§ 10.7 - Disposition.

§ 10.7 Disposition of unclaimed human remains, funerary objects, sacred objects, or objects of cultural patrimony.

(a) This section carries out section 3(b) of the Act (25 U.S.C. 3002(b)) regarding unclaimed cultural items.

(b) A Federal agency that has unclaimed cultural items (human remains, funerary objects, sacred objects, or objects of cultural patrimony) must:

(1) Submit a list of the items to the Manager, National NAGPRA Program that describes the general place of discovery or excavation, and removal; the nature of the unclaimed cultural items; and a summary of consultation efforts under § 10.5 of this part. This list must be received by December 5, 2016, or within 1 year after the cultural items have become unclaimed under § 10.2(h), whichever is later;

(2) Care for and manage unclaimed cultural items consistent with the regulations at 36 CFR part 79; and

(3) To the maximum extent feasible, consider and respect the traditions of any potential claimants listed in a notice under § 10.6(c) concerning the unclaimed cultural items, including, but not limited to, traditions regarding housing, maintenance, and preservation.

(c) Subject to paragraph (e) of this section, a Federal agency that has unclaimed cultural items may, upon request, transfer them to an Indian tribe or Native Hawaiian organization that is not a potential claimant and agrees:

(1) To accept transfer; and

(2) To treat them according to the laws and customs of the transferee.

(d) Subject to paragraph (e) of this section, a Federal agency that has unclaimed human remains or funerary objects may reinter them according to applicable interment laws.

(e) Before a Federal agency makes a transfer or reinterment under paragraphs (c) or (d) of this section, it must:

(1) Submit the list required under paragraph (b)(1) of this section to the Manager, National NAGPRA Program; and

(2) Publish a notice of the proposed transfer or reinterment in a newspaper of general circulation in the area in which the unclaimed cultural items were excavated or discovered, and removed, and, if applicable, in a newspaper of general circulation in the area in which each potential claimant now resides.

(i) The notice must explain the nature of the unclaimed cultural items, summarize consultation efforts under § 10.5, and solicit claims under the priority of ownership or control in section 3(a) of the Act (25 U.S.C. 3002(a)) and § 10.6.

(ii) The notice must be published at least two times at least a week apart.

(iii) The transfer or reinterment may not take place until at least 30 days after publication of the second notice to allow time for any claimants under the priority of ownership or control in section 3(a) of the Act and § 10.6 to come forward.

(3) Send to the Manager, National NAGPRA Program a copy of the notice published under paragraph (d)(2) of this section and information on when and in what newspaper(s) the notice was published. The National NAGPRA Program will post information from published notices on its Web site.

[80 FR 68471, Nov. 5, 2015]

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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 identify the lineal descendant, Indian Tribe, or Native Hawaiian organization that has priority for disposition of human remains or cultural items using this section.

(a) Priority for disposition. The disposition of human remains or cultural items removed from Federal or Tribal lands must be in the following priority order:

(1) The known lineal descendant, if any, for human remains or associated funerary objects;

(2) The Indian Tribe or Native Hawaiian organization from whose Tribal lands the human remains or cultural items were removed;

(3) The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part;

(4) On Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian Tribe, the Indian Tribe with the strongest relationship to the human remains or cultural items, which is:

(i) The Indian Tribe recognized as aboriginally occupying the geographical location where the human remains or cultural items were removed; or

(ii) A different Indian Tribe who shows by a preponderance of the evidence a stronger relationship to the human remains or cultural items; or

(5) Any Indian Tribe or Native Hawaiian organization that requests transfer of the human remains or cultural items as unclaimed under paragraph (d) of this section.

(b) On Tribal lands. The Indian Tribe or Native Hawaiian organization from whose Tribal lands the human remains or cultural items were removed must identify the lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section.

(1) The Indian Tribe or Native Hawaiian organization must complete and retain a written disposition statement to recognize:

(i) A lineal descendant (whose name may be withheld) has ownership or control of the human remains or associated funerary objects removed from Tribal lands; or

(ii) A lineal descendant could not be ascertained, and the Indian Tribe or Native Hawaiian organization has ownership or control of the human remains or cultural items removed from Tribal lands.

(2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for disposition of human remains or cultural items to the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraph (c) of this section.

(3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for disposition of human remains or cultural items from its Tribal lands and then must provide written disposition statements under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for dispositions, DHHL is responsible for completing the requirements in paragraph (c) of this section for any dispositions from those Tribal lands of an NHO.

(4) After completing a disposition statement, nothing in the Act or this part:

(i) Limits the authority of an Indian Tribe or Native Hawaiian organization to enter into any agreement with the lineal descendant or another Indian Tribe or Native Hawaiian organization concerning the human remains or cultural items;

(ii) Limits any procedural or substantive right which may otherwise be secured to the lineal descendant, Indian Tribe, or Native Hawaiian organization; or

(iii) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its ownership or control of human remains, funerary objects, or sacred objects.

(c) On Federal or Tribal lands. When a Federal agency or DHHL has responsibility for disposition of human remains or cultural items from Federal or Tribal lands, the Federal agency or DHHL must inform and notify the lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section.

(1) Step 1—Inform consulting parties. As soon as possible but no later than six months after removal of human remains or cultural items from Federal or Tribal lands, the Federal agency or DHHL must send a written document informing all consulting parties listed in the plan of action under § 10.4(b)(3) of this part. Consultation on disposition of human remains or cultural items may continue until the Federal agency or DHHL sends a disposition statement to a claimant under paragraph (c)(5) of this section.

(i) The written document must include:

(A) A description of the human remains or cultural items, including the date and geographical location by county and State of removal; and

(B) The lineal descendant (whose name may be withheld), Indian Tribe, or Native Hawaiian organization identified as having priority for disposition of the human remains or cultural items.

(ii) For human remains or cultural items removed from Federal or Tribal lands whose disposition is not complete prior to January 12, 2024, the Federal agency or DHHL must:

(A) Identify the lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section; and

(B) No later than July 12, 2024, send a written document under paragraph (c)(1)(i) of this section.

(iii) If the Federal agency or DHHL cannot identify any lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition of human remains or cultural items, the Federal agency or DHHL must report the human remains or cultural items as unclaimed under paragraph (d) of this section.

(2) Step 2—Submit a notice of intended disposition. No earlier than 30 days and no later than six months after informing consulting parties, the Federal agency or DHHL must submit a notice of intended disposition. If the human remains or cultural items are evidence in an ongoing civil or criminal action under ARPA or a criminal action under NAGPRA, the deadline for the notice is extended until the conclusion of the ARPA or NAGPRA case.

(i) A notice of intended disposition must be sent to any consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register.

(ii) A notice of intended disposition must conform to the mandatory format of the Federal Register and include:

(A) An abstract of the information in the written document under paragraph (c)(1)(i) of this section;

(B) The name, phone number, email address, and mailing address of the appropriate official for the Federal agency or DHHL who is responsible for receiving claims for disposition;

(C) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the Federal agency or DHHL may send a disposition statement to a claimant; and

(D) The date (to be calculated by the Federal Register one year from the date of publication) on which the human remains or cultural items become unclaimed human remains or cultural items if no claim for disposition is received from a lineal descendant, Indian Tribe, or Native Hawaiian organization.

(iii) No later than 21 days after receiving a notice of intended disposition, the Manager, National NAGPRA Program, must:

(A) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (c)(2)(ii) of this section; or

(B) Return to the Federal agency or DHHL any submission that does not conform to the requirements under paragraph (c)(2)(ii) of this section. No later than 14 days after the submission is returned, the Federal agency or DHHL must resubmit the notice of intended disposition.

(3) Step 3—Receive and consider a claim for disposition. After publication of a notice of intended disposition in the Federal Register, any lineal descendant, Indian Tribe, or Native Hawaiian organization may submit to the appropriate official for the Federal agency or DHHL a written claim for disposition of human remains or cultural items.

(i) A claim for disposition of human remains or cultural items must be received by the Federal agency or DHHL before a disposition statement for the human remains or cultural items is sent to a claimant under paragraph (c)(5) of this section or the transfer or reinterment of the human remains or cultural items under paragraph (d)(4) of this section. A claim for disposition received by the Federal agency or DHHL before the publication of the notice of intended disposition is dated the same date the notice was published.

(ii) Claims from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint disposition of the human remains or cultural items are considered a single claim and not competing claims.

(iii) A claim for disposition must satisfy one of the following criteria:

(A) The claimant is identified in the notice of intended disposition with priority for disposition; or

(B) The claimant is not identified in the notice of intended disposition, but the claim for disposition shows that the claimant is a lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section.

(iv) One year after publishing a notice of intended disposition under paragraph (c)(2) of this section, if no lineal descendant, Indian Tribe, or Native Hawaiian organization has submitted a claim for disposition, the Federal agency or DHHL must report the human remains or cultural items as unclaimed under paragraph (d) of this section.

(4) Step 4—Respond to a claim for disposition. No earlier than 30 days after publication of a notice of intended disposition but no later than 90 days after receiving a claim for disposition, the Federal agency or DHHL must send a written response to the claimant with a copy to any other party identified in the notice of intended disposition with priority for disposition.

(i) In the written response, the Federal agency or DHHL must state one of the following:

(A) The claim meets the criteria under paragraph (c)(3) of this section. The Federal agency or DHHL must send a disposition statement to the claimant under paragraph (c)(5) of this section, unless the Federal agency or DHHL receives additional, competing claims for disposition of human remains or cultural items.

(B) The claim does not meet the criteria under paragraph (c)(3) of this section. The Federal agency or DHHL must provide a detailed explanation why the claim does not meet the criteria and an opportunity for the claimant to provide additional information to meet the criteria.

(C) The Federal agency or DHHL has received competing claims for disposition of the human remains or cultural items that meet the criteria and must determine the most appropriate claimant using the procedures and deadlines under paragraph (c)(4)(ii) of this section.

(ii) At any time before sending a disposition statement for human remains or cultural items under paragraph (c)(5) of this section, the Federal agency or DHHL may receive additional, competing claims for disposition of the human remains or cultural items that meet the criteria under paragraph (c)(3) of this section. The Federal agency or DHHL must determine the most appropriate claimant using the priority for disposition under paragraph (a) of this section and the following procedures and deadlines:

(A) No later than 14 days after receiving a competing claim, the Federal agency or DHHL must send a written letter to each claimant identifying all claimants and the date each claim was received. In response, the claimants may provide additional information to show by a preponderance of the evidence that the claimant has a stronger relationship to the human remains or cultural items.

(B) No later than 180 days after informing the claimants of competing claims, the Federal agency or DHHL must send a written determination to each claimant identifying the most appropriate claimant(s).

(C) No earlier than 30 days but no later than 90 days after sending a determination of the most appropriate claimant(s), the Federal agency or DHHL must send a disposition statement to the most appropriate claimant(s) under paragraph (c)(5) of this section.

(5) Step 5—Disposition of the human remains or cultural items. No later than 90 days after responding to a claim for disposition that meets the criteria, the Federal agency or DHHL must send a written disposition statement to the claimant(s) and a copy to the Manager, National NAGPRA Program. A disposition statement must recognize the claimant(s) has ownership or control of the human remains or cultural items. In the case of joint claims for disposition, a disposition statement must identify and be sent to all claimants.

(i) After sending a disposition statement, the Federal agency or DHHL must:

(A) Consult with the claimant(s) on custody and physical transfer;

(B) Document any physical transfer; and

(C) Protect sensitive information, as identified by the claimant(s), from disclosure to the general public to the extent consistent with applicable law.

(ii) After a disposition statement is sent, nothing in the Act or this part:

(A) Limits the authority of the Federal agency or DHHL to enter into any agreement with the lineal descendant, Indian Tribe, or Native Hawaiian organization concerning the human remains or cultural items;

(B) Limits any procedural or substantive right which may otherwise be secured to the lineal descendant, Indian Tribe, or Native Hawaiian organization; or

(C) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its ownership or control of human remains, funerary objects, or sacred objects.

(d) Unclaimed human remains or cultural items removed from Federal or Tribal lands. When a Federal agency or DHHL has custody of unclaimed human remains or cultural items, the Federal agency or DHHL must report the human remains or cultural items.

(1) Step 1—Submit a list of unclaimed human remains or cultural items. No later than January 13, 2025, the Federal agency or DHHL must submit to the Manager, National NAGPRA Program, a list of any unclaimed human remains or cultural items in its custody. The Federal agency or DHHL must submit updates to its list of unclaimed human remains or cultural items by December 31 each year.

(i) Human remains or cultural items are unclaimed when:

(A) One year after publishing a notice of intended disposition under paragraph (c)(2) of this section, no lineal descendant, Indian Tribe, or Native Hawaiian organization submits a written claim for disposition; or

(B) One year after discovery or excavation of the human remains or cultural items, the Federal agency or DHHL did not identify any lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section.

(ii) A list of unclaimed human remains or cultural items must include:

(A) A description of the human remains or cultural items, including the date and geographical location by county and State of removal;

(B) The names of all consulting parties;

(C) If unclaimed under paragraph (d)(1)(i)(A) of this section, the name of each Indian Tribe or Native Hawaiian organization with priority for disposition under paragraph (a) of this section; and

(D) If unclaimed under paragraph (d)(1)(i)(B) of this section, the information considered under § 10.3(a) of this part and the criteria identified under § 10.3(b) of this part to explain why no Indian Tribe or Native Hawaiian organization with cultural affiliation could be identified.

(2) Step 2—Agree to transfer or decide to reinter human remains or cultural items. At the discretion of the Federal agency or DHHL, a Federal agency or DHHL may:

(i) Agree in writing to transfer unclaimed human remains or cultural items to an Indian Tribe or Native Hawaiian organization;

(ii) Decide in writing to reinter unclaimed human remains or cultural items according to applicable laws and policies; or

(iii) At any time before transferring or reinterring human remains or cultural items under paragraph (d)(4) of this section, the Federal agency or DHHL may receive a claim for disposition of the human remains or cultural items and must evaluate whether the claim meets the criteria under paragraph (c)(3) of this section. Any agreement to transfer or decision to reinter the human remains or cultural items under this paragraph is stayed until the claim for disposition is resolved under paragraph (c) of this section.

(A) If the claim meets the criteria under paragraph (c)(3) of this section and a notice of intended disposition was published under paragraph (c)(2) of this section, the Federal agency or DHHL must respond in writing under paragraph (c)(4) and proceed with disposition under (c)(5) of this section.

(B) If the claim meets the criteria under paragraph (c)(3) of this section but no notice of intended disposition was published, the Federal agency or DHHL must submit a notice of intended disposition under paragraph (c)(2), respond in writing under paragraph (c)(4), and proceed with disposition under (c)(5) of this section.

(C) If the claim does not meet the criteria under paragraph (c)(3) of this section, the Federal agency or DHHL must respond in writing under paragraph (c)(4) and may proceed with transfer or reinterment under paragraph (d)(3) of this section.

(3) Step 3—Submit a notice of proposed transfer or reinterment. No later than 30 days after agreeing to transfer or deciding to reinter the human remains or cultural items, the Federal agency or DHHL must submit a notice of proposed transfer or reinterment.

(i) A notice of proposed transfer or reinterment must be sent to any consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register.

(ii) A notice of proposed transfer or reinterment must conform to the mandatory format of the Federal Register and include:

(A) An abstract of the information in the list of unclaimed human remains or cultural items under paragraph (d)(1)(ii) of this section;

(B) The Indian Tribe or Native Hawaiian organization requesting transfer of the human remains or cultural items or a statement that the Federal agency or DHHL agrees to reinter the human remains or cultural items;

(C) The name, phone number, email address, and mailing address of the appropriate official for the Federal agency or DHHL who is responsible for receiving claims for disposition; and

(D) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the Federal agency or DHHL may proceed with the transfer or reinterment of the human remains or cultural items.

(iii) No later than 21 days after receiving a notice of proposed transfer or reinterment, the Manager, National NAGPRA Program, must:

(A) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (d)(3)(ii) of this section; or

(B) Return to the Federal agency or DHHL any submission that does not conform to the requirements under paragraph (d)(3)(ii) of this section. No later than 14 days after the submission is returned, the Federal agency or DHHL must resubmit the notice of proposed transfer or reinterment.

(4) Step 4—Transfer or reinter the human remains or cultural items. No earlier than 30 days and no later than 90 days after publication of a notice of proposed transfer or reinterment, the Federal agency or DHHL must transfer or reinter the human remains or cultural items and send a written statement to the Manager, National NAGPRA Program, that the transfer or reinterment is complete.

(i) After transferring or reinterring, the Federal agency or DHHL must:

(A) Document the transfer or reinterment of the human remains or cultural items, and

(B) Protect sensitive information about the human remains or cultural items from disclosure to the general public to the extent consistent with applicable law.

(ii) After transfer or reinterment occurs, nothing in the Act or this part:

(A) Limits the authority of the Federal agency or DHHL to enter into any agreement with the requestor concerning the human remains or cultural items;

(B) Limits any procedural or substantive right which may otherwise be secured to the lineal descendant, Indian Tribe, or Native Hawaiian organization; or

(C) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its ownership or control of human remains, funerary objects, or sacred objects.