. Another
Federal agency stated only a small
percentage of the 175 non-federal
repositories have been reviewed and the
estimate doesn’t anticipate
identification of new non-federal
repositories. One Federal agency stated
it knows of only 13 non-federal
repositories with unresolved collections
and that the 5% estimate seemed
reasonable. Another Federal agency
stated it believes there are 24 nonfederal repositories holding its
collections.
We estimate the number of museums
(n=140) required to submit statements is
10% of all museums (n=1,388, rounded
up) that previously submitted
information under the existing
regulations. A statement is a simple
written document describing a holding
or collection. These statements are
required no later than one year after the
effective date of the final rule, but we
have annualized the cost over five years
for purposes of this estimate so as not
to compound the costs in calculating the
total costs over five years.
We estimated the time per response
for both museums to generate the
statement and Federal agencies to
respond to statements. We note that
some comments estimated museums
would need multiple staff members
working full-time for the entire year to
complete these statements. We disagree
with this estimate and have not adopted
it. We estimate the time per response for
museums will range from 10 hours to
500 hours, depending on the size and
complexity of a collection, for a median
of 255 hours. Federal agencies provided
estimates on the time per response that
spanned from 8 hours to 30 hours. We
estimate the time per response will
range from 8 hours to 30 hours,
depending on the size and complexity
of a collection, for a median of 19 hours.
Table 10 shows the estimated costs for
statements of Federal agency holdings
or collections to both museums and
Federal agencies.
TABLE 10—CHANGES TO ESTIMATED COSTS FOR STATEMENTS OF FEDERAL AGENCY HOLDINGS OR COLLECTIONS
Number of
responses
Estimate
2022 Regulatory Action: Proposed Regulations * .......................................................................
Museums ..............................................................................................................................
Federal agencies ..................................................................................................................
2023 Regulatory Action: Final Regulations * ...............................................................................
Museums ..............................................................................................................................
Federal agencies ..................................................................................................................
Change ........................................................................................................................................
140
70
70
280
140
140
+140
Annual hours
735
367.5
367.5
38,360
35,700
2,660
+37,625
Annual costs
$47,232
23,616
23,616
5,570,504
2,392,257
178,247
+5,523,272
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* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate.
f. Is the estimated number of
competing claims for disposition or
competing requests for repatriation
reasonable?
We received specific input from
Federal agencies on this estimate, and
most stated it seemed reasonable or that
they did not have experience or data
related to it. One Federal agency
believed the estimate is too low given
the changes to the regulations,
especially as it relates to Tribal land of
an NHO where they anticipate an
increase in competing claims or requests
to occur. One Federal agency estimated
that 20% of discoveries result in
competing claims on Federal lands. On
Federal lands, Federal agencies
provided estimates on the time per
response that spanned from 25 hours to
40 hours. Federal agencies provided
estimates on the time per response that
spanned from 25 hours to 80 hours. One
comment from a museum stated
evaluating competing requests and
resolving stays of repatriation required
significantly more time, estimating
between 100 and 1,000 hours, especially
when considering the involvement of
legal departments, executives, and
board members in those tasks.
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When a competing claim or request is
received, the timeline for a disposition
or repatriation statement changes, but
we believe it is important to require
museums and Federal agencies to
decide on competing claims or requests
within a set timeframe (six months or
180 calendar days after informing the
claimants or requestors of the competing
claims or requests). Under Subpart C,
one option for a museum or Federal
agency is to determine a most
appropriate requestor cannot be
determined. This option would allow
parties to continue consultation but
ensure all parties have been informed of
the museum or Federal agency’s
decision in a timely manner or to seek
assistance of a court of competent
jurisdiction to resolve a conflict under
these regulations. The information
needed to evaluate competing requests
is submitted by requestors and
evaluated against the criteria in the
regulations. Where competing requests
are between Indian Tribes or NHOs with
cultural affiliation, the priority order
under § 10.3(e), as revised, relies on
how the cultural affiliation
determination was made (clearly
identified or reasonably identified). We
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intended for these final regulations to
provide adequate guidance and
procedures for museums and Federal
agencies to follow in determining the
most appropriate requestor, and as a
result, lessen the burden and expense of
those determinations. We estimate the
time per response ranges from 25 hours
to 100 hours, depending on the size and
complexity of the competing claims, for
a median of 62.5 hours.
Under Subpart B, the information
needed to evaluate competing claims is
submitted by claimants and evaluated
against the priority of custody.
However, Federal agencies must
identify the most appropriate claimant
or claimants. While this is not a new
requirement, we do expect, as one
Federal agency stated, the added
procedures in these final regulations for
resolving competing claims on Federal
lands will likely increase the time per
response from baseline conditions.
Given that competing claims follow
notification and consultation, we
estimate the time per response ranges 40
hours to 500 hours for a median of 270
hours.
g. Using data on implementation since
2012, we estimate it will take an
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Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations
additional 26 years to complete
consultation and notification 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?
We did not receive specific feedback
on the estimate under the existing
regulatory framework. We did receive
many comments on the timelines under
Subpart C in general (see Comment 92
and 93). Most comments felt the twoyear timeline in the proposed
regulations was too short, unrealistic,
unworkable, and unachievable. Two
comments predicted it would take 20 or
50 years to complete consultation and
notification for all Native American
human remains. Most comments on the
timelines expressed concerns about
insufficient staffing and funding to
complete the work of repatriation.
As discussed elsewhere in this
document, we have changed the
deadline for museums and Federal
agencies to update inventories of human
remains and associated funerary objects
to five years after the effective date of
these final regulations. We have also
revised our estimate for the timeline
under the existing regulations. In Fiscal
Year 2022, the largest number of human
remains in the history of the Act and
these regulations completed the
regulatory process. As of August 2023,
we expect Fiscal Year 2023 to surpass
the previous year. We therefore adjusted
our estimate in the Cost-Benefit and
Regulatory Flexibility Threshold
Analyses for these final regulations.
86513
Using data on implementation since
2012, the Department estimates it will
take an additional 20 years to complete
consultation and notification for all
approximately 108,000 Native American
human remains currently pending in the
existing regulatory framework. Over the
last 11 years, the average number of
human remains completing the existing
regulatory process for repatriation per
year is 5,460 individual sets of Native
American human remains (NPS,
National NAGPRA Program Annual
Reports, https://www.nps.gov/subjects/
nagpra/reports.htm, accessed 12/1/
2023). As Table 11 shows, the number
of human remains completing the
existing regulatory process varies from
year to year, depending on the decisionmaking of museums and Federal
agencies on repatriation.
TABLE 11—NATIVE AMERICAN HUMAN REMAINS
Total published
in notices
Fiscal year
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2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
Regarding the costs for lineal
descendants, Indian Tribes, and NHOs
to participate in consultation, we have
added an estimate to the Cost-Benefit
and Regulatory Flexibility Threshold
Analyses for these final regulations. In
the existing regulations, consultation is
required throughout the regulatory
processes in both Subpart B and C for
any decision-making action by a Federal
agency or museum. However, the
existing regulations do not require any
Indian Tribe or NHO to participate in
such consultation. Choosing to
participate in consultation is an act of
sovereignty and these regulations, either
existing or revised, do not require any
Indian Tribe or NHO to consult. Our
initial estimates did not include the
costs to lineal descendants, Indian
Tribes, or NHOs to participate in
consultation as the variables of this
estimate are too great and dependent on
many factors. For example, one Tribal
official stated publicly that under the
existing regulations, consultation can
require one email exchange or, in the
most extreme case, eight years of regular
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consultation meetings. As discussed
elsewhere in this section, a comment
from an Indian Tribe stated
consultations can require mere hours
while some require years of sustained
work. In addition to the varying time
required to consult with museums and
Federal agencies, the costs for Indian
Tribes and NHOs to consult internally
with religious leaders or to develop
their own procedure and protocol for
conducting consultation cannot and
should not be estimated by the Federal
government. In preparing our initial and
revised estimate, we reviewed other
regulations for any estimate on the costs
to Indian Tribes or NHOs to engage in
consultation but were unable to find a
relevant example. Our estimate is based
on a 1:1 relationship between the
number of participants and the number
of museums and Federal agencies
conducting consultation. We know this
is an underestimate and that
consultation requires participation by
more than one lineal descendant, Indian
Tribe, or NHO. However, we have no
way to estimate this number. While we
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Annual change
43,525
45,975
48,588
51,558
56,336
63,885
67,077
79,093
83,076
84,677
100,370
3,220
2,450
2,613
2,970
4,778
7,549
3,192
12,016
3,983
1,601
15,693
have provided an estimate on the costs
to participate in consultation, we
maintain we do not have sufficient
information to adequately quantify these
costs to lineal descendants, Indian
Tribes, or NHOs.
C. Use of Received Feedback
The Department used all received
feedback to inform this final rule and
made changes to this final rule based on
received feedback.
IV. Compliance With Other Laws,
Executive Orders and Department
Policy
A. Regulatory Planning and Review
(Executive Orders 12866 and 13563 and
14094)
Executive Order 12866, as amended
by Executive Order 14094, 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 14094 amends
Executive Order 12866 and reaffirms the
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Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations
principles of Executive Order 12866 and
Executive Order 13563 and states that
regulatory analysis should facilitate
agency efforts to develop regulations
that serve the public interest, advance
statutory objectives, and be consistent
with Executive Order 12866, Executive
Order 13563, and the Presidential
Memorandum of January 20, 2021
(Modernizing Regulatory Review).
Regulatory analysis, as practicable and
appropriate, shall recognize distributive
impacts and equity, to the extent
permitted by law.
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 final 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 https://www.regulations.gov.
The analyses conclude that this final
regulatory action will likely generate
benefits for museums, Federal agencies,
Indian Tribes, and NHOs that are greater
than the temporary increase in reporting
costs for museums. For all entities, the
NPS anticipates a temporary increase of
$6.948 million in annual costs for the
first five years under the final regulatory
action compared to baseline conditions.
Starting year six, NPS anticipates a
$2.978 million benefit in reduced
annual costs compared to baseline
conditions. This final regulatory action
would produce a net benefit when
reduced annual costs exceed the total
increase in costs from the first five
years. We estimate that this would occur
after 17 years (for undiscounted costs
and benefits), 21 years (for 3%
discounting), or 47 years (for 7%
discounting). Across the horizon of 50
years, the net savings in costs of the
final regulatory action totals $99.3
million (for undiscounted costs and
benefits), $31.2 million (for 3%
discounting), or $0.4 million (for 7%
discounting). Therefore, the results of
this cost-benefit analysis indicate that
positive net benefits will be generated
by implementing the final regulatory
action. Given that, NPS concludes that
the benefits associated with the final
regulatory action justify the associated
costs. Further, this final regulatory
action is not expected to have an annual
economic effect of $100 million.
Most of the state, local, and private
museums required to report under
NAGPRA are large not-for-profit
enterprises, part of a university or
college, or state or local government
entities. The Small Business
Administration size standard for
museums is $34 million in average
annual receipts (see https://
www.sba.gov/document/support-tablesize-standards, accessed 12/1/2023).
However, using available information,
NPS analyzed the 1,388 museums
reporting under NAGPRA and
determined that 419 are classified as
state entities, 382 as local government
entities, and 587 as private museums. Of
the private museums, 141 are classified
as universities or colleges, 18 as large
urban museums, 42 as large historical
societies, 247 as not-for profit museums
or organizations that are large or
dominant in the field, and the
remaining 139 entities would be
considered small museums, historical
societies, or nature parks. We received
1 comment on the proposed rule from
a small entity which was generally
supportive of the changes.
Based on this analysis, we estimate
that the average annual cost per small
entity is $2,191 under baseline
conditions, $5,844 under the final
action in years one through five, and
$916 beginning in year six. For each
small entity, this is an increase in years
one through five of $3,653 per year and
a decrease beginning in year six of
$1,275 per year compared to baseline
conditions. The impact on these small
entities aligns with their normal duties
of collections management. In an effort
to reduce respondent burden, we
provide templates and technical
assistance to direct inquiries by phone
and email. We assist many small entities
directly with drafting and completing
the notice requirements, which
generally fall outside the scope of
normal collections management duties.
The increase in costs associated with
the new requirements is temporary and
will not exist after the small entities
complete the required inventory
updates which is expected to happen
within five years of implementation.
We assume the majority of small
entities impacted by this rule also have
a small number of employees.
According to the available data
summarized in Table 12 below, smaller
firms also have smaller payroll costs.
Even in the most extreme scenario
(establishments with less than 5
employees) the annual costs of
compliance during the first five years of
the final regulatory action would be no
more than 10% the average entities
payroll costs.
TABLE 12—MUSEUMS NAICS 712110: EMPLOYMENT SIZES AND PAYROLL *
Number of
establishments
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Employment size
All establishments ..............................................................................................................
Less than 5 employees .....................................................................................................
5 to 9 employees ...............................................................................................................
10 to 19 employees ...........................................................................................................
20 to 49 employees ...........................................................................................................
50 to 99 employees ...........................................................................................................
100 to 249 employees .......................................................................................................
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Annual payroll
($1,000) **
5,297
3,188
910
551
372
141
102
E:\FR\FM\13DER2.SGM
13DER2
$3,346,074
194,629
197,668
294,715
507,049
468,509
772,161
Mean
payroll per
establishment
($1,000)
$632
61
217
535
1,363
3,323
7,570
Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations
86515
TABLE 12—MUSEUMS NAICS 712110: EMPLOYMENT SIZES AND PAYROLL *—Continued
Number of
establishments
Employment size
250 to 499 employees .......................................................................................................
500 to 999 employees .......................................................................................................
Annual payroll
($1,000) **
27
5
506,069
257,054
Mean
payroll per
establishment
($1,000)
18,743
51,411
* 2021 Economic Census Business Survey, https://data.census.gov/table/CBP2021.CB2100CBP?q=712110:%20Museums, accessed 12/1/
2023.
** Sales data are not available by employment size.
The U.S. Census Bureau has a
Quarterly Services Survey that reports
on revenues for NAICS 712 ‘‘Museums,
historical sites, and similar
institutions.’’ For 2022, total revenue
(Q1–Q4) was $21,468 million. Dividing
this by 7,062 (the total number of
employer firms in the 3-digit NAICS
code 712), the mean annual revenue per
firm is $3 million. While we recognize
there may be a wide range of revenues
at the individual firm level, this data
suggest that for the average firm in this
category, compliance costs will be small
when compared to annual revenue. We
do not have data that would allow a
more rigorous analysis.
D. Congressional Review Act (CRA)
This rule does not meet the criteria set
forth in 5 U.S.C. 804(2), the CRA. 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, or
local government agencies, or
geographic regions; and
(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.
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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 Section 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 Section 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
final rule after consulting with federally
recognized Indian Tribes. In addition,
we developed this final rule in
consultation with the Native American
Graves Protection and Repatriation
Review Committee, which includes
members nominated by Indian Tribes.
From March to July of 2011, the
Department consulted with Indian
Tribes and the Review Committee, as
well as others, on full revisions to the
regulations implementing the Act. 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
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Fmt 4701
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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, invited
Indian Tribes to consult on the draft
text. Along with the draft text, the
Department provided a summary of the
2011 consultation with Indian Tribes
and how the draft text was responsive
to that input. The Department hosted
virtual consultation sessions with
Indian Tribes on August 9, 13, and 16,
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 available in the
docket for the proposed rule, the
Department provided a summary of
each comment and specific detailed
responses.
During the comment period on the
proposed rule, the Department
scheduled Review Committee meetings,
Tribal consultation sessions, Native
Hawaiian consultation sessions, and
public listening sessions. Review
Committee meetings were held virtually
on January 5 and 10, 2023, from 2 p.m.
to 6 p.m. ET. Tribal consultation
sessions were held virtually on
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December 15, 2022, from 3 p.m. to 5
p.m. EST, and December 19, 2022, from
1 p.m. to 4 p.m. EST, and in person on
January 12, 2023, from 10 a.m. to 1 p.m.
MST in Phoenix, Arizona. Native
Hawaiian consultation sessions were
held virtually on January 9, 2023, from
9 a.m. to 11 a.m. HST and on January
10, 2023, from 6 p.m. to 8 p.m. HST.
At all sessions, the Department
provided a short overview of the
proposed regulation, highlighted the
major changes, and provided an
opportunity for questions. The
Department provided additional
resources related to the proposed
regulations on the National NAGPRA
Program website. Review Committee
meetings, Tribal Consultation sessions,
and Native Hawaiian Consultation
sessions were recorded and transcribed
to ensure a record of all comments were
available to the Department in preparing
the final rule. All of the oral comments
received during the meetings and
consultation sessions were repeated in
the written comments submitted by the
Review Committee and Indian Tribes
and are summarized in this document.
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 final regulations
contain 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 these final regulations 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 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: 3,008.
Estimated Completion Time per
Response: Varies from 1 hour to 270
hours depending on respondent and/or
activity.
Total Estimated Number of Annual
Burden Hours: 161,195.
Total Estimated Annual Non Hour
Burden Cost: None.
Information
collections
Subpart
Subpart A—General .............................................................................................................................
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 ...
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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 seven information
collection requirements subject to the
PRA. On Federal or Tribal lands, any
person who knows or has reason to
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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 participate in consultation or
submit a claim for disposition by
disclosing specified information to third
parties. On Tribal lands, an Indian Tribe
or NHO must maintain specified records
related to discoveries, excavations, and
dispositions.
Subpart C—Repatriation of Human
Remains or Cultural Items by Museums
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0
1
6
1
2
2
14
1
Respondents
None.
Any person
Indian Tribes or NHOs.
Any person.
Lineal descendants.
Indian Tribes/NHOs.
Museums.
Any affected party.
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
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NHOs may participate in consultation
and 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.
86517
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
Final regulations
New information collection requirements in Subpart B
Participate in consultation ..................................................................................................................................
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 ...............................................................................................
Complete a disposition statement ......................................................................................................................
§ 10.4(b)(2).
§ 10.5(a)–(b).
§ 10.5(c)(1) and § 10.5(e).
§ 10.6(a).
§ 10.7(c)(3).
§ 10.5(c); § 10.6(a); § 10.7(b).
§ 10.7(b).
Currently approved information collections requirements in Subpart C
New Summary/Inventory ....................................................................................................................................
Updated Inventory Data .....................................................................................................................................
Notices for publication in the Federal Register ................................................................................................
Updated Summary Data ....................................................................................................................................
Notify Tribes and Request Information ..............................................................................................................
Response to requests for information ................................................................................................................
§ 10.9(a) and § 10.10(d).
§ 10.10(d).
§ 10.9(f) and § 10.10(e).
Removed.
Removed.
Removed.
New information collection requirements in Subpart C
Conduct consultation ..........................................................................................................................................
Participate in 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(c) and § 10.10(c).
§ 10.9(d) and § 10.10(f).
§ 10.9(g) and § 10.10(h).
§ 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); § 10.10(i)–(j).
§ 10.10(k).
New information collection requirements in Subpart D
Request assistance of the Review Committee ..................................................................................................
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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. Requesting to consult is an
acknowledgement that entails 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
VerDate Sep<11>2014
17:04 Dec 12, 2023
Jkt 262001
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, 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.
§ 10.12(c).
regulations. In total, we estimate that we
will receive, annually, 3,008 responses
totaling 161,195 annual hour burden.
We estimate the annual dollar value is
$10,786,570 (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.
4. Burden Estimates
The Department has identified 27
information collections in the final
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Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations
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 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), 13461 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.
khammond on DSKJM1Z7X2PROD with RULES2
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.
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
17:04 Dec 12, 2023
Jkt 262001
Drafting Information
This final 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;
Office of the Assistant Secretary for Fish
and Wildlife and Parks; and Office of
the Solicitor, Division of Parks and
Wildlife and Division of Indian Affairs,
Department of the Interior. This final
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 revises 43
CFR part 10 to read as follows:
■
K. National Environmental Policy Act
(NEPA)
VerDate Sep<11>2014
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.
PART 10—NATIVE AMERICAN
GRAVES PROTECTION AND
REPATRIATION REGULATIONS
Sec.
Subpart A—General
10.1 Introduction.
10.2 Definitions for this part.
10.3 Determining cultural 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, or objects of
cultural patrimony.
10.10 Repatriation of human remains or
associated funerary objects.
10.11 Civil penalties.
Subpart D—Review Committee
10.12 Review Committee.
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Authority: 25 U.S.C. 3001 et seq. and 25
U.S.C. 9.
Subpart A—General
§ 10.1
Introduction.
(a) Purpose. The Native American
Graves Protection and Repatriation Act
(Act) of November 16, 1990, recognizes
the rights of lineal descendants, Indian
Tribes, and Native Hawaiian
organizations in Native American
human remains, funerary objects, sacred
objects, and objects of cultural
patrimony.
(1) The Act and these regulations
provide systematic processes to:
(i) Protect Native American human
remains, funerary objects, sacred
objects, and objects of cultural
patrimony; and
(ii) Restore Native American human
remains, funerary objects, sacred
objects, and objects of cultural
patrimony to lineal descendants, Indian
Tribes, and Native Hawaiian
organizations.
(2) The Act and these regulations
require consultation with lineal
descendants, Indian Tribes, and Native
Hawaiian organizations.
(3) Consistent with the Act, these
regulations require deference to the
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.
(1) These regulations require certain
actions by:
(i) Any institution or State or local
government agency (including any
institution of higher learning) within the
United States that receives Federal
funds and has possession or control of
a holding or collection;
(ii) Any Federal agency that has
possession or control of a holding or
collection or that has responsibilities on
Federal or Tribal lands;
(iii) Indian Tribes on Tribal lands in
Alaska and the continental United
States; and
(iv) The State of Hawai‘i Department
of Hawaiian Home Lands (DHHL) on
Tribal lands in Hawai‘i.
(2) Lineal descendants, Indian Tribes,
and Native Hawaiian organization may,
but are not required to, consult, submit
claims for disposition, or submit
requests for repatriation.
(c) Accountability. These regulations
are applicable to and binding on all
museums, Federal agencies, and DHHL
for implementing the systematic
processes for disposition and
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Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations
repatriation of human remains or
cultural items under this part.
(d) Duty of care. These regulations
require a museum, Federal agency, or
DHHL to care for, safeguard, and
preserve any human remains or cultural
items in its custody or in its possession
or control. A museum, Federal agency,
or DHHL must:
(1) Consult with lineal descendants,
Indian Tribes, or Native Hawaiian
organizations on the appropriate
storage, treatment, or handling of
human remains or cultural items;
(2) Make a reasonable and good-faith
effort to incorporate and accommodate
the Native American traditional
knowledge of lineal descendants, Indian
Tribes, or Native Hawaiian
organizations in the storage, treatment,
or handling of human remains or
cultural items; and
(3) Obtain free, prior, and informed
consent from lineal descendants, Indian
Tribes, or Native Hawaiian
organizations prior to allowing any
exhibition of, access to, or research on
human remains or cultural items.
Research includes, but is not limited to,
any study, analysis, examination, or
other means of acquiring or preserving
information about human remains or
cultural items. Research of any kind on
human remains or cultural items is not
required by the Act or these regulations.
(e) Delivery of written documents.
These regulations require written
documents to be sent, such as requests
for repatriation, claims for disposition,
invitations to consult, or notices for
publication.
(1) Written documents must be sent
by one of the following:
(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, must 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 no later than 7 days
after the change.
(f) Deadlines. These regulations
require certain actions be taken by a
specific date. Unless stated otherwise in
these regulations:
(1) Days mean calendar days. If a
deadline falls on a Saturday, Sunday, or
Federal holiday, the action is deemed
timely if taken no later than the next
calendar day that is not a Saturday,
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17:04 Dec 12, 2023
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Sunday, or Federal holiday. For
purposes of this part, Federal holidays
include any 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 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
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;
(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.
(k) Severability. If a court holds any
provisions of the regulations in this part
or their applicability to any person or
circumstances invalid, the remainder of
the regulations and their applicability to
other people or circumstances are
intended to continue to operate to the
fullest possible extent.
§ 10.2
Definitions for this part.
Act means the Native American
Graves Protection and Repatriation Act.
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86519
Ahupua1a (singular and plural) means
a traditional land division in Hawai1i
usually extending from the uplands to
the sea.
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.
Assistant Secretary means the official
of the Department of the Interior
designated by the Secretary of the
Interior as responsible for exercising the
Secretary of the Interior’s authority
under the Act.
Consultation or consult means the
exchange of information, open
discussion, and joint deliberations made
between all parties in good-faith and in
order to:
(1) Seek, discuss, and consider the
views of all parties;
(2) Strive for consensus, agreement, or
mutually acceptable alternatives; and
(3) Enable meaningful consideration
of the Native American traditional
knowledge of lineal descendants, Indian
Tribes, and Native Hawaiian
organizations.
Cultural affiliation means there is a
reasonable connection between human
remains or cultural items and an Indian
Tribe or Native Hawaiian organization
based on a relationship of shared group
identity. Cultural affiliation may be
identified clearly by the information
available or reasonably by the
geographical location or acquisition
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86520
Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations
history of the human remains or cultural
items.
Cultural items means a funerary
object, sacred object, or object of
cultural patrimony according to the
Native American traditional knowledge
of a lineal descendant, Indian Tribe, or
Native Hawaiian organization.
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 of this part.
Disposition means an appropriate
official recognizes a lineal descendant,
Indian Tribe, or Native Hawaiian
organization has ownership or control 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 § 10.6 of this part.
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 are 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 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
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17:04 Dec 12, 2023
Jkt 262001
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
the Native American traditional
knowledge of a lineal descendant,
Indian Tribe, or Native Hawaiian
organization. This term does not include
any object returned or distributed to
living persons according to traditional
custom after a death rite or ceremony.
Funerary objects are either associated
funerary objects or unassociated
funerary objects.
(1) Associated funerary object means
any funerary object related to human
remains that were removed and the
location of the human remains is
known. Any object made exclusively for
burial purposes or to contain human
remains is always an associated
funerary object regardless of the
physical 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 remains 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;
PO 00000
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(8) Exhibition;
(9) Forensic purposes;
(10) Interpretation;
(11) Preservation;
(12) Public benefit;
(13) Research;
(14) Scientific interest; or
(15) Study.
Human remains means any physical
part of the body of a Native American
individual. This term does not include
human remains to which a museum or
Federal agency can prove it has a right
of possession.
(1) Human remains reasonably
believed to be comingled with other
materials (such as soil or faunal
remains) may be treated as human
remains.
(2) Human remains incorporated into
a funerary object, sacred object, or object
of cultural patrimony are considered
part of the cultural items rather than
human remains.
(3) 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 of the
Interior under the Act of November 2,
1994 (25 U.S.C. 5131).
Inventory means a simple itemized
list of any human remains and
associated funerary objects in a holding
or collection that incorporates the
results of consultation and makes
determinations about cultural
affiliation.
Lineal descendant means:
(1) A living person tracing 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 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 can trace ancestry directly to
both of the deceased individuals).
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Manager, National NAGPRA Program,
means the official of the Department of
the Interior designated by the Secretary
of the Interior 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 or
confidential to individual Native
Americans, Indian Tribes, or the Native
Hawaiian Community. 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,
linguistic, 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
American traditional knowledge is
expert opinion.
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:
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(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 of the Interior’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 the Native
American traditional knowledge of an
Indian Tribe or Native Hawaiian
organization. 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 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.
1Ohana (singular and plural) means a
group of people who are not asserting
that they are 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 the
physical location of the object or item.
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.
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86521
Receives Federal funds means an
institution or State or local government
agency (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 relinquishes possession
or control of human remains or cultural
items in a holding or collection to a
lineal descendant, Indian Tribe, or
Native Hawaiian organization.
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 or 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 a specific
ceremonial object needed by a
traditional religious leader for presentday adherents to practice traditional
Native American religion, according to
the Native American traditional
knowledge of a lineal descendant,
Indian Tribe, or Native Hawaiian
organization. While many items might
be imbued with sacredness in a culture,
this term is specifically limited to an
object needed for the observance or
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may be provided by an Indian Tribe or
Native Hawaiian organization.
(1) One or more of the following
equally relevant types of information
about human remains or cultural items
may be available:
(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.
(2) A lack of any type of information
does not preclude a determination of
cultural affiliation. One type of
information may be used to determine
cultural affiliation when no other
relevant information is available.
(b) Step 2: Identify the required
criteria. Using the information available,
including information provided by an
Indian Tribe or Native Hawaiian
organization, a museum, Federal
agency, or DHHL must identify the three
criteria for cultural affiliation.
(1) Each of the following criteria must
be identified in the information
available:
(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 that can be reasonably
traced through time.
(2) One type of information may be
§ 10.3 Determining cultural affiliation.
sufficient to reasonably identify the
Throughout this part, cultural
required criteria when no other relevant
affiliation ensures that disposition or
information is available. For example,
repatriation of human remains or
geographical information about human
cultural items is based on a reasonable
remains or cultural items may identify:
connection with an Indian Tribe or
(i) The earlier groups of people
Native Hawaiian organization. Cultural
connected to a geographical location;
affiliation must be determined by the
(ii) The Indian Tribe or Native
information available, including
Hawaiian organization connected to a
information provided by an Indian Tribe geographical location; and
or Native Hawaiian organization.
(iii) A relationship of shared group
Cultural affiliation does not require
identity between the two traced through
exhaustive studies, additional research,
time.
or continuity through time. Cultural
(c) Step 3: Make a determination of
affiliation is not precluded solely
cultural affiliation. A museum, Federal
because of reasonable gaps in the
agency, or DHHL must make a written
information available.
record of its determination of cultural
(a) Step 1: Collect information
affiliation that briefly describes the
available. A museum, Federal agency, or information available under paragraph
DHHL must collect information it holds (a) of this section and the criteria
about human remains or cultural items,
identified under paragraph (b) of this
including, but not limited to, records,
section.
catalogues, relevant studies, and other
(1) The determination must be one of
pertinent data. Additional information
the following:
khammond on DSKJM1Z7X2PROD with RULES2
renewal of a Native American religious
ceremony.
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 needed to practice traditional
Native American religion, according to
the Native American traditional
knowledge of a lineal descendant,
Indian Tribe, or Native Hawaiian
organization.
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 Hawai1i into the Union (73 Stat. 4),
including ‘‘available lands’’ and
‘‘Hawaiian home lands.’’
Tribal lands of an NHO means Tribal
lands in Hawai1i that are under the
stewardship of a Native Hawaiian
organization through a lease or license
issued 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 or
Tribal lands whose disposition has not
occurred under this part.
United States means the 50 States and
the District of Columbia.
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(i) Cultural affiliation is identified
clearly by the information available,
(ii) Cultural affiliation is identified
reasonably by the geographical location
or acquisition history, or
(iii) Cultural affiliation cannot be
clearly or reasonably identified.
(2) Cultural affiliation of human
remains or cultural items may be with
more than one Indian Tribe or Native
Hawaiian organization. For example, an
identifiable earlier group may have a
relationship to more than one Indian
Tribe or Native Hawaiian organization,
or two or more earlier groups may be
connected to human remains or cultural
items and 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. In Hawai‘i, two or more
Native Hawaiian organizations may be
part of the same Native Hawaiian
Community, but may have distinct
beliefs, protocols, and other cultural
practices passed down through different
familial, cultural, and geographical
lineages.
(d) Joint disposition or repatriation.
When a museum, Federal agency, or
DHHL determines cultural affiliation of
human remains or cultural items with
two or more Indian Tribes or Native
Hawaiian organizations, any Indian
Tribe or Native Hawaiian organization
with cultural affiliation may submit a
claim for disposition or a request for
repatriation. Any Indian Tribe or Native
Hawaiian organization with cultural
affiliation may agree to joint disposition
or joint repatriation of the human
remains or cultural items. 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. A single claim or
request may be on behalf of multiple
Indian Tribes or Native Hawaiian
organizations. Disposition or
repatriation statements required under
this part must identify all joint
claimants or requestors.
(e) Competing claims or requests.
When there are competing claims for
disposition or competing requests for
repatriation of human remains or
cultural items, a museum, Federal
agency, or DHHL must determine the
Indian Tribe or Native Hawaiian
organization with the closest cultural
affiliation. In support of a competing
claim or request, each claimant or
requestor may provide information to
show by a preponderance of the
evidence that it has a stronger
relationship of shared group identity to
the human remains or cultural items.
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(1) The Indian Tribe with the closest
cultural affiliation, in the following
order, is:
(i) The Indian Tribe whose cultural
affiliation is clearly identified by the
information available.
(ii) The Indian Tribe whose cultural
affiliation is reasonably identified by the
geographical location and acquisition
history of the human remains or cultural
items.
(iii) The Indian Tribe whose cultural
affiliation is reasonably identified by
only the geographical location of the
human remains or cultural items.
(iv) The Indian Tribe whose cultural
affiliation is reasonably identified by
only the acquisition history of the
human remains or cultural items.
(2) The Native Hawaiian organization
with the closest cultural affiliation, in
the following order, is:
(i) The 1ohana 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 the human remains or
cultural items from a specific site.
(ii) The 1ohana 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) The Native Hawaiian organization
with cultural 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) The Native Hawaiian organization
with cultural 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) The Native Hawaiian organization
with cultural 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) The Native Hawaiian organization
with cultural 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 cultural affiliation.
86523
Subpart B—Protection of Human
Remains or Cultural Items on Federal
or Tribal Lands
§ 10.4
General.
Each Indian Tribe, Native Hawaiian
organization, Federal agency, and the
State of Hawai‘i Department of
Hawaiian Home Lands (DHHL) that has
responsibility for Federal or Tribal lands
must comply with the requirements of
this subpart. Any permit, license, lease,
right-of-way, or other authorization
issued for an activity on Federal or
Tribal lands must include a requirement
to report any discovery of human
remains or cultural items under § 10.5 of
this part. Prior to any excavation of
human remains or cultural items on
Federal or Tribal lands, a written
authorization is required under § 10.6 of
this part. When human remains or
cultural items are removed from Federal
or Tribal lands, a disposition statement
is required under § 10.7 of this part.
(a) Appropriate official. To ensure
compliance with the Act, the Indian
Tribe, Native Hawaiian organization,
Federal agency, or DHHL that has
responsibility for Federal or Tribal lands
must designate one or more appropriate
officials to carry out the requirements of
this subpart, as shown in table 1 of this
paragraph (a).
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TABLE 1 TO § 10.4(a)—APPROPRIATE OFFICIAL
For human remains or cultural items on . . .
the appropriate official is a representative for the . . .
Federal lands in the United States ...........................................................
Tribal lands in Alaska and the continental United States ........................
Tribal lands in Hawai1i ..............................................................................
Tribal lands of an NHO ............................................................................
Federal agency with primary management authority.
Indian Tribe.
DHHL.
DHHL or a Native Hawaiian organization that has agreed in writing to
be responsible for its Tribal lands.
(b) Plan of action. When a Federal
agency or DHHL has responsibility for a
discovery or excavation on Federal or
Tribal lands, a plan of action is
required. A plan of action is not
required when an Indian Tribe or Native
Hawaiian organization has
responsibility for a discovery or
excavation on Tribal lands. The Federal
agency or DHHL must prepare a plan of
action before any planned activity that
is likely to result in a discovery or
excavation of human remains or cultural
items. The likelihood of a discovery or
excavation must be based on previous
studies, discoveries, or excavations in
the general proximity of the planned
activity and in consultation with the
lineal descendant, Indian Tribe, or
Native Hawaiian organization. If not
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part of a planned activity, a plan of
action is required after a discovery of
human remains or cultural items. After
consultation with the lineal descendant,
Indian Tribe, or Native Hawaiian
organization, the Federal agency or
DHHL must approve and sign a plan of
action.
(1) Step 1—Initiate consultation.
Before a planned activity or after a
discovery, the Federal agency or DHHL
must identify consulting parties and
invite the parties to consult.
(i) Consulting parties are any lineal
descendant and any Indian Tribe or
Native Hawaiian organization with
potential cultural affiliation.
(ii) An invitation to consult must be
in writing and must include:
(A) A description of the planned
activity or discovery and its
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geographical location by county and
State;
(B) The names of all consulting
parties; and
(C) A proposed timeline and method
for consultation.
(2) Step 2—Consult on the plan of
action. The Federal agency or DHHL
must respond to any consulting party,
regardless of whether the party has
received an invitation to consult.
Consultation on the plan of action may
continue until the Federal agency or
DHHL sends a disposition statement to
a claimant under § 10.7(c)(5) of this
subpart.
(i) In response to a consulting party,
the Federal agency or DHHL must ask
for the following information, if not
already provided:
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(A) Preferences 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 leader, and known lineal
descendant who may participate in
consultation.
(ii) Consultation must address the
content of the plan of action under
paragraph (b)(3) of this section.
(iii) The Federal agency or DHHL
must prepare a record of consultation
that describes the concurrence,
disagreement, or nonresponse of the
consulting parties to the content of the
plan of action.
(3) Step 3—Approve and sign the plan
of action. Before a planned activity or
after a discovery, the Federal agency or
DHHL 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 or discovery and its
geographical location by county and
State;
(ii) A list of all consulting parties
under paragraph (b)(1) of this section;
(iii) A record of consultation under
paragraph (b)(2) of this section;
(iv) The preference of consulting
parties for:
(A) Stabilizing, securing, and covering
human remains or cultural items in situ,
or
(B) Protecting, securing, and
relocating human remains or cultural
items, if removed;
(v) The duty of care under § 10.1(d)
for any human remains or cultural
items; and
(vi) The timeline and method for:
(A) Informing all consulting parties of
a discovery;
(B) Evaluating the potential need for
an excavation; and
(C) Completing disposition, to include
publication of a notice of intended
disposition, under § 10.7 of this part.
(c) Comprehensive agreement. 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
the lineal descendant, Indian Tribe, or
Native Hawaiian organization identified
under paragraph (b)(1) 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
consulting parties under paragraph
(b)(2) of this section. Evidence of
consent means the authorized
representative’s signature on the
agreement or by official correspondence
to the Federal agency or DHHL; and
(4) Be signed by 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).
§ 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 Indian Tribe, Native Hawaiian
organization, Federal agency, or DHHL
and the additional point of contact. The
appropriate official must respond to a
discovery and, if applicable, certify
when an activity may resume.
(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:
(1) Immediately report the discovery
in person or by telephone to the
appropriate official and any additional
point of contact shown in table 1 of this
paragraph (a).
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TABLE 1 TO § 10.5(a)(1)—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.
Tribal lands in Alaska and the continental
United States.
Indian Tribe ......................................................
Tribal lands in Hawai1i ........................................
DHHL ...............................................................
* Federal lands in Alaska selected but not yet
conveyed under the Alaska Native Claims
Settlement Act (ANCSA, 43 U.S.C. 1601).
Bureau of Land Management or Federal
agency with primary management authority.
Any Indian Tribe or Native Hawaiian organization with potential cultural affiliation, if
known.
Bureau of Indian Affairs or the Federal agency with primary management authority, if
any.
Any Native Hawaiian organization with potential cultural affiliation, if known.
Alaska Native Corporation organized under
ANCSA.
(2) 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; and
(3) No later than 24 hours after the
discovery, send written documentation
of the discovery to the appropriate
official and the additional point of
contact shown in Table 1 to paragraph
(a)(1) of this section stating:
(i) The geographical location by
county and State;
(ii) The contents of the discovery; and
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(iii) The steps taken to secure and
protect the human remains or cultural
items.
(b) Cease any nearby activity. If a
discovery is related to an activity
(including but not limited to
construction, mining, logging, or
agriculture), the person responsible for
the activity must:
(1) Immediately stop any activity that
could threaten the discovery;
(2) Report the discovery according to
paragraph (a) of this section; and
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(3) In the written documentation of
the discovery required under paragraph
(a)(3) of this section include:
(i) The related activity and any
potential threats to the discovery; and
(ii) Confirmation that all activity
around the discovery has stopped and
must 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
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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 reasonable effort to:
(i) Secure and protect the human
remains or cultural items;
(ii) Verify that any activity around the
discovery has stopped; and
(iii) Notify the additional point of
contact shown in table 1 to paragraph
(a)(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 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 Bureau of Indian
Affairs or the Federal agency with
primary management authority is
responsible for completing the
requirements in paragraphs (d) and (e)
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, DHHL is
responsible for completing the
requirements in paragraph (d) and (e) of
this section for any discoveries on those
Tribal lands of an NHO.
(d) Approve and sign a plan of action.
When a Federal agency or DHHL has
responsibility for a discovery on Federal
or Tribal lands, a plan of action is
required. A plan of action is not
required when an Indian Tribe or Native
Hawaiian organization has
responsibility for a discovery on Tribal
lands. The Federal agency or DHHL
must carry out the plan of action for any
human remains or cultural items that
are removed.
(1) No later than 30 days after
receiving written documentation of a
discovery, the Federal agency or DHHL,
in consultation with the lineal
descendant, Indian Tribe, or Native
Hawaiian organization, must approve
and sign a plan of action under
§ 10.4(b).
(2) This requirement does not apply
if, before receiving written
documentation of the discovery, the
Federal agency or DHHL signed:
(i) A plan of action under § 10.4(b); or
(ii) A comprehensive agreement under
§ 10.4(c).
(e) Certify when an activity may
resume. No later than 30 days after
receiving written documentation of a
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discovery, the appropriate official must
send a written certification if the
discovery is related to an activity
(including but not limited to
construction, mining, logging, or
agriculture). Written certification must
be sent to the person responsible for the
activity and the additional point of
contact shown in table 1 to paragraph
(a)(1) of this section. 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;
(2) Instructions for protecting,
securing, stabilizing, or covering the
human remains or cultural items, if
appropriate; and
(3) The date (no later than 30 days
after the date of the written certification)
on which lawful activity may resume
around the discovery.
§ 10.6
Excavation.
When an excavation of human
remains or cultural items on Federal or
Tribal lands is needed, the appropriate
official must comply with this section
when authorizing the excavation. 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 part 1312, 32 CFR
part 229, 36 CFR part 296, or 43 CFR
part 7. When the excavation is on
Federal or Tribal lands that are not
ARPA Indian lands or ARPA Public
lands, an equivalent permit from the
relevant jurisdiction is required, if
applicable.
(a) On Tribal lands. Before an
excavation of human remains or cultural
items may occur, the Indian Tribe or
Native Hawaiian organization 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 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 Bureau of
Indian Affairs or the Federal agency
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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, 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 or Tribal lands. When
a Federal agency or DHHL has
responsibility for an excavation on
Federal or Tribal lands, a plan of action
and a written authorization are required.
When an Indian Tribe or Native
Hawaiian organization has
responsibility for an excavation on
Tribal lands, no plan of action is
required and the Indian Tribe or Native
Hawaiian organization must comply
with paragraph (a) of this section.
(1) Approve and sign a plan of action.
Prior to authorizing an excavation, the
Federal agency or DHHL, in
consultation with the lineal descendant,
Indian Tribe, or Native Hawaiian
organization, must approve and sign a
plan of action under § 10.4(b). The
Federal agency or DHHL must carry out
the plan of action for any human
remains or cultural items that are
excavated and removed.
(i) This requirement does not apply if,
prior to authorizing the excavation, the
Federal agency or DHHL signed:
(A) A plan of action under § 10.4(b);
or
(B) A comprehensive agreement under
§ 10.4(c).
(ii) For an excavation on Tribal lands,
the plan of action must include written
consent to the excavation by the
appropriate Indian Tribe or Native
Hawaiian organization.
(2) Authorize an excavation. At
minimum, the written authorization
must include:
(i) A copy of the signed plan of action
or comprehensive agreement with
redaction of any confidential or
sensitive information,
(ii) The reasonable steps taken to
evaluate the potential need for an
excavation of human remains or cultural
items, and
(iii) Any permit that the Federal
agency or DHHL legally requires.
§ 10.7
Disposition.
When human remains or cultural
items are removed from Federal or
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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 identify the lineal descendant,
Indian Tribe, or Native Hawaiian
organization that has priority for
disposition of human remains or
cultural items using this section.
(a) Priority for disposition. The
disposition of human remains or
cultural items removed from Federal or
Tribal lands must be in the following
priority order:
(1) The known lineal descendant, if
any, for human remains or associated
funerary objects;
(2) The Indian Tribe or Native
Hawaiian organization from whose
Tribal lands the human remains or
cultural items were removed;
(3) The Indian Tribe or Native
Hawaiian organization with the closest
cultural affiliation according to the
priority order at § 10.3(e) of this part;
(4) On Federal land that is recognized
by a final judgment of the Indian Claims
Commission or the United States Court
of Claims as the aboriginal land of some
Indian Tribe, the Indian Tribe with the
strongest relationship to the human
remains or cultural items, which is:
(i) The Indian Tribe recognized as
aboriginally occupying the geographical
location where the human remains or
cultural items were removed; or
(ii) A different Indian Tribe who
shows by a preponderance of the
evidence a stronger relationship to the
human remains or cultural items; or
(5) Any Indian Tribe or Native
Hawaiian organization that requests
transfer of the human remains or
cultural items as unclaimed under
paragraph (d) of this section.
(b) On Tribal lands. The Indian Tribe
or Native Hawaiian organization from
whose Tribal lands the human remains
or cultural items were removed must
identify the lineal descendant, Indian
Tribe, or Native Hawaiian organization
with priority for disposition under
paragraph (a) of this section.
(1) The Indian Tribe or Native
Hawaiian organization must complete
and retain a written disposition
statement to recognize:
(i) A lineal descendant (whose name
may be withheld) has ownership or
control of the human remains or
associated funerary objects removed
from Tribal lands; or
(ii) A lineal descendant could not be
ascertained, and the Indian Tribe or
Native Hawaiian organization has
ownership or control of the human
remains or cultural items removed from
Tribal lands.
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(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 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 Bureau of Indian
Affairs or the Federal agency with
primary management authority is
responsible for completing the
requirements in paragraph (c) 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, DHHL is responsible for
completing the requirements in
paragraph (c) of this section for any
dispositions from those Tribal lands of
an NHO.
(4) After completing a disposition
statement, nothing in the Act or this
part:
(i) Limits the authority of an Indian
Tribe or Native Hawaiian organization
to enter into any agreement with the
lineal descendant or another Indian
Tribe or Native Hawaiian organization
concerning the human remains or
cultural items;
(ii) Limits any procedural or
substantive right which may otherwise
be secured to the lineal descendant,
Indian Tribe, or Native Hawaiian
organization; or
(iii) Prevents the governing body of an
Indian Tribe or Native Hawaiian
organization from expressly
relinquishing its ownership or control of
human remains, funerary objects, or
sacred objects.
(c) On Federal or Tribal lands. When
a Federal agency or DHHL has
responsibility for disposition of human
remains or cultural items from Federal
or Tribal lands, the Federal agency or
DHHL must inform and notify the lineal
descendant, Indian Tribe, or Native
Hawaiian organization with priority for
disposition under paragraph (a) of this
section.
(1) Step 1—Inform consulting parties.
As soon as possible but no later than six
months after removal of human remains
or cultural items from Federal or Tribal
lands, the Federal agency or DHHL must
send a written document informing all
consulting parties listed in the plan of
action under § 10.4(b)(3) of this part.
Consultation on disposition of human
remains or cultural items may continue
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until the Federal agency or DHHL sends
a disposition statement to a claimant
under paragraph (c)(5) of this section.
(i) The written document must
include:
(A) A description of the human
remains or cultural items, including the
date and geographical location by
county and State of removal; and
(B) The lineal descendant (whose
name may be withheld), Indian Tribe, or
Native Hawaiian organization identified
as having priority for disposition of the
human remains or cultural items.
(ii) For human remains or cultural
items removed from Federal or Tribal
lands whose disposition is not complete
prior to January 12, 2024, the Federal
agency or DHHL must:
(A) Identify the lineal descendant,
Indian Tribe, or Native Hawaiian
organization with priority for
disposition under paragraph (a) of this
section; and
(B) No later than July 12, 2024, send
a written document under paragraph
(c)(1)(i) of this section.
(iii) If the Federal agency or DHHL
cannot identify any lineal descendant,
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 (d) of this section.
(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
Federal agency or DHHL must submit a
notice of intended disposition. If the
human remains or cultural items are
evidence in an ongoing civil or criminal
action under ARPA or a criminal action
under NAGPRA, the deadline for the
notice is extended until the conclusion
of the ARPA or NAGPRA case.
(i) A notice of intended disposition
must be sent to any consulting parties
and to the Manager, National NAGPRA
Program, for publication in the Federal
Register.
(ii) A notice of intended disposition
must conform to the mandatory format
of the Federal Register and include:
(A) An abstract of the information in
the written document under paragraph
(c)(1)(i) of this section;
(B) The name, phone number, email
address, and mailing address of the
appropriate official for the Federal
agency or DHHL who is responsible for
receiving claims for disposition;
(C) The date (to be calculated by the
Federal Register 30 days from the date
of publication) after which the Federal
agency or DHHL may send a disposition
statement to a claimant; and
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(D) The date (to be calculated by the
Federal Register one year from the date
of publication) on which the human
remains or cultural items become
unclaimed human remains or cultural
items if no claim for disposition is
received from a lineal descendant,
Indian Tribe, or Native Hawaiian
organization.
(iii) No later than 21 days after
receiving a notice of intended
disposition, the Manager, National
NAGPRA Program, must:
(A) Approve for publication in the
Federal Register any submission that
conforms to the requirements under
paragraph (c)(2)(ii) of this section; or
(B) Return to the Federal agency or
DHHL any submission that does not
conform to the requirements under
paragraph (c)(2)(ii) of this section. No
later than 14 days after the submission
is returned, the Federal agency or DHHL
must resubmit the notice of intended
disposition.
(3) Step 3—Receive and consider a
claim for disposition. After publication
of a notice of intended disposition in
the Federal Register, any lineal
descendant, Indian Tribe, or Native
Hawaiian organization may submit to
the appropriate official for the Federal
agency or DHHL 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 Federal agency or DHHL
before a disposition statement for the
human remains or cultural items is sent
to a claimant under paragraph (c)(5) of
this section or the transfer or
reinterment of the human remains or
cultural items under paragraph (d)(4) of
this section. A claim for disposition
received by the Federal agency or DHHL
before the publication of the notice of
intended disposition is dated the same
date the notice was published.
(ii) Claims from two or more lineal
descendants, 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 claimant is identified in the
notice of intended disposition with
priority for disposition; or
(B) The claimant is not identified in
the notice of intended disposition, but
the claim for disposition shows that the
claimant is a lineal descendant, Indian
Tribe, or Native Hawaiian organization
with priority for disposition under
paragraph (a) of this section.
(iv) One year after publishing a notice
of intended disposition under paragraph
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(c)(2) of this section, if no lineal
descendant, Indian Tribe, or Native
Hawaiian organization has submitted a
claim for disposition, the Federal
agency or DHHL must report the human
remains or cultural items as unclaimed
under paragraph (d) 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 90 days
after receiving a claim for disposition,
the Federal agency or DHHL must send
a written response to the claimant with
a copy to any other party identified in
the notice of intended disposition with
priority for disposition.
(i) In the written response, the Federal
agency or DHHL must state one of the
following:
(A) The claim meets the criteria under
paragraph (c)(3) of this section. The
Federal agency or DHHL must send a
disposition statement to the claimant
under paragraph (c)(5) of this section,
unless the Federal agency or DHHL
receives additional, competing claims
for disposition of human remains or
cultural items.
(B) The claim does not meet the
criteria under paragraph (c)(3) of this
section. The Federal agency or DHHL
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 Federal agency or DHHL 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
deadlines under paragraph (c)(4)(ii) of
this section.
(ii) At any time before sending a
disposition statement for human
remains or cultural items under
paragraph (c)(5) of this section, the
Federal agency or DHHL may receive
additional, competing claims for
disposition of the human remains or
cultural items that meet the criteria
under paragraph (c)(3) of this section.
The Federal agency or DHHL must
determine the most appropriate
claimant using the priority for
disposition under paragraph (a) of this
section and the following procedures
and deadlines:
(A) No later than 14 days after
receiving a competing claim, the Federal
agency or DHHL must send a written
letter to each claimant identifying all
claimants and the date each claim was
received. In response, the claimants may
provide additional information to show
by a preponderance of the evidence that
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86527
the claimant has a stronger relationship
to the human remains or cultural items.
(B) No later than 180 days after
informing the claimants of competing
claims, the Federal agency or DHHL
must send a written determination to
each claimant identifying the most
appropriate claimant(s).
(C) No earlier than 30 days but no
later than 90 days after sending a
determination of the most appropriate
claimant(s), the Federal agency or DHHL
must send a disposition statement to the
most appropriate claimant(s) under
paragraph (c)(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
Federal agency or DHHL must send a
written disposition statement to the
claimant(s) and a copy to the Manager,
National NAGPRA Program. A
disposition statement must recognize
the claimant(s) has ownership or control
of the human remains or cultural items.
In the case of joint claims for
disposition, a disposition statement
must identify and be sent to all
claimants.
(i) After sending a disposition
statement, the Federal agency or DHHL
must:
(A) Consult with the claimant(s) on
custody and physical transfer;
(B) Document any physical transfer;
and
(C) Protect sensitive information, as
identified by the claimant(s), from
disclosure to the general public to the
extent consistent with applicable law.
(ii) After a 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 lineal descendant,
Indian Tribe, or Native Hawaiian
organization concerning the human
remains or cultural items;
(B) Limits any procedural or
substantive right which may otherwise
be secured to the lineal descendant,
Indian Tribe, or Native Hawaiian
organization; or
(C) Prevents the governing body of an
Indian Tribe or Native Hawaiian
organization from expressly
relinquishing its ownership or control of
human remains, funerary objects, or
sacred objects.
(d) Unclaimed human remains or
cultural items removed from Federal or
Tribal lands. When a Federal agency or
DHHL has custody of unclaimed human
remains or cultural items, the Federal
agency or DHHL must report the human
remains or cultural items.
(1) Step 1—Submit a list of unclaimed
human remains or cultural items. No
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later than January 13, 2025, the Federal
agency or DHHL must submit to the
Manager, National NAGPRA Program, a
list of any unclaimed human remains or
cultural items in its custody. The
Federal agency or DHHL must submit
updates to its list of unclaimed human
remains or 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
(c)(2) of this section, no lineal
descendant, 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 Federal agency or
DHHL did not 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 description of the human
remains or cultural items, including the
date and geographical location by
county and State of removal;
(B) The names of all consulting
parties;
(C) If unclaimed under paragraph
(d)(1)(i)(A) of this section, the name of
each Indian Tribe or Native Hawaiian
organization with priority for
disposition under paragraph (a) of this
section; and
(D) If unclaimed under paragraph
(d)(1)(i)(B) of this section, the
information considered under § 10.3(a)
of this part and the criteria identified
under § 10.3(b) of this part to explain
why no Indian Tribe or Native Hawaiian
organization with cultural affiliation
could be identified.
(2) Step 2—Agree to transfer or decide
to reinter human remains or cultural
items. At the discretion of the Federal
agency or DHHL, a Federal agency or
DHHL may:
(i) Agree in writing to transfer
unclaimed human remains or cultural
items to an Indian Tribe or Native
Hawaiian organization;
(ii) Decide in writing to reinter
unclaimed human remains or cultural
items according to applicable laws and
policies; or
(iii) At any time before transferring or
reinterring human remains or cultural
items under paragraph (d)(4) of this
section, the Federal agency or DHHL
may receive a claim for disposition of
the human remains or cultural items
and must evaluate whether the claim
meets the criteria under paragraph (c)(3)
of this section. Any agreement to
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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
(c) of this section.
(A) If the claim meets the criteria
under paragraph (c)(3) of this section
and a notice of intended disposition was
published under paragraph (c)(2) of this
section, the Federal agency or DHHL
must respond in writing under
paragraph (c)(4) and proceed with
disposition under (c)(5) of this section.
(B) If the claim meets the criteria
under paragraph (c)(3) of this section
but no notice of intended disposition
was published, the Federal agency or
DHHL must submit a notice of intended
disposition under paragraph (c)(2),
respond in writing under paragraph
(c)(4), and proceed with disposition
under (c)(5) of this section.
(C) If the claim does not meet the
criteria under paragraph (c)(3) of this
section, the Federal agency or DHHL
must respond in writing under
paragraph (c)(4) and may proceed with
transfer or reinterment under paragraph
(d)(3) of this section.
(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.
(i) A notice of proposed transfer or
reinterment must be sent to any
consulting parties and to the Manager,
National NAGPRA Program, for
publication in the Federal Register.
(ii) A notice of proposed transfer or
reinterment must conform to the
mandatory format of the Federal
Register and include:
(A) An abstract of the information in
the list of unclaimed human remains or
cultural items under paragraph (d)(1)(ii)
of this section;
(B) The Indian Tribe or Native
Hawaiian organization requesting
transfer of the human remains or
cultural items or a statement that the
Federal agency or DHHL agrees to
reinter the human remains or cultural
items;
(C) The name, phone number, email
address, and mailing address of the
appropriate official for the Federal
agency or DHHL who is responsible for
receiving claims for disposition; 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.
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(iii) No later than 21 days after
receiving a notice of proposed transfer
or reinterment, the Manager, National
NAGPRA Program, must:
(A) Approve for publication in the
Federal Register any submission that
conforms to the requirements under
paragraph (d)(3)(ii) of this section; or
(B) Return to the Federal agency or
DHHL any submission that does not
conform to the requirements under
paragraph (d)(3)(ii) of this section. No
later than 14 days after the submission
is returned, the Federal agency or DHHL
must resubmit the notice of proposed
transfer or reinterment.
(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
Federal agency or DHHL must transfer
or reinter the human remains or cultural
items and send a written statement to
the Manager, National NAGPRA
Program, that the transfer or reinterment
is complete.
(i) After transferring or reinterring, the
Federal agency or DHHL must:
(A) Document the transfer or
reinterment of the human remains or
cultural items, and
(B) 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 human remains or
cultural items;
(B) Limits any procedural or
substantive right which may otherwise
be secured to the lineal descendant,
Indian Tribe, or Native Hawaiian
organization; or
(C) Prevents the governing body of an
Indian Tribe or Native Hawaiian
organization from expressly
relinquishing its ownership or control 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.
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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 any holding or collection under its
possession or control that may 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
or control. In general, custody of a
holding or collection 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 sends a
repatriation statement for human
remains or cultural items or that
transfers or reinters human remains or
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 any
holding or collection in its possession or
control that may contain human
remains or cultural items, including a
previously lost or previously unknown
holding or collection.
(1) A Federal agency must determine,
given the relevant information, if a
holding or collection:
(i) Was in its possession or control on
or before November 16, 1990; or
(ii) Came into its possession or control
after November 16, 1990, and was
removed from:
(A) An unknown location; or
(B) Lands that are neither Federal nor
Tribal lands as defined in this part.
(2) A Federal agency may have
custody of a holding or collection that
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was removed from Federal or Tribal
lands after November 16, 1990, and
must comply with § 10.7(c) of this part.
(c) Museums with custody of a
Federal agency holding or collection. No
later than January 13, 2025, each
museum that has custody of a Federal
agency holding or collection that may
contain 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 180 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 agree that they have joint
possession or control of the holding or
collection.
(2) Failure to issue such a
determination by the deadline
constitutes acknowledgement that the
Federal agency has possession or
control. The Federal agency is
responsible for the requirements of this
subpart for any 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
January 13, 2025, each museum that has
custody of a holding or collection that
may contain 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)(ii)
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
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NAGPRA Program, or the Review
Committee under § 10.12.
§ 10.9 Repatriation of unassociated
funerary objects, sacred objects, or 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—Compile a summary of a
holding or collection. Based on the
information available, a museum or
Federal agency must compile a
summary describing any holding or
collection that may contain
unassociated funerary objects, sacred
objects, or 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 geographical area,
accession or catalog name or number, or
other defining attributes. A museum or
Federal agency must ensure the
summary is comprehensive and covers
any holding or collection 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
cultural items;
(ii) The geographical location
(provenience) by county or State where
the potential cultural items;
(iii) The acquisition history
(provenance) of the potential cultural
items;
(iv) Other information relevant for
identifying:
(A) A lineal descendant or an Indian
Tribe or Native Hawaiian organization
with cultural affiliation, and
(B) Any object 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 January 12, 2024, a museum
or Federal agency must submit a
summary to the Manager, National
NAGPRA Program, by the deadline in
Table 1 of this paragraph (a)(2).
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TABLE 1 TO § 10.9(a)(2)—DEADLINES FOR COMPILING 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 January 12, 2024, 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 January 12,
2024.
(3) After January 12, 2024, 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
compiled summary.
(i) No later than 30 days after
acquiring the holding or collection, the
museum or Federal agency must send
the previously compiled summary to the
Manager, National NAGPRA Program.
(ii) No later than the deadline in Table
1 to paragraph (a)(2) of this section, the
museum or Federal agency must
compile a summary under paragraph
(a)(1) of this section based on the
previously compiled summary and
additional information available. The
museum or Federal agency must submit
the summary to the Manager, National
NAGPRA Program, and must initiate
consultation under paragraph (b) of this
section.
(4) Prior to January 12, 2024, 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, or objects of cultural patrimony
subject to the Act;
(ii) By October 20, 2007, for
unassociated funerary objects, sacred
objects, or objects of cultural patrimony
acquired or located after November 16,
1993;
(iii) By April 20, 2010, for
unassociated funerary objects, sacred
objects, or 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) After October 20, 2007, six
months after acquiring or locating
unassociated funerary objects, sacred
objects, or objects of cultural patrimony;
or
(v) After April 20, 2010, three years
after receiving Federal funds for the first
time.
(b) Step 2—Initiate consultation. No
later than 30 days after compiling a
summary, a museum or Federal agency
must identify consulting parties based
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on information available and invite the
parties to consult.
(1) Consulting parties are any lineal
descendant and any Indian Tribe or
Native Hawaiian organization with
potential cultural 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 consulting
parties; and
(iii) A proposed method for
consultation.
(3) When a museum or Federal agency
identifies a new consulting party under
paragraph (b)(1) of this section, the
museum or Federal agency must invite
the party to consult. An invitation to
consult under paragraph (b)(2) of this
section must be sent:
(i) No later than 30 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 on cultural items.
A museum or Federal agency must
respond to any consulting party,
regardless of whether the party has
received an invitation to consult.
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 response to a consulting party,
a museum or Federal agency must ask
for the following information, if not
already provided:
(i) Preferences 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 may participate in
consultation.
(2) Consultation must address
identification of:
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(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 duty of care under § 10.1(d)
for unassociated funerary objects, sacred
objects, or objects of cultural patrimony.
(3) The museum or Federal agency
must prepare a record of consultation
that describes the concurrence,
disagreement, or nonresponse of the
consulting parties to the identifications
in paragraph (c)(2) of this section.
(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 cultural
affiliation, including the geographical
location or 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 compiled, 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
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for compiling a summary in table 1 to
paragraph (a)(2) of this section is dated
the same date as the deadline for
compiling 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 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 90 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 consulting party.
Using the 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:
(1) The request meets the criteria
under paragraph (d) of this section. The
museum or Federal agency must 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 repatriation of the requested
object to the requestor. The museum or
Federal agency must provide
information to prove that the museum
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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 deadlines 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. The
museum or Federal agency may include
in a single notice any unassociated
funerary objects, sacred objects, or
objects of cultural patrimony with the
same requestor.
(1) A notice of intended repatriation
must be sent to all requestors, any
consulting parties, and to the Manager,
National NAGPRA Program, for
publication in the Federal Register.
(2) A notice of intended repatriation
must conform to the mandatory format
of the Federal Register and include:
(i) An abstract of the information
compiled under paragraph (a) of this
section;
(ii) The total number and brief
description of the unassociated funerary
objects, sacred objects, or objects of
cultural patrimony (counted separately
or by lot);
(iii) The lineal descendant (whose
name may be withheld), Indian Tribe, or
Native Hawaiian organization
requesting repatriation of the
unassociated funerary objects, sacred
objects, or objects of cultural patrimony;
(iv) 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
(v) 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.
(3) No later than 21 days after
receiving a notice of intended
repatriation, the Manager, National
NAGPRA Program, must:
(i) Approve for publication in the
Federal Register any submission that
conforms to the requirements under
paragraph (f)(2) of this section; or
(ii) Return to the museum or Federal
agency any submission that does not
conform to the requirements under
paragraph (f)(2) of this section. No later
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than 14 days after the submission is
returned, the museum or Federal agency
must resubmit the notice of intended
repatriation.
(5) 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 using the procedures and
deadlines 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. In a
repatriation statement, a museum or
Federal agency must relinquish
possession or control of the
unassociated funerary object, sacred
object, or object of cultural patrimony to
the lineal descendant, Indian Tribe, or
Native Hawaiian organization. In the
case of joint requests for repatriation, a
repatriation statement must identify and
be sent to all requestors.
(1) After sending a repatriation
statement, the museum or Federal
agency must:
(i) Consult with the requestor on
custody and physical transfer;
(ii) Document any physical transfer;
and
(iii) Protect sensitive information, as
identified by the requestor, from
disclosure to the general public to the
extent consistent with applicable law.
(2) After a 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 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
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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(e) of this part.
(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(e) of this part.
(3) No later than 14 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. In response,
the requestors may provide additional
information to show by a preponderance
of the evidence that the requestor has a
stronger relationship of shared group
identity to the cultural items.
(4) No later than 180 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; and
(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
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agency must send a repatriation
statement to the most appropriate
requestor under paragraph (g) of this
section; or
(iii) The most appropriate requestor
cannot be determined, and repatriation
is stayed under paragraph (i)(2) of this
section. The museum or Federal agency
must briefly describe the information
considered and explain how the
determination was made.
(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 14 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 14 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 Assistant
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 is of major benefit to the people
of the United States.
(i) To request the Assistant Secretary’s
concurrence, the museum or Federal
agency must send to the Manager,
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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 is 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;
(F) Affirm that the study has in place
the requisite funding; and
(G) Provide written documentation
showing free, prior, and informed
consent from lineal descendants, Indian
Tribes, or Native Hawaiian
organizations to the study.
(ii) In response to the request, the
Assistant Secretary must:
(A) Consult with lineal descendants,
Indian Tribes, or Native Hawaiian
organizations that consented to the
study;
(B) Send a written determination of
concurrence or denial to the museum or
Federal agency with a copy to the
consulting parties; and
(C) If the Assistant Secretary concurs,
specify in the written determination the
date by which the scientific study must
be completed.
(iii) No later than 30 days after the
completion date in the Assistant
Secretary’s determination, 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
repatriation statement to the requestor
under paragraph (g) of this section.
§ 10.10 Repatriation of human remains or
associated funerary objects.
Each museum and Federal agency that
has possession or control of a holding or
collection that may contain human
remains or associated funerary objects
must follow the steps in this section.
The purpose of this section is to provide
notice of determinations, following
consultation, about human remains or
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associated funerary objects to lineal
descendants, Indian Tribes, and Native
Hawaiian organizations to facilitate
repatriation.
(a) Step 1—Compile an itemized list
of any human remains and associated
funerary objects. Based on information
available, a museum or Federal agency
must compile a simple itemized list of
any human remains and associated
funerary objects in a holding or
collection. Depending on the scope of
the holding or collection, a museum or
Federal agency may organize its
itemized list into sections based on
geographical 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 simple itemized list must include:
(1) The number of individuals
identified in a reasonable manner based
on the information available. No
additional study or analysis is required
to identify 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 geographical location
(provenience) by county or State where
the human remains or associated
funerary objects were removed;
(4) The acquisition history
(provenance) of the human remains or
associated funerary objects;
(5) Other information available for
identifying a lineal descendant or an
Indian Tribe or Native Hawaiian
organization with cultural 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. As
soon as possible after compiling an
itemized list, a museum or Federal
agency must identify consulting parties
based on information available and
invite the parties to consult.
(1) Consulting parties are any lineal
descendant and any Indian Tribe or
Native Hawaiian organization with
potential cultural affiliation.
(2) An invitation to consult must be
in writing and must include:
(i) The itemized list described in
paragraph (a) of this section;
(ii) The names of all consulting
parties; and
(iii) A proposed timeline and method
for consultation.
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(3) When a museum or Federal agency
identifies a new consulting party under
paragraph (b)(1) of this section, the
museum or Federal agency must invite
the party to consult. An invitation to
consult under paragraph (b)(2) of this
section must be sent:
(i) No later than 30 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 on human
remains or associated funerary objects.
A museum or Federal agency must
respond to any consulting party,
regardless of whether the party has
received an invitation to consult.
Consultation on human remains or
associated funerary objects may
continue until the museum or Federal
agency sends a repatriation statement
for those human remains or associated
funerary objects to a requestor under
paragraph (h) of this section.
(1) In the response to a consulting
party, a museum or Federal agency must
ask for the following information, if not
already provided:
(i) Preferences 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 may participate in
consultation.
(2) Consultation must address
identification of:
(i) Lineal descendants;
(ii) Indian Tribes or Native Hawaiian
organizations with cultural 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 duty of care under § 10.1(d)
for human remains or associated
funerary objects.
(3) The museum or Federal agency
must prepare a record of consultation
that describes the concurrence,
disagreement, or nonresponse of the
consulting parties to the identifications
in paragraph (c)(2) of this section.
(4) At any time before the museum or
Federal agency sends a repatriation
statement for human remains or
associated funerary objects to a
requestor under paragraph (h) of this
section, a museum or Federal agency
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may receive a request from a consulting
party for access to records, catalogues,
relevant studies, or other pertinent data
related to those human remains or
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 cultural
affiliation, including the geographical
location or acquisition history, of the
human remains or associated funerary
objects.
(d) Step 4—Complete an inventory of
human remains or 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 any human remains and
associated funerary objects in the
holding or collection.
(1) An inventory must include:
(i) The names of all consulting parties
and dates of consultation;
(ii) The information, updated as
appropriate, from the itemized list
compiled under paragraph (a) of this
section;
(iii) For each entry in the itemized
list, a determination identifying one of
the following:
(A) A known lineal descendant
(whose name may be withheld);
(B) The Indian Tribe or Native
Hawaiian organization with cultural
affiliation that is clearly identified by
the information available about the
human remains or associated funerary
objects;
(C) The Indian Tribe or Native
Hawaiian organization with cultural
affiliation that is reasonably identified
by the geographical location or
acquisition history of the human
remains or associated funerary objects;
or
(D) No lineal descendant or any
Indian Tribe or Native Hawaiian
organization with cultural affiliation can
be clearly or reasonably identified. The
inventory must briefly describe the
information considered under § 10.3(a)
of this part and the criteria identified
under § 10.3(b) of this part to explain
how the determination was made.
(2) After January 12, 2024, 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
the paragraph (d)(2).
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TABLE 1 TO § 10.10(d)(2)—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 January 12, 2024, 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 January 12,
2024.
(3) No later than January 10, 2029, for
any human remains or associated
funerary objects listed in an inventory
but not published in a notice of
inventory completion prior to January
12, 2024, a museum or Federal agency
must:
(i) Initiate consultation as described
under paragraph (b) of this section;
(ii) Consult with consulting parties as
described under paragraph (c) of this
section;
(iii) Update its inventory 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.
(4) After January 12, 2024, 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.
(i) No later than 30 days after
acquiring the holding or collection, the
museum or Federal agency must send
the previously completed or updated
inventory to initiate consultation under
paragraph (b) of this section and notify
the Manager, National NAGPRA
Program.
(ii) No later than the deadline in Table
1 to paragraph (d)(2) of this section, the
museum or Federal agency must
complete an inventory under paragraphs
(d)(1) and (d)(2) of this section based on
the previously completed or updated
inventory, additional information
available, and the results of
consultation.
(5) Any museum may request an
extension to complete or update its
inventory if it has made a good faith
effort but is 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
must publish in the Federal Register a
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list of any museum who request an
extension and the Assistant Secretary’s
determination on the request. A request
for an extension must include:
(i) Information showing the initiation
of consultation;
(ii) The names of all consulting
parties and consent to the extension
request from a majority of consulting
parties, evidenced by a signed
agreement or official correspondence to
the museum;
(iii) The estimated number of 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) Prior to January 12, 2024, 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) After April 20, 2009, two years
after acquiring or locating the human
remains or associated funerary objects;
or
(v) After April 20, 2012, five years
after receiving Federal funds for the first
time after April 20, 2012.
(e) Step 5—Submit a notice of
inventory completion. No later than six
months after completing or updating an
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inventory under paragraph (d) of this
section, a museum or Federal agency
must submit a notice of inventory
completion for all human remains or
associated funerary objects in the
inventory. The museum or Federal
agency may include in a single notice
any human remains or associated
funerary objects having the same
determination under paragraph
(d)(1)(iii) of this section.
(1) A notice of inventory completion
must be sent to any consulting parties
and to the 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 the
following for all human remains or
associated funerary objects in the notice:
(i) An abstract of the information
compiled under paragraph (d)(1)(ii) of
this section;
(ii) The determination under
paragraph (d)(1)(iii) of this section;
(iii) The total number of individuals
and associated funerary objects (counted
separately or by lot);
(iv) 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
(v) 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 21 days after
receiving a notice of inventory
completion, the Manager, National
NAGPRA Program, must:
(i) Approve for publication in the
Federal Register any submission 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
conform to the requirements under
paragraph (e)(2) of this section. No later
than 14 days after the submission is
returned, the museum or Federal agency
must resubmit the notice of inventory
completion.
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(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 or associated funerary
objects.
(1) A request for repatriation of
human remains or 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 or
associated funerary objects under
paragraph (h) of this section. 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
or 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 requestor is identified in the
notice of inventory completion, or
(ii) The requestor is not identified in
the notice of inventory completion, and
the request shows, by a preponderance
of the evidence, that the requestor is a
lineal descendant or an Indian Tribe or
Native Hawaiian organization with
cultural 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 90 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 the 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 must 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.
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(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
deadlines under paragraph (i) of this
section.
(2) At any time before sending a
repatriation statement for human
remains or 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 or
associated funerary objects that meet the
criteria under paragraph (f) of this
section. The museum or Federal agency
must determine the most appropriate
requestor using the procedures and
deadlines under paragraph (i) of this
section.
(h) Step 8—Repatriation of the human
remains or 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. In a repatriation statement, a
museum or Federal agency must
relinquish possession or control of the
human remains or associated funerary
objects to a lineal descendant, Indian
Tribe, or Native Hawaiian organization.
In the case of joint requests for
repatriation, a repatriation statement
must identify and be sent to all
requestors.
(1) After sending a repatriation
statement, the museum or Federal
agency must:
(i) Consult with the requestor on
custody and physical transfer,
(ii) Document any physical transfer,
and
(iii) Protect sensitive information, as
identified by the requestor, from
disclosure to the general public to the
extent consistent with applicable law.
(2) After a 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 human remains or
associated funerary objects.
(i) Evaluating competing requests for
repatriation. At any time before sending
a repatriation statement for human
remains or associated funerary objects
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86535
under paragraph (h) of this section, a
museum or Federal agency may receive
additional, competing requests for
repatriation of those human remains or
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
cultural affiliation according to the
priority order at § 10.3(e) of this part.
(2) No later than 14 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. In response, requestors may
provide additional information to show
by a preponderance of the evidence that
the requestor has a stronger relationship
of shared group identity to the human
remains or associated funerary objects.
(3) No later than 180 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 repatriation
is stayed under paragraph (j)(2) of this
section. The museum or Federal agency
must briefly describe the information
considered and explain how the
determination was made.
(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 14 days after a
resolution, send a written statement of
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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 14 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 Assistant
Secretary’s written concurrence that the
human remains or associated funerary
objects are indispensable for completion
of a specific scientific study, the
outcome of which is of major benefit to
the people of the United States.
(i) To request the Assistant 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 is of
major benefit to the people of the United
States;
(C) Explain why retention of the
human remains or 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;
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(E) Provide the position titles of the
persons responsible for each step in the
schedule;
(F) Affirm that the study has in place
the requisite funding; and
(G) Provide written documentation
showing free, prior, and informed
consent from lineal descendants, Indian
Tribes, or Native Hawaiian
organizations to the study.
(ii) In response to the request, the
Assistant Secretary must:
(A) Consult with lineal descendants,
Indian Tribes, or Native Hawaiian
organizations that consented to the
study;
(B) Send a written determination of
concurrence or denial to the museum or
Federal agency with a copy to the
consulting parties; and
(C) If the Assistant Secretary concurs,
specify in the written determination the
date by which the scientific study must
be completed.
(iii) No later than 30 days after the
completion date in the Assistant
Secretary’s concurrence, the museum or
Federal agency must submit a notice of
inventory completion 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
or associated funerary objects. For
human remains or associated funerary
objects with no lineal descendant or no
Indian Tribe or Native Hawaiian
organization with cultural affiliation, a
museum or Federal agency, at its
discretion, may agree to transfer or
decide to reinter the human remains or
associated funerary objects. The
museum or Federal agency must ensure
it has initiated consultation under
paragraph (b) of this section before
taking any of the following steps.
(1) Step 1—Agree to transfer or decide
to reinter. A museum or Federal agency
may:
(i) Agree in writing to transfer the
human remains or associated funerary
objects to an Indian Tribe or Native
Hawaiian organization;
(ii) Decide in writing to reinter the
human remains or associated funerary
objects according to applicable laws and
policies; or
(iii) Receive a request for repatriation
of the human remains or associated
funerary objects at any time before
transfer or reinterment and must
evaluate whether the request meets the
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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 may
proceed with transfer or reinterment
after publication of a notice.
(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 or associated funerary
objects, the museum or Federal agency
must submit a notice of proposed
transfer or reinterment.
(i) A notice of proposed transfer or
reinterment must be sent to all
consulting parties and to the Manager,
National NAGPRA Program, for
publication in the Federal Register.
(ii) A notice of proposed transfer or
reinterment must conform to the
mandatory format of the Federal
Register and include:
(A) An abstract of the information
compiled under paragraph (d)(1)(ii) of
this section;
(B) The total number of individuals
and associated funerary objects (counted
separately or by lot);
(C) The determination under
paragraph (d)(1)(iii)(D) of this section
that no lineal descendant or any Indian
Tribe or Native Hawaiian organization
with cultural affiliation can be clearly or
reasonably identified. The notice must
briefly describe the information
considered and explain how the
determination was made.
(D) The names of all consulting
parties identified under paragraph (b) of
this section;
(E) The Indian Tribe or Native
Hawaiian organization requesting the
human remains or associated funerary
objects or a statement that the museum
or Federal agency agrees to reinter the
human remains or associated funerary
objects;
(F) 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
(G) 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
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transfer or reinterment of the human
remains or associated funerary objects.
(iii) No later than 21 days after
receiving a notice of proposed transfer
or reinterment, the Manager, National
NAGPRA Program, must:
(A) Approve for publication in the
Federal Register any submission that
conforms to the requirements under
paragraph (k)(2)(ii) of this section; or
(B) Return to the museum or Federal
agency any submission that does not
conform to the requirements under
paragraph (k)(2)(ii) of this section. No
later than 14 days after the submission
is returned, the museum or Federal
agency must resubmit the notice of
proposed transfer or reinterment.
(3) Step 3—Transfer or reinter the
human remains or 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 or associated funerary
objects and send a written statement to
the Manager, National NAGPRA
Program, that the transfer or reinterment
is complete.
(i) After transferring or reinterring, the
museum or Federal agency must:
(A) Document the transfer or
reinterment of the human remains or
associated funerary objects, and
(B) Protect sensitive information 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
limits the authority of the museum or
Federal agency to enter into any
agreement with the requestor
concerning the human remains or
associated funerary objects.
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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 Assistant 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 constitutes a separate
violation. The Assistant 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
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Manager, National NAGPRA Program.
Each allegation:
(1) Must include the name and
contact information (either a mailing
address, telephone number, or 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) May 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 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) May include information showing
that the museum has possession or
control of human remains or cultural
items involved in the alleged failure to
comply; and
(5) May include information showing
that the museum receives Federal funds.
(b) Respond to an allegation. No later
than 90 days after receiving an
allegation, the Assistant Secretary must
determine if the allegation meets the
requirements of paragraph (a) of this
section and respond to the person
alleging the failure to comply.
(1) The Assistant Secretary may
request any additional relevant
information from the person making the
allegation, the museum, or other parties.
The Assistant Secretary may conduct
any investigation that is necessary to
determine whether an alleged failure to
comply is substantiated. The Assistant
Secretary may also investigate
appropriate factors for justifying an
increase or reduction to any penalty
amount that may be calculated.
(2) If the allegation meets the
requirements of paragraph (a) of this
section, the Assistant 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
Assistant Secretary must 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
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86537
penalty is not an appropriate remedy.
The Assistant Secretary must notify the
museum under paragraph (d) of this
section; or
(iii) The alleged failure to comply is
unsubstantiated. The Assistant
Secretary must send a written
determination to the person making the
allegation and to the museum.
(c) Calculate the penalty amount. If
the Assistant 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 Assistant Secretary must
calculate the amount of the penalty in
accordance with this paragraph. The
penalty for each separate violation must
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 Assistant
Secretary. The Assistant Secretary may
request that the museum provide such
financial information that is adequate
and relevant to evaluate the museum’s
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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 is 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 Assistant Secretary
determines under paragraph (b)(2)(i) or
(b)(2)(ii) of this section that an alleged
failure to comply is substantiated, the
Assistant 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 of the
determination 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
Assistant Secretary may assess a daily
penalty amount under paragraph (m)(1)
of this section if the failure to comply
continues after the date the final
administrative decision of the Assistant
Secretary takes effect.
(e) Respond to a notice of failure to
comply. No later than 45 days after
receiving a notice of failure to comply,
a museum may file a written response
to the notice of failure to comply or take
no action and await service of a notice
of assessment under paragraph (g) of
this section. A response which is not
timely filed must not be considered.
Any written response must be signed by
an authorized representative of the
museum and must be sent to the
Assistant Secretary. In the written
response, a museum may:
(1) Seek an informal discussion of the
failure to comply;
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(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 Assistant Secretary
reconsider the determination of a failure
to comply, or
(ii) That the Assistant Secretary
reduce the proposed penalty amount; or
(3) Accept the determination of a
failure to comply and agree in writing,
which constitutes an agreement between
the Assistant Secretary and the
museum, that the museum must:
(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
Assistant 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 Assistant 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
Assistant 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 Assistant Secretary
determines to assess a civil penalty, the
Assistant Secretary must 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
Assistant 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)
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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 of the
determination that a penalty is not an
appropriate remedy;
(4) Include the daily penalty amount
that the Assistant 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 Assistant 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 Assistant
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. No
later than 45 days after 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
Assistant 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 in 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 OHA Standing Orders on Contact
Information, or by electronic means
under the terms specified in the OHA
Standing Orders on Electronic
Transmission. A copy of the request
must be served on the Solicitor of the
Department of the Interior at the address
specified in the OHA Standing Orders
on Contact Information. The Standing
Orders are available on the Department
of the Interior OHA’s website at https://
www.doi.gov/oha. The request for
hearing and any document filed
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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 and
service under the subparts applicable to
DCHD in 43 CFR part 4. 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 must 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 rules
in the subparts applicable to DCHD in
43 CFR part 4 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 is designated by the Office of
the Solicitor of the Department of the
Interior. No later than 20 days after
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 Assistant
Secretary and the following:
(i) Any written communications
between the Assistant Secretary and the
museum during any informal
discussions under paragraph (e)(1) of
this section;
(ii) Any petition for relief submitted
under paragraph (e)(2); and
(iii) Any other information considered
by the Assistant Secretary in reaching
the decision being challenged.
(4) After Departmental counsel files
an entry of appearance with DCHD, the
museum must serve each document
filed with the administrative law judge
on Departmental counsel.
(5) 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 may not be limited to the
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17:04 Dec 12, 2023
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amount originally assessed or by any
previous reduction, increase, or offer of
mitigation.
(6) 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 and
25 U.S.C. 3007.
(7) The administrative law judge must
render a written decision. The decision
must set forth the findings of fact and
conclusions of law, and the reasons and
basis for them.
(8) The administrative law judge’s
decision takes effect as the final
administrative decision of the Assistant
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 no later than 30 days after 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 (OHA), U.S.
Department of the Interior, at the
mailing address specified in the OHA
Standing Orders on Contact
Information, or by electronic means
under the terms specified in the OHA
Standing Orders on Electronic
Transmission. The Standing Orders are
available on the Department of the
Interior OHA’s website at https://
www.doi.gov/oha. 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 are subject to
the rules that govern the method and
effective date of filing under 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 Assistant 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 Assistant Secretary only if it has
exhausted all administrative remedies
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86539
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 Assistant 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
Assistant 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 Assistant
Secretary must consider the factors in
paragraph (c)(2) of this section. This
penalty starts to accrue on the day after
the effective date of the final
administrative decision of the Assistant
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 of the Interior and Congress
on matters relating to sections 3003,
3004, and 3005 of the Act and other
matters as specified in section 3006 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
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recommendations made by the Review
Committee must be published in the
Federal Register no later than 90 days
after 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 an Indian Tribe identifies as
serving it in the practice of traditional
Native American religion.
(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
geographical scope;
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17:04 Dec 12, 2023
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(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 of
the Interior 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.
(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 cultural affiliation to the
human remains or cultural items.
(2) The Review Committee may make
an advisory finding of fact on questions
related to:
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(i) The identity of an object as human
remains or cultural items;
(ii) The cultural 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 of the Interior.
Matthew J. Strickler,
Deputy Assistant Secretary Exercising the
Delegated Authority of the Assistant Secretary
for Fish and Wildlife and Parks.
[FR Doc. 2023–27040 Filed 12–7–23; 4:15 pm]
BILLING CODE 4312–52–P
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Agencies
[Federal Register Volume 88, Number 238 (Wednesday, December 13, 2023)]
[Rules and Regulations]
[Pages 86452-86540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27040]
[[Page 86451]]
Vol. 88
Wednesday,
No. 238
December 13, 2023
Part II
Department of the Interior
-----------------------------------------------------------------------
43 CFR Part 10
Native American Graves Protection and Repatriation Act Systematic
Processes for Disposition or Repatriation of Native American Human
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural
Patrimony; Final Rule
Federal Register / Vol. 88 , No. 238 / Wednesday, December 13, 2023 /
Rules and Regulations
[[Page 86452]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
[NPS-WASO-NAGPRA-NPS0036506; PPWOCRADN0-PCU00RP14.550000]
RIN 1024-AE19
Native American Graves Protection and Repatriation Act Systematic
Processes for Disposition or Repatriation of Native American Human
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural
Patrimony
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule revises and replaces definitions and
procedures for lineal descendants, Indian Tribes, Native Hawaiian
organizations, museums, and Federal agencies to implement the Native
American Graves Protection and Repatriation Act of 1990. These
regulations clarify and improve upon the systematic processes for the
disposition or repatriation of Native American human remains, funerary
objects, sacred objects, or objects of cultural patrimony. These
regulations provide a step-by-step roadmap with specific timelines for
museums and Federal agencies to facilitate disposition or repatriation.
Throughout these systematic processes, museums and Federal agencies
must defer to the Native American traditional knowledge of lineal
descendants, Indian Tribes, and Native Hawaiian organizations.
DATES: This rule is effective January 12, 2024. Comments on the
information collection requirements in this final rule must be
submitted to the Office of Management and Budget by January 12, 2024.
ADDRESSES: All public comments and attachments received, as well as
supporting documentation used in the preparation of these regulations,
are available online at https://www.regulations.gov in Docket No. NPS-
2022-0004. 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
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), 13461 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 (ICR) 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. In
compliance with the Providing Accountability Through Transparency Act
of 2023, the plain language summary of the proposal is available on
https://www.regulations.gov in the docket for this rulemaking.
SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of Public Comments and Responses
A. General Comments
B. Section 10.1 Introduction
C. Section 10.2 Definitions for This Part
D. Section 10.3 Determining Cultural Affiliation
E. Subparts B and C
F. Section 10.4 General
G. Section 10.5 Discovery
H. Section 10.6 Excavation
I. Section 10.7 Disposition
J. Subpart C
K. Section 10.8 General
L. Section 10.9 Repatriation of Unassociated Funerary Objects,
Sacred Objects, or Objects of Cultural Patrimony
M. Section 10.10 Repatriation of Human Remains or Associated
Funerary Objects
N. Section 10.11 Civil Penalties
O. Section 10.12 Review Committee
III. Response to Public Engagement and Request for Comments
A. Public Engagement
B. Requests for Comment
C. Use of Received Feedback
IV. Compliance With Other Laws, Executive Orders, and Department
Policy
I. Background
On November 16, 1990, President George Bush signed into law the
Native American Graves Protection and Repatriation Act (NAGPRA or Act)
(25 U.S.C. 3001, et seq.). The Act recognizes the rights of lineal
descendants, Indian Tribes, and Native Hawaiian organizations (NHOs) in
Native American human remains, funerary objects, sacred objects, and
objects of cultural patrimony. The Secretary of the Interior is
responsible for promulgating regulations to carry out the provisions of
the Act and delegated this authority to the Assistant Secretary. Since
1993, the Department of the Interior (Department) has published rules
under the title ``Native American Graves Protection and Repatriation
Act Regulations'' including:
RIN 1024-AC07, 1993 Proposed Rule (58 FR 31122, May 28,
1993) and 1995 Final Rule (60 FR 62134, December 4, 1995);
RIN 1024-AC84, Civil Penalties Final Rule (68 FR 16354,
April 3, 2003) and Future Applicability Final Rule (72 FR 13184, March
21, 2007);
RIN 1024-AD68, 2007 Proposed Rule Disposition of
Culturally Unidentifiable Human Remains (72 FR 58582, October 16, 2007)
and 2010 Final Rule Disposition of Culturally Unidentifiable Human
Remains (75 FR 12378, March 15, 2010); and
RIN 1024-AE00, Disposition of Unclaimed Cultural Items
Final Rule (80 FR 68465, November 5, 2015).
II. Summary of Public Comments and Responses
The Department (we) published a proposed rule (RIN 1024-AE19) in
the Federal Register on October 18, 2022 (87 FR 63202, hereafter 2022
Proposed Rule) to clarify and improve upon the systematic processes for
disposition or repatriation of Native American human remains and
cultural items. We accepted public comments for 90 days via the mail,
hand delivery, and the Federal eRulemaking Portal at https://www.regulations.gov. After considering several requests for extensions
of the public comment period beyond the original 90 days, we extended
the comment period an additional 14 days until January 31, 2023.
All comments received by the deadline are publicly available on
https://www.regulations.gov, Docket No. NPS-2022-0004. During the
comment period, we received a total of 206 submissions which included
181 individual submissions posted to the docket and 25 attachments as
identified by the submitter. When necessary, we have cited to specific
submissions as NPS-2022-0004-XXXX. We received submissions from a range
of sources including individual members of the public, Indian Tribes,
museums, and organizations. Table 1 shows the number of submissions by
type of submitter.
Table 1--Submissions Received by Submitter
------------------------------------------------------------------------
Submitter Submissions
------------------------------------------------------------------------
Individuals............................................. 95
Federally recognized Indian Tribes*..................... 48
Museums................................................. 13
Museum or scientific organizations**.................... 9
Native American organizations........................... 8
Duplicate submissions................................... 4
[[Page 86453]]
Indian groups without Federal recognition............... 3
Federal Advisory Review Committee....................... 1
Native Hawaiian organizations........................... 0
------------------------------------------------------------------------
* Two submissions were on behalf of multiple Indian Tribes making the
total number of Indian Tribes represented 55.
** These submissions are by professional organizations representing
museums or scientific professionals and they are separate and distinct
from the museums above.
In these final regulations, we focus our discussion on changes from
the 2022 Proposed Rule based on comments we received during the comment
period and our further consideration of the issues raised. For
background on the statutory and legislative history and case law
relevant to these regulations, we refer the reader to the previously
published rules under the title ``Native American Graves Protection and
Repatriation Act Regulations'' referenced in I. Background. We reviewed
and considered all comments prior to developing this final rule. We
have provided 124 summaries of comments and our direct responses below;
we combined similar comments where appropriate. Table 2 shows the
largest number of comments by issue.
Table 2--Top 10 Issues by Number of Comments
------------------------------------------------------------------------
Number of See comment and
Issue comments response
------------------------------------------------------------------------
Changes to ``affiliation''...... 102 Comment 58. to 61.
Role of Indian groups without 53 Comment 3. and 39.
Federal recognition. See also Comment
91. and 114.
Steps for consultation.......... 53 Comment 64.
Timelines under Subpart C....... 46 Comment 92.
Require consent or consultation 45 Comment 15.
before allowing scientific
study.
Duty of care, including 44 Comment 12. to
scientific study. Comment 17.
``Possession or control''....... 44 Comment 49.
Specific steps in Subpart C..... 42 Comment 94.
Purpose of this rule............ 42 Comment 9.
``Consultation''................ 39 Comment 30.
------------------------------------------------------------------------
In addition, we received 109 comments generally supporting the
regulations and the changes (see Comment 1.), and we received 96
comments on the estimated burden and information collection
requirements for the revised regulations (see Comment 4.). We received
43 comments requesting action by the Department of the Interior outside
of the scope of these regulations (see Comment 6.). Four comments
requested changes in these regulations from business days to calendar
days, which is significant in that it impacts all the timelines under
this final rule (see Comment 19).
In response to these comments and others discussed in detail below,
we made the following major changes in the final rule:
1. Removed ``geographical affiliation'' in its entirety, simplified
the process for cultural affiliation to provide that one type of
information, including geographical information, is sufficient for
cultural affiliation, and replaced ``preponderance of the evidence''
with ``clearly or reasonably identify'' (Sec. 10.3 Determining
cultural affiliation).
2. Removed all reference to Indian groups without Federal
recognition and prioritized the rights of federally recognized Indian
Tribes in disposition and repatriation (Sec. 10.2 Definitions for this
part ``Indian Tribe'' and Sec. Sec. 10.7(d) Disposition and 10.10(k)
Repatriation).
3. Required free, prior, and informed consent before any exhibition
of, access to, or research on human remains or cultural items (Sec.
10.1(d) Duty of Care).
4. Extended the timeline to allow five years (rather than two as
proposed) for museums and Federal agencies to consult and update
inventories of human remains and associated funerary objects (Sec.
10.10(d) Repatriation).
5. Replaced ``business days'' with ``calendar days'' and extended
deadlines as a result (Sec. 10.1(f) Deadlines).
6. Revised ``consultation'' to provide more instruction on goals
and process (Sec. 10.2 Definitions for this part ``Consultation'').
7. Removed the requirement for written requests to consult from
Indian Tribes or NHOs, and therefore removed the requirement for a
museum or Federal agency to respond within a set timeframe (Sec. Sec.
10.4(b), 10.9(b), and 10.10(b) Initiate consultation).
Despite receiving many comments, we have not revised the
definitions or application of ``possession or control'' and
``custody.'' As in the Act, ``possession or control'' is a
jurisdictional requirement for human remains or cultural items subject
to these regulations and for repatriation (Sec. 10.2 Definitions for
this part ``custody'' and ``possession or control'').
A. General Comments
1. Comment: We received 109 comments generally supporting these
regulations and the overall goals of disposition or repatriation.
Comments from individuals, including many students in high school,
college, and graduate school, offered support for the general principle
of returning ancestors and objects to lineal descendants, Indian
Tribes, and NHOs. Museum and museum and scientific organizations
supported the overall goals to clarify and improve upon the systematic
processes for disposition and repatriation. A few comments from museums
focused on the impact the revised regulations would have on the museum
profession. One comment stated ``Overall, the language in the proposed
draft reflects contemporary best practices around repatriation and
codification in 43 CFR part 10 makes sense in an effort to standardize
repatriation activities across diverse institutions, agencies, and
Tribes'' (NPS-2022-0004-0129). Another museum commented:
A fundamental shift in priorities is necessary at institutions
who have fallen short in their efforts to comply with the
legislation's intent. It is time for institutions to prioritize this
work, in both the allocation of resources and the ethical commitment
to genuinely engage in consultation with Native Nations. The passage
of these proposed revisions is a necessary step towards addressing
the legacy of colonial injustices imposed upon Indigenous Peoples in
the United States (NPS-2022-0004-0115).
[[Page 86454]]
Many Indian Tribes and Native American organizations also expressed
appreciation and support for the revisions and felt the changes better
reflected Congressional intent. One Indian Tribe stated:
We appreciate the difficult work and coordination the Department
has undertaken to make vast and meaningful changes to shift the
burden of NAGPRA compliance to where it belongs--to federal agencies
and museums. We explain below several changes that we support. While
in the interest of brevity, we focus our comments on areas of
concern, the Department should understand that our Tribes welcome
this proposed rule. With our comments below addressed, we believe
the new regulations will better implement NAGPRA and facilitate the
repatriation of our Ancestors and sacred objects as Congress
intended (NPS-2022-0004-0158).
DOI Response: As discussed more fully throughout this document, we
agree with many of these statements; and, as a result, we are
publishing this final rule. We appreciate the comments from
individuals, especially from students, not only for supporting this
effort but for engaging in the rulemaking process. We appreciate the
supportive, yet constructive comments from museums and museum and
scientific organizations. We are indebted to the many Indian Tribes who
provided comments as well as those who provided input during
consultation throughout the process of developing these regulations.
2. Comment: We received nine comments generally objecting to the
changes to these regulations. One comment stated the process was more
of a political statement than a necessity. One comment supported the
idea of clarifying the repatriation process but felt the proposed rule
would undermine existing efforts and result in a rushed, transactional
process. One comment felt the proposed regulations would hinder
meaningful consultation and impede the progress that museums, Indian
Tribes, and NHOs have made so far. One comment believed the revisions
compounded difficulties that both museums and Indian Tribes already
face and would reduce efficiency rather than improve it. One comment
stated that in addition to a lack of statutory authority for some of
the revisions, the Department had not identified any inadequacies or
difficulties in the existing regulations, particularly with respect to
Subpart B. One comment saw the revisions as a reversal rather than a
strengthening of Congressional intent and stated that, as the drafted,
the revisions are ``based upon `restorative justice' rather than the
words and intent of Congressional legislation, [and] has gone too
far.'' The comment stated the revisions reflected a larger cultural
shift and that Native activist groups ``have urged aggressive claims
for repatriation and demanded that [T]ribal permission be sought for
the transfer of objects long in legal circulation'' (NPS-2022-0004-
0188). Three comments from Indian Tribes expressed concerns that the
revisions would slow down or even stop the work of repatriation. All
three comments believed the revisions are too extensive and too complex
and will, ultimately, create more issues than the revisions resolve.
One of these comments was especially concerned that the revisions did
not address two central and persistent issues that Indian Tribes have
long asked for: enhanced enforcement and protection of private
information.
DOI Response: As discussed more fully throughout this document, we
disagree with many of these statements; and, as a result, we are
proceeding with publication of this final rule despite these
objections. These regulations reflect and implement the legal
requirements established by Congress. We understand that some of the
timelines under this final rule will require faster action by museums
and Federal agencies than under the existing regulations. However,
certain deadlines can be extended or actions delayed, provided the
appropriate lineal descendant, Indian Tribe, or NHO has agreed to
extend or delay the process. We believe the changes in these
regulations will enhance meaningful consultation and ensure that
resulting efforts are based on consensus or agreement. We believe that
the increased transparency and communication required by these
regulations will resolve some of the existing challenges faced by all
parties. As discussed in more detail throughout this document, these
revisions are within the Secretary's statutory authority and based on
over 30 years of input, comment, and experience in implementing the
Act. As reflected in the supportive comments above, these revisions
reflect best practices and changes in the wider professional
disciplines, while at the same time adhering to the language and limits
provided by Congress. We have incorporated requests from Indian Tribes
and NHOs to the maximum extent possible, but we do not believe these
revisions will stop the work of repatriation or create more issues than
are resolved. We do anticipate that the work of repatriation may be
slowed as all parties adjust to the revisions in these regulations and
especially as all parties re-evaluate past practices considering these
simplified, clarified, and streamlined regulations. We reiterate here,
as we have throughout this document, that the goal of this final rule
is to clarify and improve the systematic processes for disposition and
repatriation by making the requirements clear to all parties involved.
3. Comment: We received 53 comments on the standing of Indian
groups without Federal recognition under these regulations. Of that
total, 40 comments supported giving standing to Indian groups without
Federal recognition while 13 comments opposed it. Some comments also
suggested changes to 25 CFR part 83 to recognize more groups and that
the National NAGPRA Program should help educate groups on how to
achieve Federal recognition.
DOI Response: The recognition process and training concerning it
are outside the scope of these regulations. Furthermore, as discussed
below under that definition, these regulations cannot expand the
definition of ``Indian Tribe'' beyond that provided in the Act. Indian
groups without Federal recognition, including State recognized tribes,
are not completely excluded from the disposition or repatriation
processes. As is the current practice, Indian groups without Federal
recognition can work with federally recognized Indian Tribes as part of
a joint claim for disposition or joint request for repatriation. See
also Comment 39.
4. Comment: We received 96 comments about the estimated burden and
related information collection requirements of the proposed
regulations. Of that total, nine comments supported some part of the
burden estimate, including agreeing that there is a wide variation in
the actual time required because of differences in size and complexity
of the required responses. Two of these comments supported the overall
burden estimate and agreed that the changes would yield long-term
savings, despite the short-term increased costs. Five of these comments
agreed that the collection of information is necessary and has a
practical utility. One comment specifically stated the information
collected had no practical utility and should not be required. Five
comments suggested one way to minimize the burden of these regulations
was for the Department to provide online resources to assist with
identifying Indian Tribes with potential cultural affiliation.
Eighteen comments generally objected to the burden estimate. Many
of these comments felt the methods and assumptions were flawed and did
not
[[Page 86455]]
reflect the actual amount of effort required to comply with these
regulations. Several comments stated that the proposed regulations
significantly expanded the administrative, staffing, and financial
burdens already imposed on museums and Federal agencies and that
museums and Federal agencies are already facing capacity and resource
limitations that prevent them from completing the already burdensome
requirements under the existing regulations. Five comments stated that,
regarding the quality, utility, and clarity of the information to be
collected, there was a disconnect between oral statements by the
National Park Service staff and the proposed regulations on the
requirements for consultation and reporting (see NPS-2022-0004-0081). A
few comments stated additional financial resources must be provided
before any additional tasks can be required and that it was
unreasonable and misguided to expect museums and Federal agencies to
comply without providing additional funds. Two comments stated that the
estimates should not rely on responses from the last three years to
estimate costs due to the pandemic. One comment requested that the
General Accountability Office estimate the costs of the proposed
regulations. One comment questioned the authority of the Department to
collect information that could be used to monitor the repatriation
process.
A total of 31 comments specifically discussed the impact of these
regulations on Indian Tribes and NHOs and suggested some possible
solutions to lessen the burden. Of that total, 18 comments suggested
the Department create a dedicated grant program for Indian Tribes and
NHOs. One of these comments expressed that museums have been wasting
grant funds on unnecessary tasks since 1994 and more grant funding
should be provided to Indian Tribes and NHOs. Five comments felt the
burden on Indian Tribes and NHOs in these regulations was
underestimated, too high, or prohibitively expensive. One comment from
an individual stated the burden on Indian Tribes and NHOs could not be
minimized with technology due to a general lack of access to the
internet in Indian Country. One comment requested the regulations
provide more funding as well as flexibility for Indian Tribes to engage
with repatriation at their own pace. Seven comments questioned the
costs to Indian Tribes under Subpart B of the proposed regulations,
which some estimated to be $40 million per year.
Eighteen comments provided input or alternative estimates for
specific tasks. Two comments believe tasks are missing from the
estimate, such as documentation review, correspondence after
consultation, travel arrangements, hosting arrangements, inventory/
packet/documentation preparation, room setup, consultation
participation, documentation of consultation, administrative
requirements, moving items to or from storage, and implementation of
care guidance. One comment stated the costs of physical transfer should
be included and, for a large repatriation, staff time alone can exceed
$100,000 for physical transfer. Two comments stated the estimate for
initiating consultation should be much higher, from 40 hours to at
least 140 hours, to include the time required to identify consulting
parties, prepare, and distribute letters or emails, and to make follow
up phone calls. One comment suggested the estimate for conducting
consultation be increased to provide for staff to retrieve collections
from storage and travel by many representatives (sometimes up to ten
people) from Indian Tribes or NHOs to conduct a physical review. Three
comments stated the estimate for completing an inventory was too low as
even an inventory update was an enormous undertaking that required
significant time and resources. One of these comments noted that a
previously prepared inventory did not reduce the necessary time, as
previous inventories are generally ``woefully inadequate.'' One of
these comments stated that, based on experience, it takes 10 hours to
inventory one box plus an additional 6-8 hours to describe each
individual or object in the box and an additional 40 hours per site to
produce a final report. The comment estimated that for 200 boxes, it
would take 2,000 hours to inventory the boxes, and this did not include
additional time to describe each object or write a site report (NPS-
2022-0004-0125). One comment stated the estimate for a summary was also
underestimated and stated it takes anywhere from 6 months to two years
to prepare a summary and then an additional six months for illustration
and documentation of the objects. Five comments believe the estimate
for preparing notices (either for inventory completion or intended to
repatriation) were underestimated. One of these comments estimated it
takes 120 hours to facilitate a notice of inventory completion plus
additional time to verify the information with a physical review. Four
of these comments suggested that for each notice type, the minimum
amount of time required was 2 hours while the maximum amount of time
was between 10 and 30 hours per notice, plus additional time to consult
on the draft notice. One comment stated evaluating competing requests
and resolving stays of repatriation required significantly more time,
estimating between 100 and 1,000 hours, especially when considering the
involvement of legal departments, executives, and board members in
those tasks. Two comments stated the rate used to calculate costs
should be $100 to $120 per hour.
Fourteen comments provided estimates for the total costs of Subpart
C of these regulations. For Indian Tribes and NHOs several estimated a
cost of $17.2 million per year. For museums and Federal agencies one
comment estimated $19.4 million per year. The two estimates were
developed by one individual, using grant awards from 2011 to 2021 to
estimate the average cost for a notice of inventory completion ($14,416
per notice). After calculating an estimated cost for museums and
Federal agencies to comply with the proposed regulations, the estimate
calculated the costs for Indian Tribes and NHOs by using the percentage
of funding awarded in grants from 2011-2021 to museums (58%) and Indian
Tribes or NHOs (42%) to estimate a total burden for the proposed
regulations at $91.4 million over 30 months or $36.6 million per year
(see NPS-2022-0004-0174). Other comments estimated a total for museums
only between $25 million and $118 million per year. One museum provided
a variety of estimates based on current project budgets which ranged
from $200,000 to $500,000 per project per year for one museum. The
comment estimated the burden for the single museum at 19,000 hours per
year ($1.273 million per year per museum assuming an hourly rate of
$67/hour). When applied to all 407 museums that will be required to
update inventories under these regulations, that amounts to the highest
estimate of $518.1 million per year for museums alone, although the
comment noted that not all museums will require the same number of
hours). The same comment questioned how the Department estimated that
the proposed regulations do not impose an unfunded mandate on State,
local, or [T]ribal governments or the private sector of more than $100
million per year (see NPS-2022-0004-0125).
One comment detailed the hours involved in one part of a two-part
project over 15 months. The first phase of the project included 13
consultation meetings which required hundreds of
[[Page 86456]]
hours of time by Indian Tribes and museum staff, including hundreds of
phone calls. Consultants hired to develop and complete the first phase
of the project spent thousands of hours on the first phase and travel
expenses totaled $3,000. In the first phase, 31 notices of inventory
completion were published, although the comment stated that the number
of notices could be irrelevant as each notice involved a single group
of Indian Tribes and one museum and could have been a single notice.
The first phase of the project covered 1,021 individuals and 11,590
associated funerary objects. The comment noted that these estimates do
not include the hours involved in preparation of the original inventory
of human remains and associated funerary objects completed in the early
1990s. Although a total estimated cost for this phase of the project
was not provided, elsewhere the comment suggested at minimum $100 to
$120 an hour should be used in dollar estimates (see NPS-2022-0004-
0135). Using the lower hourly figure and the number of hours provided,
the estimate for the first phase of the project is $123,000 over 15
months or $98,400 per year. When applied to all 407 museums that will
be required to update inventories under these regulations, it equals an
estimated $40 million per year for museums.
DOI Response: We appreciate the specific input on the estimated
costs for certain requirements in these regulations. We have addressed
many of these comments in the revised Cost-Benefit and Regulatory
Flexibility Threshold Analyses for the final regulations. We reiterate
that the Department believes the short-term increased costs of these
regulations are justified by the associated long-term quantitative and
qualitative benefits. We believe the information collected under these
regulations is necessary and any information collected by the
Department under these regulations is required by the Act for
administrative purposes (such as publishing notices) and is not used
for monitoring or evaluating the quality of that information. The
Department will develop and provide templates for all information
collection requirements, and we will provide additional resources to
assist with identifying consulting parties to minimize the burdens of
these regulations, as discussed further in Comment 95. Any changes to
the amount of available funding through grants are beyond the scope of
these regulations and are the purview of Congress and the
appropriations process. We cannot limit the grant awards to only Indian
Tribes and NHOs as that would be inconsistent with the Act.
Regarding the hourly rate used to calculate costs, we used the
Bureau of Labor Statistics (BLS) News Release USDL-23-1305, March 2023
Employer Costs for Employee Compensation--released June 16, 2023
(https://www.bls.gov/news.release/ecec.nr0.htm, accessed 12/1/2023).
This is a standard source we have used in estimating the burden of
these regulations as a part of our compliance with the Paperwork
Reduction Act. Any person equates to Civil workers. Table 2 lists the
hourly rate for full-time workers as $43.07, including benefits. Lineal
descendants equate to Private Industry Workers: Table 6 lists the
hourly rate for all workers as $40.79, including benefits. Any Affected
Party, Indian Tribes/NHOs, Federal agencies, and museums equates to
State and Local Government Workers. Table 3 lists the hourly rate for
Professional and related Workers as $67.01, including benefits.
Regarding the impact of these regulations on Indian Tribes and
NHOs, we anticipate a change in how grant funds are awarded due to the
changes in these regulations. During the first five years after
publication of the final regulations, grant funds will likely continue
to go to consultation and documentation projects to consult and update
inventories. After five years, we anticipate more grant funds will be
requested by Indian Tribes or NHOs for repatriation assistance or for
making requests for repatriation. As noted in Comment 102, the Notice
of Funding Opportunity for NAGPRA grants is where any changes to the
allowable activities for grants will be made. We do not intend to
impose requirements on lineal descendants, Indian Tribes, or NHOs to
respond to invitations to consult or to submit claims for disposition
or requests for repatriation. Those are actions that lineal
descendants, Indian Tribes, and NHOs may choose to take but are not
required.
We agree there are new requirements for Indian Tribes to take
certain actions under Subpart B that under the existing regulations are
voluntary. We disagree that all those requirements under Subpart B are
new, and we strongly disagree with the estimate provided. As discussed
in Comment 70 and Comment 83, we disagree that the Act, the existing
regulations, or any other regulations designate that the BIA is
responsible for discovery, excavation, and disposition on Tribal lands
in Alaska and the continental United States. We agree that Indian
Tribes have discretion under the existing regulations in responding to
a discovery on Tribal lands and that the final regulations will require
Indian Tribes to respond to discoveries on Tribal land. This is to
improve consistency with the Act and clarify the responsibilities in
these regulations. We understand that in some cases these
responsibilities may exceed the capacity or resources of an Indian
Tribe, and in those cases, the Indian Tribe can delegate these
responsibilities to the Bureau of Indian Affairs or another Federal
agency with primary management authority. Lastly, we note that Tribal
laws, policies, and administrative capacity vary greatly, and the
comments do not seem to take that into account by applying a blanket
assumption of the same cost for each Indian Tribe. The comments also do
not consider the small number of actions on Tribal lands per year,
which is not likely to significantly change based on the final
regulations.
Regarding the alternative estimates provided by some comments, we
believe that any estimate based on current practice or past grant
awards is inherently flawed and does not account for the specific
objective of the proposed and final regulations to simplify and improve
the systematic processes within specific timeframes. We understand that
our estimates do not reflect the actual amount of time some museums and
Federal agencies currently spend on compliance with these regulations.
We strongly disagree, however, that our estimates do not reflect what
is required by these regulations. In the 33 years since the passage of
the Act, each museum or Federal agency has approached the requirements
of these regulations in different ways, and, as a result, there is a
wide variation in how much time and money is spent to comply with these
regulations. As noted in the proposed regulations and elsewhere in this
document, one of our goals in revising the regulations is to improve
efficiency and consistency in meeting these requirements. Necessarily,
this will mean a difference between our estimated costs for these
regulations and current practices. While we understand the objections
to our estimates and the concerns about insufficient funding to carry
out these requirements, the Secretary, the Assistant Secretary, and the
Department are committed to changing the implementation of the Act and
to clearing a path to expeditious repatriation as Congress intended.
Concerns about the financial burden of the Act and these
regulations on museums were expressed even before the Act was passed.
In discussing the key compromises made to the final bill
[[Page 86457]]
in 1990, Representative Campbell stated that limiting the inventory
requirement to only human remains and associated funerary objects
``will go a long way to reduce cost to museum and at the same time
encourage both sides to sit down early together to discuss their
options'' (136 Cong. Rec. 31938). With this change and the
authorization of a grant program to assist museums with the inventory
requirements, the Association of American Museums and the Antique
Tribal Arts Dealers Association withdrew their objections to the final
legislation.
As envisioned by Congress, most of the requirements for
repatriation under the Act should have been completed by 1995, although
extensions were authorized in some cases. In 1990, the Congressional
Budget Office (CBO) reviewed the Act and estimated the legislation
would cost between $20 million and $50 million over five years. The
main costs of the Act were in preparing inventories of human remains,
estimated between $5 million and $30 million over five years, ``for
museums to provide [T]ribes with the basic information required by the
bill.'' The CBO acknowledged that to some extent, ``the total cost is
discretionary--the more funds made available, the more accurate and
comprehensive will be the information collected by museums.'' More
extensive and expensive studies might be required for some human
remains, but, as the CBO noted, such studies were not required by the
Act. CBO noted that ``If museums were required to identify all of their
holdings definitively, the costs of this bill would be significantly
higher than the $30 million estimate.'' The other $15 million to $20
million in estimated costs were for identifying funerary objects and
completing summaries as well as for Indian Tribes to make claims and
repatriate human remains or cultural items (H. Rpt. 101-877, at 21-22).
After nearly 33 years of implementation, the total cost of
repatriation is clearly discretionary, and, in addition to funds, the
more time that has been available to complete an inventory of human
remains, the more comprehensive, extensive, and expensive the
inventories have become. After meeting the initial deadline for
inventories in 1995, many museums and Federal agencies have continued
to update inventories at their own discretion, going beyond what is
required by the Act and the existing regulations. Under the Act and the
existing regulations, an inventory of human remains only requires use
of ``information possessed by such museum or Federal agency'' (25
U.S.C. 3003(a)). Yet, despite the minimum requirements, hundreds of
museums and several Federal agencies submit updated inventories each
year. The number of museums updating inventory data is relatively large
and accounts for multiple submissions each year from a single museum
because the data is updated on a case-by-case basis at the discretion
of the museum.
Since 1993, the Department has provided estimated hours for tasks
under these regulations as a part of its compliance with the Paperwork
Reduction Act. These estimates are far below the estimates provided by
some comments, but these estimates have been consistently used by the
Department and reflect what the Department believes is required by the
Act and these regulations. The 1993 Proposed Rule included an estimate
of ``100 hours for the exchange of summary/inventory information
between a museum or Federal agency and an Indian [T]ribe or Native
Hawaiian organization . . .'' (58 FR 31124). From 1993 until publishing
the proposed regulations in 2022, we continued to use the estimate of
100 hours per museum for a new summary or inventory. This is far less
than the comment that stated a museum spends 19,000 hours per year on
its inventory and summary and related tasks.
The 1993 Proposed Rule included an estimate of ``six hours per
response for the notification to the Secretary, including time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the collected
information'' (58 FR 31124). In 2012, we increased this estimate to 10
hours per notice. This is less than the estimate provided in the
comments of 120 hours to facilitate a notice, including gathering and
maintaining data and reviewing and verifying the information, or the
estimated range of two hours to 30 hours, for a median of 16 hours, to
just complete the notice template. The estimate based on previous
grants suggests a notice costs $14,416 each which equates to between
120 hours and 225 hours per notice, depending on the hourly rate
applied. We agree with the one comment that stated the number of
notices is irrelevant to estimating the burden involved. Although not
explicitly stated in the existing regulations, the final regulations
clearly state that museums or Federal agencies may include in a single
notice all human remains and associated funerary object having the same
lineal descendant or cultural affiliation for efficiency and
expediency. The comment that stated 31 notices could have been combined
in to one notice demonstrates the discretion museums and Federal
agencies exercise in complying with these regulations.
The 2010 Final Rule added a new estimate related to the new
regulatory requirements. Under the regulations, museums and Federal
agencies were required to (1) provide to Indian Tribes and NHOs a list
of Indian groups without Federal recognition that may have a
relationship to human remains and associated funerary items and (2)
request from Indian Tribes and NHOs the temporal and/or geographic
criteria used to identify the groups of human remains to be included in
consultation. The estimated burden on museums for this collection of
information was 30 minutes total, including time for reviewing existing
data sources, gathering and maintaining data, and preparing a
transmission to other consulting parties. In the 2022 Proposed Rule, we
renamed this requirement ``Initiating consultation and requesting
information,'' and we increased the estimated time required to range
from less than one hour, or 0.50 hours, up to 5 hours, or a median of
2.75 hours. This is far less than the comments that suggested this
should be much higher and range from 40 hours to 140 hours, or a median
of 90 hours to initiate consultation and request information.
In preparing the Cost-Benefit and Regulatory Flexibility Threshold
Analyses for the 2022 Proposed Rule, we accounted for all actions that
are required under the existing regulations to calculate the baseline
conditions. We disagree that our estimate is missing required tasks,
and the tasks identified by comments as missing are generally included
in the estimate for conducting consultation. The costs of conducting
consultation vary greatly, depending on the size and complexity of the
consultation. However, we note that consultation does not require any
specific documentation beyond what was already prepared in the initial
summary or inventory. The additional tasks of inventory/packet/
documentation preparation or even moving items from storage for
purposes of consultation are not required by the regulations. A
physical inspection of a collection is not required by these
regulations, although we understand that for some museums, lineal
descendants, Indian Tribes, or NHOs, in person consultation is
preferred. As for the costs of physical transfer, we address this
further in Comments 51 and 66 in this document. Physical transfer, and
any costs that accompany that effort, are not required by these
[[Page 86458]]
regulations, and we note that grants are provided specifically for
assisting with the costs of physical transfer.
As these comments clearly emphasize, the burden estimates vary
widely. In its 1990 evaluation of the Act, the Congressional Budget
Office made a similar conclusion, noting ``[t]here is considerable
disagreement about the nature of the inventory required by H.R. 5237,''
and widely varied estimates of costs. In the end, the CBO estimated
only $5 million to $30 million over five years would be required which
reflected the ``costs of an inventory of museums' collections, as well
as a review of existing information to determine [Tribal] origin'' (H.
Rpt. 101-877, at 22).
5. Comment: We received 25 comments expressing concerns for the
protection of sensitive information in the regulations. Some comments
suggested use of the Privacy Act and the Archeological Resources
Protection Act (ARPA) to withhold information about human remains and
cultural items. Other comments suggested changes to the regulations to
require that museums and Federal agencies keep sensitive information
confidential.
DOI Response: While we appreciate the suggestions, we cannot make
the requested changes. First, neither the Privacy Act nor ARPA apply.
Deceased individuals do not have any Privacy Act rights, nor do
executors or next-of-kin. See, generally, OMB 1975 Guidelines, 40 FR
28, 40 FR 951 (also available at https://www.justice.gov/paoverview_omb-75, accessed 12/1/2023) (stating ``the thrust of the Act
was to provide certain statutory rights to living as opposed to
deceased individuals'' and ``the Act did not contemplate permitting
relatives and other interested parties to exercise rights granted by
the Privacy Act to individuals after the demise of those
individuals''). Similarly, the exemption from disclosure under ARPA
applies specifically to ``the nature and location of any archaeological
resource for which the excavation or removal requires a permit or other
permission under [ARPA] or under any other provision of Federal law''
(16 U.S.C. 470hh(a)). Thus, the ARPA provision is directed to
archaeological resources that would require a permit for excavation or
removal, which applies to some but not all human remains and cultural
items under the Act and these regulations.
In the proposed regulations and in these final regulations, the
Department has taken steps to remove requirements for museums or
Federal agencies to disclose sensitive information in an inventory,
summary, or notice. While we cannot dictate how a museum or Federal
agency responds to a request for disclosure of sensitive information,
we encourage a museum or Federal agency, at the request of a lineal
descendant, Indian Tribe, or NHO, to ensure that information of a
particularly sensitive nature is not made available to the public.
Since 1995, the Department has recommended museum or Federal officials
ensure that sensitive information does not become part of the public
record by not collecting, or writing down, such information in the
first place (1995 Final Rule, 60 FR 62154).
6. Comment: We received 43 comments requesting additional action by
the Department of the Interior outside of these regulations. Of that
total, nine comments requested the Department impose NAGPRA-related
conditions on any museum that received any Federal grant. Seven
comments requested the Department move the National NAGPRA Program out
of the National Park Service. A total of 11 comments requested the
Department conduct more consultation on these regulations before
issuing final regulations; five comments requested consultation with
only Indian Tribes and NHOs while six comments requested consultation
with all constituents. Five comments requested further engagement with
the Department on these regulations. Five comments requested the
Department conduct or request an audit of the National NAGPRA Program,
Federal agency compliance, or the grant program. Four comments
requested the Department provide more information about the changes to
these regulations, either through training or simplified documents
outlining the changes. One comment requested the Department ensure its
own bureaus follow these regulations. One comment requested the
proposed regulations be withdrawn and the Department start a new effort
to develop these regulations in consultation with Indian Tribes and
NHOs.
DOI Response: We appreciate the requests for additional action by
the Department. We agree that additional information about changes to
these regulations will be needed, and we plan on providing as many
opportunities as we can for training sessions, discussions, and
guidance documents once the regulations are effective. We welcome any
other suggestions for how we can support museums, lineal descendants,
Indian Tribes, or NHOs with these regulations. We are working to ensure
all the bureaus within the Department of the Interior have adequate
staffing and support to ensure compliance with these regulations.
We decline to include in these regulations a requirement for
imposing NAGPRA-related conditions on Federal grants. All Federal grant
recipients are required to provide assurances that they will comply
with all applicable requirements of Federal laws, regulations, and
policies (see ``Assurances for Construction/Non-Construction Programs
(SF-424D and SF-424B)'' at https://www.grants.gov/forms/forms-repository/sf-424-family, accessed 12/1/2023). While we cannot include
the requested provisions in these regulations, we agree to work with
the Office of Management and Budget to explore whether and how a
NAGPRA-specific condition might be included in the general assurances
required for all Federal grant programs. We decline to withdraw the
proposed regulations or to engage in additional consultations at this
time. We are committed to implementing the final regulations as soon as
possible to ensure these long-overdue changes are implemented.
Regarding the location of the National NAGPRA Program, we
appreciate the input we received during Tribal consultation in 2021 and
in response to the proposed regulations. Currently, we have not decided
about the future location of the National NAGPRA Program. Regarding the
requests for an audit of the National NAGPRA Program, Federal agency
compliance, or the grant program, all Federal agency programs,
including the National NAGPRA Program, Federal agency NAGPRA programs,
and the NAGPRA grant program, are subject to regular internal control
reviews under the Office of Management and Budget Circular A-123,
Management's Responsibility for Enterprise Risk Management and Internal
Control (revised 7/15/2016). Along with other management and
performance evaluation processes, the National NAGPRA Program and all
Federal agency programs undergo routine and regular review. We will
continue to consider the need for additional management oversight.
7. Comment: We received 22 comments concerning how the regulations
should balance the interests of, on the one hand, repatriation, and on
the other hand, scientific study. Of that total, 17 comments outright
objected to the regulations giving museums or Federal agencies
decision-making authority for disposition or repatriation. Thirteen of
these comments, which came from one submission, asserted that decisions
on cultural affiliation, evaluation of requests, repatriation, and
competing requests should be in the
[[Page 86459]]
hands of the appropriate Indian Tribes or NHOs and not museums and
Federal agencies (see NPS-2022-0004-0157). Four comments provided
similar sentiments. One comment requested that an independent authority
evaluate decisions made by museums and Federal agencies. One comment
noted that despite positive changes, the proposed regulations still had
not truly shifted the burden of having to prove the identity or
cultural affiliation of human remains or cultural items off Indian
Tribes or NHOs because the regulations did not give the power of
decision making to Indian Tribes or NHOs.
By contrast, two comments objected to the proposed regulations
claiming that they eliminate the balance of interests that Congress
intended when it passed the Act. Both comments referenced or quoted
from statements made by Senators Inouye and McCain in 1992, to the
effect that the Act represents a balance between scientific study and
respectful treatment of human remains and cultural items. One of these
comments stressed that the proposed regulations were inherently
imbalanced because they were developed through consultation only with
Indian Tribes and NHOs and not with museums, scientific organizations,
and Federal agencies (see NPS-2022-0004-0150). Citing to ``. . . words
such as `balance' and `compromise' [in] describing the law in a special
issue of the Arizona State Law Journal published shortly after the bill
was passed (vol. 24, 1992),'' the other objecting comment stated,
``[i]n my view, a rule published in 2010 (43 CFR 10.11) began to move
NAGPRA away from the balance that Congress intended. The new
regulations proposed here would make that balance go away entirely''
(see NPS-2022-0004-0172).
Three comments directly refuted the two objecting comments as gross
misrepresentations of the Act. One of these comments concluded that the
imbalance is because the Act vests decision making with museums and
Federal agencies and stated ``where there is disagreement between
institutions and Tribes regarding affiliation, it requires that the
Tribes take extraordinary lengths to press claims. The challenge is,
can this rule or any rule really overcome the inherent imbalance in the
Act?'' (see NPS-2022-0004-0129). Another comment supported the proposed
regulations in trying to shift the balance more toward Indian Tribes
and NHOs because, since 1990, repatriation has been too slow, and the
burdens placed on Indian Tribes and NHOs has been too great. The
comment supported the proposed regulations as representing the
``continued evolution to ensure NAGPRA's relevance to its true
constituents-Indian [T]ribes and Native Hawaiian organizations'' (see
NPS-2022-0004-0080). A third comment refuting the objecting comments
stated:
Though some argue that repatriation is a weighing of interests
between science and human rights, that interest is absent from the
Act, which is singularly aimed at providing restitution. The Act
creates an administrative process for repatriation and disposition
to provide restitution for harms that have been called out by
Congress as genocide and human rights violations. The only exception
the Act provides to repatriation is when a museum or agency can
prove that they have a ``right of possession.'' Even permitting
completion of a scientific study of major benefit to the United
States does not prevent repatriation, and will only delay it. 25
U.S.C. 3005(b).
Museums--even well-funded ones--have admitted that they will not
be proactive with their CUI inventories, even with the NAGPRA
funding they request, and that instead, they will continue to work
to overcomplicate the process, based on the current regulations and
criteria outlined there. Thus, it is imperative that the Secretary
take over this duty and correct the Ancestors and their belongings
that languish under a label called ``unidentifiable'' (NPS-2022-
0004-0153).
DOI Response: Nowhere in the Act did Congress say that decisions
about disposition or repatriation are made by balancing the interests
of science against the interests of human rights. While we are aware of
the statements made by Senators Inouye and McCain in 1992, we
understand those statements to say that the Act itself is the product
of balancing these interests. The lengthy process of developing,
drafting, and agreeing to the language of the Act is how Congress
ensured a balance between scientific study and respectful treatment of
human remains and cultural items.
To ensure all information related to the Congressional record is
available, the documents that provide legislative intent are available
on the National NAGPRA Program website (https://www.nps.gov/subjects/nagpra/the-law.htm, accessed 12/1/2023). Beyond the two reports, the
Congressional Record provides statements by individual members of
Congress. In the Senate, Senator Inouye's full statement is available
in the Congressional Record Senate (October 26, 1990) on page 35678-
35679. Senator McCain's opening statement is on the preceding page
35677. A discussion of the impact of the legislation on development
activities on Federal lands by Senators McCain and Simpson is on page
35679-35680. In the House, Representatives Campbell (D-CO), Rhodes (R-
AZ), Collins (D-IL), Richardson (D-NM), Bennett (D-FL), Mink (D-HI),
and Udall (D-AZ) provided statements in the Congressional Record House
(October 22, 1990) on pages 31937-31941.
We agree with the objecting comments that the Congressional record
is replete with references to the balance, compromise, and agreement in
both the process to develop the Act and in the content of the Act
itself. We agree with the objecting comments that the Act creates a
balance, but we believe that the balance is built into the Act itself
through compromises made in the Act before its final passage. The
objecting comments appear to indicate that the balance Congress
intended comes in only repatriating some human remains and even fewer
associated funerary objects (as suggested by the objecting comments
reference to the 2010 Final Rule) or that in each decision on
disposition or repatriation, a museum or Federal agency must balance
the interests of science with those of human rights. We disagree with
this interpretation of the legislative history.
The Congressional record of the House clearly identified ``points
of compromise'' in the final version of the Act. Representatives
Campbell and Richardson stated the Act represents a compromise on the
following issues:
1. Limiting the inventory requirement to only human remains and
associated funerary objects rather than all Native American
collections;
2. Clarifying the definition of cultural affiliation to
incorporate anthropological and archeological criteria (i.e., traced
historically or prehistorically);
3. Adding a standard of repatriation for unassociated funerary
objects, sacred objects, and objects of cultural patrimony by
defining ``right of possession;''
4. Tightening the definitions of unassociated funerary objects
and sacred objects;
5. Clarifying the definition of museum to not apply to private
individuals who receive Federal payments such as social security;
and
6. Balancing representation of the Review Committee to include
all groups affected by the Act.
Representative Campbell's statement included two other compromises
in the final version of the Act:
The bill takes into account that many of these items may be of
considerable scientific value and allows for current studies to
continue with repatriation occurring after the completion of such a
study. It further acknowledges that repatriation is not the only
alternative and I encourage all sides to try and work out agreeable
compromises where all interested parties can benefit from
[[Page 86460]]
access to some of the items (136 Cong. Rec. 31938, emphasis added).
We agree with the last comment summarized above that the only
exception to expeditious repatriation under the Act is proving a
``right of possession'' (25 U.S.C. 3005(c)). Any need to complete a
scientific study does not prevent repatriation but only delays it (25
U.S.C. 3005(b)). In addition, we note that any need to excavate human
remains or cultural items on Federal or Tribal lands is only permitted
after consultation (on Federal lands) or consent (on Tribal lands), and
that regardless of any scientific study, disposition of human remains
or cultural items to the appropriate lineal descendant, Indian Tribe,
or NHO is always required (25 U.S.C. 3002(c)). Accordingly, we conclude
that the objective of the systematic processes in the Act is the
disposition or repatriation of human remains or cultural items, not to
achieve any kind of balance between the interests of science and the
interests of human rights.
We intend these regulations to better align with the processes for
disposition and repatriation found in the Act. In these regulations, we
cannot remove the decision-making authority vested in museums and
Federal agencies because doing so would be inconsistent with the Act.
We can, and have, included requirements for museums and Federal
agencies to consult, collaborate, and, in the case of scientific study
or research, obtain consent from lineal descendants, Indian Tribes, or
NHOs (see Comment 15). In addition, these regulations require museums
and Federal agencies to defer to the Native American traditional
knowledge of lineal descendants, Indian Tribes, and NHOs in all
decision-making steps.
In developing both the proposed and final regulations, we
emphasized consultation with Indian Tribes and NHOs and incorporated
comments from consultation to the maximum extent possible. This does
not indicate an imbalance in the process to develop these regulations
or in the resulting product, but rather reflects the special
relationship between the Federal government and Indian Tribes and NHOs
(25 U.S.C. 3010). Furthermore, while the Act is the primary authority
for these regulations, Congress authorized the Secretary to make such
regulations for carrying into effect the various provisions of any act
relating to Indian affairs (25 U.S.C. 9). As 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 this
provision 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)).
Finally, a statement in the Congressional record by Senator Inouye
is directly relevant to the objective of these revised regulations to
better reflect Congressional intent:
This legislation is designed to facilitate a more open and
cooperative relationship between native Americans and museums. For
museums that have dealt honestly and in good faith with native
Americans, this legislation will have little effect. For museums and
institutions which have consistently ignored the requests of native
Americans, this legislation will give native Americans greater
ability to negotiate. Mr. President, I believe this bill represents
a major step in correcting an injustice that started over 100 years
ago. It is appropriate that Congress take an active role in helping
to restore these rights to native Americans and I urge the adoption
of this measure by the Senate (136 Cong. Rec. 35678).
8. Comment: We received two comments requesting the Department
develop guidance and a framework to establish reburial areas for
repatriated collections. The comments point to the U.S. Department of
Agriculture, Forest Service, as an example of how land-managing Federal
agencies can assist and support reburials on Federal lands.
DOI Response: We appreciate the request, and we understand the
significant issues involved with securing lands for reburial. While
this request is outside the scope of these regulations, the Department
will consider how guidance and policy might be used to effectuate the
requested change.
B. Section 10.1 Introduction
9. Comment: We received 42 comments on Sec. 10.1(a) Purpose. Of
that total, 18 comments supported the revised paragraph, specifically
the inclusion of deference to lineal descendants, Indian Tribes, and
NHOs in the purpose paragraph. An additional 19 comments, while
generally supportive, also suggested changes to the paragraph.
Suggested changes include adherence to the purpose as stated by
Congress, emphasizing the limited exceptions to disposition or
repatriation, a significant change to verb tense, and defining and
referencing deference in the regulatory text. On the other hand, four
comments specifically objected to the inclusions of deference in the
purpose paragraph and expressed concerns about how deference applies
when there are disagreements among Indian Tribes or when other
requirements or definitions do not allow for deference to lineal
descendants, Indian Tribes, or NHOs. One comment generally objected to
the change in the purpose as an entire rewrite of the regulations that
would impede the systematic repatriation process.
DOI Response: We specifically requested input on the proposed
purpose paragraph, and we appreciate the response and have made changes
where permissible. As many comments indicate, the proposed purpose
paragraph was not as clear or effective as we had intended. Although
some comments suggested we delete the sentence on the rights the Act
recognizes, we have retained the sentence given the number of
supporting comments we received, but we have changed the verb tense as
requested. We have revised the purpose paragraph as suggested by
several comments to paraphrase the language used by Congress (H. Rpt.
101-877, at 8) which outlines the two separate processes for
disposition and repatriation under the Act. The purpose paragraph uses
plain language to describe the overall goals of these two separate
processes for disposition and repatriation (protect and restore). In
response to the objections and concerns about deference, we have
included both consultation and deference as a part of the purpose for
these regulations to ensure meaningful consideration of Native American
traditional knowledge throughout these processes. It is through
consultation and deference that these regulations ensure the rights of
lineal descendants, Indian Tribes, and NHOs the Act recognizes.
10. Comment: We received four comments on Sec. 10.1(b)
Applicability. Three comments suggested editorial changes to the
paragraph while one comment strongly supported the paragraph,
especially with its focus on museums and Federal agencies as the
applicable party.
DOI Response: Considering the revisions to Sec. 10.1(a), we have
made changes to this paragraph to emphasize the applicable parties that
are responsible for each major section of these regulations. We tried
to make this paragraph clear that many parts of the Act and these
regulations are not limited to Federal or Tribal lands. In response to
other comments on the requirements of these regulations, we have
clarified that lineal descendants, Indian Tribes, and NHOs are not
required to consult or to make a claim for disposition or a request for
repatriation.
11. Comment: We received two comments related to Sec. 10.1(c)
Accountability. One comment suggested
[[Page 86461]]
requiring a duty of candor by museums and Federal agencies to disclose
any human remains or cultural items that were destroyed, deaccessioned,
lost, or in any other way removed from the provisions of these
regulations. One comment suggested adding transparency to the
accountability requirements.
DOI Response: We cannot make the requested change regarding candor
as it is contrary to the requirements of the Act. A museum or Federal
agency must compile a summary of cultural items and an itemized list of
human remains and associated funerary objects in its possession or
control (25 U.S.C. 3003(a) and 3004(a)). Based on the information
available, a museum or Federal agency must determine if human remains
or cultural items that are destroyed, deaccessioned, lost, or in any
other way removed are under its possession or control and therefore
subject to these regulations. We note that in these regulations, as in
the proposed regulations, a museum or Federal agency must ensure the
summary and itemized list are comprehensive and cover any holding or
collection relevant to Sec. 10.9 and Sec. 10.10.
12. Comment: We received five comments objecting to Sec. 10.1(d)
Duty of care because the requirements went beyond the statutory
authority and should be recommendations not requirements. Some of these
comments suggested that the costs to comply with this paragraph would
be substantial, that additional curation and collections facilities may
need to be constructed, and that conflicts might arise with standard
curation, conservation, and preservation principles or practices. One
comment questioned how conflicts among Indian Tribes should be handled.
Another comment stated that research on human remains and cultural
items is necessary to determine cultural affiliation and, therefore,
the requirements in this paragraph conflict with the requirements in
Sec. 10.3. One comment suggested that ``to the maximum extent
possible'' and ``safeguard and preserve'' should be replaced with
``reasonable effort'' and a cross-reference to requirements in 36 CFR
part 79, respectively.
DOI Response: We disagree that these requirements go beyond the
statutory authority or that these requirements should only be
recommendations. The Secretary's authority for promulgating these
regulations is discussed extensively in other responses to comments
(see Comment 7), the 2010 Final Rule (75 FR 12379), and the 2022
Proposed Rule (87 FR 63207). Given the number of supporting comments
for this paragraph during consultation in 2021, including from the
Secretary's Federal Advisory Review Committee (Review Committee), and
comments on the proposed regulations requesting we strengthen these
requirements (see Comments 13-17), we chose not to revise these
requirements into recommendations. We strongly disagree with the
comment that research on human remains or cultural items is required by
the Act or these regulations to determine cultural affiliation or for
any other purpose. Rather, the Act explicitly and specifically does not
require new scientific studies or other means of acquiring or
preserving information (25 U.S.C. 3003(b)(2)), and we have incorporated
similar language into this paragraph to clarify (see Comment 16).
Earlier drafts of these regulations referenced 36 CFR part 79, as
suggested by one comment, but we received substantial negative feedback
on this during consultation in 2021 and from the Review Committee. Most
of that feedback felt the inclusion of 36 CFR part 79 in these
regulations was confusing or concerning. Federal agencies and their
repositories must still care for and manage collections that are
covered by the provisions of 36 CFR part 79. Regarding speculation on
substantial costs, conflicts with conservation and preservation
principles, and conflicts among lineal descendants, Indian Tribes, or
NHOs, the final regulations now require museums and Federal agencies to
make a ``reasonable and good-faith effort'' to incorporate and
accommodate Native American traditional knowledge in the storage,
treatment, or handling of human remains or cultural items (see Comment
14).
13. Comment: We received 16 comments supporting Sec. 10.1(d) Duty
of care as proposed while 23 comments were generally supportive but
suggested changes to strengthen the requirements. Many comments
requested this paragraph clearly apply to all Native American
collections, even those on loan or where specific cultural items
subject to the Act have not been identified. Some comments specifically
requested ``custody'' be deleted from the paragraph in line with
requested changes to expand ``possession or control'' or that this
paragraph clearly state that a museum or Federal agency only has a duty
of care and does not have rightful ownership of Native American human
remains or cultural items. Several comments requested a definition of
``care for, safeguard, and preserve.'' One comment requested this
paragraph include a requirement for the National NAGPRA Program to make
sporadic inspections of all museums and Federal agencies to ensure
professional museum and archival standards are met, including
physically securing collections through clean, rodent-free, and locked
areas with limited access. One comment requested additional clarifying
language to ensure these requirements do not serve as a justification
to delay or avoid repatriation. One comment requested two additional
paragraphs be included to require museums and Federal agencies to
provide specific and detailed information on any study or research of
Native American collections conducted after 1990, including copies of
published work and photographs.
DOI Response: We cannot require that this paragraph, or this part,
apply to all Native American collections as that would be inconsistent
with the Act (25 U.S.C. 3003(a) and 3004(a)). The requirements of this
paragraph are limited to human remains and cultural items as defined by
the Act and these regulations. We cannot remove ``custody'' from the
first sentence and still ensure that this paragraph will apply to human
remains and cultural items that are on loan but still subject to the
Act (see the definitions of ``custody'' and ``possession or control''
discussed elsewhere). We have intentionally included ``custody'' in the
duty of care requirement to ensure all Native American human remains
and cultural items are cared for, safeguarded, and preserved until the
disposition and repatriation processes are complete. However, the
inclusion of museums or Federal agencies with ``custody'' is not
intended to limit the ability of the museum or Federal agency with
possession or control of the human remains or cultural items from
carrying out its responsibilities under this paragraph or these
regulations. We cannot include the requested statement on rightful
ownership as it would be contrary to the provisions of the Act where a
museum or Federal agency can prove it has a right of possession to a
cultural item. We have not changed or defined ``to care for, safeguard,
and preserve,'' and these terms should be understood to have a
standard, dictionary definition. We believe these terms, along with
paragraphs (d)(1), (d)(2), and (d)(3), are sufficient to ensure an
adequate standard of care for human remains and cultural items,
including that the human remains or cultural items are properly stored
and physically secured in a clean and locked area and are reasonably
believed to be safe from damage or destruction by pests or natural
elements. We believe the
[[Page 86462]]
timelines included in the disposition or repatriation processes ensure
that these requirements will not be used to delay or avoid
repatriation, and we note that any request for an extension of the
deadlines for repatriation or for a stay of repatriation for scientific
studies would require consultation with and consent of the appropriate
lineal descendant, Indian Tribe, or NHO. While we appreciate the
suggestion to require information on any past research or study be
provided to lineal descendants, Indian Tribes, or NHOs as a part of a
duty of care, this provision is already provided for in Sec. Sec.
10.9(c)(4) and 10.10(c)(4). Under the Act and these regulations, lineal
descendants, Indian Tribes, and NHOs have a right to request records,
catalogues, relevant studies, or other pertinent data (25 U.S.C.
3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and Federal agencies
are required to share that information (25 U.S.C. 3005(d)). As required
by the Act, additional information is only provided upon request of an
Indian Tribe or NHO, and we cannot make this a requirement that applies
to all human remains or cultural items absent such a request.
In conjunction with that reasoning, we have removed the requirement
for lineal descendants, Indian Tribes, or NHOs to first make a request
for the duty of care requirements that follow, and we have removed ``to
the maximum extent possible'' from the introductory phrase (see Comment
14). We have revised this paragraph to include paragraphs (d)(1),
(d)(2), and (d)(3) on what a museum or Federal agency must do as a part
of its more general duty of care for human remains or cultural items.
These three requirements align with the purpose of the Act, these
regulations, and Congressional intent, which was stated as follows:
The [Senate] Committee intends the provisions of this Act to
establish a process which shall provide a framework for discussions
between Indian [T]ribes and museums and Federal agencies. The
Committee believes that the process established under this Act will
prevent many of the past instances of cultural insensitivity to
Native American peoples. The Committee has received testimony
describing instances where museums have treated Native American
human remains and funerary objects in a manner entirely different
from the treatment of other human remains. Several [T]ribal leaders
expressed their outrage at the manner in which Native American human
remains had been treated, stored or displayed and the use of
culturally sensitive materials and objects in violation of
traditional Native American religious practices. In the long history
of relations between Native Americans and museums, these culturally
insensitive practices have occurred because of the failure of
museums to seek the consent of or consult with Indian [T]ribes (S.
Rpt. 101-473, at 3).
Section 10.1(d)(1) requires museums and Federal agencies to consult
on the appropriate storage, treatment, or handling of human remains or
cultural items, which was reiterated in the proposed regulations at
Sec. Sec. 10.4, 10.9, and 10.10. In these final regulations, we have
revised those specific sections to refer to this paragraph.
Section 10.1(d)(2) requires museums and Federal agencies to make a
reasonable and good-faith effort to incorporate and accommodate
requests made by consulting parties (see Comment 14).
Section 10.1(d)(3) requires museums and Federal agencies to obtain
consent from consulting parties prior to any exhibition of, access to,
or research on human remains or cultural items (see Comment 15-17).
14. Comment: Of the 23 comments requesting we strengthen the duty
of care requirements, many requested ``deference'' replace ``to the
maximum extent possible.'' In addition, all comments objecting to the
duty of care requirements raised concerns about the vagueness of this
phrase and the potential for conflict between and among consulting
parties on the implementation of this phrase.
DOI Response: We have removed the phrase and revised Sec.
10.1(d)(2) to require museums and Federal agencies make a reasonable
and good-faith effort (in place of ``to the maximum extent possible''
in the proposed regulations) to incorporate and accommodate the Native
American traditional knowledge in caring for human remains or cultural
items. As the purpose of the Act and these regulations is the
disposition or repatriation of human remains and cultural items,
museums and Federal agencies must prioritize requests for storage,
treatment, or handling by lineal descendants, Indian Tribes, or NHOs
who will be the future caretakers of the human remains or cultural
items. These requests may require alterations or exceptions to standard
curation or preservation practices. In addition, as noted elsewhere,
when consultation on the duty of care does not result in consensus,
agreement, or mutually agreeable alternatives, the consultation record
must describe the concurrence, disagreement, or nonresponse of the
consulting parties.
As an example of how this requirement might be implemented, a
consulting Indian Tribe might request that an offering of organic
material be placed with human remains until repatriation and physical
transfer of the collection is complete. During consultation, the museum
and Indian Tribe might agree on how to accommodate this request while
still protecting and preserving the collection. The resulting agreement
might include increased pest monitoring in the area with the offering,
enclosing the offering in a glass jar next to the human remains or
cultural items, or identifying an alternative location for the
offering.
As another example of this requirement, a consulting Indian Tribe
might request that a particular type of oil or substance be applied to
an animal hide that is incorporated into a cultural item. Traditional
knowledge indicates that the oil or substance provides both physical
and spiritual protection of the cultural item until it is repatriated.
During consultation, the museum and Indian Tribe could agree on the
appropriate individual, possibly a trained conservator or a Tribal
member, and the appropriate method to apply the substance that does not
affect other parts of the cultural item or other items in the
collection.
Other examples of requests a lineal descendant, Indian Tribe, or
NHO might make for specific human remains or cultural items in a
collection include smudging in a collection storage space; using
specific cloth to cover collections; restrictions on who, how, or when
collections are handled; orienting collections in a certain direction;
storing certain collections separately or storing certain collections
together. Each of these requests must be considered in light of other
policies or systems, such as safety precautions, fire suppression
systems, human resource policies, or space limitations. Through
consultation, these requests may be incorporated and accommodated in a
mutually agreeable way. Resources from the School for Advanced Research
and the American Alliance of Museums are available to assist all
parties with these types of discussions and accommodations (``Standards
for Museums with Native American Collections,'' May 2023, https://sarweb.org/iarc/smnac/, and ``Indigenous Collections Care Guide,''
publication pending, https://sarweb.org/iarc/icc/, accessed 12/1/2023).
15. Comment: Of the 23 comments requesting that we strengthen the
duty of care requirements, many requested that museums and Federal
agencies must obtain consent from lineal descendants, Indian Tribes, or
NHOs before any activity occurs that involves any Native American
collections, but especially prior to allowing access to or research on
human remains and cultural items. Some comments requested adding a
requirement to remove human
[[Page 86463]]
remains or cultural items from display or public access. Some comments
requested replacing ``Limit'' with ``Prohibit'' and include
``exhibition of'' with ``access to and research on'' in Sec.
10.1(d)(3). One of the comments objecting to the duty of care
requirement stated that a limitation on research conflicted with the
requirements for determining cultural affiliation, which requires
research.
In addition to these comments, 45 comments on provisions for
``scientific study'' found in Subpart C echoed these requests that the
regulations strengthen the protection of human remains or cultural
items in holdings or collections. Most of these comments requested that
museums and Federal agencies obtain consent from lineal descendants,
Indian Tribes, or NHOs prior to allowing any research on human remains
or cultural items. The second largest group of comments suggested that
museums and Federal agencies must consult with lineal descendants,
Indian Tribes, or NHOs prior to allowing research on human remains or
cultural items. One comment from a museum and scientific organization
requested that the regulations better align with the ethical principles
of professional archaeological and anthropological organizations, which
call for input, consensus, and informed consent from descendant
communities (NPS-2022-0004-0139). One comment from an Indian Tribe
explained that research and scientific studies continue to be conducted
on human remains and cultural items, despite the repeated requests of
Indian Tribes, and this research and study has delayed or even
prevented repatriation in some cases. The comment states:
We have raised these issues many times at the Congressional
level before the Senate Committee on Indian Affairs and before the
NAGPRA Review Committee and nothing was done to prevent the illegal
study of our relatives or the lengthy delays in their repatriation
and reburial. Changes must be made now to prevent any further
privileged use of the Act by agencies and museums who have been
allowed to ignore the plain speech in the Act regarding the study of
our deceased ancestors and their burial property.
It is plain to see that agencies and museums have had more than
enough time (the 33 years that NAGPRA has existed plus all the
decades our relatives sat ignored and collecting dust in museum or
agency repositories) to conduct their illegal studies and analyses
of our poor deceased relatives and their burial property and insist
that steps be taken now to prevent any further studies of our
deceased relatives and their burial property (NPS-2022-0004-0123).
DOI Response: In response to these comments, we revised Sec.
10.1(d)(3), by replacing ``Limit'' with ``Obtain free, prior, and
informed consent'' and adding ``exhibition of'' to ``access to or
research on human remains or cultural items.'' We cannot, as requested
by some comments, prohibit exhibition, access, or research on human
remains or cultural items as that would exceed the Secretary's
authority under the Act and would be contrary to Congressional intent.
While the Act is the primary authority for these regulations, Congress
authorized the Secretary to make such regulations for carrying into
effect the various provisions of any act relating to Indian affairs (25
U.S.C. 9). As 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 this provision 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)).
Ambiguities in statutes passed for the benefit of Indians are to be
construed to the benefit of the Indians (Bryan v. Itasca County, 426
U.S. 373 (1976)).
The Act does not prohibit museums or Federal agencies from
conducting scientific studies of human remains or cultural items but
does clearly state that such studies are not authorized by or required
to comply with the Act (25 U.S.C. 3003(b)(2)). The Act allows for a
scientific study to delay, but not to prevent, repatriation (25 U.S.C.
3005(b)). The Act provides only one exception to expeditious
repatriation by proving a ``right of possession'' (25 U.S.C. 3005(c)).
In addition, the Act allows for excavation of human remains or cultural
items from Federal or Tribal lands for purposes of a study, but only
after consultation (on Federal lands) or consent (on Tribal lands) (25
U.S.C. 3002(c)). As a result, there is some ambiguity in the Act
related to scientific study, which has been interpreted to mean that
the Act neither authorizes nor prohibits scientific study of human
remains or cultural items. In exercising the Secretary's authority for
these regulations, the Department considered both the legislative and
regulatory history related to scientific study of human remains or
cultural items subject to the Act, as well as related recommendations
from the Review Committee who is responsible for monitoring the
repatriation process (25 U.S.C. 3006(c)(2)).
The legislative history shows Congress intended for the Act to give
lineal descendants, Indian Tribes, and NHOs a more equitable voice in
any future scientific study of human remains or cultural items. One
central goal of the Act was ``to allow for the development of
agreements between Indian [T]ribes and museums which reflect an
understanding of the important historic and cultural value of the
remains and objects in museums collections'' (S. Rpt. 101-473, at 4).
The Senate Report provided a model of this kind of agreement where a
museum agreed to return human remains to an Indian Tribe for burial,
and the Indian Tribe chose to bury the human remains in a specially
designed crypt that could be opened periodically to provide access for
scientists to continue the study of the human remains. Earlier drafts
of the legislation allowed for a request for repatriation to be denied
if the requested item was part of a scientific study (H. Rpt. 101-877,
at 11). In explaining the substitute amendment that ultimately became
the Act, Congress explained the change to only delaying, not denying,
repatriation for a scientific study was a means of urging ``the
scientific community to enter into mutually agreeable situations with
culturally affiliated [T]ribes in such matters'' (H. Rpt. 101-877, at
15).
As discussed in Comment 7, in describing the compromises in the
final legislation, Representative Campbell stated that the Act
acknowledges ``that many of these items may be of considerable
scientific value'' and ``that repatriation is not the only
alternative.'' Representative Campbell recommended ``agreeable
compromises where all interested parties can benefit from access to
some of the items'' (136 Cong. Rec. 31938). Similarly, in urging the
passage of the bill, Senator Inouye stated ``[f]or museums and
institutions which have consistently ignored the requests of native
Americans, this legislation will give native Americans greater ability
to negotiate'' (136 Cong. Rec. 35678). This sentiment was echoed by
Senator Akaka who stated the Act would, among other things, ``eliminate
the longstanding policy of scientific research on future remains
found'' (136 Cong. Rec. 35678).
In its final version, the Act used the term ``scientific study''
twice. First, in describing what documentation may be requested, the
Act explicitly and specifically does not require new scientific studies
on human remains or associated funerary objects (25 U.S.C. 3003(b)(2),
referred to here as ``scientific studies are not required''). Second,
the Act requires that when a specific scientific study of human
remains, associated funerary objects, unassociated funerary objects,
sacred objects, or objects of cultural patrimony will result in a major
benefit to the United States, a museum or Federal agency may postpone
repatriation but
[[Page 86464]]
may not deny the request for repatriation (25 U.S.C. 3005(b)), referred
to here as ``delay for scientific study'').
The regulations as proposed in 1993 and as promulgated in 1995
addressed only the delay for scientific study under the exceptions to
repatriation in Sec. 10.10. The regulations included the statutory
language on documentation of human remains at Sec. 10.9 but did not
include that scientific studies are not required. The 1995 Final Rule
made a reference to both scientific study provisions in responding to
one comment that repatriation could not occur until a scientific
analysis was completed. The Department responded stating:
Section 5 (a) specifies that the geographic and cultural
affiliation of human remains and associated funerary objects be
determined `to the extent possible based on information possessed by
the museum of Federal agency.' No new scientific research is
required. Delaying repatriation until new scientific research is
completed contradicts the intent of Congress unless that scientific
research is considered to be of major benefit to the United States
(60 FR 62156).
The 2007 Proposed Rule, Disposition of Culturally Unidentifiable
Human Remains, added that scientific studies are not required to the
paragraph on documentation of human remains at Sec. 10.9. The 2007
Proposed Rule added text to explain (1) any documentation provided is a
public record and (2) a request for documentation cannot be construed
as authorizing a new scientific study or other means of acquiring
information. These additions were drawn directly from the Review
Committee's recommendations on culturally unidentifiable human remains
(discussed below).
In the 2010 Final Rule, Disposition of Culturally Unidentifiable
Human Remains, the Department responded to three comments on scientific
study specifically. Under General Comments, Comment 3 summarized
comments opining that ``Congress intended to allow study of ancient,
unaffiliated remains.'' The Department responded that ``The Act does
not draw a distinction between `ancient' and more recent remains'' and
then reiterated that scientific studies are not required (75 FR 12380).
Under Section 10.9 Other General Comments, Comment 57 summarized
comments that ``requested a clear and explicit explanation of how the
proposed rule takes into account the potential interests of the public
in scientific research and education.'' The Department responded that
scientific studies are not required (75 FR 12387).
In the 2010 Final Rule, under Section 10.9(e)(5) Additional
Documentation, Comment 46 summarized 20 comments regarding the addition
in the proposed regulations that scientific studies are not required.
Some comments stated the language would ``create a seemingly impossible
conundrum, would severely hinder the scientific study of ancient
remains, and are `an obvious attempt to end-run Congressional intent
and a Federal court ruling in the long-fought Kennewick Man case.' ''
One comment requested language be added to clarify that scientific
studies are not prohibited, and another comment requested language be
added to allow scientific studies if the consulting parties agree. The
largest number of comments requested language stating that human
remains must be treated with respect and ``should not be subject to any
further scientific research or used for teaching purposes.'' In
response to these comments, the Department simply stated that the
language came directly from the Act and reflected Congressional intent
(2010 Final Rule at 12386). Since 2010, both provisions on scientific
study have been codified in the regulations.
While the existing regulations include both provisions on
scientific study, the existing regulations do not provide any
mechanisms for ensuring that scientific studies are not required or for
administering the delay for scientific study. In the 2021 draft
revisions of the regulations prepared for Tribal consultation, the
Department introduced a procedure, through the Secretary, to administer
the delay for scientific study but did not include any reference that
scientific studies are not required. We received a significant number
of comments regarding both scientific study provisions during Tribal
consultation and from the Review Committee. As a result of this input,
the proposed regulations included in the duty of care requirement a
limitation on ``access to or research on'' human remains or cultural
items which would provide for implementation as well as enforcement
that scientific studies are not required. The proposed regulations also
provided procedures to administer the delay for scientific study by
both requesting and receiving concurrence of the Secretary as a stay of
the repatriation timeline under Sec. Sec. 10.9 and 10.10.
In preparing these final regulations, we looked at not only the
comments we received on the proposed regulations but also to the
legislative and regulatory history discussed above and to input from
the Review Committee on these issues. As noted above, the addition to
the regulations in 2007 that scientific studies are not required was
based on a Review Committee recommendation. Notably, the Review
Committee's recommendation was not to include the statutory language,
but to clarify that scientific studies must be agreed to by all parties
through consultation. In its 2000 final recommendations on culturally
unidentifiable human remains, the Review Committee recommended:
Documentation must occur within the context of the consultation
process. Additional study is not prohibited if the parties (Federal
agencies, museums, lineal descendants, Indian [T]ribes, and Native
Hawaiian organizations) in consultation agree that such study is
appropriate (65 FR 36463, June 8, 2000).
Between July 2021 and June 2022, the Review Committee reviewed and
discussed the draft regulatory text and, in its final recommendations,
developed its own duty of care requirement:
Duty of care. Through meaningful consultation with [T]ribes and
Native Hawaiian organizations, Federal agencies, museums,
universities, and repositories shall provide standards of care based
upon the free, prior, and informed consent of [T]ribes and Native
Hawaiian organizations for human remains and cultural items. Museums
and Federal agencies have an obligation to adhere to a standard of
reasonable care while performing any act that would foreseeably harm
any cultural item in their possession or control. This duty includes
taking affirmative steps to verify the location and condition of all
cultural items in the control of the museum or Federal agency, and
consulting with any lineal descendants and any culturally or
geographically affiliated Indian [T]ribes or Native Hawaiian
organizations to determine the standard of care they consider
reasonable (NPS-2002-0004-0003, attachment page 2).
As noted in the document, one Review Committee member objected to
the requirement of ``consent'' by Indian Tribes or NHOs to the
standards of curatorial treatment for Native American human remains and
other cultural items. The Review Committee member stated ``[s]uch a
unilaterally-imposed requirement might not be appropriate or
reasonable, and in some circumstances might violate existing binding
administrative agreements, legal obligations, and/or professional
standards of the curating organization'' (NPS-2022-0004-0003,
attachment page 2, footnote 1).
In preparing the proposed regulations, we adopted the Review
Committee's recommendation to include consultation, collaboration, and
consent but, in response to the objecting comment, caveated the
requirement with ``to the maximum extent possible.'' The proposed
regulations did not include the Review Committee's suggested language
of ``free, prior, and informed consent'' and the last sentence
[[Page 86465]]
of the Review Committee's recommendation was incorporated directly into
Subpart C. In preparing these final regulations, we revisited the
Review Committee's recommendations and found we were able to
incorporate the concept of ``free, prior, and informed consent'' by
clarifying the provisions in Sec. 10.1 pertaining to duty of care.
Paragraph (d)(1) requires consultation, paragraph (d)(2) requires
collaboration, and paragraph (d)(3) requires consent. We agree with the
Review Committee member and some of the comments on the proposed
regulations that curatorial standards and other requirements may limit
a museum or Federal agency's ability to incorporate or accommodate
requests from lineal descendants, Indian Tribes, or NHOs, and, as
discussed in Comment 14, museums and Federal agencies must make a
reasonable and good-faith effort to do so. We have limited the
requirement to obtain consent only to the exhibition of, access to, or
research on human remains and cultural items.
As the purpose of the Act and these regulations is the disposition
or repatriation of human remains or cultural items, we find it
appropriate that museums and Federal agencies must obtain consent from
lineal descendants, Indian Tribes, or NHOs before conducting activities
that might physically or spiritually harm human remains or cultural
items. For purposes of the duty of care paragraph, the lineal
descendants, Indian Tribes, or NHOs are those identified as consulting
parties under Sec. Sec. 10.4(b)(1), 10.9(b)(1), and 10.10(b)(1):
Consulting parties are any lineal descendant and any Indian Tribe or
NHO with potential cultural affiliation. If a museum or Federal agency
cannot identify any consulting parties for specific human remains or
cultural items, the duty of care requirement still applies. Until
consulting parties are identified, the museum or Federal agency may not
be required to consult under paragraph (d)(1) or collaborate under
paragraph (d)(2) of Sec. 10.1. Until consulting parties are
identified, the museum or Federal agency must not allow any exhibition
of, access to, or research on human remains or cultural items as doing
so may be subject to a failure to comply with the requirements of these
regulations. If a museum or Federal agency wished to conduct a specific
scientific study of human remains or cultural items, it could do so by
following the requirements for a stay of repatriation under Sec. Sec.
10.9 or 10.10. After following the requirements of these regulations,
nothing would preclude a museum or Federal agency from exhibiting,
allowing access to, or conducting research on collections that are not
subject to the Act or, after disposition or repatriation, reaching an
agreement with the requesting lineal descendant, Indian Tribe, or NHO.
16. Comment: We received four comments requesting the regulations
include in Sec. 10.10 the related statutory language from 25 U.S.C.
3003(b)(2) on ``scientific study.'' Another comment questioned if
``scientific study'' as used in Sec. Sec. 10.9 and 10.10 equated to a
single study that records paleopathology on an individual or a long-
term archaeological project at a site that includes many sub-projects
that study different bioarcheological and physical anthropological
topics.
DOI Response: We incorporated the statutory language on
``scientific study'' into paragraph (d)(3) by adding two sentences to
clarify that the term ``research'' as used here equates to the term
``scientific study'' in the Act and to emphasize that ``research'' of
any kind is not required by the Act or these regulations. We have
defined ``research'' to mean any study, analysis, examination, or other
means of acquiring or preserving information. ``Research'' includes any
activity to generate new or additional information beyond the
information that is already available, for example, osteological
analysis of human remains, physical inspection or review of
collections, examination or segregation of comingled material (such as
soil or faunal remains), or rehousing of collections. ``Research'' is
not required to identify the number of individuals or cultural items or
to determine cultural affiliation.
For example, if a museum wished to physically examine its
collection to identify the number of individuals or associated funerary
objects, the museum must first obtain consent from lineal descendants,
Indian Tribes, or NHOs. Until that consent is obtained, the museum must
rely on the information available (previous inventories, catalog cards,
accession records, etc.) to identify consulting parties, conduct
consultation, update the inventory, and submit a notice of inventory
completion.
If a Federal agency wished to examine an unprocessed collection of
archaeological material excavated from Federal land after 1990 to
identify if any human remains or cultural items were present, it could
do so until human remains or cultural items were identified. At that
time, any further examination or inspection of the collection would
require obtaining consent from a lineal descendant, Indian Tribe or
NHO. Until that consent is obtained, the Federal agency must rely on
the information available (excavation location, field notes, etc.) to
identify consulting parties, conduct consultation, and complete the
disposition of the human remains or cultural items.
17. Comment: We received five comments, including those by the
Review Committee, objecting to the inclusion of unassociated funerary
objects, sacred objects, or objects of cultural patrimony in the delay
for scientific study because it is inconsistent with the Act and
adverse to Tribal interests. These comments requested that the stay of
repatriation in Sec. 10.9 for ``scientific study'' be deleted in its
entirety (see NPS-2022-0004-0096; NPS-2022-0004-0143; NPS-2022-0004-
0151; NPS-2022-0004-0177; and NPS-2022-0004-0183).
DOI Response: We believe these comments conflated the two statutory
provisions for ``scientific study'' we outlined in response to Comment
16 (``scientific studies are not required'' and ``delay for scientific
study''). We agree that the Act limits the provision that scientific
studies are not required to only human remains and associated funerary
objects (25 U.S.C. 3003(b)(2)). Similar language does not appear in the
Act for unassociated funerary objects, sacred objects, and cultural
patrimony (25 U.S.C. 3004(b)(2)).
We do not agree, however, that extending the provision that
scientific studies are not required or the corresponding paragraph at
(d)(3) to unassociated funerary objects, sacred objects, or objects of
cultural patrimony is adverse to Tribal interests. Rather, we feel this
extension accomplishes the request made by many individuals, Indian
Tribes, and Native American organizations to prohibit all ``research''
on human remains as well as any cultural item (see NPS-2022-0004-0107;
NPS-2022-0004-0138; NPS-2022-0004-0158; NPS-2022-0004-0161; and NPS-
2022-0004-0187). Therefore, paragraph (d)(3) on duty of care that
requires consent for exhibition, access, or research applies to human
remains, associated funerary objects, unassociated funerary objects,
sacred objects, and objects of cultural patrimony.
We understand that the delay for scientific study in both
Sec. Sec. 10.9 and 10.10 is adverse to Tribal interests and may seem
to allow or authorize scientific studies. As one comment stated
clearly:
Finally, please note our previous statement that we are
categorically opposed to any
[[Page 86466]]
scientific study of our ancestors, their burial property or any item
of our sacred or cultural patrimony and we specifically request that
any language allowing any type of scientific study of any NAGPRA-
related item be stricken from this rulemaking for the reasons
submitted by our Nation, above (NPS-2022-0004-0123).
We cannot remove reference to ``scientific study'' or research from
these regulations. The delay for scientific study applies to all
``Native American cultural items,'' which are defined in the Act as
human remains, associated funerary objects, unassociated funerary
objects, sacred objects, and objects of cultural patrimony (25 U.S.C.
3005(b)). As any elimination or restriction of 25 U.S.C. 3005(b) would
require an act of Congress, we cannot remove the reference to
``scientific study'' entirely or make the requested change to remove
Sec. 10.9(i)(3). We have, however, strengthened the requirements under
duty of care in this final rule to ensure better implementation and
enforcement that scientific studies are not required.
18. Comment: We received three comments requesting clarification of
Sec. 10.1(e) Delivery of written documents. One comment requested an
editorial change to the text and the other two comments requested an
explanation of proof of receipt. One comment stated that tracking the
sending and receipt of written documents was a considerable burden on
all parties and would require a significant outlay of resources (NPS-
2022-0004-0135).
DOI Response: We have made the requested editorial change to
paragraph (e)(1) and added ``one of the following'' to ``must be sent
by.'' Regarding ``proof of receipt'' for email, many email systems
include an option to request a read receipt automatically. While these
systems may not constitute legal proof, use of such systems is
sufficient for the purposes of these regulations. If an email system
does not provide this option, other software or services can provide
proof of receipt for little to no cost. However, we do not expect or
require additional software or services to meet this requirement. The
minimum requirement to satisfy ``proof of receipt'' would be to request
that the recipient acknowledge receipt of the email. If no
acknowledgment is received, the sender may follow up with a phone call
to ensure the email was received. A call log or note to the file would
be sufficient ``proof of receipt.''
19. Comment: We received four comments suggesting changes to Sec.
10.1(f) Deadlines and timelines. One comment noted that Tribal holidays
may not coincide with Federal holidays and should be included. Another
comment requested this paragraph clarify that the Federal Register
calculates calendar days. One comment questioned how the Manager,
National NAGPRA Program, will meet the notice publication deadline if
there is a lapse in appropriations. One comment specifically questioned
the use of business days in relation to the requirements under Sec.
10.5 and stated that under the Act, ``days'' means calendar days. By
using business days, the total maximum work stoppage under Sec. 10.5
could increase to some 95 calendar days. In enacting the 30-day stop-
work period, Congress said ``days,'' which is commonly understood as
calendar days. Similarly, Rule 6(a) of the Federal Rules of Civil
Procedure provides that, in computing any time period specified in the
Rules, in any local rule or court order, or in any statute that does
not specify a method of computing time, when a period is stated in days
or a longer unit of time, every day is counted, including intermediate
Saturdays, Sundays, and legal holidays. Furthermore, the comment
states, except for using three ``working days'' for the ministerial
certification of receipt of a notice of discovery, the Department has
always used calendar days as the metric for calculating a period in the
existing regulations stated in days or a longer unit.
DOI Response: We agree that in the Act, days means calendar days.
We appreciate the comment on Tribal holidays, but given the great
variation in those dates, we cannot accommodate the request to include
or observe Tribal holidays. The purpose of this paragraph is to provide
clear instruction on how to calculate dates for the deadlines and
timelines in these regulations. Earlier drafts of these regulations
used calendar days. We received requests during consultation in 2021 to
use business days and to account for a lapse in appropriations. We
noted this change would lengthen most deadlines in the regulations but
accepted the suggested change in the proposed regulations. We have
revised paragraph (f)(1) in Sec. 10.1 to calendar days and included an
exception for when a deadline falls on a Saturday, Sunday, or Federal
holiday, including a lapse in appropriations.
20. Comment: We received seven comments suggesting changes to Sec.
10.1(g) Failure to make a claim or a request. Five comments requested
we delete this paragraph because the Act does not provide the Secretary
with the authority to include this waiver of rights language in the
regulations. These comments state that an Indian Tribe or NHO must
never lose its rights to claim disposition or request repatriation of
human remains or cultural items. One comment requested clarification
and guidance on the application of this paragraph to the time between
sending a repatriation statement and completing physical transfer of
human remains or cultural items. One comment requested the regulations
require clear and concise written proof of compliance with the notice
and consultation requirements prior to any waiver of a right to make a
claim or a request.
DOI Response: The Secretary's authority for promulgating these
regulations is discussed extensively in the 2010 Final Rule (75 FR
12379) and the 2022 Proposed Rule (87 FR 63207). The purpose of a
disposition or repatriation statement is to provide clear and concise
written proof that the requirements of the Act have been fulfilled (25
U.S.C. 3002(a) and 3005(a)). With the disposition or repatriation
statement, the museum or Federal agency divests itself of any interest
in the human remains or cultural items.
We cannot remove this paragraph without jeopardizing the entire
disposition or repatriation processes provided by the Act and these
regulations. This paragraph has been included in these regulations
since the 1993 Proposed Rule (58 FR 31132) and ensures that any claim
for disposition or request for repatriation must be considered by a
museum or Federal agency prior to disposition, repatriation, transfer,
or reinterment of human remains or cultural items. Once disposition,
repatriation, transfer, or reinterment occurs, a museum or Federal
agency cannot accept a claim or request from another party as the
museum or Federal agency no longer has any rights to or interest in the
human remains or cultural item. This paragraph provides protection for
lineal descendants, Indian Tribes, and NHOs as well as for museums and
Federal agencies that once a disposition or repatriation statement is
sent, it is not subject to future appeal or challenge.
21. Comment: We received four comments suggesting changes to Sec.
10.1(h) Judicial jurisdiction. Three comments requested we include the
role of the U.S. Court of Federal Claims in resolving specific matters.
One comment asked if this paragraph restricted the role of Tribal
courts in any related legal actions.
DOI Response: 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.
Regarding the U.S. Court of Federal Claims, we disagree with the
[[Page 86467]]
suggested change. This paragraph reflects the statutory description of
judicial jurisdiction for violations of the Act (25 U.S.C. 3013). It is
not intended to address judicial jurisdiction for potential
constitutional violations, such as the possibility of a Fifth Amendment
taking as described in the Act's definition for ``right of possession''
(25 U.S.C. 3001(13)). It is unnecessary for these regulations to
address the Court of Federal Claims' jurisdiction over Fifth Amendment
takings claims, which is well-established and not specific to this Act.
Regarding collection of civil penalties, this is already included in
Sec. 10.11, specifically in paragraph (m)(2) of these regulations.
22. Comment: We received 19 comments suggesting changes to Sec.
10.1(i) Final agency action. Four comments requested clarification as
to how to interpret final agency action and confirming that disposition
or repatriation determinations are final agency actions. Four comments
considered the categories of final agency action to be too narrow as
written and recommended adding language to clarify and including
examples of determinations that would make this part inapplicable, such
as determinations regarding plans of action, excavations, Federal land
ownership, and possession or control. On the other hand, one comment
described how those categories of final agency action impermissibly
broaden the concept. Six comments urged the Department to approve all
museum determinations under these regulations or compel museum action,
and that such approval or failure to compel should be defined as final
agency action. Four comments recommended that the Assistant Secretary's
decision not to assess a civil penalty be considered reviewable as
final agency action.
DOI Response: The Act does not grant the Secretary authority to
approve or compel museum determinations, other than by assessing civil
penalties for failures to comply. Regarding civil penalties, we have
not made changes that would make decisions to assess civil penalties
reviewable as final agency action because, first, the Act makes this
decision permissive, not required, and second, such decisions are
comparable to those in a criminal context (United States v. Halper, 490
U.S. 435 (1989)) and generally considered unreviewable under the
Administrative Procedure Act in order to preserve prosecutorial
discretion (Heckler v. Cheney, 470 U.S. 821 (1985)). While we
appreciate the remaining recommendations, we believe that the concerns
underlying each are already addressed by the language as it appeared in
the proposed regulations. First, the inclusion of any final
determination making the Act or this part inapplicable is intentionally
broad and inclusive enough to capture the examples and other regulatory
actions described in the comments. Second, at the same time, because
this determination must be final, because it is on its own terms
limited to situations where the information available to the Federal
agency has informed the determination that the Act or this part is
inapplicable, and because the determination in question is specific to
the application of this Act or this part, the category is sufficiently
limited in scope so as to ensure consistency with the Administrative
Procedure Act. The Department does not consider this language in these
regulations to redefine final agency action, but only to clarify its
existing application across the entirety of the Act and this part.
In addition, we have added a paragraph (k) to this section on
severability. While this rule is intended to create systematic
processes for implementing the Act, if a court holds any provision of
one part of this rule invalid, it should not impact the other parts of
the rule. For example, a decision holding a portion of Subpart B
invalid should not impact Subpart C, since they are two separate
processes for two different situations. Similarly, a decision holding
part of the inventory process invalid should not impact the summary or
repatriation processes. Any decision finding any provisions in this
rule to be invalid would not impact the remaining provisions, which
would remain in force. The intent of this rule is to streamline the
processes and increase deference to lineal descendants, Indian Tribes,
and NHOs as a whole, but the rule is not an interdependent whole--other
provisions of the rule would implement that intent even if a court
declared certain provisions invalid.
C. Section 10.2 Definitions for This Part
23. Comment: We received four comments requesting we add new
definitions. Three comments requested we define ``deference.'' One
comment requested we define ``simple itemized list,'' ``lot,'' and
``specific area'' for funerary objects.
DOI Response: We have not defined ``deference'' in these
regulations. As used in these regulations, this term is intended to
ensure meaningful consideration of Native American traditional
knowledge of lineal descendants, Indian Tribes, and NHOs throughout the
systematic processes for disposition and repatriation. The term should
be understood to have a standard, dictionary definition: ``respect and
esteem due a superior or an elder; also affected or ingratiating regard
for another's wishes'' (Merriam-Webster definition of ``deference''
https://www.merriam-webster.com/dictionary/deference, accessed 12/1/
2023). The requirement for deference is not intended to remove the
decision-making responsibility of a museum or Federal agency under the
Act or these regulations but is intended to require that a museum or
Federal agency recognize that lineal descendants, Indian Tribes, and
NHOs are the primary experts on their cultural heritage. We believe the
application of deference in these regulations is clear, and we have
reinforced its application through changes to paragraphs in Sec.
10.1(a) Purpose and (d) Duty of care and in the definition of
``consultation'' below.
We do not believe it is necessary to define ``simple itemized
list,'' ``lot,'' or ``specific area.'' Each of these terms should be
understood to have a standard, dictionary definition, and when a museum
or Federal agency is trying to apply them, we note that consultation
with lineal descendants, Indian Tribes, or NHOs should inform that
decision.
24. Comment: We received six comments supporting the definitions in
the proposed regulations. These comments appreciated that the
definition of ``cultural item'' (and the definitions of specific kinds
of cultural items) included language that recognizes lineal
descendants, Indian Tribes, and NHOs are the primary experts on their
own cultural heritage. One comment requested these definitions be
further strengthened by requiring museums and Federal agencies defer to
the determination of the lineal descendant, Indian Tribe, or NHO.
Similar comments were repeated in each of the definitions of specific
kinds of cultural items.
DOI Response: We have retained the language in the definition of
``cultural item,'' ``funerary object,'' ``sacred object,'' and ``object
of cultural patrimony.'' We have not added a requirement for deference
to the determinations of lineal descendants, Indian Tribes, or NHOs as
it would be inconsistent with the Act. Museums and Federal agencies are
responsible for making determinations under the Act and these
regulations, but must do so after consulting with lineal descendants,
Indian Tribes, and NHOs. We have changed the order of the sentences to
[[Page 86468]]
reflect the importance of Native American traditional knowledge (which
includes customs and traditions) in these definitions. Furthermore, we
have strengthened the application of these definitions through changes
to paragraphs in Sec. 10.1(a) Purpose and (d) Duty of care and in the
definition of ``consultation'' below.
25. Comment: We received 21 comments on the proposed definitions of
``acknowledged aboriginal land'' and ``adjudicated aboriginal land.''
Of that total, 13 comments suggested changes to the definitions while
eight comments supported both definitions as proposed.
DOI Response: Due to the changes to the definition of ``cultural
affiliation,'' we are not finalizing the proposed definitions of
aboriginal land in this rule. We believe the changes to cultural
affiliation address the concerns expressed by the comments and ensure
consultation on and consideration of information about aboriginal
occupation in determining cultural affiliation. We have replaced
``adjudicated aboriginal land'' in the regulatory text with the
elements of the definition.
26. Comment: We received 21 comments on the definition of
``affiliation.'' Of that total, 14 comments suggested changes to the
definition while seven comments supported it. One comment questioned if
the Secretary has the authority to alter a definition in the statute
and opposed the generalized and simplistic meaning of ``affiliation.''
The other comments requested that the definition of ``affiliation'' be
used to define ``cultural affiliation.''
DOI Response: We agree with the suggestion to add ``cultural''
before affiliation in this definition. We have clarified this
definition by incorporating the Congressional intent of this definition
``to ensure that the claimant has a reasonable connection with the
materials'' (H. Rpt. 101-877, at 14, and S. Rpt. 101-473, at 6). The
additional language found in the definition in the Act (traced through
time and identifiable earlier group) has been incorporated into the
procedure for determining cultural affiliation and the related changes
explained in our responses under Sec. 10.3. We included in the
definition of cultural affiliation the two ways cultural affiliation
may be identified (clearly or reasonably), taken from the language in
the Act (25 U.S.C. 3003(d)(2)).
27. Comment: We received two comments suggesting changes to the
definition of ``ahupua`a.''
DOI Response: We agree with the comments and have made the
suggested changes. We appreciate the feedback that the definition of
ahupua`a includes extra contextual information that is already
incorporated in Sec. 10.3. We also note that priority for cultural
affiliation is not given to an NHO based on the NHO's location or
cultural practice at the time of their claim or request but rather
priority for cultural affiliation is based on the NHO's relationship to
the earlier occupants of the ahupua-a from where the human remains or
cultural items were removed or in which they are discovered.
28. Comment: We received three comments suggesting changes to the
definition of ``appropriate official.'' One comment suggested that the
appropriate official be trained on the time requirements of that job.
The other comments wanted the Department to provide a contact list of
appropriate officials.
DOI Response: The responsible Indian Tribe, NHO, DHHL, or Federal
agency is responsible for the training the appropriate official. The
National NAGPRA Program maintains contact information on its website at
https://grantsdev.cr.nps.gov/NagpraPublic/Home/Contact (accessed 12/1/
2023). We encourage Indian Tribes, NHOs, Federal agencies, and museums
to provide or update contact information on a regular basis. We also
point out that the Advisory Council on Historic Preservation keeps an
updated list of Federal Preservation Officers for each Federal agency
at https://www.achp.gov/protecting-historic-properties/fpo-list
(accessed 12/1/2023). The National Park Service and the Bureau of
Indian Affairs maintain contact information on Tribal Historic
Preservation Offices at https://grantsdev.cr.nps.gov/THPO_Review/index.cfm (accessed 12/1/2023) and Tribal Leaders at https://www.bia.gov/bia/ois/tribal-leaders-directory/ (accessed 12/1/2023).
29. Comment: We received 10 comments suggesting changes to the
definitions of ``ARPA Indian land'' and ``ARPA public land.'' Most of
the comments said that the definitions are inconsistent with the Act
and would unduly narrow the application of the Act and these
regulations. One comment noted that the definition of ``ARPA Indian
land'' includes the term ``individual Indian.'' The comment stated that
the latter term was undefined in the proposed regulations and suggested
that it be replaced with the defined term ``lineal descendant.''
DOI Response: We have not changed these definitions. These
definitions do not change the application of NAGPRA. NAGPRA applies to
its fullest extent on ``Federal land'' or ``Tribal land,'' as defined
in both the statute and these regulations. Rather, the terms ``ARPA
Indian land'' and ``ARPA public land'' define which excavations under
NAGPRA require a permit issued under ARPA and which do not.
Specifically, NAGPRA requires that human remains or cultural items may
only be excavated or removed from Federal or Tribal land if, among
other requirements, ``such items are excavated or removed pursuant to a
permit issued under [ARPA] which shall be consistent with [NAGPRA].''
25 U.S.C. 3002(c)(1). Since both NAGPRA and ARPA are intended to
protect important cultural resources, they must be construed together.
Further, ``issued under ARPA'' is an adjectival phrase modifying
``permit.'' Thus, it is not ARPA that ``shall be consistent with
NAGPRA,'' but rather the ARPA permit that must be consistent with
NAGPRA. This is supported by the NAGPRA legislative history. The Senate
Indian Affairs Committee specifically noted that it ``[intended] the
notice and permit provisions of this section to be fully consistent
with the provisions of [ARPA]'' (S. Rpt. 101-473, at 7). Likewise, the
House Committee on Interior and Insular Affairs, in discussing the
stopping of work for an inadvertent discovery, noted that, ``[a]lthough
a specific time limit was not added here, the Committee does intend to
protect the remains and objects found and does not intend to weaken any
provisions of other laws, such as [ARPA], regarding similar
situations.'' Like the Senate Committee, the House Committee also
stated that, ``[s]ubsection (c) provides that items covered by this Act
can be excavated from Federal or [T]ribal land if proof exists that a
permit has been acquired under Section 4 of the [ARPA]'' (H. Rpt. 101-
877, at 15 and 17).
Therefore, the provisions of ARPA, including the scope of public
land and Indian land, are not affected by NAGPRA. So, the terms ``ARPA
Indian land'' and ``ARPA public land'' are defined in these regulations
using the exact same definitions of ``Indian land'' and ``public land''
in ARPA, including use of the term ``individual Indian,'' which is used
in ARPA to denote land that is owned by an individual Indian, who may
or may not be a ``lineal descendant'' as defined in NAGPRA. The
protection of the scope of both statutes is reflected in these
regulations by the requirement that ARPA permits are issued for NAGPRA
excavations just as they are for ARPA excavations, keeping the full
protections of each statute in place, as Congress intended.
[[Page 86469]]
30. Comment: We received 39 comments on the definition of
``consultation.'' Of that total, two comments objected to the
definition because ``to the maximum extent possible'' was a vague and
troubling standard. These two comments also objected to the use of
consensus and requested it be removed or made a recommendation rather
than a requirement because, as one comment stated, ``it is not within
the ability of museums to seek consensus or mediate potential
disagreements among sovereign nations during the consultation process''
(NPS-2022-0004-0136). In addition, one comment didn't object to the
definition but requested clarification as to whether ``seek consensus''
would mean museums and Federal agencies must ensure responses are
received from all parties invited to consult.
On the other hand, nine comments supported the definition as
proposed while 27 comments supported the definition but suggested
changes to strengthen it. Most of these comments suggested changing
``seek consensus'' to ``achieve'' or ``strive for'' consensus,
replacing ``incorporating'' with ``deferring to,'' replacing ``to the
maximum extent possible'' with ``as the Indian Tribe or Native Hawaiian
organization understands them,'' or removing ``to the maximum extent
possible.'' A few comments suggested adding that consultation is
between equal parties or that it must be conducted in good faith. A few
comments suggested including a requirement for museum or Federal agency
decision-makers to be present at consultation, for consultation to be
continual, or to add ``transparent'' and ``formal'' to the definition.
One comment renewed a request to use the definition of consultation in
36 CFR part 800.
DOI Response: Consultation is a critical, central, and continual
part of the systematic processes for disposition or repatriation
provided by the Act and these regulations. However, neither the Act nor
the existing regulations define consultation. Earlier drafts of these
regulations drew directly on Congressional report language that
``consultation'' under NAGPRA means ``the open discussion and joint
deliberations with respect to potential issues, changes, or actions by
all interested parties'' (H. Rpt. 101-877, at 16). Specific to the
inventory, Congress emphasized the need for ``cooperative exchange of
information between Indian [T]ribes or Native Hawaiian organizations
and museums regarding objects in museum collections'' (S. Rpt. 101-473,
at 8). In the proposed regulations, we added specific types of
information that are exchanged during consultation (identifications,
recommendations, and Native American traditional knowledge). We also
drew language from other definitions for consultation found in 36 CFR
part 800, Executive Order 13175, and draft guidance and language that
became the November 2022 White House memorandum on Uniform Standards
for Tribal Consultation.
In response to comments that objected to the proposed definition,
we have removed ``to the maximum extent possible'' and clarified the
goal of consultation is to strive for consensus, agreement, or mutually
agreeable alternatives. We did not and do not intend for ``consensus''
to imply museums or Federal agencies are required to mediate potential
or even actual disagreements among lineal descendants, Indian Tribes,
or NHOs. Likewise, ``consensus'' does not require a museum or Federal
agency receive a response from every invited consulting party before it
can proceed. The consultation record should include efforts to invite
consulting parties. When consultation does not result in consensus,
agreement, or mutually agreeable alternatives, the consultation record
must describe the concurrence, disagreement, or nonresponse of the
consulting parties.
In response to comments that requested strengthening the definition
for consultation, we have revised the second half of the sentence to
better reflect the goals of consultation. We have added ``good faith''
to the definition to ensure honest and fair consideration of all points
of view and removed it from each of the regulatory steps on
consultation. We have expanded the definition to clearly identify the
goals of consultation, drawing on other sources suggested by the
comments. ``Seek, discuss, and consider the views of all parties''
comes from language in 36 CFR part 800.16. Although we received several
comments requesting we change ``seek'' to ``achieve,'' we have used
``strive for'' which was suggested by some comments and is found in the
November 2022 White House memorandum on Uniform Standards for Tribal
Consultation. We feel this change better reflects the goal of
consultation and is stronger than ``seek consensus'' but still reflects
consensus may not be achieved. We have also added to the goal of
consensus ``agreement'' and ``mutually acceptable alternatives.''
Although we received several comments requesting we add deference to
this definition, we have instead added that consultation enables
consideration of the kinds of information that can be provided by
lineal descendants, Indian Tribes, and NHOs. This replaces the more
limited list of information in the proposed regulations, and we expect
it will provide a more robust and clearer record of information shared
by lineal descendants, Indian Tribes, and NHOs during consultation.
In response to all the comments and as noted elsewhere, when
consultation does not result in consensus, agreement, or mutually
agreeable alternatives, the consultation record must describe the
concurrence, disagreement, or nonresponse of the consulting parties.
Although a few comments suggested we require in the definition that
decision makers attend consultations, we have not included this in
these regulations. We believe this requirement may not fit every
situation and might end up delaying or eliminating the efficiencies of
these regulations. Rather, we note that when consultation does not
result in consensus, agreement, or mutually acceptable alternatives,
consulting parties may wish to involve decision makers from all parties
to see if a resolution can be found.
Lastly, we note that consultation as defined here is different than
consultation defined in other contexts, especially consultation between
a Federal agency and an Indian Tribe or NHO. For purposes of
disposition or repatriation, Federal agencies are required to comply
with this definition of consultation as well as any applicable policy
on government-to-government/sovereign consultation that would apply in
all contexts. For purposes of repatriation, we cannot require museums
to conduct the same level of consultation that would be required for a
Federal agency. We feel this definition of consultation provides
requirements that can be met by both museums and Federal agencies,
fills in a missing piece of the Act and the existing regulations, and
ensures consultation remains a critical, central, and continual part of
the systematic processes for disposition or repatriation.
31. Comment: We received 20 comments on the definition of
``cultural item.'' Of that total, 16 comments suggested changes to the
definition while four comments supported it. Four comments stated that
changing the definition of cultural item to exclude human remains
exceeded the Secretary's authority. One comment objected to the
definition without further request for changes. One comment suggested a
grammatical change. One comment suggested
[[Page 86470]]
cultural item be broadened to include documents and records (including
photographs) associated with human remains or cultural items to ensure
repatriation of those documents and records. Six comments requested the
definition of cultural items be expanded to require Tribal
consultation. The comments pointed out that the definitions in the Act
``depend in part on [T]ribal use and cultural significance. 25 U.S.C.
3001(3). Courts have clarified that Indian Tribes play a role in
determining whether items possess the requisite cultural significance
to meet NAGPRA's definitions, especially regarding `cultural
patrimony.' See United States v. Tidwell, 191 F.3d 976, 981 (9th Cir.
1999); United States v. Corrow, 119 F.3d 796, 805 (10th Cir. 1997).''
(see NPS-2022-0004-0119 for one of the six comments). Three comments
objected to the definition as proposed because the required deference
to Indian Tribes and NHOs in the regulations and the definitions of
cultural items had the potential to create conflict between types of
information or among Indian Tribes or NHOs.
DOI Response: As we stated in the proposed regulations, use of the
phrase ``human remains or cultural items'' is responsive to requests of
Indian Tribes and NHOs. The existing regulations do not define
``cultural items'' but still use the term to include human remains.
This change from ``cultural items'' to ``human remains or cultural
items'' is only editorial and does not have any impact on the
applicability or scope of these regulations. This editorial change is
within the Secretary's authority, as the Department asserted in the
1993 Proposed Rule (58 FR 31122).
We have not made the requested grammatical change (from singular to
plural) as it is unnecessary in regulatory definitions. Throughout
these final regulations, a singular term includes and applies to
several persons, parties, or things. We cannot expand the definition to
include documents and records (including photographs) as that would be
inconsistent with the Act. We note that requesting documents and
records (which could include photographs) is already provided for in
Sec. Sec. 10.9(c)(4) and 10.10(c)(4). Under the Act and these
regulations, lineal descendants, Indian Tribes, and NHOs have a right
to request records, catalogues, relevant studies, or other pertinent
data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and
Federal agencies are required to share that information (25 U.S.C.
3005(d)). As required by the Act, additional information is only
provided upon request of an Indian Tribe or NHO, and we cannot require
documents and records be provided by including these in the definition
of cultural items. We advise lineal descendants, Indian Tribes, and
NHOs to make their requests as broad as possible to ensure all
information about cultural items, including digital data, is provided.
Regarding the request to strengthen the definition, we are unable
to change ``according to'' to ``as determined by'' as it would be
inconsistent with the Act. Museums and Federal agencies are responsible
for making determinations under the Act and these regulations, but must
do so after consulting with lineal descendants, Indian Tribes, and
NHOs. We have changed the order of the sentence to reflect the
importance of Native American traditional knowledge (which includes
customs and traditions) in this definition.
We disagree that the definition is over-broad, a reversal of
Congressional intent, or contrary to explicit statements in the
Congressional record. Deference to Native American traditional
knowledge is necessary to ensure the rights of lineal descendants,
Indian Tribes, and NHOs the Act recognizes. The addition of ``according
to Native American traditional knowledge'' in this definition is to
ensure meaningful consideration of this information during
consultation.
We believe this addition to the various definitions of cultural
items will lead to more informed decision-making and help to avoid the
lengthy and costly delays in disposition or repatriation. In crafting
the definitions of cultural items, Congress clearly intended that the
definitions ``will vary according to the [T]ribe, village, or Native
Hawaiian community'' (S. Rpt. 101-473, at 4). Consultation, which is
required throughout the Act prior to any determination, is how an
Indian Tribe or NHO shares the information needed to identify a
cultural item.
32. Comment: We received 14 comments on the definition of
``custody.'' Of that total, nine comments suggested changes to the
definition while five comments supported it. Eight comments recommended
deleting this definition and replacing it with the concept of
possession in the definition of ``possession or control.'' One comment
recommended replacing the term ``sufficient interest'' with the term
``legal authority.''
DOI Response: We have not made changes to this definition. We
cannot replace this definition with an expanded definition for
``possession or control,'' as discussed in the response to comments on
that definition (see comment 49). Custody without ``possession or
control'' is a distinct concept from ``possession or control'' itself.
This distinct concept requires definition to implement certain
requirements, including a duty of care and certain reporting
requirements. Further, we did not replace the term ``sufficient
interest,'' which is a threshold determination that museums and Federal
agencies must make. Changing this phrase would presume application of
the Act before that determination has been made. As discussed in more
detail in the response to comments for the definition of ``possession
or control,'' whether a museum or Federal agency has a sufficient
interest in an object or item to establish ``possession or control'' is
a legal determination that must be made on a case-by-case basis.
33. Comment: We received two comments requesting changes to the
definition of ``discovery.'' One comment raised a concern that removal
of human remains or cultural items from Federal or Tribal lands is
either excavation or theft, not a discovery. One comment questioned why
the word ``inadvertent'' is no longer used with the word ``discovery.''
DOI Response: We understand the concern but cannot make the
requested change to eliminate ``removing'' from the definition of
discovery and still ensure that human remains or cultural items are
protected on Federal or Indian lands under these regulations. As one
comment notes, an intentional removal without a written authorization
for an excavation could violate other Federal laws, depending on the
circumstances. These regulations do not replace or supplant the other
protections available on Federal or Tribal lands. Rather this
definition and these regulations provide a process for the disposition
of those human remains or cultural items that may be discovered.
The definition of discovery includes both inadvertent and
intentional discovery of human remains or cultural items. This ensures
that any human remains or cultural items are subject to these
regulations, regardless of how they were discovered.
34. Comment: We received seven comments requesting clarification of
the definition of ``Federal lands.'' Four comments did not consider the
definition to be sufficiently clear or instructive to Federal agencies.
One comment noted that the definition should include lands leased by
the Federal government. One comment noted that the definition could
impact museum collections under Subpart C. One comment noted that the
definition should include language to provide for
[[Page 86471]]
the protection and disposition of Native American children buried at
Indian boarding schools on lands not owned or controlled by the Federal
Government, but where the Indian boarding school was operated by or for
the U.S. Government.
DOI Response: We have not made these changes. Whether a Federal
agency's control of the lands on which it conducts it programs or
activities is sufficient to apply these regulations depends on the
circumstances and scope of that 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. In some circumstances, the definition may include
lands leased by the Federal agency, depending on the nature of that
lease, the Federal agency's statutory authority, and other case-by-case
circumstances. The Department cannot instruct Federal agencies any
further on their own circumstances or statutory authorities, and
recommends Federal agencies consult with their legal counsel in making
such determinations. The definition is not applied to museum
collections in Subpart C.
Regarding lands on which Native American children were buried at
Indian boarding schools, we cannot amend the regulatory definition of
``Federal lands'' as requested. Congress specifically and explicitly
defined Federal lands based on control or ownership, 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 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); United Keetoowah Band
of Cherokee Indians Of Okla. v. United States HUD, 567 F. 3d 1235, 1243
(10th Cir. Okla. 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'')). However, the Department does encourage the
custodians of records from boarding schools not on Federal or Tribal
lands, and the current owners of those boarding schools and cemeteries,
to fully consult with lineal descendants, Indian Tribes, and NHOs on
identification, disinterment, and repatriation of Native American
children. The Department stands ready to assist lineal descendants,
Indian Tribes, and NHOs to the fullest extent of its authority.
35. Comment: We received two comments suggesting changes to the
definition of Federal agency to include the Smithsonian Institution.
DOI Response: We cannot make this change. The Act expressly
excludes the Smithsonian Institution from the definition of Federal
agency.
36. Comment: We received 22 comments on the definition of
``funerary object.'' Of that total, 8 comments supported the definition
in the proposed regulations while 14 comments requested changes to it.
Two comments objected to the definition as being too expansive by
replacing ``preponderance of the evidence'' in the existing regulations
with ``according to'' which the comments believed would create
ambiguity and confusion in applying the definition. On the other hand,
two comments suggested changing ``according to'' to be ``as determined
by'' to further strengthen the deference to lineal descendants, Indian
Tribes, and NHOs on identification of funerary objects. One comment
suggested integrating the definition of funerary object in to two
separate definitions for associated and unassociated funerary objects.
This same comment raised concerns about the example provided in the
proposed regulations. One comment expressed frustration with the use of
acronyms for funerary objects which the comment stated are offensive
and dismissive.
Six comments provided an extensive argument and requested removing
the temporal limitation on human remains related to associated funerary
object (``are, or were after November 16, 1990'') (see NPS-2022-0004-
0119 for one of the six comments). One comment requested clarification
of and emphasis on the location of human remains for unassociated
funerary objects. One comment objected to the statement that a burial
site could ever be ``no longer extant.''
DOI Response: We reemphasize that the proposed revisions to the
existing regulations, specifically the removal of ``preponderance of
the evidence'' from the definition of funerary object, is to align the
definitions in the regulations with those in the Act. The existing
regulations limit the definition of a funerary object by including the
statutory language intended to apply only to unassociated funerary
objects. In 1995, the Department accepted the suggestion to combine the
definitions of associated funerary objects and unassociated funerary
object into a single definition of funerary object and in doing so,
attached the statutory language for unassociated funerary object to all
funerary objects. In 1995, the Department asserted:
The statutory language makes it clear that only those objects
that are associated with individual human remains are considered
funerary objects. The distinction between associated and
unassociated funerary objects is based on whether the individual
human remains are in the possession or control of a museum or
Federal agency. (60 FR 62137).
The Department reiterated and clarified this statement in the 2022
Proposed Rule, ``. . . 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'' (87 FR 63211). The intent
of revising this definition is to clarify long-standing confusion over
the distinction between associated and unassociated funerary objects
and align the definitions with those in the Act. We have retained the
single defintion for funerary object and the two related definitions of
associated or unassociated funerary object as we believe it clarifies
the definitions.
It is important to note ``individual human remains'' as used in the
Act means the human remains of an individual or individuals. We have
removed ``individual'' from the definition of funerary object to
simplify and clairfy the definition. The Act does not require a
funerary object be identified to a specific individual. Rather, a group
of individuals may be related to a single funerary object and the
object may be a funerary object without identifying specifically with
which individual the object was placed.
We have retained the phrase ``with or near'' as we believe it
approporiately expands the definition of what may be a funerary object.
As noted in the 1995 Final Rule, ``[t]he clause was included to
accommodate variations in Native American death rites or ceremonies''
(60 FR 62138). We have retained the requirement for the object to be
``intentionally'' placed. As noted in the 1995 Final Rule, ``[t]he term
is included to emphasize the intentional nature of death rites or
ceremonies. Items that indadvertently came into proximity or contact
with human remains are not considered funerary objects'' (60 FR 62137).
For funerary objects, broad categorical identifications, including
everything from a burial site or specific area, may meet the definition
of a
[[Page 86472]]
funerary object depending on the information available and the results
of consultation. As noted in the example in the 2022 Proposed Rule, it
may be reasonable to believe an object was placed intentionally in a
location because of the human remains even if the object was placed
there many centuries after the human remains (87 FR 63211). As one
comment suggested, this may result in the funerary object having a
different cultural affiliation than the human remains. We have revised
the definition of funeary object to ensure, as in the Act, that
cultural affiliation is not a required element to meet the definition
of a funerary object.
Table 3 compares the definition of ``funerary object'' from the
Act, the existing regulations, and this final rule and indicates the
changes to the definition in the Act by underline (additions),
strikethrough (removals), and moved text (brackets).
[GRAPHIC] [TIFF OMITTED] TR13DE23.000
Regarding the request to strengthen the definition, we are unable
to change ``according to'' to ``as determined by'' as it would be
inconsistent with the Act. Museums and Federal agencies are responsible
for making determinations under the Act and these regulations, but must
do so after consulting with lineal descendants, Indian Tribes, and
NHOs. We have changed the order of the sentence to reflect the
importance of Native American traditional knowledge (which includes
customs and traditions) in this definition.
We disagree that the definition is over-broad, a reversal of
Congressional intent, or contrary to explicit statements in the
Congressional record. Deference to Native American traditional
knowledge is necessary to ensure the rights of lineal descendants,
Indian Tribes, and NHOs the Act recognizes. The addition of ``according
to Native American traditional knowledge'' in this definition is to
ensure meaningful consideration of this information during
consultation.
We believe this addition to the various definitions of cultural
items will lead to more informed decision-making and help to avoid the
lengthy and costly delays in disposition or repatriation. In crafting
the definitions of cultural items, Congress clearly intended that the
definitions ``will vary according to the [T]ribe, village, or Native
Hawaiian community'' (S. Rpt. 101-473, at 4). Consultation, which is
required throughout the Act prior to any determination, is how an
Indian Tribe or NHO shares the information needed to identify a
cultural item.
In response to the extensive comments on the definition of
``associated funerary object,'' we appreciate and share the concern
regarding the inappropriate and inaccurate misreading of NAGPRA. We
clearly and affirmatively state that the Act and these regulations
apply to any museum or Federal agency that has possession or control of
Native American human remains or cultural items. Identification of
where or when the human remains or cultural items were removed may
impact which entity has possession or control, but where or when the
human remains or cultural items were removed does not impact the
identification of human remains or cultural items for purposes of these
definitions.
We have revised the definition as requested to remove the date and
avoid possible misunderstanding. The Act requires that for a funerary
object to be an associated funerary object, the related human remains
must be ``presently'' in the possession or control of a museum or
Federal agency, but the Act does not require the human remains to be in
the possession or control of the same museum or Federal agency as the
associated funerary object. The 1995 Final Rule clarified that when
another museum or Federal agency has possession or control of the
related human remains, the related funerary objects are still
``associated funerary objects'' (60 FR 62138). By using ``presently''
in the Act, Congress intended to distinguish associated funerary
objects from unassociated funerary objects based on the location of the
related human remains. Where human remains and funerary objects were
removed from a burial site and when the location of those human remains
is known, the funerary objects are associated funeary objects. Even if
the human remains were removed with the funerary objects and the human
remains are properly repatriated and reburied, the associated funerary
objects do not lose their status as associated funerary objects.
Associated funeary objects are still associated to the human remains as
long as the location of the human remains is known.
Regarding the other comments, we reiterate that when the location
of human remains related to a funerary object is unknown, the funerary
objects are unassociated funerary objects but are still funeray objects
subject to the Act and these regulations. Additional information about
unassociated funerary objects is necessary to satisfy the
[[Page 86473]]
definition and meet the criteria for disposition or repatriation of the
unassociated funerary objects. For example, an object that was
intentionally placed with or near human remains and is connected to a
death rite or ceremony of a Native American culture meets the
definition of a funerary object. If the location of the related human
remains is unknown, the funerary object meets the definition of
unassociated funerary object. If cultural affiliation of the
unassociated funerary object is reasonably identified by the
geographical location where the unassociated funerary object was
removed, the unassociated funerary object may satisfy the criteria for
repatriation, provided the museum or Federal agency cannot prove it has
a right of possession to the unassociated funerary object.
We understand the comment that in some Native American traditions a
burial site never ceases to exist, we have retained the option for an
unassociated funerary object to be identified when in a specific area,
such as a flood plain or a shore line, the burial site is no longer
extant. Lastly, we appreciate and will strive to no longer use acronyms
for associated funerary objects or unassociated funerary objects that
may be offensive. We encourage all parties to discuss appropriate
terminology during consultation to recognize and reflect the
significance of human remains and cultural items to lineal descendants,
Indian Tribes, and NHOs.
37. Comment: We received two comments on the definition of
``holding or collection,'' both supporting the definition as proposed.
DOI Response: These regulations retain this definition to assist
all parties with identifying the application of the Act and these
regulations.
38. Comment: We received 37 comments requesting changes to the
definition of ``human remains.'' One comment objected to considering
human remains incorporated into a cultural item as the cultural item
and not human remains. One comment requested adding that soil
associated with burials and likely containing human remains be
accounted for in this definition. Two comments requested we remove the
sentence on comingled material (such as soil or faunal remains) being
treated as human remains while one comment supported it.
One comment letter stated in five separate comments that animal
remains should be included in the definition of human remains or
cultural items and a Review Committee comment agreed. These comments
requested animal burials be included separately and distinctly from
cultural items because these animals are imbued with the same spirit as
human remains and, therefore, require the same treatment under the Act
and these regulations. An additional comment suggested the Department
look at incorporating protections for ceremonial animal interments.
Of the total number of comments, 13 comments requested we expand
the definition of human remains to include casts, 3-D scans, and all
other digital data. Some of these comments also suggested expanding the
definition to include any information or samples taken from an
individual, including pictures, biological samples, isotope readings,
soft tissue, and any other biological remnants. Some of these comments
requested we add that any data collected directly relating to a Native
American individual should also be considered human remains. A few of
these comments requested that we require museums and Federal agencies
to provide references to all casts of human remains, any replicas from
3-D scans, and all other digital data produced from human remains or
cultural items and require consultation on the proper treatment of
those references. The comments also requested we add that ``No such
casts, replicas, or digital data scanned from Native American human
remains, funerary objects, sacred objects or cultural patrimony shall
be offered for sale or exchange without the free, prior, and informed
consent of the culturally affiliated Indian Tribe or Native Hawaiian
organization. Failure to comply shall be deemed a violation of
NAGPRA.'' Separately, one comment suggested the definition of human
remains be broadened to include documents and records associated with
human remains or cultural items to ensure repatriation of those
documents and records.
In addition, 12 comments requested we delete from the definition
the sentence that excludes from the definition any human remains or
portions of human remains that are determined to have been freely given
or naturally shed.
DOI Response: We understand there is a wide variety of opinions on
how human remains that are incorporated into a cultural item might be
identified. The Department sought input on this issue in the 1993
Proposed Rule and retained the language in the 1995 Final Rule as it
was ``recommended by the Review Committee to preclude the destruction
of items that might be culturally affiliated with one Indian Tribe that
incorporated human remains culturally affiliated with another Indian
Tribe.'' The 1995 Final Rule also noted that ``[d]etermination of the
proper disposition of such human remains must necessarily be made on a
case-by-case basis'' (60 FR 62137). In the 2022 Proposed Rule, we
included these two ways human remains may be incorporated into an
object or item to ensure, as Congress intended, that human remains of
any ancestry be treated with respect, and any Native American human
remains must be made available for disposition or repatriation. We
decline to make the requested change.
Regarding an admixture of comingled materials, 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). Museums and Federal agencies
are required to identify these comingled materials in its itemized list
and during consultation should evaluate if the entire admixture can be
treated as human remains. If 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, which may include
additional handling, with consent of the lineal descendant, Indian
Tribe, or NHO, to separate the human remains from other materials. We
are aware that comingled materials are a significant issue for many
Indian Tribes, NHOs, museums, and Federal agencies. The intent of this
addition to the definition is to ensure these kinds of collections are
included on an itemized list and made available to lineal descendants,
Indian Tribes, and NHOs during consultation and for repatriation.
The term ``human remains'' appears in the definition section of the
Act even though it is an undefined term. We have defined ``human''
using the commonly understood meaning of the word, i.e., a member of
the species homo sapiens. For this reason, we cannot make the requested
change to include animal burials as a separate and distinct category of
human remains as that would be inconsistent with the Act. We note, too,
that purposefully buried remains that do not include human remains are
not included in the definition of human remains. Other kinds of burials
and remains that are not human remains should be carefully considered,
through consultation, as cultural items. For example, animal burials
that are not related to the burial of human remains and, therefore, are
not funerary objects, may be needed by traditional Native American
religious leaders for the practice of traditional religions and may be
sacred objects.
[[Page 86474]]
We cannot expand the definition of human remains to include casts,
3-D scans, or other digital data, documents, or records as that would
be inconsistent with the Act. We note that the right to request
documents and records, which could include casts, 3-D scans,
photographs, digital data, or other information, is already provided
for in Sec. Sec. 10.9(c)(4) and 10.10(c)(4). Under the Act and these
regulations, lineal descendants, Indian Tribes, and NHOs have a right
to request records, catalogues, relevant studies, or other pertinent
data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and
Federal agencies are required to share that information (25 U.S.C.
3005(d)). We advise lineal descendants, Indian Tribes, and NHOs to make
their requests as broad as possible to ensure all information about
human remains, including digital data, is provided. In addition, we
cannot make the requested addition to prohibit the sale or exchange of
casts, replicas, or digital data of human remains as that would be
inconsistent with the Act.
We have always interpreted biological samples (including DNA), soft
tissue, and any other biological remnants to be within the definition
of human remains and subject to the Act and these regulations. The
definition of human remains is purposefully broad to ensure that ANY
physical remains of the body of a Native American individual are
included (with the one exception discussed below). In the 1993 Proposed
Rule, the Department included an example clause in the definition of
human remains as ``including, but not limited to bones, teeth, hair,
ashes, or mummified or otherwise preserved soft tissues of a person of
Native American ancestry'' (58 FR 31126). In the 1995 Final Rule, the
Department considered comments requesting the definition of human
remains exclude isolated teeth, finger bones, cut finger nails,
coprolites, blood residues, and tissue samples taken by coroners. In
response, the Department stated:
The Act makes no distinction between fully-articulated [sic]
burials and isolated bones and teeth. Additional text has been added
excluding ``naturally shed'' human remains from consideration under
the Act. This exclusion does not include any human remains for which
there is evidence of purposeful disposal or deposition. The
exemplary clause has been deleted (60 FR 62137).
Identification of human remains for the purposes of the Act and
these regulations requires a case-by-case assessment, in consultation
with lineal descendants, Indian Tribes, and NHOs. Recent examples have
demonstrated that the example clause from the 1993 Proposed Rule is
beneficial in identifying human remains subject to the Act and these
regulations, especially when it comes to hair samples taken from living
individuals, coprolites, blood residues, tissue samples, and DNA
extractions. The definition of human remains is intentionally broad and
contains only one exception (discussed below). The definition does not
include a requirement for the human remains to be from an archeological
context, of a certain age, or from a deceased person. The definition
does not exclude human anatomical collections used by medical schools
for training or teaching collections. Again, the definition of human
remains is purposefully broad to ensure that ANY physical remains of
the body of a Native American individual are included (with the one
exception discussed below).
We appreciate the comments requesting removal of the sentence that
excludes human remains that were freely given or naturally shed. We
agree with the comments of the Review Committee that state:
``[a]llowing museums and Federal agencies to predetermine if such
remains were freely given or naturally shed and not report them in
their inventories deprives Indian [T]ribes and Native Hawaiian
organizations with necessary information'' (see NPS-2022-0004-0096).
However, we disagree that a museum or Federal agency should be required
to complete an inventory for human remains that were obtained with full
knowledge and consent of the individual or next of kin. In the 1995
Final Rule, one comment requested clarification if human remains
included blood sold or given to a blood bank by a Native American
individual (60 FR 62137). In the 2010 Final Rule, two comments
recommended excluding human anatomical collections used by medical
schools for training from the definition of human remains. In response,
the Department stated, ``[t]hough not excluded from the inventory
provisions, medical schools that receive Federal funds would not be
required to repatriate Native American human remains obtained with the
voluntary consent of an individual or group that had authority of
alienation'' (75 FR 12393).
We have revised the sentence in the definition to require a higher
standard of information for human remains that are excluded from the
Act and these regulations. We agree with the Review Committee that a
museum or Federal agency must be able to prove the original acquisition
of Native American human remains was obtained with the full knowledge
and consent of the individual, next of kin, or the official governing
body of the appropriate Indian Tribe or NHO (see ``right of
possession'' 25 U.S.C. 3001(13)). In the Act, Congress acknowledged
that a right of possession is qualified with respect to human remains
and associated funerary objects. Congress did not provide for a museum
or Federal agency to assert a right of possession to human remains and
associated funerary objects identified in an inventory. 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 follows the common law by
distinguishing between the quasi-property attributes of Native American
human remains and associated funerary objects and the property
attributes of Native American unassociated funerary objects, sacred
objects, or objects of cultural patrimony.
In line with applicable common law in the United States, Congress
stated that the original acquisition of Native American human remains
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. Therefore, these regulations cannot require a
museum or Federal agency to complete an inventory or repatriate Native
American human remains where the museum or Federal agency can show it
has a right of possession.
For example, when any individual, regardless of ancestry, dies,
local or State law dictates certain actions by law enforcement, medical
examiners, and other local or State officials. Local or State law
generally requires consent by the next of kin prior to any other action
by the local or State authorities. When the deceased individual is
Native American and when no next of kin is ascertainable, the local or
State authorities may be required to treat the individual as human
remains under the Act and these regulations, unless the local or State
authorities obtain the full knowledge and consent of the official
governing body of the appropriate Indian Tribe or NHO. Coroners,
medical examiners, and other local or State agencies should consider
their requirements under the Act and these
[[Page 86475]]
regulations for any Native American human remains.
The Department interprets ``full knowledge and consent''
considering the history of Indian country and recognizes that ``full
knowledge and consent'' does not include ``consent'' given under duress
or because 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.
39. Comment: We received 24 comments suggesting changes to the
definition of ``Indian Tribe.'' Several of the comments relied on the
decision which held, based on the definition of ``group'' in the 1992
regulations at 25 CFR part 83, an Indian group without Federal
recognition was an ``Indian Tribe'' for purposes of NAGPRA (Abenaki
Nation of Mississquoi v. Hughes, 805 F. Supp. 234 (D.Vt., 1992), aff'd
per curiam, 900 F.2d 729 (2nd Cir. 1993)). Some comments also disagreed
with the addition of a reference to the List Act in this definition,
arguing that the definition of Indian Tribe under NAGPRA is different
than the standard for inclusion on the list published under the List
Act. Many of those comments requested we reiterate the statutory
definition verbatim. A few comments adamantly opposed any changes to
the definition of Indian Tribe beyond federally recognized Indian
Tribes.
DOI Response: NAGPRA defines ``Indian [T]ribe'' as ``any [T]ribe,
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.]), which is recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians'' (25 U.S.C. 3001(7) (emphasis added)). This
definition was based on the definition in the Indian Self-Determination
and Education Assistance Act (ISDEAA), which defines ``Indian [T]ribe''
as ``any Indian [T]ribe, band, nation, or other organized group or
community, including any Alaska Native village or regional or village
corporation as defined in or established pursuant to the Alaska Native
Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.], which is
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians''
(25 U.S.C. 5304(e) (emphasis added)). Finally, the List Act requires
that the Secretary ``publish in the Federal Register a list of all
Indian [T]ribes which the Secretary recognizes to be eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians'' (25 U.S.C. 5131(a) (emphasis
added)).
The Supreme Court of the United States recently ruled that the
ISDEAA definition referred only to federally recognized Tribes and
Alaska Native Corporations (Yellen v. Confederated Tribes of the
Chehalis Reservation, 141 S. Ct. 2434 (2021)). The only difference
between the ISDEAA definition and the NAGPRA definition is Congress's
intentional deletion of Alaska Native Corporations (see Statement of
Representative Bill Richardson, 136 Cong. Rec. 36815). Therefore, under
the Supreme Court's reasoning on ISDEAA, the NAGPRA definition only
applies to federally recognized Indian Tribes. Because Congress also
used the same language ``eligible for the special programs and
services'' in both NAGPRA and the List Act, the list of federally
recognized Tribes is the list of Indian Tribes for the purposes of
NAGPRA.
The Abenaki decision is not persuasive. First, the decision not
only precedes the List Act, but also solely relies on a definition that
no longer appears in the 25 CFR part 83 regulations. Second, the
decision focuses on that definition while ignoring the rest of the
NAGPRA definition concerning recognition of eligibility for services.
Finally, it is a Tribal-specific analysis that has not been followed by
any other court. In contrast, the list of federally recognized Tribes
under the List Act is based on the current recognition regulations in
part 83, which are specifically designed ``for the Department to use to
determine whether a petitioner is an Indian [T]ribe eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians.'' 25 CFR 83.2. The plain language
congruence of the ISDEAA definition, the NAGPRA definition, and the
purpose and foundation of the list under the List Act, as confirmed by
the Yellen decision, are more persuasive than the Abenaki case, and
fully support the definition in these regulations. The definition in
these regulations has not been changed. The Department believes it is
important to codify this definition and clarify any continuing
misinterpretation or misunderstanding.
Throughout these final regulations, the term ``Indian Tribe'' 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 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.
40. Comment: We received three comments on the definition of
``inventory.'' Of that total, two comments suggested changes to the
definition while one comment supported it as proposed. The supportive
comment felt the revision was an excellent clarification and would
streamline the inventory and overcome a barrier to repatriation. One
comment adamantly opposed revision of the existing regulatory
definition, specifically the removal of an ``item-by-item description''
requirement. One comment asked if the definition meant that (1) an
inventory is not complete unless it is informed by consultation and (2)
an initial itemized list could not be submitted to National NAGPRA if
consultation had not occurred.
DOI Response: We decline to make changes to the definition. Our
intent is to clarify and simplify what an inventory must include both
in the definition and in the Sec. 10.10. We are aware that the
existing regulatory definition and related text have been a barrier to
expeditious repatriation. On the other hand, we know that a lack of
transparency and accuracy in inventories is also a barrier to
repatriation.
The Act defines an inventory as ``a simple itemized list that
summarizes the information called for by this section'' (25 U.S.C.
3003(e)). The information called for in an inventory is information to
identify (1) ``each Native American human remains or associated
funerary objects and the circumstances surrounding its acquisition''
(25 U.S.C. 3003(d)(2)(A)); and (2) ``the geographical and cultural
affiliation of such item[s]'' (25 U.S.C. 3003(a)). An inventory only
pertains to human remains and associated funerary objects (25 U.S.C.
3003(a)). The inventory is also defined by what is not an inventory;
namely, a summary, which is ``in lieu of an object-by-object
inventory'' (25 U.S.C. 3004(b)(1)(A)) and pertains to ``unassociated
funerary objects, sacred objects, or objects of cultural patrimony''
(25 U.S.C. 3004(a)).
The existing regulations provide a short definition for an
inventory: ``the item-by-item description of human remains and
associated funerary
[[Page 86476]]
objects,'' but also provide a more detailed list of what an inventory
must include in Sec. 10.9. As noted in the 1995 Final Rule, the
difference between a summary and an inventory ``reflects not only their
subject matter, but also their detail (brief overview vs. item-by-item
list), and place within the process. Summaries represent an initial
exchange of information prior to consultation while inventories are
documents completed in consultation with Indian [T]ribe officials and
representing a decision by the museum official or Federal agency
official about the cultural affiliation of human remains and associated
funerary objects'' (60 FR 62140).
We are keenly aware of the preference of many, if not most, Indian
Tribes and NHOs to have all human remains and associated funerary
objects identified in order to repatriate them together. In reviewing
the comments, the goal of both the supporting comment and the opposed
comment is the same: allow lineal descendants, Indian Tribes, and NHOs
to dictate the level of documentation or collections review required
for an inventory. We agree, and changes to Sec. 10.1(d) Duty of care
are specifically meant to achieve this goal. The final regulations
require a museum or Federal agency to obtain free, prior, and informed
consent prior to any exhibition of, access to, or research on human
remains or cultural items.
In response to the questions asked, an inventory is not complete
until a museum or Federal agency initiates consultation with lineal
descendants, Indian Tribes, and NHOs and consults with any consulting
party that wishes to do so. Only completed inventories that contain the
names of consulting parties or those invited to consult should be
submitted to the National NAGPRA Program. If there is no response to
the invitation to consult, the museum or Federal agency must still
complete or update the inventory by the required deadlines.
41. Comment: We received eight comments on the definition of
``lineal descendant.'' Of that total, four comments suggested changes
to the definition while four comments supported it as proposed. One
comment stated common-law system of descent is not clear and the
regulations should revert to the existing language. One comment
requested a grammatical change and one comment asked what ``known
individual'' means. One comment requested clarification if a museum or
Federal agency must confirm the identity of a lineal descendant with an
Indian Tribe with cultural affiliation or if the presence of a lineal
descendant meant consultation with an Indian Tribe was not required.
DOI Response: The existing regulations refer to the ``common law
system of descendance'' and ``known Native American individual'' in the
definition for lineal descendant. The regulatory text adds ``This
standard requires that the earlier person be identified as an
individual whose descendants can be traced.'' The common law system of
descent means the customary practice of tracing ancestry to a person's
parents, grandparents, great-grandparents, and so on. It does not
indicate any kind of precedent is set by previous repatriations. There
is a requirement for the deceased individual to be known, but that does
not mean a named individual is the only way a person could be known.
Rather, it indicates that the deceased individual must be identified in
some way to trace ancestry between that individual and the living
individual. We have removed the limiting gendered language from the
definition as requested by one comment.
Both the existing regulations and this final rule require museums
and Federal agencies to initiate consultation with both lineal
descendants and Indian Tribes or NHOs with potential cultural
affiliation and to provide the names of all identified consulting
parties. The existing regulations require a museum or Federal agency
convey information to both a lineal descendant, if known, and to the
Indian Tribe or NHO with cultural affiliation, when the inventory
results in a determination that the human remains are of an
identifiable individual. In the proposed regulations and this final
rule, this requirement is a part of the information shared and
requested during the consultation process. We cannot require a museum
or Federal agency to verify the identity of a lineal descendant with an
Indian Tribe or NHO. The statute gives lineal descendants priority over
Indian Tribes or NHOs. Establishing a system in which verification of
lineal descendants is through Indian [T]ribes or NHOs could be
detrimental to the rights of lineal descendants, particularly those
that are not members of an Indian [T]ribe or NHO. Given the diversity
of ways in which a lineal descendant may be traced, we cannot require
certain types of documentation or evidence needed to establish lineal
descent. Museums and Federal agencies must determine if a request from
a lineal descendant provides sufficient information and respond to the
request accordingly.
Throughout these final regulations, the term ``lineal descendant''
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 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.
42. Comment: We received one comment suggesting a review of the
involvement of non-profits in museum funding and a change to the
definition of ``museum'' that would replace ``institution of higher
learning'' with ``all educational institutions.''
DOI Response: The requested review is outside of the scope of this
regulatory action. We have not made the requested change because this
part of the definition comes directly from the Act, which is already
sufficiently inclusive of all educational institutions that have
possession or control of human remains or cultural items and receive
Federal funds.
43. Comment: We received four comments suggesting changes to the
definition of ``Native American.'' Two comments expressed concern over
the inclusion in this definition of Indian groups without Federal
recognition. One comment requested we require consultation with Indian
Tribes or NHOs prior to any determination that human remains or
cultural items are Native American. One comment expressed concern that,
as written, this definition might exclude cross-border indigenous
peoples or cultures who are indigenous to the United States but also to
Canada, Mexico, or Russia.
DOI Response: We do not intend to include Indian groups without
Federal recognition in the definition of Tribe (as noted elsewhere in
the definition of Indian Tribe). In determining whether human remains
or cultural items are Native American, we cannot require consultation
prior to compiling a summary of cultural items or an itemized list of
human remains and associated funerary objects under Subpart C, but we
can and do require consultation prior to any determination of cultural
affiliation or decision on a request for repatriation. When compiling a
summary of cultural items or an itemized list of human remains and
associated funerary objects, a museum or Federal agency should
[[Page 86477]]
include any potential Native American human remains or cultural items
to allow for further consultation.
The Act limits the definition of Native American to the United
States, and we cannot remove that geographical descriptor. We believe
the added definitions for ``people'' and ``culture'' includes those who
are indigenous to locations near present day geographical borders. Any
pre-contact Tribe, people, or culture would be included in this
definition. Native Hawaiians are included in this definition as a
``people,'' to clarify an ambiguity left by Congress.
44. Comment: We received 12 comments on the definition of ``Native
American traditional knowledge.'' Of that total, six comments suggested
changes to the definition while six comments supported it. Two comments
opposed the definition, and both requested it be revised or removed
because it was unclear and complex, and one comment felt it would lead
to poor decision-making or other pitfalls. One of these comments was
concerned that this definition, along with the required deference,
would give equal or greater weight to this type of information than to
scientific and historical information and, when identifying cultural
items, Native American traditional knowledge might be used as the only
type of information instead of scientific or historical evidence. One
comment was neutral and asked how the term changed the current cultural
affiliation process. Three comments supported the definition as
proposed but suggested changes to strengthen it. One comment requested
we add language to the variety of information listed while another
comment requested we include a reference to Sec. 10.3. One comment
provided an extensive discussion and specific changes to the definition
to include Indian Tribes, expert opinion, and confidentiality.
DOI Response: We disagree that the definition is unclear, vague, or
overly broad or that this definition is novel or unique to these
regulations. The concept of ``Native American traditional knowledge''
has been used broadly among Federal agencies in the context of land
management and the use of natural or cultural resources, although the
specific terms used might vary. More recently, the White House Council
on Environmental Quality and the Office of Science and Technology
Policy released government-wide guidance and an implementation
memorandum for Federal agencies on recognizing and including Indigenous
knowledge in Federal research, policy, and decision making (https://www.whitehouse.gov/ceq/news-updates/2022/12/01/white-house-releases-first-of-a-kind-indigenous-knowledge-guidance-for-federal-agencies/,
accessed 12/1/2023). Most certainly, this is not a new concept to
lineal descendants, Indian Tribes, or NHOs and any difficulty
understanding this definition could be resolved through adequate
consultation. We believe this term will lead to more informed decision-
making and help to avoid the lengthy and sometimes costly delays in
disposition or repatriation. Under the Act and these regulations, all
information available is equally relevant to determining cultural
affiliation, and our intent in defining this type of information is to
ensure that Native American traditional knowledge is considered
alongside scientific and historical information. In response to the
question asked, this is not different than decision-making for cultural
affiliation under the existing regulations or the Act itself. Although
it may not have been identified as such, Congress intended for Native
American traditional knowledge to be considered when determining
cultural affiliation or identifying cultural items. The definitions of
funerary objects, sacred objects, and objects of cultural patrimony all
rely on information that may only be available to or shared by lineal
descendants, Indian Tribes, or NHOs. Consultation, which is required
throughout the Act prior to any determination, is how an Indian Tribe
or NHO shares the information needed to identify a cultural item. In
cases where there is no other information, Native American traditional
knowledge alone may identify a cultural item.
In response to the other comments, we have added linguistics to the
variety of named information, but stress that this list is not
exhaustive. We have added a final sentence to reiterate the statement
in Sec. 10.3 that Native American traditional knowledge is expert
opinion. We have added Indian Tribes, the Native Hawaiian Community,
and confidentiality to the definition, although in slightly different
places than was suggested.
45. Comment: We received 11 comments suggesting changes to the
definition of ``Native Hawaiian organization.'' Most of the comments
requested revisions to paragraph (3)(i) identifying some NHOs. One
comment expressed concern that changes to this definition would result
in a broad range of NHOs who meet the criteria and impact the Native
Hawaiian objects that are subject to the regulations.
DOI Response: The definition reflects the language in the Act,
which is binding unless stricken, modified, or contravened by other
Federal law. The definition in the Act may be modified if it is no
longer relevant when certain referenced terms, conditions, or entities
cease to exist. The Act includes the Office of Hawaiian Affairs as a
``Native Hawaiian organization,'' and the definition in these
regulations remains unchanged. Other concerns about NHOs are addressed
by the definition as well as the prioritization of cultural affiliation
under Sec. 10.3. The omission of Hui Malama I Na Kupuna O
Hawai[revaps]i Nei from the definition of a ``Native Hawaiian
organization'' is due to the group's dissolution rather than any
judgment as to its or any successors' status as NHOs. The incorporation
of ``Native Hawaiian'' into the definition of a ``Native Hawaiian
organization,'' and the use of the term ``indigenous people'' rather
than ``aboriginal people,'' clarifies what constitutes an NHO and their
relevance to these regulations (2022 Proposed Rule, 87 FR 63213).
This definition and these regulations are consistent with the
government-to-sovereign relationship between the United States
government and the Native Hawaiian Community. If the Native Hawaiian
Community decides to change its relationship with the United States
government to that of a government-to-government relationship, the
Department may review and update the current policy and procedures.
Throughout these final regulations, the term ``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
cultural affiliation may submit a claim for disposition or a request
for repatriation. 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 should be
considered a single claim or request and not competing claims or
requests.
46. Comment: We received six comments suggesting changes to the
definition of ``object of cultural patrimony.'' One comment requested
we remove from the definition the provision that the object must have
been considered inalienable by the group at the time the object was
separated from the group as it seems unnecessary. One comment
questioned the use of ``Native American group'' in the definition. One
comment suggested changing ``according to'' to be ``as determined by''
to further strengthen the deference to lineal descendants, Indian
Tribes, and
[[Page 86478]]
NHOs on identification of objects of cultural patrimony. One comment
requested an expansion of this definition to include intellectual
property like songs, recordings, and photos as well as digital files.
Another comment asked if this definition included documents and photos
and, if not, then how the regulations support the return of such
objects. One comment objected to the definition as over-broad, a
reversal of Congressional intent, and contrary to explicit statements
in the Congressional record at the time of the Act's passage.
DOI Response: We do not have the discretion to revise the
definition as suggested by these first two comments as both are a part
of the definition in the Act. The term ``group'' or ``sub-group'' used
in this definition and elsewhere in these regulations should be
understood to have a standard, dictionary definition: ``a number of
individuals assembled together or having some unifying relationship''
(https://www.merriam-webster.com/dictionary/group, accessed 12/1/2023).
We cannot expand the definition to include intellectual property,
digital files, other documents, or records as that would be
inconsistent with the Act. We note that requesting documents and
records (which could include recordings, photos, or digital files) is
already provided for in Sec. Sec. 10.9(c)(4) and 10.10(c)(4). Under
the Act and these regulations, lineal descendants, Indian Tribes, and
NHOs have a right to request records, catalogues, relevant studies, or
other pertinent data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)),
and museums and Federal agencies are required to share that information
(25 U.S.C. 3005(d)). As required by the Act, additional information is
only provided upon request of a lineal descendant, Indian Tribe, or
NHO, and we cannot require documents and records be provided by
including these in the definition of objects of cultural patrimony. We
advise lineal descendants, Indian Tribes, and NHOs to make their
requests as broad as possible to ensure all information about objects
of cultural patrimony, including digital data, is provided.
Regarding the request to strengthen the definition, we are unable
to change ``according to'' to ``as determined by'' as it would be
inconsistent with the Act. Museums and Federal agencies are responsible
for making determinations under the Act and these regulations, but must
do so after consulting with lineal descendants, Indian Tribes, and
NHOs. We have changed the order of the sentence to reflect the
importance of Native American traditional knowledge (which includes
customs and traditions) in this definition.
We disagree that the definition as proposed is over-broad, a
reversal of Congressional intent, or contrary to explicit statements in
the Congressional record. We agree with the concerned comment that when
NAGPRA was passed, Congress made clear that not all objects could be
deemed ``sacred'' or ``cultural patrimony.'' The definition of object
of cultural patrimony in these regulations is consistent with the Act
and the legislative history. An object of cultural patrimony must not
only be an object owned by the collective whole, but must be of ongoing
historical, traditional, or cultural importance, as indicated by the
Senate (S. Rpt. 101-473, at 5).
Deference to Native American traditional knowledge is necessary to
ensure the rights of lineal descendants, Indian Tribes, and NHOs the
Act recognizes. The addition of ``according to Native American
traditional knowledge'' in this definition is to ensure meaningful
consideration of this information during consultation.
We believe this addition to the various definitions of cultural
items will lead to more informed decision-making and help to avoid the
lengthy and costly delays in disposition or repatriation. In crafting
the definitions of cultural items, Congress clearly intended that the
definitions ``will vary according to the [T]ribe, village, or Native
Hawaiian community'' (S. Rpt. 101-473, at 4). Consultation, which is
required throughout the Act prior to any determination, is how an
Indian Tribe or NHO shares the information needed to identify a
cultural item.
47. Comment: We received two comments suggesting changes to the
definition of `` `ohana.'' Both comments requested a revision of the
definition to reflect that an `ohana may be comprised of lineal
descendants.
DOI Response: We appreciate the suggested change and acknowledge
the limitations of the proposed definition. We have revised the
definition accordingly.
48. Comment: We received one comment suggesting changes to the
definition of person to include ``spiritual entity personhood'' and
clarification that this is different from ``appropriate official.''
DOI Response: While the word ``person'' is used in a few
definitions and instances, the definition is intended to ensure the
requirements under Sec. 10.5 Discovery are completed and to give clear
meaning to the phrase in the Act and these regulations: ``Any person
who knows or has reason to know. . . .'' Certain actions are required
by any individual, partnership, corporation, trust, institution,
association, or any other private entity, or any representative,
official, employee, agent, department, or instrumentality of the United
States Government or of any Indian Tribe or NHO, or of any State or
subdivision of a State when a discovery of human remains or cultural
items on Federal or Tribal lands occurs. These actions are separate
from the required actions of an ``appropriate official'' for that same
discovery. It is possible that a person who makes a discovery on
Federal or Tribal land may also be the representative authorized by a
delegation of authority within an Indian Tribe, NHO, Federal agency, or
Department of Hawaiian Home Lands (DHHL) to be responsible for human
remains or cultural items on Federal or Tribal lands. In those
instances, the same individual may be performing the required actions
of the person and the appropriate official. Considering the use of this
definition, we decline to include ``spiritual entity personhood.''
49. Comment: We received 44 comments on the definition of
``possession or control.'' Of that total, 40 comments suggested changes
to the definition while four comments supported it. A total of 17
comments expressed concerns with museum and Federal agency compliance.
Six comments supported using a single definition for the term
possession or control while five comments proposed splitting the
definition into two definitions. Five comments proposed replacing the
definition of custody with the concept of possession. A total of 13
comments recommended expanding the definition to include museums that
only have an obligation to care for human remains or cultural items,
for example, a museum that received a loan of human remains or cultural
items from another museum. One comment recommended replacing the phrase
``a sufficient interest in an object or item to independently direct,
manage, oversee, or restrict the use of the object or item'' with ``an
interest in human remains or cultural items, such that the museum or
Federal agency has been providing care, direction, management,
oversight, or restrictions regarding the use of the human remains or
cultural item.'' Two comments recommended replacing the phrase
``sufficient interest'' with ``legal responsibility'' or ``legal
authority.'' One comment requested that we clarify the meaning of
sufficient interest to address confusion over whether a museum with
mere custody by a loan, lease, license, or bailment, has possession or
control.
[[Page 86479]]
One comment was concerned that the definition as written would permit
museums that have received loans of human remains or cultural items
from other museums to make determinations regarding repatriations of
the loaning museum's collection. Six comments were concerned with
museums making unilateral determinations regarding possession or
control of human remains or cultural items. Nine comments expressed
concerns that museums and Federal agencies use the existing definitions
as a loophole to avoid compliance with the Act. One comment expressed
concern that the proposed regulations no longer include a statement
that ``Federal agencies must ensure that these requirements are met for
all collections from their lands or generated by their actions whether
the collections are held by the Federal agency or by a non-Federal
institution.''
DOI Response: We have not made changes to this definition, other
than to replace physical custody with physical location to avoid any
confusion. We received one more comment in support of the use of a
single definition than we did recommending that the definition be split
in two. Congress used these two words as a single term throughout the
Act, except for ``right of possession.'' And, given the overwhelming
support for the single definition during consultation in 2021, we have
not made any other changes to this definition from the proposed rule.
Further, we did not change the terms ``sufficient interest'' or
``independently direct'' which are threshold determinations for museums
and Federal agencies to make and changing these phrases as suggested
would presume application of the Act before that determination has been
made. Whether a museum or Federal agency 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 of the human remains or cultural items for
purposes of repatriation under the Act and these regulations. 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 of the human remains or cultural items for purposes of
repatriation under the Act and these regulations. This determination is
a jurisdictional requirement for application of the Act and these
regulations to the human remains or cultural items that may be subject
to repatriation by the appropriate museum or Federal agency.
While we acknowledge the continued interest in expanding the scope
of the definition to include entities that merely have custody, we
cannot make the requested change. In some cases, expanding the scope of
the definition would make multiple entities concurrently responsible
for fulfilling the inventory, summary, and repatriation process. Such
an interpretation is inconsistent with the framework and legislative
history of the Act. Congress provided no indication 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 inventory, summary, and
repatriation provisions. The phrase ``possession or control'' as used
in the Act connotes a singular interest in human remains or cultural
items. Since 1993, these regulations have defined the two elements of
the phrase only to differentiate between physical location of the human
remains or cultural items (1993 Proposed Rule, 58 FR 31127). In the
Act, having possession or control means a museum or Federal agency has
an interest in human remains or cultural items, or, in other words, it
may make determinations about human remains or cultural items without
having to request permission from some other entity or person. 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
determinations 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.
Several comments expressed concerns that collections loaned to
other institutions would fall outside the scope of the Act and these
regulations. We reiterate that this is not the case. Even where a
collection is loaned to another institution, the loaning entity is
still required to comply with all the requirements of the Act and these
regulations. Under these regulations, if the entity that holds the
loaned collection meets the definition of a museum, it would also have
to comply with certain requirements for the loaned collection and any
other human remains or cultural items in its custody, including a duty
of care and reporting obligations. We acknowledge that the underlying
intent of this request is to ensure repatriation of all human remains
or cultural items subject to the Act and that it is related to the
concerns expressed regarding compliance by museums and Federal
agencies. We have made other revisions to address these issues by
requiring museums and Federal agencies to share information and
increase efforts to complete inventories, summaries, and repatriation
of human remains and cultural items, even when they are in the custody
of other entities.
50. Comment: We received 16 comments on the definition of
``receives Federal funds.'' Of that total, 15 comments suggested
changes to the definition while one comment supported it. Four comments
recommended revising the phrase ``institution or agency of a State or
local government'' to ``institution or State or local government
agency.'' Two comments considered the definition to be overbroad or an
overreach of Federal authority. One comment expressed constitutional
concerns with the impacts of this definition on private property. One
comment suggested making the definition of receives Federal funds apply
to museums that only received funds prior to November 16, 1990. Four
comments sought clarification on whether funds received via specific
Federal programs constitute Federal funds under the Act and these
regulations.
DOI Response: We have made the requested change to ensure
consistency between the definitions of museum and receives Federal
funds. We do not consider this definition to be overly broad or an
overreach of Federal authority. The regulations reflect statutory
intent as well as a robust area of law surrounding the receipt of
Federal funds. We do not consider this definition to unconstitutionally
interfere with private property rights. The Act itself restricts
activities that would violate the Fifth Amendment's protection of
property rights, though such situations are rare. We do believe that
applying this definition to the receipt of Federal funds prior to the
passage of the Act raises constitutional concerns. Generally, the Fifth
[[Page 86480]]
Amendment requires us to disfavor retroactive interpretation of Federal
statutes, unless expressly provided for by Congress. Congress did not
provide such an express instruction here. Regarding the nature of funds
received through specific Federal programs, a case-by-case
determination as to the nature of such funds is outside the scope of
this regulatory action. We recommend seeking technical assistance from
the National NAGPRA Program on specific Federal programs.
51. Comment: We received 27 comments on the definitions of
``disposition'' or ``repatriation.'' Of that total, 11 comments
requested we add physical transfer to the definition. Similarly, two
comments requested we add ``the desired outcome'' has occurred, as
confirmed by the lineal descendant, Indian Tribe, or NHO. The comments
noted ``[s]uch an outcome can include, but is not limited to, transfer
of possession, reburial, traditional use, loan agreements, etc.'' One
comment recommended including ``and completes the physical transfer''
at the end of the definitions. Four comments requested changes to
``control or ownership'' in the definitions. Alternatives suggested are
``has the right to repatriate human remains or cultural items'' or
``has right of possession'' or ``has possession or control'' of the
human remains or cultural items. Four comments requested we replace
``control or ownership'' with ``now has control as a result of
disposition or repatriation.'' One comment suggested adding
``relinquishes control'' and include legal transfer in the definition.
Three comments requested we define ``disposition statement'' and
``repatriation statement.'' One comment questioned why disposition is
defined and used if repatriation encompasses all transfers.
DOI Response: We have not made the requested change to include
physical transfer in the definitions of disposition or repatriation and
have responded in more detail in Comment 67. We have accepted, in part,
the suggested change to ``repatriation'' and use ``relinquish
possession or control.'' We have retained ``ownership or control'' in
the definition of disposition, as it is used in the Act, and ensured
throughout that the order of the words in that phrase are consistently
applied.
There is no definition in the Act for either disposition or
repatriation. The existing regulations use the single term
``disposition'' to mean ``transfer of control'' which does not
necessarily equate to physical transfer in any, or all, of the
situations where the term applies. This definition was added in 2007 to
clarify the different procedures in the regulations that effectuate the
same result: transfer of control over human remains or cultural items
by a museum or Federal agency under the regulations (2007 Final Rule,
75 FR 58585 and 58588). The existing definition does not clarify if
``transfer of control'' means legal transfer of control or physical
transfer of control or both. In practice and as we advise, legal
transfer of control often occurs prior to physical transfer of control,
as physical transfer often requires extensive planning for
transportation, scheduling, and funding.
We sought to clarify this in the draft revisions for consultation
in 2021 where we provided two separate terms: ``disposition'' and
``repatriation'' and neither term included physical transfer. We
received significant feedback objecting to the implication that museums
and Federal agencies have a legal interest in human remains or cultural
items which is conveyed or transferred by disposition or repatriation,
as the Act does not recognize museums or Federal agencies have a lawful
interest other than ``right of possession.'' We revised the definitions
of ``disposition'' and ``repatriation'' to remove any implication of a
legal interest being transferred.
These regulations provide definitions for ``disposition'' and
``repatriation,'' and we do not believe it is necessary to also define
the related statement because these statements are fully explained in
the regulatory text.
52. Comment: We received 11 comments suggesting changes to the
definition of ``right of possession.'' One comment objected to the
concept of a right of possession as to any human remains, funerary
objects, or objects of cultural patrimony. Two comments objected to the
inclusion of funerary objects, particularly unassociated funerary
objects, in the definition. One comment objected to the inclusion of
objects of cultural patrimony in the definition. Six comments
recommended removing the term possession or control from the definition
and adding language found in the explanation of the proposed
regulations. One comment recommended describing right of possession as
possession or control, ownership, or holding legal title. One comment
noted that determinations of right of possession must incorporate
deference to Native American traditional knowledge. One comment asked
for clarification on how fully free, prior, and informed consent is
proven.
DOI Response: We cannot make the requested changes. The definition
is drawn directly from the Act itself, which provides for a right of
possession and applies it in some manner to human remains, funerary
objects, sacred objects, and objects of cultural patrimony. Moreover,
we cannot delete or alter the express meaning provided by Congress.
We have not removed the term possession or control because doing so
could cause confusion that might prevent cultural items to which a
museum or Federal agency asserts a right of possession from appearing
on summaries. Even where a museum or Federal agency asserts a right of
possession, it must still comply with the requirements of the Act and
these regulations for cultural items which are in its possession or
control. We have not made ownership or legal title a requirement
because doing so would be circular and presume the result that an
analysis of right of possession seeks to determine. As this definition
intentionally hews closely to the Act, we have not added any clarifying
language from the proposed regulations. Instead, we reiterate here that
a right of possession does not include, for example, consent given
under duress or because of bribery, blackmail, fraud,
misrepresentation, or duplicity on the part of the recipient. Voluntary
consent may be shown by evidence that consent was fully free, prior,
and informed, though those elements are not listed in the definition
itself. The type and extent of such evidence will vary from case to
case.
While we agree that determinations of right of possession must
consider Native American traditional knowledge, we have not added that
requirement to the definition. In other places, we have emphasized the
need for deference to Native American traditional knowledge to ensure
the rights of lineal descendants, Indian Tribes, and NHOs the Act
recognizes. The addition of ``according to Native American traditional
knowledge'' in other definitions is to ensure meaningful consideration
of this information during consultation. Consultation, which is
required throughout the Act prior to any determination, is how an
Indian Tribe or NHO shares the information needed to identify a
cultural item.
53. Comment: We received 11 comments requesting changes to the
definition of ``sacred object.'' Two comments requested the addition of
family spiritual practices to accommodate a broader definition of
traditional Native American religions. One comment requested we replace
``according to'' with ``as determined by'' to strengthen the
definition. Three comments objected to the definition as
[[Page 86481]]
it adhered too closely to the definition in the Act and the existing
regulations and is too limiting by requiring the object be needed, the
adherents be present-day, or the practice be for observance or renewal.
One comment asked why the definition has been revised at all from the
existing regulations and requested it be reverted to the definition in
the Act. One comment objected to the definition as over-broad, a
reversal of Congressional intent, and contrary to explicit statements
in the Congressional record at the time of the Act's passage.
One extensive comment stated that the proposed regulations
impermissibly broaden the definition, contravenes Congressional intent,
and could create a conflict with the Archaeological Resources
Protection Act (ARPA). According to the comment, the proposed
definition, coupled with explanatory language in the proposed
regulations, means that if a lineal descendant, Indian Tribe, or NHO
wants an object, or a category of objects, then that object or object
category is, by definition, a sacred object. By contrast, Congress
stated that a sacred object is an object that was devoted to a
traditional religious ceremony or ritual when possessed by a Native
American and must be used in the present-day in a Native American
religious ceremony. Furthermore, according to the comment, the
impermissible broadening of the term to include items that Congress did
not intend to be considered sacred objects could conflict with ARPA
because most Native American items removed from Federal lands are
archeological; non-NAGPRA archeological resources removed from Federal
lands under ARPA must be curated consisted with Federal curation
regulations; and those curation regulations do not allow transfer or
reinterment of those archeological resources.
DOI Response: We do not believe this definition should include a
separate category of ``spiritual practice'' because the language in the
Act of ``traditional Native American religion'' is broad enough to
encompass the examples in the comment. We are unable to change
``according to'' to ``as determined by'' as it would be inconsistent
with the Act. Museums and Federal agencies are responsible for making
determinations under the Act and these regulations, but must do so
after consulting with lineal descendants, Indian Tribes, and NHOs. We
have changed the order of the sentence to reflect the importance of
Native American traditional knowledge (which includes customs and
traditions) in this definition. We are unable to broaden the definition
as requested by some comments as those phrases (needed and present-day)
are the required elements of the definition in the Act. ``Observance or
renewal'' were incorporated into the definitions in the 1993 Proposed
Rule to incorporate language from the House and Senate Committee
reports relating to the Act (58 FR 31122 and 58 FR 31126; 1995 Final
Rule, 60 FR 62138). We have revised the definition in the existing
regulations to clarify the definition by removing the examples and
simplifying the sentence structure while retaining the required
elements of the definition from the Act and the legislative history.
We disagree that the definition as proposed is over-broad, a
reversal of Congressional intent, contrary to explicit statements in
the Congressional record, or in conflict with ARPA. We disagree that
under the definition, any object, or category of objects, that is
imbued with sacredness by a lineal descendant, Indian Tribe, or NHO,
without anything more, would satisfy the definition. All the elements
explicitly stated in the definition must be satisfied for an object to
be identified as a sacred object. The elements of the definition
require that an object be:
A specific ceremonial object,
Needed by a traditional religious leader,
For present-day adherents to practice traditional Native
American religion.
We also disagree that an object to be interred cannot be a sacred
object. A specific object may be deemed to be a sacred object if, based
on Native American traditional knowledge, in the past, the object was
ceremonially interred as a traditional Native American religious
practice, the object was subsequently disinterred, and today, it is
needed by a traditional Native American religious leader to renew the
ceremonial interment of the specific object by present-day adherents.
We agree with the comment that when NAGPRA was passed, Congress
made clear that not all objects could be deemed ``sacred'' or
``cultural patrimony.'' However, this comment reinforces the need for
deference to Native American traditional knowledge to ensure the rights
of lineal descendants, Indian Tribes, and NHOs the Act recognizes. The
addition of ``according to Native American traditional knowledge'' in
this definition is to ensure meaningful consideration of this
information during consultation.
We believe this addition to the various definitions of cultural
items will lead to more informed decision-making and help to avoid the
lengthy and costly delays in disposition or repatriation. In crafting
the definitions of cultural items, Congress clearly intended that the
definitions ``will vary according to the [T]ribe, village, or Native
Hawaiian community'' (S. Rpt. 101-473, at 4). Consultation, which is
required throughout the Act prior to any determination, is how an
Indian Tribe or NHO shares the information needed to identify a
cultural item. As we noted in the 1995 Final Rule, ``[i]dentification
of specific sacred objects or objects of cultural patrimony must be
done in consultation with Indian [T]ribe representatives, [NHOs,] and
traditional religious leaders since few, if any, museums or Federal
agencies have the necessary personnel to make such identifications''
(60 FR 62148).
54. Comment: We received one comment suggesting changes to the
definition of ``summary'' to include associated funerary objects.
DOI Response: We cannot add associated funerary objects to a
summary as that would be inconsistent with the Act. An inventory
pertains to human remains and associated funerary objects (25 U.S.C.
3003(a)), while a summary pertains to ``unassociated funerary objects,
sacred objects, or objects of cultural patrimony'' (25 U.S.C. 3004(a)).
55. Comment: We received five comments suggesting changes to the
definition of ``traditional religious leader.'' All five comments
requested broadening the definition so as not to limit it to
individuals who are responsible or who hold a leadership role. A
broader definition will allow Indian Tribes or NHOs to identify
traditional religious leaders. One comment requested we update the
words used in the term itself, as they are unnecessary, condescending,
and outdated.
DOI Response: As noted in the comments, this definition is not in
the Act but the term is used in the Act in the definition of sacred
object, the consultation requirements for inventories and summaries,
and the composition of the Review Committee. In the proposed
regulations, we intended to place the authority for identifying a
traditional religious leader in the hands of an Indian Tribe or NHO. We
understand the term may be offensive but given its use in the Act we
cannot change the term itself. We can, and have, modified the
definition to ensure a lineal descendant, as well as an Indian Tribe or
NHO, can identify any individual that the lineal descendant, Indian
Tribe, or NHO feels is the appropriate individual to serve in this
[[Page 86482]]
role. This addition of lineal descendant aligns with statements made by
the Department in the 1995 Final Rule regarding the role of ``a member
of an Indian Tribe'' in the existing definition of a traditional
religious leader (see 60 FR 62138, 60 FR 62151, and 60 FR 62155).
56. Comment: We received seven comments suggesting changes to the
definition of ``Tribal lands.'' Some of the comments objected to the
deletion in the proposed regulations of a sentence concerning
application of the Fifth Amendment to the Constitution to private land,
reasoning that the Department was proposing to exclude private land
within the exterior boundaries of a reservation from the application of
the Act and these regulations. Another comment was concerned that the
definition does not include Tribal trust lands outside reservation
boundaries. Other comments suggested the addition of an amendment to
the regulatory definition, incorporating our clarification in the
preamble to the proposed regulations that, under Supreme Court
precedent, the boundaries of Tribal trust land constituted an informal
reservation.
DOI Response: The Act defines ``Tribal land'' as ``(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[revaps]i into the Union (73 Stat. 4), including `available lands'
and `Hawaiian home lands' '' (25 U.S.C. 3001(15)). We decline to add
Tribal trust land to the common statutory definition in the regulations
because of the possibility of unforeseen consequences for Tribal
jurisdiction. We do, however, agree with the comments that the plain
language of the definition includes private land within the exterior
boundaries of the reservation (McGirt v. Oklahoma, 140 S. Ct. 659
(2019)). We also agree that Tribal trust land outside the exterior
boundaries of a formal reservation would, under the proposed
regulations and these regulations, be considered an ``informal
reservation,'' still qualifying as Tribal land for purposes of NAGPRA
(Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of
Oklahoma, 498 U.S. 505, 511 (1991)).
57. Comment: We received three comments requesting clarification to
the definition of ``United States.'' All three comments wanted to
understand how the Act and the regulations apply in the U.S.
territories.
DOI Response: The Act and these regulations only apply to the 50
states and the District of Columbia. Unlike other statutes referenced
by one of the comments, the Act does not provide a definition of the
United States that includes its territories and possessions. Any change
to this limitation would require Congressional action.
D. Section 10.3 Cultural and Geographical Affiliation
58. Comment: We received 27 comments on Sec. 10.3, generally. Of
that total, most comments generally supported the elimination of the
term ``culturally unidentifiable.'' A few comments specifically
objected to the removal of ``culturally unidentifiable'' and the use of
``Native American traditional knowledge'' and ``geographical
affiliation'' because of concerns that this would expand the scope of
what must be repatriated. Three comments requested more direct
participation by Indian Tribes and NHOs in determining cultural and
geographical affiliation and one comment requested that the Secretary
determine cultural and geographical affiliation.
DOI Response: These regulations do not use the term ``culturally
unidentifiable.'' Because Congress anticipated that not all human
remains could be determined to have cultural affiliation, Congress
required that the Review Committee develop specific actions for the
disposition of any human remains with no cultural affiliation and
thereby ensured that all Native American human remains would be subject
to the Act. For more on the development of these regulations, see 2007
Proposed Rule (72 FR 58582) and 2010 Final Rule (75 FR 12378). The
inclusion of Native American traditional knowledge as a type of
information that can identify cultural affiliation is consistent with
Congressional intent and ensures the stated purpose of these
regulations for deference to lineal descendants, Indian Tribes, and
NHOs in determinations of cultural affiliation. Other revisions to this
section, based on specific comments, are explained below.
In response to the noted objections, we disagree with their limited
characterization of the scope of what must be repatriated. To forego
the use of geographical information and Native American traditional
knowledge to limit the number of human remains or cultural items that
may be subject to repatriation is inconsistent with the Act, which only
provides three exceptions to the requirement for expeditious
repatriation (see 25 U.S.C. 3005).
59. Comment: We received 11 comments generally on the paragraph in
the proposed regulations under Sec. 10.3 on Information for cultural
affiliation (in the final regulations, this is renumbered Sec. 10.3(a)
and retitled Step 1: Collect information available.). Most comments
supported the changes to the types of information, and a few comments
requested additional changes to types of information.
DOI Response: We cannot make the requested changes to prioritize
the types of information or assign them relative values (1995 Final
Rule, 60 FR 62156). We have repeated the exact types of information
used for cultural affiliation as provided by Congress in alphabetical
order and added Native American traditional knowledge to call out this
newly defined type of expert opinion.
60. Comment: We received 23 comments on the paragraph in the
proposed regulations under Sec. 10.3 on Cultural affiliation (in the
final regulations, this is incorporated into the introductory paragraph
of Sec. 10.3). The comments objected to the use of ``preponderance of
the evidence'' rather than ``reasonable'' in this paragraph. Most of
these comments referenced the language of the Act, specifically the
difference between ``reasonably'' and ``reasonable belief'' at 25
U.S.C. 3001(2), 3002(a)(2)(C), 3003(d)(2)(C), on the one hand, and
``preponderance of the evidence'' at 25 U.S.C. 3001(3)(B),
3002(a)(2)(C)(2), 3005(a)(4). One comment asked what ``reasonable''
means.
DOI Response: We have replaced ``a preponderance of the evidence''
with ``reasonable.'' As stated in the proposed regulations, the
Department reiterates that ``a preponderance of the evidence'' is a
similar standard to a ``reasonableness'' requirement and both standards
require a ``more likely than not'' assessment (87 FR 63216). However,
we agree with the comments that these terms have different connotations
and that ``preponderance of the evidence'' has been misused and
misapplied in determining cultural affiliation. We agree with the
comments that the Act envisioned a simple and collaborative procedure
to determine cultural affiliation through consultation with Indian
Tribes and NHOs. Only when a museum or Federal agency was unable to
determine cultural affiliation would an Indian Tribe or NHO need to
demonstrate cultural affiliation through a preponderance of the
evidence. As this section of the regulations describes the initial
procedure for determining cultural affiliation, we have revised it to
[[Page 86483]]
only reflect the requirement to reasonably determine cultural
affiliation. In response to one comment, ``reasonable'' means both the
procedure to make a determination and the determination itself are ``in
accordance with reason,'' ``not extreme or excessive,'' and ``moderate,
fair'' (https://www.merriam-webster.com/dictionary/reasonable, accessed
12/1/2023).
61. Comment: We received 41 comments on the paragraph in the
proposed regulations under Sec. 10.3 titled Geographical affiliation
(in the final regulations, this is removed). Of that total, two
comments objected to broadening affiliation to include geography alone.
One comment appreciated the more inclusive term but was concerned about
making connections only based on geography. One comment requested that
archaeological and historical knowledge, especially of disruptions of
indigenous territories, be included as key pieces of evidence for
establishing geographical affiliation. Six comments supported the
paragraph as proposed.
A total of 33 comments requested the paragraph be removed in its
entirety, although these comments were supportive of clarifying that
cultural affiliation could be based on geography alone. Some comments
were concerned that geographical affiliation would leave out Tribal
knowledge and oral history. One comment was concerned that as proposed,
``geographical affiliation'' would disenfranchise Indian Tribes under
certain circumstances and provides fewer options than are currently
available by restricting evidence of geographical affiliation. Most of
the comments expressly requested that geographical affiliation be
incorporated into cultural affiliation. As proposed, the comments
expressed concern that geographical affiliation would not simplify
repatriation but bring new complications and loopholes to the process.
The comments requested the final regulations should develop an
efficient and less burdensome procedure and provide that, in the
absence of other evidence, cultural affiliation need only include one
type of information that reasonably points to a shared relationship
between an Indian Tribe and an identifiable earlier group.
DOI Response: We have removed the paragraph proposed at Sec. 10.3
titled Geographical affiliation. We have made related changes to other
paragraphs in Sec. 10.3 and renamed the entire section. We have
revised the text in the final regulations to reflect a step-by-step
procedure for determining cultural affiliation. We have required in the
step-by-step processes for disposition under Sec. 10.7 or repatriation
under Sec. Sec. 10.9 and 10.10 that when cultural affiliation is not
determined, the museum or Federal agency must briefly describe the
information considered under Sec. 10.3(a) and the criteria identified
under Sec. 10.3(b) to explain how the determination was made. We have
made clear in the definition of cultural affiliation, this section, and
the step-by-step processes for disposition or repatriation that
cultural affiliation must be identified either clearly by the
information available or reasonably by the geographic origin or
acquisition history of the human remains or cultural items.
The intent of these revisions is to realign the geographic
analysis, applied previously to culturally unidentifiable human remains
in the existing regulations, as part of the cultural affiliation
process. The same methods, analyses, sources, and evidence may inform
cultural affiliation determinations based on geographical information
as have been used in the past and as discussed in the proposed rule. We
agree with the voluminous comments that described museum and Federal
agency practices as overly expansive in designating human remains and
associated funerary objects as culturally unidentifiable. We believe in
most cases, sufficient information on geographic origin and acquisition
history exists and can be used to either clearly or reasonably identify
Indian Tribes or NHOs with cultural affiliation.
62. Comment: We received four comments supporting the paragraph in
the proposed regulations under Sec. 10.3 titled Multiple affiliations
(in the final regulations, this is renumbered Sec. 10.3(d) and
retitled Joint disposition or repatriation). Many other comments
suggested changing the title of the paragraph to Joint disposition or
repatriation.
DOI Response: We have accepted and adopted the suggested change in
the title of this paragraph.
63. Comment: We received 19 comments suggesting changes to the
paragraph in the proposed regulations under Sec. 10.3 titled Closest
affiliation (in the final regulations, this is renumbered Sec. 10.3(e)
and retitle Competing claims or requests). One comment objected to
museums and Federal agencies making determinations on the closest
affiliation. One comment objected to the priority order for NHOs as it
was too complex and may result in a family or small organization having
a priority over the Office of Native Hawaiian Affairs. Two comments
asked if the enumerated list reflected a priority and if two Indian
Tribes or NHOs might both be in a single category. One comment
requested guidance on how closest affiliation would be determined if
one Tribe's claim is based on geographic information and another
Tribe's claim is based on cultural practices. One comment requested it
be clear that museums and Federal agencies must determine the Indian
Tribe with the closest cultural affiliation and continually notify that
Indian Tribe, regardless of who might make a claim or a request.
Several comments requested the regulations be revised to bring all the
priority orders together into one provision and provided specific
redline changes to the proposed text.
DOI Response: We cannot change who is responsible for making
determinations on the closest cultural affiliation when, and only when,
there are competing claims or requests. This is required by the Act at
25 U.S.C. 3002(a) and 3005(e). Museums and Federal agencies are
responsible for making determinations under the Act and these
regulations, but must do so after consulting with lineal descendants,
Indian Tribes, and NHOs. Based on consultation with the Native Hawaiian
Community, it was our intention to give priority to a family or small
organization over the Office of Native Hawaiian Affairs when, and only
when, there are competing claims or requests. The enumerated lists are
intended to identify a priority order, and it is possible that two
Indian Tribes or NHOs might have the same priority. The priority order
distinguishes between different kinds of cultural affiliation and
places affiliation based on geographic information alone below other
kinds of cultural affiliation. There is no obligation for a museum or
Federal agency to determine the Indian Tribe or NHO with the closest
cultural affiliation unless and until there are competing claims or
requests. All Indian Tribes or NHOs with cultural affiliation have an
opportunity to make claims or requests prior to a disposition or
repatriation statement.
To avoid repetition and to clarify when closest cultural
affiliation must be determined, we have combined paragraph (c)(2) in
Sec. 10.3 in the proposed regulations titled Competing claims or
requests with paragraph (d) titled Closest affiliation to create a new
paragraph Sec. 10.3(e) Competing claims or requests. In conjunction
with the changes to Sec. 10.3 described above, we have added the
standard of ``preponderance of the evidence'' to this paragraph on
completing claims or requests. We cannot accept the suggestion to bring
the priority orders
[[Page 86484]]
together in this paragraph because the priority order established in
the Act for Federal or Tribal lands (25 U.S.C. 3002) is broader than
the priority order for the ``closest cultural affiliation'' identified
here. Where appropriate, we have referred to this paragraph in
Sec. Sec. 10.7, 10.9, and 10.10.
E. Subparts B and C
64. Comment: We received 53 comments on the regulatory steps for
consultation (Initiate consultation and Consult with requesting
parties) in Sec. Sec. 10.4, 10.9, and 10.10. Three comments supported
the requirement for museums and Federal agencies to initiate
consultation in these paragraphs. The largest number of comments (15)
requested we remove the requirement for consulting parties to submit a
written request to consult. In addition, 11 comments requested that the
invitation to consult include a clear statement that sensitive
information will not be requested, but if shared, the consultation
record will be protected from disclosure ``to any person for any
reason.'' Five comments requested changes to the two terms ``consulting
parties'' and ``requesting parties'' while one comment requested adding
to the list of ``consulting parties.'' Five comments requested
deference to Indian Tribes or NHOs on the timelines for consultation
and one comment requested deference to documentation submitted by
Indian Tribes or NHOs during consultation. Four comments requested
changes to ensure consultation is not cutoff with publication of a
notice. Three comments questioned the use of good-faith effort in these
paragraphs. Two comments questioned how consultation can proceed where
consensus cannot be reached. Two comments recommended adding an upfront
fee payment for initiating consultation, like the Federal
Communications Commission. One comment stated that consultation is not
streamlined or simplified in these regulations.
DOI Response: We have removed the requirement for a consulting
party to submit a written request to consult and, consequently, the
cutoff for requests to consult before publication of a notice.
Correspondingly, we have removed the requirement for a response to the
request to consult within 10 days. As noted in the proposed rule, the
written request to consult was a necessary precursor to require a
museum or Federal agency to respond by a certain date. While a written
request to consult is no longer a requirement, we would recommend a
consulting party submit a written request to consult to ensure there is
a clear record in case the museum or Federal agency does not respond.
As noted in Comment 5, we cannot dictate how a museum or Federal
agency requests or records sensitive information it receives during
consultation. We can, and have, specifically limited the information
needed to comply with these regulations, and we encourage lineal
descendants, Indian Tribes, and NHOs to request that museums and
Federal agencies ensure that information of a particularly sensitive
nature is not made available to the public, pursuant to otherwise
applicable law. Since 1995, the Department has recommended that museum
or Federal officials ensure that sensitive information does not become
part of the public record by not collecting, or writing down, such
information in the first place (1995 Final Rule, 60 FR 62154). We
recommend that in a response to an invitation to consult, lineal
descendants, Indian Tribes, and NHOs stipulate their requirements for
protecting sensitive information shared during consultation, such as
prohibiting any audio or video recording of consultation, requiring use
of a specific note-taker or transcriptionist, or conducting
consultation in a separate facility with limited attendance.
We have made clarifying edits to the paragraphs in Sec. Sec. 10.4,
10.9, and 10.10, including the requested change from ``requesting
parties'' to ``consulting parties'' throughout. We note that consulting
parties are those with potential cultural affiliation, but this should
not impact the role of removed and aboriginal land Indian Tribes as
consulting parties. Based on geographical information, removed and
aboriginal land Indian Tribes are those with potential cultural
affiliation. We have not added a requirement for payment of an upfront
fee in the initiation of consultation. We recommend that in a response
to an invitation to consult, lineal descendants, Indian Tribes, and
NHOs stipulate their requirements for conducting consultation,
including any required financial support.
In response to other comments, we have made changes to the
paragraphs in Sec. Sec. 10.4, 10.9, and 10.10 to correspond to changes
in the definition of consultation which directly addresses comments on
deference, good-faith, and reaching consensus. We have changed
recommendations to preferences on the timeline and method for
consultation, but we cannot require deference in this instance because
the timeline may be dictated by other requirements in the regulatory
processes.
65. Comment: We received 20 comments on the regulatory steps for
submitting a notice for publication and for receiving and considering a
claim for disposition or a request for repatriation in Sec. Sec. 10.7,
10.9, and 10.10. Four comments supported the timeline for the National
NAGPRA Program to approve or return a notice submission but requested
that a timeline be added requiring museums, Federal agencies, or DHHL
to submit a revised notice. Five comments requested clarification on
the statements in Sec. Sec. 10.7 and 10.10 that any claim or request
received no later than 30 days after publication of a notice must be
considered, noting that the preceding sentence in both sections seemed
contradictory since any claim or request must be received before a
disposition or repatriation statement is sent. One comment requested
grammatical edits to clarify the criteria for a claim for disposition
or request for repatriation. Seven comments in one submission
repeatedly objected to the 30-day timeframe for lineal descendants,
Indian Tribes, or NHOs to submit claims or requests following a notice
publication in Sec. Sec. 10.7, 10.9, and 10.10. On the other hand, one
comment stated submission of claims or requests should be limited to
the 30 days after publication notice and requests received after that
date should not be considered. One comment disagreed with the
provisions for claims or requests to be received before publication of
a notice while another comment felt these provisions would ensure more
flexibility for lineal descendants, Indian Tribes, and NHOs.
DOI Response: We do not intend to impose deadlines on lineal
descendants, Indian Tribes, or NHOs to submit claims for disposition or
requests for repatriation. Under these regulations, a notice is
required to identify the date (30 days from the date of publication)
after which a disposition or repatriation statement may be sent to a
claimant or a requestor. We intended to clarify in these provisions
that any claim or request submitted during that 30-day period must be
considered since a disposition or repatriation statement may be sent
immediately after that date. With the disposition or repatriation
statement, the museum or Federal agency divests itself of any interest
in the human remains or cultural items and cannot accept or consider a
request from any other party.
Therefore, while there is no timeline for lineal descendants,
Indian Tribes, and NHOs to act, a failure to do so before a disposition
or repatriation
[[Page 86485]]
statement is sent is an irrevocable waiver of any right to make a claim
or a request (see Sec. 10.1(g) and Comment 20). For example, once a
notice of any kind publishes in the Federal Register, there is a 30-day
period for any party to make a claim for disposition or a request for
repatriation. On day 31, if a disposition or repatriation statement is
sent to a claimant or requestor, any additional claims or requests will
not be considered.
We have added a timeline (14 days or two weeks) for a museum or
Federal agency to resubmit a notice that is returned to them under
Sec. Sec. 10.7, 10.9, or 10.10. We have adjusted the timeline (from 15
days to 21 days) for the National NAGPRA Program to accept or return a
notice. This change is related to the change in Sec. 10.1(f) from
business days to calendar days and does not change the overall timeline
(3 weeks). We have removed the sentence stating that any claim or
request received no later than 30 days after publication of a notice
must be considered. While accurate, we understand the confusion this
sentence causes, especially considering the objections to the 30-day
deadline. We have made grammatical changes to the criteria to ensure
clarity.
We have not made changes to the date of a claim or request received
before publication of a notice (same date the notice was published). We
agree that this provides flexibility for lineal descendants, Indian
Tribes, and NHOs. In addition, we feel this provides the opportunity
for lineal descendants, Indian Tribes, and NHOs to dictate the
timeline, as much as they can, after publication of a notice of any
kind. For example, in a claim for disposition or a request for
repatriation, the lineal descendant, Indian Tribe, or NHO could request
that the disposition or repatriation statement be sent on day 31 after
publication of any kind. If any competing claims or requests are
received during the 30-day period, this request could not be
accommodated. If no competing claims or requests are received, nothing
in these regulations would prevent the disposition or repatriation
statement from being sent on day 31. In addition to competing claims or
requests, other factors outside of these regulations, such as legal
review of the statement or deaccession policies, may require additional
time before sending the disposition or repatriation statement.
If no competing claims or requests are received, 31 days is the
minimum amount of time between any kind of notice publication and
sending a disposition or repatriation statement. Under Sec. Sec. 10.7
and 10.10, the maximum amount of time between notice publication and
sending a disposition or repatriation statement depends on when a claim
for disposition or request for repatriation is received. No later than
90 days after responding to a claim for disposition or a request for
repatriation, a disposition or repatriation statement must be sent.
66. Comment: We received 22 comments on the regulatory steps for
disposition or repatriation under Sec. Sec. 10.7, 10.9, or 10.10. Of
that total, 13 comments requested that the regulations require
documentation or notification of physical transfer after a disposition
or repatriation statement is sent. Four comments made a similar request
for documentation of the discretionary physical transfer or reinterment
of human remains or cultural items under Sec. Sec. 10.7 or 10.10
specifically so, in the future, Indian Tribes or NHOs with cultural
affiliation would be able to request the return of those human remains
or cultural items. Three comments requested disposition or repatriation
statements be published in the Federal Register specifically to further
support the reviewability of disposition or repatriation statements by
Federal agencies. On the other hand, one comment requested a ``paper
transfer'' procedure be developed or explained for Indian Tribes or
NHOs who do not have access to a curation facility or other means to
physically and honorably receive human remains or cultural items. One
comment requested clarification as to what kinds of agreements might be
entered into after a disposition or repatriation statement is sent. An
additional 14 comments made a similar request to include physical
transfer in the definitions of ``disposition'' or ``repatriation'' (see
Comment 51).
DOI Response: We have not made the requested changes related to
physical transfers or reinterments for several reasons. We have made
changes to the definition of repatriation and to what is required after
a disposition or repatriation statement is sent.
First, there is a need to balance the requests for additional
documentation and notification with the protection of sensitive
information. Any document submitted to the National NAGPRA Program is
generally subject to release under the Freedom of Information Act.
Requiring documentation of physical transfers or reinterments to be
submitted to the National NAGPRA Program or published in the Federal
Register comes with added risks of disclosure of sensitive information.
As we advise museums and Federal agencies, the best way to prevent
sensitive information from being released is to not write it down in
the first place.
Second, as discussed in the response to comments on the definitions
in Comment 51, it is difficult for these regulations to require
physical transfer either as a part of or after the regulatory processes
for disposition or repatriation. The term physical transfer is used in
these regulations to provide for an action that, as desired by a Tribe
or NHO, may occur, but is not required to occur, after sending a
disposition or repatriation statement. While we only received one
comment indicating this, we know that many lineal descendants, Indian
Tribes, and NHOs prefer to not complete physical transfer immediately
or at all. Therefore, as in the proposed regulations, we have retained
a separation between the disposition or repatriation statements and
physical transfer, and we have not attached any requirements for
reporting on physical transfer in these regulations. Documentation of
physical transfer is required but is not sent to the National NAGPRA
Program or published in the Federal Register.
Third, the Act does not provide for or require the involvement of
the Secretary in the physical transfer or in any other procedure after
publication of a notice. The proposed regulations provided, and these
regulations retain, a new requirement for the Secretary to receive
copies of disposition or repatriation statements. This new requirement
is based on the 2010 Government Accountability Office report on the
implementation of the Act, and the Department will retain these
documents with the other compliance documents in the disposition or
repatriation processes. However, we do not believe the Department
should collect any additional documentation on the physical transfers
or publish these disposition or repatriation statements. We affirm our
response to consultation in 2021 that publication in the Federal
Register would be costly, inefficient, and of little relative value.
The purpose of publishing a notice under the Act and these regulations
is to allow additional parties to come forward. Disposition or
repatriation statements are the final step in regulatory processes and
recognize the rights of a lineal descendant, Indian Tribe, or NHO in
the human remains or cultural items. These statements cannot be
challenged or revoked. Publication of those statements might lead to
confusion about which type of publication is appealable. Although not
incorporated into the regulatory text, the National NAGPRA Program will
record information on disposition or repatriation statements it
receives from
[[Page 86486]]
both museums and Federal agencies and will provide that information in
its databases or upon request.
The Act provides very little instruction for this significant and
important part of the processes. The section of the Act titled
``Repatriation'' (25 U.S.C. 3005) focuses on the circumstances under
which human remains or cultural items must be ``expeditiously
returned'' after a request from a lineal descendant, Indian Tribe, or
NHO. The Act requires that the return of human remains or cultural
items be ``in consultation with the requesting lineal descendant or
[T]ribe or organization to determine the place and manner of delivery
of such items'' (25 U.S.C. 3005(a)(3)). Congressional reports state
that after a notice, a museum or Federal agency must ``make
arrangements to return such items if the appropriate [T]ribe made a
request'' (H. Rpt. 101-877, at 11) and must allow for ``mutually
acceptable alternative[s] to repatriation'' (S. Rpt. 101-473, at 8).
The existing regulations refer to ``transfer custody'' of human
remains or cultural items from Federal land. For holdings or
collections of human remains or cultural items with cultural
affiliation, only ``repatriation'' is used, as in consultation must
occur on the place and manner of the repatriation and the content and
recipients of all repatriations must be permanently documented. Under
the 2010 regulations, ``transfer control'' is used repeatedly to
describe the process for culturally unidentifiable human remains.
We sought to clarify this in the draft revisions for consultation
in 2021 where we provided two separate terms: ``disposition'' and
``repatriation'' and neither term included physical transfer. Transfer
and physical transfer were used elsewhere after disposition or
repatriation statements. In 2021, we did not receive any related
comments on physical transfer. In the proposed regulations, we did not
address the separation of disposition or repatriation from physical
transfer and retained the procedures for physical transfer that, as
desired by a Tribe or NHO, may occur, but are not required to occur,
after disposition or repatriation (2022 Proposed Rule, 87 FR 63246, 87
FR 63250, and 87 FR 63255).
We appreciate and understand the significance of physical transfer
or other desired outcomes for lineal descendants, Indian Tribes, and
NHOs after museums and Federal agencies complete the regulatory
processes by sending a disposition or repatriation statement. We do not
intend these regulations to indicate that completion of the regulatory
processes is the end goal for lineal descendants, Indian Tribes, NHOs,
museums, or Federal agencies. We know that for many lineal descendants,
Indian Tribes, and NHOs, this work is not finished until their
ancestors and other relatives are home or at rest. For many museums and
Federal agencies, this work is not finished until the holding or
collection is in the hands of its rightful caretakers.
However, we also know that the desired outcome of the disposition
or repatriation processes vary greatly among lineal descendants, Indian
Tribes, and NHOs. If or when physical transfer occurs depends on many
factors, including spiritual, cultural, or religious observances, which
cannot and should not be dictated by a regulatory process. It is,
therefore, difficult for these regulations to require physical transfer
either as a part of or after the regulatory processes. In response to
the request for clarification on agreements after disposition or
repatriation, any kind of agreement could occur after a disposition or
repatriation statement is sent. We provided this language from the Act
to ensure it was clear that once a lineal descendant, Indian Tribe, or
NHO holds all rights and interests in the human remains or cultural
items, what comes next is not in any way dictated by these regulations.
We have removed ``the care or custody'' to ensure there is no implied
limitation on such an agreement. Examples of agreements after
disposition or repatriation include curation agreements, agreements to
reinter human remains or cultural items, or agreements to analyze human
remains or cultural items. The terms of the agreement, however, are at
the discretion of the lineal descendant, Indian Tribe, or NHO.
67. Comment: We received 20 comments on the regulatory steps for or
after disposition or repatriation statements in Sec. Sec. 10.7, 10.9,
and 10.10. Two comments related to the requirements for consultation on
the care, custody, and physical transfer of human remains or cultural
items. One comment requested that we add that museums or Federal
agencies cannot dictate care, custody, or physical transfer before or
after a disposition or repatriation statement is sent. One comment
recommended based on experience that consultation on care, custody, or
physical transfer only occur after a disposition or repatriation
statement is sent. One comment requested that the regulations require
museums and Federal agencies to pay for care and physical transfer of
human remains or cultural items. The other comments suggested the
following language changes:
Replace physical ``transfer'' with physical
``repatriation;''
Replace ``requestors'' with ``claimants;''
Replace ``most appropriate claimant/requestor'' with
``closest cultural affiliation claimants'' and cite to Sec. 10.3 of
this part;
Replace disposition or repatriation ``statements'' with
``documents;''
Replace ``care, custody'' with ``the appropriate duty of
care, custody;'' and
Replace ``delivery'' with ``escort'' to be sensitive to
the nature of human remains and cultural items.
DOI Response: We have made the requested changes to require a
museum or Federal agency to consult with a requestor on custody and
physical transfer after a disposition or repatriation statement is
sent. Nothing under the Act or these regulations allow a museum or
Federal agency to dictate any action after a disposition or
repatriation statement is sent. Regardless of the disposition or
repatriation statement, a museum or Federal agency is obligated to
exercise a duty of care for human remains or cultural items in its
custody or in its possession or control under Sec. 10.1(d) and to
defer to lineal descendants, Indian Tribes, and NHOs. We cannot require
museums or Federal agencies pay for care or physical transfer.
We have not changed ``physical transfer'' for reasons explained in
Comment 66 on the intentional difference between disposition or
repatriation and physical transfer. We have not changed ``requestor''
to ``claimants.'' We have intentionally used the terms ``claim'' and
``claimant'' to refer to the disposition process in Subpart B and
``request'' and ``requestor'' to refer to the repatriation process in
Subpart C. We cannot make the requested change from ``most appropriate
claimant/requestor'' because while the Indian Tribe or NHO with the
closest cultural affiliation under Sec. 10.3 is one possible most
appropriate claimant/requestor, competing claims for disposition or
repatriation might involve lineal descendants or other Indian Tribes
with a priority for disposition. We have not changed statements to
documents. Statements are used in limited instances in these
regulations and indicate a specific kind of document. Document is used
more broadly.
We have removed ``care'' in any use outside of the duty of care. We
have revised the documentation of physical transfer to not require any
specific information. While physical transfer
[[Page 86487]]
must be documented, it is up to the lineal descendant, Indian Tribe, or
NHO to dictate what the documentation should contain to ensure
protection of sensitive information.
F. Section 10.4 General
68. Comment: We received seven comments requesting changes to
Subpart B-Protection of human remains or cultural items on Federal or
Tribal lands. Six of these comments requested that the regulations
acknowledge the application of the Act to human remains or cultural
items removed from Federal or Tribal lands that are subject to the
disposition and trafficking provisions of the Act. The comments request
a procedure by which Indian Tribes can report human remains and
cultural items obtained in violation of the Act and send a clear signal
to third parties that it is a crime to sell human remains or cultural
items under NAGPRA and other statutes, such as the Archaeological
Resources Protection Act (ARPA). The comments specifically request that
references to human remains and cultural items ``on'' Federal or Tribal
lands be expanded to human remains or cultural items ``located on or
removed from'' such lands. One comment requested stronger requirements
in the regulations to protect Tribal cultural heritage and sacred sites
from theft or damage on Federal lands.
DOI Response: We cannot add the requested procedures to these
regulations. We agree that the criminal provisions of the Act (18
U.S.C. 1170(a) and (b)) apply to human remains or cultural items as
defined in the Act and these regulations. The Secretary and the
Department do not have jurisdiction for implementing those provisions
of the Act and cannot add them to these regulations. Any human remains
or cultural items located on or removed from Federal or Tribal lands
after November 16, 1990, are subject to these regulations under Subpart
B. If human remains or cultural items are obtained illegally from
Federal or Tribal lands, the processes described in these regulations
do not apply until the human remains or cultural items are recovered by
Federal law enforcement agents and any criminal procedures have
concluded. The title of Subpart B highlights the procedures in
Sec. Sec. 10.4, 10.5, and 10.6 that provide protection to human
remains or cultural items that are located on Federal or Tribal land.
The disposition procedures in Sec. 10.7 apply to any human remains or
cultural items that are removed from Federal or Tribal land. We do not
believe changing ``on'' to ``located on or removed from'' will have any
impact on the application of these regulations. We are unable to add
any requirements to these regulations that exceed the requirements
provided in the Act for protection of human remains or cultural items
on Federal or Tribal land.
69. Comment: We received 15 comments on Sec. 10.4, generally. Of
that total, 14 comments suggested changes to the section while one
comment supported it as proposed. Ten comments requested a separate and
simplified procedure for boarding school cemeteries on Federal lands,
such as (1) consult, (2) develop a plan of action, and (3) disinter,
with no requirement for an ARPA permit. One comment objected to the
revisions and found the text confusing and unclear. One comment stated
that these regulations should not require actions by Indian Tribes on
Tribal lands. One comment suggested removing this section entirely and
relying on the provisions of the National Historic Preservation Act
(NHPA) because ``[t]here is no need for a plan of action independent of
that already stipulated for historic preservation requirements in the
NHPA'' (see NPS-2022-0004-0116). One comment requested a procedure for
Indian Tribes to make requests for a plan of action or comprehensive
agreement, to report non-compliance of Federal agencies, and to file
suit under the Administrative Procedures Act.
DOI Response: We cannot make the requested change for boarding
school cemeteries. As stated in the proposed regulations, the Act does
not require a Federal agency to engage in an excavation of possible
burial sites (Geronimo v. Obama, 725 F. Supp. 2d 182, 187, n. 4 (D.D.C.
2010)). However, the excavation provisions of the Act and these
regulations apply to the human remains and cultural items disinterred
from cemeteries on Federal or Tribal lands (2022 Proposed Rule, 87 FR
63205). The suggested simplified procedure is already provided for in
these regulations. Any Indian Tribe or NHO may request the excavation
of a burial site on Federal lands and, if the Federal agency agrees, a
plan of action, including consultation with lineal descendants, Indian
Tribes, or NHOs, is required. These regulations cannot require that a
Federal agency agree to excavate a burial site nor can we unilaterally
state an ARPA permit is not required for excavations at boarding school
cemeteries. However, we believe these regulations provide a streamlined
procedure for excavations of boarding school cemeteries through
consultation and a plan of action, and the Department encourages any
Federal agency that manages boarding schools and cemeteries on Federal
lands to consult with lineal descendants, Indian Tribes, and NHOs on
identification, disinterment, and repatriation of Native American
children. The Department stands ready to assist Federal agencies,
Indian Tribes, and NHOs to the fullest extent of its authority.
We have made changes to the first paragraph in this section to
clarify the responsibilities under this section and this Subpart. We
cannot remove the requirement for Indian Tribes to take actions on
Tribal lands as these actions are required by the Act itself. We cannot
delete this section and rely on provisions in the NHPA because the
scope of the Act and these regulations can be greater than the NHPA
requirements. However, we encourage Federal agencies to consider
coordinating requirements under these regulations with any other
required consultation and planning efforts for their planned activities
on Federal lands. Nothing in these regulations would prevent an Indian
Tribe from requesting a plan of action or comprehensive agreement from
a Federal agency, and these regulations require a plan of action for
any discovery or excavation on Federal lands. Federal agencies are
required to comply with these regulations for any human remains or
cultural items on Federal lands. Federal law provides 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 regulations). 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. If the alleged failure to comply is a final agency action (see
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).
70. Comment: We received eight comments on Sec. 10.4(a) requiring
designation of an appropriate official. One comment supported the
change, noting that it would increase transparency. One comment
suggested designation of appropriate officials be reported to the
Manager, National NAGPRA Program. Two comments requested a training
requirement be added for Federal agency employees. Four comments
questioned whether the Bureau of Indian Affairs (BIA) should designate
the appropriate official for Tribal lands in Alaska and the continental
United States rather than an Indian Tribe. Two of these comments
[[Page 86488]]
stated that because the BIA is currently responsible for discovery,
excavation, and disposition on Tribal lands in Alaska and the
continental United States, this change would require the BIA to notify
all private landowners within the exterior boundaries of reservations
that authority on those lands has changed from the BIA to the relevant
Indian Tribe. The other two comments strongly objected to this change
and requested that ``. . . NAGPRA and its implementing regulations
designate BIA as the exclusive regulatory authority over the discovery,
excavation, and disposition of Native American cultural items within
the exterior boundaries of any Indian reservation. Only after this
necessary step is taken should transfer of that jurisdiction to the
Tribes be contemplated'' (see NPS-2022-0004-0151).
DOI Response: We decline to make the requested changes. Each Indian
Tribe, Federal agency, or DHHL may designate appropriate officials in
any way that best suits its organizational structure. For some Federal
agencies, like the National Park Service, the appropriate officials may
be the Superintendent of each park unit. The National NAGPRA Program
cannot and should not track or record those designations. Each Federal
agency is also responsible for ensuring the appropriate official
receives the necessary training.
We disagree that the Act, the existing regulations, or the other
cited regulations designate that the BIA is responsible for discovery,
excavation, and disposition on Tribal lands in Alaska and the
continental United States. In the Act, Congress specifically required
that a person discovering human remains and cultural items notify ``the
Secretary of the Department, or head of any other agency or
instrumentality of the United States, having primary management
authority with respect to Federal lands and the appropriate Indian
[T]ribe or Native Hawaiian organization with respect to [T]ribal
lands'' 25 U.S.C. 3002(d)(1) (emphasis added). Nowhere does the Act
mention the Bureau of Indian Affairs. We agree that Indian Tribes have
discretion under the existing regulations in responding to a discovery
on Tribal lands and that, also under the existing regulations, the BIA
is responsible for issuing an ARPA permit on private lands that are
also Tribal lands. Neither the existing regulations nor the Secretary
assign the BIA responsibility for consultation, obtaining consent, or
disposition of human remains or cultural items on Tribal lands. As the
proposed regulations stated, the clarification of the appropriate
official for Tribal lands is to improve consistency with the Act by
requiring certain actions by Indian Tribes, NHOs, and DHHL on Tribal
lands. We note that other comments discussed below were supportive of
Indian Tribes managing and making decisions regarding discoveries or
excavations on their Tribal lands under Sec. Sec. 10.5 and 10.6 of
this part (see NPS-2022-0004-0119, as one example).
Furthermore, the BIA does not have a record or list of private
landowners within the exterior boundaries of a reservation, and the
Federal Government has no obligation, besides those instituted by
Congress in the Administrative Procedure Act, to inform the public of
changes in laws or regulations.
71. Comment: We received 27 comments on Sec. 10.4(b) Plan of
action. Of that total, 21 comments suggested changes to the paragraph
while six comments supported it as proposed. Four comments requested a
statement that plans of action and comprehensive agreements are not
required on Tribal lands. Seven comments suggested changes to the
likelihood of a discovery or excavation to include deference to Indian
Tribes or NHOs. One comment requested that a plan of action be required
before a discovery occurs. Several comments requested specific changes
to requirements of a plan of action in paragraph (b)(3) of this
section. One comment requested clarification on how a plan of action
accommodates immediate reburial of human remains or cultural items. One
comment objected to leaving or relocating human remains or cultural
items without adequate protection or security. Two comments requested
leaving or relocating human remains or cultural items be required in
all cases. One comment requested archaeological recording and analysis
be added back into the plan of action. One comment requested adding
identification of human remains or cultural items to the plan of
action. Three comments requested Indian Tribes and NHOs be required to
sign the plan of action.
DOI Response: We have clarified that when a Federal agency or DHHL
is responsible for a discovery or excavation on Federal or Tribal
lands, a plan of action is required. A plan of action is not required
for a discovery or excavation on Tribal lands when the Indian Tribe or
NHO has responsibility. We hope this clarifies that when an Indian
Tribe delegates its responsibility for a discovery or excavation on
Tribal lands to the BIA or another Federal agency, the BIA or Federal
agency must approve and sign a plan of action. In Hawai[revaps]i, DHHL
must approve and sign a plan of action on Tribal lands unless a NHO
agrees to be responsible for discoveries or excavations on the Tribal
lands of an NHO. In that case, a plan of action is not required on
Tribal lands of an NHO.
We have added the phrase ``in consultation with Indian Tribes and
Native Hawaiian organizations'' to the likelihood of a discovery or
excavation for a planned activity. We cannot strengthen this
requirement further because Federal agencies and DHHL may have certain
obligations under land management authorities to allow planned
activities even when an Indian Tribe or NHO objects. However, Federal
agencies and DHHL also have consultation responsibilities for land
management activities that should inform when a planned activity is
likely to result in a discovery or excavation subject to these
regulations. We cannot require a general plan of action be developed by
all Federal agencies and DHHL in case of discovery, but we agree with
the comment that a plan of action is a useful tool to ensure efficiency
and effectiveness in responding to a discovery. We believe that the
requirement for a plan of action after a discovery will encourage
Federal agencies and DHHL to develop these plans.
The comments requesting changes to the content of a plan of action
demonstrate the diversity of opinions on protecting and caring for
human remains or cultural items on Federal or Tribal lands. Because of
this diversity of opinion, we have not made the requested changes to
the minimum requirements for a plan of action to ensure flexibility.
The requirements for a plan of action must be broad and allow for
modification to specific circumstances and preferences of consulting
parties. These are minimum requirements for a plan of action and any
consulting party can request additional elements be added to a plan of
action during consultation. For example, a plan of action might
indicate that the consulting parties prefer protection of human remains
or cultural items in situ or by relocating them in a nearby location.
Alternately, a plan of action might require the immediate removal of
human remains or cultural items to a secure, protected facility. In
other cases, a plan of action might instruct the appropriate official
to take no action upon the discovery of human remains or cultural items
to allow for natural exposure or erosion.
[[Page 86489]]
We cannot require a plan of action be signed by Indian Tribes or
NHOs, but an Indian Tribe or NHO can request to sign a plan of action.
The appropriate official must approve and sign the plan of action by
the deadlines required under Sec. Sec. 10.5 and 10.6 and identify
disposition by the deadlines required under Sec. 10.7 with or without
receiving a response to the invitation to consult. These regulations do
not and cannot require a lineal descendant, Indian Tribe, or NHO to
respond to the invitation to consult.
72. Comment: We received 14 comments on Sec. 10.4(c) Comprehensive
agreement. Two comments supported the paragraph as proposed while 12
comments suggested changes to it. Most of the comments requested more
detail or additional requirements be added to this paragraph. Some
comments requested a requirement for comprehensive agreements to be
renewed on a regular basis. A few comments requested Tribal policy
should be substituted for a comprehensive agreement if applicable. One
comment asked if Indian Tribes could execute comprehensive agreements
with other Indian Tribes. One comment stated comprehensive agreements
should not be promoted by these regulations because a well-crafted plan
of action works better than a comprehensive agreement.
DOI Response: The diversity of opinion on what a comprehensive
agreement should contain is precisely why we decline to make any
changes to this paragraph. The comprehensive agreement, like the plan
of action, is necessarily broad and includes only the minimum
requirements. As the comprehensive agreement is at the discretion of
the parties involved, these regulations should not dictate the content
or nature of the agreement. Comprehensive agreements should contain
whatever terms or requirements the parties wish it to contain beyond
the minimum requirements of a plan of action.
G. Section 10.5 Discovery
73. Comment: We received three comments on Sec. 10.5 Discovery,
generally. One comment supported the section as proposed and two
comments requested clarification on identifying if discovered human
remains or cultural items are Native American.
DOI Response: We have not made any changes. Consistent with the
Act, this section applies only in the case where a person knows or has
reason to know that the human remains are Native American. Whether a
person knows or has reason to know that the human remains are Native
American is case sensitive. We note that even where a person does not
know or have reason to know that the human remains are Native American,
other laws addressing the discovery of human remains likely will apply,
particularly for forensic purposes. In such cases, the appropriate
official would identify whether the human remains are Native American
and, if Native American, would notify the appropriate Indian Tribes or
NHOs of the discovery. As noted in the 1995 Final Rule the drafter
considered any requirement for requiring the complete professional
identification of inadvertently discovered human remains, funerary
objects, sacred objects, or objects of cultural patrimony prior to
notification of the responsible Federal or Indian Tribe officials to be
``officials inconsistent with the statutory language and the
legislative history. (60 FR 62143)
74. Comment: We received six comments on Table 1 to Sec. 10.5(a):
Report a discovery on Federal or Tribal lands. Three comments requested
changes to the last row of the table related to certain Federal lands
in Alaska and seem to reference earlier drafts of these regulations
rather than the proposed regulations. One comment requested that Indian
Tribes be identified as the appropriate official for Federal, State,
county, or private lands near Tribal lands.
DOI Response: We cannot make the requested change to make Indian
Tribes the appropriate official for Federal lands, but we note that any
Indian Tribe with potential cultural affiliation is the additional
point of contact on Federal lands. This subpart only applies to
discoveries on Federal or Tribal lands. Discoveries on State, county,
or private lands are subject to the laws of the State or county.
We previously revised Table 1 to Sec. 10.5(a) based on similar
input we received during consultation in 2021. We used the exact
language from the Act to describe the additional point of contact for
Federal lands in Alaska selected but not yet conveyed under the Alaska
Native Claims Settlement Act (ANCSA). For all other Federal lands in
Alaska, the Indian Tribe with potential cultural affiliation should be
notified and an Alaska Native Corporation organized under ANCSA is only
notified when the Federal land has been selected but not yet conveyed.
Based on the comments, we have removed ``or group'' from the table as
that term is functionally obsolete following the recognition of Indian
Tribes in Alaska.
75. Comment: We received four comments in one submission stated
that the proposed regulations impermissibly require private parties to
notify an ambiguous ``additional point of contact'' of a discovery of
Native American human remains or cultural items on Federal lands. The
additional point of contact is ``any Indian Tribe or Native Hawaiian
organization with potential cultural affiliation to the human remains
or cultural items, if known.'' According to the comment, the Act is
unambiguous that notification of a discovery on Federal lands is
limited to the Federal land managing agency.
DOI Response: We have not made a change. During consultation in
2021, we received comments requesting the addition of Indian Tribes and
NHOs as additional points of contact for reporting a discovery on
Federal lands. We disagree with the comment that this provision is
impermissible and ambiguous. While the Act is the primary authority for
the issuance of regulations implementing and interpreting the Act's
provisions, Congress authorized the Secretary to make such regulations
for carrying into effect the various provisions of any act relating to
Indian affairs (25 U.S.C. 9). As 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 this provision 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)). The additional point of contact language is not ambiguous. Not
only does this notification requirement only apply to a discoverer who
knows of an Indian Tribe or NHO with potential cultural affiliation,
but the reporting requirement also only applies to a discoverer who
knows, or has reason to know, that Native American human remains or
cultural items have been discovered. Whether a person knows or has
reason to know that the human remains or cultural items are subject to
these regulations is case sensitive. In cases involving a planned
activity on Federal lands, a person performing the activity will have
reason to know that discovered human remains or cultural items are
subject to these regulations and most likely also will know of an
Indian Tribe or NHO with potential cultural affiliation based on the
required plan of action.
76. Comment: We received five comments on Sec. 10.5(a) Report any
discovery. Of that total, three comments suggested changes to the
paragraph while two comments supported it. Two comments requested
requiring telephone notification while one
[[Page 86490]]
comment asked if an email qualifies as written documentation of the
discovery.
DOI Response: We have added a requirement for in-person or
telephone notification to the first sentence requiring immediate
reporting of the discovery. Written documentation of the discovery is
required to attach the rest of the timelines in this section. As
explained elsewhere and in Sec. 10.1(e) of this part, written
documents may be sent by email, with proof of receipt, or by other
methods of delivery.
77. Comment: We received nine comments suggesting changes to Sec.
10.5(b) Cease any nearby activity. Most of these comments requested
changes to align this paragraph with the preceding paragraph and not
impose any unintentional limits on the kind of activity that must be
ceased upon a discovery.
DOI Response: We have revised this paragraph to follow and refer to
the preceding paragraph. We have removed the introductory sentence,
which is already included in Sec. 10.4 of this part, so as not to
unintentionally limit the kinds of activities that must be ceased upon
a discovery. As suggested by one comment, we have added that the
written documentation of the discovery also include any potential
threats to the discovery.
78. Comment: We received nine comments on Sec. 10.5(c) Respond to
a discovery. Of that total, six comments requested changes to text in
earlier drafts of these regulations rather than to the proposed
regulations. Two comments requested strengthening the requirement to
report the discovery to additional points of contact to initiate
consultation. One comment requested an explanation of what is required
under this paragraph on Tribal lands.
DOI Response: We already addressed the concerns expressed by six
comments in the proposed regulations. The proposed regulations require
the appropriate official to respond to a discovery no later than three
days after receiving written documentation. The appropriate official is
required to report the discovery to any additional point of contact,
which would be any Indian Tribe or NHO with potential cultural
affiliation. The proposed regulations require the Federal agency or
DHHL prepare and approve a plan of action, which includes consultation,
for any discovery. We agree with the two comments that requested a
stronger requirement in the paragraph to initiate consultation. We have
made changes to paragraph (c)(1)(iii).
To clarify what this paragraph requires on Tribal land, we provide
the following example: A film production company has permission from an
Indian Tribe to film on lands within the exterior boundaries of the
Indian Tribe's reservation. The written permission from the Indian
Tribe requires the production company to immediately report any
discovery of human remains or cultural items to the Director of Tribal
Cultural Affairs and the Director of the regional BIA office by
telephone and in writing by email. During filming, a member of the
production company finds objects eroding from a hillside that may be
human remains or cultural items. The production company reports the
discovery by telephone and email to the Indian Tribe and the BIA, stops
all activity around the discovery, secures and protects the objects by
covering them, and confirms that no activity will resume in the area
until a written certification is issued by the Indian Tribe. No later
than three days after receiving the email from the production company,
the Director of Tribal Cultural Affairs must make a reasonable effort
to secure and protect the objects, verify that any activity in the area
has stopped, and notify the Director of the regional BIA office. The
Director of Tribal Cultural Affairs must send a written certification
to the film production company no later than 30 days after receiving
the email from the production company and provide the date (no later
than 30 days after the date of the written certification) on which the
film production may resume in the area around the discovery. If an
excavation is required, the Director of Tribal Cultural Affairs must
follow the requirements under Sec. 10.6(a). If the objects are human
remains or cultural items and they are removed from the hillside, the
Director of Tribal Cultural Affairs must follow the requirements for
disposition under Sec. 10.7. If both the BIA and the Indian Tribe
consent in writing, the BIA could take responsibility for any of the
actions described above related to the discovery, excavation, or
disposition.
79. Comment: We received five comments requesting clarification of
the provisions found in Sec. Sec. 10.5, 10.6, and 10.7 for a NHO to
accept responsibility for discoveries, excavations, and dispositions on
Tribal lands of an NHO.
DOI Response: To clarify, ``Tribal lands of an NHO'' does not
include lands under a Hawaiian homestead lease, but rather lands that
the Hawaiian Homes Commission has determined an NHO is qualified to
steward under a lease or license pursuant to the Hawaiian Homes
Commission Act. Although Congress affords such opportunity in the Act,
an NHO need not accept responsibility for discoveries, excavations, or
dispositions if it believes it is not qualified. As noted in the
proposed rule, ``[a]ccepting or declining responsibility is an exercise
of sovereignty,'' and ``the Department seeks to be respectful of the
sovereignty of the Native Hawaiian Community and their right to self-
determination'' (NPS-2022-0004-0004, pages 17 and 30). The regulations
do not prescribe how the Hawaiian Homes Commission implements this
provision, recognizing its authorities and responsibilities. The term
``Tribal lands of an NHO'' reflects the language of ``Tribal lands''
used in the Act. The Department acknowledges that the United States'
government-to-sovereign relationship with the Native Hawaiian Community
is different from its government-to-government relationship with Indian
Tribes and these provisions reflect those relationships.
80. Comment: We received three comments on Sec. 10.5(d) Approve
and sign a plan of action. One comment supported the timeline while two
comments requested that the appropriate official should seek consensus
or agreement, not just merely engage in consultation with, Indian
Tribes and NHOs.
DOI Response: We appreciate the support for this timeline
considering other comments addressed below. Regarding consultation, we
note that under these regulations, consultation is defined and includes
striving for consensus, agreement, or mutually agreeable alternatives.
This is required for consultation under this paragraph and any other
place it is used in these regulations.
81. Comment: We received 14 comments on Sec. 10.5(e) Certify that
an activity may resume requesting that we extend the timeline for
resumption of activities or provide more flexibility for the
appropriate official to extend the timeline. Some of these comments
believe the Act does not require the appropriate official to provide
any date on which activity may resume, and, instead, only sets a 30-day
floor to stop an activity after a discovery occurs. These comments also
requested clarifying edits be made to this paragraph. Several comments
on paragraph (c) discussed above requested a copy of the written
certification be sent to consulting parties. One comment stated that
evaluating the need for and authorization of an excavation of human
remains or cultural items must be done in consultation with Indian
Tribes or NHOs.
DOI Response: We specifically requested input on this paragraph in
the proposed rule, and we appreciate the responsive comments. However,
we
[[Page 86491]]
cannot make the requested change to extend the timeline or build in
additional flexibility, as discussed in full in the next comment and
response. We can and have made the clarifying edits to this paragraph
and added a requirement to send a copy of the certification to the
additional points of contact. We note that consultation is required on
a plan of action under paragraph (d) of this section, which includes
the preference of consulting parties for leaving or relocating human
remains or cultural items rather than excavating. A plan of action also
requires a timeline and method for evaluating the potential need for an
excavation, and we have removed the redundant language in paragraph
(e)(3) of this section.
82. Comment: We received eight extensive comments from one
submission on Sec. 10.5(e) Certify when an activity may resume
objecting to the additional time provided in the proposed regulations.
According to the comment, the Act unambiguously states that the
required certification from the appropriate official to the person
responsible for the activity is solely to acknowledge that the
responsible official has received written notification of the
discovery, and that after 30 days, the activity may resume. The comment
cites to Senate Report 101-473 (September 26, 1990) for the proposition
that Congress intended the stop-work period to last only 30 days
(``After notice has been received the party must cease the activity and
make all reasonable efforts to protect the remains or objects before
resuming the activity. The activity may resume 30 days after notice has
been received. . . Under this section, Indian [T]ribes or native [sic]
Hawaiian organizations would be afforded 30 days in which to make a
determination as to the appropriate disposition for these human remains
or objects.''). The comment also states that expanding the stop-work
period by allowing additional time for the appropriate official to
certify receipt of the notification would significantly interrupt and
impair activities on Federal lands, and thereby contravene
Congressional intent, as expressed in Senate Report 101-473 (``The
Committee does not intend this section to act as a bar to the
development of Federal or [T]ribal lands on which human remains or
objects are found. Nor does the Committee intend this section to
significantly interrupt or impair development activities on Federal or
[T]ribal lands.''). Additionally, the comment states that it would be
arbitrary and unreasonable for the responsible official to take up to
35 days to certify that written notice of the discovery from the
responsible person had been received. Certification is a ministerial
task that takes little time to complete, and the existing regulations
provide for a maximum of three working days for doing so. Consequently,
the comment requests that the Department continue to require the
appropriate official certify receipt within three working days of
receiving notification of a discovery.
DOI Response: The Department believes the provision to build in
additional days, if needed, after a discovery is permissible. In the
final regulations, we have revised this time to a standard 30 days for
clarity. The Act does not provide a timeframe for the appropriate
official to certify that written notification of a discovery has been
received, nor does the Act address the action to be taken by the
appropriate official in responding to the discovery itself. Based on
other comments about this timeframe, we find there is some ambiguity in
the Act. While the Act is the primary authority for the issuance of
regulations implementing and interpreting the Act's provisions,
Congress authorized the Secretary to make such regulations for carrying
into effect the various provisions of any act relating to Indian
affairs (25 U.S.C. 9). As NAGPRA 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 this provision 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)). Ambiguities in statutes passed for the benefit of Indians are
to be construed to the benefit of the Indians (Bryan v. Itasca County,
426 U.S. 373 (1976)). Therefore, we have provided in these regulations
a maximum of 60 days after written documentation of a discovery before
an activity could resume. This timeframe provides 30 days for the
appropriate official for a Federal agency or DHHL to evaluate the
circumstances of the discovery and, in consultation with Indian Tribes
and NHOs, prepare, approve, and sign a plan of action. We have provided
that no later than 30 days after receiving documentation of the
discovery, the appropriate official for an Indian Tribe, NHO, Federal
agency, or DHHL must certify that written notification of the discovery
has been received and that a lawful activity may resume on a certain
date, but no later than 30 days after the date of the written
certification. This timeframe allows the appropriate official for a
Federal agency or DHHL a reasonable amount of time to consult with
Indian Tribes and NHOs, evaluate the potential need for an excavation,
and carry out the steps in a plan of action. If the appropriate
official determines, based on the circumstances, that a shorter
timeframe is acceptable, the lawful activity could resume in fewer than
60 days. Moreover, we hope that Federal agencies and DHHL will be
encouraged to engage in consultation earlier and develop a plan of
action prior to a discovery to allow for a shorter timeframe.
H. Section 10.6 Excavation
83. Comment: We received 26 comments suggesting changes to Sec.
10.6 Excavation. The comments generally disagreed with our analysis of
the relationship between NAGPRA and ARPA, noting that it is
inconsistent with the plain language of the Act and would unduly narrow
the application of the Act and these regulations. Some comments
suggested that, if we did not change the interpretation, we should add
a requirement that excavations not on ``ARPA Indian land'' or ``ARPA
Public land'' must have an equivalent permit from another jurisdiction.
DOI Response: Our interpretation does not change the application of
the Act. NAGPRA applies to its fullest extent on Tribal land and
Federal land, as defined in both the statute and regulations. Rather,
we have defined which excavations under the Act require a permit issued
under ARPA and which do not. Specifically, the Act requires that human
remains or cultural items may only be intentionally excavated or
removed from Federal or Tribal land if, among other requirements,
``such items are excavated or removed pursuant to a permit issued under
[ARPA] which shall be consistent with [NAGPRA].'' 25 U.S.C. 3002(c)(1).
Since both NAGPRA and ARPA are intended to protect important cultural
resources, they must be construed together. Further, ``issued under
ARPA'' is an adjectival phrase modifying ``permit.'' Thus, it is not
ARPA that ``shall be consistent with NAGPRA,'' but rather the ARPA
permit that must be consistent with the Act. This is supported by the
legislative history. The Senate Indian Affairs Committee specifically
noted that it ``[intended] the notice and permit provisions of this
section to be fully consistent with the provisions of [ARPA]'' (S. Rpt.
101-473, at 7). Likewise, the House Committee on Interior and Insular
Affairs, in discussing the stopping of work for an inadvertent
discovery, noted, ``[a]lthough a specific time limit was not
[[Page 86492]]
added here, the Committee does intend to protect the remains and
objects found and does not intend to weaken any provisions of other
laws, such as [ARPA], regarding similar situations.'' Like the Senate
Committee, the House Committee also stated, ``[s]ubsection (c) provides
that items covered by this Act can be excavated from Federal or
[T]ribal land if proof exists that a permit has been acquired under
Section 4 of the [ARPA]'' (H. Rpt. 101-877, at 15 and 17). Therefore,
the provisions of ARPA, including the scope of public and Indian land,
are not affected by the Act. So, the terms ``ARPA Indian land'' and
``ARPA public land'' are defined in these regulations just as ``Indian
land'' and ``public land'' are defined in ARPA, including use of the
term ``individual Indian,'' which is used in ARPA to denote land that
is owned by an individual Indian, who may or may not be a ``lineal
descendant'' as used in the Act and defined in these regulations. The
protections provided for in both statutes is reflected in these
regulations by the requirement that ARPA permits are issued for NAGPRA
excavations just as they are for ARPA excavations, keeping the full
protections of each statute in place, as Congress intended. We have
added the requested requirement that excavations on Federal or Tribal
lands that are not ARPA Indian lands or ARPA Public lands must have an
equivalent permit from the relevant Indian Tribe, NHO, or State, if
applicable.
84. Comment: We received eight comments on Sec. 10.6(a) On Tribal
lands. Of that total, one comment suggested a change to the paragraph
while seven comments supported it as proposed.
DOI Response: We cannot make the requested change to paragraph
(a)(2) to replace ``consent'' with ``respond.'' Consent in writing from
both the Indian Tribe and the Federal agency is required before the
responsibility for an excavation is transferred from the Indian Tribe
to the Federal agency. This ensures all parties are aware of the
transfer and the responsibilities.
85. Comment: We received 11 comments on Sec. 10.6(b) On Federal or
Tribal lands. Of that total, nine comments suggested changes to the
paragraph while two comments supported it. The comments requesting
changes all expressed concern about the role of consultation in the
preliminary steps by an appropriate official to evaluate the potential
need for an excavation.
DOI Response: We have removed the sentence in Sec. 10.6 referring
to evaluation of the potential need for an excavation. The timeline and
method for evaluating the potential need for an excavation is a
required part of a plan of action under Sec. 10.4(b)(3)(vi) of this
part. The plan of action is required before an excavation is authorized
and requires consultation with lineal descendants, Indian Tribes, and
NHOs. We note that consultation on a plan of action also includes the
preference of consulting parties for leaving or relocating human
remains or cultural items rather than excavating them. We have made
other clarifying edits to this paragraph considering comments we
received on Sec. 10.4(b) under this part. We have retained the
requirement for the written authorization to describe the steps taken
to evaluate the potential need for an excavation. We believe this is
necessary to document how the plan of action was implemented.
Because an Indian Tribe may delegate its responsibilities for
excavations on Tribal lands to a Federal agency, we have added a
requirement for the plan of action to include written consent of the
appropriate Indian Tribe or NHO. This requirement could be fulfilled by
the written consent delegating the responsibilities under paragraph
(a)(2) of Sec. 10.6. On Tribal lands of an NHO, DHHL is required to
obtain written consent from the appropriate NHO prior to authorizing an
excavation.
I. Section 10.7 Disposition
86. Comment: We received nine comments on Sec. 10.7 Disposition,
generally. Of that total, three comments suggested requirements for
consultation be added to the introductory paragraph for this section
while one comment supported the consultation requirements as proposed
in Sec. 10.7. One comment requested adding the definition of
disposition to the introduction to this section. Two comments objected
to the burden this section puts on disposition from boarding school
cemeteries on Federal lands. One comment found this entire section
confusing and the timelines too long. One comment objected to the
appropriate official in this section being anyone other than an Indian
Tribe or NHO.
DOI Response: We decline to make the requested change to add
consultation requirements in the introductory paragraph to Sec. 10.7.
This paragraph applies to human remains or cultural items removed from
Federal or Tribal lands and as such must include the requirements for
the appropriate official for an Indian Tribe on Tribal lands as well as
for the Federal agency or DHHL. As discussed elsewhere, we received
comments requesting we provide as much flexibility as possible for
Indian Tribes who are responsible for complying with this section on
their Tribal lands. As several of the comments noted, the requirements
of Sec. 10.7 follow the requirements in Sec. Sec. 10.5 and 10.6 which
require consultation by Federal agencies or DHHL through a plan of
action. In addition, as the supporting comment noted, consultation is
required throughout Sec. 10.7 by Federal agencies or DHHL.
Disposition is defined in Sec. 10.2 and the definition is used to
describe what a disposition statement must include in this section. We
have not repeated the definition here. Regarding disposition from
boarding school cemeteries on Federal lands, we do not believe this
will overly complicate the process. It will require, as the existing
regulations do, that when human remains or cultural items are removed
from Federal lands, including boarding school cemeteries, a notice must
be published to identify the Indian Tribe with priority for
disposition. We believe these regulations provide a streamlined
procedure for excavations of boarding school cemeteries through
consultation, a plan of action, and a notice of intended disposition.
The Department encourages any Federal agency that manages boarding
schools and cemeteries on Federal lands to consult with lineal
descendants, Indian Tribes, and NHOs on identification, disinterment,
and repatriation of Native American children as expeditiously as
possible. The Department stands ready to assist Federal agencies,
Indian Tribes, and NHOs to the fullest extent of its authority.
We appreciate the concern expressed by some comments that as
written and when read alone, the proposed regulations state that the
appropriate official must determine disposition without consultation.
We feel that a simple change from ``determine'' to ``identify'' will
alleviate this concern. The priority for disposition is established by
the Act and all that is required under this section is for the lineal
descendant, Indian Tribe, or NHO with priority for disposition be
identified and, in some cases, notified. We have also removed the
reference to unclaimed human remains or cultural items, as discussed in
Comment 91. We cannot make the requested change to the appropriate
official in this section.
87. Comment: We received 19 comments on Sec. 10.7(a) Priority for
disposition. Of that total, seven comments supported this paragraph
especially as it relates to boarding school repatriations. One comment
requested human remains or cultural items should only be removed from
[[Page 86493]]
Federal lands with the permission and partnership of the affected
Indian Tribe. Five comments suggested changes to the priority order,
specifically for Tribal lands where the Indian Tribe with cultural
affiliation is not the Tribal land Indian Tribe. Four comments
requested a significant, but grammatical, change from ``originated'' to
``were removed.'' One comment requested disposition should only occur
if other Indian Tribes or NHOs consent. Other comments requesting
changes to Sec. 10.3 Determining cultural affiliation required changes
to this paragraph.
DOI Response: We reiterate that this paragraph is drawn directly
from the Act itself and does not represent a change in any way. We
cannot add a requirement to this section to require permission or
partnership; see the discussion above on the requirement for a plan of
action prior to an excavation or after a discovery. We cannot change
the priority order for Indian Tribes with cultural affiliation and
Tribal land Indian Tribes. Under the Act, the Indian Tribe from whose
Tribal lands the human remains or cultural items were removed has
priority over any other Indian Tribe. Likewise, we cannot change the
use of aboriginal land in the priority order after cultural
affiliation. Any changes to the priority order would require
Congressional action. We do want to note here that a final judgment of
the Indian Claims Commission or the United States Court of Claims 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 that do so. We have made the
requested grammatical change to ``originated.''
88. Comment: We received 11 comments suggesting changes to
paragraph (b) in the proposed regulations under Sec. 10.7
Disposition--To a lineal descendant (removed in the final regulations).
All these comments requested we require notices of intended disposition
for lineal descendants.
DOI Response: We appreciate and agree with the need for
transparency in these regulations. However, we reiterate that neither
the Act nor the existing regulations require publication of a notice of
intended disposition for a lineal descendant. On Federal land, a notice
and a claim are only required when no lineal descendant has been
ascertained. Considering comments related to disposition on Tribal land
below, we do not believe we can extend the requirement for publication
of a notice of intended disposition on Tribal land to the appropriate
official for an Indian Tribe. Therefore, we have removed this paragraph
entirely and integrated the procedure for disposition to lineal
descendants into the two following paragraphs.
89. Comment: We received 18 comments on paragraph (c) in the
proposed regulations under Sec. 10.7 Disposition--On Tribal lands (in
the final regulations, this is renumbered Sec. 10.7(b)). Of that
total, 10 comments requested we require notices of intended disposition
on Tribal lands. The other eight comments requested we remove the
unnecessary burdens placed on Indian Tribes for disposition on Tribal
lands. Five submissions contained both requests, which seem
inconsistent with each other.
DOI Response: We believe that requiring the appropriate official
for an Indian Tribe or NHO to submit a notice of intended disposition
for publication in the Federal Register is an unnecessary burden, and
we decline to make this change. We cannot alleviate the entire burden
on an Indian Tribe or NHO for the disposition process under this
paragraph. As noted above, we have removed the requirement for
disposition statement to be sent to a lineal descendant, yet these
regulations must provide some procedure for an Indian Tribe or NHO to
identify if there is a lineal descendant with priority for disposition,
which is a requirement of the Act. The requirements in these
regulations remain like those in the proposed regulations. On Tribal
lands, an Indian Tribe or NHO must identify the lineal descendant,
Indian Tribe, or NHO with priority for disposition and prepare and
retain a written disposition statement. The written disposition
statement is required because of the priority afforded to lineal
descendants under the Act. When a lineal descendant has not been
ascertained, an Indian Tribe or NHO must ensure a record is made of the
disposition in case a lineal descendant wishes to assert a priority
right later.
We believe this is the minimum burden these regulations can place
on Indian Tribes or NHOs for human remains or cultural items removed
from Tribal lands. We note that an Indian Tribe may delegate its
responsibilities for disposition under this paragraph. In complex cases
involving multiple potential lineal descendants or Indian Tribes with
potential cultural affiliation, an Indian Tribe may prefer to delegate
its responsibility to the Bureau of Indian Affairs or another Federal
agency. This will alleviate the Indian Tribe of any additional burden
and, as a result, require the appropriate official for the Federal
agency to inform and consult with lineal descendants, Indian Tribe, or
NHOs; publish a notice of intended disposition in the Federal Register;
respond to any claims for disposition; resolve any competing claims;
and send a disposition statement. We note in response to the comments
on paragraph (a) of this section, while we were unable to change the
priority order for disposition, this paragraph and the option of
delegating responsibility to a Federal agency provide opportunity for
an Indian Tribe to include Indian Tribes with cultural affiliation in
the disposition from Tribal lands.
90. Comment: We received 12 comments on paragraph (d) in the
proposed regulations under Sec. 10.7 Disposition--On Federal lands in
the United States or on Tribal lands in Hawai`i (in the final
regulations, this is renumbered Sec. 10.7(c) and retitled On Federal
or Tribal lands). Five comments in the same submission questioned who
is responsible for determinations in this paragraph and suggested the
appropriate official should be a representative of an Indian Tribe or
NHO in all circumstances. One of these comments stated six months is
too long after a discovery or excavation to inform consulting parties
in Step 1. Four comments requested adding criminal actions under NAGPRA
to the deadline extension in Step 2. Two comments were in favor of
requiring notices be published in the Federal Register while one
comment opposed this change.
DOI Response: We have clarified that this paragraph, as in other
paragraphs in this subpart, applies when a Federal agency or DHHL has
responsibility for disposition of human remains or cultural items
removed from Federal or Tribal lands. We have tried to clarify who
``the appropriate official'' represents at the beginning of each
paragraph and with the paragraph headings that identify if the
paragraph applies ``On Tribal lands'' or ``On Federal or Tribal
lands.'' Because this paragraph covers a wide variety of circumstances
under which human remains or cultural items are removed from Federal or
Tribal lands, a longer timeline is necessary for identifying and
informing consulting parties. In most cases, however, this can occur
much faster based on the plan of action. We have added a criminal
action under NAGPRA to Step 2. We have retained the requirement for
publication of notices of intended disposition in the Federal Register.
We believe the revised regulatory text will prevent the current delays
in notice publication.
91. Comment: We received 13 comments on paragraph (e) in the
proposed regulations under Sec. 10.7
[[Page 86494]]
Disposition--Unclaimed human remains or cultural items removed from
Federal lands in the United States or from Tribal lands in Hawai`i (in
the final regulations, this is renumbered Sec. 10.7(d) and retitled
Unclaimed human remains or cultural items removed from Federal or
Tribal lands). Five comments emphatically and some repeatedly objected
to the concept of unclaimed human remains or cultural items and stated
that any human remains or cultural items removed from Federal or Tribal
lands can be identified and claimed through effective and meaningful
consultation. Two comments objected to the provision for reinterment
without Indian Tribes or NHOs making the decision to do so. Two
comments objected to the inclusion of Indian groups without Federal
recognition in this paragraph. One comment stated the Federal agency or
DHHL has an obligation to reach out to Indian Tribes or NHOs before
human remains or cultural items become unclaimed. Two comments
requested a list of unclaimed cultural items be published on the
National NAGPRA Program website. One comment requested a requirement
for reinterment to be as close as possible to the original site.
DOI Response: We understand the objections raised by many comments
to this provision, but we are unable to eliminate this paragraph
because it is required by the Act (see 25 U.S.C. 3002(b)). Regulations
concerning this part of the Act were proposed in 2013 and finalized in
2015 and contained very similar provisions. There may be circumstances
where human remains or cultural items are removed from Federal or
Tribal land and one year after publication of a notice of intended
disposition, no Indian Tribe or NHO has made a claim for disposition.
In other cases, particularly for Federal lands in the Eastern United
States, when cultural affiliation cannot be determined and the Federal
land is not the aboriginal land of an Indian Tribe as defined in Sec.
10.7(a), the Federal agency may not be able to identify any Indian
Tribe or NHO with priority for disposition and the human remains or
cultural items may be unclaimed.
We believe the clarification and simplification of the disposition
process for human remains or cultural items on Federal or Tribal lands
that precedes this paragraph will address many of the concerns raised
by these comments and that only a small number of human remains or
cultural items will be unclaimed. To date, a total of 44 individuals
and 164 funerary objects have been reported as unclaimed. Since 2015,
the National NAGPRA Program has published a list of unclaimed human
remains or cultural items from Federal or Tribal lands on its website
(https://www.nps.gov/subjects/nagpra/unclaimed-cultural-items.htm,
accessed 12/1/2023).
We have removed the option to transfer unclaimed human remains or
cultural items to Indian groups without Federal recognition but we have
retained the option to transfer to an Indian Tribe or NHO or to
reinter. At the discretion of the Federal agency or DHHL and after
following the requirements of this paragraph, unclaimed human remains
or cultural items removed from Federal or Tribal land may be
transferred or reinterred. As this is a discretionary action, these
regulations cannot dictate where reinterment occurs.
J. Subpart C
92. Comment: We received 46 comments on the overall timelines in
Subpart C. Of that total, 16 comments supported the timelines as
proposed. Several of these comments felt the timelines were adequate
and clearly explained, especially with tables. Four comments supported
the requirements and timeline for updated inventories specifically. Two
comments felt the timelines achieved a balance between a sense of
urgency to repatriate and the practical limitations of the tasks
involved. Two of these comments felt the timelines were too long and
found the timelines to be extremely unbalanced and specifically aimed
at benefitting museums and Federal agencies rather than lineal
descendants, Indian Tribes, and NHOs. One comment felt the timelines
provided sufficient opportunity for Indian Tribes and NHOs to submit
requests for repatriation.
On the other hand, 30 comments felt the timelines were too short,
unrealistic, unworkable, and unachievable. Many of these comments from
individuals and museums believe the timelines do not provide adequate
time for consultation or relationship building and will result in
overwhelming Indian Tribes and NHOs with requests to consult. Many of
the comments from Indian Tribes requested the timelines be based on
Tribal priorities. Most of the comments from individuals and museums
felt the timelines underestimate the work required for repatriation.
One comment stated the changes to the regulations were too complicated
to be done quickly. One comment stated the timelines were not based in
the real world and provided an example of one Federal agency that
needed six months just to acquire a signature on a letter. One comment
stated the focus of these timelines on notice publication is misplaced
and ignores the other parts of the process.
Some of these comments requested more flexible timelines with no
set deadlines. Two comments predicted the tasks involved are more
likely to take 20 or 50 years to complete. Suggestions in these
comments included removing timelines entirely, doubling all the
timelines provided, or retaining the timelines in the existing
regulations. Three comments suggested a five-year timeline for updating
inventories. One comment suggested changing the timelines to only
require initiation of consultation and remove the subsequent timelines.
DOI Response: We have extended the deadline for museums and Federal
agencies to update inventories of human remains and associated funerary
objects from three years to five years after the effective date of
these final regulations. We have made other changes to the deadlines in
these regulations to account for the change from business days to
calendar days discussed elsewhere. We have changed the deadline for a
museum or Federal agency to respond to a request for repatriation from
60 days to 90 days for both human remains and associated funerary
objects and for cultural items.
Tables 4 and 5 provide an overview of the general timeframes under
Subpart C from the longest timeline to the shortest timeline. Table 4
relates to required reporting on holdings or collections and Table 5
relates to responding to requests for repatriation.
Table 4--Timeframes for Reporting on Holdings or Collections
----------------------------------------------------------------------------------------------------------------
If a museum or Federal agency . .
. . . . it must . . . . . . no later than . . . See
----------------------------------------------------------------------------------------------------------------
Has human remains and associated Update an inventory 5 years....................... Sec. 10.10(d)(3).
funerary objects not published (including
in a notice. consultation).
Receives Federal funds for the Complete an inventory 5 years....................... Table 1 to Sec.
first time and has possession or (including 10.10(d)(2).
control of human remains and consultation).
associated funerary objects.
[[Page 86495]]
Receives Federal funds for the Compile and submit a 3 years....................... Table 1 to Sec.
first time and has cultural summary. 10.9(a)(2).
items.
Acquires or locates human remains Initiate consultation 2 years....................... Table 1 to Sec.
and associated funerary objects. and complete an 10.10(d)(2).
inventory.
Has custody of a Federal agency Submit a statement to 1 year........................ Sec. 10.8(c).
holding or collection (museums the Federal agency and
only). National NAGPRA.
Has custody of a holding or Submit a statement to 1 year........................ Sec. 10.8(d).
collection and cannot identify National NAGPRA.
an entity with possession or
control (museums only).
Acquires or locates cultural Compile and submit a 6 months...................... Table 1 to Sec.
items. summary. 10.9(a)(2).
Completes or updates an inventory Submit a notice of 6 months...................... Sec. 10.10(e).
inventory completion.
Receives a statement from a Respond to the museum 180 days...................... Sec. 10.8(c)(1).
museum with custody of a Federal and National NAGPRA.
agency holding or collection
(Federal agencies only).
Acquires previously reported Inform National NAGPRA 30 days....................... Sec.
human remains or cultural items. (and initiate 10.9(a)(3)(i);
consultation on human Sec.
remains). 10.10(d)(4)(i).
Compiles a summary............... Initiate consultation... 30 days....................... Sec. 10.9(b).
Identifies new consulting parties Initiate consultation... 30 days....................... Sec. 10.9(b)(3);
Sec.
10.10(b)(3).
----------------------------------------------------------------------------------------------------------------
Table 5--Timeframes for Responding to Requests for Repatriation
----------------------------------------------------------------------------------------------------------------
If a museum or Federal agency . .
. . . . it must . . . . . . no later than . . . See
----------------------------------------------------------------------------------------------------------------
Receives competing requests for Send a written 180 days....................... Sec. 10.9(h)(4);
repatriation. determination. Sec. 10.10(i)(3).
Receives a request for Respond to the 90 days........................ Sec. 10.9(e); Sec.
repatriation. request. 10.10(g).
Has completed all other steps..... Send a repatriation 90 days........................ Sec. 10.9(g); Sec.
statement. 10.10(h).
Agrees to a request for Submit a notice of 30 days........................ Sec. 10.9(f).
repatriation of cultural items. intended
repatriation.
Receives competing requests for Inform all requestors 14 days........................ Sec. 10.9(h)(3);
repatriation. Sec. 10.10(i)(2).
Receives a returned notice........ Resubmit a notice.... 14 days........................ Sec. 10.9(f)(3);
Sec. 10.10(e)(3).
----------------------------------------------------------------------------------------------------------------
While we understand the objections to the timelines and the
concerns about insufficient staffing and funding, the Secretary, the
Assistant Secretary, and the Department are committed to clearing a
path to expeditious repatriation as Congress intended. In the 32 years
since the passage of the Act, we have seen some of the largest
repatriations occur when a museum or Federal agency changed course to
invite and defer to the input of lineal descendants, Indian Tribes, and
NHOs. By requiring that deference throughout these regulations, we hope
more museums and Federal agencies will change course and complete the
regulatory requirements for repatriation.
We must stress that most of the timelines and deadlines under these
regulations are triggered by a request for repatriation from a lineal
descendant, Indian Tribe, or NHO. If a museum or Federal agency is
involved in meaningful and effective consultation with lineal
descendants, Indian Tribes, and NHOs, pressure to complete repatriation
within a set timeframe may be significantly alleviated. The one
exception to the request requirement is the timeline for a museum or
Federal agency to update an inventory of human remains and associated
funerary objects. We further stress that an extension of this deadline
may be requested by any museum that has made a good faith effort to
update its inventory. We have added to the requirements for an
extension the written agreement of consulting parties to the request.
If a museum will need an additional 10 or 20 or even 50 years to
complete its inventory, it can only do so by first engaging in
meaningful and effective consultation with lineal descendants, Indian
Tribes, and NHOs. With these changes to the regulations, we hope to
provide a clear path to repatriation where lineal descendants, Indian
Tribes, and NHOs, rather than museums and Federal agencies, can define
what expeditious repatriation means.
93. Comment: We received 21 comments on the requirements in Subpart
C for museums and Federal agencies to identify all holdings or
collections that may contain human remains or cultural items. Most of
these comments requested additional language to require museums and
Federal agencies produce transparent information about the full extent
of their holdings or collections, whether in their possession or
control or custody. These comments requested the regulations eliminate
the loophole that allows museums and Federal agencies to avoid
disclosing information about their holdings or collections. One comment
requested a requirement to identify items that may have been
transferred, stolen, sold, or removed from a holding or collection. One
comment requested standards and requirements for museums and Federal
agencies to engage in some level of effort to identify holdings or
collections subject to the Act and these regulations. One comment
appreciated the inclusion of lost or unknown holdings or collections in
this subpart but stated that ``negligence to care for native material
culture is evident time and time again. The very fact that institutions
like universities are continuing to discover Native American remains in
their possession is absolutely unacceptable.'' Several comments
stressed the importance of consultation in identifying holdings or
collections and suggested consultation should be initiated when a
museum or Federal agency has reason to believe that human remains or
cultural items are present in a holding or collection. One comment
requested clarification on how museums and Federal agencies can be held
accountable for conducting a full review of holdings or collections.
On the other hand, a few comments questioned the Department's
authority to require a review of all holdings or collections and that
this subpart must be limited to only those holdings or collections that
are known to have human remains or cultural items. A few comments
provided details on how long it takes identify human remains or
cultural items in a holding or collection. One comment stated it takes
weeks or months to complete a full review of a holding or collection
and if done too quickly, human remains and cultural items will be left
behind. One comment stated it takes 10 hours to review a
[[Page 86496]]
single, standard box to identify the presence of human remains or
cultural items. An additional six to eight hours is needed to document
each individual or object in the box, and another 40 hours is needed to
produce a final report of the boxes from the same site. The comment
also stated a significant amount of space is needed for this kind of
review and that can often impair the effort to review a holding or
collection.
DOI Response: There is no ambiguity in the Act on the requirement
for museums and Federal agencies to identify all human remains or
cultural items in holdings or collections. The Act requires each museum
or Federal agency that ``has possession or control over holdings or
collections'' to identify all Native American human remains or cultural
items. The Act required museums and Federal agencies to identify all
cultural items within three years and all human remains and associated
funerary objects within five years. The Act provided an option for
museums to request an extension to identify human remains and
associated funerary objects, provided the museum had made a good faith
effort to do so.
We agree that the initial step requires producing factual and
transparent information about the holdings or collections. While
determining possession or control of a holding or collection is a
jurisdictional requirement and must be done on a case-by-case basis,
the Act and these regulations make clear that the evaluation applies to
all holdings or collections. We agree that when a museum or Federal
agency has reason to believe human remains or cultural items are
present in a holding or collection it must provide information to
lineal descendants, Indian Tribes, and NHOs.
We agree the Department does not have authority under the Act to
require a museum or Federal agency review holdings or collections that
are not subject to the Act. Only holdings or collections, or portions
of holdings or collections, that may contain human remains or cultural
items are required to be identified. If a museum or Federal agency
knows that a certain holding or collection does not contain any human
remains or cultural items, the holding or collection would not need to
be included in a summary of cultural items or an itemized list of human
remains and associated funerary objects. For example, a collection
excavated from an historic era ranch that does not contain any Native
American objects or items would not need to be included on a summary.
We disagree that the Act and these regulations do not already
require a museum or Federal agency to review all holdings or
collections in their possession or control. The Act and these
regulations already impose standards and requirements for museums and
Federal agencies to make an effort to identify human remains and
cultural items. The standard is if a holding or collection may contain
human remains or cultural items. The requirement is to comply with this
subpart and complete a summary, an inventory, and notices. The
mechanisms for ensuring accountability for a failure to comply with
this subpart are civil penalties against museums or legal action
against Federal agencies. Any museum or Federal agency that fails to
identify a holding or collection that contains human remains or
cultural items has failed to comply with the Act and these regulations.
Several comments provided examples of human remains or cultural
items that were not identified by museums and Federal agencies. In one
case, an ``archeological collection'' was excluded from a summary
because the museum assumed it did not contain any cultural items.
However, archival information about the person who made the collection
clearly identifies the collector removed objects from a funerary
context and those objects are likely unassociated funerary objects. In
another case, human remains were found during a physical review of a
collection after the inventory was completed and a notice published.
Museums and Federal agencies have discretion on which holdings or
collections they include in a summary or inventory. When a museum or
Federal agency decides to exclude a holding or collection from a
summary or inventory, it is deciding that the Act and these regulations
are not applicable to that holding or collection. If that holding or
collection contains human remains or cultural items, the museum or
Federal agency has failed to comply and could be subject to civil
penalties or other legal action. Museums and Federal agencies also have
discretion on how to evaluate the contents of a holding or collection.
A museum or Federal agency can choose to review each box in a holding
or collection to determine if it contains human remains or cultural
items, but it must do so within the timeframes required by the Act and
the regulations. Neither the Act nor the regulations require a physical
review of a holding or collection to comply with the summary and
inventory requirements.
Under the final regulations, consent from lineal descendants,
Indian Tribes, or NHOs is required prior to allowing any research on
human remains or cultural items. We have defined ``research'' to mean
any study, analysis, examination, or other means of acquiring or
preserving information. ``Research'' includes any activity to generate
new or additional information beyond the information that is already
available, for example, osteological analysis of human remains,
physical inspection or review of collections, examination or
segregation of comingled material (such as soil or faunal remains), or
rehousing of collections.
94. Comment: We received 42 comments on specific steps in the
repatriation process. Six comments from one submission made repeated
requests to require unassociated funerary objects be listed in the
inventory so they can be repatriated with the human remains and
associated funerary objects. One comment requested testing for
hazardous substances be required and two comments requested removal of
hazardous substances must be required at the expense of museums and
Federal agencies. One comment requested ``acquisition'' be replaced
with ``accession'' so as not to disrespectfully identify human remains
as objects. One comment requested additional information on
documentation, analysis, or exhibition be included in a summary or an
inventory.
Six comments suggested changes to the steps for consultation. One
comment stated identifying consulting parties is a difficult task that
requires additional time than what is provided. One comment requested
clarification on who identifies new consulting parties. Two comments
requested clarification on if the regulations require re-initiation of
consultations that are ongoing as of the effective date of these
regulations. One comment requested how to proceed when consulting
parties do not respond to invitations to consult. One comment requested
clarification on the timeline for responding to an invitation to
consult and that Indian Tribes and NHOs must be allowed to move at
their own pace according to each sovereign's capacity and resources.
Three comments suggested changes to the kinds of information a
consulting party can request from a museum or Federal agency, including
that accession records be specifically included or the limitations on
the use of the information be removed.
Nine comments requested changes to the notices and requests for
repatriation under this subpart. Four comments requested lineal
descendants not be identified by name, and four comments requested
amended notices be required when additional pieces of previously
repatriated human remains or cultural
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items are found. One comment requested additional information on
documentation, analysis, or exhibition be included in a notice. Two
comments requested that all Indian Tribes or NHOs with cultural
affiliation be notified or consent to a request for repatriation. Two
comments suggested requests for repatriation need not be in writing.
One comment requested changing the timeline for sending a repatriation
statement from the variable 30 to 90 days to 60 days.
Three comments expressed concern about the timelines for competing
requests and stays of repatriation. Two comments requested changes to
the deadline for evaluating competing requests to either remove the
deadline in favor of a deadline agreed upon in consultation or to
include a timeline for requestors to submit additional information to
support their requests. Two comments on stays of repatriation asked who
determines if a court of competent jurisdiction enjoins the
repatriation. One comment requested decisions made during a stay of
repatriation must be made in consultation with requesting parties.
DOI Response: We cannot include unassociated funerary objects in an
inventory as that would be inconsistent with the Act. We cannot require
testing for or removal of hazardous substances or who should pay for
that testing or removal as there is no such requirement in the Act. We
can and do require information about hazardous substances be shared,
but only when a museum or Federal agency knows about the presence of
any potentially hazardous substances. Testing or removal should be a
part of consultation on human remains or cultural items, specifically
under the duty of care requirements in Sec. 10.1(d). We do not agree
that ``accession'' is less disrespectful than ``acquisition'' since
both are generally applied to property or collections. The use of
``accession'' could lead to confusion over human remains or cultural
items that were not formally accessioned into a holding or collection.
The Act uses the word ``acquisition,'' and we have retained that word
in these regulations. We have not required additional information on
documentation, analysis, or exhibition be included in a summary or
inventory, but that information may be requested by a lineal
descendant, Indian Tribe, or NHO and discussed during consultation on
the duty of care for human remains or cultural items.
We have not made changes to timeline or requirements for initiating
consultation. Depending on the provenience and provenance of the human
remains or cultural items, identifying Indian Tribes or NHOs with
potential cultural affiliation is not complex and a museum or Federal
agency must make a good faith effort to identify consulting parties
within the timeframe provided. There are several resources that can
assist museums and Federal agencies with identifying consulting
parties, including previously prepared summaries or inventories and
published notices. Museums and Federal agencies are responsible for
determining if a new consulting party can be identified. When
consultation is ongoing as of the effective date of these regulations,
there is no requirement to re-initiate consultation, provided the
ongoing consultation included all consulting parties.
We do not intend to impose timelines on lineal descendants, Indian
Tribes, or NHOs to respond to an invitation to consult and can engage
in the repatriation process at their own discretion. However, museums
and Federal agencies are required to act under Sec. 10.10 within
certain timelines, and those timelines are required even if there is no
response from a lineal descendant, Indian Tribe, or NHO to an
invitation to consult. A museum or Federal agency must initiate
consultation prior to completing or updating an inventory under Sec.
10.10, but if there is no response to the invitation to consult, the
museum or Federal agency must complete or update the inventory by the
deadlines required under Sec. 10.10(d) and submit a notice of
inventory completion under Sec. 10.10(e). As the Department noted in
1995 for the first deadline to complete an inventory if there is no
response after repeated attempts to contact Tribal officials by
telephone, fax, and mail, the museum or Federal agency official may be
required to complete the inventory without consultation to meet the
regulatory deadline. The Department suggested museum and Federal agency
officials document attempts to contact Tribal officials to demonstrate
good faith compliance with these regulations and the Act. (1995 Final
Rule, 60 FR 62151).
Although the methods to contact an Indian Tribe or NHO have changed
since 1995, this advice continues to be applicable. Museums and Federal
agencies must document attempts to contact lineal descendants, Indian
Tribes, or NHOs to demonstrate a good-faith effort to consult prior to
the deadlines in these regulations.
We have not made changes to the additional information consulting
parties can request. The language in the regulations is taken directly
from the Act, including the limitations. The regulations do not prevent
a consulting party from requesting any other information not explicitly
identified here. We feel accession records are a type of ``records.''
As noted elsewhere, we advise lineal descendants, Indian Tribes, and
NHOs to make their requests as broad as possible to ensure all
information about human remains or cultural items is available to them
when making a request for repatriation.
We have revised the required content of a notice to simplify the
regulatory text, and we have included language to allow for the name of
a lineal descendant to be withheld. In response to the comments on
amended notices and to coincide with the overall changes in the process
for repatriation, we have removed the requirement for amending a
notice. After publication of a notice under this subpart, if additional
human remains or cultural items are identified that were not previously
included in a summary, inventory, or notice, the museum or Federal
agency must begin with Step 1 in each process for the newly identified
human remains or cultural items to ensure adequate consultation and
notification occurs. We have not required additional information on
documentation, analysis, or exhibition be included in the notice and
feel it is important that these regulations require only the minimum
amount of information required in a notice to prevent unnecessary
delays or public disclosure of information. If an Indian Tribe or NHO
wishes to have additional information included in a notice, it should
inform the museum or Federal agency during consultation of this
preference. The proposed regulations included requirements for
notifying other Indian Tribes or NHOs of a request for repatriation of
human remains and associated funerary objects. We have added these same
requirements for requests for repatriation of cultural items; both the
response to a request and the notice of intended repatriation must be
sent to the requestor and any other consulting party. We cannot require
museums and Federal agencies obtain consent from other consulting
parties to a request for repatriation. Any consulting party may submit
an additional, competing request for repatriation before a repatriation
statement is sent. We have not removed the requirement for a request
for repatriation to be submitted in writing. The existing regulations
contain this same requirement, and the Act is clear that a request for
repatriation is a requirement, although it does not specify the request
be in writing. To require the actions that follow a request
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for repatriation be completed by a certain date, the request for
repatriation must be in writing. Throughout these regulations, we have
provided flexibility in the timeline for sending a repatriation
statement (between 30 and 90 days), and we have retained that timeline.
In response to several comments, we reiterate that competing
requests for repatriation must occur before a repatriation statement is
sent and when a competing request is received, the timeline for a
repatriation statement changes. If a competing request for repatriation
is received the day before a repatriation statement is sent, the museum
or Federal agency must wait to send the repatriation statement and
evaluate the competing requests in accordance with the procedures and
deadlines for evaluating competing requests for repatriation. One
comment remarked that ``[g]iven the busy schedules of Tribes and
museums, and planning costs associated with repatriation, allowing
requests a day before a repatriation statement is scheduled to be
submitted would make decisions and obligations between museums and
Tribe hollow and a potential point of contention.'' This comment is
precisely the main reason the regulations require a repatriation
statement separate from physical transfer. Scheduling and incurring
costs associated with physical transfer should wait until after a
repatriation statement is sent, assuring all parties that their
decisions and obligations can be upheld. In addition, we recommend a
museum or Federal agency send a repatriation statement as early as
possible under the regulations to ensure expeditious return. We further
recommend that in a request for repatriation, the lineal descendant,
Indian Tribe, or NHO request a repatriation statement be sent as early
as possible under the regulations. As discussed elsewhere, if no
competing requests are received, 31 days is the minimum amount of time
between notice publication and sending a repatriation statement.
We decline to remove the timeline for evaluating competing
requests. We believe it is important to require museums and Federal
agencies to make determinations within a set timeframe, even if that
determination is that they cannot determine the most appropriate
requestor. This option allows parties to continue consultation but
ensures all parties have been informed of the museum or Federal
agency's decision. We have not added a timeline for submission of
additional information, but we have included an option for submission
of additional information in the appropriate paragraphs and in Sec.
10.3(e) Competing claims or requests. We note that any request for
repatriation must provide information to meet the criteria and that
information, along with the record of determining cultural affiliation,
should be used to determine the most appropriate requestor. Where
competing requests are between Indian Tribes or NHOs with cultural
affiliation, the priority order under Sec. 10.3(e) Competing claims or
requests, as revised, relies on how the cultural affiliation
determination was made (clearly identified or reasonably identified).
Any party may seek assistance of a court of competent jurisdiction to
resolve a conflict under these regulations. Given the variables in how
a stay of repatriation might be resolved, we cannot require
consultation after a resolution but we can and do require notification
and repatriation within set timeframes.
95. Comment: We received 20 comments requesting that the Department
create a repository for information related to repatriation under this
subpart. Some of these comments requested that the repository include
information on Indian Tribes with cultural affiliation to a
geographical location. Other comments requested a contact database that
is updated every six months. Many of these comments requested a digital
repository with detailed information from inventories, summaries, and
notices that is accessible only to Indian Tribes and NHOs and is
protected from public release under the Freedom of Information Act.
Four comments requested the Department publish a list of the museums
and Federal agencies with the largest collections of human remains or
cultural items.
DOI Response: We decline to add any such requirement to the
regulations as this is a matter of policy, subject to a wide variety of
other laws, regulation