[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Proposed Rules]
[Pages 63202-63260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22376]
[[Page 63201]]
Vol. 87
Tuesday,
No. 200
October 18, 2022
Part III
Department of the Interior
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43 CFR Part 10
Native American Graves Protection and Repatriation Act Systematic
Process for Disposition and Repatriation of Native American Human
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural
Patrimony; Proposed Rule
Federal Register / Vol. 87 , No. 200 / Tuesday, October 18, 2022 /
Proposed Rules
[[Page 63202]]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
[NPS-WASO-NAGPRA-33190; PPWOCRADN0-PCU00RP14.550000]
RIN 1024-AE19
Native American Graves Protection and Repatriation Act Systematic
Process for Disposition and Repatriation of Native American Human
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural
Patrimony
AGENCY: Office of the Secretary, Interior.
ACTION: Proposed rule.
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SUMMARY: The Department of the Interior proposes to revise regulations
to improve implementation of the Native American Graves Protection and
Repatriation Act of 1990. These proposed regulations would clarify and
improve upon the systematic process for the disposition and
repatriation of Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony. The proposed changes would
provide a step-by-step roadmap for museums and Federal agencies to
comply with requirements within specific timelines to facilitate the
required disposition and repatriation. The proposed changes would
describe the processes in accessible language with clear timelines and
terms, reduce ambiguity, and improve efficiency in meeting the
requirements. In addition, the proposed changes emphasize consultation
in every step and defer to the customs, traditions, and Native American
traditional knowledge of lineal descendants, Indian Tribes, and Native
Hawaiian organizations.
DATES: Comments on the proposed rule must be received by 11:59 p.m. EDT
on January 17, 2023.
Federal Advisory Committee Act Meetings: The Native American Graves
Protection and Repatriation Review Committee (Review Committee) will
meet virtually during the comment period. The National Park Service
will announce the exact dates and times of the Review Committee
meetings in the Federal Register, once scheduled. These meetings will
be open to the public and there will be time for public comment.
Tribal Consultation Sessions: The Department of the Interior will
conduct consultation sessions with Indian Tribes virtually during the
comment period. The Department of the Interior will announce the exact
meeting dates and times of the consultation sessions, once scheduled,
on https://www.doi.gov/priorities/tribal-consultation/upcoming-tribal-consultations and by letter to Tribal leaders.
Native Hawaiian Consultation Sessions: The Department of the
Interior will conduct consultation sessions with the Native Hawaiian
Community virtually during the comment period. The Department of the
Interior's Office of Native Hawaiian Relations will invite the Native
Hawaiian Community to participate and provide the exact meeting dates
and times of the consultation sessions, once scheduled.
Public Listening Sessions: The Department of the Interior will host
virtual listening sessions during the comment period. The National Park
Service will announce the exact dates and times of the listening
sessions, once scheduled, on https://www.nps.gov/orgs/1335/events.htm.
These meetings will be open to the public.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to decide
concerning the collection of information contained in this proposed
rule between 30 and 60 days after publication of this proposed rule in
the Federal Register. Therefore, comments should be submitted to OMB by
December 19, 2022.
ADDRESSES: You may submit written comments, identified by the
Regulation Identifier Number (RIN) 1024-AE19, by any one of the
following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail to: National NAGPRA Program, National Park Service,
1849 C Street NW, Mail Stop 7360, Washington DC 20240. Attn: Melanie
O'Brien, Manager NAGPRA Rule Comments.
Instructions: All submissions received must include the words
``National Park Service'' or ``NPS'' and the RIN (1024-AE19) for this
rulemaking. Comments received may be posted without change to https://www.regulations.gov, including any personal information provided.
Written comments will not be accepted by fax, email, or in any way
other than those specified above. The NPS will not accept bulk comments
in any format (hard copy or electronic) submitted on behalf of others.
Oral Comments: Register for opportunities to make oral comments at:
https://www.nps.gov/orgs/1335/events.htm. The consultation sessions
listed above are for federally recognized Indian Tribes and for
representatives of the Native Hawaiian Community. All oral comments by
other members of the public must be made during specified sessions of
the Review Committee meetings or public listening sessions. Oral
comments will be recorded and submitted for the record and oral
commenters should include a written copy of their statement prior to
the public meeting. Time for oral comments may be limited.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements should be
submitted by the date specified above in DATES to https://www.reginfo.gov/public/do/PRAMain. Find this particular information
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function. Please provide a copy of
your comments to the NPS Information Collection Clearance Officer
(ADIR-ICCO), 12201 Sunrise Valley Drive, Reston, VA 20191. Please
include ``1024-AE19'' in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Melanie O'Brien, National NAGPRA
Program, National Park Service, (202) 354-2201,
melanie_o'[email protected]. Questions regarding the NPS's information
collection request may be submitted to Phadrea Ponds, NPS Information
Collection Clearance Officer, [email protected]. Please include
``1024-AE19'' in the subject line of your email request.
SUPPLEMENTARY INFORMATION:
I. Background
II. Previous Federal Actions
III. Development of the Proposed Rule
A. Cultural Affiliation
B. Consultation
C. Discovery on Federal or Tribal Lands
D. Comprehensive Agreements
E. Control
F. Funerary Objects
G. Stay of Repatriation for Scientific Study
H. Summaries
I. Acknowledged and Adjudicated Aboriginal Land
J. Federal Lands and Boarding Schools
IV. Overview of Major Proposed Changes
V. Section-by-Section Summary of Proposed Changes
A. Authority
B. Section 10.1 Introduction
C. Section 10.2 Definitions for This Part
D. Section 10.3 Cultural and Geographical Affiliation
E. Section 10.4 General
F. Section 10.5 Discovery
G. Section 10.6 Excavation
H. Section 10.7 Disposition
I. Section 10.8 General
J. Section 10.9 Repatriation of Unassociated Funerary Objects,
Sacred Objects, and Objects of Cultural Patrimony
[[Page 63203]]
K. Section 10.10 Repatriation of Human Remains and Associated
Funerary Objects
L. Section 10.11 Civil Penalties
M. Section 10.12 Review Committee
VI. Public Engagement and Request for Comments
VII. Compliance With Other Laws, Executive Orders and Department
Policy
I. Background
The Native American Graves Protection and Repatriation Act of 1990
(NAGPRA or Act) (25 U.S.C. 3001 et seq.) requires the disposition and
repatriation of Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony to lineal descendants,
Indian Tribes, and Native Hawaiian organizations (NHOs). The Act
governs the disposition of human remains or cultural items removed from
Federal or Tribal lands (25 U.S.C. 3002); requires the inventory of
human remains and associated funerary objects in holdings or
collections (25 U.S.C. 3003); requires a summary of unassociated
funerary objects, sacred objects, and objects of cultural patrimony in
holdings or collections (25 U.S.C. 3004); governs the repatriation of
human remains or cultural items in holdings or collections (25 U.S.C.
3005); creates a Federal advisory committee to monitor and review the
inventory and identification process and repatriation activities (25
U.S.C. 3006); and authorizes civil penalties for museums that fail to
comply with the Act (25 U.S.C. 3007).
II. Previous Federal Actions
The Secretary of the Interior (Secretary) is responsible for
implementation of the Act, including the issuance of regulations
implementing and interpreting its provisions (25 U.S.C. 3011). The
regulations are codified at 43 CFR part 10. The Department of the
Interior (Department) published the initial rule to implement NAGPRA in
1995 at 60 FR 62134 (December 4, 1995). Subsequently, the Department
published additional rules concerning:
Civil penalties, at 68 FR 16354 (April 3, 2003);
Future applicability, at 72 FR 13184 (March 21, 2007);
Culturally unidentifiable human remains, at 75 FR 12378
(March 15, 2010);
Technical amendments, at 78 FR 27078 (May 9, 2013);
The definition of ``Indian tribe,'' at 79 FR 33482 (June
11, 2014); and
Disposition of unclaimed cultural items, at 80 FR 68465
(November 5, 2015).
The Department also publishes annual adjustments to civil penalties
for inflation under the Federal Civil Penalties Inflation Adjustment
Act Improvements Act of 2015.
III. Development of the Proposed Rule
As part of the Department's regulatory review in accordance with
the Regulatory Flexibility Act and E.O. 13563, the Department regularly
seeks public input on how we may best achieve regulatory ends. Over the
past 12 years, parties affected by the definitions and procedures
established in 43 CFR part 10 have commented, in various forums, that
some of the regulatory provisions should be amended to improve
implementation of the Act.
The following paragraphs detail the degree of consultation,
coordination, and collaboration in this review, and the nature of
public comments that the Department received from lineal descendants,
Indian Tribes, NHOs, Federal agencies, museums, national museum and
scientific organizations, Indian Tribal historic preservation
organizations, the Review Committee, and interested members of the
public.
From March to July of 2011, the Department consulted with Indian
Tribes, NHOs, the Review Committee, Federal agencies, and the public on
full revisions to the regulations implementing the Act. This effort
resulted from the Department's publication of a final rule for the
disposition of culturally unidentifiable human remains in March of 2010
(75 FR 12378) which solicited comments on the final rule. Many of those
comments requested broader changes to the entire regulatory process. In
April 2012 (77 FR 12378), the Department published a proposed rule to
revise the regulations for accuracy and consistency based on some of
those comments. Additional comments on that proposed rule requested
changes that went beyond the scope of accuracy and consistency.
Since 2012, the Department has heard repeatedly from Indian Tribes,
NHOs, museums, and Federal agencies on the implementation of the Act
through the regulations. From 2012 to 2019 at 21 meetings of the Review
Committee, public commenters have highlighted concerns with the
regulations or challenges in implementing its procedures. The Review
Committee has heard frequently that the regulations themselves pose
barriers to successful and expedient repatriation.
As a result of previous consultation, public comment, and input
from the Review Committee, the Department developed a draft text of
regulatory revisions and on July 8, 2021, provided Indian Tribes and
NHOs with an invitation to consult on the draft text. Along with the
draft text, the Department provided a summary of the 2011 consultation
with Indian Tribes and NHOs and how the draft text was responsive to
that input. The Department hosted consultation sessions with Indian
Tribes on August 9, 13, and 16, 2021, and with NHOs on August 17, 2021.
In addition, the Department accepted written input until September 30,
2021. In total, we received 71 individual comment letters, which when
combined with oral comments from consultation sessions, yielded over
700 specific comments on sections of the draft text.
The Department reviewed each comment provided during consultation
and in writing and, wherever possible, adjusted the proposed
regulations to address them. In a separate document, the Department has
provided a summary of each comment and specific detailed responses. An
overview of the major comments received is provided here, and specific
adjustments made to the proposed regulations in response to comments
are noted throughout Part V. Section-by-Section Summary of Proposed
Changes.
A. Cultural Affiliation
We received a total of 179 comments on the definitions in the draft
text of ``cultural affiliation'' and ``geographical affiliation'' and
on the section for establishing cultural affiliation. Some of these
comments requested an alternative process be developed utilizing the
Secretary and the Review Committee to facilitate repatriation of human
remains currently labeled as ``culturally unidentifiable.'' These same
comments requested we strike most of the section on cultural
affiliation, citing to the language in the Act (25 U.S.C. 3003(d)(2)(C)
and 3005(a)(4)). Most comments focused on clarifying that one type of
information was sufficient for finding cultural affiliation, especially
geographic information. Some comments requested prioritizing the list
of information or giving more weight to certain lines of information.
Several comments suggested adopting language from the California
statute on deference to traditional Native American knowledge as expert
opinion. We received many supportive comments on the addition of
multiple cultural affiliations and closest cultural affiliation.
In response, the Department proposes to define a new term,
``affiliation,'' in the proposed regulations and to combine the process
for identifying
[[Page 63204]]
cultural and geographical affiliation into a single section. The
Department also proposes to define Native American traditional
knowledge which is referred to throughout the proposed revision in
identifying affiliation and cultural items and in conducting
consultation. In response to several comments, the Department
considered how an alternative process might work, considering the legal
limitations on the Secretary and the Review Committee under the Act.
The roles of the Secretary and the Review Committee are advisory only
in this part of the repatriation process, and an alternative process
limited by that role seems overly complicated and intrusive rather than
helpful or expeditious.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part and D. Section 10.3 Cultural and
Geographical affiliation.
B. Consultation
We received a total of 115 comments on the term ``consultation''
and the related regulatory provisions. Nearly all comments appreciated
the definition, but some comments suggested aligning it with
definitions found in 36 CFR part 800, Executive Order 13175, or the
U.N. Declaration on the Rights of Indigenous Peoples. Some comments
requested the definition make clear consultation is more than a
procedural step and that consultation must be a meaningful, responsive,
and accountable process. Several comments questioned the requirement
for Indian Tribes and NHOs to make written requests to consult.
In response, the Department proposes to define ``consultation'' to
seek consensus and to require a record of consultation that explains,
if applicable, why consensus or agreement could not be achieved. The
requirement for a written request to consult (which can include email)
is necessary to establish a required timeline for responding to a
request.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part, Plan of Action in E. Section
10.4 General, and Require that Consultation Seek Consensus, in J.
Section 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony and K. Section 10.10
Repatriation of human remains and associated funerary objects.
C. Discovery on Federal or Tribal Lands
We received more than 100 comments on the draft text for
discoveries on Federal or Tribal lands. Most of the comments were
directed at two issues--(1) notification or consultation with Indian
Tribes or NHOs when a discovery occurs, and (2) the timelines for
action by the appropriate official after a discovery. The comments
recommended that the requirements of the existing regulations at Sec.
10.4 be reinstated, specifically, immediate telephone notification and
written confirmation by the person who makes the discovery. Many
comments expressed concern over the draft text paragraph on evaluating
the potential for an excavation.
In response, the Department proposes to require written
documentation (which can include email but not text messages) of a
discovery within 24 hours. The Department proposes additional timelines
in this section to ensure adequate time for consultation, a plan of
action, and securing, protecting, monitoring, or, if required,
excavation of the discovery.
See Part V. Section-by-Section Summary of Proposed Changes, F.
Section 10.5 Discovery.
D. Comprehensive Agreements
We received 66 comments on the draft text on comprehensive
agreements. The majority of comments requested plans of action be
reinstated, and many comments remarked on the utility of a plan of
action in responding to discoveries or excavations and promoting
consultation and coordination between land managers and Indian Tribes.
A few comments requested changes to provide for immediate reburial of
human remains or cultural items without any procedural requirements
that might delay a reburial. A few comments requested tribal preference
be incorporated into both the plan of action and comprehensive
agreements.
In response, the Department proposes to move the requirement for a
plan of action in the existing regulations at Sec. 10.5 to the
beginning of the subpart, and provide the requirements, in three
separate steps, for a required plan of action before a planned
activity, including an excavation, or after a discovery.
See Part V. Section-by-Section Summary of Proposed Changes, E.
Section 10.4 General and references in F. Section 10.5 Discovery and G.
Section 10.6 Excavation.
E. Control
We received a total of 68 comments on the term ``control'' as
defined in the draft text. Many comments requested it be replaced with
the statutory term ``possession or control.'' Other comments requested
removing the use of ``legal interest'' from the definition, as the Act
does not recognize a museum or Federal agency has a lawful interest in
human remains or cultural items other than the ``right of possession.''
A few comments suggested museums and Federal agencies should be jointly
and severally liable for compliance with NAGPRA's inventory, summary,
and repatriation obligations. The same comments requested the removal
of the new term ``custody.''
In response, the Department proposes to define the term as
``possession or control'' as used in the Act. Further, the Department
has added clarifications to address how the Act did not intend for this
term to confer any legal rights upon a Federal agency or museum, but
instead act as an element of applicability of the Act's repatriation
provisions. The Department also proposes other regulatory revisions to
require Federal agencies and museums to share information and increase
efforts to complete inventories, summaries, and repatriation of human
remains and cultural items under loan or repository agreements to other
entities.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part, and I. Section 10.8 General.
F. Funerary Object
We received 64 comments on the definitions of ``funerary object,''
``associated funerary object,'' and ``unassociated funerary object.''
Many comments requested revisions to require consultation and include
the authority of Indian Tribes and NHOs in the definition.
In response, the Department proposes to clarify long-standing
confusion over the distinction between associated and unassociated
funerary objects. For both associated and unassociated funerary
objects, broad categorical identifications, including everything from a
burial site or specific area, may meet these definitions depending on
the information available and the results of consultation.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part.
G. Stay of Repatriation for a Scientific Study
We received 55 comments on the draft text carrying out the
provision of the Act if human remains or cultural items are
indispensable for completion of a specific scientific study the outcome
of which would be of major benefit to the United States (25 U.S.C.
3005(b)). Half of the comments recommended the provisions should only
apply to human
[[Page 63205]]
remains and associated funerary objects, and not to unassociated
funerary objects, sacred objects, and objects of cultural patrimony.
Other comments suggested the provisions of the Act were intended to be
limited to studies ongoing when the Act was passed in 1990. Other
comments suggested clarifying changes.
In response, the Department has clarified some of the provisions,
but has retained the provisions applying to both human remains and
cultural items as in the Act (25 U.S.C. 3005(b)). The recommendation
that this provision apply retroactively runs counter to the prospective
applicability of the Act and would conflict with the Act.
See Part V. Section-by-Section Summary of Proposed Changes, J.
Section 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony, and K. Section 10.10
Repatriation of human remains and associated funerary objects.
H. Summaries
We received 54 comments on the provision in the draft text
requiring that museums and Federal agencies prepare and submit a
summary of unassociated funerary objects, sacred objects, and objects
of cultural patrimony in its holding or collection. Comments pointed
out that the summary is prepared before consultation and that Indian
Tribes and NHOs are the best parties to determine whether any item in a
holding or collection fits a NAGPRA category. Museums and Federal
agencies could potentially use the draft text requirement to evade
preparing a summary, claiming that they do not have such objects when
they might.
In response, the Department proposes to retain language from the
existing regulations in both the opening paragraph to the section and
in the paragraph on completing a summary.
See Part V. Section-by-Section Summary of Proposed Changes, J.
Section 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony.
I. Acknowledged and Adjudicated Aboriginal Land
We received 51 comments on the new terms to replace ``aboriginal
land'' and ``aboriginal occupation.'' Several comments appreciated the
new definition of ``acknowledged aboriginal land'' and some comments
recommended that ``acknowledged aboriginal land'' be used not just in
Subpart C of the regulations, but also in Subpart B, either combined
with the definition of ``adjudicated aboriginal land,'' or instead of
that definition. Some comments suggested further clarifying language,
including addition of other sources or changes to the listed sources.
For ``acknowledged aboriginal land,'' many comments suggested changing
the first source, ``treaty sent by the President to the United States
Senate for ratification,'' to an earlier stage in the treaty-making
process, while another comment suggested that it be deleted, since only
a ratified treaty is final and authoritative.
In response, the Department proposes to add definitions of
``adjudicated aboriginal land'' and ``acknowledged aboriginal land'' to
distinguish the criteria for a determination of ``aboriginal land''
under Subpart B and the Act (25 U.S.C. 3002(a)), on the one hand, and
under Subpart C on the other. The Department proposes to include
intertribal treaties, diplomatic agreements, and bilateral accords
between and among Indian Tribes. In the Act, Congress defined ``the
aboriginal land of some Indian tribe'' as ``Federal land that is
recognized by a final judgement of the Indian Claims Commission or the
United States Court of Claims,'' and we have used that to define
``adjudicated aboriginal land.'' The Department can neither add to this
definition nor ignore it, so the comments requesting a change to the
application or definition of adjudicated aboriginal land cannot be
adopted.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part.
J. Federal Lands and Boarding Schools
We received 39 comments on the definition for ``Federal lands.''
Several comments requested the addition of specific language to provide
for protection and disposition of Native American children buried at
Indian boarding schools, especially in circumstances where the land is
not or was not owned or controlled by the U.S. Government, but the
Indian boarding school was operated by or for the U.S. Government. Some
comments asserted that the intentional excavation provisions of NAGPRA
(25 U.S.C. 3002(c)) could be used to authorize the disinterment of
Native children from these cemeteries on Federal or Tribal lands, and
suggested that, for this purpose, the Department expand the statutory
definition of ``Federal lands'' in the regulations to include any
former Indian boarding school where any amount of Federal funding,
government certifications, or permissions were granted, regardless of
the current ownership of land.
In response, as discussed in the Secretarial Memorandum
establishing the Federal Indian Boarding School Initiative, the
Department is committed to ``address[ing] the intergenerational impact
of Indian Boarding Schools to shed light on the traumas of the past.''
The Memorandum identifies the NAGPRA process as a possible method for
repatriation of some Native American children. While NAGPRA does not
require a Federal agency to engage in an intentional excavation of
possible burial sites, (Geronimo v. Obama, 725 F. Supp. 2d 182, 187, n.
4 (D.D.C. 2010)), we agree with the comments that the intentional
excavation provisions of NAGPRA apply to the human remains and cultural
items disinterred from cemeteries on Federal or Tribal lands. Congress
did not make any distinction in the Act between excavations from
cemeteries and excavations from other burial sites on Federal or Tribal
lands. In fact, the definition of ``burial site'' in the Act (25 U.S.C.
3001(1)) explicitly refers to both a ``natural or prepared physical
location.'' Furthermore, we agree with some comments that the
excavation provisions of NAGPRA do not conflict with the opinion of the
United States Court of Appeals for the Third Circuit in Thorpe v.
Borough of Thorpe, 770 F.3d 255 (3d Cir. 2014), where the Court ruled
that the repatriation provisions of NAGPRA (25 U.S.C. 3005) did not
apply to a proposed disinterment and repatriation of human remains. The
human remains at issue in that case, while Native American, were not
located on Federal or Tribal lands, so the excavation provisions were
not at issue, and were therefore not addressed by the Court of Appeals.
Thus, on Federal or Tribal lands, any excavation must comply with the
Act, including the requirements for consultation with (or consent from)
the appropriate Indian Tribe or NHO (25 U.S.C. 3002(c)) and the order
of priority for disposition of human remains (25 U.S.C. 3002(a)).
Unfortunately, the Department cannot, however, amend the regulatory
definition of ``Federal lands'' as the comments requested. Congress
specifically and explicitly defined Federal lands based on ownership or
control, not on receipt of Federal funds (as it did in the definition
of a ``museum''). Thus, ``[w]e have here an instance where the
Congress, presumably after due consideration, has indicated by plain
language a preference to pursue its stated goals . . . . In such case,
neither [a] court nor the agency is
[[Page 63206]]
free to ignore the plain meaning of the statute and to substitute its
policy judgment for that of Congress.'' Alabama Power Co. v. United
States EPA, 40 F.3d 450, 456 (D.C. Cir. 1994). See also, United
Keetoowah Band of Cherokee Indians of Okla. v. United States HUD, 567
F.3d 1235, 1243 (10th Cir. 2009) (same); Chevron U.S.A. v. Natural
Resources Defense Council, 467 U.S. 837, 842-43 (1984) (``If the intent
of Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed
intent of Congress''). The Department does, however, encourage the
custodians of records from boarding schools, whether on Federal or
Tribal lands or not, and the current owners of those boarding schools
and cemeteries, to fully consult with Indian Tribes and NHOs on
identification, disinterment, and repatriation of Native American
children. The Department stands ready to assist Indian Tribes and NHOs
in that process to the fullest extent of its authority.
Beginning in July 2021, the Department requested direct input from
the Review Committee on the draft regulatory text prepared for
consultation. The Review Committee held 14 meetings with over 50 hours
of meeting time devoted to discussion of and development of written
recommendations on the draft regulatory text. The Review Committee
submitted a written recommendations to the Secretary of the Interior on
March 14, 2022, and June 7, 2022. The Department reviewed these written
recommendations, along with the minutes and transcripts from the
related public meetings, in preparing the proposed regulations. The
major comments received related to the Introductory section (see
proposed 10.1) and the inventory update requirements in Subpart C--
Repatriation of human remains or cultural items by museums or Federal
agencies (see proposed 10.10(d) and (e)). Additional recommendations by
individual members of the Review Committee were also submitted. The
Department, wherever possible, adjusted the proposed regulations to
address the Review Committee recommendations.
IV. Overview of Major Proposed Changes
The proposed revisions to these regulations would streamline
requirements, clarify timelines and terms, reduce ambiguity, and
improve efficiency in the systematic process for the disposition and
repatriation of Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony under the Act. The revisions
being proposed today are intended to make the regulations more user-
friendly and would:
Reduce the number of sections and remove duplicative
language. Existing requirements are condensed into a clear, easy to
follow, step-by-step process.
Correct inaccuracies and ambiguities in the existing
regulations by using consistent language and clearly defined terms.
Create a consistent writing style with clear, concise
headings that describe each specific regulatory step.
Clarify when actions are required by lineal descendants,
Indian Tribes, Native Hawaiian organizations, museums, and Federal
agencies by using specific timelines and deadlines.
Provide clear instructions to Indian Tribes, NHOs,
museums, and Federal agencies for establishing cultural and
geographical affiliation and resolving competing claims or requests.
The proposed changes in Subpart B--Protection of Human Remains or
Cultural Items on Federal or Tribal Lands would:
Replace the requirement for Federal agencies to publish
two notices in a newspaper of general circulation for human remains or
cultural items removed from Federal lands with a requirement for
Federal agencies to submit one notice to the Manager, National NAGPRA
Program, for publication in the Federal Register.
Require certain actions be taken by Indian Tribes, NHOs,
and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) for
discoveries or excavations on Tribal lands, including responding to a
discovery, certifying that an activity may resume, authorizing an
excavation, and documenting in writing the disposition of human remains
or cultural items.
Require Federal agencies and DHHL on Federal lands in the
United States and Tribal lands in Hawai`i to develop a plan of action
or comprehensive agreement, in consultation with lineal descendants,
Indian Tribes, and NHOs, that includes instructions for protecting,
stabilizing, or covering human remains or cultural items in situ, if
appropriate.
Clarify that the jurisdiction of a Federal agency to issue
a permit under Section 4 of the Archaeological Resources Protection Act
(ARPA) for an excavation is no broader than it is under ARPA.
The proposed changes in Subpart C--Museum or Federal Agency
Holdings or Collections would:
Remove the term ``culturally unidentifiable'' (i.e., when
cultural affiliation cannot be determined for human remains) and
integrate the concept of repatriation through geographic origin into
the overall affiliation and inventory process.
Require repatriation of associated funerary objects
together with human remains to an Indian Tribe or NHO with cultural or
geographical affiliation.
Require updated inventories for human remains and
associated funerary objects previously included in an inventory but not
published in a notice of inventory completion. For the updated
inventory, the proposed regulations would require a museum or Federal
agency to initiate consultation, consult with requesting parties, and
determine if there is a known lineal descendant or a connection between
the human remains and associated funerary objects and Indian Tribes or
NHOs with cultural or geographical affiliation.
Require museums and Federal agencies to submit a notice of
inventory completion within 6 months of completing or updating an
inventory of human remains and associated funerary objects with a known
lineal descendant or a connection to an Indian Tribe or NHO with
cultural or geographical affiliation.
Require museums and Federal agencies to send repatriation
statements to the National NAGPRA Program. In the existing regulations,
museums and Federal agencies are not required to report on any actions
that occur after the publication of a notice. The proposed regulations
would require both Federal agencies and museums to provide the Manager,
National NAGPRA Program, with a copy of the written statement
completing the repatriation, as recommended by the Government
Accountability Office in a 2010 report on the implementation of the
Act.
Require museums to submit a statement describing holdings
or collections in its custody to the responsible Federal agency, if
known, and to the Manager, National NAGPRA Program. If a museum cannot
identify a person, institution, state or local agency, or Federal
agency that likely has possession or control of the holding or
collection, it must submit a statement to the Manager, National NAGPRA
Program. In the existing regulations, museums have no requirement to
report on Federal holdings or collections. The proposed changes would
align with the Department's response to the Government Accountability
Office's 2010 report on the implementation of the Act.
[[Page 63207]]
V. Section-by-Section Summary of Proposed Changes
Table 1 shows how the Department proposes to reorganize the
existing regulatory requirements and summarizes the proposed changes.
Table 1--Summary of Proposed Changes
----------------------------------------------------------------------------------------------------------------
Proposed 43
Existing 43 CFR section CFR section Summary of proposed changes
----------------------------------------------------------------------------------------------------------------
10.1.......................................... 10.1 Adds paragraphs on Accountability, Duty
10.15......................................... of care, Delivery of written documents, and
Deadlines and timelines.
Informs parties of the result in
failing to claim or request human remains or
cultural items prior to disposition or
repatriation.
Clarifies final agency action in a
specific paragraph.
10.2.......................................... 10.2 Revises definitions for consistency and
to reduce ambiguities.
Adds new terms to clarify requirements.
Removes obsolete terms.
10.14......................................... 10.3 Implements Congressional intent by
defining ``affiliation'' as a connection
between human remains or cultural items and an
Indian Tribe or NHO. Affiliation is established
by identifying cultural or geographical
affiliation.
Adds new paragraphs to assist when
there are multiple Indian Tribes or NHOs with
affiliation.
10.2.......................................... 10.4 Provides a general overview to the
10.3.......................................... responsibilities of Indian Tribes, NHOs,
10.4.......................................... Federal agencies, and DHHL under the Act.
10.5.......................................... Outlines the requirements in three
steps for a plan of action, developed in
consultation with Indian Tribes and NHOs.
Consolidates compliance options for
land management activities that might result in
a discovery or excavation of human remains or
cultural items.
10.4.......................................... 10.5 Reduces and streamlines requirements
for discoveries.
Provides a clear, documented process
and timeline for resuming activities after a
discovery.
10.3.......................................... 10.6 Removes duplicative language and
10.5.......................................... simplifies the excavation requirements.
Clarifies and limits when a permit
under Section 4 of ARPA is required.
10.6.......................................... 10.7 Adds process for disposition to a
10.7.......................................... lineal descendant and clarifies requirements
for disposition on Tribal lands.
Requires publication of notices in the
Federal Register (rather than in newspapers) to
improve the effectiveness of the notification
and reduce burden on Indian Tribes and NHOs.
N/A........................................... 10.8 Provides a general overview to the
responsibilities of museums and Federal
agencies for holdings and collections subject
to the Act.
Requires museums to submit statements
on holdings or collections in their custody but
not in their possession or control one year
after the effective date of the final rule.
10.8.......................................... 10.9 Clarifies when and what actions are
10.9.......................................... 10.10 required for repatriation of human remains or
10.10......................................... cultural items in a simple step-by-step
10.11......................................... process.
10.13......................................... Updates the deadlines for completing
summaries and inventories to the effective date
of the final rule.
Integrates the timelines into the step-
by-step process for any new holdings or
collections, newly recognized Indian Tribes,
new museums, or amendments to previous
decisions.
Establishes timelines, deadlines, and
instructions for responding to requests for
human remains or cultural items and completing
repatriations.
10.11......................................... 10.10 Requires updated inventories two years
after the effective date of the final rule and
notices of inventory completion six months
after updating or completing an inventory.
Eliminates ``culturally
unidentifiable'' when cultural affiliation
cannot be determined.
Requires repatriation of associated
funerary objects with human remains that have a
cultural or geographical affiliation.
10.12......................................... 10.11 Removes the limited definition of a
failure to comply.
Replaces the dual hearing process with
a single hearing process to contest the failure
to comply or the penalty assessment.
10.16......................................... 10.12 Consolidates and clarifies the
10.17......................................... responsibilities of and procedures for the
Review Committee.
Clarifies requirements and the process
for informal dispute resolution through
informal negotiations and request before the
Review Committee.
----------------------------------------------------------------------------------------------------------------
A. Authority
NAGPRA, 25 U.S.C. 3001 et seq., is the primary authority for the
issuance of regulations implementing and interpreting the Act's
provisions. The authority section continues to cite 25 U.S.C. 9 which
authorizes the Secretary to make such regulations as he or she may
think fit for carrying into effect the various provisions of any act
relating to Indian affairs. Because the Act is Indian law (Yankton
Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp 2d
1047, 1056 (D.S.D. 2000)), the Secretary may promulgate any regulations
needed to implement it under the broad authority to supervise and
manage Indian affairs given by Congress (United States v. Eberhardt,
789 F.2d 1354, 1360 (9th Cir. 1986)). Although 43 CFR part 10
previously cited one provision of the Archaeological Resources
Protection Act (ARPA, 16 U.S.C. 470dd(2)) as an authority, the
Department has determined that reliance on ARPA as authority for these
regulations is unnecessary.
B. Section 10.1 Introduction
This section of the proposed rule would reorganize for readability
and restate in plain language the purpose and general requirements
found in the existing regulations. In response to
[[Page 63208]]
consultation with Indian Tribes and NHOs, the Department proposes the
purpose paragraph (see proposed Sec. 10.1(a)) recognize and ensure
deference to the rights of lineal descendants, Indian Tribes, and NHOs,
as provided under the Act. The Department is specifically seeking input
during public comment on the proposed purpose paragraph.
In the applicability paragraph (see proposed Sec. 10.1(b)), the
Department proposes a revision to clarify that these regulations
pertain to Native American human remains or cultural items and require
certain actions for their protection in the event of a discovery or
excavation on Federal or Tribal lands after November 16, 1990, and for
their repatriation if in the possession or control of a museum or
Federal agency. The Act does not provide express authority for applying
the discovery and excavation provisions to land that does not meet the
definition of Federal or Tribal lands (25 U.S.C. 3002). However,
depending on other relevant state or local laws, human remains or
cultural items discovered or excavated from private or state lands may
be subject to the repatriation provisions under Subpart C.
To further clarify the applicability of these regulations, the
Department proposes to remove the existing paragraph Sec. 10.1(b)(2)
to correct the misconception that human remains or cultural items must,
themselves, be indigenous to Alaska, Hawai`i, and the continental
United States. Under the Act, ``indigenous'' relates to the definition
of ``Native American.'' Human remains or cultural items are ``Native
American'' based on a relationship to a tribe, people, or culture that
is indigenous to the United States.
In response to consultation with Indian Tribes and NHOs, the
Department proposes new regulatory provisions to address accountability
by museums and Federal agencies and to require a duty of care for human
remains and cultural items (see proposed Sec. 10.1(c) and (d),
respectively). The paragraph on duty of care was drawn from language in
the existing regulations at Sec. 10.7(2) and (3) which includes a
requirement for Federal agencies to consider and respect the traditions
of potential claimants (i.e., Indian Tribes and NHOs) including, but
not limited to, traditions regarding housing, maintenance, and
preservation, to the maximum extent feasible (emphasis added). During
consultation, many Indian Tribes and NHOs requested that ``to the
maximum extent feasible'' be incorporated into the duty of care
requirement. The Department proposes to use the phrase ``to the maximum
extent possible'' in the duty of care requirement for both museums and
Federal agencies. In addition, this phrase is used to describe
implementation of a plan of action under Subpart B and in the
definition of consultation and the related regulatory steps in both
Subpart B and C. The Department intends this phrase, ``to the maximum
extent possible,'' to mean museums and Federal agencies will make a
reasonable effort to:
seek consensus during consultation,
provide appropriate treatment, care, or handling of human
remains or cultural items, and
incorporate identifications, recommendations, and Native
American traditional knowledge (see definition below) in making
determinations.
Proposed Sec. 10.1(e) would: (1) consolidate and clarify those
requirements governing the delivery of written documents that are
currently dispersed throughout the existing regulations; and (2)
provide for delivery of written documents by email with proof of
receipt, and explicitly exclude delivery of written documents by text
message or social media message.
Proposed Sec. 10.1(f) would describe how deadlines and timelines
for written documents are calculated based on business days, i.e.,
Monday through Friday, and that documents are deeded timely based on
the sent date.
The Department also proposes to relocate to this Introduction
section existing regulatory provisions regarding (1) failure to make a
claim or a request (see proposed Sec. 10.1(g)), (2) judicial
jurisdiction (see proposed Sec. 10.1(h)), and (3) final agency action
(see proposed Sec. 10.1(i)). Regarding final agency action, ``a final
determination making the Act or this part inapplicable'' is intended to
be construed broadly across the regulatory process, including some
circumstances where a Federal agency's failure to comply with a
regulatory requirement or deadline may demonstrate its determination
that either the Act or this part is inapplicable. Regarding judicial
jurisdiction (25 U.S.C. 3009(3)) nothing in the Act or these
regulations is intended to abrogate any concurrent Tribal jurisdiction
that may exist with respect to alleged violations of similar Tribal
laws on Tribal lands.
Table 2 shows how the Department proposes to reorganize the
existing regulatory requirements.
Table 2--Cross-Reference of Existing Provisions to Proposed Sec. 10.1
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.1(a).............................. Purpose................ 10.1(a)................ Purpose.
10.1(b).............................. Applicability.......... 10.1(b)................ Applicability.
New.................... 10.1(c)................ Accountability.
10.7(b).............................. (2) Care for and manage 10.1(d)................ Duty of care.
. . ..
New.................... 10.1(e)................ Delivery of written
documents.
10.1(f)................ Deadlines and
timelines.
10.15(a)............................. Failure to claim prior
to repatriation.
(1) Any person who 10.1(g)................ Failure to make a claim
fails to make a timely or a request.
claim . . .
10.11(e)............................. Disputes............... 10.1(h)................ Judicial jurisdiction.
10.17(a)............................. Formal and informal
resolutions.
10.15(c)............................. Exhaustion of remedies. 10.1(i)................ Final agency action.
10.1(c).............................. The information 10.1(j)................ Information collection.
collection
requirements . . ..
10.15(a)............................. Failure to claim prior ....................... Removed.
to repatriation.
(2) If there is more
than one
(1) claimant. . . .
10.15(d)............................. Savings provisions..... ....................... Removed in part.
----------------------------------------------------------------------------------------------------------------
[[Page 63209]]
C. Section 10.2 Definitions for This Part
This section of the proposed rule defines terms used throughout
this part. The Department proposes to reorganize defined terms in
alphabetical order and remove the paragraph designations in the
existing regulations at Sec. 10.2 in conformance with the Federal
Register Document Drafting Handbook.
The Department does not propose any substantive changes to the
following 10 definitions: Act, discovery (replaces ``inadvertent
discovery''), excavation (replaces ``intentional excavation''), Federal
agency, Manager, National NAGPRA Program, museum, person, Review
Committee, Secretary, and summary. The Department proposes to remove
the following seven definitions that are no longer used in the proposed
regulations: burial site, cultural affiliation (see affiliation),
culturally unidentifiable, Federal agency official, Indian Tribe
official, museum official, and Native Hawaiian (see Native Hawaiian
organization).
Table 3 shows how the Department proposes to add, replace, or
revise terms for consistency, to reduce ambiguities, and to clarify
requirements throughout this part. Except as noted in the table, all
terms are explained in the immediate section below.
Table 3--Changes to Existing Terms in Proposed Sec. 10.2
----------------------------------------------------------------------------------------------------------------
Change Defined term
----------------------------------------------------------------------------------------------------------------
New terms................................... acknowledged aboriginal land.
adjudicated aboriginal land.
affiliation.
ahupua`a.
appropriate official *.
ARPA *.
ARPA Indian lands *.
ARPA Public lands *.
consultation.
cultural item.
custody.
holding or collection.
Indian Tribe (previously reserved).
Native American traditional knowledge.
`ohana.
right of possession.
Tribal lands of an NHO.
United States.
Replace terms............................... ``disposition'' and ``repatriation'' replace ``disposition''.
``possession or control'' replaces ``possession'' and ``control''.
Revise existing terms....................... Federal lands.
funerary object.
human remains.
inventory.
lineal descendant.
Native American.
Native Hawaiian organization.
object of cultural patrimony.
receives Federal funds.
sacred object.
traditional religious leader.
Tribal lands.
unclaimed cultural item.
----------------------------------------------------------------------------------------------------------------
* See proposed Sec. 10.4 and Sec. 10.6 and related preamble section.
1. ``Acknowledged Aboriginal Land'' and ``Adjudicated Aboriginal Land''
The Department proposes to add two new terms to replace
``aboriginal lands'' and ``aboriginal occupation,'' which are not
defined but are used in the existing regulations Sec. Sec. 10.6 and
10.11. The new terms, ``acknowledged aboriginal land'' and
``adjudicated aboriginal land,'' would contain the same requirements
for ``aboriginal lands'' and ``aboriginal occupation,'' found in the
existing regulations at Sec. Sec. 10.6(a)(2)(iii)(A) and
10.11(b)(2)(ii) and (c)(1)(ii), but the new definitions would
distinguish and clarify how to apply the terms.
For ``acknowledged aboriginal land,'' the definition would
elaborate on which treaties may be used to identify aboriginal land and
would add other Federal, foreign, or intertribal government documents
to the list of acceptable sources. Some examples of other Federal
documents that provide information on aboriginal occupation by an
Indian Tribe are ``Report to the President by the Indian Peace
Commission, 1868,'' ``Annual Reports of the Commissioner on Indian
Affairs,'' and ``Alaska Natives and the Land'' (by the Federal Field
Committee for Development Planning in Alaska, October 1968). A source
for identifying intertribal treaties, diplomatic agreements, and
bilateral accords is David H. DeJong's book ``American Indian
Treaties,'' which identifies 63 intertribal treaties, dating between
1666 and 1903. The Department has intentionally declined to require
that intertribal treaties, diplomatic agreements, or bilateral accords
be in writing in recognition of traditional forms of documentation,
such as two-row wampum belts.
For ``adjudicated aboriginal land,'' the definition is drawn from
the Act (25 U.S.C. 3002(a)(2)(C)) and clarified, based on Sections 15
and 22 of the Indian Claims Commission Act of 1946 (Pub. L. 79-726, 60
Stat. 1049), that a final judgment also includes a judgment concerning
a settlement (compromise of claim) if that judgment or settlement
either explicitly recognizes certain land
[[Page 63210]]
as the aboriginal land of an Indian Tribe or adopts findings of fact
that do so.
2. ``Affiliation''
The Department proposes a new term, ``affiliation,'' and to remove
the existing definitions of ``cultural affiliation'' and ``culturally
unidentifiable.'' This change reflects Congressional intent and focus
on affiliation for the sole purpose of disposition or repatriation. In
defining affiliation, Congress ``intended to ensure that the claimant
has a reasonable connection with the materials'' (H. Rep. 101-877, at
14, and S. Rep. 101-473, at 6). Identifying ``cultural affiliation''
has been a significant barrier to disposition and repatriation under
the Act, despite the clear intent of Congress that it be used for no
other purpose than to ensure a reasonable connection between the human
remains and cultural items and an Indian Tribe or NHO. Defining
``affiliation'' in these regulations without the qualifier of
``cultural'' better aligns with Congressional intent, and addresses
concerns raised during consultation with Indian Tribes and NHOs about
implementing the term ``geographical affiliation'' separately from
cultural affiliation. In response to consultation with Indian Tribes
and NHOs, we have combined cultural and geographical affiliation into
this definition and the section on affiliation. The definition of
``cultural affiliation'' from the Act and the existing regulations, the
lines of information, and the use of geographic relationships
consistent with the existing regulation are all incorporated into the
regulatory process by which ``affiliation'' is established in the
proposed text at Sec. 10.3.
3. ``Ahupua`a''
The Department proposes to add a new term, ``ahupua`a,'' to use
when determining the Native Hawaiian organization with the closest
affiliation to human remains or cultural items. While the term serves a
geographic purpose, identifying a traditional land division, an
ahupua`a may also be associated with various traditional and customary
practices in addition to habitation and provides important cultural
connections between its earlier occupants or traditional users and
Native Hawaiian organizations. Traditionally, the occupants of an
ahupua`a are its primary stewards.
4. ``Consultation''
The Department proposes to add a new term, ``consultation,'' using
language provided by Congress (H. Rep. 101-877, at 16). In response to
consultation with Indian Tribes and NHOs, the Department proposes to
require that consultation seek consensus and incorporate
identifications, recommendations, and Native American traditional
knowledge, to the maximum extent possible.
5. ``Cultural Item''
In response to consultation with Indian Tribes and NHOs, the
Department proposes to add a new term, ``cultural item,'' and
specifically exclude human remains from that definition. Although
Congress included human remains in defining cultural items (25 U.S.C.
3001(3)), the Department proposes throughout these regulations to use
the phrase ``human remains or cultural items'' rather than ``cultural
items.'' This edit is responsive to requests from some Indian Tribes
and NHOs who oppose any language that identifies people as items since
this can be seen as objectifying and dehumanizing. This edit does not
have any impact on the applicability or scope of these regulations.
In response to consultation with Indian Tribes and NHOs, the
Department proposes to add to the definition of cultural items (and to
subsequent specific definitions of cultural items) that identification
of cultural items is according to a lineal descendant, Indian Tribe, or
NHO based on customs, traditions, or Native American traditional
knowledge. In the Act, the identification of cultural items is
dependent upon consultation with lineal descendants, Indian Tribes, and
NHOs. By adding this phrase to the definition of cultural items, the
Department seeks to emphasize that consultation, which is required
throughout the proposed regulation, is how a lineal descendant, Indian
Tribe, or NHO shares the information needed to identify a cultural
item.
The Act was enacted for the benefit of Indians, therefore the
canons of construction for Indian law applies. The Act and these
regulations ``are to be construed liberally in favor of the Indians,
with ambiguous provisions interpreted to their benefit'' (Yankton Sioux
Tribe v. United States Army Corps of Engineers, 83 F. Supp 2d 1047,
1056 (D.S.D. 2000)). Consistent with this principle, the Department
proposes to require deference to lineal descendants, Indian Tribes, and
NHOs throughout the regulations, but specifically for identification of
cultural items. Legislative intent on the definition of cultural item,
generally, and to each definition specifically, is clear. ``The
Committee has made every effort to incorporate the comments and address
the concerns of members of the scientific and museum communities with
regard to the substantive definitions set forth in the Act, while at
the same time recognizing that there are over 200 tribes and 200 Alaska
Native villages and Native Hawaiian communities, each with distinct
cultures and traditional and religious practices that are unique to
each community. Accordingly, the definitions of sacred objects,
funerary objects, and items of cultural patrimony will vary according
to the tribe, village, or Native Hawaiian community.'' (Senate Rpt.
101-473, page 4).
6. ``Custody''
The Department proposes to add a new term, ``custody,'' that would
indicate an obligation for human remains or cultural items that is less
than ``possession or control.'' See discussion of ``possession or
control'' below. This newly defined term does not have the same meaning
as the general meaning given to the same word used throughout the
existing regulations, especially at Sec. 10.6.
7. ``Disposition''
The Department proposes to replace the term ``disposition'' in the
existing regulations at Sec. 10.2(g)(5) with two separate terms:
``disposition'' and ``repatriation.'' In the proposed revision,
``disposition'' applies only to Subpart B. The proposed revision to
``disposition'' would denote that an Indian Tribe, NHO, Federal agency,
or DHHL acknowledges and recognizes that a lineal descendant, Indian
Tribe, or NHO has control or ownership of human remains or cultural
items removed from Federal or Tribal lands. Although the phrase,
control or ownership, is not defined in the Act or the proposed
regulations, it is used to refer to the rights of lineal descendants,
Indian Tribes, and NHOs in Native American human remains or cultural
items as acknowledged and recognized by the Act. The phrase, control or
ownership, is used to differentiate ``disposition'' and
``repatriation'' from terms used in other sections of the Act, such as
the ``right of possession,'' which a museum or Federal agency may use
to assert its lawful control or ownership, or ``possession or
control,'' which is an element of applicability under the Act that
itself does not determine control or ownership or a right of
possession. In describing disposition, the Act uses the terms
``ownership,'' ``control,'' ``right of control,'' and ``title to'' (25
U.S.C. 3002). Of these terms, the phrase, control or ownership, is the
most appropriate to apply to human remains as well as cultural items
that may be subject to
[[Page 63211]]
disposition and describes the existing rights of lineal descendants,
Indian Tribes, and NHOs more accurately. The phrase, control or
ownership, is intended to indicate that, as in the Act, human remains
or cultural items removed from Federal or Tribal lands belong, in the
first instance, to lineal descendants, Indian Tribes, and NHOs and not
to the Federal agency.
8. ``Federal Land''
The Department proposes to revise the term ``Federal land'' to
clarify the lands on which Federal programs or activities may be
subject to the Act. As in the existing regulations, ``Federal land''
includes lands not just owned by the United States Government, but also
lands under its control. (Note that the general term ``control'' as
used in this discussion of Federal land is not the same as the defined
term ``possession or control'' as used in the Act). Whether Federal
control of the lands on which it conducts its programs or activities is
sufficient to apply these regulations depends on the circumstances and
scope of the Federal agency's authority, and on the nature of State and
local jurisdiction. Because of the wide array of agency-specific
authorities that can establish federally controlled lands, the Federal
agency officials must make such determinations on a case-by-case basis
and, in doing so, should consult with their legal counsel.
While Federal agency officials must ultimately make their own
determinations as to the lands under the control of their agency, the
drafters note that, in general, a Federal agency will only have
sufficient legal interest to ``control'' lands it does not own when it
has sufficient statutory jurisdiction with respect to those lands or
other form of property interest in the land, such as a lease, easement,
or other agreement with terms that have indicia of control. See Yankton
Sioux Tribe v. United States Army Corps of Eng'rs, 396 F. Supp 2d 1087
(D.S.D. 2005); Crow Creek Sioux Tribe v. Brownlee, 331 F.3d 912 (D.C.
Cir. 2003) (the Act still applied to lands transferred by the U.S. Army
Corps of Engineers to South Dakota pursuant to the Water Resources
Development Act due to a specific statutory provision applicable to
those transferred lands). Where two or more Federal agencies share
regulatory or management jurisdiction over federally owned or
controlled lands, the Federal agency with primary management authority
will generally have ``control'' for purposes of implementing these
regulations.
On the other hand, the drafters note that Federal agency
participation in a regulatory or supervisory capacity does not
necessarily rise to the level of Federal ``control.'' See, e.g., Castro
Romero v. Becken, 256 F.3d 349 (5th Cir. 2001) (claims for violations
of the Act with regard to human remains found on municipal land could
not be upheld, even though a Federal agency was involved in the project
in a supervisory role); Western Mohegan Tribe and Nation of New York v.
New York, 100 F. Supp. 2d 122, (N.D.N.Y. 2000), aff'd in part, vacated
in part on other grounds 246 F.3d 230 (2nd Cir. 2001) (``Plaintiffs'
broad reading of the statute is inconsistent with the Act's plain
meaning and its legislative history where the language `Federal lands'
denotes a level of dominion commonly associated with ownership, not
funding pursuant to statutory obligations or regulatory permits.'').
For example, the fact that a Federal permit is required to undertake an
activity on non-Federal land generally is not sufficient legal interest
in and of itself to ``control'' the land within the meaning of the Act
and this proposed rule.
Indian lands outside reservation boundaries that are held in trust
by the United States Government or are held by an Indian landowner
subject to restrictions on alienation imposed by the United States
Government, such as allotments, are subject to Federal control and are
treated as Federal lands under these regulations. The control of the
United States Government over Indian land is the same whether it is in
trust or restricted status and whether it is within the exterior
boundaries of a reservation or not. United States v. Ramsey, 271 U.S.
467, 471-72 (1926). See also Cohen's Handbook of Federal Indian Law
Sec. 16.03[1], at 1071 (Nell Jessup Newton ed., 2012). Since
Congress's control is virtually the same for trust allotments and off-
reservation allotted lands with Federal restraints on encumbrance and
alienation (restricted fee allotments), then Federal control of such
lands as a matter of law meets the Western Mohegan standard noted
above. The treatment of off-reservation Indian land as ``Federal land''
for purposes of the Act is consistent with the current practice of the
Bureau of Indian Affairs.
9. ``Funerary Object''
The Department proposes to revise the term ``funerary object'' and
align it with the definitions in the Act for ``associated funerary
object'' and ``unassociated funerary object.'' The portion of the
statutory definition that is the same between the two terms has been
used to define ``funerary object.'' As defined in the Act, the only
difference between the definition for associated and unassociated
funerary objects is the location of the related human remains. A single
object may be a funerary object if the object is identified as having
been placed with or near human remains. Therefore, determining if the
funerary object is associated or unassociated does not require
identifying the specific individual with which the object was placed,
but rather, only requires identifying the location of the related human
remains.
For example, an authorized excavation in 1940 removed a Native
American object from what was thought to be a village site dating
between 2000 BCE to 500 CE. The object dates to the late pre-contact
period, likely between 1500-1580 CE, based on materials and form.
Fragmentary human remains were identified during the excavation and
noted in field notes, but no human remains were removed. Based on
information available including the results of consultation, it is
reasonable to believe the object was placed intentionally in this
location because of the human remains, but it is also reasonable to
believe the object was placed there many centuries after the human
remains. Nevertheless, the object meets the definition of a funerary
object since it was intentionally placed near human remains.
The funerary object does not, however, meet the definition of an
associated funerary object. Human remains were identified, but no human
remains were removed during the excavation. In the information
available, there is no record of human remains being removed from the
site at any other time. Through consultation with Indian Tribes, the
funerary object was not identified as being the kind of object made
exclusively for burial purposes or to contain human remains.
When a funerary object is not an associated funerary object, it may
be an unassociated funerary object if it meets one or more of the
criteria in the definition (see proposed Sec. 10.2 Funerary object
(2)). The funerary object is not related to specific individuals or
families (see proposed Sec. 10.2 Funerary object (2)(ii)). The
funerary object was not removed from a specific burial site or an area
known to be a burial site (see proposed Sec. 10.2 Funerary object
(2)(iii) and (iv)). However, the funerary object is related to known
human remains (identified in the field notes), but those human remains
were not removed from the site (see proposed Sec. 10.2 Funerary object
(2)(i)). Therefore, the funerary object meets the definition of an
unassociated funerary object.
[[Page 63212]]
In response to consultation with Indian Tribes and NHOs, the
Department proposes to add to the definition of funerary object (and to
all specific definitions of cultural items) that identification of a
funerary object is according to a lineal descendant, Indian Tribe, or
NHO based on customs, traditions, or Native American traditional
knowledge. In the Act, the identification of a funerary object is
dependent upon consultation with lineal descendants, Indian Tribes, and
NHOs. By adding this phrase to the definition of a funerary object, the
Department seeks to emphasize that consultation, which is required
throughout the proposed regulation, is how a lineal descendant, Indian
Tribe, or NHO shares the information needed to identify a funerary
object.
10. ``Holding or Collection''
The Department proposes to add a new term ``holding or collection''
which is not defined in the Act. The proposed definition is drawn from
dictionary definitions as well as the International Council of Museums'
2007 definition. Merriam-Webster Dictionary defines ``collection'' as
``something collected; especially: an accumulation of objects gathered
for study, comparison, or exhibition . . .'' and defines ``holding'' as
``any property that is owned or possessed . . .'' The International
Council of Museums' 2007 definition of a museum is an institution
``which acquires, conserves, researches, communicates and exhibits . .
. for the purposes of education, study, and enjoyment.'' Additional
purposes in this definition are taken from Unit 34 of ``Museum Basics''
(1993) by Timothy Ambrose, which lists different types of museum
collections. In response to consultation with Indian Tribes and NHOs,
we have refrained from using offensive purposes listed in some of these
sources such as ``enjoyment'' or ``personal benefit.'' While the
proposed definition includes a wide variety of purposes, a holding or
collection under this proposed rule would not be limited to only these
purposes.
11. ``Human Remains''
The Department proposes to revise the term ``human remains'' to
clarify what is and what is not considered human remains for purposes
of disposition and repatriation. The proposed revision is based on the
explanation provided in the preamble to the 1995 final rule (60 FR
62137, December 4, 1995). The explanation noted that the Act makes no
distinction between fully articulated burials and isolated bones and
teeth. The preamble then stated that the final rule added language
excluding ``naturally shed'' human remains from consideration under the
Act. The preamble clarified that this exclusion does not include human
remains for which there is evidence of purposeful disposal or
deposition. The preamble then addressed a question asked by a commenter
who sought clarification on the status of human remains that were not
freely given but had been incorporated into objects that are not
cultural items as defined in the regulations. The preamble explained
that the legislative history does not address this question and
therefore the proper disposition of such human remains must be
determined on a case-by-case basis.
Consistent with the advice in 1995, identification of human remains
must be made on a case-by-case basis. The Act requires identification
of all human remains in a holding or collection, including human
remains reasonably believed to be comingled with other material (such
as soil or faunal remains). During consultation with lineal
descendants, Indian Tribes, and NHOs, museums and Federal agencies
should evaluate if an entire admixture can be treated as human remains.
If such a request is made during consultation, but it is not possible
to treat the admixture as human remains, the record of consultation
should include the effort to identify a mutually agreeable alternative.
The proposed definition provides two ways human remains may be
incorporated into an object or item. For example, depending on the
results of consultation, a scalp shirt with human remains or a flute
made with human remains that is not a funerary object, a sacred object,
or an object of cultural patrimony would be considered human remains
and subject to disposition or repatriation under the Act and the
proposed regulations. Human remains that are incorporated into a
funerary object, sacred object, or object of cultural patrimony would
not be treated as human remains, but as a cultural item and subject to
disposition or repatriation under the Act and the proposed regulations.
12. ``Indian Tribe''
The Department proposes to add a definition for the term ``Indian
Tribe,'' currently reserved in the existing regulations at Sec.
10.2(b)(2). The list of federally recognized Indian Tribes is the list
of Indian Tribes for the purposes of NAGPRA. Throughout the proposed
rule, the term is used in the singular form, but it is expected that
multiple Indian Tribes may meet the criteria under this part for
disposition or repatriation of the same human remains or cultural
items. Any Indian Tribe with cultural or geographical affiliation may
submit a claim for disposition or a request for repatriation. Two or
more Indian Tribes may agree to joint disposition or joint repatriation
of human remains or cultural items. Claims or requests for joint
disposition or joint repatriation should be considered a single claim
or request and not competing claims or requests.
13. ``Inventory''
The Department proposes to revise the term ``inventory'' to
accurately reflect the content as required by the Act. In response to
consultation with Indian Tribes and NHOs, the Department is aware that
the existing regulatory definition has been a barrier to expeditious
repatriation as it requires an ``item-by-item description.'' In the
Act, an inventory is defined as a ``simple itemized list.'' The
proposed revision to the definition uses the exact language from the
Act and includes the information required to be included in an
inventory.
14. ``Lineal Descendant''
The Department proposes to revise the definition and remove the
criteria for determining lineal descent in the existing regulations at
Sec. Sec. 10.2(b)(2) and 10.14(b). The term ``lineal descendant'' is
not defined in the Act. The revised definition would allow for
disposition or repatriation of human remains and associated funerary
objects to a ``lineal descendant'' in the following cases:
The identity of a particular deceased individual is known,
and a specific living person is known to be the direct descendant of
the deceased individual. For example, the human remains are of the
great-great-grandfather of the living great-great-granddaughter.
The identity of each deceased individual in a group of
human remains is not known, but a specific living person is known to be
the direct descendant of all the deceased individuals in the group. For
example, all that is known is that the human remains of multiple
individuals are the great-great-grandfather, great-grandfather, father,
and maternal uncle of a specific living person, who is the direct
descendant of them all under a traditional system of descent.
Throughout the proposed rule, the term is used in the singular
form, but it is expected that multiple lineal descendants may meet the
criteria under this part for disposition or repatriation of the same
human remains, funerary
[[Page 63213]]
objects, or sacred objects. Any lineal descendant may submit a claim
for disposition or a request for repatriation for human remains,
funerary objects, or sacred objects. Two or more lineal descendants may
agree to joint disposition or joint repatriation of human remains,
funerary objects, or sacred objects. Claims or requests for joint
disposition or joint repatriation should be considered a single claim
or request and not competing claims or requests.
15. ``Museum''
The Department proposes a slight addition to the term ``museum'' to
clarify that, consistent with the Act, the term does not include the
Smithsonian Institution. Also consistent with the Act, the term
``museum'' includes State or local government agencies, including
subdivisions of State or local government agencies. Consequently, any
of the following examples may be a museum under the Act and the
proposed regulations if they meet all the criteria of the definition: a
county coroner's office, a city medical examiner's office, a State
police department or local post, a city library, or a city water
authority.
16. ``Native American''
The Department proposes to revise and clarify the existing
definition of ``Native American.'' The Act applies to human remains or
cultural items that meet the definition of ``Native American.''
``Native American'' human remains or cultural items are not only items
of a tribe, people, or culture that is indigenous to the United States,
but are also items that are related to such tribe, people, or culture.
Because Congress did not define ``tribe,'' ``people,'' or ``culture,''
the proposed definition of the term ``Native American'' incorporates
statutory and dictionary definitions to better clarify these terms.
17. ``Native American Traditional Knowledge''
The Department proposes to add a new term, ``Native American
traditional knowledge,'' for use in the definition of ``consultation''
and ``cultural item'' as well as definitions of specific kinds of
cultural items. In response to consultation with Indian Tribes and
NHOs, this definition is a variation on what was suggested by a
specific Indian Tribe, but this term is rooted in the larger concept of
indigenous ways of knowing. The proposed definition attempts to cover
the wide variety of terminology related to this concept while remaining
consistent with the disposition and repatriation process under the Act.
The Department recognizes that there is different terminology used by
and among Native American people that incorporates this concept.
Additionally, the concept of traditional knowledge is recognized by a
number of Federal agencies in the context of land management activities
and the use of natural or cultural resources. In these contexts, it is
often referred to as traditional ecological knowledge or TEK. It may
also be referred to as indigenous knowledge or traditional cultural
knowledge. For the limited purposes of these regulations, the term
``Native American traditional knowledge'' is inclusive of all these
terms and may provide information needed to identify affiliation
(either cultural or geographical), funerary objects, lineal
descendants, objects of cultural patrimony, and sacred objects. We
welcome additional input on the specifics in this definition as well as
its use in the regulatory text.
18. ``Native Hawaiian Organization''
The Department proposes to revise the term ``Native Hawaiian
organization'' (NHO) by incorporating the definition of ``Native
Hawaiian'' from the Act. While the Act uses the phrase ``aboriginal
people'' to define Native Hawaiian, the proposed regulations use the
phrase ``indigenous people'' to better relate to the definition of
Native American and distinguish from the use of aboriginal elsewhere in
the Act and regulations referring to land. The proposed definition
would include those entities that the Secretary, through the Office of
Native Hawaiian Relations, has identified on the most current Native
Hawaiian Organization Notification List. The Department also proposes
to include in the definition of NHO the Hawaiian Homes Commission Act
(HHCA) Beneficiary Associations and Homestead Associations. Although
the Act names Hui Malama I Na Kupuna O Hawai`i Nei as a Native Hawaiian
organization, that group ceased to exist in 2015, so the proposed
definition does not include it.
Throughout the proposed rule, ``Native Hawaiian organization'' is
used in the singular form, but it is expected that multiple NHOs may
meet the criteria under this part for disposition or repatriation of
the same human remains or cultural items. Any NHO with affiliation may
submit a claim for disposition or a request for repatriation under the
proposed rule. Two or more NHOs may agree to joint disposition or joint
repatriation of human remains or cultural items. Claims or requests for
joint disposition or joint repatriation would be considered a single
request and not competing claims or requests.
19. ``Object of Cultural Patrimony''
The Department proposes to revise the definition of ``object of
cultural patrimony'' to clarify what a Native American group or culture
is for purposes of the definition. In response to consultation with
Indian Tribes and NHOs and a specific suggestion from an Indian Tribe,
the Department also proposes to add a sentence to recognize that a
caretaker may have been entrusted with responsibility for an object and
may have even conferred that responsibility on another caretaker, but
the object can still be an object of cultural patrimony. In response to
consultation with Indian Tribes and NHOs, the Department proposes to
add to the definition (and to all specific definitions of cultural
items) that identification of an object of cultural patrimony is
according to an Indian Tribe or NHO based on customs, traditions, or
Native American traditional knowledge. In the Act, the identification
of an object of cultural patrimony is dependent upon consultation with
lineal descendants, Indian Tribes, and NHOs. By adding this phrase to
the definition of an object of cultural patrimony, the Department seeks
to emphasize that consultation, which is required throughout the
proposed regulation, is how an Indian Tribe or NHO shares the
information needed to identify an object of cultural patrimony.
20. `` `Ohana''
To emphasize the importance of the familial or kinship relationship
in Hawai`i, the Department proposes to add a new term `` `ohana,'' used
in the definition of ``Native Hawaiian organization'' and in
determining the NHO with the closest affiliation.
21. ``Possession or Control''
In response to consultation with Indian Tribes and NHOs, the
Department proposes to replace the two separate terms in the existing
regulations ``possession'' and ``control'' into one term, as used in
the Act, ``possession or control.'' Congress used these two words as a
single term throughout the Act except for ``right of possession''
(discussed later). The phrase ``possession or control'' as used in the
Act connotes a singular interest in human remains or cultural items and
utilizes the two elements of the phrase only to address the physical
location of the human remains or cultural items. In the Act, having
possession or control means a museum or Federal agency may
[[Page 63214]]
make decisions about human remains or cultural items without having to
request permission from some other entity or person (an interest). This
interest is present regardless of the physical location of the human
remains or cultural items. For a similar example, a person has the same
interest in property that is in the person's home as in property that
same person keeps in an offsite storage unit. The person can make
decisions about the property in the storage unit without having to
request permission from the storage facility. Regardless of the
physical location of the property, the person's interest in the
property is the same whether it is in their home or in the custody of
the storage facility.
The Department also proposes to define a separate term,
``custody,'' that would indicate an obligation that is less than
``possession or control.'' Whether a Federal agency or museum has a
sufficient interest in human remains or cultural items to establish
possession or control is a legal determination that must be made on a
case-by-case basis. However, when a museum with custody of human
remains or cultural items cannot identify any person, institution,
State or local government agency, or Federal agency with possession or
control, the museum should presume it has possession or control for
purposes of repatriation under the Act. When a Federal agency cannot
determine if human remains or cultural items came into its possession
or control before or after November 16, 1990, or cannot identify the
type of land the human remains or cultural items were removed from, the
Federal agency should presume it has possession or control for purposes
of repatriation under the Act. This determination alone does not create
any legal rights or indicate that a museum or Federal agency has a
``right of possession'' to human remains or cultural items; it is
merely a jurisdictional requirement for application of the Act to human
remains or cultural items subject to repatriation by the appropriate
museum or Federal agency.
The Department received several comments through consultation with
Indian Tribes and NHOs requesting that it expand the scope of the term
``possession or control'' to include both those entities that have
possession or control as defined in the existing regulations and those
entities that merely have custody as defined in this proposed rule. In
some cases, this request would make multiple entities concurrently
responsible for fulfilling the Act's inventory, summary, and
repatriation processes. The Department has declined to make this change
as such an interpretation is inconsistent with the framework and
legislative history of the Act. Congress provided no indication in the
Act or its legislative history that such an expansive interpretation
was its intent, and various features of the Act, including civil
penalties, right of possession, and museum obligations, presume that a
single museum or Federal agency would be responsible for compliance
with the Act. However, the Department acknowledges the underlying
intent of this request to ensure repatriation of all holdings or
collections subject to the Act and has proposed other revisions that
seek to address this issue by directing museums and Federal agencies to
share greater information and increase efforts to complete inventories,
summaries, and repatriation of human remains and cultural items in the
custody of other entities.
22. ``Receives Federal Funds''
The Department proposes to revise the term ``receives Federal
funds'' to clarify that any recipient of Federal financial assistance
would be deemed to receive Federal funds under this part. The
definition is drawn from the interpretation of comparable terms from
the Rehabilitation Act of 1973, Title IX of the Education Amendments of
1972, as amended, implementing regulations, and OMB's Requirements,
Cost Principles, and Audit Requirements for Federal Awards (2 CFR part
200). The ``Receives Federal funds'' requirement may be satisfied by
direct or indirect receipt of funds from the Federal government.
Satisfaction of the requirement through indirect funding is permissible
and consistent with the Supreme Court's decision in Grove City College
v. Bell, 465 U.S. 555 (1982).
For example, an educational institution that accepts no direct
Federal financial assistance is deemed to receive Federal financial
assistance when it enrolls students who receive Federal grants that
must be used for educational purposes (34 CFR part 106). A Tribal
museum receives Federal funds for purposes of repatriation if the
Indian Tribe of which the museum is a part receives Federal financial
assistance. A county library receives Federal funds for purposes of
repatriation if its State government or other agency provides a
subaward to the library as part of a Federal grant or award. The term
also underscores that the U.S. Government's payments that are
compensatory, such as payments in lieu of taxes paid under the Payments
in Lieu of Taxes Act, as amended (31 U.S.C. 6901 et seq.) are not
considered Federal financial assistance (and see McMullen v. Wakulla
County Board of County Commissioners, 650 Fed. Appx. 703 (11th Cir.
2016)).
23. ``Repatriation''
The Department proposes to replace the term ``disposition'' in the
existing regulations at Sec. 10.2(g)(5) with two separate terms:
``disposition'' and ``repatriation'' used consistently throughout the
regulations. In the proposed revision, ``repatriation'' applies only to
Subpart C and has been incorporated into the title of that subpart. The
proposed revision would denote that a museum or Federal agency
acknowledges and recognizes that a lineal descendant, Indian Tribe, or
NHO has control or ownership of human remains or cultural items in a
holding or collection. Although the phrase, control or ownership, is
not defined in the Act or the regulations, it is used to refer to the
rights of lineal descendants, Indian Tribes, and NHOs in Native
American human remains or cultural items acknowledged and recognized by
the Act. The phrase, control or ownership, is used to differentiate
``disposition'' and ``repatriation'' from terms used in other sections
of the Act, such as the ``right of possession,'' which a museum or
Federal agency may use to assert its lawful control or ownership, or
``possession or control,'' which is an element of applicability under
the Act that itself does not determine control or ownership or a right
of possession. In describing repatriation, the Act uses the terms
``return,'' ``owned,'' and ``owned or controlled'' (25 U.S.C. 3005). Of
these terms, the phrase, control or ownership, is the most appropriate
to apply to human remains as well as cultural items that may be subject
to repatriation and describes the existing rights of lineal
descendants, Indian Tribes, and NHOs more accurately. The phrase,
control or ownership, is intended to indicate that, as in the Act,
human remains and cultural items in holdings or collections belong, in
the first instance, to lineal descendants, Indian Tribes, and NHOs and
not to the museum or Federal agency unless the museum or Federal agency
is able to prove a ``right of possession.'' By using ``right of
possession'' as a standard of repatriation, the Act establishes that
museums and Federal agencies do not have a rightful legal interest in
human remains or cultural items unless the museum or Federal agency can
prove an authoritative transfer of that ``right of possession.''
24. ``Right of Possession''
The Department proposes a new defined term ``right of possession''
by
[[Page 63215]]
moving the text from the existing regulations at Sec. 10.10(a)(2). The
Act recognizes a ``right of possession'' to cultural items; however,
Congress acknowledged that this right is qualified with respect to
human remains and associated funerary objects. The Act utilizes the
concept of right of possession first as a defense against criminal
sanctions for the sale, purchase, use, or transport for profit of human
remains (18 U.S.C. 1170); and again, where museums and Federal agencies
are permitted to assert a right of possession to unassociated funerary
objects, sacred objects, and objects of cultural patrimony with
evidence (25 U.S.C. 3005).
Congress did not provide a process for a museum or Federal agency
to assert a right of possession to human remains and associated
funerary objects. This approach is consistent with Congress' intent to
distinguish human remains and associated funerary objects from cultural
items as quasi-property. Applicable common law in the United States
generally accepts that human remains and associated burial items cannot
be ``owned'' in the same manner as conventional property. The Act (25
U.S.C. 3001 (13)) follows the common law by distinguishing between the
property attributes of Native American unassociated funerary objects,
sacred objects, or objects of cultural patrimony, and the quasi-
property attributes of Native American human remains and associated
funerary objects.
Congress acknowledged that the right of possession to unassociated
funerary objects, sacred objects, or object of cultural patrimony, as
defined in the Act, may be subject to a Fifth Amendment takings
analysis, and that these objects may potentially be considered
property. A right of possession for prehistoric cultural items fitting
these categories might be shown through a written authorization from a
competent authority to excavate, remove, and curate such items from a
particular area or site. Although Congress also determined that the
original acquisition of Native American human remains and associated
funerary objects which were exhumed, removed, or otherwise obtained
with full knowledge and consent of the next of kin or the official
governing body of the appropriate Indian Tribe or NHO is deemed to give
right of possession to those human remains and associated funerary
objects, Congress chose not to make that right of possession to human
remains and associated funerary objects subject to a Fifth amendment
takings analysis. Congress was clear that it did not intend to
categorize human remains and associated funerary objects as property
under the Act, as had been its approach for unassociated funerary
objects, sacred objects, or object of cultural patrimony. Thus, a Fifth
Amendment taking does not result from the repatriation of human remains
and associated funerary objects.
In the proposed revision, the Department interprets ``voluntary
consent'' and ``full knowledge and consent'' considering the history of
Indian country and recognizes that ``voluntary consent'' and ``full
knowledge and consent'' does not include ``consent'' given under duress
or as a result of bribery, blackmail, fraud, misrepresentation, or
duplicity on the part of the recipient. As such, consent in this
definition must be shown to have been fully free, prior, and informed
consent.
25. ``Sacred Object''
In response to consultation with Indian Tribes and NHOs, the
Department proposes to revise that a sacred object is, in the words of
the Act, ``needed'' for a traditional Native American religious
practice. Such practice could include the need to ritually inter the
object. The Department proposes to add to the definition of sacred
object (and to all specific definitions of cultural items) that
identification of a sacred object is according to a lineal descendant,
Indian Tribe, or NHO based on customs, traditions, or Native American
traditional knowledge. In the Act, the identification of a sacred
object is dependent upon consultation with lineal descendants, Indian
Tribes, and NHOs. By adding this phrase to the definition of a sacred
object, the Department seeks to emphasize that consultation, which is
required throughout the proposed regulation, is how a lineal
descendant, Indian Tribe, or NHO shares the information needed to
identify a sacred object.
26. ``Traditional Religious Leader''
The Department proposes to revise the term ``traditional religious
leader'' in response to consultation with Indian Tribes and NHOs. The
term is not defined in the Act and the proposed revisions are intended
to clarify and simplify the definition. The proposed revisions intend
to place the authority for identifying a traditional religious leader
in the hands of an Indian Tribe or NHO. There is no requirement for an
Indian Tribe or NHO to disclose information about the cultural,
ceremonial, or religious practices or cultural duties or leadership
role used to identify a traditional religious leader.
27. ``Tribal Lands''
The Department proposes to revise the term ``Tribal lands'' by
removing the provision in the existing regulations related to a taking
of property without compensation within the meaning of the Fifth
Amendment of the United States Constitution (25 U.S.C. 3001(13)).
Comments to the 1995 final rule sought clarification regarding the
application of NAGPRA to privately owned lands within the exterior
boundaries of an Indian reservation. To address any potential conflict,
the final rule codified language stating that the regulations will not
apply to Tribal lands to the extent that any particular action
authorized or required will result in such a taking of property. A
review of the legislative history for the Act shows this concept does
not apply to the statute as enacted and therefore is removed from the
definition of Tribal lands.
28. ``Tribal Lands of an NHO''
The Department proposes to add a new term ``Tribal lands of an
NHO'' to more accurately describe a subset of Tribal lands in
Hawai[revaps]i so it can be applied in the regulatory process in
Subpart B. In the Act, priority for disposition of human remains or
cultural items from Tribal lands is in the Indian Tribe or NHO on whose
Tribal lands the human remains or cultural items were removed. While
the Tribal lands of an Indian Tribe is clearly identified by the
definition of Tribal lands, the application of this priority on Tribal
lands in Hawai[revaps]i is not clear from the definition of Tribal
lands alone. This definition provides for an NHO to take on
responsibility for the provisions of the Act from the State of
Hawai[revaps]i DHHL. When an NHO has a lease or license from DHHL
pursuant to the Hawaiian Homes Commission Act (HHCA), that NHO can
elect to take on any of the responsibilities under Subpart B of the
proposed regulations on its Tribal lands (see proposed Sec. Sec.
10.5(c), 10.6(a), and 10.7(c)).
29. ``Unclaimed Cultural Items''
The Department proposes to revise the term ``unclaimed cultural
items'' for clarity. The proposed revision retains the same central
requirement of the existing definition but removes the more regulatory
process part of the existing regulation to the regulatory text (see
proposed Sec. 10.7(e)).
30. ``United States''
The Department proposes to add a new term ``United States'' to
provide a geographical descriptor throughout this part.
[[Page 63216]]
D. Section 10.3 Cultural and Geographical Affiliation
This section of the proposed rule would improve the organizational
structure of the existing regulations and better align the requirements
with Congressional intent. The Department proposes to relocate existing
regulatory provisions at Sec. 10.14 to Subpart A-General.
The proposed revisions would remove the criteria for determining
lineal descent in the existing regulations at Sec. 10.14(b), as it is
repetitive of the definition for lineal descendant and not necessary.
In conjunction with the defined term ``affiliation,'' the proposed
revisions reflect the intent of Congress that for purposes of
disposition or repatriation, all that is required is a reasonable
connection between human remains or cultural items and an Indian Tribe
or NHO (H. Rep. 101-877, at 14, and S. Rep. 101-473, at 6). The
proposed revisions identify two kinds of affiliation for purposes of
disposition or repatriation: cultural or geographical.
1. Cultural Affiliation
For cultural affiliation, the proposed revisions clarify the
existing requirements by moving ``cultural affiliation'' to this
section to include not only what it is, but also how it is established
and what it does not require. The proposed revisions simplify the
information and criteria needed to identify cultural affiliation by
removing extraneous or duplicative language that has often been a
barrier to repatriation. The proposed revisions also clearly explain
that more than one Indian Tribe or NHO may have a cultural affiliation
to human remains or cultural items.
For example, assume that the only information available for
individual human remains shows that the human remains were removed from
a particular site and that the human remains have a date range spanning
1,000 years. Indian Tribe A has a relationship of shared group identity
to an earlier group who occupied the site at some point during that
1,000-year span. Similarly, Indian Tribe B has a shared group identity
with a different earlier group that also occupied the site at different
point during that 1,000-year span. Even though Indian Tribe A and
Indian Tribe B do not themselves have a relationship of shared group
identity, both Indian Tribe A and Indian Tribe B have a cultural
affiliation with the human remains from that site.
In response to consultation with Indian Tribes and NHOs, the
Department emphasizes that ``a preponderance of the evidence'' is a
similar standard to a ``reasonableness'' requirement, both of which are
common legal concepts. In both standards, a ``more likely than not''
assessment is required, such that the reasonableness requirement for
tracing cultural affiliation is satisfied by a preponderance of the
evidence establishing cultural affiliation. Congressional report
language states cultural affiliation ``shall be established by a simple
preponderance of the evidence,'' and that phrase is used in the
proposed revisions.
2. Geographical Affiliation
For geographical affiliation, the proposed revisions draw on
language in the Act requiring the identification of ``the geographical
and cultural affiliation'' (25 U.S.C. 3003(a)) and include the
information and criteria needed to establish geographical affiliation.
The proposed revisions clarify, as under the existing regulations at
Sec. 10.11, ``geographical affiliation'' is identified by tracing a
relationship between an Indian Tribe or NHO and a geographic area
connected to the human remains or cultural items. While cultural
affiliation requires a simple preponderance of the evidence given the
information available, geographical affiliation only requires that the
information be available. The proposed revisions also clearly explain
that more than one Indian Tribe or NHO may have a geographical
affiliation to human remains or cultural items.
For example, assume that the geographic area connected to human
remains and associated funerary objects is the Tribal lands of Indian
Tribe L, the adjudicated aboriginal land of Indian Tribe N, and the
acknowledged aboriginal land of Indian Tribes M, N, O, and P. All the
Indian Tribes (L, M, N, O, and P) have a geographical affiliation with
the human remains. Any information beyond the geographic area, for
example when the human remains or cultural items were removed or types
of associated funerary objects, may provide information sufficient to
identify a more specific cultural affiliation to one or more of the
Indian Tribes but must not be used to limit the geographical
affiliation to all the Indian Tribes.
The proposed revision states (in response to consultation with
Indian Tribes and NHOs) that the information used to identify
geographical affiliation may provide information sufficient to also
establish cultural affiliation. Because geographical information is one
line of information that may be used for cultural affiliation, that
information alone may be sufficient to establish cultural affiliation
as well as geographical affiliation.
3. Multiple Affiliations and Closest Affiliations
The proposed revisions provide clear instructions to Indian Tribes,
NHOs, museums, and Federal agencies for making and considering single
claims or requests and for resolving competing claims or requests by
identifying the Indian Tribe or NHO with the closest affiliation (see
proposed Sec. 10.3(c) and (d)). The proposed revisions clearly explain
that two or more Indian Tribes or Native Hawaiian organization may
submit a claim for disposition or a request for repatriation and may
claim joint disposition or request joint repatriation of human remains
or cultural items. Joint claims or requests are considered a single
claim or request and not competing claims or requests.
In rare cases when there are competing claims or requests, museums
and Federal agencies must identify the ``closest cultural affiliation''
(25 U.S.C. 3002(a)(2)(B)) and the ``most appropriate claimant'' (25
U.S.C. 3005 (e)). The Act provides no process for making these
identifications, but in the inventory and notification provisions of
the Act (25 U.S.C. 3003(d)(2)(B) and (C)), there is a distinction made
between two types of cultural affiliation: clearly identifiable as to
tribal origin and not clearly identifiable as being culturally
affiliated but determined by a reasonable belief. The Department
proposes to use this language to inform how a museum or Federal agency
might resolve competing claims for disposition or requests for
repatriation. The standard for establishing cultural affiliation in the
first instance is always a preponderance of the evidence, but when
multiple Indian Tribes or NHOs meet that standard and have submitted
competing claims or requests, these paragraphs provide a priority order
to differentiate between culturally affiliated Indian Tribes. In
resolving competing claims or requests, a museum or Federal agency may
identify one or more Indian Tribes or NHOs with the closest
affiliation.
Table 4 shows how the Department proposes to reorganize the
existing regulatory requirements regarding cultural or geographical
affiliation.
[[Page 63217]]
Table 4--Cross-Reference of Existing Provisions to Proposed Sec. 10.3
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.14(c)..................... Criteria for determining ............................. Cultural affiliation.
cultural affiliation. (1) Information. (2)
Criteria. (3) Multiple
cultural affiliations.
10.14(f)..................... Standard of proof....... 10.3(a)......................
10.14(d)..................... A finding of cultural
affiliation . . .
10.14(e)..................... Evidence................
10.11(c)..................... Disposition of 10.3(b)...................... Geographical
culturally affiliation. (1)
unidentifiable human Information. (2)
remains and associated Criteria. (3) Multiple
funerary objects. geographical
affiliations.
New..................... 10.3(c)...................... Multiple affiliations.
New..................... 10.3(d)...................... Closest affiliation.
10.14(a)..................... General................. ............................. Removed.
10.14(b)..................... Criteria for determining 10.2......................... Lineal descendant means.
lineal descent.
----------------------------------------------------------------------------------------------------------------
E. Section 10.4 General
This section of the proposed rule would provide a general overview
to Subpart B and clarify the responsibilities of Indian Tribes, NHOs,
Federal agencies, and the State of Hawai`i Department of Hawaiian Home
Lands (DHHL) for human remains or cultural items on Federal or Tribal
lands. This section would consolidate general information in the
existing regulations at Sec. Sec. 10.3, 10.4, and 10.5. The Department
proposes to revise the title of Subpart B (in response to consultation
with Indian Tribes and NHOs) to better reflect the intent of Congress
for this section of the Act (25 U.S.C. 3002).
1. Appropriate Official
The Department proposes to employ a new term, ``appropriate
official,'' to denote the person or persons responsible for completing
the regulatory requirements related to a discovery, excavation, and
disposition of human remains or cultural items on Federal or Tribal
lands. The revision would improve consistency with the Act by requiring
certain actions be taken by the appropriate official for an Indian
Tribe, NHO, Federal agency, and DHHL concerning discoveries,
excavations, and disposition on Federal or Tribal lands.
2. Plan of Action
On all Federal lands in the United States or on some Tribal lands
in Hawai`i, the Department proposes (in response to consultation with
Indian Tribes and NHOs) to move the existing regulatory requirement for
a plan of action to the beginning of the subpart. In the existing
regulations, Sec. 10.5(e) requires Federal agency officials to
prepare, approve, and sign a written plan of action after consultation
and before a planned activity that may result in the excavation of
human remains or cultural items. The proposed revisions would require a
plan of action before for any planned activity that may result in the
discovery or excavation of human remains or cultural items as well as
after a discovery of human remains or cultural items and before
authorizing an excavation that may result in the discovery or
excavation of human remains or cultural items. The Department proposes
to simplify the plan of action in three separate steps (see proposed
Sec. 10.4(b)): (1) Step 1--Initiate consultation; (2) Step 2--Consult
with requesting parties; and (3) Step 3--Approve and sign the plan of
action. Consulting parties listed in Sec. 10.4(b)(1) would not be
considered the same as consulting parties under other applicable law,
specifically under 36 CFR part 800. The Department proposes to use
specific terms to clarify the distinction between a consulting party
(as defined in Sec. 10.4(b)(1)(i)) and a requesting party (any
consulting party that submits a written request to consult).
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that consultation seek consensus, to the
maximum extent possible, on the content of the plan of action. In
addition, a record of consultation must include the effort made to seek
consensus or describe efforts to identify a mutually agreeable
alternative. The consultation record must note the concurrence,
disagreement, or nonresponse of the requesting parties to the plan of
action. These requirements are used throughout the proposed regulations
whenever consultation with requesting parties is required. The
Department proposes to remove some of the existing requirements for a
plan of action that are not necessary and overly intrusive. Depending
on the results of consultation, any of these elements may be included
in a plan of action but are no longer the minimum requirement for a
plan of action. Specifically, the Department proposes to remove the
following items from a plan of action in the existing regulations at
Sec. 10.5(e):
(1) The kinds of objects considered as cultural items;
(2) The specific information used to determine disposition;
(4) The planned archaeological recording;
(5) The kinds of analysis planned for each kind of object; and
(8) The nature of reports to be prepared.
The Department proposes to include in a plan of action the
preference of requesting parties for stabilizing and covering human
remains or cultural items in situ, protecting and relocating human
remains or cultural items, if removed, or providing appropriate
treatment, care, or handling of human remains or cultural items. For
example, under the proposed regulations, a plan of action might
indicate that requesting parties prefer protection of human remains or
cultural items in situ, but when that is not possible, the plan of
action may require that the appropriate official protect and relocate
the human remains or cultural items by burying them in a nearby
location. Once disposition under Sec. 10.7 is complete (including any
required notice publication and claim), the claimants may determine the
care, custody, or physical transfer of the human remains or cultural
items, including deciding to leave the human remains or cultural items
buried in the nearby location.
In response to consultation with Indian Tribes and NHOs and based
the experience of Federal agencies with these requirements since 1990,
the Department is aware of a preference by some Indian Tribes for
allowing natural exposure or erosion of human remains or cultural items
to continue, without covering or removing human remains or cultural
items. In those cases, a plan of action may indicate that requesting
parties prefer the appropriate official take no action upon the
discovery of human remains or cultural items that
[[Page 63218]]
are naturally exposed. The plan of action should also indicate what the
appropriate official will do if the human remains or cultural items
cannot be left in place. If disposition under Sec. 10.7 is required
because the human remains or cultural items could not be left in place,
the claimants (after notice publication and claim, if required) may
determine the care, custody, or physical transfer of the human remains
or cultural items, including returning them to a safe location to
continue a natural process.
3. Comprehensive Agreement
The Department proposes to retain the option for Federal agencies
or DHHL to enter into a comprehensive agreement for all land managing
activities on Federal or Tribal lands under its responsibility. The
proposed regulations would require a comprehensive agreement be
consented to by a majority of requesting parties and include, at
minimum, the information required in a plan of action.
Table 5 shows how the Department proposes to reorganize the
existing regulatory requirements on Federal or Tribal lands after
November 16, 1990.
Table 5--Cross-Reference of Existing Provisions to Proposed Sec. 10.4
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.3(c)...................... Procedures.............. 10.4......................... To ensure compliance
(1) . . . determine with the Act, any
whether a planned permit, license, lease
activity may result . . . . .
..
10.4(g)...................... Notification requirement
in authorizations.
New..................... 10.4(a)...................... Appropriate official.
10.5(b)...................... Initiation of 10.4(b)...................... Plan of action.
10.5(a)...................... consultation. (1) Step 1: Initiate
10.5(c)...................... Consulting parties...... consultation
Provision of information
10.5(d)...................... Requests for information (2) Step 2: Consult with
requesting parties.
10.5(e)...................... Written plan of action.. (3) Step 3: Approve and
sign the plan of
action.
10.5(f)...................... Comprehensive agreements 10.4(c)...................... Comprehensive agreement.
10.3(c)...................... Procedures.............. 10.4(d)...................... Federal agency
(3) planned activity coordination with other
subject to NHPA. laws.
10.4(f)...................... Federal agency
officials.
10.5(g)...................... Traditional religious ............................. Removed. See Sec. Sec.
leaders. 10.2 and 10.4(b)(2).
----------------------------------------------------------------------------------------------------------------
F. Section 10.5 Discovery
This section of the proposed rule would implement the requirements
of the Act regarding a discovery of human remains or cultural items on
Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(d)).
This section would include and clarify the requirements in the existing
regulations at Sec. 10.4(b) through (e) regarding discoveries.
1. Reporting and Documentation Requirements Upon Discovery
The proposed language in Sec. 10.5(a) and (b) would prescribe
specific reporting and documentation procedures that any person who
knows or has reason to know of a discovery must take upon discovery of
human remains or cultural items. Specifically, the proposed language
would:
Establish reporting timeframes (immediately with written
documentation in 24 hours), requirements to secure and protect the
discovery, and documentation requirements to include the location and
contents of the discovery.
Provide clear instructions for reporting the discovery in
Table 1 to Sec. 10.5, which identifies the appropriate official and
the additional point of contact who must be informed of a discovery,
based on the location of the discovery.
2. Timeframes To Respond to Discovery
The Department also proposes to require the appropriate official
respond to any discovery on Federal or Tribal lands and keep the
existing regulations' timeline of three days. On Tribal lands, the
existing regulations only recommend actions by an appropriate official
by using the verb ``may'' in the existing regulation at Sec. 10.4(e).
The Department proposes to change this to ``require,'' on Tribal lands
in Alaska and the continental United States, that the appropriate
official for an Indian Tribe respond to a discovery and certify that an
activity may resume (see proposed Sec. 10.5(c) and (e)), with an
option to delegate this responsibility to the Bureau of Indian Affairs
or another Federal agency. On Tribal lands of an NHO, the NHO may
accept responsibility for discoveries on its Tribal lands; otherwise
DHHL is responsible for discoveries on Tribal lands in Hawai`i. Table 6
shows the name of each requirement and a shortened version of the
deadline in the proposed revisions.
Table 6--Discovery
------------------------------------------------------------------------
Requirement Deadline (no later than)
------------------------------------------------------------------------
Report a discovery..................... 24 hours after a discovery.
Cease any nearby activity.............. Immediately.
Respond to a discovery................. 3 days after a report of a
discovery.
Approve and sign a plan of action...... 30 days after a report of a
discovery.
Certify an activity may resume......... 35 days after a report of a
discovery.
Resume an activity..................... 30 days after certification.
------------------------------------------------------------------------
3. Plan of Action
On all Federal lands in the United States or on Tribal lands in
Hawai`i, the Department proposes (in response to consultation with
Indian Tribes and NHOs) to revise the existing notification and
consultation requirements for discoveries under Sec. 10.4(d)(iii) and
(iv) by requiring a plan of action. Although
[[Page 63219]]
the Act does not require consultation on a discovery, the Department
proposes to require the appropriate official, in consultation with
Indian Tribes or NHOs, prepare, approve, and sign a plan of action
within 30 days of a discovery. The Department hopes that by requiring a
plan of action after a discovery, Federal agencies and DHHL will be
encouraged to engage in consultation earlier and develop a plan of
action prior to a discovery. The requirement for a plan of action is
waived if, prior to the discovery, the appropriate official approved
and signed a comprehensive agreement or plan of action, or if an NHO
agreed to be responsible for discoveries on its Tribal lands.
4. Certification and Resumption of Activity
The Department proposes to provide additional time for the
appropriate official to certify an activity related to a discovery may
resume. In the existing regulations at Sec. 10.4(d) and (e), the
appropriate official on Federal or Tribal lands must certify receipt of
a notification of a discovery within three days and the activity
related to the discovery may resume 30 days later. The existing
regulations do not allow for any additional time and do not provide a
mechanism for the appropriate official to prevent an activity from
resuming 33 days after a discovery.
The Department proposes to build in an additional 35 days, if
needed, for consultation with Indian Tribes and NHOs, evaluation of the
discovery, and to carry out a plan of action (see proposed Sec.
10.5(e)). The Department is specifically seeking input during public
comment on this timeline. The Act requires that an activity may resume
30 days after the appropriate official certifies that notification of a
discovery was received (25 U.S.C. 3002(d)(1), last sentence). The
legislative history clearly indicates that reporting a discovery is not
meant to be an impediment to resuming a lawful activity on Federal or
Tribal lands. However, the Department proposes to allow an additional
35 days in the timeline by separating the requirements for responding
to a discovery within 3 days from the requirements for certifying that
an activity may resume within 30 days. This would allow a maximum of 65
business days (35 business days to certify and 30 business days later
resume the activity) after a discovery on Federal or Tribal lands
before an activity could resume. If the appropriate official determines
an earlier date for resuming the activity is acceptable, there is no
restriction against certifying the activity may resume within less than
65 days. The proposed change would allow the appropriate official more
time, if needed, to consult with Indian Tribes and NHOs, evaluate the
potential need for an excavation, and carry out the steps in a plan of
action.
Table 7 shows how the Department proposes to reorganize the
existing regulatory requirements regarding a discovery.
Table 7--Cross-Reference of Existing Provisions to Proposed Sec. 10.5
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.4(b)...................... Discovery............... 10.5(a)...................... Report any discovery.
10.4(c)...................... Ceasing activity........ 10.5(b)...................... Cease any nearby
activity.
10.4(d)...................... (1) As soon as possible, 10.5(c)...................... Respond to a discovery.
10.4(e)...................... but no later than three
(3) working days . ..
10.4(d)...................... (1) (iv) Initiate 10.5(d)...................... Approve and sign a plan
consultation. of action.
10.4(d)...................... (2) Resumption of 10.5(e)...................... Certify that an activity
10.4(e)...................... activity. may resume.
10.4(a)...................... General................. ............................. Removed.
----------------------------------------------------------------------------------------------------------------
G. Section 10.6 Excavation
This section of the proposed rule would implement the requirements
of the Act regarding excavation of human remains or cultural items on
Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(c)).
This section would include and clarify the requirements in the existing
regulations at Sec. 10.3(b) and (c) regarding excavations.
1. Jurisdiction to Issue ARPA Permit
The Department proposes to revise the existing regulations to
clarify the jurisdiction of a Federal agency to issue a permit under
Section 4 of the Archaeological Resources Protection Act (ARPA) for an
excavation. This proposed change, based on the legislative history of
NAGPRA, would address requests from Federal agencies and DHHL to
correct the scope of jurisdiction in the existing regulations at Sec.
10.3(b)(1), which requires the Bureau of Indian Affairs to take certain
actions on private lands for which they do not have jurisdictional
authority. The Department proposes that an excavation on Federal or
Tribal lands would only require a permit under the ARPA (16 U.S.C.
470cc) if the excavation would occur on ``Indian lands'' or ``public
lands'' under ARPA (referred to and defined as ``ARPA Indian lands''
and ``ARPA public lands''), subject to the exemptions in the ARPA
Uniform Regulations. ARPA's definition of ``Indian lands'' and ``public
lands'' is narrower than ``Tribal lands'' and ``Federal lands'' under
NAGPRA, which is why the Department proposes to include the ARPA
definitions in these proposed regulations. The legislative history of
NAGPRA makes clear that Congress intended to protect human remains and
cultural items by requiring ARPA permits be issued for NAGPRA
excavations when a permit is also required under ARPA.
2. Requirement for Consent to Excavation
Consistent with the Act, the proposed language in Sec. 10.6(a)
would require, on Tribal lands, an Indian Tribe or NHO to consent in
writing to an excavation. On Tribal lands in Alaska and the continental
United States, an Indian Tribe may delegate this responsibility to the
Bureau of Indian Affairs or another Federal agency. On Tribal lands of
an NHO, the NHO may accept responsibility for excavations on its Tribal
lands; otherwise DHHL is responsible for excavations on Tribal lands in
Hawai`i.
3. Requirement for Plan of Action Prior To Authorizing Excavation
On all Federal lands in the United States or on Tribal lands in
Hawai`i, the Department proposes (in response to consultation with
Indian Tribes and NHOs) to revise the notification and consultation
requirements for excavations under existing Sec. 10.3(c)(1)
[[Page 63220]]
by requiring a plan of action prior to authorizing an excavation of
human remains or cultural items. The Act requires consultation with the
appropriate Indian Tribe or NHO prior to permitting an excavation, and
the Department proposes to require the appropriate official, in
consultation with Indian Tribes and NHOs, prepare, approve, and sign a
plan of action prior to authorizing an excavation of human remains or
cultural items as proof of consultation. The Department hopes that by
requiring a plan of action before authorizing an excavation, Federal
agencies and DHHL will be encouraged to engage in consultation earlier
and develop a plan of action prior to any need for an excavation. The
requirement for a plan of action is waived if, prior to authorizing the
excavation of human remains or cultural items, the appropriate official
approved and signed a comprehensive agreement or plan of action, or if
an NHO agreed to be responsible for excavations on its Tribal lands.
Table 8 shows how the Department proposes to reorganize the
existing regulatory requirements regarding excavation and consultation.
Table 8--Cross-Reference of Existing Provisions to Proposed Sec. 10.6
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.3(b)...................... Specific Requirements. 10.6......................... A permit under Section 4
(1) . . . following the of ARPA is required
requirements of ARPA . when . . .
. .
10.3(b)...................... (2) . . . in the case of 10.6(a)...................... On Tribal lands.
tribal lands, consent
of, the appropriate . .
.
(4) Proof of the
consultation or consent
is shown . . ..
10.3(c)...................... Procedures.
(4) . . . on tribal
lands, the Indian tribe
or NHO may . . ..
10.3(c)...................... Procedures.............. 10.6(b)...................... On Federal lands in the
(1) . . . the Federal United States or on
agency official must Tribal lands in
notify in writing . . .. Hawai`i.
(2) . . . must complete
a written plan of
action . . ..
10.3(a)...................... General................. ............................. Removed.
10.3(b)...................... (3) The disposition of ............................. Removed.
the objects . . ..
----------------------------------------------------------------------------------------------------------------
H. Section 10.7 Disposition
This section of the proposed rule would implement the requirements
of the Act regarding the disposition of human remains or cultural items
removed from Federal or Tribal lands after November 16, 1990 (25 U.S.C.
3002(a) and (b)). This section would include and clarify the
requirements in the existing regulations at Sec. Sec. 10.6 and 10.7
regarding dispositions.
1. Consistent Use of the Term ``Disposition''
The Department proposes to replace the term ``disposition'' in the
existing regulations with two separate terms: ``disposition'' and
``repatriation.'' In the proposed revision, ``disposition'' applies
consistently throughout but only to Subpart B. In the existing
regulations, ``disposition'' and the undefined word custody are used
interchangeably at times while ``disposition'' is also used as a catch-
all term for any transfer of human remains or cultural items under the
regulations. The Act uses the terms ``ownership,'' ``right of control
of the disposition,'' and ``disposition of and control over'' in
describing this process (25 U.S.C. 3002). In the proposed revision,
``disposition'' is the title of this section and means the appropriate
official acknowledges and recognizes a lineal descendant, Indian Tribe,
or Native Hawaiian organization has control or ownership of human
remains or cultural items removed from Federal or Tribal lands.
2. Timeline for Disposition
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that disposition occur as soon as
possible, but no later than one year, after the discovery or excavation
of human remains or cultural items on Federal or Tribal lands. In the
existing regulations, there is no deadline for disposition, and the
Department is aware of many instances where human remains or cultural
items have not completed the regulatory process for years or even
decades after discovery or excavation. This timeline will ensure that,
on all Federal lands in the United States or on Tribal lands in
Hawai`i, when disposition cannot be completed within one year, the
Federal agency or DHHL reports the human remains or cultural items to
the Manager, National NAGPRA Program.
The Department proposes to clarify the requisite steps for
disposition by establishing a step-by-step process with corresponding
deadlines. Table 9 shows the name of each step and a shortened version
of the deadline in the proposed revisions.
Table 9--Step-by-Step Process for Disposition
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Inform consulting parties...... 6 months after a discovery or
excavation.
Step 2--Submit a notice of intended 6 months after Step 1.
disposition.
Step 3--Receive and consider a claim Any time after notice
for disposition. publication.
Step 4--Respond to a claim for 30 days after Step 3.
disposition.
Step 5--Disposition of the human 90 days after Step 4.
remains or cultural items.
------------------------------------------------------------------------
[[Page 63221]]
3. Priority for Disposition
The Department proposes to simplify and clarify information
contained in the existing regulations at Sec. 10.6(a). The proposed
revisions are consistent with the Act and the existing regulations in
establishing the priority for disposition (see proposed Sec. 10.7(a)),
which can be simplified to be:
(1) Lineal descendants,
(2) Tribal lands Indian Tribe or NHO,
(3) Indian Tribe or NHO with clear cultural affiliation,
(4) Indian Tribe or NHO with reasonably identified cultural
affiliation,
(5)(i) Adjudicated aboriginal land Indian Tribe, and
(5)(ii) Indian Tribe with a stronger cultural relationship than
(5)(i).
4. Align Disposition to a Lineal Descendant or on Tribal Lands to the
Act
The Department proposes to remove the requirement in the existing
regulations at Sec. 10.6(c) for publishing notices or requiring claims
for disposition to a lineal descendant. The existing regulations do not
provide any requirements for disposition of human remains or cultural
items from Tribal lands. The Department proposes to require written
documentation for disposition to a lineal descendant or on Tribal lands
to better align with the Act (25 U.S.C. 3002(a)(1) and (2)(A); note the
lack of a requirement for a notice or claim). On Tribal lands in Alaska
and the continental United States, an Indian Tribe may delegate its
responsibilities for disposition to the Bureau of Indian Affairs or
another Federal agency. On Tribal lands of an NHO, the NHO may accept
responsibility for dispositions on its Tribal lands; otherwise DHHL is
responsible for dispositions on Tribal lands in Hawai`i.
5. Revise Requirements for Notices and Claims for Disposition
The Department proposes to revise language in the existing
regulations at Sec. 10.6(c) describing the requirements for Federal
agencies to publish notices, receive claims, and complete dispositions
in one paragraph with long, complex sentences. On all Federal lands in
the United States and on Tribal lands in Hawai`i, the proposed
revisions would provide five clearly written steps to complete the
disposition of human remains or cultural items and establish deadlines
and timelines.
The Department proposes to change the notice publication
requirement in the existing regulations at Sec. 10.6(c) that requires
two publications of a notice in local area newspapers at least one week
apart. This requirement has become increasingly burdensome given the
general changes in newspaper publications since 1995. The Department
proposes to require only one publication in the Federal Register by the
Manager, National NAGPRA Program.
The Department proposes a new requirement for completing
dispositions by sending claimants and the Manager, National NAGPRA
Program, a written disposition statement. In the case of joint claims
for disposition, the disposition statement would identify and be sent
to all claimants. In the case of competing claims for disposition, the
proposed revisions give guidance and timelines for identifying the most
appropriate claimant and completing the disposition. The Act requires
that the Federal agency apply the priority order and determine the
``closest cultural affiliation'' based on the evidence before it (25
U.S.C. 3002(a)(2)(B)) and does not provide for a stay of disposition to
acquire further evidence or information.
6. Unclaimed Human Remains or Cultural Items
The Department proposes to move the existing section at Sec. 10.7
to be a paragraph under the larger disposition section and modify the
existing timeline. On all Federal lands in the United States or on
Tribal lands in Hawai`i, when disposition cannot be completed within
one year of a discovery, excavation, or notice of intended disposition,
the proposed revisions require that the Federal agency or DHHL must
report the human remains or cultural items to the Manager, National
NAGPRA Program. These provisions would apply to any human remains or
cultural items that were discovered or excavated on Federal lands in
the United States or on Tribal lands in Hawai`i after November 16,
1990, even if it has been more than one year since the discovery,
excavation, or notice of intended disposition. Federal agencies and
DHHL should submit a list of all unclaimed human remains or cultural
items removed from Federal or Tribal lands. As in the existing
regulations at Sec. 10.7(c) through (e), the proposed revisions would
provide a process whereby a Federal agency or DHHL may transfer or
reinter unclaimed human remains or cultural items, after it publishes a
notice of proposed transfer or reinterment.
The Department proposes to clarify the requisite steps for
unclaimed human remains or cultural items by establishing a step-by-
step process with corresponding deadlines. Table 10 shows the name of
each step and a shortened version of the deadline in the proposed
revisions.
Table 10--Step-by-Step Process for Unclaimed Human Remains or Cultural
Items
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Submit a list of unclaimed 1 year after effective date,
cultural items. update by Dec 31 each year.
Step 2--Agree to transfer or decide to Any time after Step 1.
reinter human remains or cultural
items.
Step 3--Submit a notice of proposed 30 days after Step 2.
transfer or reinterment.
Step 4--Transfer or reinter the human 90 days after Step 3.
remains or cultural items.
------------------------------------------------------------------------
Table 11 shows how the Department proposes to reorganize and revise
the existing regulatory requirements regarding disposition.
Table 11--Cross-Reference of Existing Provisions to Proposed Sec. 10.7
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.6(a)...................... Priority of custody..... 10.7(a)...................... Priority for
disposition.
New..................... 10.7(b)...................... To a lineal descendant.
10.15(d)..................... Savings provisions...... (3) After the
disposition statement
is sent . . .
[[Page 63222]]
New..................... 10.7(c)...................... On Tribal lands.
10.15(d)..................... Savings provisions...... (4) After the
disposition statement
10.10(c)..................... (3) . . . from expressly
relinquishing title to
. .
10.6(c)...................... Final notice, claims and 10.7(d)...................... On Federal lands in the
disposition with United States or on
respect to Federal Tribal lands in
lands. Hawai`i.
(1) Step 1: Inform
consulting parties.
(2) Step 2: Submit a
notice of intended
disposition.
(3) Step 3: Receive and
consider a claim for
disposition.
(4) Step 4: Respond to a
claim for disposition.
(5) Step 5: Disposition
of the human remains or
cultural items.
10.15(d)..................... Savings provisions...... (5)(iii) After the
disposition statement .
. .
10.10(c)..................... (3) . . .from expressly ........................
relinquishing title to
. . .
10.7......................... Disposition of unclaimed 10.7(e)...................... Unclaimed human remains
. . .. or cultural items . . .
10.7(b)...................... (1) Submit a list of (1) Step 1: Submit a
items . . . list of unclaimed human
remains or cultural
items.
10.7(c)...................... . . . upon request, (2) Step 2: Agree to
transfer . . . transfer or decide to
reinter human remains
or cultural items.
(3) Step 3: Submit a
notice of proposed
transfer or
reinterment.
(4) Step 4: Transfer or
reinter the human
remains or cultural
items.
(4)(ii) After transfer
or reinterment occurs .
. .
10.7(d)...................... . . . reinter . . .
10.7(e)...................... (2) Publish a notice of
the proposed transfer
or reinterment . . .
New.....................
10.15(d)..................... Savings provisions.
10.10(c)..................... (3) . . . from expressly ........................
relinquishing title to
. . .
10.6(b)...................... Custody of human remains Removed.
. . ..
10.7(b)...................... (2) Care for and manage 10.1(d)...................... Duty of care.
. . ..
(3) To the maximum
extent feasible . . ..
10.7(a)...................... This section carries out Removed.
. . ..
10.7(e)...................... (1) Submit the list ........................
required . . ..
(3) Send to the Manager,
National NAGPRA Program
. . .
----------------------------------------------------------------------------------------------------------------
I. Section 10.8 General
This section of the proposed rule would provide a general overview
to Subpart C and clarify the requirements for museums and Federal
agency with possession or control of holdings or collections. The
section would consolidate general information in the existing
regulations at Sec. Sec. 10.8(a), 10.9(a), 10.11(e), and 10.17(a). The
Department proposes to revise the title of Subpart C (in response to
consultation with Indian Tribes and NHOs) to better reflect the intent
of Congress for these sections of the Act (25 U.S.C. 3003-3005).
1. Clarify Who Has Responsibility for Holdings or Collections
The Department proposes to clarify, regardless of the physical
location of a holding or collection, who is responsible for carrying
out the requirements of the Act. The proposed revisions would provide
both museums and Federal agencies with instructions on determining
possession or control of holdings or collections. As discussed in the
definition section, whether a museum or Federal agency has possession
or control is a legal determination that must be made on a case-by-case
basis. However, when a museum with custody of human remains or cultural
items cannot identify any person, institution, State or local
government agency, or Federal agency with possession or control, the
museum should presume it has possession or control for purposes of
Subpart C. When a Federal agency cannot determine if human remains or
cultural items came into its possession or control before or after
November 16, 1990, or cannot identify the type of land the human
remains or cultural items were removed from, the Federal agency should
presume it has possession or control for purposes of Subpart C.
2. Museums With Custody of a Federal Agency Holding or Collection
The Department proposes two new requirements aimed at locating
Federal collections in non-Federal museums (see proposed Sec.
10.8(c)). Specifically, the proposed language would require that:
A museum must submit a statement describing Federal
holdings or collections in its custody to the responsible Federal
agency and to the Manager, National NAGPRA Program, no later than one
year after the effective date of the final rule; and
Within 120 days of receiving such a statement, the Federal
agency must acknowledge its possession or control of a holding or
collection, acknowledge that it does not have possession or control of
a holding or collection, or acknowledge it has joint possession or
control with the museum.
These new requirements are a direct response to requests from
Federal agencies and Indian Tribes who struggle to locate Federal
collections in non-Federal museums. In 2010, the Government
Accountability Office commented on this issue in its report on Federal
agency compliance with the Act. Addressing this issue, the Department's
detailed response to the Government Accountability Office's
[[Page 63223]]
report stated, ``These instances illustrate the importance of
repositories notifying agencies upon discovery of Federal collections
in their possession.'' This requirement is consistent with the
conditions for repositories holding Federal collections under 36 CFR
part 79, its referenced Federal property management authorities, and
the Secretary's authority to prescribe regulations relating to Indian
affairs under 25 U.S.C 9 (United States v. Eberhardt, 780 F.2d 1354,
1360 (9th Cir.1986)).
If a museum has custody of a holding or collection from multiple
agencies or is unsure which Federal agency has possession or control of
the holding or collection, the museum must send information on the
holding or collection to any Federal agency that might have an interest
and to the Manager, National NAGPRA Program. If a museum is unsure of
who the appropriate point of contact is for a Federal agency, the
Department recommends contacting the Federal Preservation Officer to
assist in identifying the appropriate agency contact. The Advisory
Council on Historic Preservation keeps an updated list at https://www.achp.gov/protecting-historic-properties/fpo-list. In responding to
such statement, a Federal agency need not perform exhaustive research
to determine whether it has possession or control of the collection,
but it must merely assess the museum's statement on possession or
control based on the information available to the Federal agency.
3. Museums With Custody of Other Holdings or Collections
The Department proposes a new requirement for museums with custody
of holdings or collections for which the museum cannot identify who has
possession or control. The museum would be required to submit a
statement describing holdings or collections in its custody for which
it cannot identify any person, institution, State or local government
agency, or Federal agency with possession or control. The statement
would be sent to the Manager, National NAGPRA Program, no later than
one year after the effective date of the final rule. This new
requirement is a direct response to requests from Indian Tribes who
struggle to determine their rights to holdings or collections in the
custody, but not in the possession or control, of a museum. The
Manager, National NAGPRA Program, would share this information with
appropriate parties to determine possession and control and proceed
with the inventory, summary, and repatriation processes.
Table 12 shows how the Department proposes to reorganize and add to
the existing regulatory requirements for museum or Federal agency
holdings or collections.
Table 12--Cross-Reference of Existing Provisions to Proposed Sec. 10.8
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.8(a).................... General.................... 10.8(a)................... Museum holding or
collection.
10.9(a) 10.8(b)................... Federal agency holding or
collection
New........................ 10.8(c)................... Museums with custody of a
Federal agency holding or
collection.
10.8(d)................... Museums with custody of
other holdings or
collections.
10.11(e)................... Disputes................... 10.8(e)................... Contesting actions on
repatriation.
10.17(a)................... Formal and informal
resolutions.
----------------------------------------------------------------------------------------------------------------
J. Section 10.9 Repatriation of Unassociated Funerary Objects, Sacred
Objects, and Objects of Cultural Patrimony
This section of the proposed rule would implement the requirements
of the Act regarding summaries of holdings or collections to facilitate
the repatriation of unassociated funerary objects, sacred objects, or
objects of cultural patrimony (25 U.S.C. 3004 and 3005). In response to
consultation with Indian Tribes and NHOs, the Department proposes to
retain the existing requirement that a museum or Federal agency prepare
a summary for any holding or collection that may contain unassociated
funerary objects, sacred objects, or objects of cultural patrimony.
NAGPRA requires ``Each Federal agency or museum which has possession or
control over holdings or collections of Native American unassociated
funerary objects, sacred objects, or objects of cultural patrimony
shall provide a written summary of such objects based upon available
information held by such agency or museum'' (25 U.S.C. 3004(a)). The
statutory language is unclear whether summaries should include only the
unassociated funerary objects, sacred objects, or objects of cultural
patrimony, or the entire collection which may include these cultural
items. The Act was enacted for the benefit of Indians and therefore the
canon of construction applies that statutes ``are to be construed
liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit'' (Yankton Sioux Tribe v. United States
Army Corps of Engineers, 83 F. Supp 2d 1047, 1056 (D.S.D. 2000)). The
legislative history and statutory language are clear that the summary
is intended as an initial step in bringing an Indian Tribe and Native
Hawaiian organization into consultation with a museum or Federal
agency. As Indian Tribes and NHOs noted during consultation,
identification of specific sacred objects or objects of cultural
patrimony must be done in consultation with Indian Tribe or NHO
representatives and traditional religious leaders since few, if any,
museums or Federal agencies have the necessary personnel to make such
identifications. Further, identification of specific unassociated
funerary objects, sacred objects, and objects of cultural patrimony
would require a museum or Federal agency to complete an item-by item
listing first. That would be directly contrary to Congress's admonition
that a summary should not be an object-by-object listing (25 U.S.C.
3004(b)(1)(A)).
The Department proposes to consolidate the requirements for
repatriation of unassociated funerary objects, sacred objects, and
objects of cultural patrimony into a seven-step process in a single
section. These same requirements are currently spread out among the
existing regulations at Sec. Sec. 10.8, 10.10, and 10.13. In addition,
the Department proposes to add more detailed instructions for
evaluating multiple requests for repatriation and resolving stays of
repatriation than currently in the existing regulations at Sec.
10.10(c).
[[Page 63224]]
1. Establish a Step-by-Step Process for Repatriation
The Department proposes to clarify the requisite steps for
repatriation by establishing a step-by-step process with corresponding
deadlines. Table 13 shows the name of each step and a shortened version
of the deadline in the proposed revisions.
Table 13--Step-by-Step Process for Repatriation
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Complete a summary . . ........ 6 months for a new collection.
Step 2--Initiate consultation.......... 30 days after Step 1.
Step 3--Consult with requesting parties 10 days after a request,
propose a timeline for
consultation.
Step 4--Receive and consider a request Any time after a summary is
for repatriation. complete.
Step 5--Respond to a request for 60 days after Step 4.
repatriation.
Step 6--Submit a notice of intended 30 days after Step 5.
repatriation.
Step 7--Repatriation of the 90 days after notice
unassociated funerary object, sacred publication.
object, or objects of cultural
patrimony.
------------------------------------------------------------------------
The intent of these proposed revisions is to correct inaccuracies
and ambiguities in the existing regulations by using a clear, easy to
follow, step-by-step process, and ensure a timely resolution of any
requests for repatriation. For example, the proposed revisions would
clarify, consistent with the Act, that invitations to consult follow
the completion of a summary. In the existing regulations at Sec.
10.8(d)(2), consultation is initiated ``no later than the completion of
the summary process.''
The proposed revisions would also directly address a required step
that lacks explanation or deadlines in the existing regulations. The
Department proposes in Step 5 to require a museum or Federal agency to
respond no later than 60 days after receiving a request for
repatriation. The Department also proposes four specific options for
the response, summarized as follows:
(1) Accept the request and agree to the repatriation.
(2) Reject the request, explain why, and ask for more information.
(3) Assert and prove a right of possession and refuse repatriation.
(4) Determine the most appropriate requestor among competing
requests.
2. Update Deadlines, Establish New Timelines, and Clarify Procedures
To update deadlines for completing a summary, the proposed
revisions integrate all the deadlines for completing a summary in the
first paragraph (see proposed Sec. 10.9(a), Table 1 to Sec. 10.9).
The proposed revisions would identify the past required deadlines for
completing a summary (i.e., November 16, 1993). The Act does not
clearly indicate when museums or Federal agencies must complete a
summary after the statutory deadline for reporting had passed. The
existing regulations at Sec. 10.13 provide these requirements for
newly acquired or newly regulated holdings or collections beginning in
2007. The proposed revisions use the same deadlines as the existing
regulations.
To establish new timelines, the proposed revisions would require in
Step 2 a written request to consult. This new requirement for a written
request to consult (which can include email) is necessary to then
require a museum or Federal agency to respond to the request within 10
days. In this same subparagraph, the proposed revisions require
requests to consult be submitted prior to a notice publication. This
requirement ensures the repatriation process moves forward by certain
deadlines in later steps. After publication of a notice, any party,
even if they have not requested to consult, can make a request for
repatriation as a competing claim (see proposed Sec. 10.9(f)(4)).
To clarify procedures, the proposed revisions would require in Step
4 that any party wishing to make a request for repatriation must do so
in writing. In the existing regulations at Sec. Sec. 10.8 and 10.10,
there are references to making requests for repatriation, but not until
the very end of the process under notification in the existing
regulations at Sec. 10.10(a)(3) is it clear that such a request must
be in writing. The Department is specifically seeking input during
public comment on the deadlines for responding to a request for
repatriation and sending a repatriation statement.
3. Require That Consultation Seek Consensus
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that consultation seek consensus, to the
maximum extent possible. In addition, a record of consultation must
include the effort made to seek consensus or describe efforts to
identify a mutually agreeable alternative. For any determination
considered during the consultation process, the consultation record
must note the concurrence, disagreement, or nonresponse of the
requesting parties. These requirements are used throughout the proposed
regulations whenever consultation with requesting parties is required.
4. Protect Sensitive Information and Disclose Hazardous Substances
The Department proposes to remove the existing regulations at Sec.
10.8(d)(4)(iii) because it requires Indian Tribes and NHOs to provide
information about funerary objects, sacred objects, or objects of
cultural patrimony. This kind of information is often very sensitive
and providing it in writing or in the absence of qualified persons
within the Indian Tribe or NHO might be inappropriate. The proposed
language would still provide for an exchange of information about the
types of objects that might be unassociated funerary objects, sacred
objects, or objects of cultural patrimony, but would do so in a way to
allow for sensitive information to be protected.
In the existing regulations at Sec. 10.10(e), museums and Federal
agencies must inform Indian Tribes and NHOs about any potentially
hazardous substances used to treat any of the objects only after
repatriation has occurred. The proposed revisions would require a
museum or Federal agency to disclose information about the presence of
any potentially hazardous substances first in the summary (see proposed
Sec. 10.9(a)(1)(v)) and second in the notice of intended repatriation
(see proposed Sec. 10.9(f)(1)(vi)).
5. Clarify Requirements for Notices
The proposed revisions clearly outline informational requirements
for a Federal Register notice and do so with greater detail than the
existing
[[Page 63225]]
regulations at Sec. 10.8(f). To protect potentially sensitive
information, the only location information that would be required is
the county and State where the unassociated funerary object, sacred
object, or object of cultural patrimony were removed, if known. Other
informational requirements of a Federal Register notice would include:
(1) the identification of the cultural item specifically as an
unassociated funerary object, a sacred object, an object of cultural
patrimony, or both a sacred object and an object of cultural patrimony;
(2) the requestor, with no requirement that other lineal descendants or
Indian Tribes or NHOs with cultural affiliation be listed in the
notice; and (3) a brief abstract of the information showing the
requestor is a lineal descendant or an Indian Tribe or NHO with
cultural affiliation.
In enumerating the unassociated funerary objects, sacred objects,
or objects of cultural patrimony in a notice, museums and Federal
agencies would be encouraged to count in a way that reduces the chances
of having to issue a correction notice. For example, identifying 3 lots
of shell beads means that no matter the exact number of beads present,
the count would stand, whereas identifying exactly 1,960 shell beads in
a notice would mean that if additional (or fewer) beads were located
before repatriation occurs, a correction notice would be required
because the number of objects would have changed.
6. Written Repatriation Statement
The Department proposes to require a new document to complete the
repatriation of an unassociated funerary object, sacred object, or
object of cultural patrimony to a requestor. A written repatriation
statement would be sent to and would identify all requestors in the
case of joint requests. In accordance with the recommendation by the
Government Accountability Office in a 2010 report on the implementation
of the Act, a copy of the repatriation statement would also be sent to
the Manager, National NAGPRA Program. Table 14 shows how the Department
proposes to reorganize the existing regulatory requirements for
repatriation of unassociated funerary objects, sacred objects, and
objects of cultural patrimony.
Table 14--Cross-Reference of Existing Provisions to Proposed Sec. 10.9
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.8(b)...................... Contents of summaries... 10.9(a)...................... Step 1: Complete a
summary of . . .
10.8(e)...................... Using summaries to (1) A summary must
determine affiliation. include . . .
10.10(e)..................... . . . inform recipients (1)(v) The presence of
of repatriation . . . any potentially
treatment with hazardous substances .
potentially hazardous . .
substances.
10.13(b)..................... New holdings or (2) After [effective
collections. date of final rule], .
. . must submit a
summary . . .
10.13(d)..................... New Federal funds.......
10.8(c)...................... Completion.............. (3) Prior to [effective
date of final rule], .
. . must have submitted
a summary . . .
10.13(b)..................... (3) Previously prepared (4) After [effective
summary or inventory.. date of final rule], .
. . acquires possession
or control of a holding
or collection that
contains . . .
10.8(d)...................... Consultation............ 10.9(b)...................... Step 2: Initiate
(1) Consulting parties.. consultation.
(1) Consulting parties
are . . .
(2) Initiation of (2) An invitation to
consultation. consult must . . .
New..................... (3) Any consulting party
. . . must . . .
(4) . . . identifies a
new consulting party .
. .
10.13(c)..................... New Indian Tribes....... (4)(ii) . . . after the
addition of a Tribal
entity to the list of
federally recognized
Indian Tribes . . .
10.8(d)...................... (4) Requests for 10.9(c)...................... Step 3: Consult with
information. requesting parties
(1) . . . a museum or
Federal agency must ask
for the following
information . . .
New..................... (2) The consultation
process must . . .
(3) The museum or
Federal agency must
prepare a record of
consultation . . .
10.8(d)...................... (3) Provision of (4) . . . A museum or
information. Federal agency must
provide access to the
additional information
. . .
New..................... 10.9(d)...................... Step 4: Receive and
consider a request for
repatriation.
(1) A request for
repatriation . . . must
be received . . .
(2) Requests from two or
more . . .
10.10(a)..................... (1) Criteria............ (3) A request for
repatriation must
satisfy . . .
New..................... 10.9(e)...................... Step 5: Respond to a
request for
repatriation.
10.8(f)...................... Notification............ 10.9(f)...................... Step 6: Submit a notice
of intended
repatriation
10.10(e)..................... . . . treatment with (1)(vi) . . . the
potentially hazardous presence of any
substances. potentially hazardous
10.13(b)..................... (2) Additional pieces or (3) If the number or
fragments.. identity . . . changes
. . .
10.13(e)..................... Amendment of previous
decision.
10.10(a)..................... (3) Notification........ 10.9(g)...................... Step 7: Repatriation of
10.10(d)..................... Place and manner of the unassociated
repatriation.. funerary object, sacred
object, or object of
cultural patrimony.
10.10(f)..................... Record of repatriation..
10.15(d)..................... Savings provisions......
10.10(c)..................... (2) Circumstances where 10.9(h)...................... Evaluating competing
there are multiple requests for
requests for repatriation.
repatriation.
10.10(c)..................... Exceptions.............. 10.9(i)...................... Stay of repatriation.
[[Page 63226]]
10.8(d)...................... (4)(iii) Kinds of Removed.
cultural items.
----------------------------------------------------------------------------------------------------------------
K. Section 10.10 Repatriation of Human Remains and Associated Funerary
Objects
This section of the proposed rule would implement the requirements
of the Act regarding inventories of holdings or collections to
facilitate the repatriation of human remains and associated funerary
objects (25 U.S.C. 3003 and 3005). The Department proposes to
consolidate the requirements for repatriation of human remains and
associated funerary objects into an eight-step process in a single
section. These same requirements are currently spread out among the
existing regulations at Sec. Sec. 10.9, 10.10, 10.11, and 10.13. In
addition, the Department proposes to add more detailed instructions for
evaluating multiple requests for repatriation and resolving stays of
repatriation than currently in the existing provisions at Sec.
10.10(c).
1. Eliminate ``Culturally Unidentifiable''
On March 15, 2010, the Department issued a final rule with request
for comment that codified procedures for the disposition of culturally
unidentifiable Native American human remains in the possession or
control of museums or Federal agencies (75 FR 12378, March 15, 2010).
These procedures require museums and Federal agencies to consult with,
and transfer control of, culturally unidentifiable human remains to the
Indian Tribes and NHOs from whose Tribal lands or from whose aboriginal
lands the human remains were removed.
Comments on the March 15, 2010, final rule raised concerns that the
financial burden on museums of consultation and disposition of
culturally unidentifiable human remains would be ``tremendous,''
``onerous,'' ``overwhelming,'' ``ruinous,'' or ``significant.''
However, since the Act became law in 1990, museums and Federal agencies
have accounted for over 84,000 Native American human remains in
notices, including over 21,000 culturally unidentifiable human remains,
with no indication that a single museum has suffered overwhelming or
ruinous consequences from compliance with the Act. Every year since
1994, Congress has provided approximately $2 million dollars in grant
funds for consultation and repatriation activities to assist in
compliance with the Act.
Comments for the March 15, 2010, final rule also raised questions
about what types of relationships were required for disposition of
culturally unidentifiable human remains. Using a geographic
relationship between an Indian Tribe or NHO and human remains and
associated funerary objects for the purpose of repatriation aligns with
the Act's requirements for museums and Federal agencies to ``identify
the geographical and cultural affiliation of such items'' and with the
general intent of repatriation under the Act. As noted in the response
to comments for the March 15, 2010, final rule, the disposition of
human remains, funerary objects, sacred objects, and objects of
cultural patrimony to Indian Tribes and NHOs based on criteria other
than cultural affiliation was clearly anticipated by Congress.
Section 3002(a)(2) of the Act which was used as the model for the
March 15, 2010, final rule specifically authorizes disposition of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony removed from Federal or Tribal lands after November 16, 1990
to the Indian Tribe or NHO on whose Tribal lands the human remains or
cultural items were removed, to the Indian Tribe or NHO with cultural
affiliation to the human remains or cultural items, or to the Indian
Tribe having aboriginally occupied the Federal land where the human
remains or cultural items were removed. Significantly, under the Act,
ownership or control of human remains or cultural items based on Tribal
lands origin is given a higher priority than cultural affiliation.
Consistent with the terms of the Act, the 2010 rule codified a process
for disposition of culturally unidentifiable human remains to the
Indian Tribe or NHO from whose Tribal lands, at the time of excavation
or removal, or from whose aboriginal land the human remains were
removed. In addition to the Act, the implementing regulations rely on
the specific recommendations from the Review Committee for disposition
of culturally unidentifiable human remains and additional information
gleaned from culturally unidentifiable inventories. The existing
regulations are consistent with the Department's determination that it
was reasonable and appropriate for the disposition of culturally
unidentifiable human remains to be based on geographical information
given that the designation of ``culturally unidentifiable'' is often
due to a lack of information occasioned by some collection practices
rather than a lack of geographical information.
To streamline the existing regulations at Sec. 10.11 regarding
disposition of human remains and associated funerary objects currently
referred to as culturally unidentifiable, the Department proposes to
incorporate the concepts underlying the existing regulations more
logically into the overall inventory and repatriation process. As a
result, the Department also proposes to generally remove the term
``culturally unidentifiable'' as the streamlining of these concepts
would make this term no longer serve a useful regulatory purpose.
Further, this proposed change is intended to more accurately reflect
the geographically focused analysis required for an inventory of human
remains and associated funerary objects. As discussed above, the
proposed revisions identify two kinds of affiliation for purposes of
repatriation: cultural or geographical. As discussed in more detail
below, the proposed revisions would require that an inventory of human
remains and associated funerary objects include determinations of both
cultural and geographical affiliation or an explanation why no
affiliation could be identified.
2. Require Repatriation of Associated Funerary Objects
While the existing regulations at Sec. 10.11 mandate the
disposition of certain categories of culturally unidentifiable human
remains by museums and Federal agencies upon receipt of a claim, the
transfer of culturally unidentifiable associated funerary objects under
the existing regulations is at the discretion of the museum or Federal
agency. Following publication of the 2007 proposed rule (72 FR 58582,
October 16, 2007), the Department received numerous comments on the
voluntary transfer of culturally unidentifiable associated funerary
objects. Most of the comments stated that transfer of such objects
should also be mandatory. These comments were carefully considered,
[[Page 63227]]
but the Department determined that this area of law was not clearly
resolved at that time and needed further consideration. The March 15,
2010, final rule retained the voluntary transfer provision. After the
publication of the final rule, the Department received additional
comments on this issue, which have been reviewed in the development of
the proposed revisions.
The Department proposes to require repatriation of associated
funerary objects whenever repatriation of the related human remains
occurs. In the Act, Congress differentiated human remains and
associated funerary objects from unassociated funerary objects, sacred
objects, and objects of cultural patrimony. Congress did this both in
its treatment of these items throughout the Act and in its assessment
of the potential legal interests at stake for those items, for example,
by differentiating the use and analysis of right of possession for
human remains and associated funerary objects from a right of
possession for cultural items. With respect to the Act, Congress
acknowledged that no general property interest exists either in human
remains or in the funerary objects associated with them in a burial.
This follows common law principles indicating that the next-of-kin of a
deceased individual have a quasi-property right of control over the
lawful disposition of the decedent's remains. For these reasons, the
proposed revision would require repatriation of associated funerary
objects whenever the repatriation of human remains is required. Such an
action, based on this guidance from Congress, would not result in a
taking of property within the meaning of the Fifth Amendment of the
United States Constitution.
3. Establish a Step-By-Step Process for Repatriation
The Department proposes to clarify the requisite steps for
repatriation of human remains and associated funerary objects by
establishing a step-by-step process with corresponding deadlines. Table
15 shows the name of each step and a shortened version of the deadline
in the proposed revisions.
Table 15: Step-by-Step Process for Repatriation
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Compile an itemized list of Before deadline in Step 4.
human remains and associated funerary
objects.
Step 2--Initiate consultation.......... Before deadline in Step 4.
Step 3--Consult with requesting parties 10 days after a request,
propose a timeline for
consultation.
Step 4--Complete/update an inventory... 2 years for a new collection/2
years after effective date for
update.
Step 5--Submit a notice of inventory 6 months after Step 4.
completion.
Step 6--Receive and consider a request Any time after notice
for repatriation. publication.
Step 7--Respond to a request for 30 days after Step 6.
repatriation.
Step 8--Repatriation of the human 90 days after Step 7.
remains and associated funerary
objects.
------------------------------------------------------------------------
The intent of these proposed revisions is to correct inaccuracies
and ambiguities in the existing regulations by using a clear, easy to
follow, step-by-step process, and ensures a timely resolution of any
requests for repatriation. For example, the proposed revisions would
clarify, consistent with the Act, that invitations to consult are
required before completing an inventory. In the existing regulations at
Sec. 10.9(b)(2), consultation is initiated ``as early as possible, no
later in the inventory process than the time at which investigation
into the cultural affiliation . . . is being conducted.''
The proposed revision would also directly address a required step
that lacks explanation or deadlines in the existing regulations. The
Department proposes in Step 7 to require a museum or Federal agency to
respond no later than 30 days after receiving a request for
repatriation. The Department also proposes three specific options for
the response, summarized as follows:
(1) Accept the request and agree to the repatriation.
(2) Reject the request, explain why, and ask for more information.
(3) Determine the most appropriate requestor among competing
requests.
4. Update Deadlines, Establish New Timelines, and Clarify Procedures
To update deadlines for completing an inventory, the proposed
revisions integrate all the deadlines in Step 4 (see proposed Sec.
10.10(d), Table 1 to Sec. 10.10). The proposed revisions would
identify the past required deadlines for completing an inventory (i.e.,
November 16, 1995). The Act does not clearly indicate when museums or
Federal agencies must complete an inventory after the statutory
deadline for reporting. The existing regulations at Sec. 10.13
provided these requirements for newly acquired or newly regulated
holdings or collections beginning in 2007. The proposed revisions use
the same deadlines as the existing regulations.
To establish new timelines, the proposed revisions would require in
Step 2 a written request to consult. This new requirement for a written
request to consult (which can include email) is necessary to then
require a museum or Federal agency to respond to the request within 10
days. In this same subparagraph, the proposed revisions require
requests to consult be submitted prior to a notice publication. This
requirement ensures the repatriation process moves forward by certain
deadlines in later steps. After publication of a notice, any party,
even if they have not consulted, can make a request for repatriation as
a competing request (see proposed Sec. 10.10(g)(2)).
To clarify procedures, the proposed revisions would require in Step
6 that any party wishing to make a request for repatriation must do so
in writing. In the existing regulations at Sec. Sec. 10.9, 10.10, and
10.11, there are references to making requests for repatriation, but
not until the very end of the process under notification in the
existing regulations at Sec. 10.10(b)(2) is it clear that such a
request must be in writing. The Department is specifically seeking
input during public comment on the deadlines for responding to a
request for repatriation and sending a repatriation statement.
5. Require That Consultation Seek Consensus
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that consultation seek consensus, to the
maximum extent possible. In addition, a record of consultation must
include the effort made to seek consensus or describe efforts to
identify a mutually agreeable alternative. For any determination
considered during the
[[Page 63228]]
consultation process, the consultation record must note the
concurrence, disagreement, or nonresponse of the requesting parties.
These requirements are used throughout the proposed regulations
whenever consultation with requesting parties is required.
6. Require Inventory Determinations and Updates
The proposed revisions would require that an inventory include
specific determinations for human remains and associated funerary
objects. In the existing regulations at Sec. 10.9(d), two separate
lists of human remains and associated funerary objects comprise the
inventory: (1) those with cultural affiliation and (2) those with no
cultural affiliation. The Department proposes to revise this
requirement to require, for each entry in the itemized list of human
remains and associated funerary objects, a determination of one or more
of the following:
(1) There is a known lineal descendant;
(2) There is a connection between the human remains and associated
funerary objects and an Indian Tribe or NHO through cultural
affiliation;
(3) There is a connection between the human remains and associated
funerary objects and an Indian Tribe or NHO through geographical
affiliation; or
(4) There is no connection between the human remains and associated
funerary objects and any Indian Tribe or NHO.
The Department proposes to require museums and Federal agencies
update an inventory for any human remains and associated funerary
objects previously included in an inventory but not published in a
notice of inventory completion by the effective date of the final rule.
To update an inventory, a museum or Federal agency would be required to
initiate consultation, consult with requesting parties, and determine
if there is a connection between the human remains and associated
funerary objects and an Indian Tribe or NHO through cultural or
geographical affiliation. The updated inventory would be sent to all
identified consulting parties and the Manager, National NAGPRA Program,
no later than 2 years after the effective date of the final rule. Any
museum may request an extension to update its inventory. Consistent
with the Act (25 U.S.C. 3003(c)) and the existing regulations at Sec.
10.9(f), only museums may request extension to update an inventory.
Federal agencies may not request extensions.
7. Protect Sensitive Information and Disclose Hazardous Substances
The Department proposes to remove the existing regulations at Sec.
10.9(b)(4)(iii) because it requires Indian Tribes and NHOs to provide
information about the kinds of objects they consider to be funerary
objects. This kind of information is often very sensitive and providing
it in writing or in the absence of qualified persons within the Indian
Tribe or NHO might be inappropriate. The proposed language would still
provide for an exchange of information about the types of objects that
might be funerary objects but would do so in a way to allow for
sensitive information to be protected.
In the existing regulations at Sec. 10.10(e), museums and Federal
agencies must inform Indian Tribes and NHOs about any potentially
hazardous substances used to treat human remains or funerary objects
only after repatriation has occurred. The proposed revisions would
require a museum or Federal agency to disclose information about the
presence of any potentially hazardous substances first in the itemized
list (see proposed Sec. 10.10(a)(6)) and second in the notice of
inventory completion (see proposed Sec. 10.10(e)(2)(vii)).
8. Clarify Requirements for Notices
The proposed revisions clearly outline informational requirements
for a Federal Register notice and reduce the information required in
the existing regulations at Sec. 10.9(e)(2). To protect potentially
sensitive information, the only location information that would be
required is the county and State where the human remains and associated
funerary objects were removed, if known. To facilitate requests for
repatriation, any lineal descendant or Indian Tribe or NHO with
cultural or geographical affiliation would be identified in the notice.
The notice would require only a brief abstract of the information used
to identify the lineal descendant or Indian Tribe or NHO with cultural
or geographical affiliation.
In enumerating the associated funerary objects in a notice, museums
and Federal agencies would be encouraged to count in a way that reduces
the chances of having to issue a correction notice. For example,
identifying 3 lots of shell beads means that no matter the exact number
of beads present, the count would stand, whereas identifying exactly
1,960 shell beads in a notice would mean that if additional (or fewer)
beads were located before repatriation occurs, a correction notice
would be required because the number of objects would have changed.
9. Written Repatriation Statement
The Department proposes to require a new document to complete the
repatriation of human remains and associated funerary objects to a
requestor. A written repatriation statement would be sent to and would
identify all requestors in the case of joint requests. In accordance
with the recommendation by the Government Accountability Office in a
2010 report on the implementation of the Act, a copy of the
repatriation statement would also be sent to the Manager, National
NAGPRA Program.
10. Transfer or Reinterment of Human Remains and Associated Funerary
Objects
The Department proposes a new process for transfer or reinterment
of human remains and associated funerary objects. This provision would
apply in limited circumstances where there is no connection between the
human remains and associated funerary objects and any Indian Tribe or
NHO. Under such circumstances, a museum or Federal agency would have
the discretion to agree to transfer the human remains and associated
funerary objects to an Indian Tribe, NHO, or Indian group, or to
reinter the human remains and associated funerary objects. In the
existing regulations at Sec. 10.10(g)(2)(ii), this same process is
available to museums and Federal agencies but requires a recommendation
from the Review Committee and the concurrence of the Secretary. The new
provision would require publication of a notice and a repatriation
statement but would eliminate the costly and burdensome process of
making a request to the Review Committee.
Table 16 shows how the Department proposes to reorganize the
existing regulatory requirements for an inventory of human remains and
associated funerary object.
[[Page 63229]]
Table 16--Cross-Reference of Existing Provisions to Proposed Sec. 10.10
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.9(c)...................... Required Information.... 10.10(a)..................... Step 1: Compile an
itemized list of human
remains . . .
10.10(e)..................... . . . inform recipients (6) The presence of any
of repatriation . . . potentially hazardous
treatment with substances . . .
potentially hazardous
substances.
10.9(b)...................... Consultation............ 10.10(b)..................... Step 2: Initiate
(1) Consulting parties.. consultation.
(2) Initiation of (1) Consulting parties
consultation.. are . . .
(3) Provision of (2) An invitation to
information.. consult must . . .
New..................... (3) Any consulting party
. . . must . . .
(4) . . . identifies a
new consulting party .
. .
10.13(c)..................... New Indian Tribes....... (ii) . . . after the
addition of a Tribal
entity to the list of
federally recognized
Indian Tribes . . .
10.9(b)...................... (4) Requests for 10.10(c)..................... Step 3: Consult with
information. requesting parties.
(1) . . . a museum or
Federal agency must ask
for the following
information . . .
New..................... (2) The consultation
process must . . .
(3) The museum or
Federal agency must
prepare a record of
consultation . . .
10.9(e)...................... (5) . . . upon request, (4) A museum or Federal
additional agency must provide
documentation . . .. access to the
additional information
. . .
10.9(d)...................... Documents. Two separate 10.10(d)..................... Step 4: Complete an
documents comprise the inventory of human
inventory: remains . . .
(1) An inventory must
include:
(1) a listing of (iii) For each entry . .
culturally affiliated . . a determination of
. .. one or more . . .
(A) . . . a known lineal
descendant,
(B) . . . through
cultural affiliation .
. .
(2) a listing of (C) . . . through
culturally geographical
unidentifiable . . .. affiliation . . .
(D) There is no
connection . . .
10.9(c)...................... (4) A summary of the (iv) An abstract of the
evidence, including information supporting
consultation . . .. the determination . . .
10.13(b)..................... (1) New holdings or 10.10(d)..................... (2) After [effective
collections. date of final rule], .
. . must submit an
inventory . . .
10.13(d)..................... New Federal funds .............................
10.9(f)...................... Completion.............. (3) Prior to [effective
date of final rule] . .
. must have submitted
an inventory . . .
10.11(b)..................... Consultation............ (4) No later than [2
10.11(c)..................... Disposition of years after the
culturally effective date of final
unidentifiable human rule], for any . . .
remains and associated listed in an inventory
funerary objects.. but not published in a
(1) . . . must offer to notice of inventory
transfer control . . .. completion prior to
[effective date of
final rule] . . .
submit an updated
inventory . . .
10.9(f)...................... Completion.............. (5) Any museum may
request an extension to
complete or update its
inventory . . .
10.13(b)..................... (3) Previously prepared (6) After [effective
summary or inventory . date of final rule] . .
. .. . acquires possession
or control of human
remains . . .
10.9(e)...................... Notification............ 10.10(e)..................... Step 5: Submit a notice
10.11(d)..................... Notification............ of inventory
completion.
10.10(e)..................... . . . treatment with (2) (vii) . . . the
potentially hazardous presence of any
substances. potentially hazardous
10.13(b)..................... (2) Additional pieces or (4) If the number . . .
fragments . . .. changes . . .
10.13(e)..................... Amendment of previous
decision.
New..................... 10.10(f)..................... Step 6: Receive and
consider a request for
repatriation.
(1) A request for
repatriation . . . must
be received . . .
(2) Requests from two or
more . . .
10.10(b)..................... (1) Criteria............ (3) A request for
repatriation must
satisfy . . .
New..................... 10.10(g)..................... Step 7: Respond to a
request for
repatriation.
10.10(b)..................... (2) Notification........ 10.10(h)..................... Step 8: Repatriation of
the human remains and
associated funerary
objects.
10.10(d)..................... Place and manner of
repatriation.
10.10(f)..................... Record of repatriation.
10.15(d)..................... Savings provisions.
10.10(c)..................... (2) Circumstances where 10.10(i)..................... Evaluating competing
there are multiple requests for
requests for repatriation.
repatriation . . ..
10.10(c)..................... Exceptions.............. 10.10(j)..................... Stay of repatriation.
10.11(c)..................... (5) The exceptions
listed at Sec.
10.10(c) apply . . ..
10.15(b)..................... Failure to claim where 10.10(k)..................... Transfer or reinter
no repatriation has human remains and
occurred. [Reserved]. associated funerary
objects.
10.10(g)..................... (2)(ii) Recommend to the
Secretary specific
actions . . .
10.9(b)...................... (4) (iii) kinds of ............................. Removed.
cultural items . . ..
10.9(c)...................... (1) Accession and
catalogue entries . . .
[[Page 63230]]
(3) A description . . .
including dimensions,
materials . . .
10.9(e)...................... (6) This paragraph
applies when a the
[sic] museum . . .
10.10(g)..................... Culturally
unidentifiable human
remains.
10.11(a)..................... General.................
10.11(c)..................... (2) If none of the
Indian Tribes or NHOs
agree to accept . . .
(3) The Secretary may
make a recommendation .
. .
(4) . . . may also
transfer control of
funerary objects . . .
(6) Any disposition of
human remains from
Indian lands . . .
10.11(d)..................... (2) Within 30 days . . .
Manager, National
NAGPRA . . .
----------------------------------------------------------------------------------------------------------------
L. Section 10.11 Civil Penalties
This section of the proposed rule would implement the requirements
of the Act regarding the process for the Secretary to assess civil
penalties against any museum that fails to comply with the requirements
of the Act (25 U.S.C. 3007). The Department proposes several revisions
to the existing regulations at Sec. 10.12 to clarify and streamline
the process for assessing civil penalties. As noted in the proposed
rule, Federal agencies are not subject to the assessment of civil
penalties. Federal law does include, however, ways to allege that a
Federal agency has failed to comply with the requirements of the Act or
the regulations (or any other Federal law or regulation). The most
broadly applicable way to allege that a Federal agency has failed to
comply is to send an allegation to the head of the appropriate Federal
agency or to the Federal agency's Office of the Inspector General.
Assuming that the alleged failure to comply is a final agency action
(see proposed Sec. 10.1(i)), the failure to comply could also be the
subject of a lawsuit under the Administrative Procedure Act (5 U.S.C.
704).
1. Broaden the Options for a Failure To Comply
The Department proposes to remove from the existing regulations at
Sec. 10.12(b) the definition of ``failure to comply.'' Consistent with
the Act, the proposed revisions would provide that a museum that fails
to comply with any provision of the Act or Subpart C of the regulations
has failed to comply. As under the existing regulations, each instance
of failure to comply would constitute a separate violation. The
proposed revisions include what factors would be relevant for
determining the number of separate violations.
For example, if a museum fails to include information regarding the
known presence of a potentially hazardous substance used to treat the
human remains or associated funerary objects in an itemized list, the
number of separate violations committed by the museum may be calculated
by determining the number of lineal descendants, Indian Tribes, or NHOs
named in an allegation and determined to be aggrieved by this failure
to comply. Alternatively, if a museum completes the repatriation of
human remains and associated funerary objects without submitting a
notice of inventory completion, the number of separate violations may
be calculated by determining the number of human remains and associated
funerary objects involved in this failure to comply.
2. Allowing for a Single Hearing To Contest
The Department proposes to consolidate the dual hearing process in
the existing regulations--which involve an opportunity to contest both
a substantiated failure to comply and a penalty assessment in separate
hearings--into one single hearing. The bifurcated hearing process
adopted in 2003 (68 FR 16354, April 3, 2003) is not legally required.
The Act uses identical language (25 U.S.C. 3007(a)) to the
Administrative Procedure Act (APA) (5 U.S.C. 554(a)). This reflects
Congressional intent that civil penalties be adjudicated under similar
procedural requirements to the APA and not a unique approach. Numerous
government agencies have complied with Section 554(a) by conducting
single hearing adjudications, which have withstood legal challenges for
procedural due process. Not only does the single hearing process
satisfy the Administrative Procedure Act's identical procedural
requirements (5 U.S.C. 554(a)), but it would also provide greater
efficiencies for all parties and quicker resolution of cases.
3. Calculation of Base Penalty Amount
The Department proposes to change the calculation of the base
penalty amount for each instance of failure to comply. Under the
existing regulations, the base penalty amount for each separate
violation is calculated as the lesser of two amounts: 0.25 percent of
the museum's annual budget or $7,475 (adjusted annually for inflation
under the Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015 (Pub. L. 114-74)). The proposed revision would require that
the penalty amount be calculated using only $7,475 (adjusted annually
for inflation) as the base penalty amount.
The Act, the existing regulations, and the proposed revisions
permit the Secretary to increase the penalty amount after considering
different factors, including an aggrieved party's economic and non-
economic damages. For example, economic damages could be an Indian
Tribe's expenditures for an attorney or other staff to prepare, review,
and file documents to compel the museum to comply. For another example,
non-economic damages could be a traditional religious leader's
inability to conduct a certain ceremony because of the museum's failure
to comply.
In response to consultation with Indian Tribes and NHOs, the
Department proposes to include an additional factor for increasing the
penalty amount based on ceremonial or cultural value of the human
remains or cultural items involved, as identified by any aggrieved
lineal descendant, Indian Tribe, or NHO. The Secretary also may reduce
the penalty amount if the
[[Page 63231]]
museum agrees to mitigate the violation. For example, mitigation could
be a museum's payment to an NHO for the cost of a ceremony associated
with the repatriation of human remains or cultural items, or the value
of land that a museum provides for the reinterment of human remains and
associated funerary objects. Another appropriate factor that may
justify reducing a penalty would include the museum, through its chief
executive, self-reporting the museum's failure to comply, by sending a
written report of the violation to the Manager, National NAGPRA
Program.
4. Options Upon Receipt of Notice
The proposed revisions describe the actions a museum may take upon
receipt of a notice of failure to comply and include the option for a
museum to file a petition for relief in the existing regulations at
Sec. 10.12(i)(3). The proposed revisions also describe the actions a
museum may take upon receipt of a notice of assessment and include the
option for a museum to request a hearing to contest the failure to
comply or the penalty assessment in the existing regulations at
Sec. Sec. 10.12(f)(2) and (i)(4).
5. Exhaustion of Administrative Remedies
The proposed revisions would require a museum to exhaust all
administrative remedies under this section prior to seeking judicial
review of the final administrative decision of the Secretary. This
section would also make clear that no decision would be considered to
constitute final agency action subject to judicial review during the
time the decision is subject to review under this section of the
regulations. The proposed revisions contain provisions that would allow
for the assessment of an additional daily penalty amount of $1,496 per
day, subject to annual adjustments based on inflation, and would
include the Department's options of instituting legal action to recover
penalties and pursuing other available legal or administrative
remedies.
Table 17 shows how the Department proposes to reorganize the
existing regulatory requirements for the assessment of civil penalties
on any museum that fails to comply with the requirements of the Act.
Table 17--Cross-Reference of Existing Provisions to Proposed Sec. 10.11
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.12(c)..................... How to notify the 10.11(a)..................... File an allegation.
Secretary . . ..
10.12(d)..................... Steps the Secretary may 10.11(b)..................... Respond to an
take . . .. allegation.
10.12(g)..................... How the Secretary 10.11(c)..................... Calculate the penalty
determines the penalty amount.
amount..
10.12(e)..................... How the Secretary 10.11(d)..................... Notify a museum of a
notifies . . .. failure to comply.
10.12(f)..................... Actions you may take 10.11(e)..................... Respond to a notice of
upon receipt of a failure to comply.
notice . . ..
(1) Seek informal
discussions . . ..
10.12(i)..................... Actions that you may
take upon receipt of a
notice . . .
(1) Accept in writing .
. ..
(3) File a petition for
relief..
10.12(h)..................... How the Secretary 10.11(f)..................... Assess the civil
assesses the penalty . penalty.
. ..
10.12(h)..................... (3) The Secretary 10.11(g)..................... Notify the museum of an
notifies you in writing assessment.
. . ..
10.12(i)..................... Actions that you may 10.11(h)..................... Respond to an
take upon receipt of a assessment.
notice . . .
(1) Accept in writing or
by payment of the
proposed penalty . . ..
10.12(f)..................... (2) Request a hearing . (2) File a written
. .. request for a hearing
to contest
10.12(i)..................... (4) Request a hearing .
. ..
10.12(j)..................... How you request a 10.11(i)..................... Request a hearing.
hearing. 10.11(j)..................... Hearings.
10.12(k)..................... How you appeal a 10.11(k)..................... Appealing the
decision.. administrative law
judge's decision.
10.12(l)..................... The final administrative 10.11(l)..................... Exhaustion of
decision. administrative
remedies.
10.12(g)..................... (3) An additional 10.11(m)..................... Failure to pay penalty
penalty of up to. or continuing failure
to comply . . .
10.12(m)..................... (2) If you fail to pay
the penalty
10.12(m)..................... (3) Assessing a penalty 10.11(n)..................... Additional remedies.
. . ..
10.12(a)..................... The Secretary's Removed.
authority . . ..
10.12(b)..................... Definition of failure to
comply
10.12(f)..................... (3) Take no action and
await . . .
10.12(i)..................... (2) Seek informal
discussion with the
Secretary (on the
assessment).
10.12(m)..................... (1) If you are assessed
a civil penalty, you
have . . .
----------------------------------------------------------------------------------------------------------------
M. Section 10.12 Review Committee
This section of the proposed rule would implement the requirements
of the Act regarding the Federal Advisory Review Committee (25 U.S.C.
3006). The Department proposes to clarify the existing provisions at
Sec. Sec. 10.16 and 10.17 and add new provisions to clarify the
responsibilities of the Review Committee.
1. Deadline for Publishing Findings or Recommendations
In response to consultation with Indian Tribes and NHOs, the
Department proposes to add a requirement that recommendations made by
the Review Committee will be published in the Federal Register within
90 days of the making the finding or recommendation. This is the same
requirement under the Federal Advisory Committee Act (FACA) for
completing minutes of the Review Committee meeting.
2. Add Requirements for Nominations to the Review Committee
The Department proposes to add new provisions to clarify which
entities may make nominations to the Secretary.
[[Page 63232]]
Under the Act (25 U.S.C. 3006(b)(1)(A)), Congress explicitly identified
who is eligible to nominate a person to three specified slots on the
Review Committee and who is eligible to serve in two of those slots.
Only Indian Tribes, NHOs, and ``traditional Native American religious
leaders'' are eligible to be the nominators, and only ``traditional
Indian religious leaders'' are eligible to serve in two of the three
specified slots. When Congress expressly identified traditional Indian
religious leaders as being eligible to serve in two of the three
specified slots, it excluded traditional Native Hawaiian religious
leaders.
Under the Act (25 U.S.C. 3006(b)(1)(B)), Congress did not provide
any additional requirements for nominators beyond ``national museum
organizations and scientific organizations. The proposed addition seeks
to clarify these requirements by defining what national museum
organizations and national scientific organizations are, as recommended
by the Government Accountability Office in a 2010 report on the
implementation of the Act. As many national organizations have an
abundance of subsidiary organizations, the proposed addition requires
nominations be submitted only through a parent organization.
3. Add Definitions and Provisions for Findings of Fact or Disputes
The proposed revisions describe the finding of fact or dispute
function of the Review Committee and remove the references in the
existing regulations to informal and formal dispute resolution. The
proposed definition of ``an affected party'' was drawn from the Review
Committee's Dispute Procedures. The proposed revisions seek to clarify
the distinction between findings of fact and disputes as well as to
provide the options for the Review Committee's recommendation.
Table 18 shows how the Department proposes to reorganize the
existing regulatory requirements for the Review Committee.
Table 18--Cross-Reference of Existing Provisions to Proposed Sec. 10.12
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.16(b)............................. Recommendations........ 10.12(a)............... Recommendations.
New.................... 10.12(b)............... Nominations.
10.17................................ Dispute resolutions.... 10.12(c)............... Findings of fact or
disputes on
repatriation.
----------------------------------------------------------------------------------------------------------------
VI. Public Engagement and Request for Comments
A. Public Engagement
The Department will conduct consultation sessions with Indian
Tribes virtually during the comment period. The Department will
announce the exact meeting dates and times of the consultation
sessions, once scheduled, on https://www.doi.gov/priorities/tribal-consultation/upcoming-tribal-consultations and by letter to Tribal
leaders. The Department will also conduct consultation sessions with
the Native Hawaiian Community virtually during the comment period. The
Department of the Interior's Office of Native Hawaiian Relations will
invite the Native Hawaiian Community to participate and provide the
exact meeting dates and times of the consultation sessions, once
scheduled. Upon request, the Department will consider additional
consultation sessions with Indian Tribes or the Native Hawaiian
Community to ensure sufficient opportunity to engage and comment in
advance of a final rule and to respond to the previous requests
received for additional consultation sessions.
One goal of the proposed regulatory revisions is to provide
specific timelines for museums and Federal agencies to facilitate the
required repatriation. The Department does not intend to impose
timeframes on lineal descendants, Indian Tribes, or NHOs to request
disposition or repatriation. The Department requests feedback from
Indian Tribes and NHOs on whether this goal has been achieved and how
to further allow Indian Tribes and NHOs flexibility and discretion with
regard to the proposed regulatory revisions and, in particular, the new
responsibilities under Subpart B and the proposed deadlines under
Subpart C.
The Department will also proactively contact and consult with a
subset of smaller Indian Tribes and NHOs to ensure that they anticipate
sufficient opportunity under the proposed regulatory changes in Subpart
C to submit requests for repatriation of the human remains or cultural
items anticipated to become available within three years of a final
rule. Specifically, Indian Tribes and NHOs are currently responsible
for submitting a request to consult, consulting, submitting a request
for repatriation, and, in some cases, requesting transfer of human
remains or cultural items. Under the proposed regulations, Indian
Tribes and NHOs have the same responsibilities, but are likely to
increase the number of annual responses for each responsibility,
especially in submitting requests for repatriation. As stated in Sec.
10.1(g), failure to make a claim for disposition or a request for
repatriation of human remains or cultural items is deemed an
irrevocable waiver of any right to make a claim or a request.
The Department will also proactively contact and consult with
Indian Tribes and NHOs to ensure that they anticipate sufficient
opportunity under the proposed regulatory changes to take on new
responsibilities under Subpart B. Specifically, Indian Tribes and NHOs
are currently responsible for responding to a discovery on their Tribal
lands, consenting to an excavation on Tribal lands, and submitting a
claim for disposition on Federal lands. Under the proposed regulations,
Indian Tribes and NHOs will also be responsible for delegating or
accepting responsibilities on Tribal lands, submitting a request to
consult on Federal lands, sending or completing a disposition statement
on Tribal lands, and requesting transfer of unclaimed human remains or
cultural items on Federal lands.
Another goal of the proposed regulatory revisions is to improve
efficiency in meeting the requirements of the systematic process for
repatriation under Subpart C. The Department requests feedback from
Indian Tribes, NHOs, museums, and Federal agencies on whether this goal
has been achieved and how to ensure the step-by-step process for
repatriation is streamlined and simplified by the proposed regulatory
revisions under Subpart C.
The Department will proactively contact and engage with a subset of
affected entities, which will include Indian Tribes, NHOs, museums, and
Federal agencies, during the comment period to understand if the
proposed regulatory revisions could impact these entities' capacity and
resources. Under
[[Page 63233]]
the proposed regulatory revisions, museums and Federal agencies would
be required to update inventories for any human remains and associated
funerary objects previously included in an inventory but not published
in a notice of inventory completion within two years of a final rule.
Based on information available to it, a museum or Federal agency would
be required to initiate consultation, consult with requesting parties,
and determine if there is a known lineal descendant or a cultural or
geographical affiliation. Museums would also be able to request
extensions to update an inventory if it has made a good faith effort
but will be unable to do so by the appropriate deadline. Indian Tribes
and NHOs would be required to submit requests to consult and engage in
consultation. Museums and Federal agencies would also be required to
publish notices of inventory completion within six months of updating
the inventory.
In particular, the Department anticipates that the human remains of
117,000 Native American individuals currently unable to be repatriated
would become available for repatriation within two and a half years of
the effective date of a final rule, a substantial increase from the
84,000 individuals repatriated in the almost 32 years since the passage
of NAGPRA. At this time, the Department is not aware of any capacity
and resource limitations that would prevent these entities from
completing the new requirement to update inventories, submit requests
to consult, engage in consultation, and publish notices following the
effective date of a final rule.
B. Requests for Comments
In addition to the public engagement and outreach discussed above,
the Department solicits comment from the public on the entirety of this
proposed rule. The Department is interested in receiving comments from
the public on the cost-benefit and regulatory flexibility analyses,
including the conclusions about the expected costs of complying with
the proposed rule. In particular, the Department is interested in
responses to the following questions:
a. For each regulatory requirement, does the estimated time per
response seem reasonable? If not, what range of time per response would
be more reasonable for a specific regulatory requirement? For example,
Federal agencies and museums are required to initiate and conduct
consultation under both the existing regulations and the proposed
regulations. We estimate the time per response ranges from ten hours to
300 hours, depending on the size and complexity of the consultation,
for a median of 155 hours.
b. For Subpart B, is the estimated number of annual discoveries on
Federal or Tribal lands reasonable? We used the average number of
notices on Federal lands over the last three years, but we have no data
on the number of discoveries on Tribal lands to inform this estimate.
c. For Subpart C, is the estimated number of museums and Federal
agencies required to update inventory data under the proposed
regulations reasonable? We estimate 414 museums and 19 Federal agencies
will be required to update inventories within three years after
promulgation of a final rule. We estimate that 33% of those museums and
Federal agencies will submit inventory updates each year for three
years. We assume fewer inventory records will require less time to
update. We assume museums previously prepared and submitted inventories
in accordance with the existing regulations and an update to that
inventory requires less time than submission of a new inventory. We
estimate the time per response will range from less than one hour to
100 hours, depending on the size and complexity of the update, for a
median of 50.25 hours.
d. For Subpart C, many museums and Federal agencies update
inventories at their own discretion, going beyond what is required by
the Act and the existing regulations, which only requires use of
``information possessed by such museum or Federal agency'' (25 U.S.C.
3003(a)). Given the potential expense of more extensive studies not
required by the Act or the revised regulations, how should the
Department account for these costs in this rulemaking? We also request
public data about the potential costs of updating inventories under the
revised regulations.
e. For Subpart C, is the estimated number of museums required to
report on Federal holdings or collections reasonable? We estimate the
number of museums required to submit statements is 5% of all museums
that previously submitted information under the existing regulations.
f. Is the estimated number of competing claims for disposition or
competing requests for repatriation reasonable?
g. Using data on implementation since 2012, we estimate it will
take an additional 26 years to complete the consultation and
notification process for all 117,000 Native American human remains
currently pending in the existing regulatory framework. Is this 26-year
time horizon reasonable? Will the proposed regulatory requirements
result in a change in consultation activities per year, and if so, how
should the Department account for the change in costs to Indian Tribes
or NHOs for engaging in consultation?
C. Use of Received Feedback
The Department will use all received feedback to inform a final
rule and may make changes to a final rule based on received feedback
that is within the scope of this proposed rule.
VII. Compliance With Other Laws, Executive Orders and Department Policy
A. Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in OMB will review all significant regulatory
actions. OIRA has determined that this rule is a significant regulatory
action.
Executive Order 13563 reaffirms the principles of Executive 12866
while calling for improvements in the nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
rule in a manner consistent with these requirements.
B. Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government (Executive Order 13985)
This proposed rule is expected to advance racial equity in agency
actions and programs, in accordance with the Executive Order 13985.
C. Regulatory Flexibility Act
This rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). This certification is based on the cost-
benefit and regulatory flexibility analyses found in the report
entitled ``Benefit-Cost and Regulatory Flexibility Threshold Analyses:
Native American Graves Protection and Repatriation Act Regulations''
that may be viewed online at on https://www.regulations.gov.
[[Page 63234]]
D. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under the Small Business Regulatory
Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, local or tribal
government agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
E. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments, or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
F. Takings (Executive Order 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630. A takings
implication assessment is not required.
G. Federalism (Executive Order 13132)
Under the criteria in Section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. A federalism
summary impact statement is not required.
H. Civil Justice Reform (Executive Order 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of Sec. 3(a) requiring that all regulations
be reviewed to eliminate errors and ambiguity and be written to
minimize litigation; and
(b) Meets the criteria of Sec. 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
I. Consultation With Indian Tribes (Executive Order 13175 and
Department Policy)
The Department strives to strengthen its government-to-government
relationship with Indian Tribes through a commitment to consultation
with Indian Tribes and recognition of their right to self-governance
and tribal sovereignty. We have evaluated this rule under the
Department's consultation policy and under the criteria in Executive
Order 13175 and have identified direct Tribal implications.
Accordingly, we have developed this proposed rule after consulting with
federally recognized Indian Tribes as detailed in this preamble. In
addition, we developed this proposed rule in consultation with the
Native American Graves Protection and Repatriation Review Committee,
which includes members nominated by Indian Tribes.
J. Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.)
1. Overview
The Paperwork Reduction Act (PRA) provides that an agency may not
conduct or sponsor, and a person is not required to respond to, a
``collection of information,'' unless it displays a currently valid OMB
control number. Collections of information include any request or
requirement that persons obtain, maintain, retain, or report
information to an agency, or disclose information to a third party or
to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)).These proposed
regulations contains existing and new information collection
requirements that are subject to review by OMB under the PRA. OMB
previously reviewed and approved information collection related to 43
CFR part 10 and assigned the following OMB control number 1024-0144
(expires 4/30/2025).
The information collection activities in this proposed rule are
described below along with estimates of the annual burdens. These
activities, along with annual burden estimates, do not include
activities that are considered usual and customary industry practices.
Included in the burden estimates are the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing each
component of the proposed information collection requirements.
The Department of the Interior requests comment on any aspect of
this information collection, including:
a. Whether the collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information will have practical utility;
b. The accuracy of the estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
c. Ways to enhance the quality, utility, and clarity of the
information to be collected; and
d. How the agency might minimize the burden of the collection of
information on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of response.
2. Summary of Proposed Information Collection Requirements
Title of Collection: Native American Graves Protection and
Repatriation Regulations.
OMB Control Number: 1024-0144.
Form Number: None.
Type of Review: Revision of a currently approved collection.
Respondents/Affected Public: Any person, any affected party, lineal
descendants, Indian Tribes, Native Hawaiian organizations, and State
and local governments, universities, and museums, that receive Federal
funds and have possession or control of Native American human remains
and cultural items.
Respondent's Obligation: Mandatory, voluntary, and required to
obtain or retain a benefit.
Frequency of Collection: On occasion.
Total Estimated Number of Annual Responses: 2,212
Estimated Completion Time per Response: Varies from 1 hour to 300
hours depending on respondent and/or activity.
Total Estimated Number of Annual Burden Hours: 35,878.
Total Estimated Annual Non Hour Burden Cost: None.
Summary by Subpart of the Proposed Regulations
------------------------------------------------------------------------
Information
Subpart collections Respondents
------------------------------------------------------------------------
Subpart A--General.............. 0 None.
[[Page 63235]]
Subpart B--Protection of Human 1 Any person.
Remains or Cultural Items on 5 Indian Tribes or NHOs.
Federal or Tribal Lands.
Subpart C--Repatriation of Human 1 Any person.
Remains or Cultural Items by 1 Indian Tribes or NHOs.
Museums or Federal Agencies. 1 Lineal descendants.
16 Museums.
Subpart D--Review Committee..... 1 Any affected party.
------------------------------------------------------------------------
Subpart A--General does not contain any information collection
requirements subject to the PRA. References to written documents in
this Subpart refer to the specific information collection requirements
in the three subparts below.
Subpart B--Protection of Human Remains or Cultural Items on Federal
or Tribal Lands contains six information collection requirements
subject to the PRA. On Federal or Tribal lands, any person who knows or
has reason to know of the discovery of human remains or cultural items
must provide specified information to third parties. On Federal lands,
an Indian Tribe or NHO may submit a claim for disposition by disclosing
specified information to third parties. On Tribal lands, an Indian
Tribe or NHO must maintain specified records and in one instance,
disclose specified information to third parties.
Subpart C--Repatriation of Human Remains or Cultural Items by
Museums or Federal Agencies contains 19 information collection
requirements subject to the PRA. State and local governments,
universities, and museums that receive Federal funds and have
possession or control of Native American human remains, funerary
objects, sacred objects, or objects of cultural patrimony must submit
information to the Federal government, maintain specified records, and
disclose specified information to third parties. Lineal descendants,
Indian Tribes, or NHOs may submit a request for repatriation by
disclosing specified information to third parties. Any person alleging
a failure to comply may voluntarily submit information to the Federal
government. Museums may respond to a civil penalty action by submitting
information to the Federal government.
In the proposed regulations, Subpart D--Review Committee contains
one information collection requirements subject to the PRA. Any
affected party may voluntarily submit information to the Federal
government.
------------------------------------------------------------------------
Information collection requirement Proposed rule
------------------------------------------------------------------------
Proposed New Information Collection Requirements in Subpart B
------------------------------------------------------------------------
Report a discovery on Federal or Tribal lands Sec. 10.5(a)-(b)
Respond to a discovery....................... Sec. 10.5(c)(1) and
Sec. 10.5(e)
Consent to an excavation..................... Sec. 10.6(a)
Submit a claim for disposition............... Sec. 10.7(d)(3)
Delegate or accept responsibility on Tribal Sec. 10.5(c)(2)-(3);
land. Sec. 10.6(a)(2)-(3)
and Sec. 10.7(c)(2)-
(3)
Send or complete a disposition statement..... Sec. 10.7(b) and Sec.
10.7(c)
------------------------------------------------------------------------
Currently Approved Information Collections Requirements in Subpart C
------------------------------------------------------------------------
New Summary/Inventory (private and state or Sec. 10.9(a) and Sec.
local museums). 10.10(d)
Updated Summary/Inventory Data (private and Sec. 10.9(a) and Sec.
state or local museums). 10.10(d)
Notices for publication in the Federal Sec. 10.9(f) and Sec.
Register (private and state or local 10.10(e)
museums).
Initiate Consultation and Request Information Sec. 10.10(b)-(c)
(private and state or local museums)
(previously Notify Tribes).
Response to requests for information (state Removed
or local museums).
------------------------------------------------------------------------
Proposed New Information Collection Requirements in Subpart C
------------------------------------------------------------------------
Conduct consultation......................... Sec. 10.9(c) and Sec.
10.10(c)
Submit a request for repatriation............ Sec. 10.9(d) and Sec.
10.10(f)
Document physical transfer................... Sec. 10.9(g)(2) and
Sec. 10.10(h)(2)
File an allegation of failure to comply...... Sec. 10.11(a)
Respond to a civil penalty action............ Sec. 10.11(e), (h),
(i), and (k)
Submit statements describing holdings or Sec. 10.8(c)-(d)
collection.
Make a record of consultation................ Sec. 10.9(c)(3) and
Sec. 10.10(c)(3)
Respond to a request for repatriation........ Sec. 10.9(e) and Sec.
10.10(g)
Send a repatriation statement................ Sec. 10.9(g) and Sec.
10.10(h)
Evaluate competing requests and resolve stays Sec. 10.9(h)-(i) and
of repatriation. Sec. 10.10(i)-(j)
Transfer or reinter human remains and Sec. 10.10(k)
associated funerary objects.
------------------------------------------------------------------------
Proposed New Information Collection Requirements in Subpart D
------------------------------------------------------------------------
Request assistance of the Review Committee... Sec. 10.12(c)
------------------------------------------------------------------------
[[Page 63236]]
3. Information That Is Not an Information Collection Subject to the PRA
Lineal descendants, Indian Tribes, and Native Hawaiian
organizations may take certain actions that are not information
collections subject to the PRA. Written documents requesting to consult
are acknowledgements that entail no burden other than that necessary to
identify the respondent, the date, the respondent's address, and the
nature of the consultation.
Federal agencies and the Department of Hawaiian Home Lands (DHHL)
must take certain actions that are not information collections subject
to the PRA. The Hawaiian Homes Commission Act, 1920 (HHCA), 42 Stat.
108, is a cooperative federalism statute, a compound of interdependent
Federal and State law that establishes a Federal law framework but also
provides for implementation through State law (see 81 FR 29777 and
29787, May 13, 2016, 43 CFR 47 and 48, Land Exchange Procedures and
Procedures to Amend the Hawaiian Homes Commission Act, 1920). These
written documents are required by employees of the Federal government
or DHHL when acting within the scope of their employment.
Indian Tribes, Native Hawaiian organizations, and Indian groups
that are not federally recognized may take certain actions to request
transfer of human remains or cultural items that are not information
collections subject to the PRA. These actions impact fewer than ten
persons and occur less often than annually.
Indian Tribes, Native Hawaiian organizations, traditional religious
leaders, national museum organizations, and national scientific
organizations may take certain actions that are not information
collections subject to the PRA. These actions are generally solicited
through a notice in the Federal Register, impact fewer than ten
persons, and occur less often than annually.
4. Burden Estimates
The Department has identified 26 information collections in the
proposed regulations. In total, we estimate that we will receive,
annually, 2,212 responses totaling 35,878 annual hour burden. We
estimate the annual dollar value is $2,304,481 (rounded). We estimate
the frequency of response for each of the information collections is
once per year, but the number of respondents may not be the same as the
number of responses, depending on the type of information collected. In
our estimate, we have only used the number of responses to simplify our
estimate and remain consistent across the types of information
collected. For some information collections, the time per response
varies widely because of differences in activity, size, and complexity.
5. Written Comments or Additional Information
Written comments and suggestions on the information collection
requirements should be submitted by the date specified above in DATES
to https://www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function. Please provide a
copy of your comments to the NPS Information Collection Clearance
Officer (ADIR-ICCO), 12201 Sunrise Valley Drive, (MS-242) Reston, VA
20191 (mail); or [email protected] (email). Please include OMB
Control Number 1024-0144 in the subject line of your comments.
To request additional information about this ICR, contact Melanie
O'Brien, Manager, National NAGPRA Program by email at
melanie_o'[email protected], or by telephone at (202) 354-2204. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
You may also view the ICR at https://www.reginfo.gov/public/do/PRAMain.
K. National Environmental Policy Act (NEPA)
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 is not required
because the rule is covered by a categorical exclusion under 43 CFR
46.210(i): ``Policies, directives, regulations, and guidelines: that
are of an administrative, financial, legal, technical, or procedural
nature; or whose environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will later be
subject to the NEPA process, either collectively or case-by-case.'' We
have also determined that the rule does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 that would require
further analysis under the National Environmental Policy Act.
L. Effects on the Energy Supply (Executive Order 13211)
This rulemaking is not a significant energy action under the
definition in Executive Order 13211; the rule is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy, and the rule has not otherwise been designated by the
Administrator of OIRA as a significant energy action. A Statement of
Energy Effects in not required.
M. Clarity of This Rule
We are required by Executive Orders 12866 (Sec. 1(b)(12)) and
13563 (Sec. 1(a)), and by the Presidential Memorandum of June 1, 1998,
to write all rules in plain language. This means that each rule we
publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the proposed rule, your comments should be as
specific as possible. For example, you should tell us the numbers of
the sections or paragraphs that you find unclear, which sections or
sentences are too long, the sections where you feel lists or tables
would be useful, etc.
N. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you may
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
For access to the docket to read background documents or comments
received, go to https://www.regulations.gov and enter RIN 1024-AE19 in
the search box.
Drafting Information
This proposed rule was prepared by staff of the National NAGPRA
Program, National Park Service; Office of Regulations and Special Park
Uses, National Park Service; Office of Native Hawaiian Relations;
Office of Regulatory Affairs & Collaborative Action, Office of the
Assistant Secretary--Indian Affairs;
[[Page 63237]]
and Office of the Solicitor, Division of Parks and Wildlife and
Division of Indian Affairs, Department of the Interior. This proposed
rule was prepared in consultation with the Native American Graves
Protection and Repatriation Review Committee under the Act (25 U.S.C.
3006(c)(7)).
List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Alaska, Cemeteries,
Citizenship and naturalization, Colleges and universities, Hawaiian
Natives, Historic preservation, Human remains, Indians, Indians-claims,
Indians-law, Indians-lands, Museums, Penalties, Public lands, Reporting
and recordkeeping requirements, Treaties.
0
In consideration of the foregoing, the Department of the Interior
proposes to revise 43 CFR Part 10 as follows:
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
Subpart A--GENERAL
Sec.
10.1 Introduction.
10.2 Definitions for this part.
10.3 Cultural and geographical affiliation.
Subpart B--Protection of Human Remains or Cultural Items on Federal or
Tribal Lands
10.4 General.
10.5 Discovery.
10.6 Excavation.
10.7 Disposition.
Subpart C--REPATRIATION OF HUMAN REMAINS OR CULTURAL ITEMS BY MUSEUMS
OR FEDERAL AGENCIES
10.8 General.
10.9 Repatriation of unassociated funerary objects, sacred objects,
and objects of cultural patrimony.
10.10 Repatriation of human remains and associated funerary objects.
10.11 Civil penalties.
Subpart D--REVIEW COMMITTEE
10.12 Review Committee.
Authority: 25 U.S.C. 3001 et seq. and 25 U.S.C. 9.
Subpart A--General
Sec. 10.1 Introduction.
(a) Purpose. These regulations provide a systematic process for the
disposition and repatriation of Native American human remains, funerary
objects, sacred objects, and objects of cultural patrimony under the
Native American Graves Protection and Repatriation Act (Act) of
November 16, 1990. The Act recognized the rights of lineal descendants,
Indian Tribes, and Native Hawaiian organizations in Native American
human remains or cultural items subject to this part. Consistent with
the Act's express language and Congress's intent in enacting the
statute, these regulations require museums and Federal agencies to
complete timely dispositions and repatriations through consultation and
collaboration with lineal descendants, Indian Tribes, and Native
Hawaiian organizations. In implementing this systematic process,
museums and Federal agencies must defer to the customs, traditions, and
Native American traditional knowledge of lineal descendants, Indian
Tribes, and Native Hawaiian organizations.
(b) Applicability. These regulations pertain to Native American
human remains, funerary objects, sacred objects, and objects of
cultural patrimony and require certain actions to:
(1) Protect Human Remains or Cultural Items on Federal or Tribal
Lands in the event of a discovery or excavation after November 16,
1990; and
(2) Repatriate Human Remains or Cultural Items in the possession or
control of:
(i) Any Federal agency, regardless of the physical location of the
holding or collection; or
(ii) Any institution or State or local government agency (including
any institution of higher learning) within the United States that
receives Federal funds, regardless of the physical location of the
holding or collection.
(c) Accountability. These regulations are applicable to and binding
on all museums and Federal agencies for implementing the systematic
process for the disposition and repatriation of human remains or
cultural items under this part.
(d) Duty of care. Prior to disposition or repatriation, these
regulations require a museum or Federal agency to care for, safeguard,
and preserve all human remains or cultural items in its custody or in
its possession or control. Upon request of a lineal descendant, Indian
Tribe, or Native Hawaiian organization, a museum or Federal agency
must, to the maximum extent possible:
(1) Consult, collaborate, and obtain consent on the appropriate
treatment, care, or handling of human remains or cultural items;
(2) Incorporate and accommodate customs, traditions, and Native
American traditional knowledge in practices or treatments of human
remains or cultural items; and
(3) Limit access to and research on human remains or cultural
items.
(e) Delivery of written documents. These regulations require
written documents to be sent or delivered, such as requests for
repatriation, claims for disposition, invitations or requests to
consult, or notices for publication.
(1) The written documents must be sent by:
(i) Email, with proof of receipt,
(ii) Personal delivery with proof of delivery date,
(iii) Private delivery service with proof of date sent, or
(iv) Certified mail.
(2) Communication to the Manager, National NAGPRA Program, should
be sent electronically to [email protected]. If electronic submission
is not possible, physical delivery may be sent to 1849 C Street NW,
Mail Stop 7360, Washington, DC 20240. If either of these addresses
change, a notice with the new address must be published in the Federal
Register within 5 days of the change.
(f) Deadlines and timelines. These regulations require certain
actions be taken by a specific date. Unless stated otherwise in these
regulations:
(1) Days mean business days, i.e., Monday through Friday. For any
action by an Indian Tribe, Native Hawaiian organization, Federal
agency, or the Manager, National NAGPRA Program, business days do not
include days during which the Federal government is closed because of a
Federal holiday, lapse in appropriations, or other reasons.
(2) Written documents are deemed timely based on the date sent, not
the date received.
(3) Parties sending or receiving written documents under these
regulations must document the date sent or date received, as
appropriate, when these regulations require those parties to act based
on the date sent or date received.
(g) Failure to make a claim or a request. Failure to make a claim
for disposition or a request for repatriation before the disposition,
repatriation, transfer, or reinterment of human remains or cultural
items under this part is deemed an irrevocable waiver of any right to
make a claim or a request for the human remains or cultural items once
the disposition, repatriation, transfer, or reinterment of the human
remains or cultural items has occurred.
(h) Judicial jurisdiction. The United States district courts have
jurisdiction over any action by any person alleging a violation of the
Act or this part.
(i) Final agency action. For purposes of the Administrative
Procedure Act (5 U.S.C. 704), any of the following actions by a Federal
agency constitutes a final agency action under this part:
(1) A final determination making the Act or this part inapplicable;
[[Page 63238]]
(2) A final denial of a claim for disposition or a request for
repatriation; and
(3) A final disposition or repatriation determination.
(j) Information collection. The information collection requirements
contained in this part have been approved by the Office of Management
and Budget under 44 U.S.C. 3501 et seq. and assigned control number
1024-0144. A Federal agency may not conduct or sponsor, and you are not
required to respond to, the collection of information under this part
unless the Federal agency provides a currently valid OMB control
number.
Sec. 10.2 Definitions for this part.
Act means the Native American Graves Protection and Repatriation
Act.
Acknowledged aboriginal land means land whose occupation by an
Indian Tribe has been recognized in any of the following sources:
(1) A treaty sent by the President to the United States Senate for
ratification;
(2) An Act passed by Congress;
(3) An Executive Order;
(4) A treaty between a foreign or colonial government and an Indian
Tribe signed before the establishment of the United States Government
or prior to the land becoming incorporated in the United States;
(5) Another Federal document or foreign government document
providing information that reasonably shows aboriginal occupation; or
(6) Intertribal treaties, diplomatic agreements, and bilateral
accords between and among Indian Tribes.
Adjudicated aboriginal land means land whose occupation by an
Indian Tribe has been recognized by a final judgment of the Indian
Claims Commission or the United States Court of Claims. A final
judgment also includes a judgment concerning a settlement as long as
that judgment or settlement either explicitly recognizes certain land
as the aboriginal land of an Indian Tribe or adopts findings of fact
that do so.
Affiliation means a connection between human remains or cultural
items and an Indian Tribe or Native Hawaiian organization.
Ahupua`a (singular and plural) means a land division in Hawai`i
usually extending from the uplands to the sea which traditionally was,
and in some cases remains, self-sustaining or whose occupants were or
are permitted access to or trade resources with the neighboring
ahupua`a.
Appropriate official means any representative authorized by a
delegation of authority within an Indian Tribe, Native Hawaiian
organization, Federal agency, or Department of Hawaiian Home Lands
(DHHL) that has responsibility for human remains or cultural items on
Federal or Tribal lands.
ARPA means the Archaeological Resources Protection Act of 1979, as
amended (16 U.S.C. 470aa-mm) and the relevant Federal agency
regulations implementing that statute.
ARPA Indian lands means lands of Indian Tribes, or individual
Indians, which are either held in trust by the United States Government
or subject to a restriction against alienation imposed by the United
States Government, except for any subsurface interests in lands not
owned or controlled by an Indian Tribe or an individual Indian.
ARPA Public lands means lands owned and administered by the United
States Government as part of:
(1) The national park system,
(2) The national wildlife refuge system,
(3) The national forest system, and
(4) All other lands the fee title to which is held by the United
States Government, other than lands on the Outer Continental Shelf and
lands which are under the jurisdiction of the Smithsonian Institution.
Consultation means a process to seek consensus through the exchange
of information, open discussion, and joint deliberations and by
incorporating identifications, recommendations, and Native American
traditional knowledge, to the maximum extent possible.
Cultural items means a funerary object, sacred object, or object of
cultural patrimony according to a lineal descendant, Indian Tribe, or
Native Hawaiian organization based on customs, traditions, or Native
American traditional knowledge.
Custody means having an obligation to care for the object or item
but not a sufficient interest in the object or item to constitute
possession or control. In general, custody through a loan, lease,
license, bailment, or other similar arrangement is not a sufficient
interest to constitute possession or control, which resides with the
loaning, leasing, licensing, bailing, or otherwise transferring museum
or Federal agency.
Discovery means exposing, finding, or removing human remains or
cultural items whether intentionally or inadvertently on Federal or
Tribal lands without a written authorization for an excavation under
Sec. 10.6.
Disposition means an appropriate official acknowledges and
recognizes a lineal descendant, Indian Tribe, or Native Hawaiian
organization has control or ownership of human remains or cultural
items removed from Federal or Tribal lands.
Excavation means intentionally exposing, finding, or removing human
remains or cultural items on Federal or Tribal lands with a written
authorization under Sec. 10.6.
Federal agency means any department, agency, or instrumentality of
the United States Government. This term does not include the
Smithsonian Institution.
Federal lands means any lands other than Tribal lands that is
controlled or owned by the United States Government. For purposes of
this definition, control refers to lands not owned by the United States
Government, but in which the United States Government has a sufficient
legal interest to permit it to apply these regulations without
abrogating a person's existing legal rights. Whether the United States
Government has a sufficient legal interest to control lands it does not
own is a legal determination that a Federal agency must make on a case-
by-case basis. Federal lands include:
(1) Any lands selected by, but not yet conveyed to, an Alaska
Native Corporation or group organized under the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.);
(2) Any lands other than Tribal lands that are held by the United
States Government in trust for an individual Indian or lands owned by
an individual Indian and subject to a restriction on alienation by the
United States Government; and
(3) Any lands subject to a statutory restriction, lease, easement,
agreement, or similar arrangement containing terms that grant to the
United States Government indicia of control over those lands.
Funerary object means any object reasonably believed to have been
placed intentionally with or near human remains. A funerary object is
any object connected, either at the time of death or later, to a death
rite or ceremony of a Native American culture according to a lineal
descendant, Indian Tribe, or Native Hawaiian organization based on
customs, traditions, or Native American traditional knowledge. This
term does not include any object returned or distributed to living
persons according to traditional custom after it has been displayed as
part of a death rite or ceremony of a Native American culture. Funerary
objects are either associated funerary objects or unassociated funerary
objects.
(1) Associated funerary object means the human remains related to
the funerary object are, or were after
[[Page 63239]]
November 16, 1990, in the possession or control of any museum or
Federal agency or removed from Federal or Tribal lands. Any object made
exclusively for burial purposes or to contain human remains is always
an associated funerary object regardless of the location or existence
of any related human remains.
(2) Unassociated funerary object means any funerary object that is
not an associated funerary object and is identified by a preponderance
of the evidence as one or more of the following:
(i) Related to human remains but the human remains were not removed
or the location of the human remain is unknown,
(ii) Related to specific individuals or families,
(iii) Removed from a specific burial site of an individual or
individuals with cultural affiliation to an Indian Tribe or Native
Hawaiian organization, or
(iv) Removed from a specific area where a burial site of an
individual or individuals with cultural affiliation to an Indian Tribe
or Native Hawaiian organization is known to have existed, but the
burial site is no longer extant.
Holding or collection means an accumulation of one or more objects,
items, or human remains for any temporary or permanent purpose,
including:
(1) Academic interest;
(2) Accession;
(3) Catalog;
(4) Comparison;
(5) Conservation;
(6) Education;
(7) Examination;
(8) Exhibition;
(9) Forensic purposes;
(10) Interpretation;
(11) Preservation;
(12) Public benefit;
(13) Research;
(14) Scientific interest; or
(15) Study.
Human remains means the physical remains of the body of a Native
American individual. This term does not include human remains or
portions of human remains that may reasonably be determined to have
been freely given or naturally shed by the individual from whose body
they were obtained. When human remains are reasonably believed to be
comingled with other material (such as soil or faunal remains), the
entire admixture may be treated as human remains.
(1) Human remains incorporated into a funerary object, sacred
object, or object of cultural patrimony are considered part of the
cultural item rather than human remains.
(2) Human remains incorporated into an object or item that is not a
funerary object, sacred object, or object of cultural patrimony are
considered human remains.
Indian Tribe means any tribe, band, nation, or other organized
group or community of Indians, including any Alaska Native village (as
defined in, or established pursuant to, the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.)), recognized as eligible for
the special programs and services provided by the United States
Government to Indians because of their status as Indians by its
inclusion on the list of recognized Indian Tribes published by the
Secretary under the Act of November 2, 1994 (25 U.S.C. 5131).
Inventory means a simple itemized list of human remains and
associated funerary objects in a holding or collection that includes
the results of consultation and determinations about cultural and
geographical affiliation.
Lineal descendant means:
(1) A living person tracing his or her ancestry, either by means of
traditional Native American kinship systems, or by the common-law
system of descent, to a known individual whose human remains, funerary
objects, or sacred objects are subject to this part; or
(2) A living person tracing his or her ancestry, either by means of
traditional Native American kinship systems, or by the common-law
system of descent, to all the known individuals represented by
comingled human remains (example: the human remains of two individuals
have been comingled, and a living person may trace his or her ancestry
directly to both of the deceased individuals).
Manager, National NAGPRA Program, means the official of the
Department of the Interior designated by the Secretary as responsible
for administration of the Act and this part.
Museum means any institution or State or local government agency
(including any institution of higher learning) that has possession or
control of human remains or cultural items and receives Federal funds.
The term does not include the Smithsonian Institution.
Native American means of, or relating to, a tribe, people, or
culture that is indigenous to the United States. To be considered
Native American under this part, human remains or cultural items must
bear some relationship to a tribe, people, or culture indigenous to the
United States.
(1) A tribe is an Indian Tribe.
(2) A people comprise the entire body of persons who constitute a
community, tribe, nation, or other group by virtue of a common culture,
history, religion, language, race, ethnicity, or similar feature. The
Native Hawaiian Community is a ``people.''
(3) A culture comprises the characteristic features of everyday
existence shared by people in a place or time.
Native American traditional knowledge means knowledge,
philosophies, beliefs, traditions, skills, and practices that are
developed, embedded, and often safeguarded by Native Americans. Native
American traditional knowledge contextualizes relationships between and
among people, the places they inhabit, and the broader world around
them, covering a wide variety of information, including, but not
limited to, cultural, ecological, religious, scientific, societal,
spiritual, and technical knowledge. Native American traditional
knowledge may be, but is not required to be, developed, sustained, and
passed through time, often forming part of a cultural or spiritual
identity.
Native Hawaiian organization means any organization that:
(1) Serves and represents the interests of Native Hawaiians, who
are descendants of the indigenous people who, before 1778, occupied and
exercised sovereignty in the area that now constitutes the State of
Hawai`i;
(2) Has as a primary and stated purpose the provision of services
to Native Hawaiians; and
(3) Has expertise in Native Hawaiian affairs, and includes but is
not limited to:
(i) The Office of Hawaiian Affairs established by the constitution
of the State of Hawai`i;
(ii) Native Hawaiian organizations (including `ohana) who are
registered with the Secretary's Office of Native Hawaiian Relations;
and
(iii) Hawaiian Homes Commission Act (HHCA) Beneficiary Associations
and Homestead Associations as defined under 43 CFR 47.10.
Object of cultural patrimony means an object that has ongoing
historical, traditional, or cultural importance central to a Native
American group, including any constituent sub-group (such as a band,
clan, lineage, ceremonial society, or other subdivision), according to
an Indian Tribe or Native Hawaiian organization based on customs,
traditions, or Native American traditional knowledge. An object of
cultural patrimony may have been entrusted to a caretaker, along with
the authority to confer that responsibility to another caretaker. The
object must be reasonably identified as
[[Page 63240]]
being of such importance central to the group that it:
(1) Cannot or could not be alienated, appropriated, or conveyed by
any person, including its caretaker, regardless of whether the person
is a member of the group, and
(2) Must have been considered inalienable by the group at the time
the object was separated from the group.
`Ohana (family) means a group of people who are not lineal
descendants but comprise a Native Hawaiian organization whose members
have a familial or kinship relationship with each other.
Person means:
(1) An individual, partnership, corporation, trust, institution,
association, or any other private entity; or
(2) Any representative, official, employee, agent, department, or
instrumentality of the United States Government or of any Indian Tribe
or Native Hawaiian organization, or of any State or subdivision of a
State.
Possession or control means having a sufficient interest in an
object or item to independently direct, manage, oversee, or restrict
the use of the object or item. A museum or Federal agency may have
possession or control regardless of whether the object or item is in
its physical custody. In general, custody through a loan, lease,
license, bailment, or other similar arrangement is not a sufficient
interest to constitute possession or control, which resides with the
loaning, leasing, licensing, bailing, or otherwise transferring museum
or Federal agency.
Receives Federal funds means an institution or agency of a State or
local government (including an institution of higher learning) directly
or indirectly receives Federal financial assistance after November 16,
1990, including any grant; cooperative agreement; loan; contract; use
of Federal facilities, property, or services; or other arrangement
involving the transfer of anything of value for a public purpose
authorized by a law of the United States Government. This term includes
Federal financial assistance provided for any purpose that is received
by a larger entity of which the institution or agency is a part. For
example, if an institution or agency is a part of a State or local
government or a private university, and the State or local government
or private university receives Federal financial assistance for any
purpose, then the institution or agency receives Federal funds for the
purpose of these regulations. This term does not include procurement of
property or services by and for the direct benefit or use of the United
States Government or Federal payments that are compensatory.
Repatriation means a museum or Federal agency acknowledges and
recognizes a lineal descendant, Indian Tribe, or Native Hawaiian
organization has control or ownership of human remains or cultural
items in a holding or collection.
Review Committee means the advisory committee established under the
Act.
Right of possession means possession or control obtained with the
voluntary consent of a person or group that had authority of
alienation. Right of possession is given through the original
acquisition of:
(1) An unassociated funerary object, a sacred object, or an object
of cultural patrimony from an Indian Tribe or Native Hawaiian
organization with the voluntary consent of a person or group with
authority to alienate the object; or
(2) Human remains and associated funerary objects which were
exhumed, removed, or otherwise obtained with full knowledge and consent
of the next of kin or, when no next of kin is ascertainable, the
official governing body of the appropriate Indian Tribe or Native
Hawaiian organization.
Sacred object means an object that is a specific ceremonial object
needed by a traditional religious leader for the practice of
traditional Native American religion by present-day adherents,
according to a lineal descendant, Indian Tribe, or Native Hawaiian
organization based on customs, traditions, or Native American
traditional knowledge. While many items might be imbued with sacredness
in a culture, this term is specifically limited to objects needed for
the observance or renewal of Native American religious ceremonies.
Secretary means the Secretary of the Interior or a designee.
Summary means a written description of a holding or collection that
may contain an unassociated funerary object, sacred object, or object
of cultural patrimony.
Traditional religious leader means a person who, based on cultural,
ceremonial, or religious practices, is considered by an Indian Tribe or
Native Hawaiian organization as being responsible for performing
cultural ceremonies or exercising a leadership role.
Tribal lands means:
(1) All lands that are within the exterior boundaries of any Indian
reservation;
(2) All lands that are dependent Indian communities; and
(3) All lands administered by the Department of Hawaiian Home Lands
(DHHL) under the Hawaiian Homes Commission Act of 1920 (HHCA, 42 Stat.
108) and Section 4 of the Act to Provide for the Admission of the State
of Hawai`i into the Union (73 Stat. 4), including ``available lands''
and ``Hawaiian home lands.''
Tribal lands of an NHO means Tribal lands in Hawai`i that are under
the stewardship of a Native Hawaiian organization that has been issued
a lease or license under HHCA section 204(a)(2), second paragraph,
second proviso, or section 207(c)(1)(B).
Unclaimed human remains or cultural items means human remains or
cultural items removed from Federal lands in the United States or from
Tribal lands in Hawai`i whose disposition has not occurred under this
part.
United States means the 50 States and the District of Columbia.
Sec. 10.3 Cultural and Geographical Affiliation.
Throughout this part, affiliation ensures that disposition or
repatriation of human remains or cultural items is based on a
reasonable connection to an Indian Tribe or Native Hawaiian
organization. Affiliation is established by identifying the cultural
and geographical affiliation of the human remains or cultural items
using this section.
(a) Cultural affiliation. Cultural affiliation is identified by
reasonably tracing a relationship of shared group identity between an
Indian Tribe or Native Hawaiian organization and an identifiable
earlier group connected to the human remains or cultural items.
Cultural affiliation is established by a simple preponderance of the
evidence given the information available, including the results of
consultation. Cultural affiliation does not require exhaustive studies
of the human remains or cultural items or continuity through time.
Cultural affiliation is not precluded solely because of reasonable gaps
in the information.
(1) Information. One or more of the following equally relevant
types of information may be used to identify cultural affiliation:
(i) Anthropological;
(ii) Archaeological;
(iii) Biological;
(iv) Folkloric;
(v) Geographical;
(vi) Historical;
(vii) Kinship;
(viii) Linguistic;
(ix) Oral Traditional; or
(x) Other relevant information or expert opinion, including Native
American traditional knowledge which alone may be sufficient to
identify cultural affiliation.
[[Page 63241]]
(2) Criteria. Using the information available, each of the
following criteria for cultural affiliation must be identified:
(i) One or more earlier groups connected to the human remains or
cultural items;
(ii) One or more Indian Tribes or Native Hawaiian organizations;
and
(iii) A relationship of shared group identity between the earlier
group and the Indian Tribe or Native Hawaiian organization reasonably
traced through time.
(3) Multiple cultural affiliations. An identifiable earlier group
may have a relationship to more than one Indian Tribe or Native
Hawaiian organization. As two or more earlier groups may be connected
to human remains or cultural items, a relationship may be reasonably
traced to two or more Indian Tribes or Native Hawaiian organizations
that do not themselves have a shared group identity.
(b) Geographical affiliation. Geographical affiliation is
identified by reasonably tracing a relationship between an Indian Tribe
or Native Hawaiian organization and a geographic area connected to the
human remains or cultural items. Geographical affiliation is
established by the information available, including the results of
consultation.
(1) Information. Existing records, inventories, catalogues,
relevant studies, or other pertinent data may be used to identify the:
(i) Geographic origin of the human remains or cultural items and
(ii) Basic facts surrounding the acquisition and accession of the
human remains or cultural items.
(2) Criteria. Using the information available, each of the
following criteria for geographical affiliation must be identified:
(i) A geographic area connected to the human remains or cultural
items;
(ii) One or more Indian Tribes or Native Hawaiian organizations;
and
(iii) A relationship between the geographic area and the Indian
Tribe or Native Hawaiian organization, based on the identification of
the geographic area as:
(A) The Tribal lands of the Indian Tribe or Native Hawaiian
organization,
(B) The adjudicated aboriginal land of the Indian Tribe, or
(C) The acknowledged aboriginal land of the Indian Tribe.
(3) Multiple geographical affiliations. A geographic area may have
a relationship to more than one Indian Tribe or Native Hawaiian
organization. Information used for geographical affiliation may provide
information sufficient to identify cultural affiliation under paragraph
(a) of this section but must not be used to limit geographical
affiliation.
(c) Multiple affiliations. When affiliation of human remains or
cultural items is established with two or more Indian Tribes or Native
Hawaiian organizations, any of the Indian Tribes or Native Hawaiian
organizations may submit a claim for disposition or a request for
repatriation. Two or more Indian Tribes or Native Hawaiian
organizations with affiliation may agree to joint disposition or joint
repatriation of the human remains or cultural items.
(1) Single claims or requests. Claims or requests for joint
disposition or joint repatriation of human remains or cultural items
are considered a single claim or request and not competing claims or
requests. Notices and statements for joint disposition or joint
repatriation of human remains or cultural items required under this
part must identify all joint requestors.
(2) Competing claims or requests. Under Sec. Sec. 10.7, 10.9, and
10.10, when there are competing claims for disposition or competing
requests for repatriation of human remains or cultural items, it may be
necessary to determine the Indian Tribe or Native Hawaiian organization
with the closest affiliation under paragraph (d) of this section.
(d) Closest affiliation. (1) The Indian Tribe with the closest
affiliation, in the following order, is:
(i) The Indian Tribe whose cultural affiliation is clearly
identified.
(ii) The Indian Tribe whose cultural affiliation is not clearly
identified but is reasonably identified by the information available,
including the circumstances surrounding the acquisition of the human
remains or cultural items.
(iii) The Indian Tribe whose geographical affiliation is based on
the Tribal lands of the Indian Tribe.
(iv) The Indian Tribe whose geographical affiliation is based on
the adjudicated aboriginal land of the Indian Tribe.
(v) The Indian Tribe whose geographical affiliation is based on the
acknowledged aboriginal land of the Indian Tribe.
(2) The Native Hawaiian organization with the closest cultural
affiliation, in the following order, is:
(i) An `ohana that can trace an unbroken connection of named
individuals to one or more of the human remains or cultural items, but
not necessarily to all of the human remains or cultural items from a
specific site.
(ii) An `ohana that can trace a relationship to the ahupua`a where
the human remains or cultural items were removed and a direct kinship
to one or more of the human remains or cultural items, but not
necessarily an unbroken connection of named individuals.
(iii) An organization with affiliation only to the earlier
occupants of the ahupua`a where the human remains or cultural items
were removed, and not to the earlier occupants of any other ahupua`a.
(iv) An organization with affiliation to either:
(A) The earlier occupants of the ahupua`a where the human remains
or cultural items were removed, as well as to the earlier occupants of
other ahupua`a on the same island, but not to the earlier occupants of
all ahupua`a on that island, or to the earlier occupants of any other
island of the Hawaiian archipelago, or
(B) The earlier occupants of another island who accessed the
ahupua`a where the human remains or cultural items were removed for
traditional or customary practices and were buried there.
(v) An organization with affiliation to the earlier occupants of
all ahupua`a on the island where the human remains or cultural items
were removed, but not to the earlier occupants of any other island of
the Hawaiian archipelago.
(vi) An organization with affiliation to the earlier occupants of
more than one island in the Hawaiian archipelago that has been in
continuous existence from a date prior to 1893.
(vii) Any other Native Hawaiian organization with affiliation.
Subpart B--Protection of Human Remains or Cultural Items on Federal
or Tribal Lands
Sec. 10.4 General.
Whenever an Indian Tribe, Native Hawaiian organization, Federal
agency, or the State of Hawai`i Department of Hawaiian Home Lands
(DHHL) has responsibility for human remains or cultural items on
Federal or Tribal lands, it must comply with the requirements of this
subpart. To ensure compliance with the Act, any permit, license, lease,
right-of-way, or other authorization issued by an Indian Tribe, Native
Hawaiian organization, Federal agency, or DHHL for an activity on
Federal or Tribal lands must include a requirement that the person
responsible for the activity comply with Sec. 10.5 upon the discovery
of human remains or cultural items. Prior to any excavation of human
remains or cultural items on Federal or Tribal lands, an Indian Tribe,
Native Hawaiian organization, Federal
[[Page 63242]]
agency, or DHHL must comply with Sec. 10.6.
(a) Appropriate official. To ensure compliance with the Act, the
Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL
that has responsibility for human remains or cultural items on Federal
or Tribal lands must designate one or more appropriate officials, as
shown in Table 1 of this section. The appropriate official is
responsible for carrying out the requirements of this subpart.
(b) Plan of action. On Federal lands in the United States or on
Tribal lands in Hawai`i, a plan of action is required for any planned
activity (including an excavation authorized under Sec. 10.6) that is
likely to result in a discovery or excavation of human remains or
cultural items. Determining the likelihood of discovery or excavation
must be based upon previous studies, discoveries, or excavations in the
general proximity of the planned activity. Information from and the
expertise of Native American cultural practitioners, while not
required, may assist in determining the likelihood of discovery or
excavation. In consultation with any lineal descendants, Indian Tribes,
or Native Hawaiian organizations, the appropriate official must
prepare, approve, and sign a plan of action.
(1) Step 1--Initiate consultation. Before the planned activity
begins, the appropriate official must identify consulting parties and
make a good-faith effort to invite the parties to consult.
(i) Consulting parties are any lineal descendant and any Indian
Tribe or Native Hawaiian organization with potential affiliation.
(ii) An invitation to consult must be in writing and must include:
(A) A description of the planned activity and its general location;
(B) The names of all identified consulting parties; and
(C) A proposed timeline and method for consultation.
(iii) Any consulting party, regardless of whether the party has
received an invitation to consult, must submit a written request to
consult. A written request to consult may be submitted to the
appropriate official at any time.
(2) Step 2--Consult with requesting parties. No later than 10 days
after receiving a written request to consult, the appropriate official
must respond in writing with a proposed timeline for consultation. The
proposed timeline must allow for consultation to occur before the
planned activity begins.
(i) In the response to the requesting party, the appropriate
official must ask a requesting party for the following information, if
not already provided:
(A) Recommendations on the proposed timeline and method for
consultation; and
(B) The name, phone number, email address, or mailing address for
any authorized representative, traditional religious leaders, and known
lineal descendant who should participate in consultation.
(ii) The consultation process must seek consensus, to the maximum
extent possible, on the content of the plan of action.
(iii) The appropriate official must prepare a record of
consultation that includes the effort made to seek consensus. If
recommendations by requesting parties are not possible, the record of
consultation must describe efforts to identify a mutually agreeable
alternative. The appropriate official must record the concurrence,
disagreement, or nonresponse of the requesting parties to the plan of
action.
(3) Step 3--Approve and sign the plan of action. Before the planned
activity begins, the appropriate official must approve and sign a plan
of action and must provide a copy to all consulting parties. At a
minimum, the written plan of action must include:
(i) A description of the planned activity and its general location;
(ii) A list of all consulting parties identified under paragraph
(b)(1) of this section;
(iii) A record of consultation under paragraph (b)(2) of this
section;
(iv) The preference of requesting parties for:
(A) Stabilizing and covering human remains or cultural items in
situ;
(B) Protecting and relocating human remains or cultural items, if
removed; or
(C) Providing the appropriate treatment, care, or handling of human
remains or cultural items; and
(v) The timeline and method for:
(A) Informing all identified consulting parties of a discovery;
(B) Evaluating the potential need for an excavation; and
(C) Completing the disposition, to include publication of a notice
of intended disposition, under Sec. 10.7.
(c) Comprehensive agreement. To facilitate compliance with the Act,
a Federal agency or DHHL may develop a written comprehensive agreement
for all land managing activities on Federal or Tribal lands, or
portions thereof, under its responsibility. The written comprehensive
agreement must:
(1) Be developed in consultation with any Indian Tribe or Native
Hawaiian organization identified under paragraph (b)(1) of this section
and requesting to consult under paragraph (b)(2) of this section;
(2) Include, at minimum, a plan of action under paragraph (b)(3) of
this section;
(3) Be consented to by a majority of requesting parties or lineal
descendants identified under paragraph (b)(2) of this section. Evidence
of consent will be by the authorized representative's signature on the
agreement or by official correspondence to the Federal agency or DHHL;
and
(4) Be signed by the appropriate official for the Federal agency or
DHHL.
(d) Federal agency coordination with other laws. To manage
compliance with the Act, a Federal agency may coordinate its
responsibility under this subpart with its responsibilities under other
relevant Federal laws. Compliance with this subpart does not relieve a
Federal agency of the responsibility for compliance with the National
Historic Preservation Act (54 U.S.C. 306108, commonly known as Section
106) or the Archeological and Historic Preservation Act (54 U.S.C.
312501-312508).
Table 1 to Sec. 10.4--Appropriate Official
------------------------------------------------------------------------
The appropriate official is
For human remains or cultural items on . . a representative for the . .
. .
------------------------------------------------------------------------
Federal lands in the United States........ Federal agency with primary
management authority.
Tribal lands in Alaska and the continental Indian Tribe.
United States.
Tribal lands in Hawai`i................... DHHL.
------------------------------------------------------------------------
Sec. 10.5 Discovery.
When a discovery of human remains or cultural items on Federal or
Tribal lands occurs, any person who knows or has reason to know of the
discovery must inform the appropriate official for the responsible
Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL.
For any planned activity on Federal lands in the United States or on
Tribal lands in Hawai`i that is likely to result in a discovery of
human remains or cultural items, the appropriate official must, in
consultation with Indian Tribes and Native Hawaiian organizations,
prepare, approve, and sign a plan of action under Sec. 10.4(b), unless
the discovery is already covered by a signed comprehensive agreement
under Sec. 10.4(c).
(a) Report any discovery. Any person who knows or has reason to
know of a discovery of human remains or cultural items on Federal or
Tribal lands must immediately report the discovery to the appropriate
official and any additional point of contact shown in Table 1 of this
section. The person making the
[[Page 63243]]
discovery must make a reasonable effort to secure and protect the human
remains or cultural items, including, as appropriate, stabilizing or
covering the human remains or cultural items. No later than 24 hours
after the discovery, the person making the discovery must send written
documentation of the discovery, including the steps taken to secure and
protect the human remains or cultural items, to the appropriate
official and the additional point of contact shown in Table 1 of this
section.
(b) Cease any nearby activity. To ensure compliance with the Act,
any permit, license, lease, right-of-way, or other authorization issued
by an Indian Tribe, Native Hawaiian organization, Federal agency, or
DHHL for an activity on Federal or Tribal lands must include a
requirement that the person responsible for the activity comply with
this paragraph upon the discovery of human remains or cultural items.
If a discovery is related to any such activity (including but not
limited to construction, mining, logging, or agriculture), the person
responsible for the activity must:
(1) Immediately stop all activity around the discovery;
(2) Immediately report the discovery to the appropriate official
and any additional point of contact shown in Table 1 of this section;
(3) Make a reasonable effort to secure and protect the human
remains or cultural items, including, as appropriate, stabilizing and
covering the human remains or cultural items;
(4) No later than 24 hours after the discovery, send written
documentation of the discovery to the appropriate official and any
additional point of contact stating:
(i) The general location and contents of the discovery,
(ii) The activity related to the discovery,
(iii) The steps taken to secure and protect the human remains or
cultural items, and
(iv) Confirmation that all activity around the discovery has
stopped and will not resume until the date in a written certification
issued under paragraph (e) of this section.
(c) Respond to a discovery. No later than three days after
receiving written documentation of a discovery, the appropriate
official must respond to a discovery. The appropriate official must
comply with the requirements of this section immediately upon learning
of the discovery even if the discovery has not been properly reported.
(1) The appropriate official must make a written record showing a
reasonable effort to:
(i) Take steps to secure and protect the human remains or cultural
items;
(ii) Verify that any activity around the discovery has stopped; and
(iii) Report the discovery to any additional point of contact shown
in Table 1 of this section.
(2) On Tribal lands in Alaska and the continental United States,
the Indian Tribe may delegate its responsibility for the discovery to
the appropriate official for the Bureau of Indian Affairs or the
Federal agency with primary management authority. If both the Federal
agency and the Indian Tribe consent in writing, the appropriate
official for the Bureau of Indian Affairs or the Federal agency with
primary management authority is responsible for completing the
requirements in paragraph (d) of this section.
(3) On Tribal lands of an NHO, the Native Hawaiian organization may
agree in writing to be responsible for discoveries on its Tribal lands
and then must respond to any discovery under this paragraph. If the
Native Hawaiian organization has not agreed in writing to be
responsible for discoveries, the appropriate official for DHHL is
responsible for completing the requirements in paragraph (d) of this
section for any discoveries on those Tribal lands of an NHO.
(d) Approve and sign a plan of action. On Federal lands in the
United States or on Tribal lands in Hawai`i, the appropriate official,
in consultation with Indian Tribes and Native Hawaiian organizations,
must prepare, approve, and sign a plan of action under Sec. 10.4(b) no
later than 30 days after receiving written documentation of a
discovery. To the maximum extent possible, the appropriate official
must carry out the plan of action for any human remains or cultural
items. This requirement does not apply if, before receiving written
documentation of the discovery:
(1) The appropriate official signed a plan of action under Sec.
10.4(b);
(2) The appropriate official signed a comprehensive agreement under
Sec. 10.4(c); or
(3) A Native Hawaiian organization agreed in writing to be
responsible for discoveries on its Tribal lands under paragraph (c)(3)
of this section.
(e) Certify that an activity may resume. No later than 35 days
after receiving written documentation of a discovery, the appropriate
official must send a written certification to the person responsible
for the activity that the activity may resume. The written
certification must provide:
(1) A copy of the signed plan of action or comprehensive agreement
with redaction of any confidential or sensitive information to the
extent of applicable law;
(2) Instructions for protecting, stabilizing, or covering the human
remains or cultural items, if appropriate;
(3) A proposed timeline and method for evaluating the potential
need for and authorization of an excavation of the human remains or
cultural items, if applicable; and
(4) The date (no later than 30 days after the date of the written
certification) on which lawful activity may resume around the
discovery.
Table 1 to Sec. 10.5--Report a Discovery on Federal or Tribal Lands
------------------------------------------------------------------------
The appropriate And the additional
official is the point of contact
Where the discovery is on . . . representative for is the . . .
the . . .
------------------------------------------------------------------------
Federal lands in the United Federal agency Any Indian Tribe
States *. with primary or Native
management Hawaiian
authority. organization with
potential
affiliation, if
known.
Tribal lands in Alaska and the Indian Tribe...... Bureau of Indian
continental United States. Affairs or the
Federal agency
with primary
management
authority, if
any.
Tribal lands in Hawai`i......... DHHL.............. Any Native
Hawaiian
organization with
potential
affiliation, if
known.
* Federal lands in Alaska Bureau of Land Alaska Native
selected but not yet conveyed Management or Corporation or
under the Alaska Native Claims Federal agency group organized
Settlement Act (ANCSA, 43 with primary under ANCSA.
U.S.C. 1601). management
authority.
------------------------------------------------------------------------
[[Page 63244]]
Sec. 10.6 Excavation.
When an excavation of human remains or cultural items on Federal or
Tribal lands is needed, the appropriate official may authorize the
excavation only after complying with this section. The appropriate
official must take reasonable steps to evaluate the potential need for
an excavation of human remains or cultural items. A permit under
Section 4 of ARPA (16 U.S.C. 470cc) is required when the excavation is
on Federal or Tribal lands that are also ARPA Indian lands or ARPA
Public lands, and there is no applicable permit exception or exemption
under the ARPA uniform regulations at 18 CFR 1312, 32 CFR 229, 36 CFR
296, or 43 CFR 7.
(a) On Tribal lands. Before an excavation of human remains or
cultural items may occur, the appropriate official must consent in
writing by providing a written authorization for the excavation.
(1) At minimum, the written authorization must document:
(i) The reasonable steps taken to evaluate the potential need for
an excavation of human remains or cultural items; and
(ii) Any permit that the Indian Tribe or Native Hawaiian
organization legally requires.
(2) On Tribal lands in Alaska and the continental United States,
the Indian Tribe may delegate its responsibility for authorizing the
excavation to the appropriate official for the Bureau of Indian Affairs
or the Federal agency with primary management authority. If both the
Federal agency and the Indian Tribe consent in writing, the appropriate
official for the Bureau of Indian Affairs or the Federal agency with
primary management authority is responsible for completing the
requirements in paragraph (b) of this section.
(3) On Tribal lands of an NHO, the Native Hawaiian organization may
agree in writing to be responsible for excavations on its Tribal lands
and then must provide written authorizations under this paragraph. If
the Native Hawaiian organization has not agreed in writing to be
responsible for excavations, the appropriate official for DHHL is
responsible for completing the requirements in paragraph (b) of this
section for any excavations on those Tribal lands of an NHO.
(b) On Federal lands in the United States or on Tribal lands in
Hawai`i. Before an excavation of human remains or cultural items may
occur, the appropriate official, must prepare, approve, and sign a plan
of action under Sec. 10.4(b) and must provide a written authorization
for the excavation.
(1) Prior to authorizing an excavation, the appropriate official,
in consultation with Indian Tribes and Native Hawaiian organizations,
must prepare, approve, and sign a plan of action under Sec. 10.4(b).
To the maximum extent possible, the appropriate official must carry out
the plan of action for any human remains or cultural items. This
requirement does not apply if prior to authorizing the excavation:
(i) The appropriate official signed a plan of action under Sec.
10.4(b);
(ii) The appropriate official signed a comprehensive agreement
under Sec. 10.4(c); or
(iii) A Native Hawaiian organization agreed in writing to be
responsible for excavations on its Tribal lands under paragraph (a)(3)
of this section.
(2) At minimum, the written authorization must document:
(i) The reasonable steps taken to evaluate the potential need for
an excavation of human remains or cultural items; and
(ii) Any permit that the Federal agency or DHHL legally requires.
Sec. 10.7 Disposition.
When human remains or cultural items are removed from Federal or
Tribal lands, as soon as possible (but no later than one year) after
the discovery or excavation of the human remains or cultural items, the
appropriate official must determine the lineal descendant, Indian
Tribe, or Native Hawaiian organization that has priority for
disposition of human remains or cultural items using this section. On
Federal lands in the United States or on Tribal lands in Hawai`i, when
the appropriate official cannot reasonably determine any Indian Tribe
or Native Hawaiian organization with priority for disposition of human
remains or cultural items, the appropriate official must report the
human remains or cultural items as unclaimed under paragraph (e) of
this section.
(a) Priority for disposition. The disposition of human remains or
cultural items removed from Federal or Tribal lands is determined in
the following priority order:
(1) The known lineal descendants, if any, for human remains and
associated funerary objects;
(2) The Indian Tribe or Native Hawaiian organization from whose
Tribal lands the human remains or cultural items originated;
(3) The Indian Tribe or Native Hawaiian organization with the
closest cultural affiliation according to the priority order at Sec.
10.3(d); or
(4) For human remains or cultural items from adjudicated aboriginal
land, the Indian Tribe with the strongest relationship to the human
remains or cultural items who makes a claim for disposition, which is:
(i) The adjudicated aboriginal land Indian Tribe who claims the
human remains or cultural items, or
(ii) A different Indian Tribe who claims the human remains or
cultural items and shows, by a preponderance of the evidence, a
stronger cultural relationship to the human remains or cultural items
than the adjudicated aboriginal land Indian Tribe.
(b) To a lineal descendant. When a lineal descendant is determined
for human remains and associated funerary objects removed from Federal
or Tribal lands, the appropriate official for the Indian Tribe, Native
Hawaiian organization, Federal agency, or DHHL must send a written
disposition statement to the lineal descendant. The disposition
statement must acknowledge and recognize the lineal descendant has
ownership or control of the human remains and associated funerary
objects.
(1) Before sending the disposition statement, the appropriate
official must consult with the lineal descendant on the care, custody,
and physical transfer of the human remains and associated funerary
objects.
(2) After sending the disposition statement, the appropriate
official must:
(i) Document any physical transfer by recording the contents,
recipient, and method of delivery; and
(ii) Protect sensitive information, as identified by the lineal
descendant, from disclosure to the general public to the extent
consistent with applicable law;
(3) After the disposition statement is sent, nothing in the Act or
this part:
(i) Limits the authority of the Indian Tribe, Native Hawaiian
organization, Federal agency, or DHHL to enter into any agreement with
the lineal descendant concerning the care or custody of the human
remains and associated funerary objects, or
(ii) Limits any procedural or substantive right which may otherwise
be secured to the lineal descendant.
(c) On Tribal lands. When a lineal descendant cannot be determined
for human remains and associated funerary objects, or in the case of
unassociated funerary objects, sacred objects, or objects of cultural
patrimony, the appropriate official for the Indian Tribe or Native
Hawaiian organization from whose Tribal lands the human remains or
cultural items were removed must complete a written disposition
statement.
[[Page 63245]]
(1) The written disposition statement must acknowledge and
recognize:
(i) A lineal descendant could not be ascertained and
(ii) The Indian Tribe or Native Hawaiian organization has control
or ownership of the human remains or cultural items.
(2) On Tribal lands in Alaska and the continental United States,
the Indian Tribe may delegate its responsibility for disposition of
human remains or cultural items to the appropriate official for the
Bureau of Indian Affairs or the Federal agency with primary management
authority. If both the Federal agency and the Indian Tribe consent in
writing, the appropriate official for the Bureau of Indian Affairs or
the Federal agency with primary management authority is responsible for
completing the requirements in paragraph (d) of this section.
(3) On Tribal lands of an NHO, the Native Hawaiian organization may
agree in writing to be responsible for disposition of human remains or
cultural items from its Tribal lands and then must provide written
disposition statements under this paragraph. If the Native Hawaiian
organization has not agreed in writing to be responsible for
dispositions, the appropriate official for DHHL is responsible for
completing the requirements in paragraph (d) of this section for any
dispositions from those Tribal lands of an NHO.
(4) After the disposition statement is complete, nothing in the Act
or this part:
(i) Limits the authority of a Federal agency to enter into any
agreement with the Indian Tribe or Native Hawaiian organization
concerning the care or custody of the human remains or cultural items,
(ii) Limits any procedural or substantive right which may otherwise
be secured to the Indian Tribe or Native Hawaiian organization, or
(iii) Prevents the governing body of an Indian Tribe or Native
Hawaiian organization from expressly relinquishing its control or
ownership of human remains, funerary objects, or sacred objects.
(d) On Federal lands in the United States or on Tribal lands in
Hawai`i. When a lineal descendant cannot be determined for human
remains and associated funerary objects, or in the case of unassociated
funerary objects, sacred objects, or objects of cultural patrimony, the
appropriate official for the Federal agency or DHHL must determine the
Indian Tribe or Native Hawaiian organization with priority for
disposition under paragraph (a) of this section. When the appropriate
official cannot reasonably determine any Indian Tribe or Native
Hawaiian organization with priority for disposition of human remains or
cultural items, the Federal agency or DHHL must report the human
remains or cultural items as unclaimed under paragraph (e) of this
section. On Tribal lands in Hawai`i, this requirement is waived if the
Native Hawaiian organization agreed in writing to be responsible for
disposition of human remains or cultural items from its Tribal lands
under paragraph (c)(3) of this section.
(1) Step 1--Inform consulting parties. As soon as possible but no
later than six months after a discovery or excavation of human remains
or cultural items, the appropriate official must send a written
document informing all consulting parties identified in the plan of
action under Sec. 10.4(b)(1). Consultation on the disposition of human
remains or cultural items may continue until publication of a notice of
intended disposition under paragraph (d)(2) of this section. The
appropriate official must send a written document to the consulting
parties that includes:
(i) A description of the human remains or cultural items including
the general location and date of discovery or excavation;
(ii) The name of each Indian Tribe or Native Hawaiian organization
identified as having priority for disposition of the human remains or
cultural items and a brief abstract of the information used to make
that identification; and
(iii) A request that if the Indian Tribe or Native Hawaiian
organization wishes to submit a claim for disposition of the human
remains or cultural items, it should do so in writing no later than 30
days after publication of a notice in the Federal Register.
(2) Step 2--Submit a notice of intended disposition. No earlier
than 30 days and no later than six months after informing consulting
parties, the appropriate official must submit a notice of intended
disposition to the Manager, National NAGPRA Program, for publication in
the Federal Register. If the human remains or cultural items are
evidence in an ongoing civil or criminal action under ARPA, the
deadline for the notice is extended until the conclusion of the ARPA
case.
(i) A notice of intended disposition must conform to the mandatory
format of the Federal Register and include:
(A) A brief description of the human remains or cultural items,
including the county and state where the human remains or cultural
items were removed;
(B) The identity of the human remains or cultural items
specifically as human remains, associated funerary objects,
unassociated funerary objects, sacred objects, objects of cultural
patrimony, or both sacred objects and objects of cultural patrimony,
and a brief abstract of the information used to make that
identification;
(C) The name of each Indian Tribe or Native Hawaiian organization
with priority for disposition of the human remains or cultural items
and a brief abstract of the information used to make that
identification;
(D) The name, phone number, email address, and mailing address for
the appropriate official who is responsible for receiving written
claims for disposition of the human remains or cultural items;
(E) The date (to be calculated by the Federal Register 30 days from
the date of publication) after which the appropriate official may send
a disposition statement to a claimant; and
(F) The date (to be calculated by the Federal Register one year
from the date of publication) on which the human remains or cultural
items will become unclaimed human remains or cultural items if no
written claim is received from an Indian Tribe or Native Hawaiian
organization.
(ii) No later than 15 days after receiving a notice of intended
disposition, the Manager, National NAGPRA Program, will:
(A) Approve for publication in the Federal Register a notice of
intended disposition that conforms to the requirements under paragraph
(d)(2)(i) of this section; or
(B) Return to the Federal agency or DHHL any submission that does
not meet the requirements under paragraph (d)(2)(i) of this section.
(3) Step 3--Receive and consider a claim for disposition. After
publication of a notice of intended disposition in the Federal
Register, any Indian Tribe or Native Hawaiian organization may submit
to the appropriate official a written claim for disposition of human
remains or cultural items.
(i) A claim for disposition of human remains or cultural items must
be received by the appropriate official before the appropriate official
sends a disposition statement for the human remains or cultural items
to a claimant under paragraph (d)(5) of this section or the transfer or
reinterment of the human remains or cultural items under paragraph
(e)(4) of this section. Any claim for disposition received by the
appropriate official no later than 30 days after publication of a
notice must be considered. A claim for disposition received by the
appropriate official before the publication of the notice of
[[Page 63246]]
intended disposition is dated the same date the notice was published.
(ii) Claims from two or more Indian Tribes or Native Hawaiian
organizations who agree to joint disposition of the human remains or
cultural items are considered a single claim and not competing claims.
(iii) A claim for disposition must satisfy one of the following
criteria:
(A) The claim is from an Indian Tribe or Native Hawaiian
organization identified in the notice of intended disposition with
priority for disposition, or
(B) The claim is not from an Indian Tribe or Native Hawaiian
organization identified in the notice of intended disposition, and
shows that the claimant is a lineal descendant, Indian Tribe, or Native
Hawaiian organization having priority for disposition under paragraph
(a) of this section.
(4) Step 4--Respond to a claim for disposition. No earlier than 30
days after publication of a notice of intended disposition but no later
than 30 days after receiving a claim for disposition, the appropriate
official must send a written response to the claimant with a copy to
any other party identified in the notice with priority for disposition.
(i) In the written response, the appropriate official must state
one of the following:
(A) The claim meets the criteria under paragraph (d)(3) of this
section. The appropriate official will send a disposition statement to
the claimant under paragraph (d)(5) of this section, unless the
appropriate official receives additional, competing claims for
disposition of human remains or cultural items.
(B) The claim does not meet the criteria under paragraph (d)(3) of
this section. The appropriate official must provide a detailed
explanation why the claim does not meet the criteria and an opportunity
for the claimant to provide additional information to meet the
criteria.
(C) The appropriate official has received competing claims for
disposition of the human remains or cultural items that meet the
criteria and must determine the most appropriate claimant using the
procedures and timelines under paragraph (d)(4)(ii) of this section.
(ii) At any time before sending a disposition statement for human
remains or cultural items under paragraph (d)(5) of this section, the
appropriate official may receive additional, competing claims for
disposition of the human remains or cultural items that meet the
criteria under paragraph (d)(3) of this section. The appropriate
official must determine the most appropriate claimant using the
priority for disposition under paragraph (a) of this section.
(A) No later than 10 days after receiving a competing claim, the
appropriate official must send a written letter to each claimant
identifying all claimants and the date each claim was received,
(B) No later than 120 days after informing the claimants of
competing claims, the appropriate official must send a written
determination to each claimant identifying the most appropriate
claimant(s), and
(C) No earlier than 30 days but no later than 90 days after sending
a determination of the most appropriate claimant(s), the appropriate
official must send a disposition statement to the most appropriate
claimant(s) under paragraph (d)(5) of this section.
(5) Step 5--Disposition of the human remains or cultural items. No
later than 90 days after responding to a claim for disposition that
meets the criteria, the appropriate official must send a written
disposition statement to the claimant(s) and a copy to the Manager,
National NAGPRA Program. The disposition statement must acknowledge and
recognize the claimant(s) has control or ownership of the human remains
or cultural items. Disposition must be in a manner that, to the maximum
extent possible, respects the traditions of the lineal descendant,
Indian Tribe, or Native Hawaiian organization. In the case of joint
claims for disposition, the disposition statement must be sent to and
must identify all claimants.
(i) Before sending the disposition statement, the appropriate
official must consult with the claimant(s) on the care, custody, and
physical transfer of the human remains or cultural items.
(ii) After sending the disposition statement, the appropriate
official must:
(A) Document any physical transfer by recording the contents,
recipient(s), and method of delivery and
(B) Protect sensitive information, as identified by the
claimant(s), from disclosure to the general public to the extent
consistent with applicable law.
(iii) After the disposition statement is sent, nothing in the Act
or this part:
(A) Limits the authority of the Federal agency or DHHL to enter
into any agreement with the Indian Tribe or Native Hawaiian
organization concerning the care or custody of the human remains or
cultural items,
(B) Limits any procedural or substantive right which may otherwise
be secured to the Indian Tribe or Native Hawaiian organization, or
(C) Prevents the governing body of an Indian Tribe or Native
Hawaiian organization from expressly relinquishing its control or
ownership of human remains, funerary objects, or sacred objects.
(e) Unclaimed human remains or cultural items removed from Federal
lands in the United States or from Tribal lands in Hawai`i. When the
appropriate official cannot complete the disposition of human remains
or cultural items under paragraph (d) of this section, the Federal
agency or DHHL must report the human remains or cultural items as
unclaimed. The appropriate official must, to the maximum extent
possible, respect the traditions of the Indian Tribe or Native Hawaiian
organization that may have priority for disposition under paragraph (a)
of this section.
(1) Step 1--Submit a list of unclaimed cultural items. No later
than [DATE 395 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER], the Federal agency or DHHL must submit to the
Manager, National NAGPRA Program, a list of all unclaimed cultural
items in its custody. The Federal agency or DHHL must submit updates to
its list of unclaimed cultural items by December 31 each year.
(i) Human remains or cultural items are unclaimed when:
(A) One year after publishing a notice of intended disposition
under paragraph (d)(2) of this section, no Indian Tribe or Native
Hawaiian organization submits a written claim for disposition, or
(B) One year after discovery or excavation of the human remains or
cultural items, the appropriate official could not reasonably identify
any lineal descendant, Indian Tribe, or Native Hawaiian organization
with priority for disposition under paragraph (a) of this section.
(ii) A list of unclaimed human remains or cultural items must
include:
(A) A brief description of the human remains or cultural items,
including the county and state where the human remains or cultural
items were removed;
(B) The names of all consulting parties and an abstract of the
results of consultation;
(C) If known, the identity of the human remains or cultural items
specifically as human remains, associated funerary objects,
unassociated funerary objects, sacred objects, objects of cultural
patrimony, or both sacred objects and objects of cultural patrimony,
and a brief abstract of the information used to make that
identification; and
(D) If known, the name of each Indian Tribe or Native Hawaiian
organization
[[Page 63247]]
with priority for disposition under paragraph (a) of this section and a
brief abstract of the information used to make that identification.
(iii) At any time before transferring or reinterring human remains
or cultural items under paragraph (e)(4) of this section, the
appropriate official may receive a claim for disposition of the human
remains or cultural items and must evaluate whether the claim meets the
criteria under paragraph (d)(3) of this section. Any agreement to
transfer or decision to reinter the human remains or cultural items
under this paragraph is stayed until the claim for disposition is
resolved under paragraph (d) of this section. No later than 10 days
after receiving a claim for disposition, the appropriate official must
send a written letter to each claimant or requestor identifying all
claimants and requestors and the date each claim or request was
received.
(A) If the claim meets the criteria under paragraph (d)(3) of this
section and a notice of intended disposition was published under
paragraph (d)(2) of this section, the appropriate official must respond
in writing under paragraph (d)(4) and proceed with disposition under
(d)(5) of this section.
(B) If the claim meets the criteria under paragraph (d)(3) of this
section but no notice of intended disposition was published, the
appropriate official must submit a notice of intended disposition under
paragraph (d)(2), respond in writing under paragraph (d)(4), and
proceed with disposition under (d)(5) of this section.
(C) No later than 90 days after responding to a claim for
disposition that meets the criteria, the appropriate official must send
a written letter to each claimant or requestor identifying the claimant
that has control or ownership of the human remains or cultural items.
(D) If the claim does not meet the criteria under paragraph (d)(3)
of this section, the appropriate official must respond in writing under
paragraph (d)(4) and may proceed with transfer or reinterment under
paragraph (e)(2) of this section.
(2) Step 2--Agree to transfer or decide to reinter human remains or
cultural items. Subject to the requirements in paragraph (e)(3) of this
section, and at the discretion of the Federal agency or DHHL, a Federal
agency or DHHL may:
(i) Agree in writing to transfer unclaimed cultural items to a
requestor that agrees to treat the human remains or cultural items
according to the requestor's laws and customs. Unclaimed cultural items
must be requested in writing and may only be requested by:
(A) An Indian Tribe or Native Hawaiian organization, or
(B) An Indian group that is not federally recognized but has a
relationship to unclaimed human remains or associated funerary objects.
(ii) Decide in writing to reinter unclaimed human remains or
funerary objects according to applicable laws and policies.
(3) Step 3--Submit a notice of proposed transfer or reinterment. No
later than 30 days after agreeing to transfer or deciding to reinter
the human remains or cultural items, the Federal agency or DHHL must
submit a notice of proposed transfer or reinterment to the Manager,
National NAGPRA Program for publication in the Federal Register. The
Federal agency or DHHL must send a copy of the published notice to any
Indian Tribe or Native Hawaiian organization identified as having a
priority for disposition under paragraph (a) of this section.
(i) A notice of proposed transfer or reinterment must conform to
the mandatory format of the Federal Register and include:
(A) The details provided in the list of unclaimed cultural items
under paragraph (e)(1) of this section;
(B) The name of each Indian Tribe, Native Hawaiian organization, or
Indian group requesting the human remains or cultural items or a
statement that the Federal agency or DHHL will reinter the human
remains or funerary objects;
(C) The name, phone number, email address, and mailing address for
the appropriate official who is responsible for receiving written
claims for disposition of the human remains or cultural items; and
(D) The date (to be calculated by the Federal Register 30 days from
the date of publication) after which the Federal agency or DHHL may
proceed with the transfer or reinterment of the human remains or
cultural items.
(ii) No later than 15 days after receiving a notice of proposed
transfer or reinterment, the Manager, National NAGPRA Program, will:
(A) Approve for publication in the Federal Register a notice of
proposed transfer or reinterment that conforms to the requirements
under paragraph (e)(3)(i) of this section; or
(B) Return to the Federal agency or DHHL any submission that does
not meet the requirements under paragraph (e)(3)(i) of this section.
(4) Step 4--Transfer or reinter the human remains or cultural
items. No earlier than 30 days and no later than 90 days after
publication of a notice of proposed transfer or reinterment, the
appropriate official must transfer or reinter the human remains or
cultural items.
(i) After transferring or reinterring, the appropriate official
must:
(A) Document the transfer by recording the contents, recipient, and
method of delivery,
(B) Document the reinterment by recording the contents of the
reinterment,
(C) Protect sensitive information about the human remains or
cultural items from disclosure to the general public to the extent
consistent with applicable law.
(ii) After transfer or reinterment occurs, nothing in the Act or
this part:
(A) Limits the authority of the Federal agency or DHHL to enter
into any agreement with the requestor concerning the care or custody of
the human remains or cultural items,
(B) Limits any procedural or substantive right which may otherwise
be secured to the Indian Tribe or Native Hawaiian organization, or
(C) Prevents the governing body of an Indian Tribe or Native
Hawaiian organization from expressly relinquishing its control or
ownership of human remains, funerary objects, or sacred objects.
Subpart C--Repatriation of Human Remains or Cultural Items by
Museums or Federal Agencies
Sec. 10.8 General.
Each museum and Federal agency that has possession or control of a
holding or collection that may contain human remains, funerary objects,
sacred objects, or objects of cultural patrimony must comply with the
requirements of this subpart, regardless of the physical location of
the holding or collection. Each museum and Federal agency must identify
one or more authorized representatives who are responsible for carrying
out the requirements of this subpart.
(a) Museum holding or collection. A museum must comply with this
subpart for all holdings or collections under its possession or control
that contain human remains or cultural items, including a new holding
or collection or a previously lost or previously unknown holding or
collection.
(1) A museum must determine whether it has sufficient interest in a
holding or collection to constitute possession or control on a case-by-
case basis given the relevant information about the holding or
collection.
(i) A museum may have custody of a holding or collection but not
possession
[[Page 63248]]
or control. In general, custody through a loan, lease, license,
bailment, or other similar arrangement is not sufficient interest to
constitute possession or control, which resides with the loaning,
leasing, licensing, bailing, or otherwise transferring museum or
Federal agency.
(ii) If a museum has custody of a holding or collection, the museum
may be required to report the holding or collection under paragraphs
(c) or (d) of this section.
(2) Any museum that completes repatriation of human remains and
cultural items or transfers or reinters human remains and associated
funerary objects in good faith under this subpart shall not be liable
for claims by an aggrieved party or for claims of breach of fiduciary
duty, public trust, or violations of state law that are inconsistent
with the provisions of the Act or this part.
(b) Federal agency holding or collection. A Federal agency must
comply with this subpart for all holdings or collections in its
possession or control that contain human remains and cultural items,
including a previously lost or previously unknown holding or
collection. A Federal agency must determine if a holding or collection:
(1) Was in its possession or control on or before November 16,
1990; or
(2) Came into its possession or control after November 16, 1990,
and was removed from:
(i) An unknown location, or
(ii) Lands that are neither Federal nor Tribal lands as defined in
this part.
(c) Museums with custody of a Federal agency holding or collection.
No later than [DATE 395 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER], each museum that has custody of a
Federal agency holding or collection that contains Native American
human remains or cultural items must submit a statement describing that
holding or collection to the authorized representatives of the Federal
agency most likely to have possession or control and to the Manager,
National NAGPRA Program.
(1) No later than 120 days following receipt of a museum's
statement, the Federal agency must respond to the museum and the
Manager, National NAGPRA program, with a written acknowledgement of one
of the following:
(i) The Federal agency has possession or control of the holding or
collection;
(ii) The Federal agency does not have possession or control of the
holding or collection; or
(iii) The Federal agency and the museum have joint possession or
control of the holding or collection.
(2) Failure to issue such a determination by the deadline will
constitute acknowledgement that the Federal agency has possession or
control. The Federal agency is ultimately responsible for the
requirements of this subpart for all holdings or collections under its
possession or control, regardless of the physical location of the
holdings or collection.
(d) Museums with custody of other holdings or collections. No later
than [DATE 395 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER], each museum that has custody of a holding or
collection that contains Native American human remains or cultural
items and for which it cannot identify any person, institution, State
or local government agency, or Federal agency with possession or
control of the holding or collection, must submit a statement
describing that holding or collection to the Manager, National NAGPRA
Program.
(e) Contesting actions on repatriation. An affected party under
Sec. 10.12(c)(1) who wishes to contest actions made by museums or
Federal agencies under this subpart is encouraged to do so through
informal negotiations to achieve a fair resolution of the matter.
Informal negotiations may include requesting the assistance of the
Manager, National NAGPRA Program, or the Review Committee under Sec.
10.12.
Sec. 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony.
Each museum and Federal agency that has possession or control of a
holding or collection that may contain an unassociated funerary object,
sacred object, or object of cultural patrimony must follow the steps in
this section. The purpose of this section is to provide general
information about a holding or collection to lineal descendants, Indian
Tribes, and Native Hawaiian organizations to facilitate repatriation.
(a) Step 1--Complete a summary of a holding or collection. Based on
the information available, a museum or Federal agency must submit to
the Manager, National NAGPRA Program, a summary describing its holding
or collection that may contain unassociated funerary objects, sacred
objects, and objects of cultural patrimony. Depending on the scope of
the holding or collection, a museum or Federal agency may organize its
summary into sections based on geographic area, accession or catalog
name or number, or other defining attributes. A museum or Federal
agency must ensure the summary is comprehensive and covers all holdings
or collections relevant to this section.
(1) A summary must include:
(i) The estimated number and a general description of the holding
or collection, including any potential unassociated funerary objects,
sacred objects, and objects of cultural patrimony;
(ii) The county and state where the potential unassociated funerary
objects, sacred objects, and objects of cultural patrimony were
removed;
(iii) The acquisition history (provenance) of the potential
unassociated funerary objects, sacred objects, and objects of cultural
patrimony;
(iv) Other information relevant for identifying:
(A) A lineal descendant or an Indian Tribe or Native Hawaiian
organization with cultural affiliation;
(B) Any object or item as an unassociated funerary object, sacred
object, or object of cultural patrimony; and
(v) The presence of any potentially hazardous substances used to
treat any of the unassociated funerary objects, sacred objects, or
objects of cultural patrimony, if known.
(2) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], a museum or Federal agency must submit a
summary to the Manager, National NAGPRA Program, by the deadline in
Table 1 of this section.
(3) Prior to [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER], a museum or Federal agency must have
submitted a summary to the Manager, National NAGPRA Program:
(i) By November 16, 1993, for unassociated funerary objects, sacred
objects, and objects of cultural patrimony subject to the Act;
(ii) By October 20, 2007, for unassociated funerary objects, sacred
objects, and objects of cultural patrimony acquired or located after
November 16, 1993;
(iii) By April 20, 2010, for unassociated funerary objects, sacred
objects, and objects of cultural patrimony in the possession or control
of a museum that received Federal funds for the first time after
November 16, 1993;
(iv) Within six months of acquiring or locating unassociated
funerary objects,
[[Page 63249]]
sacred objects, and objects of cultural patrimony after October 20,
2007; or
(v) Within three years of receiving Federal funds for the first
time after April 20, 2010.
(4) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], when a holding or collection previously
included in a summary is transferred to a museum or Federal agency, The
museum or Federal agency acquiring possession or control of the holding
or collection may rely on the previously completed summary. The museum
or Federal agency must submit the previously completed summary to the
Manager, National NAGPRA Program, no later than 30 days after acquiring
the holding or collection. The museum or Federal agency must submit a
summary to the Manager, National NAGPRA Program, no later than the
deadline in Table 1 of this section and must initiate consultation
under paragraph (b) of this section.
(b) Step 2--Initiate consultation. No later than 30 days after
completing a summary, a museum or Federal agency must identify
consulting parties based on information available and make a good-faith
effort to invite the parties to consult.
(1) Consulting parties are any lineal descendant and any Indian
Tribe or Native Hawaiian organization with potential affiliation.
(2) An invitation to consult must be in writing and must include:
(i) The summary described in paragraph (a)(1) of this section;
(ii) The names of all identified consulting parties; and
(iii) A proposed timeline and method for consultation.
(3) Any consulting party, regardless of whether the party has
received an invitation to consult, must submit a written request to
consult. A written request to consult may be submitted at any time
before the publication of a notice of intended repatriation under
paragraph (f) of this section.
(4) When a museum or Federal agency identifies a new consulting
party under paragraph (b)(1) of this section, the museum or Federal
agency must make a good-faith effort to invite the party to consult and
must send an invitation to consult under paragraph (b)(2) of this
section. An invitation to consult must be sent to new consulting
parties:
(i) No later than 10 days after identifying a new consulting party
based on new information; or
(ii) No later than six months after the addition of a Tribal entity
to the list of federally recognized Indian Tribes published in the
Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C.
5131).
(c) Step 3--Consult with requesting parties. No later than 10 days
after receiving a written request to consult, a museum or Federal
agency must respond in writing with a proposed timeline for
consultation. Consultation on an unassociated funerary object, sacred
object, or object of cultural patrimony may continue until the museum
or Federal agency sends a repatriation statement for that object to a
requestor under paragraph (g) of this section.
(1) In the response to the requesting party, a museum or Federal
agency must ask a requesting party for the following information, if
not already provided:
(i) Recommendations on the proposed timeline and method for
consultation; and
(ii) The name, phone number, email address, or mailing address for
any authorized representative, traditional religious leader, and known
lineal descendant who should participate in consultation.
(2) The consultation process must seek consensus, to the maximum
extent possible, on determining:
(i) Lineal descendants;
(ii) Indian Tribes or Native Hawaiian organizations with cultural
affiliation;
(iii) The types of objects that might be unassociated funerary
objects, sacred objects, or objects of cultural patrimony; and
(iv) The appropriate treatment, care, and handling of unassociated
funerary objects, sacred objects, or objects of cultural patrimony.
(3) The museum or Federal agency must prepare a record of
consultation that includes the effort made to seek consensus. If
recommendations by requesting parties are not possible, the record of
consultation must describe efforts to identify a mutually agreeable
alternative. For any determination considered during the consultation
process, the museum or Federal agency must record the concurrence,
disagreement, or nonresponse of the requesting parties.
(4) At any time before a museum or Federal agency sends a
repatriation statement for an unassociated funerary object, sacred
object, or object of cultural patrimony to a requestor under paragraph
(g) of this section, the museum or Federal agency may receive a request
from a consulting party for access to records, catalogues, relevant
studies, or other pertinent data related to the holding or collection.
A museum or Federal agency must provide access to the additional
information in a reasonable manner and for the limited purpose of
determining affiliation and acquisition history of the unassociated
funerary object, sacred object, or object of cultural patrimony.
(d) Step 4--Receive and consider a request for repatriation. After
a summary is complete, any lineal descendant, Indian Tribe, or Native
Hawaiian organization may submit to the museum or Federal agency a
written request for repatriation of an unassociated funerary object,
sacred object, or object of cultural patrimony.
(1) A request for repatriation of an unassociated funerary object,
sacred object, or object of cultural patrimony must be received by the
museum or Federal agency before the museum or Federal agency sends a
repatriation statement for that unassociated funerary object, sacred
object, or object of cultural patrimony to a requestor under paragraph
(g) of this section. A request for repatriation received by the museum
or Federal agency before the deadline for completing a summary is dated
the same date as the deadline for completing the summary.
(2) Requests from two or more lineal descendants, Indian Tribes, or
Native Hawaiian organizations who agree to joint repatriation of the
unassociated funerary object, sacred object, or object of cultural
patrimony are considered a single request and not competing requests.
(3) A request for repatriation must satisfy all the following
criteria:
(i) Each unassociated funerary object, sacred object, or object of
cultural patrimony being requested meets the definition of an
unassociated funerary object, a sacred object, or an object of cultural
patrimony;
(ii) The request is from a lineal descendant or an Indian Tribe or
Native Hawaiian organization with cultural affiliation; and
(iii) The request includes information to support a finding that
the museum or Federal agency does not have right of possession to the
unassociated funerary object, sacred object, or object of cultural
patrimony.
(e) Step 5--Respond to a request for repatriation. No later than 60
days after receiving a request for repatriation, a museum or Federal
agency must send a written response to the requestor. Using all
information available, including relevant records, catalogs, existing
studies, and the results of consultation, a museum or Federal agency
must determine if the request for repatriation satisfies the criteria
under paragraph (d) of this section. In the written response, the
museum or Federal agency must state one of the following:
[[Page 63250]]
(1) The request meets the criteria under paragraph (d) of this
section. The museum or Federal agency will submit a notice of intended
repatriation under paragraph (f) of this section.
(2) The request does not meet the criteria under paragraph (d) of
this section. The museum or Federal agency must provide a detailed
explanation why the request does not meet the criteria and an
opportunity for the requestor to provide additional information to meet
the criteria.
(3) The request meets the criteria under paragraph (d)(3)(i) and
(ii) of this section, but the museum or Federal agency asserts a right
of possession to the unassociated funerary object, sacred object, or
object of cultural patrimony and refuses to complete repatriation of
the requested object to the requestor. The museum or Federal agency
must provide information to prove that the museum or Federal agency has
a right of possession to the unassociated funerary object, sacred
object, or object of cultural patrimony.
(4) The museum or Federal agency has received competing requests
for repatriation of the unassociated funerary object, sacred object, or
object of cultural patrimony that meet the criteria and must determine
the most appropriate requestor using the procedures and timelines under
paragraph (h) of this section.
(f) Step 6--Submit a notice of intended repatriation. No later than
30 days after responding to a request for repatriation that meets the
criteria, a museum or Federal agency must submit a notice of intended
repatriation to the Manager, National NAGPRA Program, for publication
in the Federal Register. The museum or Federal agency may include in a
single notice all unassociated funerary objects, sacred objects, or
objects of cultural patrimony with the same requestor.
(1) A notice of intended repatriation must conform to the mandatory
format of the Federal Register and include:
(i) The number of unassociated funerary object, sacred object, or
object of cultural patrimony and a brief description of each object
(counted separately or by lot);
(ii) The county and state where the unassociated funerary object,
sacred object, or object of cultural patrimony were removed;
(iii) The acquisition history (provenance) of the unassociated
funerary object, sacred object, or object of cultural patrimony,
including the circumstances surrounding its acquisition;
(iv) The identity of each unassociated funerary object, sacred
object, or object of cultural patrimony specifically as an unassociated
funerary object, a sacred object, an object of cultural patrimony, or
both a sacred object and an object of cultural patrimony, and a brief
abstract of the information used to make that identification;
(v) The lineal descendant, Indian Tribe, or Native Hawaiian
organization requesting repatriation of the unassociated funerary
object, sacred object, or object of cultural patrimony and a brief
abstract of the information showing the requestor is a lineal
descendant or an Indian Tribe or Native Hawaiian organization with
cultural affiliation;
(vi) Information about the presence of any potentially hazardous
substances used to treat the unassociated funerary object, sacred
object, or object of cultural patrimony, if known;
(vii) The name, phone number, email address, and mailing address
for the authorized representative of the museum or Federal agency who
is responsible for receiving requests for repatriation; and
(viii) The date (to be calculated by the Federal Register 30 days
from the date of publication) after which the museum or Federal agency
may send a repatriation statement to the requestor.
(2) No later than 15 days after receiving a notice of intended
repatriation, the Manager, National NAGPRA Program, will:
(i) Approve for publication in the Federal Register a notice of
intended repatriation that conforms to the requirements under paragraph
(f)(1) of this section; or
(ii) Return to the museum or Federal agency any submission that
does not meet the requirements under paragraph (f)(1) of this section.
(3) If the number or identity of unassociated funerary objects,
sacred objects, or objects of cultural patrimony stated in a published
notice of intended repatriation changes before the museum or Federal
agency sends a repatriation statement under paragraph (g) of this
section, the museum or Federal agency must submit a correction notice
to the Manager, National NAGPRA Program. A museum or Federal agency is
not required to submit a correction notice if there are additional
pieces belonging to an unassociated funerary object, sacred object, or
object of cultural patrimony previously identified in a notice and
repatriation is to the same requestor. No later than 10 days after
determining the new number or new identity of the unassociated funerary
object, sacred object, or object of cultural patrimony, the museum or
Federal agency must submit a correction notice containing, as
applicable:
(i) The corrected number of unassociated funerary object, sacred
object, or object of cultural patrimony and corrected brief description
of each object;
(ii) The corrected identity of the unassociated funerary objects,
sacred objects, or objects of cultural patrimony specifically as an
unassociated funerary object, a sacred object, an object of cultural
patrimony, or both a sacred object and an object of cultural patrimony,
and corrected brief abstract of the information used to make that
identification;
(iii) The name, phone number, email address, and mailing address
for the authorized representative of the museum or Federal agency who
is responsible for receiving requests for repatriation; and
(iv) The date (to be calculated by the Federal Register 30 days
from the date of publication) after which the museum or Federal agency
may send a repatriation statement to the requestor.
(4) At any time before sending a repatriation statement for an
unassociated funerary object, sacred object, or object of cultural
patrimony under paragraph (g) of this section, the museum or Federal
agency may receive additional, competing requests for repatriation of
that object that meet the criteria under paragraph (d) of this section.
The museum or Federal agency must determine the most appropriate
requestor the procedures and timelines under paragraph (h) of this
section.
(g) Step 7--Repatriation of the unassociated funerary object,
sacred object, or object of cultural patrimony. No earlier than 30 days
and no later than 90 days after publication of a notice of intended
repatriation, a museum or Federal agency must send a written
repatriation statement to the requestor and a copy to the Manager,
National NAGPRA Program. The repatriation statement must acknowledge
and recognize the requestor has control or ownership of the requested
unassociated funerary object, sacred object, or object of cultural
patrimony. In the case of joint requests for repatriation, the
repatriation statement must be sent to and must identify all
requestors.
(1) Before sending the repatriation statement, the museum or
Federal agency must consult with the requestor on the care, custody,
and physical transfer of the unassociated funerary object, sacred
object, or object of cultural patrimony,
[[Page 63251]]
(2) After sending the repatriation statement, the museum or Federal
agency must:
(i) Document any physical transfer of the unassociated funerary
object, sacred object, or object of cultural patrimony by recording the
contents, recipient, and method of delivery, and
(ii) Protect sensitive information, as identified by the requestor,
from disclosure to the general public to the extent consistent with
applicable law.
(3) After the repatriation statement is sent, nothing in the Act or
this part limits the authority of the museum or Federal agency to enter
into any agreement with the requestor concerning the care or custody of
the unassociated funerary object, sacred object, or object of cultural
patrimony.
(h) Evaluating competing requests for repatriation. At any time
before sending a repatriation statement for an unassociated funerary
object, sacred object, or object of cultural patrimony under paragraph
(g) of this section, a museum or Federal agency may receive additional,
competing requests for repatriation of that object that meet the
criteria under paragraph (d) of this section. The museum or Federal
agency must determine the most appropriate requestor using this
paragraph.
(1) For an unassociated funerary object or sacred object, in the
following priority order, the most appropriate requestor is:
(i) The lineal descendant, if any, or
(ii) The Indian Tribe or Native Hawaiian organization with the
closest cultural affiliation according to the priority order at Sec.
10.3(d).
(2) For an object of cultural patrimony, the most appropriate
requestor is the Indian Tribe or Native Hawaiian organization with the
closest cultural affiliation according to the priority order at Sec.
10.3(d).
(3) No later than 10 days after receiving a competing request, a
museum or Federal agency must send a written letter to each requestor
identifying all requestors and the date each request was received.
(4) No later than 120 days after informing the requestors of
competing requests, a museum or Federal agency must send a written
determination to each requestor and the Manager, National NAGPRA
Program. The determination must be one of the following:
(i) The most appropriate requestor has been determined and the
competing requests were received before the publication of a notice of
intended repatriation. The museum or Federal agency must:
(A) Identify the most appropriate requestor and explain how the
determination was made,
(B) Submit a notice of intended repatriation in accordance with
paragraph (f) of this section no later than 30 days after sending the
determination, and
(C) No earlier than 30 days and no later than 90 days after
publication of the notice of intended repatriation, the museum or
Federal agency must send a repatriation statement to the most
appropriate requestor under paragraph (g) of this section.
(ii) The most appropriate requestor has been determined and a
notice of intended repatriation was previously published. The museum or
Federal agency must:
(A) Identify the most appropriate requestor and explain how the
determination was made,
(B) No earlier than 30 days and no later than 90 days after sending
a determination of the most appropriate requestor, the museum or
Federal agency must send a repatriation statement to the most
appropriate requestor under paragraph (g) of this section.
(iii) The most appropriate requestor cannot be determined, and the
repatriation is stayed under paragraph (i) of this section. The museum
or Federal agency must explain why the most appropriate requestor could
not be determined.
(i) Stay of repatriation. Repatriation under paragraph (g) of this
section is stayed if:
(1) A court of competent jurisdiction has enjoined the
repatriation. When there is a final resolution of the legal case or
controversy in favor of a requestor, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written
statement of the resolution to each requestor and the Manager, National
NAGPRA Program,
(ii) No earlier than 30 days and no later than 90 days after
sending the written statement, the museum or Federal agency must send a
repatriation statement to the requestor under paragraph (g) of this
section, unless a court of competent jurisdiction directs otherwise.
(2) The museum or Federal agency has received competing requests
for repatriation and, after complying with paragraph (h) of this
section, cannot determine the most appropriate requestor. When a most
appropriate requestor is determined by an agreement between the
parties, binding arbitration, or means of resolution other than through
a court of competent jurisdiction, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written
determination to each requestor and the Manager, National NAGPRA
Program,
(ii) No earlier than 30 days and no later than 90 days after
sending the determination, the museum or Federal agency must send a
repatriation statement to the requestor under paragraph (g) of this
section.
(3) Before the publication of a notice of intended repatriation
under paragraph (f) of this section, the museum or Federal agency has
both requested and received the Secretary's written concurrence that
the unassociated funerary object, sacred object, or object of cultural
patrimony is indispensable for completion of a specific scientific
study, the outcome of which would be of major benefit to the people of
the United States.
(i) To request the Secretary's concurrence, the museum or Federal
agency must send to the Manager, National NAGPRA Program, a written
request of no more than 10 double-spaced pages. The written request
must:
(A) Be on the letterhead of the requesting museum or Federal agency
and be signed by an authorized representative;
(B) Describe the specific scientific study, the date on which the
study commenced, and how the study would be of major benefit to the
people of the United States;
(C) Explain why retention of the unassociated funerary object,
sacred object, or object of cultural patrimony is indispensable for
completion of the study;
(D) Describe the steps required to complete the study, including
any destructive analysis, and provide a completion schedule and
completion date;
(E) Provide the position titles of the persons responsible for each
step in the schedule; and
(F) Affirm that the study has in place the requisite funding.
(ii) If the Secretary concurs with the request, the Secretary will
send a written concurrence and specify the date by which the scientific
study must be completed.
(iii) No later than 30 days after the completion date in the
Secretary's concurrence, the museum or Federal agency must submit a
notice of intended repatriation in accordance with paragraph (f) of
this section.
(iv) No earlier than 30 days and no later than 90 days after
publication of the notice of intended repatriation, the museum or
Federal agency must send a
[[Page 63252]]
repatriation statement to the requestor under paragraph (g) of this
section.
Table 1 to Sec. 10.9--Deadlines for Completing a Summary
------------------------------------------------------------------------
. . . a summary must be
If a museum or Federal agency . . . submitted . . .
------------------------------------------------------------------------
acquires possession or control of 6 months after acquiring
unassociated funerary objects, sacred possession or control of the
objects, or objects of cultural unassociated funerary objects,
patrimony. sacred objects, or objects of
cultural patrimony.
locates previously lost or unknown 6 months after locating the
unassociated funerary objects, sacred unassociated funerary objects,
objects, or objects of cultural sacred objects, or objects of
patrimony. cultural patrimony.
receives Federal funds for the first 3 years after receiving Federal
time after [DATE 30 DAYS AFTER DATE OF funds for the first time after
PUBLICATION OF THE FINAL RULE IN THE [DATE 30 DAYS AFTER DATE OF
FEDERAL REGISTER], and has possession PUBLICATION OF THE FINAL RULE
or control of unassociated funerary IN THE FEDERAL REGISTER].
objects, sacred objects, or objects of
cultural patrimony.
------------------------------------------------------------------------
Sec. 10.10 Repatriation of human remains and associated funerary
objects.
Each museum and Federal agency that has possession or control of a
holding or collection that contains human remains or associated
funerary objects must follow the steps in this section. The purpose of
this section is to provide determinations, following consultation,
about human remains and associated funerary objects to lineal
descendants, Indian Tribes, and Native Hawaiian organizations to
facilitate repatriation.
(a) Step 1--Compile an itemized list of human remains and
associated funerary objects. Based on information available, a museum
or Federal agency must compile a simple itemized list of the human
remains and associated funerary objects in its holding or collection.
Depending on the scope of the holding or collection, a museum or
Federal agency may organize its inventory into sections based on
geographic area, accession or catalog name or number, or other defining
attributes. A museum or Federal agency must ensure the itemized list is
comprehensive and covers all holdings or collections relevant to this
section. The itemized list must include:
(1) The number of individuals determined in a reasonable manner
based on the information available. No additional study or analysis is
required to determine the number of individuals. If human remains are
in a holding or collection, the number of individuals is at least one;
(2) The number of associated funerary objects and types of objects
(counted separately or by lot);
(3) The county and state where the human remains and associated
funerary objects were removed;
(4) The acquisition history (provenance) of the human remains and
associated funerary objects;
(5) Other information relevant for identifying a lineal descendant
or an Indian Tribe or Native Hawaiian organization with cultural or
geographical affiliation; and
(6) The presence of any potentially hazardous substances used to
treat any of the human remains or associated funerary objects, if
known.
(b) Step 2--Initiate consultation. Based on information available,
a museum or Federal agency must identify consulting parties and make a
good-faith effort to invite the parties to consult.
(1) Consulting parties are any lineal descendant and any Indian
Tribe or Native Hawaiian organization with potential affiliation.
(2) An invitation to consult must be in writing and must include:
(i) The simple itemized list described in paragraph (a) of this
section;
(ii) The names of all identified consulting parties; and
(iii) A proposed timeline and method for consultation.
(3) Any consulting party, regardless of whether the party has
received an invitation to consult, must submit a written request to
consult. A written request to consult may be submitted at any time
before the publication of a notice of inventory completion under
paragraph (e) of this section.
(4) When a museum or Federal agency identifies a new consulting
party under paragraph (b)(1) of this section, the museum or Federal
agency must make a good-faith effort to invite the party to consult and
must send an invitation to consult under paragraph (b)(2) of this
section. An invitation to consult must be sent to new consulting
parties:
(i) No later than 10 days after identifying a new consulting party
based on new information; or
(ii) No later than two years after the addition of a Tribal entity
to the list of federally recognized Indian Tribes published in the
Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C.
5131).
(c) Step 3--Consult with requesting parties. No later than 10 days
after receiving a written request to consult, a museum or Federal
agency must respond in writing with a proposed timeline for
consultation. Consultation on human remains and associated funerary
objects may continue until the museum or Federal agency sends a
repatriation statement for those human remains and associated funerary
objects to a requestor under paragraph (h) of this section.
(1) In the response to the requesting party, a museum or Federal
agency must ask a requesting party for the following information, if
not already provided:
(i) Recommendations on the proposed timeline and method for
consultation; and
(ii) The name, phone number, email address, or mailing address for
any authorized representative, traditional religious leaders, and known
lineal descendant who should participate in consultation.
(2) The consultation process must seek consensus, to the maximum
extent possible, on determining:
(i) Lineal descendants;
(ii) Indian Tribes or Native Hawaiian organizations with cultural
or geographical affiliation;
(iii) The types of objects that might be associated funerary
objects, including any objects that were made exclusively for burial
purposes or to contain human remains; and
(iv) The appropriate treatment, care, and handling of human remains
and associated funerary objects.
(3) The museum or Federal agency must prepare a record of
consultation that includes the effort made to seek consensus. If
recommendations by requesting parties are not possible, the record of
consultation must describe efforts to identify a mutually agreeable
alternative. For any determination considered during the consultation
process, the museum or Federal agency must record the concurrence,
disagreement, or nonresponse of the requesting parties.
(4) At any time before the museum or Federal agency sends a
repatriation statement for human remains and associated funerary
objects to a
[[Page 63253]]
requestor under paragraph (h) of this section, a museum or Federal
agency may receive a request from a consulting party for access to
records, catalogues, relevant studies, or other pertinent data related
to those human remains and associated funerary objects. A museum or
Federal agency must provide access to the additional information in a
reasonable manner and for the limited purpose of determining
affiliation and acquisition history of the human remains and associated
funerary objects.
(d) Step 4--Complete an inventory of human remains and associated
funerary objects. Based on information available and the results of
consultation, a museum or Federal agency must submit to all consulting
parties and the Manager, National NAGPRA Program, an inventory of all
human remains and associated funerary objects in its holding or
collection.
(1) An inventory must include:
(i) The names of all consulting parties and an abstract of the
results of consultation;
(ii) The information from the simple itemized list compiled under
paragraph (a) of this section;
(iii) For each entry in the itemized list, a determination of one
or more of the following:
(A) There is a known lineal descendant,
(B) There is a connection between the human remains and associated
funerary objects and an Indian Tribe or Native Hawaiian organization
through cultural affiliation,
(C) There is a connection between the human remains and associated
funerary objects and an Indian Tribe or Native Hawaiian organization
through geographical affiliation, or
(D) There is no connection between the human remains and associated
funerary objects and any Indian Tribe or Native Hawaiian organization;
and
(iv) An abstract of the information supporting that determination
including:
(A) The lineal descendant or the Indian Tribe or Native Hawaiian
organization with cultural or geographical affiliation, or
(B) An explanation why no Indian Tribes or Native Hawaiian
organizations with cultural or geographical affiliation could be
reasonably identified.
(2) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], a museum or Federal agency must submit an
inventory to all consulting parties and the Manager, National NAGPRA
Program, by the deadline in Table 1 of this section.
(3) Prior to [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER], a museum or Federal agency must have
submitted an inventory to all consulting parties and the Manager,
National NAGPRA Program:
(i) By November 16, 1995, for human remains or associated funerary
objects subject to the Act;
(ii) By April 20, 2009, for human remains or associated funerary
objects acquired or located after November 16, 1995;
(iii) By April 20, 2012, for human remains or associated funerary
objects in the possession or control of a museum that received Federal
funds for the first time after November 16, 1995;
(iv) Within two years of acquiring or locating the human remains or
associated funerary objects after April 20, 2009; or
(v) Within five years of receiving Federal funds for the first time
after April 20, 2012.
(4) No later than [DATE 760 DAYS AFTER DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL REGISTER], for any human remains or
associated funerary objects listed in an inventory but not published in
a notice of inventory completion prior to [DATE 30 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], a museum or
Federal agency must:
(i) Initiate consultation as described under paragraph (b) of this
section;
(ii) Consult with requesting parties as described under paragraph
(c) of this section;
(iii) Update its inventory to include the requirements described
under paragraph (d)(1) of this section and ensure the inventory is
comprehensive and covers all holdings or collections relevant to this
section; and
(iv) Submit an updated inventory to all consulting parties and the
Manager, National NAGPRA Program.
(5) Any museum may request an extension to complete or update its
inventory if it has made a good faith effort but will be unable to do
so by the appropriate deadline. A request for an extension must be
submitted to the Manager, National NAGPRA Program, before the
appropriate deadline. The Manager, National NAGPRA Program will publish
in the Federal Register a list of all museums who request an extension
and the Secretary's determination on the request. A request for an
extension must include:
(i) Information showing the initiation of consultation and any
requests to consult;
(ii) The names of all consulting parties and an abstract of the
results of consultation;
(iii) The estimated number of the human remains and associated
funerary objects in the holding or collection; and
(iv) A written plan for completing or updating the inventory, which
includes, at minimum:
(A) The specific steps required to complete or update the
inventory;
(B) A schedule for completing each step and estimated inventory
completion or update date;
(C) Position titles of the persons responsible for each step in the
schedule; and
(D) A proposal to obtain any requisite funding needed to complete
or update the inventory.
(6) After [DATE 30 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], when a holding or collection previously
included in an inventory is transferred to a museum or Federal Agency,
subject to the limitations in 18 U.S.C. 1170 (a), the museum or Federal
agency acquiring possession or control of the holding or collection may
rely on the previously completed or updated inventory. The museum or
Federal agency must submit the previously completed or updated
inventory to the Manager, National NAGPRA Program no later than 30 days
after acquiring the holding or collection and must initiate
consultation under paragraph (b) of this section. The museum or Federal
agency must submit an inventory to all consulting parties and the
Manager, National NAGPRA Program, no later than the deadline in Table 1
of this section.
(e) Step 5--Submit a notice of inventory completion. No later than
six months after completing or updating an inventory under paragraph
(d) of this section, a museum or Federal agency must submit a notice of
inventory completion for human remains and associated funerary objects
with a known lineal descendant or a connection to an Indian Tribe or
Native Hawaiian organization with cultural or geographical affiliation.
The museum or Federal agency may include in a single notice all human
remains and associated funerary objects having the same lineal
descendant or the same Indian Tribes or Native Hawaiian organizations
with cultural or geographical affiliation.
(1) The notice of inventory completion must be sent to the:
(i) Lineal descendants and Indian Tribes or Native Hawaiian
organizations identified in the inventory, and
[[Page 63254]]
(ii) Manager, National NAGPRA Program, for publication in the
Federal Register.
(2) A notice of inventory completion must conform to the mandatory
format of the Federal Register and include:
(i) The number of individuals determined in a reasonable manner
based on the information available. No additional study or analysis is
required to determine the number of individuals. If human remains are
in a holding or collection, the number of individuals is at least one.
(ii) The number of associated funerary objects and types of objects
(counted separately or by lot);
(iii) The county and state where the human remains and associated
funerary objects were removed;
(iv) The acquisition history (provenance) of the human remains and
associated funerary objects, including the circumstances surrounding
their acquisition;
(v) The lineal descendant or an Indian Tribe or Native Hawaiian
organization with cultural or geographical affiliation and a brief
abstract of the information used to make that identification;
(vi) When cultural affiliation has been determined, a statement
whether cultural affiliation was clearly identified or was based on the
totality of the circumstances surrounding acquisition history of the
human remains and associated funerary objects;
(vii) Information about the presence of any potentially hazardous
substances used to treat the human remains or associated funerary
objects, if known;
(viii) The name, phone number, email address, and mailing address
for the authorized representative of the museum or Federal agency who
is responsible for receiving requests for repatriation; and
(ix) The date (to be calculated by the Federal Register 30 days
from the date of publication) after which the museum or Federal agency
may send a repatriation statement to a requestor.
(3) No later than 15 days after receiving a notice of inventory
completion, the Manager, National NAGPRA Program, will:
(i) Approve for publication in the Federal Register a notice of
inventory completion that conforms to the requirements under paragraph
(e)(2) of this section; or
(ii) Return to the museum or Federal agency any submission that
does not meet the requirements under paragraph (e)(2) of this section.
(4) If the number of individuals or the number of associated
funerary objects stated in a published notice of inventory completion
changes before the museum or Federal agency sends a repatriation
statement under paragraph (h) of this section, the museum or Federal
agency must submit a correction notice to the Manager, National NAGPRA
Program. A museum or Federal agency is not required to publish a
correction notice if there are additional pieces belonging to human
remains or associated funerary objects previously identified in a
notice and repatriation is to the same requestor. No later than 10 days
after determining the new number of individuals or associated funerary
objects, the museum or Federal agency must submit a correction notice
containing, as applicable:
(i) The corrected number of individuals;
(ii) The corrected number of associated funerary objects and types
of objects,
(iii) The name, phone number, email address, and mailing address
for the authorized representative of the museum or Federal agency who
is responsible for receiving requests for repatriation, and
(iv) The date (to be calculated by the Federal Register 30 days
from the date of publication) after which the museum or Federal agency
may send a repatriation statement to the requestor.
(f) Step 6--Receive and consider a request for repatriation. After
publication of a notice of inventory completion in the Federal
Register, any lineal descendant, Indian Tribe, or Native Hawaiian
organization may submit to the museum or Federal agency a written
request for repatriation of human remains and associated funerary
objects.
(1) A request for repatriation of human remains and associated
funerary objects must be received by the museum or Federal agency
before the museum or Federal agency sends a repatriation statement for
those human remains and associated funerary objects under paragraph (h)
of this section. Any request for repatriation received by the museum or
Federal agency no later than 30 days after publication of a notice must
be considered. A request for repatriation received by the museum or
Federal agency before the publication of the notice of inventory
completion is dated the same date the notice was published.
(2) Requests from two or more lineal descendants, Indian Tribes, or
Native Hawaiian organizations who agree to joint repatriation of the
human remains and associated funerary objects are considered a single
request and not competing requests.
(3) A request for repatriation must satisfy one of the following
criteria:
(i) The request is from a lineal descendant, Indian Tribe, or
Native Hawaiian organization identified in the notice of inventory
completion, or
(ii) The request is not from a lineal descendant, Indian Tribe, or
Native Hawaiian organization identified in the notice of inventory
completion, and shows, by a preponderance of the evidence, that the
requestor is a lineal descendant or an Indian Tribe or Native Hawaiian
organization with cultural or geographical affiliation.
(g) Step 7--Respond to a request for repatriation. No earlier than
30 days after publication of a notice of inventory completion but no
later than 30 days after receiving a request for repatriation, a museum
or Federal agency must send a written response to the requestor with a
copy to any other party identified in the notice of inventory
completion. Using all information available, including relevant
records, catalogs, existing studies, and the results of consultation, a
museum or Federal agency must determine if the request satisfies the
criteria under paragraph (f) of this section.
(1) In the written response, the museum or Federal agency must
state one of the following:
(i) The request meets the criteria under paragraph (f) of this
section. The museum or Federal agency will send a repatriation
statement to the requestor under paragraph (h) of this section, unless
the museum or Federal agency receives additional, competing requests
for repatriation.
(ii) The request does not meet the criteria under paragraph (f) of
this section. The museum or Federal agency must provide a detailed
explanation why the request does not meet the criteria, and an
opportunity for the requestor to provide additional information to meet
the criteria.
(iii) The museum or Federal agency has received competing requests
for repatriation that meet the criteria and must determine the most
appropriate requestor using the procedures and timelines under
paragraph (i) of this section.
(2) At any time before sending a repatriation statement for human
remains and associated funerary objects under paragraph (h) of this
section, the museum or Federal agency may receive additional, competing
requests for repatriation of those human remains and associated
funerary objects that meet the criteria under paragraph (f) of this
section. The museum or Federal agency must determine the most
appropriate requestor the procedures and timelines under paragraph (i)
of this section.
[[Page 63255]]
(h) Step 8--Repatriation of the human remains and associated
funerary objects. No later than 90 days after responding to a request
for repatriation that meets the criteria, a museum or Federal agency
must send a written repatriation statement to the requestor and a copy
to the Manager, National NAGPRA Program. The repatriation statement
must acknowledge and recognize the requestor has control or ownership
of the requested human remains and associated funerary objects. In the
case of joint requests for repatriation, the repatriation statement
must be sent to and must identify all requestors.
(1) Before sending the repatriation statement, the museum or
Federal agency must consult with the requestor on the care, custody,
and physical transfer of the human remains and associated funerary
objects.
(2) After sending the repatriation statement, the museum or Federal
agency must:
(i) Document any physical transfer of the human remains and
associated funerary objects by recording the contents, recipient, and
method of delivery, and
(ii) Protect sensitive information, as identified by the requestor,
from disclosure to the general public to the extent consistent with
applicable law.
(3) After the repatriation statement is sent, nothing in the Act or
this part limits the authority of the museum or Federal agency to enter
into any agreement with the requestor concerning the care or custody of
the human remains and associated funerary objects.
(i) Evaluating competing requests for repatriation. At any time
before sending a repatriation statement for human remains and
associated funerary objects under paragraph (h) of this section, a
museum or Federal agency may receive additional, competing requests for
repatriation of those human remains and associated funerary objects
that meets the criteria under paragraph (f) of this section. The museum
or Federal agency must determine the most appropriate requestor using
this paragraph.
(1) In the following priority order, the most appropriate requestor
is:
(i) The known lineal descendant, if any; or
(ii) The Indian Tribe or Native Hawaiian organization with the
closest affiliation according to the priority order at Sec. 10.3(d).
(2) No later than 10 days after receiving a competing request, a
museum or Federal agency must send a written letter to each requestor
identifying all requestors and the date each request for repatriation
was received.
(3) No later than 120 days after informing the requestors of
competing requests, a museum or Federal agency must send a written
determination to each requestor and the Manager, National NAGPRA
Program. The determination must be one of the following:
(i) The most appropriate requestor has been determined. The museum
or Federal agency must:
(A) Identify the most appropriate requestor and explain how the
determination was made,
(B) No earlier than 30 days and no later than 90 days after sending
a determination of the most appropriate requestor, the museum or
Federal agency must send a repatriation statement to the most
appropriate requestor under paragraph (h) of this section.
(ii) The most appropriate requestor cannot be determined, and the
repatriation is stayed under paragraph (j) of this section. The museum
or Federal agency must explain why the most appropriate requestor could
not be determined.
(j) Stay of repatriation. Repatriation under paragraph (h) of this
section is stayed if:
(1) A court of competent jurisdiction has enjoined the
repatriation. When there is a final resolution of the legal case or
controversy in favor of a requestor, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written
statement of the resolution to each requestor and the Manager, National
NAGPRA Program,
(ii) No earlier than 30 days and no later than 90 days after
sending the written statement, the museum or Federal agency must send a
repatriation statement to the requestor under paragraph (h) of this
section, unless a court of competent jurisdiction directs otherwise.
(2) The museum or Federal agency has received competing requests
for repatriation and, after complying with paragraph (i) of this
section, cannot determine the most appropriate requestor. When a most
appropriate requestor is determined by an agreement between the
parties, binding arbitration, or means of resolution other than through
a court of competent jurisdiction, the museum or Federal agency must:
(i) No later than 10 days after a resolution, send a written
determination to each requestor and the Manager, National NAGPRA
Program,
(ii) No earlier than 30 days and no later than 90 days after
sending the determination, the museum or Federal agency must send a
repatriation statement to the requestor under paragraph (h) of this
section.
(3) Before the publication of a notice of inventory completion
under paragraph (e) of this section, the museum or Federal agency has
both requested and received the Secretary's written concurrence that
the human remains and associated funerary objects are indispensable for
completion of a specific scientific study, the outcome of which would
be of major benefit to the people of the United States.
(i) To request the Secretary's concurrence, the museum or Federal
agency must send to the Manager, National NAGPRA Program, a written
request of no more than 10 double-spaced pages. The written request
must:
(A) Be on the letterhead of the requesting museum or Federal agency
and be signed by an authorized representative;
(B) Describe the specific scientific study, the date on which the
study commenced, and how the study would be of major benefit to the
people of the United States;
(C) Explain why retention of the human remains and associated
funerary objects is indispensable for completion of the study;
(D) Describe the steps required to complete the study, including
any destructive analysis, and provide a completion schedule and
completion date;
(E) Provide the position titles of the persons responsible for each
step in the schedule; and
(F) Affirm that the study has in place the requisite funding.
(ii) If the Secretary concurs with the request, the Secretary will
send a written concurrence and specify the date by which the scientific
study must be completed.
(iii) No later than 30 days after the completion date in the
Secretary's concurrence, the museum or Federal agency must submit a
notice of intended repatriation in accordance with paragraph (e) of
this section.
(iv) No earlier than 30 days after publication of the notice of
inventory completion and no later than 90 days after responding to a
request for repatriation, the museum or Federal agency must send a
repatriation statement to the requestor under paragraph (h) of this
section.
(k) Transfer or reinter human remains and associated funerary
objects. For human remains and associated funerary objects with no
connection to an Indian
[[Page 63256]]
Tribe or Native Hawaiian organization determined in the inventory, a
museum or Federal agency, at its discretion, may agree to transfer or
decide to reinter the human remains and associated funerary objects.
The museum or Federal agency must ensure it has initiated consultation
under paragraph (b) of this section, if any.
(1) Step 1--Agree to transfer or decide to reinter. Subject to the
requirements in paragraph (k)(2) of this section, a museum or Federal
agency may:
(i) Agree in writing to transfer the human remains and associated
funerary objects to a requestor that agrees to treat the human remains
and associated funerary objects according to the requestor's laws and
customs. Human remains and associated funerary objects must be
requested in writing and may only be requested by:
(A) An Indian Tribe or Native Hawaiian organization, or
(B) An Indian group that is not federally recognized but has a
relationship to the human remains and associated funerary objects.
(ii) Decide in writing to reinter the human remains and associated
funerary objects according to applicable laws and policies.
(2) Step 2--Submit a notice of proposed transfer or reinterment. No
later than 30 days after agreeing to transfer or deciding to reinter
the human remains and associated funerary objects, the museum or
Federal agency must submit a notice of proposed transfer or reinterment
to the Manager, National NAGPRA Program, for publication in the Federal
Register.
(i) A notice of proposed transfer or reinterment must conform to
the mandatory format of the Federal Register and include:
(A) The number of individuals determined in a reasonable manner
based on the information available. No additional study or analysis is
required to determine the number of individuals. If human remains are
in a holding or collection, the number of individuals is at least one.;
(B) The number of associated funerary objects and type of objects
(counted separately or by lot);
(C) The county and state where the human remains and associated
funerary objects were removed, if known;
(D) The acquisition history (provenance) of the human remains and
associated funerary objects, including the circumstances surround their
acquisition;
(E) The names of all consulting parties and an abstract of the
results of consultation;
(F) A brief abstract of the information that explains why no Indian
Tribes or Native Hawaiian organizations with cultural or geographical
affiliation could be reasonably identified;
(G) Information about the presence of any potentially hazardous
substances used to treat the human remains and associated funerary
objects, if known;
(H) The Indian Tribe, Native Hawaiian organization, or Indian group
requesting the human remains and associated funerary objects or a
statement that the museum or Federal agency will reinter the human
remains and associated funerary objects;
(I) The name, phone number, email address, and mailing address for
the authorized representative of the museum or Federal agency who is
responsible for receiving requests for repatriation; and
(J) The date (to be calculated by the Federal Register 30 days from
the date of publication) after which the museum or Federal agency may
proceed with the transfer or reinterment of the human remains and
associated funerary objects.
(ii) No later than 15 days after receiving a notice of proposed
transfer or reinterment, the Manager, National NAGPRA Program, will:
(A) Approve for publication in the Federal Register a notice of
proposed transfer or reinterment that conforms to the requirements
under paragraph (k)(2)(i) of this section; or
(B) Return to the museum or Federal agency any submission that does
not meet the requirements under paragraph (k)(2)(i) of this section.
(iii) After publication of a notice, if the museum or Federal
agency receives a request for repatriation of the human remains and
associated funerary objects before transfer or reinterment, the museum
or Federal agency must evaluate whether the request meets the criteria
under paragraph (f) of this section.
(A) If the request for repatriation meets the criteria under
paragraph (f) of this section, the museum or Federal agency must
respond in writing under paragraph (g) of this section and proceed with
repatriation under paragraph (h) of this section.
(B) If the request does not meet the criteria under paragraph (f)
of this section, the museum or Federal agency must respond in writing
under paragraph (g) of this section and proceed with transfer or
reinterment under paragraph (k)(3) of this section.
(3) Step 3--Transfer or reinter the human remains and associated
funerary objects. No earlier than 30 days and no later than 90 days
after publication of a notice of proposed transfer or reinterment, the
museum or Federal agency must transfer or reinter the human remains and
associated funerary objects. After transferring or reinterring, the
museum or Federal agency must:
(i) Document the transfer of the human remains and associated
funerary objects by recording the contents, recipient, and method of
delivery,
(ii) Document the reinterment by recording the contents of the
reinterment,
(iii) Protect sensitive information from disclosure to the general
public to the extent consistent with applicable law.
(4) After transfer or reinterment occurs, nothing in the Act or
this part limits the authority of the museum or Federal agency to enter
into any agreement with the requestor concerning the care or custody of
the human remains and associated funerary objects.
Table 1 to Sec. 10.10--Deadlines for Completing an Inventory
------------------------------------------------------------------------
an inventory must be submitted
If a museum or Federal agency . . . . . .
------------------------------------------------------------------------
acquires possession or control of human 2 years after acquiring
remains or associated funerary objects. possession or control of human
remains or associated funerary
objects.
locates previously lost or unknown 2 years after locating the
human remains or associated funerary human remains or associated
objects. funerary objects.
receives Federal funds for the first 5 years after receiving Federal
time after [DATE 30 DAYS AFTER DATE OF funds for the first time after
PUBLICATION OF THE FINAL RULE IN THE [DATE 30 DAYS AFTER DATE OF
FEDERAL REGISTER], and has possession PUBLICATION OF THE FINAL RULE
or control of human remains or IN THE FEDERAL REGISTER].
associated funerary objects.
------------------------------------------------------------------------
[[Page 63257]]
Sec. 10.11 Civil penalties.
Any museum that fails to comply with the requirements of the Act or
this subpart may be assessed a civil penalty by the Secretary. This
section does not apply to Federal agencies, but a Federal agency's
failure to comply with the requirements of the Act or this part may be
subject to other remedies under Federal law. Each instance of failure
to comply will constitute a separate violation. The Secretary must
serve the museum with a written notice of failure to comply under
paragraph (d) of this section or a notice of assessment under paragraph
(g) of this section by personal delivery with proof of delivery date,
certified mail with return receipt, or private delivery service with
proof of delivery date.
(a) File an allegation. Any person may file an allegation of
failure to comply by sending a written allegation to the Manager,
National NAGPRA Program. Each allegation:
(1) Must include the full name, mailing address, telephone number,
and (if available) email address of the person alleging the failure to
comply;
(2) Must identify the specific provision or provisions of the Act
or this subpart that the museum is alleged to have violated;
(3) Must enumerate the separate violations alleged, including facts
to support the number of separate violations. The number of separate
violations is determined by establishing relevant factors such as:
(i) The number of lineal descendants, Indian Tribes, or Native
Hawaiian organizations named in the allegation and determined to be
aggrieved by the failure to comply; or
(ii) The number of individuals or the number of funerary objects,
sacred objects, or objects of cultural patrimony involved in the
failure to comply;
(4) Should include information showing that the museum has
possession or control of the Native American cultural items involved in
the alleged failure to comply; and
(5) Should include information showing that the museum receives
Federal funds.
(b) Respond to an allegation. Within 90 days of receiving an
allegation, the Secretary must review the allegation and determine if
the allegation meets the requirements of paragraph (a) of this section.
After review, the Secretary may investigate the facts in an allegation
to ensure all relevant information is available.
(1) The Secretary may request any additional relevant information
from the person making the allegation, the museum, or other parties.
The Secretary may conduct any investigation that is necessary to
determine whether an alleged failure to comply is substantiated. The
Secretary may also investigate appropriate factors for justifying an
increase or reduction to any penalty amount that may be calculated.
(2) The Secretary, after reviewing all relevant information, must
determine one of the following for each alleged failure to comply:
(i) The alleged failure to comply is substantiated, the number of
separate violations is identified, and a civil penalty is an
appropriate remedy. The Secretary will calculate the proposed penalty
amount under paragraph (c) of this section and notify the museum under
paragraph (d) of this section;
(ii) The alleged failure to comply is substantiated, the number of
separate violations is identified, but a civil penalty is not an
appropriate remedy. The Secretary will notify the museum under
paragraph (d) of this section; or
(iii) The alleged failure to comply is unsubstantiated. The
Secretary will send a written determination to the person making the
allegation and to the museum.
(c) Calculate the penalty amount. If the Secretary determines under
paragraph (b)(2)(i) of this section that a civil penalty is an
appropriate remedy for a substantiated failure to comply, the Secretary
will calculate the amount of the penalty in accordance with this
paragraph. The penalty for each separate violation will be calculated
as follows:
(1) The base penalty amount is $7,475, subject to annual
adjustments based on inflation under the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74).
(2) The base penalty amount may be increased after considering:
(i) The ceremonial or cultural value of the human remains or
cultural items involved, as identified by any aggrieved lineal
descendant, Indian Tribe, or Native Hawaiian organization;
(ii) The archaeological, historical, or commercial value of the
human remains or cultural items involved;
(iii) The economic and non-economic damages suffered by any
aggrieved lineal descendant, Indian Tribe, or Native Hawaiian
organization, including expenditures by the aggrieved party to compel
the museum to comply with the Act or this subpart;
(iv) The number of prior violations by the museum that have
occurred; or
(v) Any other appropriate factor justifying an increase.
(3) The base penalty amount may be reduced if:
(i) The museum comes into compliance;
(ii) The museum agrees to mitigate the violation in the form of an
actual or an in-kind payment to an aggrieved lineal descendant, Indian
Tribe, or Native Hawaiian organization;
(iii) The penalty constitutes excessive punishment under the
circumstances;
(iv) The museum is unable to pay the full penalty and the museum
has not previously been found to have failed to comply with the Act or
this subpart. The museum has the burden of proving it is unable to pay
by providing verifiable, complete, and accurate financial information
to the Secretary. The Secretary may request that the museum provide
such financial information that is adequate and relevant to evaluate
the museum's financial condition, including the value of the museum's
cash and liquid assets; ability to borrow; net worth; liabilities;
income tax returns; past, present, and future income; prior and
anticipated profits; expected cash flow; and the museum's ability to
pay in installments over time. If the museum does not submit the
requested financial information, the museum will be presumed to have
the ability to pay the civil penalty; or
(v) Any other appropriate factor justifies a reduction.
(d) Notify a museum of a failure to comply. If the Secretary
determines under paragraph (b)(2)(i) or (b)(2)(ii) of this section that
an alleged failure to comply is substantiated, the Secretary must serve
the museum with a written notice of failure to comply and send a copy
of the notice to each person alleging the failure to comply and any
lineal descendant, Indian Tribe, or Native Hawaiian organization named
in the notice of failure to comply. The notice of failure to comply
must:
(1) Provide a concise statement of the facts believed to show a
failure to comply;
(2) Specifically reference the provisions of the Act and this
subpart with which the museum has failed to comply;
(3) Include the proposed penalty amount calculated under paragraph
(c) of this section;
(4) Include, where appropriate, any initial proposal to reduce or
increase the penalty amount or an explanation for why the Secretary has
determined that a penalty is not an appropriate remedy;
(5) Identify the options for responding to the notice of failure to
comply under paragraph (e) of this section; and
(6) Inform the museum that the Secretary may assess a daily penalty
amount under paragraph (m)(1) of this
[[Page 63258]]
section if the failure to comply continues after the date the final
administrative decision of the Secretary takes effect.
(e) Respond to a notice of failure to comply. Within 45 days of
receiving a notice of failure to comply, a museum may take no action
and await service of a notice of assessment under paragraph (g) of this
section, or a museum may file a written response to the notice of
failure to comply. A response which is not timely filed will not be
considered. Any written response must be signed by an authorized
representative of the museum and must be sent to the Secretary. In the
written response, a museum may:
(1) Seek an informal discussion of the failure to comply;
(2) Request either or both of the following forms of relief, with a
full explanation of the legal or factual basis for the requested
relief:
(i) That the Secretary reconsider the determination of a failure to
comply, or
(ii) That the Secretary reduce the proposed penalty amount; or
(3) Accept the determination of a failure to comply and agree in
writing that the museum will do the following, which will constitute an
agreement between the Secretary and the museum:
(i) Pay the proposed penalty amount, if any,
(ii) Complete the mitigation required to reduce the penalty, if
offered in the notice, and
(iii) Waive any right to receive notice of assessment under
paragraph (g) of this section and to request a hearing under paragraph
(i) of this section.
(f) Assess the civil penalty. After serving a notice of failure to
comply, the Secretary may assess a civil penalty and must consider all
available, relevant information related to the failure to comply,
including information timely provided by the museum during any informal
discussion or request for relief, furnished by another party, or
produced upon the Secretary's request.
(1) The assessment of a civil penalty is made after the latter of:
(i) The 45-day period for a response has expired and the museum has
taken no action;
(ii) Conclusion of informal discussion, if any;
(iii) Review and consideration of a petition for relief, if any; or
(iv) Failure to meet the terms of an agreement established under
paragraph (e)(3) of this section.
(2) If a petition for relief or informal discussion warrants a
conclusion that no failure to comply has occurred, the Secretary must
send written notification to the museum revoking the notice of failure
to comply. No penalty is assessed.
(g) Notify the museum of an assessment. If the Secretary determines
to assess a civil penalty, the Secretary will serve the museum with a
notice of assessment. Unless the museum seeks further administrative
remedies under this section, the notice of assessment is the final
administrative decision of the Secretary. The notice of assessment
must:
(1) Specifically reference the provisions of the Act or this
subpart with which the museum has not complied;
(2) Include the final amount of any penalty calculated under
paragraph (c) of this section and the basis for determining the penalty
amount;
(3) Include, where appropriate, any increase or reduction to the
penalty amount or an explanation for why the Secretary has determined
that a penalty is not an appropriate remedy;
(4) Include the daily penalty amount that the Secretary may assess
under paragraph (m)(1) of this section if the failure to comply
continues after the date the final administrative decision of the
Secretary takes effect. The daily penalty amount for each continuing
violation shall not exceed $1,496 per day, subject to annual
adjustments based on inflation under the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74);
(5) Identify the options for responding to the notice of assessment
under paragraph (h) of this section; and
(6) Notify the museum that it has the right to seek judicial review
of the final administrative decision of the Secretary only if it has
exhausted all administrative remedies under this section, as set forth
in paragraph (l) of this section.
(h) Respond to an assessment. Within 45 days of receiving a notice
of assessment, a museum must do one of the following:
(1) Accept the assessment and pay the penalty amount by means of a
certified check made payable to the U.S. Treasurer, Washington, DC,
sent to the Secretary. By paying the penalty amount, the museum waives
the right to request a hearing under paragraph (i) of this section.
(2) File a written request for a hearing under paragraph (i) of
this section to contest the failure to comply, the penalty assessment,
or both. If the museum does not file a written request for a hearing
within 45 days, the museum waives the right to request a hearing under
paragraph (i) of this section.
(i) Request a hearing. The museum may file a written request for a
hearing with the Departmental Cases Hearings Division (DCHD), Office of
Hearings and Appeals (OHA), U.S. Department of the Interior, at the
mailing address specified in the notice of assessment, or by electronic
means in accordance with an OHA Standing Order which is available on
OHA's website at the web address specified in the notice of assessment.
A copy of the request must be served on the Solicitor of the Department
of the Interior at the address specified in the notice of assessment.
The request for hearing and any document filed thereafter with the DCHD
under paragraphs (i) or (j) of this section are subject to the rules
that govern the method and effective date of filing under 43 CFR 4.22
and 4.422(a). The request for a hearing must:
(1) Include a copy of the notice of failure to comply and the
notice of assessment;
(2) State the relief sought by the museum; and
(3) Include the basis for challenging the facts used to determine
the failure to comply or the penalty assessment.
(j) Hearings. Upon receiving a request for a hearing, DCHD will
assign an administrative law judge to the case and promptly give notice
of the assignment to the parties. Thereafter, each filing must be
addressed to the administrative law judge and a copy served on each
opposing party or its counsel.
(1) To the extent they are not inconsistent with this section, the
general rules in 43 CFR part 4, subparts A and B apply to the hearing
process.
(2) Subject to the provisions of 43 CFR 1.3, a museum may appear by
authorized representative or by counsel and may participate fully in
the proceedings. If the museum does not appear and the administrative
law judge determines that this absence is without good cause, the
administrative law judge may, at his or her discretion, determine that
the museum has waived the right to a hearing and consents to the making
of a decision on the record.
(3) The Department of the Interior counsel, designated by the
Solicitor of the Department of the Interior, represents the Secretary
in the proceedings. Within 20 days of receipt of its copy of the
written request for hearing, Departmental counsel must file with the
DCHD an entry of appearance on behalf of the Secretary and the
following:
(i) Any written communications between the Secretary and the museum
during any informal discussions under paragraph (e)(1) of this section;
[[Page 63259]]
(ii) Any petition for relief submitted under paragraph (e)(2); and
(iii) Any other information considered by the Secretary in reaching
the decision being challenged. Thereafter, the museum must serve each
document filed with the administrative law judge on Departmental
counsel.
(4) In a hearing on the penalty assessment, the amount of the
penalty assessment must be determined in accordance with paragraph
(c)(2) of this section and will not be limited to the amount originally
assessed or by any previous reduction, increase, or offer of
mitigation.
(5) The administrative law judge has all powers necessary to
conduct a fair, orderly, expeditious, and impartial hearing process,
and to render a decision under 5 U.S.C. 554-557.
(6) The administrative law judge will render a written decision
based upon the hearing record. The decision must set forth the findings
of fact and conclusions of law, and the reasons and basis for them.
(7) The administrative law judge's decision takes effect as the
final administrative decision of the Secretary 31 days from the date of
the decision unless the museum files a notice of appeal as described in
paragraph (k) of this section.
(k) Appealing the administrative law judge's decision. Any party
who is adversely affected by the decision of the administrative law
judge may appeal the decision by filing a written notice of appeal
within 30 days of the date of the decision. The notice of appeal must
be filed with the Interior Board of Indian Appeals (IBIA), Office of
Hearings and Appeals, U.S. Department of the Interior, at the mailing
address specified in the administrative law judge's decision, or by
electronic means in accordance with an OHA Standing Order which is
available on OHA's website at the web address specified in the
administrative law judge's decision. The notice of appeal must be
accompanied by proof of service on the administrative law judge and the
opposing party. The notice of appeal and any document filed thereafter
with the IBIA is subject to the rules that govern the method and
effective date of filing in 43 CFR 4.310.
(1) To the extent they are not inconsistent with this section, the
provisions of 43 CFR part 4, subpart D, apply to the appeal process.
The appeal board's decision must be in writing and takes effect as the
final penalty assessment and the final administrative decision of the
Secretary on the date that the appeal board's decision is rendered,
unless otherwise specified in the appeal board's decision.
(2) OHA decisions in proceedings instituted under this section are
posted on OHA's website.
(l) Exhaustion of administrative remedies. A museum has the right
to seek judicial review, under 5 U.S.C. 704, of the final
administrative decision of the Secretary only if it has exhausted all
administrative remedies under this section. No decision, which at the
time of its rendition is subject to appeal under this section, shall be
considered final so as to constitute agency action subject to judicial
review. The decision being appealed shall not be effective during the
pendency of the appeal.
(m) Failure to pay penalty or continuing failure to comply. (1) If
the failure to comply continues after the date the final administrative
decision of the Secretary takes effect, as described in paragraphs (g),
(j)(6), or (k)(1) of this section, or after a date identified in an
agreement under paragraph (e)(3) of this section, the Secretary may
assess an additional daily penalty amount for each continuing violation
not to exceed $1,496 per day, subject to annual adjustments based on
inflation under the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (Pub. L. 114-74). In determining the daily
penalty amount, the Secretary will consider the factors in paragraph
(c)(2) of this section. This penalty will start to accrue on the day
after the effective date of the final administrative decision of the
Secretary or on the date identified in an agreement under paragraph
(e)(3) of this section.
(2) If the museum fails to pay the penalty, the Attorney General of
the United States may institute a civil action to collect the penalty
in an appropriate U.S. District Court. In such action, the validity and
amount of the penalty are not subject to review by the court.
(n) Additional remedies. The assessment of a penalty under this
section is not deemed a waiver by the Department of the Interior of the
right to pursue other available legal or administrative remedies.
Subpart D--REVIEW COMMITTEE
Sec. 10.12 Review Committee.
The Review Committee advises the Secretary and Congress on matters
relating to sections 5, 6, and 7 of the Act and other matters as
specified in section 8 of the Act. The Review Committee is subject to
the Federal Advisory Committee Act (FACA, 5 U.S.C. App.)
(a) Recommendations. Any recommendation, finding, report, or other
action of the Review Committee is advisory only and not binding on any
person. Any records and findings made by the Review Committee may be
admissible as evidence in actions brought by persons alleging a
violation of the Act. Findings and recommendations made by the Review
Committee will be published in the Federal Register within 90 days of
making the finding or recommendation.
(b) Nominations. The Review Committee consists of seven members
appointed by the Secretary of the Interior.
(1) Three members are appointed from nominations submitted by
Indian Tribes, Native Hawaiian organizations, and traditional religious
leaders. At least two of these members must be traditional Indian
religious leaders. A traditional Indian religious leader is a person
who, based on cultural, ceremonial, or religious practices, is
recognized by an Indian Tribe as being responsible for performing
cultural ceremonies or exercising a leadership role.
(2) Three members are appointed from nominations submitted by
national museum organizations or national scientific organizations. An
organization that is created by, is a part of, and is governed in any
way by a parent national museum or scientific organization must submit
a nomination through the parent organization. National museum
organizations and national scientific organizations are organizations
that:
(i) Focus on the interests of museums and science disciplines
throughout the United States, as opposed to a lesser geographic scope;
(ii) Offer membership throughout the United States, although such
membership need not be exclusive to the United States; and
(iii) Are organized under the laws of the United States Government.
(3) One member is appointed from a list of more than one person
developed and consented to by all other appointed members specified in
paragraphs (b)(1) and (b)(2) of this section.
(c) Findings of fact or disputes on repatriation. The Review
Committee may assist any affected party through consideration of
findings of fact or disputes related to the inventory, summary, or
repatriation provisions of the Act. One or more of the affected parties
may request the assistance of the Review Committee or the Secretary may
direct the Review Committee to consider a finding of fact or dispute.
Requests for assistance must be made before repatriation of the human
remains or cultural items has occurred.
[[Page 63260]]
(1) An affected party is either a:
(i) Museum or Federal agency that has possession or control of the
human remains or cultural items, or
(ii) Lineal descendant, or an Indian Tribe or Native Hawaiian
organization with potential affiliation to the human remains or
cultural items.
(2) The Review Committee may make an advisory finding of fact on
questions related to:
(i) The identity of an object as human remains or cultural items,
(ii) The cultural or geographical affiliation of human remains or
cultural items, or
(iii) The repatriation of human remains or cultural items.
(3) The Review Committee may make an advisory recommendation on
disputes between affected parties. To facilitate the resolution of
disputes, the Review Committee may:
(i) Consider disputes between an affected party identified in
paragraph (c)(1)(i) of this section and an affected party identified in
paragraph (c)(1)(ii) of this section;
(ii) Not consider disputes among lineal descendants, Indian Tribes
and Native Hawaiian organizations;
(iii) Not consider disputes among museums and Federal agencies;
(iv) Request information or presentations from any affected party;
and
(v) Make advisory recommendations directly to the affected parties
or to the Secretary.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-22376 Filed 10-13-22; 8:45 am]
BILLING CODE 4312-52-P