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Final Rule, 43 CFR 10

October 1, 2003

 

[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR10]

[Page 213-239]

TITLE 43--PUBLIC LANDS: INTERIOR

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS

Subpart A--Introduction

Sec.
10.1 Purpose and applicability.

[[Page 214]]

10.2 Definitions

Subpart B--Human Remains, Funerary Objects, Sacred Objects, or Objects
of Cultural Patrimony From Federal or Tribal Lands

10.3 Intentional archaeological excavations.
10.4 Inadvertent discoveries.
10.5 Consultation.
10.6 Custody.
10.7 Disposition of unclaimed human remains, funerary objects, sacred
objects, or objects of cultural patrimony. [Reserved]

Subpart C--Human Remains, Funerary Objects, Sacred Objects, or Objects
of Cultural Patrimony in Museums and Federal Collections

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

Subpart D--General

10.14 Lineal descent and cultural affiliation.
10.15 Limitations and remedies.
10.16 Review committee.
10.17 Dispute resolution.

Appendix A to Part 10--Sample Summary.
Appendix B to Part 10--Sample Notice of Inventory Completion.

Authority: 25 U.S.C. 3001 et seq.

Source: 60 FR 62158, Dec. 4, 1995, unless otherwise noted.

Subpart A--Introduction

Sec. 10.1 Purpose and applicability.

(a) Purpose. These regulations carry out 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
Indian tribes and Native Hawaiian organizations to certain Native
American human remains, funerary objects, sacred objects, or objects of
cultural patrimony with which they are affiliated.
(b) Applicability. (1) These regulations pertain to the
identification and appropriate disposition of human remains, funerary
objects, sacred objects, or objects of cultural patrimony that are:
(i) In Federal possession or control; or
(ii) In the possession or control of any institution or State or
local government receiving Federal funds; or
(iii) Excavated intentionally or discovered inadvertently on Federal
or tribal lands.
(2) These regulations apply to human remains, funerary objects,
sacred objects, or objects of cultural patrimony which are indigenous to
Alaska, Hawaii, and the continental United States, but not to
territories of the United States.
(3) Throughout these regulations are decision points which determine
their applicability in particular circumstances, e.g., a decision as to
whether a museum ``controls'' human remains and cultural objects within
the meaning of the regulations, or, a decision as to whether an object
is a ``human remain,'' ``funerary object,'' ``sacred object,'' or
``object of cultural patrimony'' within the meaning of the regulations.
Any final determination making the Act or these regulations inapplicable
is subject to review pursuant to section 15 of the Act.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Sec. 10.2 Definitions.

In addition to the term Act, which means the Native American Graves
Protection and Repatriation Act as described above, definitions used in
these regulations are grouped in seven classes: Parties required to
comply with these regulations; Parties with standing to make claims
under these regulations; Parties responsible for implementing these
regulations; Objects covered by these regulations; Cultural affiliation;
Types of land covered by these regulations; and Procedures required by
these regulations.
(a) Who must comply with these regulations? (1) Federal agency means
any department, agency, or instrumentality of the United States. Such
term does not include the Smithsonian Institution as specified in
section 2 (4) of the Act.
(2) Federal agency official means any individual authorized by
delegation of

[[Page 215]]

authority within a Federal agency to perform the duties relating to
these regulations.
(3) 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, funerary objects, sacred objects, or
objects of cultural patrimony and receives Federal funds.
(i) The term ``possession'' means having physical custody of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony with a sufficient legal interest to lawfully treat the objects
as part of its collection for purposes of these regulations. Generally,
a museum or Federal agency would not be considered to have possession of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony on loan from another individual, museum, or Federal agency.
(ii) The term ``control'' means having a legal interest in human
remains, funerary objects, sacred objects, or objects of cultural
patrimony 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 human remains, funerary objects, sacred
objects or objects of cultural patrimony are in the physical custody of
the museum or Federal agency. Generally, a museum or Federal agency that
has loaned human remains, funerary objects, sacred objects, or objects
of cultural patrimony to another individual, museum, or Federal agency
is considered to retain control of those human remains, funerary
objects, sacred objects, or objects of cultural patrimony for purposes
of these regulations.
(iii) 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 aid 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 for the purpose of these
regulations.
(4) Museum official means the individual within a museum designated
as being responsible for matters relating to these regulations.
(5) 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 Native Hawaiian organization, or of any State or
political subdivision thereof that discovers or discovered human
remains, funerary objects, sacred objects or objects of cultural
patrimony on Federal or tribal lands after November 16, 1990.
(b) Who has standing to make a claim under these regulations? (1)
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 or Native Hawaiian organization
or by the common law system of descendance to a known Native American
individual whose remains, funerary objects, or sacred objects are being
claimed under these regulations.
(2) 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. The Secretary will
distribute a list of Indian tribes for the purposes of carrying out this
statute through the Departmental Consulting Archeologist.
(3)(i) Native Hawaiian organization means any organization that:
(A) Serves and represents the interests of Native Hawaiians;
(B) Has as a primary and stated purpose the provision of services to
Native Hawaiians; and

[[Page 216]]

(C) Has expertise in Native Hawaiian affairs.
(ii) The term 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. Such organizations must include the Office of Hawaiian Affairs
and Hui Malama I Na Kupuna 'O Hawai'i Nei.
(4) Indian tribe official means the principal leader of an Indian
tribe or Native Hawaiian organization or the individual officially
designated by the governing body of an Indian tribe or Native Hawaiian
organization or as otherwise provided by tribal code, policy, or
established procedure as responsible for matters relating to these
regulations.
(c) Who is responsible for carrying out these regulations? (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
National Park Service,
PO Box 37127
Washington, DC 20013-7127.
(d) What objects are covered by these regulations? The Act covers
four types of Native American objects. The term Native American means
of, or relating to, a tribe, people, or culture indigenous to the United
States, including Alaska and Hawaii.
(1) Human remains means the physical remains of the body of a person
of Native American ancestry. The term does not include remains or
portions of remains that may reasonably be determined to have been
freely given or naturally shed by the individual from whose body they
were obtained, such as hair made into ropes or nets. For the purposes of
determining cultural affiliation, human remains incorporated into a
funerary object, sacred object, or object of cultural patrimony, as
defined below, must be considered as part of that item.
(2) Funerary objects means 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. Funerary objects must be identified by a preponderance of
the evidence as having been removed from a specific burial site of an
individual affiliated with a particular Indian tribe or Native Hawaiian
organization or as being related to specific individuals or families or
to known human remains. The term burial site means any natural or
prepared physical location, whether originally below, on, or above the
surface of the earth, into which, as part of the death rite or ceremony
of a culture, individual human remains were deposited, and includes rock
cairns or pyres which do not fall within the ordinary definition of
gravesite. For purposes of completing the summary requirements in
Sec. 10.8 and the inventory requirements of Sec. 10.9:
(i) Associated funerary objects means those funerary objects for
which the human remains with which they were placed intentionally are
also in the possession or control of a museum or Federal agency.
Associated funerary objects also means those funerary objects that were
made exclusively for burial purposes or to contain human remains.
(ii) Unassociated funerary objects means those funerary objects for
which the human remains with which they were placed intentionally are
not in the possession or control of a museum or Federal agency. Objects
that were displayed with individual human remains as part of a death
rite or ceremony of a culture and subsequently returned or distributed
according to traditional custom to living descendants or other
individuals are not considered unassociated funerary objects.
(3) Sacred objects means items that are specific ceremonial objects
needed by traditional Native American religious leaders for the practice
of traditional Native American religions by their present-day adherents.
While many items, from ancient pottery sherds to arrowheads, might be
imbued

[[Page 217]]

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. The term traditional religious leader means a person who is
recognized by members of an Indian tribe or Native Hawaiian organization
as:
(i) Being responsible for performing cultural duties relating to the
ceremonial or religious traditions of that Indian tribe or Native
Hawaiian organization, or
(ii) Exercising a leadership role in an Indian tribe or Native
Hawaiian organization based on the tribe or organization's cultural,
ceremonial, or religious practices.
(4) Objects of cultural patrimony means items having ongoing
historical, traditional, or cultural importance central to the Indian
tribe or Native Hawaiian organization itself, rather than property owned
by an individual tribal or organization member. These objects are of
such central importance that they may not be alienated, appropriated, or
conveyed by any individual tribal or organization member. Such objects
must have been considered inalienable by the culturally affiliated
Indian tribe or Native Hawaiian organization 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
or Native Hawaiian organization as a whole.
(e) What is cultural affiliation? 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. Cultural affiliation is established when the preponderance of the
evidence -- based on geographical, kinship, biological, archeological,
linguistic, folklore, oral tradition, historical evidence, or other
information or expert opinion -- reasonably leads to such a conclusion.
(f) What types of lands do the excavation and discovery provisions
of these regulations apply to? (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,'' as used in this definition, refers to those lands not owned
by the United States but 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 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; or
(ii) Comprise dependent Indian communities as recognized pursuant to
18 U.S.C. 1151; or
(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).
(iv) Actions authorized or required under these regulations will not
apply to tribal lands to the extent that any action would result in a
taking of property without compensation within the meaning of the Fifth
Amendment of the United States Constitution.
(g) What procedures are required by these regulations? (1) Summary
means the written description of collections that may contain
unassociated funerary objects, sacred objects, and objects of cultural
patrimony required by Sec. 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, funerary objects, sacred objects, or objects of
cultural patrimony found under or on the surface of Federal or tribal
lands pursuant to section 3 (c) of the Act.
(4) Inadvertent discovery means the unanticipated encounter or
detection

[[Page 218]]

of human remains, funerary objects, sacred objects, or objects of
cultural patrimony found under or on the surface of Federal or tribal
lands pursuant to section 3 (d) of the Act.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Subpart B--Human Remains, Funerary Objects, Sacred Objects, or Objects
of Cultural Patrimony From Federal or Tribal Lands

Sec. 10.3 Intentional archaeological excavations.

(a) General. This section carries out section 3 (c) of the Act
regarding the custody of human remains, funerary objects, sacred
objects, or objects of cultural patrimony that are excavated
intentionally from Federal or tribal lands after November 16, 1990.
(b) Specific Requirements. These regulations permit the intentional
excavation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony from Federal or tribal lands only if:
(1) The objects are excavated or removed following the requirements
of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa
et seq.) and its implementing regulations. Regarding private lands
within the exterior boundaries of any Indian reservation, the Bureau of
Indian Affairs (BIA) will serve as the issuing agency for any permits
required under the Act. For BIA procedures for obtaining such permits,
see 25 CFR part 262 or contact the Deputy Commissioner of Indian
Affairs, Department of the Interior, Washington, DC 20240. Regarding
lands administered for the benefit of Native Hawaiians pursuant to the
Hawaiian Homes Commission Act, 1920, and section 4 of Pub. L. 86-3, the
Department of Hawaiian Home Lands will serve as the issuing agency for
any permits required under the Act, with the Hawaii State Historic
Preservation Division of the Department of Land and Natural Resources
acting in an advisory capacity for such issuance. Procedures and
requirements for issuing permits will be consistent with those required
by the ARPA and its implementing regulations;
(2) The objects are excavated after consultation with or, in the
case of tribal lands, consent of, the appropriate Indian tribe or Native
Hawaiian organization pursuant to Sec. 10.5;
(3) The disposition of the objects is consistent with their custody
as described in Sec. 10.6; and
(4) Proof of the consultation or consent is shown to the Federal
agency official or other agency official responsible for the issuance of
the required permit.
(c) Procedures. (1) The Federal agency official must take reasonable
steps to determine whether a planned activity may result in the
excavation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony from Federal lands. Prior to issuing any
approvals or permits for activities, the Federal agency official must
notify in writing the Indian tribes or Native Hawaiian organizations
that are likely to be culturally affiliated with any human remains,
funerary objects, sacred objects, or objects of cultural patrimony that
may be excavated. The Federal agency official must also notify any
present-day Indian tribe which aboriginally occupied the area of the
planned activity and any other Indian tribes or Native Hawaiian
organizations that the Federal agency official reasonably believes are
likely to have a cultural relationship to the human remains, funerary
objects, sacred objects, or objects of cultural patrimony that are
expected to be found. The notice must be in writing and describe the
planned activity, its general location, the basis upon which it was
determined that human remains, funerary objects, sacred objects, or
objects of cultural patrimony may be excavated, and, the basis for
determining likely custody pursuant to Sec. 10.6. The notice must 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, funerary objects, sacred objects, or objects of cultural
patrimony that may be excavated, and the proposed disposition of any
excavated human remains, funerary objects, sacred objects,

[[Page 219]]

or objects of cultural patrimony. Written notification should be
followed up by telephone contact if there is no response in 15 days.
Consultation must be conducted pursuant to Sec. 10.5.
(2) Following consultation, the Federal agency official must
complete a written plan of action (described in Sec. 10.5(e)) and
execute the actions called for in it.
(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 Sec. 10.3 (c)(2) and Sec. 10.5. Compliance with these
regulations does not relieve Federal agency 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 or Native Hawaiian organization receives
notice of a planned activity or otherwise becomes aware of a planned
activity that may result in the excavation of human remains, funerary
objects, sacred objects, or objects of cultural patrimony on tribal
lands, the Indian tribe or Native Hawaiian organization may take
appropriate steps to:
(i) Ensure that the human remains, funerary objects, sacred objects,
or objects of cultural patrimony are excavated or removed following
Sec. 10.3 (b), and
(ii) Make certain that the disposition of any human remains,
funerary objects, sacred objects, or objects of cultural patrimony
excavated intentionally or discovered inadvertently as a result of the
planned activity are carried out following Sec. 10.6.

Sec. 10.4 Inadvertent discoveries.

(a) General. This section carries out section 3 (d) of the Act
regarding the custody of human remains, funerary objects, sacred
objects, or objects of cultural patrimony that are discovered
inadvertently on Federal or tribal lands after November 16, 1990.
(b) Discovery. Any person who knows or has reason to know that he or
she has discovered inadvertently human remains, funerary objects, sacred
objects, or objects of cultural patrimony on Federal or tribal lands
after November 16, 1990, must provide immediate telephone notification
of the inadvertent discovery, with written confirmation, 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 inadvertent discoveries
apply whether or not an inadvertent discovery is duly reported. If
written confirmation is provided by certified mail, the return receipt
constitutes evidence of the receipt of the written notification by the
Federal agency official or Indian tribe official.
(c) Ceasing activity. If the inadvertent discovery occurred in
connection with an on-going activity on Federal or tribal lands, the
person, in addition to providing the notice described above, must stop
the activity in the area of the inadvertent discovery and make a
reasonable effort to protect the human remains, funerary objects, sacred
objects, or objects of cultural patrimony discovered inadvertently.
(d) Federal lands. (1) As soon as possible, but no later than three
(3) working days after receipt of the written confirmation of
notification with respect to Federal lands described in Sec. 10.4 (b),
the responsible Federal agency official must:
(i) Certify receipt of the notification;
(ii) Take immediate steps, if necessary, to further secure and
protect inadvertently discovered human remains, funerary objects, sacred
objects, or objects of cultural patrimony, including, as appropriate,
stabilization or covering;
(iii) Notify by telephone, with written confirmation, the Indian
tribes or Native Hawaiian organizations likely to be culturally
affiliated with the inadvertently discovered human remains, funerary
objects, sacred objects, or objects of cultural patrimony, the Indian
tribe or Native Hawaiian organization which aboriginally occupied the
area, and any other Indian tribe or Native Hawaiian organization that is
reasonably known to have a cultural relationship to the human remains,
funerary objects, sacred objects, or objects of cultural patrimony. This
notification

[[Page 220]]

must include pertinent information as to kinds of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
discovered inadvertently, their condition, and the circumstances of
their inadvertent discovery;
(iv) Initiate consultation on the inadvertent discovery pursuant to
Sec. 10.5;
(v) If the human remains, funerary objects, sacred objects, or
objects of cultural patrimony must be excavated or removed, follow the
requirements and procedures in Sec. 10.3 (b) of these regulations; and
(vi) Ensure that disposition of all inadvertently discovered human
remains, funerary objects, sacred objects, or objects of cultural
patrimony is carried out following Sec. 10.6.
(2) Resumption of activity. The activity that resulted in the
inadvertent discovery may resume thirty (30) days after certification by
the notified Federal agency of receipt of the written confirmation of
notification of inadvertent discovery if the resumption of the activity
is otherwise lawful. The activity may also resume, if otherwise lawful,
at any time that a written, binding agreement is executed between the
Federal agency and the affiliated Indian tribes or Native Hawaiian
organizations that adopt a recovery plan for the excavation or removal
of the human remains, funerary objects, sacred objects, or objects of
cultural patrimony following Sec. 10.3 (b)(1) of these regulations. The
disposition of all human remains, funerary objects, sacred objects, or
objects of cultural patrimony must be carried out following Sec. 10.6.
(e) Tribal lands. (1) As soon as possible, but no later than three
(3) working days after receipt of the written confirmation of
notification with respect to Tribal lands described in Sec. 10.4 (b),
the responsible Indian tribe official may:
(i) Certify receipt of the notification;
(ii) Take immediate steps, if necessary, to further secure and
protect inadvertently discovered human remains, funerary objects, sacred
objects, or objects of cultural patrimony, including, as appropriate,
stabilization or covering;
(iii) If the human remains, funerary objects, sacred objects, or
objects of cultural patrimony must be excavated or removed, follow the
requirements and procedures in Sec. 10.3 (b) of these regulations; and
(iv) Ensure that disposition of all inadvertently discovered human
remains, funerary objects, sacred objects, or objects of cultural
patrimony is carried out following Sec. 10.6.
(2) Resumption of Activity. The activity that resulted in the
inadvertent discovery may resume if otherwise lawful after thirty (30)
days of the certification of the receipt of notification by the Indian
tribe or Native Hawaiian organization.
(f) 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 agency 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)).
(g) Notification requirement in authorizations. All Federal
authorizations to carry out land use activities on Federal lands or
tribal lands, including all leases and permits, must include a
requirement for the holder of the authorization to notify the
appropriate Federal or tribal official immediately upon the discovery of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony pursuant to Sec. 10.4 (b) of these regulations.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Sec. 10.5 Consultation.

Consultation as part of the intentional excavation or inadvertent
discovery of human remains, funerary objects, sacred objects, or objects
of cultural patrimony on Federal lands must be conducted in accordance
with the following requirements.

[[Page 221]]

(a) Consulting parties. Federal agency officials must consult with
known lineal descendants and Indian tribe officials:
(1) From Indian tribes on whose aboriginal lands the planned
activity will occur or where the inadvertent discovery has been made;
and
(2) From Indian tribes and Native Hawaiian organizations that are,
or are likely to be, culturally affiliated with the human remains,
funerary objects, sacred objects, or objects of cultural patrimony; and
(3) From Indian tribes and Native Hawaiian organizations that have a
demonstrated cultural relationship with the human remains, funerary
objects, sacred objects, or objects of cultural patrimony.
(b) Initiation of consultation. (1) Upon receiving notice of, or
otherwise becoming aware of, an inadvertent discovery or planned
activity that has resulted or may result in the intentional excavation
or inadvertent discovery of human remains, funerary objects, sacred
objects, or objects of cultural patrimony on Federal lands, the
responsible Federal agency official must, as part of the procedures
described in Sec. Sec. 10.3 and 10.4, take appropriate steps to identify
the lineal descendant, Indian tribe, or Native Hawaiian organization
entitled to custody of the human remains, funerary objects, sacred
objects, or objects of cultural patrimony pursuant to Sec. 10.6 and
Sec. 10.14. The Federal agency official shall notify in writing:
(i) Any known lineal descendants of the individual whose remains,
funerary objects, sacred objects, or objects of cultural patrimony have
been or are likely to be excavated intentionally or discovered
inadvertently; and
(ii) The Indian tribes or Native Hawaiian organizations that are
likely to be culturally affiliated with the human remains, funerary
objects, sacred objects, or objects of cultural patrimony that have been
or are likely to be excavated intentionally or discovered inadvertently;
and
(iii) The Indian tribes which aboriginally occupied the area in
which the human remains, funerary objects, sacred objects, or objects of
cultural patrimony have been or are likely to be excavated intentionally
or discovered inadvertently; and
(iv) The Indian tribes or Native Hawaiian organizations that have a
demonstrated cultural relationship with the human remains, funerary
objects, sacred objects, or objects of cultural patrimony that have been
or are likely to be excavated intentionally or discovered inadvertently.
(2) The notice must propose a time and place for meetings or
consultation to further consider the intentional excavation or
inadvertent discovery, the Federal agency's proposed treatment of the
human remains, funerary objects, sacred objects, or objects of cultural
patrimony that may be excavated, and the proposed disposition of any
intentionally excavated or inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony.
(3) The consultation must seek to identify traditional religious
leaders who should also be consulted and seek to identify, where
applicable, lineal descendants and Indian tribes or Native Hawaiian
organizations affiliated with the human remains, funerary objects,
sacred objects, or objects of cultural patrimony.
(c) Provision of information. During the consultation process, as
appropriate, the Federal agency official must provide the following
information in writing to the lineal descendants and the officials of
Indian tribes or Native Hawaiian organizations that are or are likely to
be affiliated with the human remains, funerary objects, sacred objects,
or objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal lands:
(1) A list of all lineal descendants and Indian tribes or Native
Hawaiian organizations that are being, or have been, consulted regarding
the particular human remains, funerary objects, sacred objects, or
objects of cultural patrimony;
(2) An indication that additional documentation used to identify
affiliation will be supplied upon request.
(d) Requests for information. During the consultation process,
Federal agency officials must request, as appropriate, the following
information from

[[Page 222]]

Indian tribes or Native Hawaiian organizations that are, or are likely
to be, affiliated pursuant to Sec. 10.6 (a) with intentionally excavated
or inadvertently discovered human remains, funerary objects, sacred
objects, or objects of cultural patrimony:
(1) Name and address of the Indian tribe official to act as
representative in consultations related to particular human remains,
funerary objects, sacred objects, or objects of cultural patrimony;
(2) Names and appropriate methods to contact lineal descendants who
should be contacted to participate in the consultation process;
(3) Recommendations on how the consultation process should be
conducted; and
(4) Kinds of cultural items that the Indian tribe or Native Hawaiian
organization considers likely to be unassociated funerary objects,
sacred objects, or objects of cultural patrimony.
(e) Written plan of action. Following consultation, the Federal
agency official must prepare, approve, and sign a written plan of
action. A copy of this plan of action must be provided to the lineal
descendants, Indian tribes and Native Hawaiian organizations involved.
Lineal descendants and Indian tribe official(s) may sign the written
plan of action as appropriate. At a minimum, the plan of action must
comply with Sec. 10.3 (b)(1) and document the following:
(1) The kinds of objects to be considered as cultural items as
defined in Sec. 10.2 (b);
(2) The specific information used to determine custody pursuant to
Sec. 10.6;
(3) The planned treatment, care, and handling of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
recovered;
(4) The planned archeological recording of the human remains,
funerary objects, sacred objects, or objects of cultural patrimony
recovered;
(5) The kinds of analysis planned for each kind of object;
(6) Any steps to be followed to contact Indian tribe officials at
the time of intentional excavation or inadvertent discovery of specific
human remains, funerary objects, sacred objects, or objects of cultural
patrimony;
(7) The kind of traditional treatment, if any, to be afforded the
human remains, funerary objects, sacred objects, or objects of cultural
patrimony by members of the Indian tribe or Native Hawaiian
organization;
(8) The nature of reports to be prepared; and
(9) The planned disposition of human remains, funerary objects,
sacred objects, or objects of cultural patrimony following Sec. 10.6.
(f) Comprehensive agreements. Whenever possible, Federal Agencies
should enter into comprehensive agreements with Indian tribes or Native
Hawaiian organizations that are affiliated with human remains, funerary
objects, sacred objects, or objects of cultural patrimony and have
claimed, or are likely to claim, those human remains, funerary objects,
sacred objects, or objects of cultural patrimony excavated intentionally
or discovered inadvertently on Federal lands. These agreements should
address all Federal agency land management activities that could result
in the intentional excavation or inadvertent discovery of human remains,
funerary objects, sacred objects, or objects of cultural patrimony.
Consultation should lead to the establishment of a process for
effectively carrying out the requirements of these regulations regarding
standard consultation procedures, the determination of custody
consistent with procedures in this section and Sec. 10.6, and the
treatment and disposition of human remains, funerary objects, sacred
objects, or objects of cultural patrimony. The signed agreements, or the
correspondence related to the effort to reach agreements, must
constitute proof of consultation as required by these regulations.
(g) Traditional religious leaders. The Federal agency official must
be cognizant that Indian tribe officials may need to confer with
traditional religious leaders prior to making recommendations. Indian
tribe officials are under no obligation to reveal the identity of
traditional religious leaders.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

[[Page 223]]

Sec. 10.6 Custody.

(a) Priority of custody. This section carries out section 3 (a) of
the Act, subject to the limitations of Sec. 10.15, regarding the custody
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony excavated intentionally or discovered inadvertently
in Federal or tribal lands after November 16, 1990. For the purposes of
this section, custody means ownership or control of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
excavated intentionally or discovered inadvertently in Federal or tribal
lands after November 16, 1990. Custody of these human remains, funerary
objects, sacred objects, or objects of cultural patrimony 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 Sec. 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,
funerary objects, sacred objects, or objects of cultural patrimony were
excavated intentionally or discovered inadvertently;
(ii) In the Indian tribe or Native Hawaiian organization that has
the closest cultural affiliation with the human remains, funerary
objects, sacred objects, or objects of cultural patrimony as determined
pursuant to Sec. 10.14 (c); or
(iii) In circumstances in which the cultural affiliation of the
human remains, funerary objects, sacred objects, or objects of cultural
patrimony cannot be ascertained and the objects were excavated
intentionally or discovered inadvertently 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 human remains, funerary objects, sacred objects, or objects of
cultural patrimony were excavated intentionally or discovered
inadvertently, or
(B) If it can be shown by a preponderance of the evidence that a
different Indian tribe or Native Hawaiian organization has a stronger
cultural relationship with the human remains, funerary objects, sacred
objects, or objects of cultural patrimony, in the Indian tribe or Native
Hawaiian organization that has the strongest demonstrated relationship
with the objects.
(b) Custody of human remains, funerary objects, sacred objects, or
objects of cultural patrimony and other provisions of the Act apply to
all intentional 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, Indian tribe, or
Native Hawaiian organization that under these regulations appears to be
entitled to custody of particular human remains, funerary objects,
sacred objects, or objects of cultural patrimony excavated intentionally
or discovered inadvertently on Federal lands, the responsible Federal
agency official must, subject to the notice required herein and the
limitations of Sec. 10.15, transfer custody of the objects to the lineal
descendant, Indian tribe, or Native Hawaiian organization following
appropriate procedures, which must respect traditional customs and
practices of the affiliated Indian tribes or Native Hawaiian
organizations in each instance. Prior to any such disposition by a
Federal agency official, the Federal agency official must publish
general notices of the proposed disposition in a newspaper of general
circulation in the area in which the human remains, funerary objects,
sacred objects, or objects of cultural patrimony were excavated
intentionally or discovered inadvertently and, if applicable, in a
newspaper of general circulation in the area(s) in which affiliated
Indian tribes or Native Hawaiian organizations members now reside. The
notice must provide information as to the nature and affiliation of the
human remains, funerary objects, sacred objects, or objects of cultural
patrimony and solicit further claims to custody. The notice must be

[[Page 224]]

published at least two (2) times at least a week apart, and the transfer
must 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
entitled to custody, the Federal agency must not transfer custody of the
objects until such time as the proper recipient is determined pursuant
to these regulations. The Federal agency official must send a copy of
the notice and information on when and in what newspaper(s) the notice
was published to the Departmental Consulting Archeologist.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Sec. 10.7 Disposition of unclaimed human remains, funerary objects,
sacred objects, or objects of cultural patrimony. [Reserved]

Subpart C--Human Remains, Funerary Objects, Sacred Objects, or Objects
of Cultural Patrimony in Museums and Federal Collections

Sec. 10.8 Summaries.

(a) General. This section carries out section 6 of the Act. Under
section 6 of the Act, 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 must complete
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 or Native Hawaiian organizations 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 actions 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 must 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 or portion of the collection was
acquired, where readily ascertainable; and information relevant to
identifying lineal descendants, if available, and cultural affiliation.
(c) Completion. Summaries must be completed not later than November
16, 1993.
(d) Consultation. (1) Consulting parties. Museum and Federal agency
officials must consult with Indian tribe officials and traditional
religious leaders:
(i) From whose tribal lands unassociated funerary objects, sacred
objects, or objects of cultural patrimony originated;
(ii) That are, or are likely to be, culturally affiliated with
unassociated funerary objects, sacred objects, or objects of cultural
patrimony; and
(iii) From whose aboriginal lands unassociated funerary objects,
sacred objects, or objects of cultural patrimony originated.
(2) Initiation of consultation. Museum and Federal agency officials
must begin summary consultation no later than the completion of the
summary process. Consultation may be initiated with a letter, but should
be followed up by telephone or face-to-face dialogue with the
appropriate Indian tribe official.
(3) Provision of information. During summary consultation, museum
and Federal agency officials must provide copies of the summary to
lineal descendants, when known, and to officials and traditional
religious leaders representing Indian tribes or Native Hawaiian
organizations that are, or are likely to be, culturally affiliated with
the cultural items. A copy of the summary must also be provided to the
Departmental Consulting Archeologist. Upon request by lineal descendants
or

[[Page 225]]

Indian tribe officials, museum and Federal agency officials must provide
lineal descendants, Indian tribe officials and traditional religious
leaders 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. Access to this
information may be requested at any time and must be provided in a
reasonable manner to be agreed upon by all parties. The Review committee
also must be provided access to such materials.
(4) Requests for information. During the summary consultation,
museum and Federal agency officials must request, as appropriate, the
following information from Indian tribes and Native Hawaiian
organizations 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) Recommendations on how the consultation process should be
conducted, including:
(A) 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;
(B) Names and appropriate methods to contact any traditional
religious leaders that the Indian tribe or Native Hawaiian organization
thinks should be consulted regarding the collections; and
(iii) Kinds of cultural items that the Indian tribe or Native
Hawaiian organization considers to be funerary objects, sacred objects,
or objects of cultural patrimony.
(e) Museum and Federal agency officials must document the following
information regarding unassociated funerary objects, sacred objects, and
objects of cultural patrimony in their collections and must use this
documentation in determining the individuals, Indian tribes, and Native
Hawaiian organizations with which they are affiliated:
(1) Accession and catalogue entries;
(2) Information related to the acquisition of unassociated funerary
object, sacred object, or object of cultural patrimony, including:
(i) The name of the person or organization from whom the object was
obtained, if known;
(ii) The date of acquisition;
(iii) The place each object was acquired, i.e., name or number of
site, county, State, and Federal agency administrative unit, if
applicable; and
(iv) The means of acquisition, i.e., gift, purchase, or excavation;
(3) A description of each unassociated funerary object, sacred
object, or object of cultural patrimony, including dimensions,
materials, and photographic documentation, if appropriate, and the
antiquity of such objects, if known;
(4) A summary of the evidence used to determine the cultural
affiliation of the unassociated funerary objects, sacred objects, or
objects of cultural patrimony pursuant to Sec. 10.14 of these
regulations.
(f) Notification. Repatriation of unassociated funerary objects,
sacred objects, or objects of cultural patrimony to lineal descendants,
culturally affiliated Indian tribes, or Native Hawaiian organizations as
determined pursuant to Sec. 10.10 (a), must not proceed prior to
submission of a notice of intent to repatriate to the Departmental
Consulting Archeologist, and publication of the notice of intent to
repatriate in the Federal Register. The notice of intent to repatriate
must describe the unassociated funerary objects, sacred objects, or
objects of cultural patrimony being claimed in sufficient detail so as
to enable other individuals, Indian tribes or Native Hawaiian
organizations to determine their interest in the claimed objects. It
must include information that identifies each claimed unassociated
funerary object, sacred object, or object of cultural patrimony and the
circumstances surrounding its acquisition, and describes the objects
that are clearly identifiable as to cultural affiliation. It must also
describe the objects that are not clearly identifiable as being
culturally affiliated with a particular Indian tribe or Native Hawaiian
organization, but

[[Page 226]]

which, given the totality of circumstances surrounding acquisition of
the objects, are likely to be culturally affiliated with a particular
Indian tribe or Native Hawaiian organization. The Departmental
Consulting Archeologist must publish the notice of intent to repatriate
in the Federal Register. Repatriation may not occur until at least
thirty (30) days after publication of the notice of intent to repatriate
in the Federal Register.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Sec. 10.9 Inventories.

(a) General. This section carries out section 5 of the Act. Under
section 5 of the Act, each museum or Federal agency that has possession
or control over holdings or collections of human remains and associated
funerary objects must compile an inventory of such objects, and, to the
fullest extent possible based on information possessed by the museum or
Federal agency, must 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 and Native Hawaiian organizations. Museums
and Federal agencies are encouraged to produce inventories first on
those portions of their collections for which information is readily
available or about which Indian tribes or Native Hawaiian organizations
have expressed special interest. Early focus on these parts of
collections will result in determinations that may serve as models for
other inventories. 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.
(b) Consultation--(1) Consulting parties. Museum and Federal agency
officials must consult with:
(i) Lineal descendants of individuals whose remains and associated
funerary objects are likely to be subject to the inventory provisions of
these regulations; and
(ii) Indian tribe officials and traditional religious leaders:
(A) From whose tribal lands the human remains and associated
funerary objects originated;
(B) That are, or are likely to be, culturally affiliated with human
remains and associated funerary objects; and
(C) From whose aboriginal lands the human remains and associated
funerary objects originated.
(2) Initiation of consultation. Museum and Federal agency officials
must begin inventory consultation as early as possible, no later in the
inventory process than the time at which investigation into the cultural
affiliation of human remains and associated funerary objects is being
conducted. Consultation may be initiated with a letter, but should be
followed up by telephone or face-to-face dialogue.
(3) Provision of information. During inventory consultation, museums
and Federal agency officials must provide the following information in
writing to lineal descendants, when known, and to officials and
traditional religious leaders representing Indian tribes or Native
Hawaiian organizations that are, or are likely to be, culturally
affiliated with the human remains and associated funerary objects.
(i) A list of all Indian tribes and Native Hawaiian organizations
that are, or have been, consulted regarding the particular human remains
and associated funerary objects;
(ii) A general description of the conduct of the 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 must request, as appropriate, the
following information from Indian tribes and Native Hawaiian
organizations 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;

[[Page 227]]

(ii) Recommendations on how the consultation process should be
conducted, including:
(A) Names and appropriate methods to contact any lineal descendants
of individuals whose remains and associated funerary objects are or are
likely to be included in the inventory; and
(B) Names and appropriate methods to contact traditional religious
leaders who should be consulted regarding the human remains and
associated funerary objects.
(iii) Kinds of objects that the Indian tribe or Native Hawaiian
organization reasonably believes to have been made exclusively for
burial purposes or to contain human remains of their ancestors.
(c) Required information. The following documentation must be
included, if available, for all inventories completed by museum or
Federal agency officials:
(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:
(i) The name of the person or organization from whom the object was
obtained, if known;
(ii) The date of acquisition,
(iii) The place each object was acquired, i.e., name or number of
site, county, State, and Federal agency administrative unit, if
applicable; and
(iv) The means of acquisition, i.e., gift, purchase, or excavation;
(3) A description of each set of human remains or associated
funerary object, including dimensions, materials, and, if appropriate,
photographic documentation, and the antiquity of such human remains or
associated funerary objects, if known;
(4) A summary of the evidence, including the results of
consultation, used to determine the cultural affiliation of the human
remains and associated funerary objects pursuant to Sec. 10.14 of these
regulations.
(d) Documents. Two separate documents 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 or Native Hawaiian organizations. The list
must indicate for each item or set of items whether cultural affiliation
is clearly determined or likely based upon the preponderance of the
evidence; and
(2) A listing of all culturally unidentifiable human remains and
associated funerary objects for which no culturally affiliated present-
day Indian tribe or Native Hawaiian organization 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 with one or more Indian
tribes or Native Hawaiian organizations, the museum or Federal agency,
not later than six (6) months after completion of the inventory, must
send such Indian tribes or Native Hawaiian organizations the inventory
of culturally affiliated human remains and associated funerary objects,
including all information required under Sec. 10.9 (c), and a notice of
inventory completion that summarizes the results of the inventory.
(2) The notice of inventory completion must summarize the contents
of the inventory in sufficient detail so as to enable the recipients to
determine their interest in claiming the inventoried items. It must
identify each particular set of human remains or each associated
funerary object and the circumstances surrounding its acquisition,
describe the human remains or associated funerary objects that are
clearly identifiable as to cultural affiliation, and describe the human
remains and associated funerary objects that are not clearly
identifiable as being culturally affiliated with an Indian tribe or
Native Hawaiian organization, 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 or Native Hawaiian organization.
(3) If the inventory results in a determination that the human
remains are of an identifiable individual, the museum or Federal agency
official must convey this information to the lineal descendant of the
deceased individual,

[[Page 228]]

if known, and to the Indian tribe or Native Hawaiian organization of
which the deceased individual was culturally affiliated.
(4) The notice of inventory completion and a copy of the inventory
must also be sent to the Departmental Consulting Archeologist. These
submissions should be sent in both printed hard copy and electronic
formats. Information on the proper format for electronic submission and
suggested alternatives for museums and Federal agencies unable to meet
these requirements are available from the Departmental Consulting
Archeologist.
(5) Upon request by an Indian tribe or Native Hawaiian organization
that has received or should have received a notice of inventory
completion and a copy of the inventory as described above, a museum or
Federal agency must 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) If the museum or Federal agency official determines that the
museum or Federal agency has possession of or control over human remains
that cannot be identified as affiliated with a particular individual,
Indian tribes or Native Hawaiian organizations, the museum or Federal
agency must 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
Archeologist must make this information available to members of the
Review Committee. Section 10.11 of these regulations will set forth
procedures for disposition of culturally unidentifiable human remains of
Native American origin. Museums or Federal agencies must retain
possession of such human remains pending promulgation of Sec. 10.11
unless legally required to do otherwise, or recommended to do otherwise
by the Secretary. Recommendations regarding the disposition of
culturally unidentifiable human remains may be requested prior to final
promulgation of Sec. 10.11.
(7) The Departmental Consulting Archeologist must publish notices of
inventory completion received from museums and Federal agencies in the
Federal Register.
(f) Completion. Inventories must 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 must include, but not
necessarily be limited to, the initiation of active consultation and
documentation regarding the collections 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; a schedule for carrying
out the plan; and a proposal to obtain the requisite funding.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Sec. 10.10 Repatriation.

(a) Unassociated funerary objects, sacred objects, and objects of
cultural patrimony--(1) Criteria. Upon the request of a lineal
descendant, Indian tribe, or Native Hawaiian organization, a museum or
Federal agency must expeditiously repatriate unassociated funerary
objects, sacred objects, or objects of cultural patrimony if all the
following criteria are met:
(i) The object meets the definitions established in Sec. 10.2
(d)(2)(ii), (d)(3), or (d)(4); and
(ii) The cultural affiliation of the object is established:
(A) Through the summary, consultation, and notification procedures
in Sec. 10.14 of these regulations; or
(B) By presentation of a preponderance of the evidence by a
requesting Indian tribe or Native Hawaiian organization pursuant to
section 7(c) of the Act; and

[[Page 229]]

(iii) The known lineal descendant or culturally affiliated Indian
tribe or Native Hawaiian organization presents evidence which, if
standing alone before the introduction of evidence to the contrary,
would support a finding that the museum or Federal agency does not have
a right of possession to the objects as defined in Sec. 10.10 (a)(2);
and
(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; and
(v) None of the specific exceptions listed in Sec. 10.10 (c) apply.
(2) Right of possession. For purposes of this section, ``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 or Native
Hawaiian organization 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. Repatriation must take place within ninety (90)
days of receipt of a written request for repatriation that satisfies the
requirements of paragraph (a)(1) of this section from a lineal
descendent or culturally affiliated Indian tribe or Native Hawaiian
organization, provided that the repatriation may not occur until at
least thirty (30) days after publication of the notice of intent to
repatriate in the Federal Register as described in Sec. 10.8.
(b) Human remains and associated funerary objects--(1) Criteria.
Upon the request of a lineal descendant, Indian tribe, or Native
Hawaiian organization, a museum and Federal agency must expeditiously
repatriate human remains and associated funerary objects if all of the
following criteria are met:
(i) The human remains or associated funerary object meets the
definitions established in Sec. 10.2 (d)(1) or (d)(2)(i); and
(ii) The affiliation of the deceased individual to known lineal
descendant, present day Indian tribe, or Native Hawaiian organization:
(A) Has been reasonably traced through the procedures outlined in
Sec. 10.9 and Sec. 10.14 of these regulations; or
(B) Has been shown by a preponderance of the evidence presented by a
requesting Indian tribe or Native Hawaiian organization pursuant to
section 7(c) of the Act; and
(iii) None of the specific exceptions listed in Sec. 10.10 (c)
apply.
(2) Notification. Repatriation must take place within ninety (90)
days of receipt of a written request for repatriation that satisfies the
requirements of Sec. 10.10 (b)(1) from the culturally affiliated Indian
tribe or Native Hawaiian organization, provided that the repatriation
may not occur until at least thirty (30) days after publication of the
notice of inventory completion in the Federal Register as described in
Sec. 10.9.
(c) Exceptions. These requirements for repatriation do not apply to:
(1) Circumstances where human remains, funerary objects, sacred
objects, or objects of cultural patrimony are indispensable to the
completion of a specific scientific study, the outcome of which is of
major benefit to the United States. Human remains, funerary objects,
sacred objects, or objects of cultural patrimony in such circumstances
must 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, funerary objects, sacred objects, or objects of
cultural patrimony and the museum or Federal agency, after complying
with these regulations, cannot determine by a preponderance of the
evidence which requesting party is the most appropriate claimant. In
such circumstances, the museum or Federal agency may retain the human
remains, funerary objects, sacred objects, or objects of cultural
patrimony until such time as the requesting parties mutually agree upon
the appropriate recipient or the dispute is otherwise resolved pursuant
to these regulations or as ordered by a court of competent jurisdiction;
or
(3) Circumstances where a court of competent jurisdiction has
determined that the repatriation of the human remains, funerary objects,
sacred objects,

[[Page 230]]

or objects of cultural patrimony in the possession or control of a
museum would result in a taking of property without just compensation
within the meaning of the Fifth Amendment of the United States
Constitution, in which event the custody of the objects must be as
provided under otherwise applicable law. Nothing in these regulations
must prevent a museum or Federal agency, where otherwise so authorized,
or a lineal descendant, Indian tribe, or Native Hawaiian organization,
from expressly relinquishing title to, right of possession of, or
control over any human remains, funerary objects, sacred objects, or
objects of cultural patrimony.
(4) Circumstances where the repatriation is not consistent with
other repatriation limitations identified in Sec. 10.15 of these
regulations.
(d) Place and manner of repatriation. The repatriation of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony must be accomplished by the museum or Federal agency in
consultation with the requesting lineal descendants, or culturally
affiliated Indian tribe or Native Hawaiian organization, as appropriate,
to determine the place and manner of the repatriation.
(e) The museum official or Federal agency official must inform the
recipients of repatriations of any presently known treatment of the
human remains, funerary objects, sacred objects, or objects of cultural
patrimony with pesticides, preservatives, or other substances that
represent a potential hazard to the objects or to persons handling the
objects.
(f) Record of repatriation. (1) Museums and Federal agencies must
adopt internal procedures adequate to permanently document the content
and recipients of all repatriations.
(2) The museum official or Federal agency official, at the request
of the Indian tribe official, may take such steps as are considered
necessary pursuant to otherwise applicable law, to ensure that
information of a particularly sensitive nature is not made available to
the general public.
(g) Culturally unidentifiable human remains. If the cultural
affiliation of human remains cannot be established pursuant to these
regulations, the human remains must be considered culturally
unidentifiable. Museum and Federal agency officials must report the
inventory information regarding such human 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 culturally unidentifiable 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.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997]

Sec. 10.11 Disposition of culturally unidentifiable human remains.
[Reserved]

Sec. 10.12 Civil penalties.

(a) The Secretary's Authority to Assess Civil Penalties. The
Secretary is authorized by section 9 of the Act to assess civil
penalties on any museum that fails to comply with the requirements of
the Act. As used in this Paragraph, ``failure to comply with
requirements of the Act'' also means failure to comply with applicable
portions of the regulations set forth in this Part. As used in this
Paragraph ``you'' refers to the museum or the museum official designated
responsible for matters related to implementation of the Act.
(b) Definition of ``failure to comply.'' (1) Your museum has failed
to comply with the requirements of the Act if it:
(i) After November 16, 1990, sells or otherwise transfers human
remains, funerary objects, sacred objects, or objects of cultural
patrimony contrary to provisions of the Act, including, but not limited
to, an unlawful sale or transfer to any individual or institution that
is not required to comply with the Act; or
(ii) After November 16, 1993, has not completed summaries as
required by the Act; or
(iii) After November 16, 1995, or the date specified in an extension
issued by the Secretary, whichever is later, has not completed
inventories as required by the Act; or

[[Page 231]]

(iv) After May 16, 1996, or 6 months after completion of an
inventory under an extension issued by the Secretary, whichever is
later, has not notified culturally affiliated Indian tribes and Native
Hawaiian organizations; or
(v) Refuses, absent any of the exemptions specified in Sec. 10.10(c)
of this part, to repatriate human remains, funerary object, sacred
object, or object of cultural patrimony to a lineal descendant or
culturally affiliated Indian tribe or Native Hawaiian; or
(vi) Repatriates a human remains, funerary object, sacred object, or
object of cultural patrimony before publishing the required notice in
the Federal Register;
(vii) Does not consult with lineal descendants, Indian tribe
officials, and traditional religious leaders as required; or
(viii) Does not inform the recipients of repatriations of any
presently known treatment of the human remains, funerary objects, sacred
objects, or objects of cultural patrimony with pesticides,
preservatives, or other substances that represent a potential hazard to
the objects or to persons handling the objects.
(2) Each instance of failure to comply will constitute a separate
violation.
(c) How to Notify the Secretary of a Failure to Comply. Any person
may bring an allegation of failure to comply to the attention of the
Secretary. Allegations must be in writing, and should include
documentation identifying the provision of the Act with which there has
been a failure to comply and supporting facts of the alleged failure to
comply. Documentation should include evidence that the museum has
possession or control of Native American cultural items, receives
Federal funds, and has failed to comply with specific provisions of the
Act. Written allegations should be sent to the attention of the
Director, National Park Service, 1849 C Street, NW, Washington, D.C.
20240.
(d) Steps the Secretary may take upon receiving such an allegation.
(1) The Secretary must acknowledge receipt of the allegation in writing.
(2) The Secretary also may:
(i) Compile and review information relevant to the alleged failure
to comply. The Secretary may request additional information, such as
declarations and relevant papers, books, and documents, from the person
making the allegation, the museum, and other parties;
(ii) Identify the specific provisions of the Act with which you have
allegedly failed to comply; and
(iii) Determine if the institution of a civil penalty action is an
appropriate remedy.
(3) The Secretary must provide written notification to the person
making the allegation and the museum if the review of the evidence does
not show a failure comply.
(e) How the Secretary notifies you of a failure to comply. (1) If
the allegations are verified, the Secretary must serve you with a
written notice of failure to comply either by personal delivery or by
registered or certified mail (return receipt requested). The notice of
failure to comply must include:
(i) A concise statement of the facts believed to show a failure to
comply;
(ii) A specific reference to the provisions of the Act and/or these
regulations with which you allegedly have not complied; and
(iii) Notification of the right to request an informal discussion
with the Secretary or a designee, to request a hearing, as provided
below, or to await the Secretary's notice of assessment. The notice of
failure to comply also must inform you of your right to seek judicial
review of any final administrative decision assessing a civil penalty.
(2) With your consent, the Secretary may combine the notice of
failure to comply with the notice of assessment described in paragraph
(h) of this section.
(3) The Secretary also must send a copy of the notice of failure to
comply to:
(i) Any lineal descendant of a known Native American individual
whose human remains, funerary objects, or sacred objects are in
question; and
(ii) Any Indian tribes or Native Hawaiian organizations that are, or
are likely to be, culturally affiliated with the human remains, funerary
objects, sacred objects, or objects of cultural patrimony in question.
(f) Actions you may take upon receipt of a notice of failure to
comply. If you are

[[Page 232]]

served with a notice of failure to comply, you may:
(1) Seek informal discussions with the Secretary;
(2) Request a hearing. Figure 1 outlines the civil penalty hearing
and appeal process. Where the Secretary has issued a combined notice of
failure to comply and notice of assessment, the hearing and appeal
processes will also be combined.
(3) Take no action and await the Secretary's notice of assessment.

[[Page 233]]

[GRAPHIC] [TIFF OMITTED] TR03AP03.002

(g) How the Secretary determines the penalty amount.
(1) The penalty amount must be determined on the record;
(2) The penalty amount must be .25 percent of your museum's annual
budget, or $5,000, whichever is less, and such additional sum as the
Secretary may

[[Page 234]]

determine is appropriate after taking into account:
(i) The archeological, historical, or commercial value of the human
remains, funerary object, sacred object, or object of cultural patrimony
involved; and
(ii) The damages suffered, both economic and non-economic, by the
aggrieved party or parties including, but not limited to, expenditures
by the aggrieved party to compel the museum to comply with the Act; and
(iii) The number of violations that have occurred at your museum.
(3) An additional penalty of up to $1,000 per day after the date
that the final administrative decision takes effect may be assessed if
your museum continues to violate the Act.
(4) The Secretary may reduce the penalty amount if there is:
(i) A determination that you did not willfully fail to comply; or
(ii) An agreement by you to mitigate the violation, including, but
not limited to, payment of restitution to the aggrieved party or
parties; or
(iii) A determination that you are unable to pay, provided that this
factor may not apply if you have been previously found to have failed to
comply with these regulations; or,
(iv) A determination that the penalty constitutes excessive
punishment under the circumstances.
(h) How the Secretary assesses the penalty. (1) The Secretary
considers all available information, including information provided
during the process of assessing civil penalties or furnished upon
further request by the Secretary.
(2) The Secretary may assess the civil penalty upon completing
informal discussions or when the period for requesting a hearing
expires, whichever is later.
(3) The Secretary notifies you in writing of the penalty amount
assessed by serving a written notice of assessment, either in person or
by registered or certified mail (return receipt requested). The notice
of assessment includes:
(i) The basis for determining the penalty amount assessed and/or any
offer to mitigate or remit the penalty; and
(ii) Notification of the right to request a hearing, including the
procedures to follow, and to seek judicial review of any final
administrative decision that assesses a civil penalty.
(i) Actions that you may take upon receipt of a notice of
assessment. If you are served with a notice of assessment, you may do
one of the following:
(1) Accept in writing or by payment of the proposed penalty, or any
mitigation or remission offered in the notice of assessment. If you
accept the proposed penalty, mitigation, or remission, you waive the
right to request a hearing.
(2) Seek informal discussions with the Secretary.
(3) File a petition for relief. You may file a petition for relief
with the Secretary within 45 calendar days of receiving the notice of
assessment. Your petition for relief may request the Secretary to assess
no penalty or to reduce the amount. Your petition must be in writing and
signed by an official authorized to sign such documents. Your petition
must set forth in full the legal or factual basis for the requested
relief.
(4) Request a hearing. Figure 1 outlines the civil penalty hearing
and appeal process.
(i) In addition to the documentation required in paragraph (g) of
this section, your request must include a copy of the notice of
assessment and must identify the basis for challenging the assessment.
(ii) In this hearing, the amount of the civil penalty assessed must
be determined in accordance with paragraph (h) of this section, and will
not be limited to the amount assessed by the Secretary or any offer of
mitigation or remission made by the Secretary.
(j) How you request a hearing. (1) You may file a written, dated
request for a hearing on a notice of failure to comply or notice of
assessment with the Hearings Division, Office of Hearings and Appeals,
U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, VA
22203-1923. You must enclose a copy of the notice of failure to comply
or the notice of assessment. Your request must state the relief sought,
the basis for challenging the facts used as the basis for determining
the failure to comply or fixing the assessment, and your preference of
the place and date for a hearing. You must serve a copy of

[[Page 235]]

the request on the Solicitor of the Department of the Interior
personally or by registered or certified mail (return receipt requested)
at the address specified in the notice of failure to comply or notice of
assessment. Hearings must take place following procedures set forth in
43 CFR part 4, subparts A and B.
(2) Your failure to file a written request for a hearing within 45
days of the date of service of a notice of failure to comply or notice
of assessment waives your right to a hearing.
(3) Upon receiving a request for a hearing, the Hearings Division
assigns an administrative law judge to the case, gives notice of
assignment promptly to the parties, and files all pleadings, papers, and
other documents in the proceeding directly with the administrative law
judge, with copies served on the opposing party.
(4) Subject to the provisions of 43 CFR 1.3, you may appear by
representative or by counsel, and may participate fully in the
proceedings. If you fail to appear and the administrative law judge
determines that this failure is without good cause, the administrative
law judge may, in his/her discretion, determine that this failure waives
your right to a hearing and consent to the making of a decision on the
record.
(5) Departmental counsel, designated by the Solicitor of the
Department of the Interior, represents the Secretary in the proceedings.
Upon notice to the Secretary of the assignment of an administrative law
judge to the case, this counsel must enter his/her appearance on behalf
of the Secretary and must file all petitions and correspondence
exchanges by the Secretary and the respondent that become part of the
hearing record. Thereafter, you must serve all documents for the
Secretary on his/her counsel.
(6) Hearing administration. (i) The administrative law judge has all
powers accorded by law and necessary to preside over the parties and the
proceedings and to make decisions under 5 U.S.C. 554-557.
(ii) The transcript of testimony; the exhibits; and all papers,
documents, and requests filed in the proceedings constitute the record
for decision. The administrative law judge renders a written decision
upon the record, which sets forth his/her findings of fact and
conclusions of law, and the reasons and basis for them.
(iii) Unless you file a notice of appeal described in these
regulations, the administrative law judge's decision constitutes the
final administrative determination of the Secretary in the matter and
takes effect 30 calendar days from this decision.
(k) How you appeal a decision. (1) Either you or the Secretary may
appeal the decision of an administrative law judge by filing a ``Notice
of Appeal'' with the Interior Board of Indian Appeals, U.S. Department
of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954, within
30 calendar days of the date of the administrative law judge's decision.
This notice must be accompanied by proof of service on the
administrative law judge and the opposing party.
(2) To the extent they are not inconsistent with these regulations,
the provisions of the Department of the Interior Hearings and Appeals
Procedures in 43 CFR part 4, subpart D, apply to such appeal
proceedings. The appeal board's decision on the appeal must be in
writing and takes effect as the final administrative determination of
the Secretary on the date that the decision is rendered, unless
otherwise specified in the decision.
(3) You may obtain copies of decisions in civil penalty proceedings
instituted under the Act by sending a request to the Interior Board of
Indian Appeals, Office of Hearings and Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954. Fees for this
service are established by the director of that office.
(l) The final administrative decision. (1) When you have been served
with a notice of assessment and have accepted the penalty as provided in
these regulations, the notice constitutes the final administrative
decision.
(2) When you have been served with a notice of assessment and have
not filed a timely request for a hearing as provided in these
regulations, the notice of assessment constitutes the final
administrative decision.
(3) When you have been served with a notice of assessment and have
filed a

[[Page 236]]

timely request for a hearing as provided in these regulations, the
decision resulting from the hearing or any applicable administrative
appeal from it constitutes the final administrative decision.
(m) How you pay the penalty. (1) If you are assessed a civil
penalty, you have 45 calendar days from the date of issuance of the
final administrative decision to make full payment of the penalty
assessed to the Secretary, unless you have filed a timely request for
appeal with a court of competent jurisdiction.
(2) If you fail to pay the penalty, the Secretary may request the
Attorney General of the United States to collect the penalty by
instituting a civil action in the U.S. District Court for the district
in which your museum is located. In these actions, the validity and
amount of the penalty is not subject to review by the court.
(3) Assessing a penalty under this section is not a waiver by the
Secretary of the right to pursue other available legal or administrative
remedies.

[68 FR 16360, Apr. 3, 2003]

Sec. 10.13 Future applicability. [Reserved]

Subpart D--General

Sec. 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 or Native Hawaiian organizations and human remains,
funerary objects, sacred objects, or objects of cultural patrimony in
museum or Federal agency collections or excavated intentionally or
discovered inadvertently from Federal lands. They may also be used by
Indian tribes and Native Hawaiian organizations 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 or Native Hawaiian organization or by the
common law system of descendence 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 or Native Hawaiian organization and an identifiable earlier
group. All of the following requirements must be met to determine
cultural affiliation between a present-day Indian tribe or Native
Hawaiian organization and the human remains, funerary objects, sacred
objects, or objects of cultural patrimony of an earlier group:
(1) Existence of an identifiable present-day Indian tribe or Native
Hawaiian organization with standing under these regulations and the Act;
and
(2) Evidence of the existence of an identifiable earlier group.
Support for this requirement may include, but is not necessarily limited
to evidence sufficient to:
(i) Establish the identity and cultural characteristics 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; and
(3) Evidence of the existence of a shared group identity that can be
reasonably traced between the present-day Indian tribe or Native
Hawaiian organization and the earlier group. Evidence to support this
requirement must establish that a present-day Indian tribe or Native
Hawaiian organization has been identified from prehistoric or historic
times to the present as descending from the earlier group.
(d) A finding of cultural affiliation should be based upon an
overall evaluation of the totality of the circumstances and evidence
pertaining to

[[Page 237]]

the connection between the claimant and the material being claimed and
should not be precluded solely because of some gaps in the record.
(e) Evidence. Evidence of a kin or cultural affiliation between a
present-day individual, Indian tribe, or Native Hawaiian organization
and human remains, funerary objects, sacred objects, or objects of
cultural patrimony must 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.
(f) Standard of proof. Lineal descent of a present-day individual
from an earlier individual and cultural affiliation of a present-day
Indian tribe or Native Hawaiian organization to human remains, funerary
objects, sacred objects, or objects of cultural patrimony must be
established by a preponderance of the evidence. Claimants do not have to
establish cultural affiliation with scientific certainty.

Sec. 10.15 Limitations and remedies.

(a) Failure to claim prior to repatriation. (1) Any person who fails
to make a timely claim prior to the repatriation or disposition of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony is deemed to have irrevocably waived any right to claim such
items pursuant to these regulations or the Act. For these purposes, a
``timely claim'' means the filing of a written claim with a responsible
museum or Federal agency official prior to the time the particular human
remains, funerary objects, sacred objects, or objects of cultural
patrimony at issue are duly repatriated or disposed of to a claimant by
a museum or Federal agency pursuant to these regulations.
(2) If there is more than one (1) claimant, the human remains,
funerary object, sacred object, or objects of cultural patrimony may be
held by the responsible museum or Federal agency or person in possession
thereof pending resolution of the claim. Any person who is in custody of
such human remains, funerary objects, sacred objects, or objects of
cultural patrimony and does not claim entitlement to them must place the
objects in the possession of the responsible museum or Federal agency
for retention until the question of custody is resolved.
(b) Failure to claim where no repatriation or disposition has
occurred. [Reserved]
(c) Exhaustion of remedies. No person is considered to have
exhausted his or her administrative remedies with respect to the
repatriation or disposition of human remains, funerary objects, sacred
objects, or objects of cultural patrimony 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 duly denied following these
regulations.
(d) Savings provisions. Nothing in these regulations can be
construed to:
(1) Limit the authority of any museum or Federal agency to:
(i) Return or repatriate human remains, funerary objects, sacred
objects, or objects of cultural patrimony to Indian tribes, Native
Hawaiian organizations, or individuals; and
(ii) Enter into any other agreement with the consent of the
culturally affiliated Indian tribe or Native Hawaiian organization as to
the disposition of, or control over, human remains, funerary objects,
sacred objects, or objects of cultural patrimony.
(2) Delay actions on repatriation requests that were pending on
November 16, 1990;
(3) Deny or otherwise affect access to court;
(4) Limit any procedural or substantive right which may otherwise be
secured to individuals or Indian tribes or Native Hawaiian
organizations; or
(5) Limit the application of any State or Federal law pertaining to
theft of stolen property.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997]

Sec. 10.16 Review committee.

(a) General. The Review Committee will advise Congress and the
Secretary on matters relating to these regulations and the Act,
including, but not limited to, monitoring the performance

[[Page 238]]

of museums and Federal agencies in carrying out their responsibilities,
facilitating and making recommendations on the resolution of disputes as
described further in Sec. 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 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.

Sec. 10.17 Dispute resolution.

(a) Formal and informal resolutions. Any person who wishes to
contest actions taken by museums, Federal agencies, Indian tribes, or
Native Hawaiian organizations with respect to the repatriation and
disposition of human remains, funerary objects, sacred objects, or
objects of cultural patrimony is encouraged to do so through informal
negotiations to achieve a fair resolution of the matter. The Review
Committee may aid in this regard as described below. In addition, the
United States 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.

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 or Native Hawaiian organization
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 or Native Hawaiian organization. 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 or Native Hawaiian organization. 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 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 or Native Hawaiian organization. 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

[[Page 239]]

basic facts surrounding acquisition and accession of these items. We
look forward to working together with you.
Sincerely,
Museum Official
Major Museum

Appendix B 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 Inventory Completion for Native American Human Remains and
Associated Funerary Objects from Hancock County, ME, in the Control of
the National Park Service.
AGENCY: National Park Service, Interior.
ACTION: Notice.
Notice is hereby given following provisions of the Native American
Graves Protection and Repatriation Act, 25 U.S.C. 3003(d), of completion
of the inventory of human remains and associated funerary objects from a
site in Hancock County, ME, that are presently in the control of the
National Park Service.
A detailed inventory and assessment of these human remains has been
made by National Park Service curatorial staff, contracted specialists
in physical anthropology and prehistoric archeology, and representatives
of the Penobscot Nation, Aroostook Band of Micmac, Houlton Band of
Maliseet, and the Passamaquoddy Nation, identified collectively
hereafter as the Wabanaki Tribes of Maine.
The partial remains of at least seven individuals (including five
adults, one subadult, and one child) were recovered in 1977 from a
single grave at the Fernald Point Site (ME Site 43-24), a prehistoric
shell midden on Mount Desert Island, within the boundary of Acadia
National Park. A bone harpoon head, a modified beaver tooth, and several
animal and fish bone fragments were found associated with the eight
individuals. Radiocarbon assays indicate the burial site dates between
1035-1155 AD. The human remains and associated funerary objects have
been catalogued as ACAD-5747, 5749, 5750, 5751, 5752, 5783, 5784. The
partial remains of an eighth individual (an elderly male) was also
recovered in 1977 from a second grave at the Fernald Point Site. No
associated funerary objects were recovered with this individual.
Radiocarbon assays indicate the second burial site dates between 480-680
AD. The human remains have been catalogued as ACAD-5748. The human
remains and associated funerary objects of all nine individuals are
currently in the possession of the University of Maine, Orono, ME.
Inventory of the human remains and associated funerary objects and
review of the accompanying documentation indicates that no known
individuals were identifiable. A representative of the Wabanaki Tribes
of Maine has identified the Acadia National Park area as a historic
gathering place for his people and stated his belief that there exists a
relationship of shared group identity between these individuals and the
Wabanaki Tribes of Maine. The Prehistoric Subcommittee of the Maine
State Historic Preservation Office's Archaeological Advisory Committee
has found it reasonable to trace a shared group identity from the Late
Prehistoric Period (1000-1500 AD) inhabitants of Maine as an undivided
whole to the four modern Indian tribes known collectively as the
Wabanaki Tribes of Maine on the basis of geographic proximity; survivals
of stone, ceramic and perishable material culture skills; and probable
linguistic continuity across the Late Prehistoric/Contact Period
boundary. In a 1979 article, Dr. David Sanger, the archeologist who
conducted the 1977 excavations at the Fernald Point Site and uncovered
the abovementioned burials, recognizes a relationship between Maine
sites dating to the Ceramic Period (2,000 B.P.-1600 A.D.) and present-
day Algonkian speakers generally known as Abenakis, including the
Micmac, Maliseet, Passamaquoddy, Penboscot, Kennebec, and Pennacook
groups.
Based on the above mentioned information, officials of the National
Park Service have determined that, pursuant to 25 U.S.C. 3001 (2), there
is a relationship of shared group identity which can be reasonably
traced between these human remains and associated funerary objects and
the Wabanaki Tribes of Maine.
This notice has been sent to officials of the Wabanaki Tribes of
Maine. Representatives of any other Indian tribe which believes itself
to be culturally affiliated with these human remains and associated
funerary objects should contact Len Bobinchock, Acting Superintendent,
Acadia National Park, P.O. Box 177, Bar Harbor, ME 04609, telephone:
(207) 288-0374, before August 31, 1994. Repatriation of these human
remains and associated funerary objects to the Wabanaki Tribes of Maine
may begin after that date if no additional claimants come forward.
Dated: July 21, 1994

Francis P. McManamon,
Departmental Consulting Archeologist,
Chief, Archeological Assistance Division.

[Published: August 1, 1994]

 
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