§ 10.5 - Discovery.

§ 10.5 Consultation.

Consultation as part of the intentional excavation or inadvertent

Discovery.

When a discovery of human remains , funerary objects, sacred objects, or objects of cultural patrimony items on Federal lands must be conducted in accordance with the following requirements.

(a) Consulting parties. Federal agency officials must consult with known lineal descendants and Indian tribe officials:

(1) From Indian tribes on whose aboriginal lands the planned activity will occur or where the inadvertent discovery has been made; and

(2) From Indian tribes and Native Hawaiian organizations that are, or are likely to be, culturally affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony; and

(3) From Indian tribes and Native Hawaiian organizations that have a demonstrated cultural relationship with the human remains, funerary objects, sacred objects, or objects of cultural patrimony.

(b) Initiation of consultation.

(1) Upon receiving notice of, or otherwise becoming aware of, an inadvertent discovery or planned activity that has resulted or may result in the intentional excavation or inadvertent discovery of human remains, funerary objects, sacred objects, or objects of cultural patrimony on Federal lands, the responsible Federal agency official must, as part of the procedures described in §§ 10.3 and 10.4, take appropriate steps to identify the lineal descendant, Indian tribe, or Native Hawaiian organization entitled to custody of the human remains, funerary objects, sacred objects, or objects of cultural patrimony pursuant to § 10.6 and § 10.14. The Federal agency official shall notify in writing:

(i) Any known lineal descendants of the deceased Native American individual whose human remains and associated funerary objects have been or are likely to be excavated intentionally or discovered inadvertently; and

(ii) The Indian tribes or Native Hawaiian organizations that are likely to be culturally affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony that have been or are likely to be excavated intentionally or discovered inadvertently; and

(iii) The Indian tribes which aboriginally occupied the area in which the human remains, funerary objects, sacred objects, or objects of cultural patrimony have been or are likely to be excavated intentionally or discovered inadvertently; and

(iv) The Indian tribes or Native Hawaiian organizations that have a demonstrated cultural relationship with the human remains, funerary objects, sacred objects, or objects of cultural patrimony that have been or are likely to be excavated intentionally or discovered inadvertently.

(2) The notice must propose a time and place for meetings or consultation to further consider the intentional excavation or inadvertent discovery, the Federal agency's proposed treatment of the human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated, and the proposed disposition of any intentionally excavated or inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony.

(3) The consultation must seek to identify traditional religious leaders who should also be consulted and seek to identify, where applicable, lineal descendants and Indian tribes or Native Hawaiian organizations affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony.

(c) Provision of information. During the consultation process, as appropriate, the Federal agency official must provide the following information in writing to the lineal descendants and the officials of Indian tribes or Native Hawaiian organizations that are or are likely to be affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or discovered inadvertently on Federal lands:

(1) A list of all lineal descendants and Indian tribes or Native Hawaiian organizations that are being, or have been, consulted regarding the particular human remains, funerary objects, sacred objects, or objects of cultural patrimony;

(2) An indication that additional documentation used to identify affiliation will be supplied upon request.

(d) Requests for information. During the consultation process, Federal agency officials must request, as appropriate, the following information from Indian tribes or Native Hawaiian organizations that are, or are likely to be, affiliated pursuant to § 10.6 (a) with intentionally excavated or inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony:

(1) Name and address of the Indian tribe official to act as representative in consultations related to particular human remains, funerary objects, sacred objects, or objects of cultural patrimony;

(2) Names and appropriate methods to contact lineal descendants who should be contacted to participate in the consultation process;

(3) Recommendations on how the consultation process should be conducted; and

(4) Kinds of cultural items that the Indian tribe or Native Hawaiian organization considers likely to be unassociated funerary objects, sacred objects, or objects of cultural patrimony.

(e) Written plan of action. Following consultation, the Federal agency official must prepare, approve, and sign a written plan of action. A copy of this plan of action must be provided to the lineal descendants, Indian tribes and Native Hawaiian organizations involved. Lineal descendants and Indian tribe official(s) may sign the written plan of action as appropriate. At a minimum, the plan of action must comply with § 10.3 (b)(1) and document the following:

(1) The kinds of objects to be considered as cultural items as defined in § 10.2 (b);

(2) The specific information used to determine custody pursuant to § 10.6;

(3) The planned treatment, care, and handling of human remains, funerary objects, sacred objects, or objects of cultural patrimony recovered;

(4) The planned archeological recording of the human remains, funerary objects, sacred objects, or objects of cultural patrimony recovered;

(5) The kinds of analysis planned for each kind of object;

(6) Any steps to be followed to contact Indian tribe officials at the time of intentional excavation or inadvertent discovery of specific human remains, funerary objects, sacred objects, or objects of cultural patrimony;

(7) The kind of traditional treatment, if any, to be afforded the human remains, funerary objects, sacred objects, or objects of cultural patrimony by members of the Indian tribe or Native Hawaiian organization;

(8) The nature of reports to be prepared; and

(9) The planned disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony following § 10.6.

(f) Comprehensive agreements. Whenever possible, Federal Agencies should enter into comprehensive agreements with Indian tribes or Native Hawaiian organizations that are affiliated with human remains, funerary objects, sacred objects, or objects of cultural patrimony and have claimed, or are likely to claim, those human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or discovered inadvertently on Federal lands. These agreements should address all Federal agency land management activities that could result in the intentional excavation or inadvertent discovery of human remains, funerary objects, sacred objects, or objects of cultural patrimony. Consultation should lead to the establishment of a process for effectively carrying out the requirements of these regulations regarding standard consultation procedures, the determination of custody consistent with procedures in this section and § 10.6, and the treatment and disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony. The signed agreements, or the correspondence related to the effort to reach agreements, must constitute proof of consultation as required by these regulations.

(g) Traditional religious leaders. The Federal agency official must be cognizant that Indian tribe officials may need to confer with traditional religious leaders prior to making recommendations. Indian tribe officials are under no obligation to reveal the identity of traditional religious leaders.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 78 FR 27083, May 9, 2013]

or Tribal lands occurs, any person who knows or has reason to know of the discovery must inform the appropriate official for the Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL and the additional point of contact. The appropriate official must respond to a discovery and, if applicable, certify when an activity may resume.

(a) Report any discovery. Any person who knows or has reason to know of a discovery of human remains or cultural items on Federal or Tribal lands must:

(1) Immediately report the discovery in person or by telephone to the appropriate official and any additional point of contact shown in table 1 of this paragraph (a).

Table 1 to § 10.5(a)(1)—Report a Discovery on Federal or Tribal Lands

Where the discovery is on . . .	the appropriate official is the representative for the . . .	and the additional point of contact is the . . .
Federal lands in the United States *	Federal agency with primary management authority	Any Indian Tribe or Native Hawaiian organization with potential cultural affiliation, if known.
Tribal lands in Alaska and the continental United States	Indian Tribe	Bureau of Indian Affairs or the Federal agency with primary management authority, if any.
Tribal lands in Hawai'i	DHHL	Any Native Hawaiian organization with potential cultural affiliation, if known.
* Federal lands in Alaska selected but not yet conveyed under the Alaska Native Claims Settlement Act (ANCSA, 43 U.S.C. 1601)	Bureau of Land Management or Federal agency with primary management authority	Alaska Native Corporation organized under ANCSA.

(2) Make a reasonable effort to secure and protect the human remains or cultural items, including, as appropriate, stabilizing or covering the human remains or cultural items; and

(3) No later than 24 hours after the discovery, send written documentation of the discovery to the appropriate official and the additional point of contact shown in Table 1 to paragraph (a)(1) of this section stating:

(i) The geographical location by county and State;

(ii) The contents of the discovery; and

(iii) The steps taken to secure and protect the human remains or cultural items.

(b) Cease any nearby activity. If a discovery is related to an activity (including but not limited to construction, mining, logging, or agriculture), the person responsible for the activity must:

(1) Immediately stop any activity that could threaten the discovery;

(2) Report the discovery according to paragraph (a) of this section; and

(3) In the written documentation of the discovery required under paragraph (a)(3) of this section include:

(i) The related activity and any potential threats to the discovery; and

(ii) Confirmation that all activity around the discovery has stopped and must not resume until the date in a written certification issued under paragraph (e) of this section.

(c) Respond to a discovery. No later than three days after receiving written documentation of a discovery, the appropriate official must respond to a discovery. The appropriate official must comply with the requirements of this section immediately upon learning of the discovery even if the discovery has not been properly reported.

(1) The appropriate official must make a reasonable effort to:

(i) Secure and protect the human remains or cultural items;

(ii) Verify that any activity around the discovery has stopped; and

(iii) Notify the additional point of contact shown in table 1 to paragraph (a)(1) of this section.

(2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for the discovery to the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraphs (d) and (e) of this section.

(3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for discoveries on its Tribal lands and then must respond to any discovery under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for discoveries, DHHL is responsible for completing the requirements in paragraph (d) and (e) of this section for any discoveries on those Tribal lands of an NHO.

(d) Approve and sign a plan of action. When a Federal agency or DHHL has responsibility for a discovery on Federal or Tribal lands, a plan of action is required. A plan of action is not required when an Indian Tribe or Native Hawaiian organization has responsibility for a discovery on Tribal lands. The Federal agency or DHHL must carry out the plan of action for any human remains or cultural items that are removed.

(1) No later than 30 days after receiving written documentation of a discovery, the Federal agency or DHHL, in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization, must approve and sign a plan of action under § 10.4(b).

(2) This requirement does not apply if, before receiving written documentation of the discovery, the Federal agency or DHHL signed:

(i) A plan of action under § 10.4(b); or

(ii) A comprehensive agreement under § 10.4(c).

(e) Certify when an activity may resume. No later than 30 days after receiving written documentation of a discovery, the appropriate official must send a written certification if the discovery is related to an activity (including but not limited to construction, mining, logging, or agriculture). Written certification must be sent to the person responsible for the activity and the additional point of contact shown in table 1 to paragraph (a)(1) of this section. The written certification must provide:

(1) A copy of the signed plan of action or comprehensive agreement with redaction of any confidential or sensitive information;

(2) Instructions for protecting, securing, stabilizing, or covering the human remains or cultural items, if appropriate; and

(3) The date (no later than 30 days after the date of the written certification) on which lawful activity may resume around the discovery.