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Proposed Regulations, 43 CFR 10

May 28, 1993

 

Federal Register / Vol. 58, No. 102 / Friday, May 28, 1993 / Proposed
Rules 31123 to 31134
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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

RIN 1024-AC07

Native American Graves Protection and Repatriation Act Regulations.

AGENCY: Department of the Interior.

ACTION: Notice of proposed rulemaking (NPRM).
------------------------------------------------------------------------
SUMMARY: By this action we are publishing proposed regulations for
implementing the Native American Graves Protection and Repatriation Act
of 1990. These regulations are mandated by Native American Graves
Protection and Repatriation Act of 1990 and their publication is
intended to solicit comments from Indian tribes, Federal agencies,
museums and members of the public prior to publishing the regulations in
final form. These regulations develop a systematic process for
determining the rights of lineal descendants and members of Indian
Tribes and Native Hawaiian organizations to certain Native American
human remains and cultural items with which they are affiliated.
DATES: Written comments will be accepted until [60 days following
publication of this notice].
ADDRESSES: Comments on the proposal are to be marked "Docket No. 1024-
AC07" and mailed in duplicate to Departmental Consulting Archeologist,
Archeological Assistance Division, National Park Service, Box 37127,
Washington DC 20013-7127; or delivered in duplicate to room 210, 800
North Capital Street, Washington DC. Comments may be inspected at room
210 on weekdays, except Federal holidays, between 8:30 a.m. and 5 p.m.

FOR FURTHER INFORMATION CONTACT: Dr. Francis P. McManamon, Departmental
Consulting Archeologist, Archeological Assistance Division, National
Park Service, Box 37127, Washington DC 20013. Telephone: (202) 343-4101.
Fax: (202) 523-1547.
SUPPLEMENTARY INFORMATION:

Background

On November 16, 1990, President George Bush signed into law the
Native American Graves Protection and Repatriation Act, hereafter
referred to as the Act. The Act addresses the rights of lineal
descendants and members of Indian Tribes and Native Hawaiian
organizations to certain Native American human remains and cultural
items with which they are affiliated. Section 13 of the Act requires
the Secretary of the Interior to promulgate regulations to carry out
provisions of the Act. Readers are reminded that the requirements of
the Act, including all deadlines, apply regardless of the effective date
of these regulations.
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These regulations consist of 17 sections divided into four subparts
and five appendices. Subpart A includes introductory sections outlining
the purpose and applicability of these regulations and presenting
definition of 31 key terms. Subpart B includes procedures implementing
section 3 of the Act related to the intentional excavation and
inadvertent discovery of human remains or cultural items from Federal or
Tribal lands. Subpart C includes procedures implementing sections 5, 6,
and 7 of the Act for conducting summaries and inventories and
repatriating human remains or cultural items in museums or Federal
collections. Subpart D includes general procedures for determining
lineal descent and cultural affiliation, operation of the Review
Committee, and resolving disputes. Appendices A through E include
documents to clarify the procedures outlined in earlier subparts.
Section 4 of the Act, which deals with illegal trafficking and is
incorporated directly into chapter 53 of title 18, United States Code,
does not require implementing regulations.

Section by Section Analysis

Section 10.1
This section outlines the purpose and applicability of the
regulations.

Section 10.2
This section defines terms used throughout the regulations. The 31
definitions are grouped into five categories concerning: (a)
Participants, (b) human remains and cultural items, (c) cultural
affiliation, (d) location, and (e) procedures.
Subsection (a) defined fifteen principal organizations and
individuals who implement or are referenced in these regulations.
Definitions of "museum" and "Indian Tribe" have been expanded to clarify
the statutory language. For "museum," additional clarification and an
example are included to elaborate the meaning of "receives Federal
funds."
The definition of Indian Tribe has been clarified to refer to those
Indian Tribes and Native Alaskan entities on the current list of
recognized Indian tribes as published by the Bureau of Indian Affairs.
The definition of Indian Tribe used in the Act was explicitly drawn from
the American Indian Self Determination and Education Assistance Act (25
U.S.C. 450b) which is interpreted to refer to only those Indian Tribes
and Native Alaskan entities recognized by the Bureau of Indian Affairs.
This definition is also consistent with the regulatory definition of the
term "Indian Tribe" (43 CFR 7.3(f)) as developed in connection with the
Archaeological Resources Protection Act ("ARPA"), 16 U.S.C. 470aa et
seq. For use in these regulations, the term "Indian Tribe" includes
Native Hawaiian organizations. Comment is particularly invited as to the
proposed definition of the term "Indian Tribe."
Subsection (b) defines the types of human remains and objects
covered by the regulations. "Human remains," which were not defined by
the Act, are defined broadly to include all Native American human
remains with exceptions for remains or portions of remains freely given
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by the individual from whom they were obtained and for remains
incorporated into cultural items. Comment is requested particularly on
the sentence in the definition which defines human remains that have
been incorporated into a cultural item as part of that cultural item,
rather than as human remains.
"Cultural item" is used in a slightly different way than in the
Act, referring here only to funerary objects, sacred objects, and
objects of cultural patrimony, and not to human remains. This different
usage, however, is only editorial and does not alter the requirements of
the Act with respect to treatment of human remains and other cultural
items. This modified usage is intended to address the offense some
individuals have expressed over referring to human remains as "items."
The definitions of "sacred objects" and "objects of cultural patrimony"
have been elaborated to incorporate language from the House and Senate
Committee reports relating to the Act.
Subsection (c) reiterates the statutory definition of "cultural
affiliation."
Subsection (d) defines three types of property on which human
remains or cultural items are discovered or excavated. The statutory
definition of "Federal lands" has been elaborated to clarify that
"control" refers to "those lands in which the United States has a legal
interest sufficient to permit it to apply these regulations without
abrogating the otherwise existing legal rights of a person." The
statutory definition of "Tribal lands" has been elaborated to clarify
that the regulations do not apply to strictly private land located
within the boundaries of an Indian reservation but do apply to
allotments held in trust or subject to a restriction on alienation by
the United States." The Act's legislative history supports the
interpretation that the Congress did not intend the Act to apply to
private lands within the boundaries of an Indian reservation. The
definition of "aboriginal lands" is derived from statutory language.
Subsection (e) defines six processes that are required to implement
these regulations.

Section 10.3
This section presents requirements and procedures for implementing
section 3 (c) of the Act related to treatment and determining ownership
and control of human remains and cultural items that are intentionally
excavated from Federal or Tribal lands after November 16, 1990. The
section describes the actions that Federal agency officials must take to
consult with Indian Tribes and to ensure proper treatment of human
remains and cultural items prior to turning them over to appropriate
lineal descendant or Indian Tribe. Section 10.3 (c)(3) urges Federal
agency officials to coordinate consultation requirements and any
subsequent agreement for compliance under Section 106 of the National
Historic Preservation Act (16 U.S.C. 470 et seq.) with these
regulations. Section 10.3 (c)(4) urges Indian Tribes to follow these
regulations regarding treatment and disposition of human remains or
cultural items excavated on Tribal lands.

Section 10.4
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This section presents procedures for implementing section 3 (d) of
the Act related to determining ownership and control of human remains
and cultural items that are discovered inadvertently on Federal or
Tribal lands after November 16, 1990. Section 10.4 (e) outlines
procedures for avoiding or shortening the required cessation of activity
through execution of a written, binding agreement between the necessary
parties. Section 10.4 (f) urges Indian Tribes to follow these
regulations regarding disposition of human remains or cultural items
discovered on Tribal lands. Section 10.4 (f) urges Federal agency
officials to coordinate their responsibilities under this section with
their emergency discovery responsibilities under section 106 of the
National Historic Preservation Act (16 U.S.C. 470f, 36 CFR 800.11) or
the Archeological and Historic Preservation Act (16 U.S.C. 469 (a-c)).

Section 10.5
This section presents consultation requirements applicable to both
intentional excavations and inadvertent discovery of human remains or
cultural items on Federal lands or Tribal lands after November 16, 1990.

Section 10.6
This section presents the priority of ownership of human remains or
cultural items excavated or discovered on Federal lands or Tribal lands
after November 16, 1990. The drafters point out that § 10.6 (a)
explicitly recognizes Indian Tribes' sovereignty over human remains or
cultural items excavated or discovered on Tribal land. Section 10.6(c)
includes public notice requirements prior to the repatriation of human
remains and cultural items discovered on Federal lands. This is
considered to be required as a matter of due process of law although not
specifically required by the Act.

Section 10.7
This section has been reserved for procedures for the disposition
of unclaimed human remains and cultural items excavated or discovered on
Federal lands or Tribal lands after November 16, 1990.

Section 10.8
This section presents procedures for implementing section 7 of the
Act related to conducting summaries of collections which may contain
unassociated funerary objects, sacred objects, or objects of cultural
patrimony in the collections of Federal agencies or museums receiving
Federal funds. The drafters point out that an ambiguity in the statutory
language left it unclear whether summaries should include only those
unassociated funerary objects, sacred objects, or objects of cultural
patrimony which are culturally affiliated with a particular Indian Tribe
or to the entire collection which may include such items. As the
statute only requires consultation after completion of the summary, the
latter interpretation has been chosen. Section 10.8(c) requires that
summaries be completed no later than November 16, 1993. This deadline is
statutorily established and applies regardless of the effective date of
these regulations. The statutory language does not provide for
extensions of this deadline. Section 10.8(e) requires the documentation
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of individual items and the determination of their cultural affiliation
followed by public notification prior to repatriation of any individual
items included within a summary. The drafters consider that public
notice is required as a matter of due process of law although the Act
does not specifically so require.

Section 10.9
This section presents procedures for implementing section 5 of the
Act related to conducting inventories of human remains and associated
funerary objects in the collections of Federal agencies or museums
receiving Federal funds.

Section 10.10
This section presents criteria for repatriating humans remains and
cultural items in the collections of Federal agencies or museums
receiving Federal funds. Comment particularly is sought on § 10.10
(c)(3) which incorporates the drafters' understanding of the
relationship between the Fifth Amendment of the United States
Constitution and the Act's repatriation requirements. It is our
interpretation that the Congress did not intend to have the Act result
in the taking of private property within the meaning of the Fifth
Amendment. This interpretation follows the usual rule of statutory
construction to the effect that an Act of Congress is not to be
construed as resulting in the taking of private property unless the Act
clearly so indicates. The Act does not expressly state that a taking of
property is intended, but, to the contrary, references the application
of the Fifth Amendment at least in certain respects. The drafters,
however, do not intend to suggest that there are many circumstances
where a museum would be legally entitled to assert the Fifth Amendment
as grounds to decline to repatriate human remains and cultural items as
otherwise required by the Act.

Section 10.11
This section has been reserved for procedures for the disposition
of culturally unidentifiable human remain in the collections of Federal
agencies or museums receiving Federal funds.

Section 10.12
This section has been reserved for procedures for assessing civil
penalties upon museums receiving Federal funds that fail to comply with
provisions of these regulations.

Section 10.13
This section has been reserved for procedures for implementing
provisions of these regulations after the November 16, 1995 deadline for
inventory completion.

Section 10.14
This section presents general procedures for determining lineal
descent and cultural affiliation for human remains or cultural items
either in the collections of Federal agencies or museums receiving
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Federal funds or excavated or discovered on Federal or Tribal lands.
Section 10.14 (b) requires that a lineal descendant be able to trace his
or her ancestry directly and without interruption by means of the
traditional kinship system of the appropriate Indian Tribe to a known
(named) individual whose remains, funerary objects, or sacred objects
are being requested. Section 10.14 (c) requires that determination of
cultural affiliation includes existence of an identifiable present-day
Indian Tribe, evidence of the existence of and identifiable earlier
group, and evidence of the existence of a shared group identity that can
be reasonably traced between the present-day Indian tribe and the
earlier group.

Section 10.15
This section presents general limitations and remedies for
repatriation of human remains or cultural items either in the
collections of Federal agencies or museums receiving Federal funds or
excavated or discovered on Federal or Tribal lands. Section 10.15 (b)
has been reserved for procedures for dealing with human remains or
cultural items that remain unclaimed after passage of the statutory
deadlines.

Section 10.16
This section presents general provisions for the conduct of the
seven member Review Committee appointed by the Secretary of the Interior
from nominations submitted by Indian Tribes and Native Hawaiian
organizations and national museum organizations and scientific
organizations pursuant to section 8 of the Act.

Section 10.17
This section presents general provisions for the resolution of
disputes including provisions for the involvement of the Review
Committee.

Appendix A
This section contains a sample summary of collections containing
unassociated funerary objects, sacred objects, or objects of cultural
patrimony.

Appendix B
This section has been reserved for a sample inventory of human
remains and associated funerary objects.

Appendix C
This section contains a sample notice of inventory completion.

Appendix D
This section has been reserved for a sample memorandum of
understanding dealing with repatriation of human remains or cultural
items in Federal collections.

Appendix E
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This section has been reserved for a sample memorandum of
understanding dealing with intentional excavations on Federal or Tribal
lands.

Public Participation
Any person may obtain a copy of this NPRM by submitting a request
to the Departmental Consulting Archeologist, Archeological Assistance
Division, National Park Service, Box 37127, Washington DC 20013-7127, by
calling (202) 343-4101, or by faxing a request to (202) 523-1547.
Requests must identify the notice number of this NPRM.
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments relating to the effects that might result from
adoption of the proposals contained in this notice are invited.
Communications should identify the regulatory docket or notice number
and be submitted in duplicate to the address listed above. Commentors
wishing the National Park Service to acknowledge receipt of their
comments must submit with those comments a self-addressed, stamped
postcard on which the following statement is made: "Comments to Docket
No 1024-AC07." The postcard will be date stamped and returned to the
commentor. All communications received on or before the closing date
for comments will be considered by the Departmental Consulting
Archeologist before taking action on the proposed rule. The proposals
contained in this notice may be changed in light of comments received.
All comments submitted will be available for examination in the rule
Docket both before and after the closing date for comments.

Drafting Information
These proposed regulations were prepared by Dr. Francis P.
McManamon (Departmental Consulting Archeologist, National Park Service),
Dr. C. Timothy McKeown (NAGPRA Program Leader, National Park Service),
and Mr. Lars Hanslin (Senior Attorney, Office of the Solicitor), in
consultation with the Native American Graves Protection and Repatriation
Review Committee as directed by section 8 (c)(7) of the Act.

Compliance with the Paperwork Reduction Act
The collections of information contained in this rule have been
submitted to the Office of Management and Budget for approval as
required by 44 U.S.C. 3501 et seq. The collection of this information
will not be required until it has been approved by the Office of
Management and Budget. Public reporting burden for this collection of
information is expected to average 100 hours for the exchange of
summary/inventory information between a museum and an Indian Tribe and
six hours per response for the notification to the Secretary of the
Interior, including time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collected information. Send comments regarding this
burden estimate or any other aspects of this collection of information,
including suggestions for reducing the burden, to Information Collection
Officer, National Park Service, Box 37127, Washington D.C. 20013 and to
the Office of Management and Budget, Paperwork Reduction Project,
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Washington DC 20503.

Compliance with Other Laws
The Department of the Interior has determined that this document is
not a major rule under Executive Order 12291.
The Department of the Interior certifies that this document does
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The Department of the Interior has determined that these proposed
regulations meet the applicable standards provided in sections 2(a) and
2(b) of Executive Order No. 12278.
The Department of the Interior has determined that these proposed
regulations will not have a significant effect on the quality of the
human environment under the National Environmental Policy Act (42 U.S.C.
4321-4347). In addition, the Department of the Interior has determined
that these proposed regulations are categorically excluded from the
procedural requirements of the National Environmental Policy Act by
Departmental regulations in 516 DM 2. As such, neither an Environmental
Assessment nor an Environmental Impact statement has been prepared.

List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Graves, Hawaiian Natives,
Historic preservation, Indians -- Claims, Indians -- lands, Museums,
Public lands, Reporting and record keeping requirements.
For the reasons set out in the preamble, 43 CFR Subtitle A is
proposed to be amended as follows.

Part 10 is added to read as follows:
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS

Subpart A--Introduction

Sec.
10.1 Purpose and applicability.
10.2 Definitions

Subpart B--Human Remains or Cultural Items from Federal or Tribal Lands

10.3 Intentional excavations.
10.4 Inadvertent discoveries.
10.5 Consultation.
10.6 Ownership.
10.7 Disposition of unclaimed human remains and cultural items.
[Reserved]


Subpart C--Human Remains or Cultural Items in Museums and Federal
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Collections


10.8 Summaries.
10.9 Inventories.
10.10 Repatriation.
10.11 Disposition of culturally unidentifiable human remains.
[Reserved]
10.12 Civil penalties. [Reserved]
10.13 Future applicability. [Reserved]


Subpart D--General


10.14 Lineal descent and cultural affiliation.
10.15 Repatriation limitations and remedies.
10.16 Review committee.
10.17 Dispute resolution.
Appendix-A to Part 10--Sample summary.
Appendix-B to Part 10--Sample inventory. [Reserved]
Appendix-C to Part 10--Sample notice of inventory completion.
Appendix-D to Part 10--Sample memorandum of understanding repatriation.
[Reserved]
Appendix-E to Part 10--Sample memorandum of understanding intentional
excavation. [Reserved]

Authority: 25 U.S.C. 3001 et seq.
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Subpart A--Introduction

§ 10.1 Purpose and Applicability.

(a) Purpose. These regulations implement provisions of the Native
American Graves Protection and Repatriation Act of 1990 (Pub.L. 101-601;
25 U.S.C. 3001-3013;104 Stat. 3048-3058). These regulations develop a
systematic process for determining the rights of lineal descendants and
members of Indian Tribes and Native Hawaiian organizations to certain
Native American human remains and cultural items with which they are
affiliated.

(b) Applicability. (1) These regulations pertain to the
identification and appropriate disposition of human remains and cultural
items that are:
(i) In Federal possession or control; or
(ii) In the possession or control of an institution or State
or local government receiving Federal funds; or
(iii) Excavated or discovered on Federal or Tribal lands.

(2) These regulations apply to human remains and cultural items
which are indigenous to Alaska, Hawaii, and the continental United
States but not to territories of the United States.

§ 10.2 Definitions.
In addition to the term Act, which shall mean the Native American
Graves Protection and Repatriation Act as described above, definitions
used in these regulations are grouped in five classes: Participants;
human remains and cultural items; cultural affiliation; location; and
procedures.
(a) Participants are persons who implement or are referenced in
these regulations. As used in these regulations, the term:
(1) Secretary means the Secretary of the Interior.
(2) Review Committee means the advisory committee established
pursuant to section 8 of the Act.
(3) Departmental Consulting Archeologist means the official of
the Department of the Interior designated by the Secretary as
responsible for the administration of matters relating to these
regulations. Communications to the Departmental Consulting Archeologist
should be addressed to:
Departmental Consulting Archeologist,
Archeological Assistance Division,
National Park Service,
P.O. Box 37127,
Washington, DC 20013-7127.
(4) Federal agency means any department, agency, or
instrumentality of the United States. Such term does not include the
Smithsonian Institution as stipulated in section 2 (a)(4) of the Act.
(5) Federal agency official means the individual within a
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Federal agency designated as being responsible for matters relating to
these regulations.
(6) Museum means any institution or State or local government
agency (including any institution of higher learning) that has
possession of, or control over, human remains or cultural items and
receives Federal funds. The phrase "receives Federal funds" means the
receipt of funds by a museum after November 16, 1990, from a Federal
agency through any grant, loan, contract (other than a procurement
contract), or other arrangement by which a Federal agency makes or made
available to a museum assistance in the form of funds. Federal funds
provided for any purpose that are received by a larger entity of which
the museum is a part are considered Federal funds for the purposes of
these regulations. For example, if a museum is a part of a State or
local government or a private university and the State or local
government or private university receives Federal funds for any purpose,
the museum is considered to receive Federal funds.
(7) Museum official means the individual within a museum
designated as being responsible for matters relating to these
regulations.
(8) Native American means of, or relating to, a Tribe, people,
or culture indigenous to the United States.
(9) Indian Tribe means any Tribe, band, nation, or other
organized Indian group or community of Indians, including any Alaska
Native village or corporation as defined in or established by 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. Groups
that wish to determine if they qualify as an Indian Tribe under this
definition should consult the Federal Register for the current list of
recognized Indian Tribes as published by the Bureau of Indian Affairs,
U.S. Department of the Interior. Groups which are not included in this
list but wish to be considered as an Indian Tribe for the purposes of
these regulations should contact the Bureau of Indian Affairs to
ascertain whether they are qualified. Generally, in order to be
acknowledged as an Indian Tribe under these regulations, an Indian
entity must be ethnically and culturally identifiable and have had a
substantially autonomous and continuous tribal existence throughout
history until the present. Groups, associations, organizations, or
corporations of any character formed in recent times generally do not
qualify, nor do splinter groups, political factions, communities, or
entities of any character which separate from the main body of an Indian
Tribe unless it can clearly identify that the group has functioned
throughout history as an autonomous entity. Except as otherwise
indicated, the term Indian Tribe when used in these regulations shall
also mean Native Hawaiian organizations as defined below.
(10) Native Hawaiian means any individual who is a descendant
of the aboriginal people who, prior to 1778, occupied and exercised
sovereignty in the area that now constitutes the State of Hawaii.
(11) Native Hawaiian organization means any organization that:

(i) Serves and represents the interests of Native
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Hawaiians;
(ii) Has as a primary and stated purpose the provision of
services to Native Hawaiians; and
(iii) Has expertise in Native Hawaiian affairs.
Such organizations shall include the Office of Hawaiian
Affairs and Hui M lama I N K puna O Hawai i Nei.
(12) Indian tribe official means the individual officially
designated by the governing body of an Indian tribe as responsible for
matters relating to these regulations.
(13) Traditional religious leader who is recognized by members
of that Indian tribe as:
(i) Being responsible for performing cultural duties
relating to the ceremonial or religious traditions of that group, or
(ii) Exercising a leadership role in an Indian tribe
based on the group's cultural, ceremonial, or religious practices.
(14) Lineal descendant means an individual tracing his or her
ancestry directly and without interruption by means of the traditional
kinship system of the appropriate Indian tribe to a known Native
American individual whose remains, funerary objects, or sacred objects
are being claimed under these regulations.
(15) Person means an individual, partnership, corporation,
trust, institution, association, or any other private entity, or, any
official, employee, agent, department, or instrumentality of the United
States, or of any Indian tribe, or of any State or political subdivision
thereof.
(b) Human remains and cultural items are specific Native American
human remains or objects. For the purposes of these regulations, the
term:
(1) Human remains means the physical remains of a human body,
including but not limited to bones, teeth, hair, ashes, or mummified or
otherwise preserved soft tissues of a person of Native American
ancestry. The term does not include remains or portions of remains
freely given by the individual from whose body there were obtained, such
as hair made into ropes or nets. For the purposes of determining
cultural affiliation, human remains incorporated into a cultural item,
as defined below, shall be considered as part of that cultural item.
(2) Cultural items means, collectively, associated funerary
objects, unassociated funerary objects, sacred objects, and objects of
cultural patrimony.
(3) Associated funerary objects means:
(i) Items that, 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 later with or near individual human remains that
also are currently in the possession or control of a museum or Federal
agency, or
(ii) Other items reasonably believed to have been made
exclusively for burial purposes or to contain human remains.
(4) Unassociated funerary objects means items that, as a part
of the death rite or ceremony of a culture, are reasonably believed to
have been intentionally placed with or near individual human remains,
either at the time of death or later, but for which the associated human
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remains are not in the possession or control of a museum or Federal
agency. These cultural items must be identified by a preponderance of
the evidence as having been removed from a specific burial site of an
individual culturally affiliated with a particular Indian Tribe or as
being related to specific individuals or families or to known human
remains.
(5) Sacred objects means items that are specific ceremonial
objects needed by traditional Native American religious leaders for the
current practice of traditional Native American religions by their
present-day adherents. While many items, from ancient pottery shards to
arrowheads, might be imbued with sacredness in the eyes of an
individual, these regulations are specifically limited to objects that
were devoted to a traditional Native American religious ceremony or
ritual and which have religious significance or function in the
continued observance or renewal of such ceremony.
(6) Objects of cultural patrimony means cultural items having
ongoing historical, traditional, or cultural importance central to the
Indian Tribe itself, rather than property owned by an individual Tribal
member. These objects are of such central importance that they may not
be alienated, appropriated, or conveyed by any individual Tribal member.
Such objects must have been considered inalienable by the culturally
affiliated Indian Tribe at the time the object was separated from the
group. Objects of cultural patrimony include items such as Zuni War
Gods, the Confederacy Wampum Belts of the Iroquois, and other objects of
similar character and significance to the Indian Tribe as a whole.
(c) Cultural affiliation means that there is a relationship of
shared group identity which can reasonably be traced historically or
prehistorically between members of a present-day Indian tribe or Native
Hawaiian organization and an identifiable earlier group.
(d) Location describes the property on which human remains or
cultural items are discovered or excavated. As used in these regulations
the term:
(1) Federal lands means any land other than Tribal lands that
are controlled or owned by the United States Government, including lands
selected by but not yet conveyed to Alaska Native Corporations and
groups organized pursuant to the Alaska Native Claims Settlement Act (43
U.S.C. 1601 et seq.). United States "control" refers to those lands in
which the United States has a legal interest sufficient to permit it to
apply these regulations without abrogating the otherwise existing legal
rights of a person.
(2) Tribal lands means all lands, excluding privately owned
lands, which:
(i) Are within the exterior boundaries of any Indian
reservation including, but not limited to, allotments held in trust or
subject to a restriction on alienation by the United States;
(ii) Comprise dependent Indian communities as recognized
pursuant to 18 U.S.C. 1151;
(iii) Are administered for the benefit of Native
Hawaiians pursuant to the Hawaiian Homes Commission Act of 1920 and
Section 4 of the Hawaiian Statehood Admission Act (Pub.L. 86-3; 73 Stat.
6).
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(3) Aboriginal lands means Federal land that is recognized by
a final judgment of the Indian Claims Commission or the United States
Claims Court as land aboriginally occupied by an Indian Tribe.
(e) Procedures are the processes that are required to implement
these regulations. As used in these regulations, the term:
(1) Summary means the written description of collections that
may contain unassociated funerary objects, sacred objects, and objects
of cultural patrimony required by § 10.8 of these regulations.
(2) Inventory means the item-by-item description of human
remains and associated funerary objects.
(3) Intentional excavation means the planned archeological
removal of human remains or cultural items found under or on the surface
of Federal or Tribal lands.
(4) Inadvertent discovery means the unanticipated encounter or
detection of human remains or cultural items found under or on the
surface of Federal or Tribal lands pursuant to Section 3 (d) of the Act.
(5) Possession by a museum or Federal agency of human remains
or cultural items means having physical custody of such objects with a
sufficient legal interest to lawfully treat the objects as part of its
collection for purposes of these regulations.
(6) Control means having a legal interest in human remains or
cultural items sufficient to lawfully permit the museum or Federal
agency to treat the objects as part of its collection for purposes of
these regulations whether or not the remains and cultural items are in
the physical custody of the museum or Federal agency.

Subpart B--Human Remains and Cultural Items from Federal or Tribal Lands

§ 10.3 Intentional Excavations.
(a) General. This section implements Section 3 (c) of the Act
regarding the ownership or control of human remains and cultural items
that are intentionally excavated from Federal or Tribal lands after
November 16, 1990.
(b) Specific Requirements. These regulations permit the intentional
excavation of human remains or cultural items from Federal or Tribal
lands only if:
(1) The objects are excavated pursuant to applicable legal
requirements, including, if otherwise required, a permit issued pursuant
to the Archaeological Resources Protection Act (16 U.S.C. 470aa et
seq.);
(2) The objects are excavated after consultation with or, in
the case of Tribal lands, consent of, the appropriate Indian Tribe;
(3) The disposition of the objects is consistent with their
ownership as described below; and
(4) Proof of the consultation or consent is shown.
(c) Procedures. (1) Any person who proposes to undertake an
activity on Federal or Indian lands that may result in the excavation of
human remains or cultural items shall immediately notify in writing the
responsible Federal agency official or Indian tribe official. The
requirements of these regulations regarding the planned activity shall
apply whether or not this required notice is or was duly provided.
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(2) The Federal agency official shall take reasonable steps to
determine whether a planned activity, of which he or she has received
notice or otherwise is aware, may result in the excavation of human
remains or cultural items from Federal lands. Prior to issuing any
approvals or permits for activities otherwise required by law, the
Federal agency official shall notify in writing the Indian Tribe or
Tribes that are likely to be culturally affiliated with any human
remains or cultural items that may be excavated. The Federal official
shall also notify any present-day Indian Tribe which aboriginally
occupied the area of the activity and any other Indian Tribes that the
Federal official reasonably believes may have a relationship to the
human remains and cultural items that are expected to be found. The
notice shall be in writing and shall describe the planned activity, its
general location, the basis upon which it was determined that human
remains or cultural items may be excavated, and, the basis for
determining likely cultural affiliation pursuant to § 10.14. The notice
shall also propose a time and place for meetings or consultations to
further consider the activity, the Federal agency's proposed treatment
of any human remains or cultural items that may be excavated, and the
proposed disposition of any excavated human remains or cultural items.
Consultation shall be conducted pursuant to § 10.5.
(3) If the planned activity is also subject to review under
section 106 of the National Historic Preservation Act (16 U.S.C. 470 et
seq.), the Federal agency official should coordinate consultation and
any subsequent agreement for compliance conducted under that Act with
the requirements of § 10.3 (c)(2) and § 10.5. Compliance with these
regulations does not relieve Federal officials of requirements to comply
with section 106 of the National Historic Preservation Act (16 U.S.C.
470 et seq.).
(4) If an Indian Tribe receives notice of a planned activity
or otherwise becomes aware of a planned activity that may result in the
excavation of human remains or cultural items on Indian lands, the
Indian Tribe should take appropriate steps to make certain that any
human remains or cultural items excavated or discovered as a result of
the planned activity are disposed of in accordance with their ownership
as described in § 10.6.


§ 10.4 Inadvertent discoveries.
(a) General. This section implements section 3 (d) of the Act
regarding the ownership or control of human remains and cultural items
that are discovered inadvertently on Federal or Tribal lands after
November 16, 1990.
(b) Discovery. Any person who knows of the discovery of human
remains or cultural items on Federal or Tribal lands after November 16,
1990, must provide notification of the discovery, in writing, to the
responsible Federal agency official with respect to Federal lands, and,
with respect to Tribal lands, to the responsible Indian Tribe official.
The requirements of these regulations regarding discoveries shall apply
whether or not a discovery is duly reported.
(c) Ceasing activity. If the discovery occurred in connection with
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an on-going activity on Federal or Tribal lands, the person, in addition
to providing the notice described above, shall stop the activity in the
area of the discovery and make a reasonable effort to protect the human
remains or cultural items discovered.
(d) Federal lands. Upon receipt of such a notification with respect
to Federal lands, the responsible Federal agency official shall:
(1) Immediately certify receipt of the notification;
(2) Take immediate steps, if necessary, to secure and protect
discovered human remains and cultural items, including, as appropriate,
stabilization or covering;
(3) Notify within one (1) working day the known Indian Tribe
or Tribes likely to be culturally affiliated with the discovered human
remains or cultural items, and, if known, the present-day Indian Tribe
which aboriginally occupied the area and any other Indian Tribe that is
reasonably known to have a relationship to the human remains or cultural
items. The notice shall include pertinent information as to kind of
material, condition, and the circumstances of the discovery;
(4) Initiate consultation on the discovery pursuant to § 10.5.
(e) Resumption of activity. The activity that resulted in the
inadvertent discovery may resume thirty (30) days after certification by
the notified Federal agency or Indian Tribe of receipt of the notice of
discovery if the resumption of the activity is otherwise lawful. The
activity may also be resumed, if otherwise lawful, at any time that a
written, binding agreement is executed between the necessary parties
that adopts a recovery plan for the removal, treatment, and disposition
of the human remains or cultural items in accordance with their
ownership.
(f) Indian tribes. Indian Tribes that are notified or otherwise
become aware of a discovery of human remains or cultural items on their
Tribal lands should take appropriate steps to assure that the human
remains or cultural items are protected and disposed of in accordance
with their ownership as described below.
(g) Federal agency officials. Federal agency officials should
coordinate their responsibilities under this section with their
emergency discovery responsibilities under Section 106 of the National
Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 36 CFR 800.11
or section 3 (a) of the Archeological and Historic Preservation Act (16
U.S.C. 469 (a-c)). Compliance with these regulations does not relieve
Federal officials of the requirement to comply with section 106 of the
National Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 36 CFR
800.11 or section 3 (a) of the Archeological and Historic Preservation
Act (16 U.S.C. 469 (a-c)).


§ 10.5 Consultation.
Consultation as part of the discovery or excavation of human
remains or cultural items on Federal lands shall be conducted in
accordance with the following requirements.
(a) Consulting parties. Federal agency officials shall consult with
Indian Tribe officials and traditional religious leaders and known
lineal descendants:
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(1) That are, or are likely to be, culturally affiliated with
human remains and cultural items; and
(2) On whose aboriginal lands the planned activity will occur
or where the discovery has been made.
(b) Initiation of consultation. Upon receiving notice of, or
otherwise becoming aware of, an inadvertent discovery or planned
activity that has resulted or may result in the excavation or discovery
of human remains and cultural items on Federal lands, the responsible
Federal agency official shall, as part of the procedures described in §
10.3 and § 10.4, take appropriate steps to establish the likely cultural
affiliation of the objects pursuant to § 10.14. The Federal official
shall notify in writing the Indian Tribe or Tribes that are likely to be
culturally affiliated with them, and, if known, the lineal descendants
of the deceased individual, as well as any present-day Indian Tribe
which aboriginally occupied the area and other Indian Tribes that may
have a relationship to the human remains and cultural items. The
consultation shall seek to identify traditional religious leaders who
should also be consulted and seek to identify, where applicable, lineal
descendants and Indian Tribes related to the human remains and cultural
items.
(c) Provision of information. During the consultation process, as
appropriate, the Federal agency official shall provide the following
information in writing to officials of Indian Tribes that are or are
likely to be culturally affiliated with human remains and cultural items
excavated or discovered on Federal lands:
(1) A list of all Indian Tribes that are being, or have been,
consulted regarding the particular human remains and cultural items;
(2) An indication that additional documentation used to
identify cultural affiliation will be supplied upon request.
(d) Requests for information. During the consultation process,
Federal agency officials shall request, as appropriate, the following
information from Indian Tribes that are, or are likely to be, culturally
affiliated with excavated or discovered human remains and cultural
items:
(1) Name and address of the Indian Tribe official to act as
representative in consultations related to particular human remains and
cultural items;
(2) Names and appropriate methods to contact lineal
descendants who should be contacted to participate in the consultation
process;
(3) Names and appropriate methods to contact any traditional
religious leaders who should be consulted regarding the collections;
(4) Recommendations on how the consultation process should
be conducted; and
(5) Kinds of cultural items that the Indian Tribe considers
likely to be unassociated funerary objects, sacred objects, or objects
of cultural patrimony.
(e) Written plan of action. The consultation should result in a
written plan, approved and signed by the Federal agency official.
Indian Tribe official(s) and other parties may sign as appropriate. At a
minimum, the plan of action should document the following:
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(1) The kinds of objects to be considered as cultural items as
defined in § 10.2 (b);
(2) The specific information used to determine cultural
affiliation pursuant to §10.14;
(3) The treatment, care, and handling of human remains and
cultural items recovered;
(4) The archeological recording of the human remains and
cultural items recovered;
(5) The kinds of analysis for each kind of object;
(6) Any steps to be followed to contact Indian Tribe officials
at the time of excavation of specific human remains or cultural items;
(7) The kind of traditional treatment, if any, to be afforded
the human remains or cultural items;
(8) The nature of reports to be prepared; and
(9) The disposition of human remains and cultural items in
accordance with their ownership.
(f) Programmatic agreements. Whenever possible, Federal agencies
should enter into programmatic agreements with Indian Tribes that are
culturally affiliated with specific human remains or cultural items and
have claimed, or are likely to claim, those human remains or cultural
items excavated or discovered on Federal lands. These agreements should
address all Federal agency land management activities that could result
in the excavation or discovery of human remains or cultural items.
Consultation should lead to the establishment of a process for
effectively implementing the requirements of these regulations regarding
standard consultation procedures, the establishment of cultural
affiliation consistent with procedures in this section, and the
treatment and disposition of human remains or cultural items. The
agreements, or the correspondence related to the effort to reach
agreements, shall constitute proof of consultation as required by these
regulations.
(g) Traditional religious leaders. The Federal agency official
shall be cognizant that Indian Tribe officials may need to confer with
traditional religious leaders prior to making recommendations.


§ 10.6 Ownership.
(a) Priority of ownership. This section implements section 3 (a) of
the Act, subject to the limitations of § 10.15, regarding the ownership
or control of human remains and cultural items excavated or discovered
on Federal or Tribal lands after November 16, 1990. Ownership or
control of these human remains and cultural items is, with priority
given in the order listed:
(1) In the case of human remains and associated funerary
objects, in the lineal descendant of the deceased individual as
determined pursuant to § 10.14 (b);
(2) In cases where a lineal descendant cannot be ascertained
or no claim is made, and with respect to unassociated funerary objects,
sacred objects, and objects of cultural patrimony:
(i) In the Indian Tribe on whose Tribal land the human
remains or cultural items were discovered;
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(ii) In the Indian Tribe that has the closest cultural
affiliation with the human remains or cultural items as determined
pursuant to § 10.14 (c); or
(iii) In circumstances in which the cultural affiliation
of the human remains and cultural items cannot be ascertained and the
objects were discovered 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 an Indian Tribe:
(A) In the Indian Tribe aboriginally occupying the
Federal land on which the objects were discovered, or
(B) If it can be shown by a preponderance of the
evidence that a different Indian Tribe has a stronger cultural
relationship with the human remains and cultural items, in the Indian
Tribe that has the strongest demonstrated relationship.
(b) The ownership of human remains or cultural items and other
provisions of the Act apply to all planned excavations and inadvertent
discoveries made after November 16, 1990, including those made before
the effective date of these regulations.
(c) Final notice, claims and disposition with respect to Federal
lands. Upon determination of the lineal descendant or Indian Tribe that
appears to own particular human remains or cultural items excavated or
discovered on Federal lands, the responsible Federal agency official
shall, subject to the notice required herein and the limitations of §
10.15, transfer ownership or control of the objects to the Indian Tribe
or lineal descendants in accordance with appropriate procedures, which
shall respect traditional customs and practices. Prior to any such
disposition by a Federal agency official, the Federal agency official
shall publish a general notice of the proposed disposition in a
newspaper of general circulation in the area in which the human remains
or cultural items were excavated or discovered. The notice shall provide
information as to the nature and cultural affiliation, of the human
remains and cultural items and shall solicit further claims to
ownership. The notice shall be published at least two (2) times at least
a week apart, and the transfer shall not take place until at least
thirty (30) days after the publication of the second notice to allow
time for any additional claimants to come forward. If additional
claimants do come forward and the Federal agency official cannot clearly
determine which claimant is the proper recipient, the Federal agency
shall not transfer ownership or control of the objects until such time
as the proper recipient is determined pursuant to these regulations.
The Federal agency official shall send a copy of the notice and
information on when and in what newspaper to the Departmental Consulting
Archeologist.


§ 10.7 Disposition of unclaimed human remains and cultural items.
[Reserved]

Subpart C--Human Remains or Cultural Items in Museums and Federal
Collections
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§ 10.8 Summaries.
(a) General. This section implements section 6 of the Act. Under
section 6, each museum or Federal agency that has possession or control
over collections which may contain unassociated funerary objects, sacred
objects, or objects of cultural patrimony is to provide a summary of
these collections based upon available information held by the museum or
Federal agency. The purpose of the summary is to provide information
about the collections to lineal descendants and culturally affiliated
Indian Tribes that may wish to request repatriation of such objects. The
summary serves in lieu of an object-by-object inventory of these
collections, although, if an inventory is available, it may be
substituted. Federal agencies are responsible for ensuring that these
requirements are met for all collections from their lands or generated
by their undertakings whether the collections are held by the Federal
agency or by a non-Federal institution.
(b) Contents of summaries. For each collection or portion of a
collection, the summary shall include: an estimate of the number of
objects in the collection or portion of the collection; a description of
the kinds of objects included; reference to the means, date(s), and
location(s) in which the collection was acquired, where readily
ascertainable; and information relevant to identifying lineal
descendants, if available, and cultural affiliation.
(c) Completion. Summaries shall be completed not later than
November 16, 1993.
(d) Consultation. (1) Consulting parties. Museum and Federal agency
officials shall consult with:
(i) Lineal descendants, when known or claimed on the
basis of the traditional kinship system, of individuals whose
unassociated funerary objects or sacred objects are likely to be subject
to the summary provisions of these regulations; and
(ii) Officials and traditional religious leaders
identified by Indian Tribes:
(A) From whose Tribal lands unassociated funerary
objects, sacred objects, or objects of cultural patrimony originated;
(B) From whose aboriginal lands unassociated
funerary objects, sacred objects, or objects of cultural patrimony
originated; and
(C) That are, or are likely to be, culturally
affiliated with unassociated funerary objects, sacred objects, or
objects of cultural patrimony.
(2) Initiation of consultation. Museum and Federal agency
officials shall begin summary consultation no later than the completion
of the summary process.
(3) Provision of information. During summary consultation,
museums and Federal agency officials shall provide copies of the summary
to lineal descendants, when known, and to officials and traditional
religious leaders. Upon request, museum and Federal agency officials
shall provide Indian Tribes with access to records, catalogues, relevant
studies, or other pertinent data for the limited purposes of determining
the geographic origin, cultural affiliation, and basic facts surrounding
acquisition and accession of objects covered by the summary. This
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information may be requested at any time and shall be provided in a
reasonable manner to be agreed upon by all parties. The Review
Committee also shall be provided access to such materials.
(4) Requests for information. During the summary consultation,
museum and Federal agency officials shall request, as appropriate, the
following information from Indian Tribes that are, or are likely to be,
culturally affiliated with their collections:
(i) Name and address of the Indian Tribe official to act
as representative in consultations related to particular objects;
(ii) Names and appropriate methods to contact any
lineal descendants, if known, of individuals whose unassociated funerary
objects or sacred objects are included in the summary;
(iii) Names and appropriate methods to contact
traditional religious leaders who should be consulted regarding the
collections;
(iv) Recommendations on how the consultation process
should be conducted; and
(v) Kinds of cultural items that the Indian Tribe
considers to be sacred objects or objects of cultural patrimony.
(e) Notification. Repatriation of unassociated funerary objects,
sacred objects, or objects of cultural patrimony to lineal descendants
or culturally affiliated Indian Tribes as determined pursuant to § 10.10
(a), shall not proceed prior to submission of an object-by-object list
of the objects being requested and a notice of intent to repatriate to
the Departmental Consulting Archeologist. The object-by-object
description shall include, if available:
(1) Accession and catalogue entries for each object;
(2) Information related to the acquisition of each object,
including the name of the person or organization from whom the object
was obtained, if known;
(3) The date each object was acquired,
(4) The place each object was acquired, i.e., name or number
of site, county, state, and Federal agency administrative unit, if
applicable;
(5) The means of acquisition, i.e., gift, purchase,
excavation, etc.;
(6) The antiquity of each object, if known;
(7) A description of each object, including dimensions,
materials, and photographic documentation, if appropriate;
(8) A summary of the evidence used to determine the cultural
affiliation of each object pursuant to § 10.14.
The notice of intent to repatriate shall summarize the object-by-
object description in sufficient detail so as to enable other
individuals or Indian Tribes to determine their interest in the claimed
objects. It shall include information that identifies each particular
set of claimed unassociated funerary objects, sacred objects, or objects
of cultural patrimony and the circumstances surrounding its acquisition
and describes the objects that are clearly identifiable as to Tribal
origin. It shall also describe the objects that are not clearly
identifiable as being culturally affiliated with a particular Indian
Tribe, but which, given the totality of circumstances surrounding
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acquisition of the objects, are likely to be culturally affiliated with
a particular Indian Tribe. The Departmental Consulting Archeologist
shall publish the notice of intent to repatriate in the Federal
Register.


§ 10.9 Inventories.
(a) General. This section implements section 5 of the Act. Under
section 5, each museum or Federal agency that has possession or control
over holdings or collections of human remains and associated funerary
objects is to compile an inventory of such objects, and, to the fullest
extent possible based on information possessed by the museum or Federal
agency, identify the geographical and cultural affiliation of each item.
The purpose of the inventory is to facilitate repatriation by providing
clear descriptions of human remains and associated funerary objects and
establishing the cultural affiliation between these objects and present-
day Indian Tribes. Museums and Federal agencies are encouraged to
undertake inventories on those portions of their collections for which
information is readily available or about which Indian Tribes have
expressed special interest. Early focus on these parts of collections
will result in repatriations that may serve as models for other
inventories. Federal agencies are responsible for ensuring that these
requirements are met for all collections from their lands or generated
by their undertakings whether the collections are held by the Federal
agency or by a non-Federal institution.
(b) Consultation. (1) Consulting parties. Museum and Federal agency
officials shall consult with:
(i) Lineal descendants, when known or claimed on the
basis of the traditional kinship system, of individuals whose remains
and associated funerary objects are likely to be subject to the
inventory provisions of these regulations; and
(ii) Officials and traditional religious leaders
identified by Indian Tribes:
(A) From whose Tribal lands human remains and
associated funerary objects originated;
(B) From whose aboriginal lands human remains and
associated funerary objects originated; and
(C) That are, or are likely to be, culturally
affiliated with human remains and associated funerary objects.
(2) Initiation of consultation. Museum and Federal agency
officials shall begin inventory consultation no later than the point in
the inventory process at which the cultural affiliation of human remains
and associated funerary objects is being investigated actively.
(3) Provision of information. During inventory consultation,
museums and Federal agency officials shall provide the following
information in writing to lineal descendants, when known, and to Indian
Tribe officials and traditional religious leaders.
(i) A list of all Indian Tribes that are, or have been,
consulted regarding the particular human remains and associated funerary
objects;
(ii) A general description of the conduct of the
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inventory;
(iii) The projected time frame for conducting the
inventory; and
(iv) An indication that additional documentation used to
identify cultural affiliation will be supplied upon request.
(4) Requests for information. During the inventory
consultation, museum and Federal agency officials shall request, as
appropriate, the following information from Indian Tribes that are, or
are likely to be, culturally affiliated with their collections:
(i) Name and address of the Indian Tribe official to act
as representative in consultations related to particular human remains
and associated funerary objects;
(ii) Names and appropriate methods to contact any lineal
descendants of individuals whose remains and funerary objects are or are
likely to be included in the inventory;
(iii) Names and appropriate methods to contact
traditional religious leaders who should be consulted regarding the
collections;
(iv) Recommendations on how the consultation process
should be conducted; and
(v) Kinds of cultural objects that the Indian Tribe
reasonably believes to have been made exclusively for burial purposes or
to contain human remains of their ancestors.
(c) Required information. The following documentation shall be
included, if available, for all inventories:
(1) Accession and catalogue entries, including the
accession/catalogue entries of human remains with which funerary objects
were associated;
(2) Information related to the acquisition of each object,
including the name of the person or organization from whom the object
was obtained, if known;
(3) The date each object was acquired,
(4) The place each object was acquired, i.e., name or number
of site, county, state, and Federal agency administrative unit, if
applicable;
(5) The means of acquisition, i.e., gift, purchase,
excavation, etc.;
(6) The antiquity of the human remains and associated funerary
objects, if known;
(7) A description of each set of human remains or associated
funerary objects, including dimensions, materials, and photographic
documentation, if appropriate;
(8) A summary of the evidence used to determine the cultural
affiliation of the human remains or associated funerary objects pursuant
to § 10.14 of these regulations.
(d) Documents. Two separate documents shall comprise the inventory:
(1) A listing of all human remains and associated funerary
objects that are identified as being culturally affiliated with one or
more present-day Indian Tribes. The list must indicate for each item or
set of items whether cultural affiliation is clearly determined or
likely; and
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(2) A listing of all human remains and associated funerary
objects for which no culturally affiliated present-day Indian Tribe can
be determined.
(e) Notification. (1) If the inventory results in the
identification or likely identification of the cultural affiliation of
any particular human remains or associated funerary objects, the museum
or Federal agency, not later than six (6) months after completion of the
inventory, shall send culturally affiliated Indian Tribes the inventory
of culturally affiliated human remains and a notice of inventory
completion that summarizes the results of the inventory.
(2) The notice of inventory completion shall summarize the
contents of the inventory in sufficient detail so as to enable the
recipients to determine their interest in the inventoried items. It
shall include information that identifies each particular set of human
remains or associated funerary objects and the circumstances surrounding
its acquisition, describes the human remains or associated funerary
objects that are clearly identifiable as to cultural affiliation, and
describes the human remains and associated funerary objects that are not
clearly identifiable as being culturally affiliated with an Indian
Tribe, but which, given the totality of circumstances surrounding
acquisition of the human remains or associated objects, are identified
as likely to be culturally affiliated with a particular Indian Tribe.
(3) If the inventory results in a determination that the human
remains are of an identifiable individual, the Museum of Federal agency
official shall convey this information to the Indian Tribe of which the
deceased was a member, and, if known, shall so notify any lineal
descendant of the deceased individual.
(4) The notification of inventory completion and a copy of the
inventory shall also be sent to the Departmental Consulting
Archeologist. These submissions shall be sent in both printed hard copy
and electronic formats. Information on the proper format for electronic
submission and suggested alternatives for museums unable to meet these
requirements are available from the Departmental Consulting
Archeologist.
(5) Upon request by an Indian Tribe that has received or
should have received notice of inventory results as described above, a
museum or Federal agency shall supply additional available documentation
to supplement the information provided with the notice. For these
purposes, the term "documentation" means a summary of existing museum or
Federal agency records including inventories or catalogues, relevant
studies, or other pertinent data for the limited purpose of determining
the geographical origin, cultural affiliation, and basic facts
surrounding the acquisition and accession of human remains and
associated funerary objects.
(6) In the event that the inventory results in a determination
that the museum or Federal agency has possession of or control over
human remains or associated funerary objects that cannot be identified
as affiliated with a particular Indian Tribe, the museum or Federal
agency shall provide the Department Consulting Archeologist notice of
this result and a copy of the list of culturally unidentifiable human
remains and associated funerary objects. The Departmental Consulting
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Archeologist shall make this information available to members of the
Review Committee.
(7) The Departmental Consulting Archeologist shall publish
notices of inventory completion received from Museums and Federal
agencies in the Federal Register.
(f) Completion. Inventories shall be completed not later than
November 16, 1995. Any museum that has made a good faith effort to
complete its inventory, but which will be unable to complete the process
by this deadline, may request an extension of the time requirements from
the Secretary. An indication of good faith efforts shall include, but
not necessarily be limited to, the initiation of active consultation and
documentation regarding the collection and the development of a written
plan to carry out the inventory process. Minimum components of an
inventory plan are: A definition of the steps required; the position
titles of the persons responsible for each step; the planned schedule of
implementation of the plan; and a description of the efforts proposed to
obtain the funding required to implement the plan.


§ 10.10 Repatriation.
(a) Unassociated funerary objects, sacred objects, and objects of
cultural patrimony. (1) Criteria. If the following criteria are met for
unassociated funerary objects, sacred objects, or objects of cultural
patrimony, a museum or Federal agency will expeditiously repatriate the
objects upon request pursuant to section 7 of the Act:
(i) The object meets the definitions established § 10.2
(b) (4), (5) or (6);
(ii) The cultural affiliation of the object is
established pursuant to § 10.14 through the summary, consultation, and
notification procedures.
(iii) The known lineal descendant or Indian Tribe
presents evidence which, if standing alone before the introduction of
evidence to the contrary, would support a finding that the Federal
agency or museum does not have a right of possession to the objects as
defined below.
(iv) The agency or museum is unable to present evidence
to the contrary proving that it does have a right of possession as
defined below.
(v) None of the specific exceptions listed in § 10.10
(c) apply.
(2) Right of possession. For purposes of these regulations,
"right of possession" means possession obtained with the voluntary
consent of an individual or group that had authority of alienation. The
original acquisition of a Native American unassociated funerary object,
sacred object, or object of cultural patrimony from an Indian Tribe with
the voluntary consent of an individual or group with authority to
alienate such object is deemed to give right of possession to that
object.
(3) Notification. A requested repatriation shall take place
within ninety (90) days of receipt, provided that it may not occur until
at least thirty (30) days after publication of the notice of intent to
Federal Register / Vol. 58, No. 102 / Friday, May 28, 1993 / Proposed
Rules 31123 to 31134
________________________________________________________________________

repatriate in the Federal Register as described in § 10.8.
(b) Human remains and associated funerary objects.
(1) Criteria. If the following criteria are met for human
remains and associated funerary objects, the museum or Federal agency
will expeditiously repatriate the remains and objects.
(i) The remains or associated funerary object meets the
definitions established in § 10.2 (b)(1) or (b)(3).
(ii) The cultural affiliation of the deceased individual
to known lineal descendant or present day Indian Tribe has been
reasonably traced by the standards set forth in § 10.14 through the
inventory and consultation process.
(iii) None of the specific exceptions listed in §
10.10 (c) apply.
(2) Notification. A requested repatriation shall take place
within ninety (90) days of receipt, provided that it may not occur until
at least thirty (30) days after publication of the notice of inventory
completion in the Federal Register as described in § 10.9.
(c) Exceptions. These requirements for repatriation shall not apply
to:
(1) Circumstances where human remains or cultural items are
indispensable to the completion of a specific scientific study commenced
prior to receipt of a request for repatriation, the outcome of which is
of major benefit to the United States. Human remains and cultural items
in such circumstances shall be returned no later than ninety (90) days
after completion of the study; or
(2) Circumstances where there are multiple requests for
repatriation of human remains or cultural items and the museum or
Federal agency, after complying with these regulations, cannot clearly
determine which requesting party is the proper recipient. In such
circumstances, the museum or Federal agency shall retain the human
remains and cultural items until such time as the requesting parties
agree upon their recipients or the dispute is otherwise resolved
pursuant to these regulations or as ordered by a court of competent
jurisdiction; or
(3) Circumstances where the repatriation of human remains and
cultural items in the possession or control of a museum would result in
a taking of property within the meaning of the Fifth Amendment of the
United States Constitution in which event the ownership or custody of
the objects shall be as provided under otherwise applicable law.
Nothing in these regulations shall prevent a museum or Federal agency,
where otherwise so authorized, or a lineal descendant or Indian Tribe,
from expressly relinquishing title to, right of possession of, or
control over any human remains or cultural items.
(4) Circumstances where the repatriation is not consistent
with other repatriation limitations identified in § 10.15 of these
regulations.
(d) Place and manner of repatriation. The repatriation of human
remains and cultural items shall be accomplished by the museum or
Federal agency in consultation with the requesting lineal descendants or
culturally affiliated Indian Tribe, as appropriate, to determine the
place and manner of the repatriation.
Federal Register / Vol. 58, No. 102 / Friday, May 28, 1993 / Proposed
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(e) Record of repatriation. Museums and Federal agencies shall
adopt internal procedures adequate to permanently document the content
and recipients of all repatriations.
(f) Unaffiliated human remains. If the cultural affiliation of
human remains cannot be established pursuant to these regulations, the
remains shall be considered unaffiliated. Museum and Federal agency
officials shall report the inventory information regarding such remains
in their holdings to the Departmental Consulting Archeologist who will
transmit this information to the Review Committee. The Review Committee
is responsible for compiling an inventory of unaffiliated human remains
in the possession or control of each museum and Federal agency, and, for
recommending to the Secretary specific actions for disposition of such
human remains.


§ 10.11 Disposition of Culturally Unidentifiable Human Remains.
[Reserved]


§ 10.12 Civil Penalties. [Reserved]

§ 10.13 Future Applicability. [Reserved]

Subpart D--General


§ 10.14 Lineal Descent and Cultural Affiliation.
(a) General. This section identifies procedures for determining
lineal descent and cultural affiliation between present-day individuals
and Indian Tribes and human remains and cultural items in museum or
Federal agency collections or discovered or excavated from Federal
lands. They may also be used by Indian Tribes with respect to Tribal
lands.
(b) Criteria for determining lineal descent. A lineal descendant is
an individual tracing his or her ancestry directly and without
interruption by means of the traditional kinship system of the
appropriate Indian Tribe to a known Native American individual whose
remains, funerary objects, or sacred objects are being requested under
these regulations. This standard requires that the earlier person be
identified as an individual whose descendants can be traced.
(c) Criteria for determining cultural affiliation. "Cultural
affiliation" means a relationship of shared group identity that may be
reasonably traced historically or prehistorically between a present-day
Indian Tribe and an identifiable earlier group. All of the following
requirements must be met in order to determine cultural affiliation
between a present-day Indian Tribe and the human remains and cultural
items of an earlier group:
(1) Existence of an identifiable present-day Indian Tribe.
(2) Evidence of the existence of an identifiable earlier
group. Evidence to support this requirement must:
(i) Establish the identity and cultural characteristics
Federal Register / Vol. 58, No. 102 / Friday, May 28, 1993 / Proposed
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________________________________________________________________________

of the earlier group,
(ii) Document distinct patterns of material culture
manufacture and distribution methods for the earlier group, or
(iii) Establish the existence of the earlier group as a
biologically distinct population.
(3) Evidence of the existence of a shared group identity that
can be reasonably traced between the present-day Indian Tribe and the
earlier group. Evidence to support this requirement must establish that
a present-day Indian Tribe has been identified from prehistoric or
historic times to the present as descending from the earlier group.
(d) Evidence. Evidence of a kin or cultural affiliation between a
present-day individual or Indian Tribe and human remains and cultural
items shall be established by using the following types of evidence:
Geographical, kinship, biological, archeological, anthropological,
linguistic, folklore, oral tradition, historical, or other relevant
information or expert opinion.
(e) Standard of proof. Lineal descent of a present-day individual
from an earlier individual and cultural affiliation of a present-day
Indian Tribe to human remains and cultural items shall be established by
a preponderance of the evidence. Claimants do not have to establish
cultural affiliation with scientific certainty.


§ 10.15 Repatriation Limitations and Remedies.
(a) Failure to claim prior to repatriation. Any person who fails to
make a timely claim for disposition or repatriation of human remains and
cultural items subject to subpart C of these regulations, or, with
respect to Federal lands, subpart B of these regulations, prior to the
repatriation or transfer of the items shall be deemed to have
irrevocably waived any right to claim such human remains or cultural
items pursuant to these regulations or the Act. For these purposes, a
"timely claim" shall mean the filing of a written claim with a
responsible Federal agency or museum official prior to the time the
particular human remains or cultural items at issue are duly repatriated
or disposed of to a claimant by a museum or Federal agency pursuant to
these regulations. If there is more than one (1) claimant, the human
remains and/or cultural items shall be held by the responsible museum or
Federal agency or person having custody thereof pending resolution of
the claim. Any person who has custody of such human remains or cultural
items and does not claim entitlement to them shall place the objects in
the custody of the responsible museum or Federal agency for retention
until the question of ownership is resolved.
(b) Failure to claim where no repatriation or disposition has
occurred. [Reserved]
(c) Exhaustion of remedies. No person shall be considered to have
exhausted his or her administrative remedies with respect to the
repatriation or disposition of human remains or cultural items subject
to subpart B of these regulations, or, with respect to Federal lands,
subpart C of these regulations, until such time as the person has filed
a written claim for repatriation or disposition of the objects with the
responsible museum or Federal agency and the claim has been denied.
Federal Register / Vol. 58, No. 102 / Friday, May 28, 1993 / Proposed
Rules 31123 to 31134
________________________________________________________________________


§ 10.16 Review committee.
(a) General. The Review Committee shall advise Congress and the
Secretary on matters relating to the Act and these regulations,
including, but not limited to, monitoring the performance of museums and
Federal agencies in carrying out their responsibilities, facilitating
and making recommendations on the resolution of disputes as described
further in § 10.17, and compiling a record of culturally unidentifiable
human remains that are in the possession or control of museums and
Federal agencies and recommending actions for their disposition.
(b) Recommendations. Any recommendation, finding, report, or other
action of the Review Committee is advisory only and shall not be 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.


§ 10.17 Dispute resolution.
(a) Formal and informal resolutions. Any person who wishes to
contest actions taken by museums, Federal agencies, or Indian Tribes
with respect to the repatriation and disposition of human remains and
cultural items is encouraged to do so through informal negotiations in
order to achieve a fair resolution of the matter. The Review Committee
may assist in this regard as described below. In addition, the United
Stated District Courts have jurisdiction over any action brought that
alleges a violation of the Act.
(b) Review Committee Role. The Review Committee may facilitate the
informal resolution of disputes relating to these regulations among
interested parties that are not resolved by good faith negotiations.
Review Committee actions may include convening meetings between parties
to disputes, making advisory findings as to contested facts, and making
recommendations to the disputing parties or to the Secretary as to the
proper resolution of disputes consistent with these regulations and the
Act.
Federal Register / Vol. 58, No. 102 / Friday, May 28, 1993 / Proposed
Rules 31123 to 31134
________________________________________________________________________

Appendix A to Part 10 Sample summary
The following is a generic sample and should be used as a guideline for
preparation of summaries tailoring the information to the specific
circumstances of each case.
Before November 17, 1993
Chairman or Other Authorized Official
Indian Tribe
Street
State

Dear Sir/Madame Chair:
I write to inform you of collections held by our museum which may
contain unassociated funerary objects, sacred objects, or objects of
cultural patrimony that are, or are likely to be, culturally affiliated
with your Indian Tribe. This notification is required by Section 6 of
the Native American Graves Protection and Repatriation Act.
Our ethnographic collection includes approximately 200 items
specifically identified as being manufactured or used by members of your
Indian Tribe. These items represent various categories of material
culture, including sea and land hunting, fishing, tools, household
equipment, clothing, travel and transportation, personal adornment,
smoking, toys, and figurines. The collection includes thirteen objects
identified in our records as "medicine bags."
Approximately half of these items were collected were collected by
John Doe during his expedition to your reservation in 1903 and
accessioned by the museum that same year (see Major Museum Publication,
no. 65 (1965).
Another 50 of these items were collected by Jane Roe during her
expeditions to your reservation between 1950-1960 and accessioned by the
museum in 1970 (see Major Museum: no. 75 (1975). Accession information
indicates that several of these items were collected from members of the
Able and Baker families.
For the remaining approximately 50 items, which were obtained from
various collectors between 1930 and 1980, additional collection
information is not readily available.
In addition to the above mentioned items, the museum has
approximately 50 ethnographic items obtained from the estate of a
private collector and identified as being collected from the "northwest
portion of the State."
Our archeological collection includes approximately 1,500 items
recovered from ten archeological sites on your reservation and another
5,000 items from fifteen sites within the area recognized by the Indian
Claims Commission as being part of your Indian Tribe's aboriginal
territory.
Please feel free to contact Fred Poe at (012) 345-6789 regarding
the identification and potential repatriation of unassociated funerary
objects, sacred objects, or objects of cultural patrimony in this
collection that are, or are likely to be, culturally affiliated with
your Indian Tribe. You are invited to review our records, catalogues,
relevant studies or other pertinent data for the purpose of determining
the geographic origin, cultural affiliation, and basic facts surrounding
Federal Register / Vol. 58, No. 102 / Friday, May 28, 1993 / Proposed
Rules 31123 to 31134
________________________________________________________________________

acquisition and accession of these items. We look forward to working
together with you.
Sincerely,


Museum Official
Major Museum
Federal Register / Vol. 58, No. 102 / Friday, May 28, 1993 / Proposed
Rules 31123 to 31134
________________________________________________________________________


Appendix B to Part 10 -- Sample Inventory. [Reserved]


Appendix C to Part 10 -- Sample Notice of Inventory Completion
The following is an example of a Notice of Inventory Completion
published in the Federal Register.

National Park Service
Notice of Completion of Inventory of Native American Human Remains and
Associated Funerary Objects within the Campbell Collection, Joshua Tree
National Monument, Twentynine Palms, CA

AGENCY: National Park Service, Interior.
ACTION: Notice.
________________________________________________________________________
Notice is hereby given in accordance with provisions of the Native
American Graves Protection and Repatriation Act, 25 U.S.C. 3003(d), of
the completion of the inventory of human remains and associated funerary
objects within the Campbell Collection, a Federally curated collection
at Joshua Tree National Monument, Twentynine Palms, California.
Representatives of culturally affiliated Indian tribes are advised that
the human remains and associated funerary objects in the Campbell
Collection will be retained by the monument until July 20, 1992 after
which they may be repatriated to the culturally affiliated groups.
The detailed inventory and assessment of the human remains and
associated funerary objects within the Campbell Collection has been made
by National Park Service professional curatorial staff, contracted
specialists in physical anthropology and prehistoric archeology, and
representatives of the following affected tribal organizations:

Agua Caliente Band of Cahuilla Indians
Twentynine Palms Band of Mission Indians
Torez Martinez Reservation
San Manual Band of Mission Indians
Cabazon Reservation
Anza Band of Cahuilla Indians
Saboba Reservation
Morongo Reservation
Coyote Reservation
Santa Rosa Reservation
Colorado River Indian Tribes Reservation
Fort Mojave Indian Reservation
Chemehuevi Reservation
Quechan Indian Nation of the Fort Yuma Reservation

Between July 1931 and July 1933, Elizabeth and William Campbell
carried out legally authorized archeological studies on Federal public
lands now within Joshua Tree National Monument. Among the archeological
resources collected were human cremations and artifacts believed to be
associated with funerary events practiced by prehistoric and historic
Federal Register / Vol. 58, No. 102 / Friday, May 28, 1993 / Proposed
Rules 31123 to 31134
________________________________________________________________________

Native Americans. Recent assessment studies indicate that eleven
individuals are represented; approximately 12,225 Native American
artifacts are believed to have been associated with the funerary events.
These artifacts include historic glass trade beads, native shell beads,
chipped and other stone implements, pottery vessels, clay smoking pipes
and human effigies, and animal bone tools. One cremation appears to be
19th Century in date; others may be estimated as being between 9th to
14th Century in date. The collection does not contain materials which
meet the definition of sacred object or objects of cultural patrimony.
Artifactual evidence does not allow specific identification as to
tribal origin. However, recent assessment studies on portions of the
Campbell Collection indicate basic similarities in crematory practice,
ceramics, stone tool manufacture, ornamentation, and bone or shell
artifacts of known archeological traditions believed ancestral to
contemporary Cahuilla, Serrano, and Colorado River tribal peoples. Ten
of the cremations are likely affiliated to Cahuilla or Serrano cultural
traditions. One cremation is determined possibly to be of either
Colorado River area cultural affiliation, represented by contemporary
Quechan, Mojave, Maricopa or Chemehuevi peoples, or of Diegueño cultural
affiliation to the southwest of the monument.
Representatives of any Indian tribe believed to be culturally
affiliated with the human remains and associated funerary objects of the
Campbell collection that have not been contacted should talk with
Superintendent David E. Moore, Joshua Tree National Monument, 74485
National Monument Drive, Twentynine Palms, CA, 92277, (619) 367-3676,
before July 20, 1992.

Dated: June 9, 1992.
[Published: June 18, 1992]

Francis P. McManamon

Departmental Consulting Archeologist

Chief, Archeological Assistance Division
Federal Register / Vol. 58, No. 102 / Friday, May 28, 1993 / Proposed
Rules 31123 to 31134
________________________________________________________________________

Appendix D to Part 10 -- Sample Memorandum of Understanding
Repatriation. [Reserved]


Appendix E to Part 10 -- Sample Memorandum of Understanding Intentional
Excavation. [Reserved]

DATED: January 13, 1993

Mike Hayden

Assistant Secretary for Fish and Wildlife and Parks

[FR Doc 93-12823 Filed 5-26-93; 2:01 pm]
BILLING CODE 4310-70-F

 
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