[Federal Register Volume 60, Number 232 (Monday, December 4, 1995)]
[Rules and Regulations]
[Pages 62134-62169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29418]
[[Page 62133]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
43 CFR Part 10
Native American Graves Protection and Repatriation Act Regulations;
Final Rule
Federal Register / Vol. 60, No. 232 / Monday, December 4, 1995 /
Rules and Regulations
[[Page 62134]]
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
RIN 1024-AC07
Native American Graves Protection and Repatriation Act
Regulations
AGENCY: Department of the Interior.
ACTION: Final rule.
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SUMMARY: This final rule establishes definitions and procedures for
lineal descendants, Indian tribes, Native Hawaiian organizations,
museums, and Federal agencies to carry out the Native American Graves
Protection and Repatriation Act of 1990. These regulations develop a
systematic process for determining the rights of lineal descendants,
Indian tribes, and Native Hawaiian organizations to certain Native
American human remains, funerary objects, sacred objects, or objects of
cultural patrimony with which they are affiliated.
EFFECTIVE DATE: This final rule will take effect on January 3, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. Francis P. McManamon, Departmental
Consulting Archeologist, Archeological Assistance Division, National
Park Service, Box 37127, Washington DC 20013-7127. Telephone: (202)
343-4101. Fax: (202) 523-1547.
SUPPLEMENTARY INFORMATION:
Background
On November 16, 1990, President George Bush signed into law the
Native American Graves Protection and Repatriation Act, hereafter
referred to as the Act. The Act addresses the rights of lineal
descendants, Indian tribes, and Native Hawaiian organizations to
certain Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony with which they are
affiliated. Section 13 of the Act requires the Secretary of the
Interior to publish regulations to carry out provisions of the Act.
Preparation of the Rulemaking
The proposed rule (43 CFR Part 10) for carrying out the Act was
published in the Federal Register on May 28, 1993 (58 FR 31122). Public
comment was invited for a 60-day period, ending on July 27, 1993.
Copies of the proposed rule were sent to the chairs or chief executive
officers of all Indian tribes, Alaska Native villages and corporations,
Native Hawaiian organizations, national Indian organizations and
advocacy groups, national scientific and museum organizations, and
State and Federal agency Historic Preservation Officers and chief
archeologists.
Eighty-two written comments were received representing 89 specific
organizations and individuals. These included thirteen Indian tribes,
ten Native American organizations, nine museums, seven universities,
three national scientific and museum organizations, eleven state
agencies, nineteen Federal agencies, nine other organizations, and
eight individuals. Several letters represent more than one
organization. Comments addressed nearly all sections and appendices of
the proposed rule. All comments were fully considered when revising the
proposed rule for publication as a final rulemaking.
Given the volume of comments, it is impractical to respond in
detail in the preamble to every question raised or suggestion offered.
Some commenters pointed out errors in spelling, syntax, and minor
technical matters. Those errors were corrected and are not mentioned
further in the preamble. In addition, many commenters made similar
suggestions or criticisms, or repeated the same suggestion for
different sections of the proposed rule. In the interest of reducing
the length of the text, comments that are similar in nature are grouped
and discussed in the most relevant section in the preamble. Some
comments pointed out vague and unclear language. Clarifying and
explanatory language was added to the rule and preamble.
Changes in Response to Public Comment
Section 10.1
This section outlines the purpose and applicability of the
regulations. Three commenters recommended including specific reference
to the applicability of the rule to provisions of the United States
Code regarding illegal trafficking. Section 4 of the Act, which deals
with illegal trafficking in ``Native American Human Remains and
Cultural Items,'' is incorporated directly into Chapter 53 of title 18,
United States Code, and does not require implementing regulations. For
that reason, a section regarding section 4 of the Act has not been
included in these regulations.
One commenter recommended including language to guarantee ``that
these collections will remain intact and always be available to
qualified researchers...'' Another commenter recommended amending the
regulations to preclude the removal of prehistoric skeletal and
cultural materials from the nation's museums. The drafters consider the
proposed changes contrary to the intent of the Act as reflected in
statutory language and legislative history.
One commenter recommended additional language addressing Federal
trust responsibilities and tribal sovereignty. These regulations are
consistent with the United States' trust responsibilities to Indian
tribes.
Three commenters recommended amending the rule to apply to
territories of the United States. The rule of statutory construction
stipulates that Federal law applies to United States territories only
when specifically indicated. No such reference is indicated in either
the statute or its legislative history. It is inappropriate to use
regulations to extend applicability to areas not defined in the Act.
Section 10.2
This section defines terms used throughout the regulations. One
commenter recommended listing the definitions alphabetically instead of
thematically under the present categories of ``participants,'' ``human
remains and cultural items,'' ``cultural affiliation,'' ``location,''
and ``procedures.'' A thematic organization has been retained. However,
the subsections have been retitled and reorganized. The new subsections
are (a) who must comply with these regulations?; (b) who has standing
to make a claim under these regulations?; (c) who is responsible for
carrying out these regulations?; (d) what objects are covered by these
regulations?; (e) what is cultural affiliation?; (f) what types of
lands do the excavation and discovery provisions of these regulations
apply to?; and (g) what procedures are required by these regulations?
Subsection 10.2 (a) includes definitions of those persons or
organizations who must comply with these regulations.
One commenter asked for clarification as to whether all Federal
agencies as defined in Sec. 10.2 (a)(4) (renumbered as Sec. 10.2
(a)(1)) must comply with provisions of the Act. All Federal agencies,
except the Smithsonian Institution, are responsible for completing
summaries and inventories of collections in their control and with
ensuring compliance regarding inadvertent discoveries and intentional
excavations conducted as part of activities on Federal or tribal lands.
Three commenters and the Review Committee authorized under section 8 of
the Act requested clarification of the exclusion of the Smithsonian
Institution as a Federal agency. Sections 2 (4) and 2 (8) of the Act
specifically exclude the
[[Page 62135]]
Smithsonian Institution from having to comply with the provisions of
the Act. The legislative history of the Act is silent as to the reason
for this exclusion. The exclusion is likely to have been based on prior
passage of the National Museum of the American Indian Act in 1989 that
included provisions requiring the repatriation of human remains from
all of the Smithsonian Institution's constituent museums.
Seven commenters requested clarification of the definition of
Federal agency official in Sec. 10.2 (a)(5) (renumbered as Sec. 10.2
(a)(2)). One commenter recommended changing the term to Federal land
manager. The definition included in the proposed rule applies to both
individuals with authority for the management of Federal lands and
individuals with responsibility for the management of Federal
collections that may contain human remains, funerary objects, sacred
objects, or objects of cultural patrimony. Since responsibility for the
latter task may fall to Federal agency officials who do not manage
land, the recommended change has not been made. Four commenters
recommended changes in the definition of Federal agency official to
reflect that a Federal agency may have more than one delegated
authority. The definition was rewritten to reflect this concern. One
commenter recommended stipulation of a specific date by which each
agency must delegate individuals to perform the duties relating to
these regulations. Such a deadline is unnecessary as all Federal
agencies have already named their contacts. A listing of Federal agency
officials for each agency is available from the Departmental Consulting
Archeologist.
Seven commenters requested clarification of the definition of
museum in Sec. 10.2 (a)(6) (renumbered Sec. 10.2 (a)(3)). One commenter
recommended replacing the term ``human remains or cultural items'' with
``Native American artifacts'' to reflect the expanded reporting of
``collections that may contain unassociated funerary objects, sacred
objects, or objects of cultural patrimony'' in the summaries required
in Sec. 10.8. The specific focus of the Act and the rule remains
limited to Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony, and not the broader
category of Native American artifacts.
One commenter recommended providing a definition of the term
``possession of, or control over'' in the first sentence of the
definition. One commenter recommended requiring museums take
responsibility for all human remains, funerary objects, sacred objects,
or objects of cultural patrimony in their possession that were
originally excavated intentionally or discovered inadvertently by
Federal agencies on non-Federal lands. All museums or Federal agencies
with Native American collections should consider carefully whether they
have possession or control of human remains, funerary objects, sacred
objects, or objects of cultural patrimony as defined in Sec. 10.2
(a)(3)(i) and (a)(3)(ii).
Eleven commenters recommended changes to the definitions of
possession in Sec. 10.2 (e)(5) (renumbered Sec. 10.2 (a)(3)(i)) and
control in Sec. 10.2 (e)(6) (renumbered Sec. 10.2 (a)(3)(ii)). One
commenter recommended giving both terms their ordinary and customary
meaning in the regulations. Two commenters objected to use of ``legal
interest'' in both definitions on the grounds that under common law,
museums and Federal agencies do not have sufficient legal interest in
human remains to do anything with them. Two commenters questioned
including items on loan to a museum in a summary or inventory since the
items are not the property of the museum. One commenter recommended
deleting the definition of control as it would require Federal
bureaucrats and museum officials to make complicated legal
determinations. Examples designed to clarify the uses of possession and
control have been added to these sections to address the concerns
reflected in these comments. Two commenters questioned whether
``control'' applied to museum collections or to Federal lands. The term
applies to human remains, funerary objects, sacred objects, or objects
of cultural patrimony in museum or Federal agency collections or
excavated intentionally or discovered inadvertently on Federal or
tribal lands. One commenter recommended that the definition
specifically address Federal agency responsibilities for collections
from Federal lands being held by non-governmental repositories. Federal
agencies are responsible for the appropriate treatment and care of such
collections.
One commenter requested clarification of the exclusion of
procurement contracts from ``Federal funds'' in Sec. 10.2 (a)(6)
(renumbered Sec. 10.2 (a)(3)(iii)). Procurement contracts are not
considered a form of Federal-based aid but are provided to a contractor
in exchange for a specific service or product. One commenter requested
deletion of the last two sentences of the definition that clarify the
applicability of the rule to museums that are part of a larger entity
that receives Federal funds, questioning if the legislative history
supports such an interpretation. One commenter supported the present
definition of institutions receiving Federal funds. Application of
Federal laws to institutions that receive Federal funds is common,
being used with such recent legislation as the Americans with
Disabilities Act. These laws typically are interpreted to apply to
organizations that are part of larger entities that receive Federal
funds. Two commenters recommended specifying the applicability of the
rule to museums affiliated with certified local governments and Indian
tribal museums. The rule applies to museums that are part of certified
local governments. A tribal museum is covered by the Act if the Indian
tribe of which it is part receives Federal funds through any grant,
loan, or contract (other than a procurement contract).
Subsection 10.2(b) includes definitions of those persons or
organizations that have standing to make a claim under these
regulations.
Eight commenters recommended changes in the definition of lineal
descendant in Sec. 10.2 (a)(14) (renumbered Sec. 10.2 (b)(1)). Two
commenters identified the definition as too restrictive. The drafters
realize that claims of lineal descent require a high standard but feel
that this standard is consistent with the preference for repatriation
to lineal descendants required by the Act. Another commenter presented
a statistical argument to indicate that all members of Indian tribes
might be recognized as lineal descendants of human remains over 1,000
year old. Regardless of the statistical possibilities that someone
might be related to another, the definition of lineal descent requires
that the human remains, funerary objects, or sacred objects under
consideration be from a known individual. It is highly unlikely that
the identity of an individual that lived 1,000 years ago is known, or
that it is possible to trace descent directly and without interruption
from that known individual to a living individual. One commenter
recommended replacing the ``known Native American individual'' from
which lineal descent is traced with ``known individual of a tribe.''
The term Indian tribe as used in these regulations refers only to those
contemporary tribes, bands, nations, or other organized Indian groups
or communities that are recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians. Requiring the known individual to have been a member
of the
[[Page 62136]]
same Federally recognized Indian tribe as their lineal descendant would
limit repatriation to only the most recent human remains, funerary
objects, or sacred objects and is not supported by the statutory
language or legislative history. One commenter recommended deleting
reference to use of the ``traditional kinship system.'' Reference to
traditional kinship systems is designed to accommodate the different
systems that individual Indian tribes use to reckon kinship. One
commenter recommended that the definition should also allow more
conventional means of reckoning kinship. The definition has been
amended to include the common law system of descendance as well as the
traditional kinship system of the appropriate Indian tribe or Native
Hawaiian organization. One commenter recommended defining an additional
class of ``lineage members'' or ``kindred''--individuals that are not
lineal descendants in the biological sense of the term but are related
by the traditional kinship system--and then giving these individuals a
secondary priority for making a claim after lineal descendants but
before culturally affiliated Indian tribes. Determinations of priority
between blood descendants and descendants by some other traditional
kinship system are more properly resolved in specific situations rather
than through general regulations.
One commenter recommended clarifying the definition of Indian tribe
in Sec. 10.2 (a)(9) (renumbered Sec. 10.2 (b)(2)) to ensure timely
notification. Seventeen commenters recommended expanding the definition
to include a broader spectrum of Indian groups than those recognized by
the Bureau of Indian Affairs (BIA). Several commenters identified
specific groups they felt should have standing, including: various
bands or tribes in California, Washington, and Ohio; Native American
organizations such as the American Indian Movement; Native American
groups that ``would be eligible for recognition by the BIA if they so
chose to be''; and ``bands recognized by other Federal agencies.''
Section 12 of the Act makes it clear that Congress based the Act upon
the unique relationship between the United States government and Indian
tribes. That section goes on to state that the Act should not be
construed to establish a precedent with respect to any other individual
or organization. The statutory definition of Indian tribe, which
specifies that such tribes must be ``recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians,'' precludes extending applicability
of the Act to Indian tribes that have been terminated, that are current
applicants for recognition, or have only State or local jurisdiction
legal status.
As was explained in the preamble of the proposed regulations, the
definition of Indian tribe used in the Act was drawn explicitly from an
earlier version of the bill (H.R. 5237, 101th Congress, 2nd Sess. sec.
2 (7), (July 10, 1990)) using a specific statutory reference. The final
language of the Act is verbatim from the American Indian Self
Determination and Education Act (25 U.S.C. 450b). The earlier statute
has been carried out since 1976 by the BIA to apply to a specific list
of eligible Indian tribes which has been published in the Federal
Register.
Four commenters found this interpretation unduly narrow and
recommended interpreting the statutory definition to apply to Indian
tribes that are recognized as eligible for benefits for the special
programs and services provided by ``any'' agency of the United States
to Indians because of their status as Indians. The Review Committee
concurred with this recommendation. Based on the above recommendations,
the definition of Indian tribe included in the regulations was amended
by deleting all text describing the process for obtaining recognition
from the BIA. In place of this text, the final regulations include a
statement identifying the Secretary as responsible for creating and
distributing a list of Indian tribes for the purpose of carrying out
the Act. This list is currently available from the Departmental
Consulting Archeologist and will be updated periodically.
One commenter recommended deleting the reference to Alaska Native
corporations in the definition of Indian tribe. The American Indian
Self Determination and Education Act, the source for the definition of
Indian tribe in the Act, explicitly applies to Alaska Native
corporations and, as such, supports their inclusion under the Act.
Alaska Native corporations are generally considered to have standing
under these regulations if they are recognized as eligible for a self-
determination contract under 25 U.S.C. 450b.
Two commenters recommended deleting the final line of the
definition of Indian tribe in which Native Hawaiian organizations are
subsumed for purposes of the regulations. The Review Committee
concurred with this recommendation. The final sentence has been deleted
and the applicability of the regulations to Native Hawaiian
organizations has been specified where appropriate throughout the text.
The term Indian tribe official defined in Sec. 10.2 (b)(4) has not been
changed, though the drafters wish to stress the term's applicability to
the representatives of both Indian tribes and Native Hawaiian
organizations.
Two commenters recommended changes to the definition of Native
Hawaiian organization in Sec. 10.2 (a)(11) (renumbered Sec. 10.2
(b)(3)). One commenter recommended specifying that such organizations
should have a primary and stated purpose of the ``preservation of
Hawaiian history,'' and have expertise in Native Hawaiian ``cultural''
affairs. Two commenters recommended requiring a Native Hawaiian
organization verify that more than 50% of its membership is Native
Hawaiian. The statutory definition of Native Hawaiian organization in
section 2 (11) of the Act precludes expansion of the criteria for
identifying Native Hawaiian organizations. An earlier version of the
bill (S. 1980, 101st Cong. 2nd sess. section 3 (6)(c), (September 10,
1990)) that eventually became the Act included a provision requiring
Native Hawaiian organization to have ``a membership of which a majority
are Native Hawaiian.'' This provision was not included in the Act. The
legislative history confirms that Congress considered the additional
criterion and decided not to include it in the Act.
One commenter recommended rewriting the definition of Native
Hawaiian in Sec. 10.2 (a)(10) (renumbered Sec. 10.2 (b)(3)) to include
Pacific Islanders. The statutory definition of Native Hawaiian in
section 2 (10) of the Act precludes expansion of this definition to
include Pacific Islanders who are not descendants of the aboriginal
people who, prior to 1778, occupied and exercised sovereignty in the
area that now constitutes the State of Hawaii.
Three commenters recommended changes to the definition of Indian
tribe official in Sec. 10.2 (a)(12) (renumbered Sec. 10.2 (b)(4)). One
commenter recommended specifying that Indian tribe official means the
tribal chair or officially designated individual. One commenter
recommended allowing designation by the governing body of an Indian
tribe ``or as otherwise provided by tribal code, policy, or
procedure.'' One commenter recommended that the designated person need
not be a member of that Indian tribe. The definition of Indian tribe
official was amended to identify the principal leader or the individual
officially designated or otherwise provided by tribal code, policy or
established procedure. This person need not necessarily be a member of
the particular Indian tribe.
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Subsection 10.2 (c) includes definitions of those persons or
organizations that are responsible for carrying out these regulations.
One commenter requested clarification of the role of the
Departmental Consulting Archeologist defined in Section 10.2 (a)(3)
(renumbered Sec. 10.2 (c)(3)). The Departmental Consulting Archeologist
was delegated by the Secretary of the Interior with responsibilities
for drafting regulations, providing staff support to the Review
Committee, administering grants, and providing technical aid under the
Act.
Subsection 10.2 (d) includes definitions of the objects covered by
these regulations.
One commenter recommended that the definition of Native American in
Sec. 10.2 (a)(8) (renumbered Sec. 10.2 (d)) specifically include Native
Hawaiians. The definition already includes Native Hawaiians. To clarify
the applicability of the rule, the definition of Native American was
rewritten to specifically include tribes, people, or cultures
indigenous to the United States, ``including Alaska and Hawaii.'' The
drafters point out that ``Native American'' is used in the Act and in
these rules only to refer to particular human remains, funerary
objects, sacred objects, or objects of cultural patrimony and not to
any living individual or group of individuals.
Thirteen commenters recommended changes to the definition of human
remains in Sec. 10.2 (b)(1) (renumbered Sec. 10.2 (d)(1)). One
commenter recommended expanding the definition to include all human
remains, not just those of Native Americans. The Act is designed
specifically to address the disposition or repatriation of Native
American human remains, funerary objects, sacred objects, or objects of
cultural patrimony and not to cover all human remains. Three commenters
recommended excluding disarticulated and unassociated human remains,
such as isolated teeth and finger bones, from repatriation. Two
commenters recommended amending the definition to include only those
human remains ``associated with the body at the time of death,'' to
eliminate such things as extracted or lost teeth, cut finger nails,
coprolites, blood residues, and tissue samples taken by coroners. One
commenter recommending deleting the exemplary clause--``including but
not limited to bones, teeth, hair, ashes, or mummified or otherwise
soft tissue''--as being overly limiting. The Act makes no distinction
between fully-articulated burials and isolated bones and teeth.
Additional text has been added excluding ``naturally shed'' human
remains from consideration under the Act. This exclusion does not
include any human remains for which there is evidence of purposeful
disposal or deposition. The exemplary clause has been deleted. One
commenter requested clarification as to whether the regulations would
apply to blood sold or given to a blood bank by an individual of Native
American ancestry. The blood bank would not be subject to repatriation
having been freely given. One commenter supported considering human
remains that had been incorporated into a sacred object or object of
cultural patrimony be considered as part of that cultural item for the
purpose of determining cultural affiliation. Two commenters recommended
excluding human remains incorporated into cultural items from
repatriation since, as one said, they were ``objectified by their
original makers and owners, not the institutions that might house them
now.'' One commenter requested clarification regarding the status of
human remains that were not freely given but that have been
incorporated into objects that are not cultural items as defined in
these regulations. The legislative history is silent on this issue.
Determination of the proper disposition of such human remains must
necessarily be made on a case-by-case basis. One commenter recommended
deleting reference to human remains that have been incorporated into a
funerary object, sacred object, or object of cultural patrimony, in
that any change in the character of the human remains, including the
definition, would only further their dishonor. Three commenters asked
for clarification in how to determine whether human remains
incorporated into a funerary object, sacred object, or object of
cultural patrimony were freely given. The provision regarding
determination of the cultural affiliation of human remains that had
been incorporated into a funerary object, sacred object, or object of
cultural patrimony was recommended by the Review Committee to preclude
the destruction of items that might be culturally affiliated with one
Indian tribe that incorporate human remains culturally affiliated with
another Indian tribe.
Two commenters recommended changing the definition of cultural
items in Sec. 10.2 (b)(2). One commenter recommended broadening the
definition to include any and all objects deemed to have cultural
significance by an Indian tribe. Cultural items are defined in the Act
to include human remains, funerary objects, sacred objects, and objects
of cultural patrimony. The term was redefined in the proposed
regulations to include funerary objects, sacred objects, and objects of
cultural patrimony, and not human remains to address the objections
some individuals had expressed over referring to human remains as
``cultural items.'' Two commenters recommended retaining the statutory
definition. The term has been changed to read ``human remains, funerary
object, sacred object, or object of cultural patrimony'' throughout the
rule to ensure clarity. The definition of ``cultural item'' has been
deleted throughout the text.
One commenter recommended combining the definitions of associated
funerary object in Sec. 10.2 (b)(3) and unassociated funerary object in
Sec. 10.2 (b)(4) into a single definition of funerary object. The two
definitions have been combined in Sec. 10.2 (d)(2).
Ten commenters recommended changes to the definition of associated
funerary object in Sec. 10.2 (b)(3) and unassociated funerary object in
Sec. 10.2 (b)(4) (combined and renumbered Sec. 10.2 (d)(2)). One
commenter recommended rewriting both definitions to make a distinction
between objects associated with individual human remains and objects
for which a funerary context is suspected, but association with
individual human remains is not possible. Another commenter objected to
what he considered an overly rigorous standard of proof. The statutory
language makes it clear that only those objects that are associated
with individual human remains are considered funerary objects. The
distinction between associated and unassociated funerary objects is
based on whether the individual human remains are in the possession or
control of a museum or Federal agency. One commenter recommended
deleting the word ``intentionally'' in Sec. 10.2 (b)(3)(i) and
Sec. 10.2 (b)(4) since the term does not occur in the statutory
language. The term is included to emphasize the intentional nature of
death rites or ceremonies. Items that inadvertently came into proximity
or contact with human remains are not considered funerary objects. One
commenter questioned whether any objects excavated intentionally or
discovered inadvertently on Federal or tribal land after November 16,
1990, would fit these definitions, since it requires the objects be in
the possession or control of a Federal agency, and section 3 of the Act
seems to preclude Federal ownership of such objects. Possession of
funerary objects excavated intentionally or discovered inadvertently on
Federal or
[[Page 62138]]
tribal land is sufficient to apply the provisions of the statute to
such intentional excavations or inadvertent discoveries.
Two commenters recommended deletion of the clause ``or near'' from
Sec. 10.2 (b)(3) (renumbered Sec. 10.2 (d)(2)), indicating that it
would require museums to enter into debates about the proximity of
objects to human remains. The clause was included to accommodate
variations in Native American death rites or ceremonies. Some Indian
tribes, particularly those from the northern plains, have ceremonies in
which objects are placed near, but not with, the human remains at the
time of death or later. The drafters consider these funerary objects.
One commenter recommended clarifying Sec. 10.2 (b)(3)(i)
(renumbered Sec. 10.2 (d)(2)(i)) by specifying that funerary objects
are ``associated'' even when another institution has possession or
control of the human remains. The drafters consider the statutory
definition, which is repeated in the rule, to support this
interpretation without any additional modification. One commenter
recommended clarifying Sec. 10.2 (a)(3)(ii) [renumbered Sec. 10.2
(d)(2)(i)] by specifying that items made exclusively for burial
purposes are considered as associated funerary objects even if there
are no associated human remains. Items made exclusively for burial
purposes are considered associated funerary objects even if there are
no associated human remains. Four commenters recommended deleting the
final sentence of the definition of unassociated funerary object in
Sec. 10.2 (b)(4) [renumbered Sec. 10.2 (d)(2)], objecting to the
requirement that such human remains were removed from a ``specific''
burial site. Another commenter recommended deleting reference to the
``preponderance of the evidence'' in the same sentence, because it
implies an adversarial context which is inappropriate for the process
of identifying unassociated funerary objects. In both of these
instances, the text of the regulations reflects exactly the statutory
text and has not been modified. The final sentence of this section was
drawn from an explanation of the definition in House Report 101-877
(1990: page 2) and is taken to represent Congressional intent. Another
commenter recommended deleting ``reasonably believed to have been''
from Sec. 10.2 (b)(2)(ii). The phrase has been deleted.
One commentor recommended clarifying the definition of unassociated
funerary objects in Sec. 10.2 (b)(4) to exempt items exhibited
intentionally with individual human remains but subsequently returned
or distributed to living descendants or other individuals. The
recommended language has been added to Sec. 10.2 (d)(2)(ii).
Ten commenters recommended changes to the definition of sacred
objects in Sec. 10.2 (b)(5) (renumbered Sec. 10.2 (d)(3)). One
commenter recommended broadening the definition to include any and all
objects deemed to have sacred significance by Indian tribes and not
just those objects needed by traditional Native American religious
leaders for the practice of traditional Native American religions by
their present-day adherents. Another commenter recommended broadening
the definition to include specific objects or geological features
identified by traditional Native American practitioners as endowed with
sacredness due to the object's past role in traditional Native American
religious ceremony or on the basis of similar objects having
contemporaneous religious significance or function in the continued
observance or renewal or a ceremony. The statutory language and
legislative history indicate that this definition was written carefully
and precisely. Expanding the definition to include the types of items
identified above in the comments runs counter to Congressional intent.
Four commenters recommended changes in the definition of
traditional religious leader in Sec. 10.2 (a)(13) (renumbered Sec. 10.2
(d)(3)). Two commenters recommended replacing the phrase allowing such
leaders to be recognized ``by members of that Indian tribe'' with
``that Indian tribe.'' The drafters realize that allowing members of an
Indian tribe or Native Hawaiian organization to recognize traditional
religious leaders may result in conflicting claims. However, such
issues are best resolved by the members of the Indian tribe or Native
Hawaiian organization themselves. One commenter recommended replacing
the word ``or'' at the end of Sec. 10.2(a)(13)(i) with ``and.'' The two
criteria listed are intended as alternative methods for identifying
traditional religious leaders and not as cumulative criteria. Another
commenter recommended specifying that an individual's leadership role
must be based on ``traditional'' religious practices. The drafters
consider whether or not an individual's leadership in a religion is
based upon traditional practice an inappropriate concern for Federal
regulations.
Two commenters recommended deleting the word ``current'' from the
first line of the definition of sacred object since the term was not
included in the statutory text. The term was deleted. One commenter
objected to ``use'' being the measure to decide whether an object
should be repatriated, suggesting instead right of possession as the
relevant standard. The necessity of an object for use by present day
adherents of a traditional Native American religion is critical in
identifying a sacred object, while determination of right of possession
is necessary to determine whether the sacred object must be repatriated
to the Indian tribe or Native Hawaiian organization or may be retained
by the museum or Federal agency.
One commenter recommended deleting the second sentence of the
definition of sacred object which he considers to depart in major ways
from the statutory definition. The second sentence of the definition
was drawn from the Senate Select Committee Report (S.R. 101-473: p. 7)
and helps clarify the precise, limited use of this category intended by
Congress.
One commenter recommended including clarification in the definition
that: 1) sacred objects can not be associated with human remains, as
they would then be funerary objects, and 2) only in rare circumstances
can prehistoric items be sacred objects. While this usually may be so,
blanket exclusion of any funerary object from also being a sacred
object is not considered appropriate in that the categories are not
mutually exclusive. Similarly, identification of sacred objects from
prehistoric contexts must be made on a case-by-case basis.
One commenter agreed with the inclusion of sacred objects that have
religious significance or function in the continued observance or
renewal of a traditional Native American religious ceremony or ritual.
Another commenter recommended deleting reference to ``renewal'' in the
second sentence, stating that the issue was debated during the
legislative process and final statutory language does not include
reference to renewal of a traditional Native American religious
ceremony. Language specifying the inclusion of objects that function in
the continued observance or renewal of a traditional Native American
religious ceremony as sacred objects was drawn from the Senate Select
Committee Report (S.R. 101-473: p. 7) and is thought to reflect
Congressional intent.
Three commenters requested clarification as to who is responsible
for making the determination that a particular item fits the definition
of sacred object. In all cases, the museum or Federal agency official
has the initial responsibility for deciding whether an object in its
possession or control fits
[[Page 62139]]
the definition of sacred object. However, if an Indian tribe or Native
Hawaiian organization does not agree with this decision, it has
recourse to challenge directly the decision of the museum or Federal
agency. The Indian tribe or Native Hawaiian organization may seek the
involvement of the Review Committee if it is unsuccessful in its direct
appeal to the museum or Federal agency.
Six commenters recommended changes to the definition of objects of
cultural patrimony in Sec. 10.2 (b)(6) (renumbered Sec. 10.2 (d)(4)])
One commenter recommended deleting the word ``cultural'' from the term
``cultural items'' in the first sentence, in that the current phrasing
is circular. The word has been deleted. One commenter cautioned that
the definition does not recognize that internal disagreements may occur
within an Indian tribe or Native Hawaiian organization about the
importance of an object of cultural patrimony. Another commenter
recommended broadening the definition to include those objects of
ongoing historical, traditional, or cultural importance central to any
sub-group of an Indian tribe, such as a band, clan, lineage, ceremonial
society, or other subdivisions. Claims for human remains, funerary
objects, sacred objects, or objects of cultural patrimony by such sub-
groups must be made through an Indian tribe or Native Hawaiian
organization.
One commenter requested clarification of the example of the Zuni
War Gods that appear to be both objects of cultural patrimony and
sacred objects. An object can fit both categories depending upon the
nature of the traditional religion and the system of property rights
used by a particular Indian tribe or Native Hawaiian organization. Zuni
War Gods present such a case. In other cases, sacred objects may have
been owned privately and, thus, are not considered objects of cultural
patrimony. One commenter requested clarification as to who is
responsible for making the determination that a particular item fits
the definition of object of cultural patrimony. In all cases, the
museum or Federal agency official has the initial responsibility for
deciding whether an object in its possession or control fits the
definition of object of cultural patrimony. However, if an Indian tribe
or Native Hawaiian organization does not agree with this decision, it
has recourse to challenge directly the decision with the museum or
Federal agency.
Section 10.2 (e) includes the definition of cultural affiliation.
One commenter recommended deleting reference to Native Hawaiian
organizations as they are included under the definition of Indian tribe
in Sec. 10.2 (b)(2). The text has been changed to read ``Indian tribe
or Native Hawaiian organization'' throughout the regulations. One
commenter requested inclusion of a short characterization of the
threshold criteria applicable to determining cultural affiliation. A
second sentence clarifying this threshold has been added to the
definition. Three commenters requested additional clarification of the
definition of cultural affiliation. Procedures for determining cultural
affiliation are included in Sec. 10.14 (c).
Section 10.2 (f) includes definitions of the types of lands that
the excavation and discovery provisions of these regulations apply.
Six commenters asked for clarification regarding the applicability
of statutory provisions for intentional excavation or inadvertent
discovery of human remains, funerary objects, sacred objects, or
objects of cultural patrimony to private lands. Unlike provisions of
the National Historic Preservation Act (NHPA) that are applicable to
Federal undertakings regardless of who owns the land on which the
project is being conducted, the intentional excavation and inadvertent
discovery provisions of these regulations apply only to Federal and
tribal lands.
Five commenters recommended changes to the definition of Federal
lands in Sec. 10.2 (d)(1) (renumbered Sec. 10.2 (f)(1)). One commenter
recommended deleting the definition of ``control'' as it will require
Federal bureaucrats to make complicated legal determinations as to what
is ``a sufficient legal interest to permit it to apply these
regulations without abrogating the rights of a person.'' Another
commenter recognized the need for a definition of Federal ``control,''
but suggested that the present definition fails to clarify the issue.
Another commenter requested clarification whether Federal control, and
thus the intentional excavation and inadvertent discovery provisions of
these regulations, extends to the Wetlands Reserve Program or to the
Forest Legacy Program. One commenter requested clarification of the
applicability of Federal control to real property instruments such as
easements, rights-of-way, and rights-of-entry for performance of
specific activities. One commenter requested clarification of the
applicability of Federal control to private lands through issuance of a
Federal permit, license, or funding. One commenter recommended
including the existence of a long term lease by a Federal agency or an
interest under which the land owner has authorized the United States to
undertake intentional excavation or other land disturbance as under
Federal control. As indicated above, the intentional excavation and
inadvertent discovery provisions of the Act apply only to Federal and
tribal lands. Whether Federal control of programs such as those
mentioned above is sufficient to apply these regulations to the lands
covered by the program depends on the circumstances of the Federal
agency authority and on the nature of state and local jurisdiction.
Such determinations must necessarily be made on a case-by-case basis.
Generally, however, a Federal agency will only have sufficient legal
interest to ``control'' lands it does not own when it has some other
form of property interest in the land such as a lease or easement. The
fact that a Federal permit is required to undertake and activity on
non-Federal land generally is not sufficient legal interest in and of
itself to ``control'' the land within the meaning of these regulations
and the Act. In situations when two or more Federal agencies share
regulatory or management jurisdiction over Federal land, the Federal
agency with primary management authority will generally have control
for purposes of implementing the Act.
Nineteen commenters recommended changes to the definition of tribal
lands in Sec. 10.2 (c)(2) (renumbered Sec. 10.2 (f)(2)). One commenter
recommended broadening the exclusion of privately owned lands within
the exterior boundaries of an Indian reservation to encompass state and
Federal land holdings. Thirteen commenters objected to the exclusion of
privately owned lands within the exterior boundaries of an Indian
reservation and recommended returning to the statutory language. The
proposed exclusion was intended to rectify a contradiction between the
statutory definition of tribal lands in section 2 (15) of the Act and
the guarantee in section 2 (13) of the Act that no taking of property
without compensation within the meaning of the Fifth Amendment of the
United States Constitution is intended. The drafters concur with the
majority of commenters that the blanket exclusion of private lands
within the exterior boundaries of an Indian reservation from the
intentional excavation and inadvertent discovery provisions of the
regulations is overly broad. The exclusion was deleted and a new
subsection added at Sec. 10.2 (f)(2)(iv) stating that the regulations
will not apply to tribal lands to the extent that any particular action
[[Page 62140]]
authorized or required will result in a taking of property without just
compensation within the meaning of the Fifth Amendment to the United
States Constitution.
Three commenters recommended broadening the definition of tribal
lands to apply to allotments held in trust for Indian tribes or
individuals, regardless of whether the allotments are inside or outside
the boundaries of an Indian reservation. This suggestion is
inconsistent with the Act's definition of tribal lands. One commenter
stated that the reference to 18 U.S.C. 1151 in Sec. 10.2 (d)(2)(ii)
(renumbered Sec. 10.2 (f)(2)(ii)) does not clarify the nature of
dependent Indian community. Dependent Indian communities, as defined in
18 U.S.C. 1151 (b), include those Indian communities under Federal
protection that were neither ``reserved'' formally, nor designated
specifically as a reservation. Cohen, in The Field of Indian Law
(1982:38) concludes that ``it is apparent that Indian reservations and
dependent Indian communities are not two distinct definitions of place
but rather definitions which largely overlap. All Indian reservations
are also dependent Indian communities unless they are uninhabited.'' In
addition to Indian reservations, dependent Indian communities also
include patented parcels of land and rights-of-way within residential
Indian communities under Federal protection. One commenter recommend
joining Sec. 10.2 (d)(2)(i), (ii), and (iii) (renumbered Sec. 10.2
(f)(2)(i), (ii), and (iii)) with ``or'' at the end of the first two
lines. This change has been made.
Nine commenters recommended changes to the definition of aboriginal
lands in Sec. 10.2 (c)(3). Four commenters challenged use of Indian
Claims Commission judgements to determine aboriginal territories. One
commenter recommended using Native American origin stories and
anthropological evidence instead. A second commenter recommended that
the limits of aboriginal territory must come directly from the Indian
tribe itself. A third commenter recommended expanding the definition to
include all ceded lands and all lands traditionally used by an Indian
tribe, regardless of whether there may have been overlapping usage by
neighboring Indian tribes. The Indian Claims Commission was established
in 1949 specifically to adjudicate tribal land claims against the
United States. Over 200 cases were settled between 1949 and 1978 when
the Commission was terminated. Since 1978, Indian land claims have been
adjudicated by the United States Court of Claims. The Commission and
the Court have considered a wide range of information, including oral
history and anthropological evidence, in reaching their decisions.
Section 3 (a)(1)(C) of the Act specifically gives Indian tribes the
right to claim human remains, funerary objects, sacred objects, or
objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal land that is recognized by a final judgement
of the Indian Claims Commission or United States Court of Claims as
part of their aboriginal land. The drafters consider the final
judgements of the Indian Claims Commission a valuable tool for
identifying area occupied aboriginally by a present-day Indian tribe.
Other sources of information regarding aboriginal occupation should
also be consulted. The definition has been deleted from the rule.
One commenter questioned whether provisions of the Act regarding
intentional excavation or inadvertent discovery of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
apply to all aboriginal lands, or just to that portion of an Indian
tribe's aboriginal territory that is now in Federal ownership or
control. These regulations apply to claims for human remains, funerary
objects, sacred objects, or objects of cultural patrimony excavated
intentionally or discovered inadvertently on Federal lands. One
commenter requested reference information for final judgements by the
Court of Claims. One commenter stated that the map of aboriginal lands
included with the final report of the Indian Claims Commission is out
of print, out of date, and difficult to use as neither counties nor
detailed geographic indicators are provided. The United States
Geological Survey has recently republished the 1978 map. Efforts are
underway to update the map to include land claims settled since 1978.
One commenter inquired about the status of Indian tribes that have
filed a land claim for a particular area, but for which a court
judgement or ruling from the court has been made. An Indian tribe's
status to make a claim under the Act based upon aboriginal occupation
of an area is recognized when a favorable court judgement or ruling has
been made. However, this situation will only affect the disposition of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony excavated intentionally or discovered inadvertently on
Federal land where no lineal descendants or culturally affiliated
Indian tribe has made a claim.
Subsection 10.2 (g) includes definitions of procedures required to
carry out these regulations. Two commenters asked for clarification of
the difference between the items included on the summary in Sec. 10.2
(e)(1) (renumbered Sec. 10.2 (g)(1)) and the items on the inventory in
Sec. 10.2 (e)(2) (renumbered Sec. 10.2 (g)(2)). Summaries are written
general descriptions of collections or portions of collections that may
contain unassociated funerary objects, sacred objects, and objects of
cultural patrimony. Inventories are item-by-item descriptions of human
remains and associated funerary objects. The distinction between the
documents reflects not only their subject matter, but also their detail
(brief overview vs. item-by-item list), and place within the process.
Summaries represent an initial exchange of information prior to
consultation while inventories are documents completed in consultation
with Indian tribe officials and representing a decision by the museum
official or Federal agency official about the cultural affiliation of
human remains and associated funerary objects.
One commenter recommended including a definition of
``repatriation'' in the regulations. The rules of statutory
construction require interpreting undefined terms according to their
common meaning. Repatriation means the return of someone or something
to its nation of origin.
One commenter recommended inclusion of a definition for
``appropriate care and treatment'' of human remains, funerary objects,
sacred objects, or objects of cultural patrimony. The appropriateness
of particular types of care and treatment will necessarily depend on
the nature of the particular human remains, funerary objects, sacred
objects, or objects of cultural patrimony under consideration and the
concerns of any lineal descendants or affiliated Indian tribes or
Native Hawaiian organizations.
Three commenters recommended changes to the definition of
intentional excavation in 10.2 (e)(3) (renumbered Sec. 10.2 (g)(3)).
One commenter recommended deleting the word ``planned'' from the
definition to embrace all kinds of archeological removal, whether
planned or occasioned by an encounter with human remains, funerary
objects, sacred objects, or objects of cultural patrimony during
construction or land use. One commenter recommended expanding the
definition to include intentional excavations on private lands. One
commenter recommended replacing the definition with ``means intentional
removal for the purposes of discovery, study, or removal of such
items'' from section 3 (c) of the statute. These
[[Page 62141]]
changes are unnecessary or inappropriate and were not made.
Two commenters recommended changes to the definition of inadvertent
discovery in 10.2 (e)(4) (renumbered Sec. 10.2 (g)(4)). One commenter
recommended replacing ``inadvertent'' with ``accidental, unintended,
unpredictable, or unexpected in spite of all precaution,'' to avoid any
presumption that such discoveries were made without forethought or
through negligence. Another commenter recommended expanding the
definition to include inadvertent discoveries on private lands. These
changes are unnecessary or not appropriate and were not made.
Section 10.3
This section carries out section 3 (c) of the Act regarding the
custody of human remains, funerary objects, sacred objects, or objects
of cultural patrimony that are excavated intentionally from Federal or
tribal lands after November 16, 1990. One commenter recommended stating
explicitly that the section applies only to Native American human
remains and not to non-Native American human remains such as mountain
men or early settler burials. The language has not been changed as all
provisions of these regulations apply only to Native American human
remains, funerary objects, sacred objects or objects of cultural
patrimony. One commenter requested reviewing use of the term
``intentional excavation'' throughout the section to ensure consistency
with the statutory language. Section 3 (c) of the Act applies to the
``intentional removal from or excavation of Native American [human
remains and] cultural items from Federal or tribal lands for the
purposes of discovery, study, or removal.'' This definition includes
scientific archeological excavations for independent research, public
interpretation, or as part of planned removal of human remains during
land-disturbing activities such as construction projects.
One commenter recommended the regulations focus on ``more
protection of archeological sites ... for research by the scientific
community.'' The Act certainly has as one goal improved protection of
in situ archeological sites. However, this protection is afforded not
simply to allow for more scientific study. Rather, the intent is to
preserve and protect Native American graves, allowing for their
scientific examination only as necessary and appropriate.
Two commenters requested clarification of the clause ``if otherwise
required'' regarding the necessity for obtaining a permit issued
pursuant to the Archeological Resources Protection Act (ARPA) in
Sec. 10.3 (b)(1). The clause has been deleted. The Review Committee
recommended additional clarification in Sec. 10.3 (b)(1) regarding
issuance of ARPA permits on private holdings within the exterior
boundaries of Indian reservations and on lands administered for the
benefit of Native Hawaiians pursuant to the Hawaiian Homes Commission
Act. Language regarding issuance of permits on these lands has been
included.
One commenter recommended requiring the consent of culturally
affiliated Indian tribes and Native Hawaiian organizations for
intentional excavations on both Federal and tribal lands. Another
commenter recommended requiring the consent of traditional religious
leaders for intentional excavations on both Federal and tribal lands.
These changes have not been made. Section 3 (c)(2) of the Act
authorizes excavation or removal of human remains, funerary objects,
sacred objects, or objects of cultural patrimony only after
consultation with or, in the case of tribal lands, consent of the
appropriate Indian tribe or Native Hawaiian organization. One commenter
recommended that Sec. 10.3 (b)(4) not be ``the only requisite for
intentional excavation.'' The requirements of Sec. 10.3 (b)(1) through
(4) must all be met before conducting an intentional excavation.
One commenter recommended changing the title of Sec. 10.3 (c) from
``Procedures'' to ``Disturbances during authorized land use.'' The
procedures outlined in this subsection apply to intentional removal or
excavation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony from Federal or tribal land and not
disturbance during authorized land use, which is dealt with under
Sec. 10.4 regarding inadvertent discovery of human remains, funerary
objects, sacred objects, or objects of cultural patrimony on Federal or
tribal lands. One commenter suggested that Sec. 10.3 (c)(1) confuses
the issue of who -- ``any person'' or the Federal official -- is
responsible for complying with the provisions of the regulations
regarding intentional excavations, and recommended deleting the
section. Two commenters requested clarification of an ``activity'' as
referred to in the first sentence of Sec. 10.3 (c)(1). The subsection
has been deleted and subsequent subsections renumbered.
One commenter requested clearly defining ``responsible Federal
agency.'' The Federal agency with the responsibility for issuing
approvals or permits on actions within their designated Federal lands
is the responsible Federal agency under the Act. In situations when two
or more Federal agencies share regulatory or management jurisdiction of
Federal land, the Federal agency with primary management authority will
have control for purposes of carrying out these regulations unless
otherwise agreed.
One commenter recommended requiring any person who proposes to
undertake an activity on Federal or tribal lands that may result in the
intentional excavation of human remains, funerary objects, sacred
objects, or objects of cultural patrimony to notify all affected
parties, including culturally affiliated Indian tribes and Native
Hawaiian organizations. The Federal agency official -- and not a person
proposing to undertake an activity on Federal lands -- is responsible
for the management of lands under his or her control and is the
appropriate person to notify Indian tribes and Native Hawaiian
organizations of intentional excavations. The Federal agency official,
once notified by a person of such an activity, is required to take
reasonable steps to determine whether the planned activity may result
in the intentional excavation of human remains, funerary objects,
sacred objects, or objects of cultural patrimony. Prior to issuing any
approvals or permits, the Federal agency official must notify in
writing the Indian tribe or Native Hawaiian organizations that are
likely to be affiliated with any excavated items. A person proposing to
undertake an activity on tribal lands should contact the appropriate
tribal official directly.
One commenter recommended requiring the Federal official identified
in the first sentence of Sec. 10.3 (c)(2) (renumbered Sec. 10.3 (c)(1))
to meet the Secretary's standards for persons conducting ethnohistoric
research. There currently are no Secretary's standards for
ethnohistoric research. Each agency is responsible for ensuring that
their employees are qualified to conduct the work required of them. One
commenter recommended clarifying the ``reasonable steps'' required of
Federal officials to explicitly include completion of Stage I surveys
for of all planned ground-disturbing activities as required under
section 106 of the NHPA. The type of steps taken by a Federal agency
official are expected of vary from case-to-case and have not been
specified in these regulations.
One commenter recommended requiring Federal officials to take
reasonable steps regarding planned activities ``or Federal actions.''
The recommended language has not been
[[Page 62142]]
added as it might be interpreted to refer to Federal actions on non-
Federal lands. Provisions of the Act regarding intentional excavations
and inadvertent discoveries apply only to activities occurring on
Federal and tribal lands.
One commenter questioned whether the responsible Federal agency
official need be notified regarding planned activities for which there
is no indication that disturbance of human remains, funerary objects,
sacred objects, or objects of cultural patrimony is likely. These
regulations do not require notification of the responsible Federal
agency official regarding planned activities for which intentional
excavation or removal of human remains, funerary objects, sacred
objects, or objects of cultural patrimony is not anticipated. Human
remains, funerary objects, sacred objects, or objects of cultural
patrimony discovered inadvertently during such an activity would
require cessation of activity for thirty (30) days while the Federal
official consults with affiliated Indian tribes and Native Hawaiian
organizations.
One commenter questioned whether the phrase ``otherwise required by
law'' in the second sentence of Sec. 10.3 (c)(2) (renumbered Sec. 10.3
(c)(1)) referred to ``approvals or permits'' or to ``activities.'' The
sentence has been rewritten as ``required approvals or permits for
activities.'' One commenter recommended including language requiring
Federal agency officials to notify both Indian tribe officials and
traditional religious leaders and obtaining that written approval from
the traditional leaders prior to issuance of required approvals or
permits. The Act requires Federal agency officials to consult with
Indian tribes and Native Hawaiian organizations regarding the
disposition of human remains, funerary objects, sacred objects, or
objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal or tribal lands. Consultation with traditional
religious leaders is required regarding the identification of cultural
items in museum or Federal agency collections. The consent of
traditional religious leaders prior to the issuance of approvals or
permits is not required by the Act. One commenter recommended inclusion
of provisions requiring a minimum of at least ten days advance warning
of any proposed meeting in the Federal agency official's notification
to culturally affiliated Indian tribes or Native Hawaiian
organizations. The recommended requirement could needlessly delay
consultation between Federal and tribal officials. Federal officials
should include adequate advance notice of upcoming meetings, but the
necessary time will vary according to the situation and existing
relationship between the Federal agency and the Indian tribes or Native
Hawaiian organizations. The text has not been changed.
One commenter questioned the necessity of distinguishing in the
third sentence of Sec. 10.3 (c)(2) (renumbered Sec. 10.3 (c)(1))
between culturally affiliated Indian tribes and those Indian tribes
that aboriginally occupied an area. The priority order for evaluating
claims of human remains, funerary objects, sacred objects, or objects
of cultural patrimony excavated intentionally or discovered
inadvertently on Federal or tribal lands, provided in Section 3 of Act,
includes Indian tribes that are recognized as aboriginally occupying
the area in which the objects were identified. The regulatory language
ensures that those Indian tribes that aboriginally occupied an area are
notified of planned activities that may result in the intentional
excavation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony. Another commenter recommended including
state-recognized intertribal councils in the notification process.
Section 12 of the Act makes clear the special relationship between the
Federal government and Indian tribes. Federal officials are thus
directed to consult directly with Indian tribes. Indian tribes may
however, delegate their consultation responsibilities to other
organizations, including state inter-tribal councils. One commenter
recommended following written notification by telephone contact if
there is no response in 15 days. Language to that effect has been
inserted as the second to last line of the section. One commenter
recommended that, after consultation, Federal officials are required to
complete a written plan of action as described in Sec. 10.5 (e) and to
execute the actions called for in the plan of action. The recommended
text has been inserted as Sec. 10.3 (c)(2) and all subsequent
subsections renumbered.
Two commenters objected to Sec. 10.3 (c)(3) on the grounds that by
exhorting Federal agencies to coordinate activities required by these
regulations with the compliance procedures for section 106 of the NHPA,
the regulations give the impression that human remains, funerary
objects, sacred objects, or objects of cultural patrimony would be
eligible for the National Register of Historic Places. Four other
commenters recommended the subsection either be left as is, or edited
to require such coordination to ensure consistency between and among
Federal agencies. One commenter recommended excluding such ``secondary
agencies as the State Historic Preservation Officers'' from the
consultation process. The subsection is intended to remind Federal
agencies of similarities between the two consultation processes while
providing the necessary latitude for designing effective and situation-
specific procedures. The text has not been changed.
Two commenters objected to identification in Sec. 10.3 (c)(4) of
the Indian tribe as being responsible for compliance with provisions of
the Act regarding intentional excavations on their lands. Section 3
(a)(2)(A) of the Act makes it clear that Indian tribes have preference
regarding custody of human remains, funerary objects, sacred objects,
or objects of cultural patrimony excavated intentionally or discovered
inadvertently on their tribal lands second only to lineal descendants.
The regulatory text is consistent with Federal recognition of an Indian
tribe's sovereignty regarding administration of their lands and has not
been changed. Another commenter requested clarification of whether the
intentional excavation provisions apply to lands exchanged by Indian
tribes. In general, the provisions regarding intentional excavations
and inadvertent discoveries apply to Federal lands and those lands
currently held in trust by the United States for an Indian tribe. Lands
outside the exterior boundary of an Indian reservation that are held in
trust by the United States for an Indian tribe do not meet the
statutory definition of tribal lands. These lands are under Federal
control, and the provisions for intentional excavation and inadvertent
discovery on Federal lands apply. The provisions of these regulations
do not apply to lands owned by an Indian tribe that have not been
accepted into trust by the United States. Another commenter requested
clarification regarding which Federal agency would have primary
responsibility for compliance with the intentional excavation and
inadvertent discovery provisions of these regulations for proposed or
existing coal mining operations on tribal lands. Any person who
proposes to undertake an activity on tribal lands that may result in
the intentional excavation of human remains, funerary objects, sacred
objects, or objects of cultural patrimony must immediately notify in
writing the responsible Indian tribe official. The tribal official then
decides what, if any, steps to take. One commenter recommended
including a deadline for Indian tribe response to notification of
[[Page 62143]]
an activity planned for tribal lands. A deadline for Indian tribal
response regarding proposed intentional excavations on tribal land is
not considered appropriate as section 3 (c)(2) of the Act makes it
clear that any intentional excavation or removal of human remains,
funerary objects, sacred objects, or objects of cultural patrimony on
tribal land requires the consent of the appropriate Indian tribe or
Native Hawaiian organization. Another commenter recommended clarifying
that the Indian tribe should take appropriate steps to make certain
that the ``treatment and disposition'' of human remains, funerary
objects, sacred objects, or objects of cultural patrimony be carried
out. The recommended language has been included.
Section 10.4
This section carries out section 3 (d) of the Act regarding the
custody of human remains, funerary objects, sacred objects, or objects
of cultural patrimony that are discovered inadvertently on Federal or
tribal lands after November 16, 1990. One commenter requested
replacement of the word ``inadvertent'' in the section title with
``unintended.'' Section 3 (d) of the Act addresses the inadvertent
discovery of human remains, funerary objects, sacred objects, or
objects of cultural patrimony as part of approved work projects as well
as other, unintentional discoveries on Federal or tribal lands. The
statutory term covers both meanings adequately and has been retained in
the title and throughout the text.
One commenter felt the entire section needed to be more specific.
One commenter recommended editing the general statement in Sec. 10.4
(a) to state explicitly that the provisions apply only to ``Native
American'' human remains, funerary objects, sacred objects, or objects
of cultural patrimony. The definition of human remains, funerary
objects, sacred objects, or objects of cultural patrimony in Sec. 10.2
(d) make it clear that these regulations only apply to Native American
human remains, funerary objects, sacred objects, or objects of cultural
patrimony.
One commenter requested clarification in the regulations regarding
treatment of disarticulated and unassociated human remains. Section
10.4 of the Act covers the treatment and disposition of such human
remains under ``Inadvertent Discoveries.''
Two commenters recommended revising the first sentence of Sec. 10.4
(b) to require the person making an inadvertent discovery, and not just
anyone that knows of an inadvertent discovery, to notify the
responsible Federal official. The phrase has been revised to more
closely reflect the statutory language. Another commenter recommended
that the notification of the responsible Federal official be immediate,
via telephone or fax, to ensure that the activity is ceased as soon as
possible. The text has been modified to require immediate telephone
notification of the inadvertent discovery with written confirmation
following. One commenter recommended inclusion of language in this
subsection restating that determination of lineal descent or cultural
affiliation usually require physical anthropological study, laboratory
analysis, radiocarbon dating, and other study to make a legally
defendable statement. The criteria for determining lineal descent and
cultural affiliation, which may include these kinds of examinations,
are contained in Sec. 10.14, and apply throughout these regulations;
they have not been repeated in this section. Another commenter
recommended requiring professional investigation sufficient to complete
an accurate identification of the nature of the inadvertent discovery
prior to notifying the responsible Federal agency official or Indian
tribe official to ensure that the procedures are not carried out
unnecessarily. The drafters consider requiring the complete
professional identification of inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony
prior to notification of the responsible Federal or Indian tribe
officials inconsistent with the statutory language and the legislative
history. One commenter requested clarification of the responsibilities
of the person making an inadvertent discovery for notifying other
agencies, such as the local police, coroner, and the State Historic
Preservation Officer. Requirements for notification of local or state
officials vary by jurisdiction and have not been addressed in this
rule. Subsection 10.4 (f) of these regulations suggests Federal land
managers coordinate their responsibilities under this section with
their emergency discovery responsibilities under section 106 of the
NHPA which includes notification of the State Historic Preservation
Officer. One commenter recommended modifying the text to require
Federal agency employees working on tribal lands to immediately notify
their supervisor, who in turn will notify the Indian tribe official.
Section 3 (d)(1) of the Act requires notification of Indian tribe
officials regarding inadvertent discoveries on tribal lands. Federal
agency officials conducting activities on tribal lands should ensure
that their employees are familiar with the notification procedures of
these regulations. One commenter recommended expanding this subsection
to include provisions to ensure that a Federal agency documents and
acts on reported inadvertent discoveries. Federal agency officials are
required to comply with the provisions of these regulations.
One commenter recommended applying the cessation of activity
following inadvertent discovery of human remains, funerary objects,
sacred objects, or objects of cultural patrimony on Federal or tribal
lands in Sec. 10.4 (c) only to burials in areas that will not be
disturbed and in emergency discovery situations. This suggestion runs
counter to the statutory requirements and the regulatory language has
not been changed. Two commenters requested clarification of the phrases
``in the area of the discovery'' and a ``reasonable effort'' regarding
protection of human remains, funerary objects, sacred objects, or
objects of cultural patrimony following inadvertent discovery. The
terms have not been precisely defined in recognition of the variability
of site locations and types. In general, the terms are interpreted in a
fashion that adequately protects the human remains, funerary objects,
sacred objects, or objects of cultural patrimony from additional
damage.
One commenter recommended editing and renumbering Sec. 10.4 (a),
(e), and (f) to more accurately reflect the distinctions between
procedures on Federal lands and those for tribal lands. The text of
Sec. 10.4 (d) has been renumbered Sec. 10.4 (d)(1) and Sec. 10.4 (e)
has been renumbered as Sec. 10.4 (d)(2).
Two commenters recommended including additional text in Sec. 10.4
(d)(1) (renumbered section 10.4 (d)(1)(i)) directing Federal agencies
to establish a process for certifying the receipt of inadvertent
discovery notifications and training personnel responsible for such
certifications by a specific date. Certification procedures for the
receipt of notifications -- such as those resulting from inadvertent
discoveries -- are already in place with all land management Federal
agencies and need only be modified to the specifics of these
regulations. One commenter recommended including additional examples of
steps to secure and protect inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony --
such as fencing, 24-hour surveillance in populated areas -- in
Sec. 10.4 (d)(2) (renumbered section 10.4 (d)(1)(i)). Specific steps to
secure and protect inadvertently discovered human
[[Page 62144]]
remains, funerary objects, sacred objects, or objects of cultural
patrimony will vary from site-to-site and have not been specified in
this rule.
Seven commenters recommended extending the one (1) day deadline for
notification of affiliated Indian tribes by Federal agency officials in
Sec. 10.4 (d)(3), with suggestions ranging anywhere from three to ten
days. The one (1) day deadline was designed to ensure that Federal
agency officials and Indian tribe officials maximize the amount of time
available for consultation regarding the treatment and disposition of
inadvertently discovered human remains, funerary objects, sacred
objects, or objects of cultural patrimony. The Act requires that the
thirty (30)-day cessation of the activity begins with the Federal
agency official certifying receipt of notification from the inadvertent
discoverer of the human remains, funerary objects, sacred objects, or
objects of cultural patrimony. As a result, any additional time
provided the Federal agency official to contact the appropriate Indian
tribe official is time taken away from the consultation process. In
recognition of the inherent notification difficulties, the drafters
have modified the initial notification requirements to require the
person making the inadvertent discovery to provide immediate telephone
notification with written confirmation to the Federal official.
Certification of the notification by the Federal official and the
required notification of the Indian tribe official occurs upon receipt
of the written confirmation, thus providing the Federal agency official
with some additional time between the telephone call and receipt of the
written notice to identify the appropriate Indian tribe officials. The
one (1) day notification deadline has been extended to three (3)
working days. One commenter requested clarification for the phrase
``Indian tribe or tribes known or likely to be affiliated.'' It should
be noted that this initial contact is designed to notify those Indian
tribes or Native Hawaiian organizations that are ``likely'' to be
affiliated with the inadvertently discovered human remains, funerary
objects, sacred objects, or objects of cultural patrimony. Federal
agencies are encouraged to compile a listing of the appropriate Indian
tribes or Native Hawaiian organizations and their officials as soon as
possible to facilitate rapid notification when an inadvertent discovery
is made. Determination of the specific affiliation of the inadvertently
discovered human remains, funerary objects, sacred objects, or objects
of cultural patrimony can be made during the thirty (30) day cessation
of activity. Two commenters requested clarification of the phrase ``if
known'' in Sec. 10.4 (d)(3) (renumbered Sec. 10.4 (d)(1)(iii))
regarding the required notification of Indian tribes which aboriginally
occupied the area in which human remains, funerary objects, sacred
objects, or objects of cultural patrimony have been discovered
inadvertently. Information regarding the aboriginal lands of Indian
tribes is readily available to Federal agency officials from the
results of Indian Land Claims Commission and Court of Claims decisions.
``If known'' has been deleted.
One commenter recommended suspending the initiation of consultation
required in Sec. 10.4 (d)(4) (renumbered Sec. 10.4(d)(1)(ii)) for up to
thirty (30) days in cases of illegal excavation or violation of Federal
law, specifically in cases where confidential criminal investigation
are being conducted. As the likely custodians of illegally excavated
human remains, funerary objects, sacred objects, or objects of cultural
patrimony pursuant to section 3 of the Act, the appropriate Indian
tribe or Native Hawaiian organization should be notified of the
inadvertently discovery and consulted as part of any ongoing
investigation. The responsibility to pursue ARPA investigations does
not devolve from the land manager's law enforcement agency merely
because consultation is required under this Act. If an ARPA
investigation is under way, the law enforcement agents involved should
immediately notify their superiors and other Federal agency officials
involved in NAGPRA consultation if any aspect of NAGPRA consultation is
likely to interfere with the investigation.
Six commenters recommended changing the length of the required
cessation of activities in Sec. 10.4 (e) (renumbered Sec. 10.4 (d)(2)).
Four commenters recommended reducing the period -- to fifteen (15)
days, seven (7) days, or deleted entirely -- while two commenters
recommended extending the period until the affiliated Indian tribe or
Native Hawaiian organization consents to continuation of the project.
The thirty (30) day period for cessation of activities in the area of
an inadvertent discovery is stipulated in section 5 (d) of the Act and
has not been changed. Three commenters requested clarification of the
stipulation that activity may resume after thirty (30) days, ``if the
resumption of the activity is otherwise lawful.'' The phrase is used to
acknowledge that provisions of other statutes, such as section 106 of
the NHPA, may also apply to a particular inadvertent discovery and the
resumption of activities in the area of the inadvertent discovery must
comply with other legal requirements as well as those of these
regulations.
Four commenters requested clarification of the procedures following
the thirty (30)-day cessation of activity. After consulting with the
affiliated Indian tribe or Native Hawaiian organization during the
thirty day (30) cessation of activity, the Federal agency official must
make a decision regarding the treatment, excavation, and disposition of
any inadvertently discovered human remains, funerary objects, sacred
objects, or objects of cultural patrimony. The options may include
preservation in situ or excavation of the human remains, funerary
objects, sacred objects, or objects of cultural patrimony. This
decision must be informed by the consultation process, but obviously
will take into account other considerations as well. One commenter
requested clarification regarding the responsibility for costs incurred
during the required work cessation. Responsibility for costs incurred
during the required work cessation will depend upon the nature of the
contract drawn between the Federal agency and the appropriate
contractor. One commenter recommended additional language indicating
that resumption of an activity in the area of inadvertent discovery can
occur only after the human remains, funerary objects, sacred objects,
or objects of cultural patrimony have been removed or treated.
Determining the disposition of human remains, funerary objects, sacred
objects, or objects of cultural patrimony discovered inadvertently on
Federal and tribe land can only occur after consultation with
affiliated Indian tribes and Native Hawaiian organizations. The
drafters consider it premature to stipulate the outcomes.
One commenter recommended accompanying the written, binding
agreement between the Federal agency and the affiliated Indian tribes
or Native Hawaiian organizations in the second sentence of Sec. 10.4
(e) (renumbered 10.4 (d)(2)) by a letter from the appropriate Indian
tribe official expressing agreement with a proposed course of action.
The nature of agreements between Federal agencies and Indian tribes and
Native Hawaiian organizations will depend upon the specific situation
and have not been defined precisely in these regulations. Four
commenters recommended clarifying the phrase ``necessary parties.'' The
phrase has been replaced with ``Federal agency and the affiliated
Indian tribes or Native Hawaiian
[[Page 62145]]
organizations.'' One commenter inquired whether a memorandum of
agreement signed and executed under the NHPA prior to any inadvertent
discovery would take priority standing. Such an agreement might apply
if the agreement specifies the plan for the removal, treatment, and
disposition of the human remains, funerary objects, sacred objects, or
objects of cultural patrimony; the agreement is considered binding by
both the Federal agency and the affiliated Indian tribes or Native
Hawaiian organizations; and, the agreement is consistent with the
requirements of the Act and these regulations.
One commenter identified Sec. 10.4 (f) (renumbered section 10.4
(e)) as an ``absurd attempt to fob off the Federal agency's
responsibilities onto the tribes.'' Requiring a Federal agency to act
as intermediary between the person inadvertently discovering human
remains, funerary objects, sacred objects, or objects of cultural
patrimony and the Indian tribe on whose land the human remains,
funerary objects, sacred objects, or objects of cultural patrimony have
been discovered inadvertently is counter to the goal of the statute, as
expressed in the legislative history, of facilitating direct dialogue.
One commenter recommended inclusion in this subsection of a listing of
those actions required of Indian tribe officials under the Act. The
subsection has been amended to include the recommended text. One
commenter recommended inclusion of a specified deadline for an Indian
tribe to respond following notification of the inadvertent discovery of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony. The drafters consider it inappropriate to impose a deadline
for Indian tribe response following notification. One commenter
recommended inclusion of a section regarding the resumption of activity
on tribal lands. The recommended section has been included as Sec. 10.4
(e)(2).
One commenter identified Sec. 10.4 (g) (renumbered Sec. 10.4 (f))
as serving only to confuse requirements and procedures stemming from
distinct laws with distinct purposes and recommended deleting the
subsection. Other commenters identified Sec. 10.4 (g) as being most
welcome, but recommended omitting the specific regulatory citations in
light of current efforts to amend regulations for the NHPA. The
citations have been retained to facilitate cross-referencing. One
commenter recommended clarifying the subsection to indicate that the
inadvertent discovery of human remains, funerary objects, sacred
objects, or objects of cultural patrimony does not necessarily require
an agreement under section 106 of the NHPA. Not all human remains,
funerary objects, sacred objects, or objects of cultural patrimony are
deemed eligible for the National Register of Historic Places and thus
do not fall within the purview of the NHPA. Their inadvertent discovery
would thus not require such an agreement. Two commenters recommended
including specific language to outline the relationship between
provisions of the Act and those of ARPA, NHPA, and the American Indian
Religious Freedom Act (AIRFA). The details of how Federal agencies
coordinate their responsibilities under the various statutes will
depend on their procedures and specific situations; the text has not
been modified. However, section 110 (a)(2)(E)(iii) of the NHPA requires
Federal agencies to provide for the disposition of Native American
human remains, funerary objects, sacred objects, and objects of
cultural patrimony in a manner consistent with the Act. Further,
section 112 (b)(3) and (b)(4) require the Secretary of the Interior to
publish guidelines to encourage private owners as well as Federal,
state, and tribal governments to protect Native American human remains,
funerary objects, sacred objects, and object of cultural patrimony.
One commenter recommended including language at Sec. 10.4 (g)
requiring all authorizations to carry out land use activities on
Federal lands or tribal lands, including all leases and permits, to
include a requirement for the holder of the authorization to notify the
appropriate Federal or tribal official immediately upon the discovery
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony. The language is included in the text.
Section 10.5
This section establishes requirements for consultation as part of
the intentional excavation or inadvertent discovery of human remains,
funerary objects, sacred objects, or objects of cultural patrimony on
Federal lands. One commenter objected to the implication in the first
sentence of the section that consultation is necessarily ``part of''
the intentional excavation or inadvertent discovery process. The Act
requires consultation as part of intentional excavation and inadvertent
discovery situations. The language has been retained. One commenter
recommended replacing the phrase ``Federal lands'' with ``land in the
United States, its territories, or possessions.'' Provisions of section
3 of the Act are clearly limited to Federal and tribal lands. The
language has been retained. One commenter recommended that ``a minimum
set of standards be identified for the scientific study of human
remains and associated grave goods.'' Section 5 (a)(2) of the Act
precludes using the Act as an authorization for the initiation of new
scientific studies of human remains and associated funerary objects.
The recommended language has not been included.
Two commenters recommended revising the first sentence of Sec. 10.5
(a) to coordinate contact with traditional religious leaders through
the appropriate Indian tribe. The most appropriate method for
contacting traditional religious leaders will vary between Indian
tribes. The language has been retained to provide this necessary
flexibility. Another commenter recommended clarifying that consultation
must be conducted without regard to state boundaries. The widespread
relocation of Indian tribes during the eighteenth and nineteenth
centuries means that consultation may often require contact with Indian
tribes that are no long resident in the area of the intentional
excavation or inadvertent discovery. Lineal descendants and affiliated
Indian tribes and Native Hawaiian organizations must be contacted and
consulted with regardless of where they are living presently.
One commenter recommended inserting ``the'' before ``human
remains'' in Sec. 10.5 (a)(1) to make it clear that the consulting
parties may vary from case-to-case. The text has been changed. One
commenter recommended changing the ``and'' between Sec. 10.5 (a)(1) and
(a)(2) to ``or.'' The original text has been retained to emphasize the
necessity of consulting with Indian tribes that are or are likely to be
culturally affiliated with the human remains, funerary objects, sacred
objects, or objects of cultural patrimony as well as the Indian tribe
on whose aboriginal lands the human remains, funerary objects, sacred
objects, or objects of cultural patrimony have been located or are
expected to be found and the Indian tribe or Native Hawaiian
organization have a demonstrated cultural relationship with the human
remains, funerary objects, sacred objects, or objects of cultural
patrimony. One commenter recommended deleting Sec. 10.5 (a)(2) in that
it assumes a relationship between prehistoric archeological sites and
historic use of an area. Section 3 of the Act makes it clear that
Indian tribes on whose aboriginal lands human remains, funerary
objects, sacred objects, or objects of cultural
[[Page 62146]]
patrimony have been or are likely to be located need not be culturally
affiliated with those human remains, funerary objects, sacred objects,
or objects of cultural patrimony to be considered their legitimate
custodian. One commenter recommended substituting ``excavation'' for
``activity'' in Sec. 10.5 (a)(2). The term ``activity'' in this
sentence refers to ``an activity on Federal or tribal lands that may
result in the excavation of human remains or cultural items'' as
defined in Sec. 10.3 (c). The text has been modified to incorporate
this clarification.
One commenter recommended deleting ``likely'' cultural affiliation
in the first sentence of Sec. 10.5 (b) since the term is not defined in
either the Act or these regulations. The term has been deleted. One
commenter recommended replacing the term ``objects'' in the same
sentence with ``human remains, funerary objects, sacred objects, or
objects of cultural patrimony.'' The term has been replaced. One
commenter recommended deleting the phrase ``other Indian tribes that
may have a relationship...'' in the second sentence. The existing
phrase is drawn from section 3 (a)(2)(C)(2) of the Act and has been
retained. One commenter recommended provisions that require the notice
include information regarding the proposed time and place for meetings
and the Federal agency's proposed treatment and disposition of the
intentionally excavated or inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony. The
suggested language has been included in the text. One commenter
recommended revising the last sentence of Sec. 10.5 (b) to require
traditional religious leaders be consulted and their recommendations
followed. The requested revision runs counter to the requirements of
the Act and has not been included in the text.
Two commenters requested further clarification of the type of
activities that constitute consultation. Additional text has been added
throughout Sec. 10.5 to clarify the consultation process.
One commenter recommended inclusion of additional language in
Sec. 10.5 (c) requiring Federal agencies to provide in writing
information regarding the nature and general location of any
inadvertent discovery or proposed activity. The recommended text has
been added. One commenter recommended rewriting Sec. 10.5 (c)(2) to
indicate that additional documentation will be supplied if it has been
used to identify the cultural affiliation of human remains, funerary
objects, sacred objects, or objects of cultural patrimony. The proposed
language has been included in the text.
One commenter recommended amending Sec. 10.5 (d) to indicate that
failure to respond to the Federal agency's request for information
could be taken to signify an Indian tribe's voluntary withdrawal from
standing under these sections. Indian tribes or Native Hawaiian
organizations that have been duly notified of an intentional excavation
or inadvertent discovery are not required to respond to the Federal
agency's request for information. One commenter recommended including
language to insure that information provided to Federal agency
officials will, at the request of the Indian tribe or Native Hawaiian
organization, be held in confidence. The Act provides no specific
exemptions from provisions for the Freedom of Information Act for
culturally sensitive information. However, Federal agency officials
may, at the request of an Indian tribe or Native Hawaiian organization
official, take such steps as are considered necessary pursuant to
otherwise applicable law to ensure that information of a particularly
sensitive nature is not made available to the general public. One
commenter recommended changing ``collections'' in Sec. 10.5 (d)(3) to
``human remains, funerary objects, sacred objects, or objects of
cultural patrimony.'' The recommended change has been made. Two
commenters identified Sec. 10.5 (d)(5) as being too broad and unlikely
to give useful guidance and recommended deleting the subsection.
Although not determinant, information about the kinds of cultural items
that the Indian tribe or Native Hawaiian organization considers as
funerary objects, sacred objects, or objects of cultural patrimony is
important and useful for Federal agency officials to make decisions
required of them under these regulations. The subsection has been
retained.
One commenter recommended tying the requirements in Sec. 10.5 (e)
explicitly to the coordinated preparation of individual environmental
and cultural resource management plans for projects, facilities, and
land units. Integration of the requirements of these regulations with
those of other statutes and policies has been left to the discretion of
each affected Federal agency. One commenter considered Sec. 10.5 (e)
fine as it stands. One commenter recommended requiring the completion
of a written plan of action as a result of consultation. The text has
been rewritten to make it clear that completion of a written plan of
action, approved and signed by the Federal agency official, is
required. One commenter recommended requiring the approval and
signature of the written plan of action by the affiliated Indian tribe
officials. While the approval and signature of Indian tribe officials
and other parties is desirable, the concurrence of these officials to
the written plan of action is not required. One commenter recommended
the written plan of action include in situ preservation to offset what
the commenter perceived as a bias toward ``excavation, analysis and
recordation of imbedded materials,'' and too narrow a definition of
custodial interest in imbedded materials. One commenter requested
clarification of the term ``treatment'' as used in Sec. 10.5 (e)(3) and
(e)(7). The term is used throughout these regulations according to its
common meaning, that is, a specific manner of dealing with human
remains, funerary objects, sacred objects, or objects of cultural
patrimony. The specifics of treatment must be considered as part of the
consultation process. Two commenters recommended including in situ
preservation specifically as a treatment option in Sec. 10.5 (e)(3).
Preservation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony in place should be considered whenever
possible. Because case-by-case examples have not been provided, the
option has not been added to the regulatory text. Three commenters
recommended including language under Sec. 10.5 (e)(4) to indicate that
archeological recording must comply with certain standards. Any
archeological activity conducted on Federal or tribal lands, including
the intentional excavation or removal of human remains, funerary
objects, sacred objects, or objects of cultural patrimony, must meet
the standards provided by ARPA. One commenter recommended requiring
radiocarbon dating as part of the archeological reporting. Determining
the necessity of radiocarbon or other types of analysis must be on a
case-by-case basis. One commenter recommended deleting Sec. 10.5 (e)(5)
since analysis should only be permitted in the rare circumstance where
the cultural affiliation of human remains, funerary objects, sacred
objects, or objects of cultural patrimony is not clear. The subsection
has been retained to ensure that analysis is discussed thoroughly
during the consultation process. One commenter recommended specifying
the steps to be followed to contact traditional religious leaders
should under Sec. 10.5 (e)(6). The Act does not require consultation
between Federal agency officials and traditional religious leaders
regarding the
[[Page 62147]]
intentional excavation or inadvertent discovery of human remains,
funerary objects, sacred objects, or objects of cultural patrimony.
Identification of traditional religious leaders and the recommended
steps in contacting them is left to the discretion of Indian tribe
officials. Three commenters recommended specification of a deadline for
completion of the written plan of action. Written plans of action
should generally be completed during the thirty (30) day consultation
period following an inadvertent discovery or prior to issuance of an
ARPA permit for intentional excavations.
Three commenters recommended changing the title of Sec. 10.5 (f)
from ``Programmatic agreements'' to ``Comprehensive agreements'' to
avoid confusion between agreements developed regarding the treatment
and disposition of human remains, funerary objects, sacred objects, or
objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal lands and programmatic agreements developed
pursuant to provisions of the NHPA. The term ``programmatic
agreements'' has been changed in the title and throughout the
subsection to ``comprehensive agreements.'' Two commenters identified
such agreements as ``an awkward means of accomplishing the intent of
the law,'' and recommended deleting the subsection. Comprehensive
agreements are intended to provide Federal agency officials and Indian
tribe officials with an efficient means of ensuring intentionally
excavated and inadvertently discovered human remains, funerary objects,
sacred objects, or objects of cultural patrimony receive the
appropriate treatment and disposition. The subsection has been
retained. One commenter objected to the reference to ``specific'' human
remains, funerary objects, sacred objects, or objects of cultural
patrimony referenced in the first section of Sec. 10.5 (f) on the
grounds that such agreements should define proactively the procedures
and criteria for the treatment and disposition of any human remains,
funerary objects, sacred objects, or objects of cultural patrimony
excavated intentionally or discovered inadvertently. The term has been
deleted from the text. One commenter recommended that comprehensive
agreements address not only Federal agency land management activities,
but Federal agency regulatory responsibilities as well. These
regulations address Federal agency responsibilities under the Act.
While Federal agency responsibilities under other statutory,
regulatory, and policy mandates need to be considered in preparation of
such documents, the inclusion of such requirements in these rules is
not appropriate. One commenter recommended including language requiring
the consent of traditional religious leaders to any comprehensive
agreements in the text. The Act does not require consultation between
Federal agency officials and traditional religious leaders regarding
the treatment or disposition of human remains, funerary objects, sacred
objects, or objects of cultural patrimony excavated intentionally or
discovered inadvertently on Federal lands. One commenter recommended
modifying the last sentence of the subsection to indicate that the
``signed'' comprehensive agreement should be considered proof of
consultation. The text has been edited as recommended.
One commenter recommended requiring Indian tribe officials to
consult with and make recommendations following the advice of
traditional religious leaders. The Act does not require consultation
between Indian tribe officials and traditional religious leaders
regarding the intentional excavation or inadvertent discovery of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony. Consultation with traditional religious leaders is left to
the discretion of Indian tribe officials.
Section 10.6
This section carries out section 3 (a) of the Act, subject to the
limitations in Sec. 10.15, regarding custody of human remains, funerary
objects, sacred objects, or objects of cultural patrimony excavated
intentionally or discovered inadvertently on Federal or tribal lands
after November 16, 1990. One commentor objected to the terms ``legal
interest in'' and ``ownership'' as applied to human remains, funerary
objects, and objects of cultural patrimony; and recommended replacing
the terms with ``custodial responsibility.'' The terms have been
changed to ``custody'' throughout the text. This change, however, is
only editorial and does not alter the requirements of the Act. One
commenter recommended deleting reference to the limitations in
Sec. 10.15 from this section. Limitations on the custodial criteria
presented in section 3 (a) of the Act are drawn from section 7 (b),
(c), and (e) of the Act. Both Sec. 10.15 and the cross-reference in
this section have been retained. One commenter recommended setting
limits in this section on just how temporally and culturally far afield
claims of custody can be extended reasonably. Applicability of the
custody criteria in this section is dependant on the facts of each case
and will vary. The type of limits recommended by the commenter are
considered inappropriate to such a case-by-case evaluation process. One
commenter recommended including language in this section to identify
the party responsible for substantiating claims. Lineal descendants or
Indian tribes or Native Hawaiian organizations must provide information
to substantiate their claims as outlined in Sec. 10.10 (a) and (b).
One commenter recommended concluding the search for the custodian
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony excavated intentionally or discovered inadvertently
on Federal or tribal lands with the first legitimate claimant
identified under Sec. 10.6 (a) that declines to make and substantiate a
claim. One commenter recommended limiting custody of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
found on tribal lands to those human remains, funerary objects, sacred
objects, or objects of cultural patrimony dating after establishment of
the reservation. Two commenters recommended reversing the order of the
custody criteria in Sec. 10.6 (a)(2)(i) and (a)(2)(ii) so that
culturally affiliated Indian tribes or Native Hawaiian organizations
are given preference over tribal land owners. Another commenter
recommended giving culturally affiliated Indian tribes preference over
tribal land owners in claims for sacred objects or objects of cultural
patrimony found on tribal lands. One commenter recommended deleting the
custody criteria in Sec. 10.6 (a)(2)(ii) and (a)(2)(iii) and instead
have human remains, funerary objects, sacred objects, or objects of
cultural patrimony found on Federal lands revert to the United States.
One commenter recommended including language under Sec. 10.6
(a)(2)(iii)(A) that would restrict any Indian tribe making a claim
based upon its aboriginal occupation of Federal land from any action
that would irreparably damage the interests of another Indian tribe who
might have a superior claim. The custody criteria in Sec. 10.6 (a) are
taken virtually verbatim from section 3 (a) of the Act. All of the
above recommendations run counter to those ownership criteria
established by the Act and have not been included in the text.
Three commenters requested clarification in Sec. 10.6 (b) of how
the custody criteria effect Federal responsibilities under NHPA and
ARPA. To the extent that any conflicts among those laws may exist, it
is a general rule
[[Page 62148]]
of statutory construction that newer and more specific legislation
takes precedence over older or more general laws. The custody of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony excavated intentionally or discovered inadvertently on
Federal or tribal lands is as specified in Sec. 10.6 (a).
One commenter stated that the obvious purpose of Sec. 10.6 (c) is
to create disputes between Indian tribes or between Native Hawaiian
organizations regarding the custody of human remains, funerary objects,
sacred objects, or objects of cultural patrimony excavated
intentionally or discovered inadvertently on Federal lands, and
recommended deleting the subsection. One commenter recommended
inclusion of language in this subsection indicating that an identified
individual, Indian tribe, or Native Hawaiian organization custodian has
decision-making authority regarding the treatment and disposition of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony excavated intentionally or discovered inadvertently on
Federal lands. Individual, Indian tribe, or Native Hawaiian custodians
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony gain complete decision-making authority regarding
the treatment and disposition of human remains, funerary objects,
sacred objects, or objects of cultural patrimony upon the transfer of
those human remains, funerary objects, sacred objects, or objects of
cultural patrimony from the Federal agency. One commenter recommended
deleting the word ``traditional'' from the second sentence of Sec. 10.6
(c). Another commenter recommended adding the phrase ``of the specific
Indian tribe in each instance'' at the end of the same sentence for
clarification. The recommended language has been added to the text. Two
commenters requested clarification of the purpose and nature of the
public notices required in the third sentence of Sec. 10.6 (c). Three
commenters recommended the publication of notices regarding the
disposition of human remains, funerary objects, sacred objects, or
objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal lands in the tribal or local newspapers of
those Indian tribes that have standing to make a claim under Sec. 10.6
(a), as well as in a newspaper of general circulation in the area in
which the human remains, funerary objects, sacred objects, or objects
of cultural patrimony were excavated intentionally or discovered
inadvertently. Another commenter recommended requiring publication of
the notices within seven (7) days of determination of which Indian
tribe or Native Hawaiian organization has custodial rights. Another
commenter objected to the public notice requirement in that it might
offend the sensibilities of those Indian tribes or Native Hawaiian
organizations involved. This subsection outlines procedures to ensure
due process in the transfer of human remains, funerary objects, sacred
objects, or objects of cultural patrimony excavated intentionally or
discovered inadvertently on Federal lands to their proper individual,
Indian tribe, or Native Hawaiian organization custodian. Notices need
only provide information adequate to allow potentially interested
lineal descendants, Indian tribes, or Native Hawaiian organizations to
determine their interest in claiming custody under these regulations.
The requirements regarding publication of public notices have been
rewritten for clarity and include provisions for publication in local
and tribal newspapers of general circulation in the areas in which
culturally affiliated Indian tribes or Native Hawaiian organizations
now reside.
Section 10.7
This section has been reserved for procedures for the disposition
of unclaimed human remains, funerary objects, sacred objects, or
objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal lands or tribal lands after November 16, 1990.
One commenter recommended developing this section with input from
Indian tribes and Native Hawaiian organizations. Section 3 (b) of the
Act requires that regulations regarding the disposition of unclaimed
human remains, funerary objects, sacred objects, or objects of cultural
patrimony excavated intentionally or discovered inadvertently on
Federal or tribe lands be published by the Secretary in consultation
with the Review Committee, and representatives of Indian tribes, Native
Hawaiian organizations, museums and the scientific community.
Section 10.8
This section carries out Section 6 of the Act related to conducting
summaries of collections in the possession or control of museums that
receive Federal funding or Federal agencies which may contain
unassociated funerary objects, sacred objects, and objects of cultural
patrimony. Four commenters objected to use of the phrase ``collections
that may include...'' in Sec. 10.8 (a) and throughout the section as
overstepping the statutory authorization and giving the mistaken
impression that these regulations apply to entire collections and not
to specific unassociated funerary objects, sacred objects, and objects
of cultural patrimony. The statutory language is unclear whether
summaries should include only those unassociated funerary objects,
sacred objects, or objects of culturally affiliated with a particular
Indian tribe or Native Hawaiian organization, or the entire collection
which may include these cultural items. The legislative history and
statutory language does make it 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.
Consultation between a museum or Federal agency and an Indian tribe or
Native Hawaiian organization is not required until after completion of
the summary. Identification of specific sacred objects or objects of
cultural patrimony must be done in consultation with Indian tribe
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. The drafters opted for the more general approach to
completing summaries of collections that may include unassociated
funerary objects, sacred objects, or objects of cultural patrimony
rather than the itemized list required for the inventories in hopes of
enhancing the dialogue between museums, Federal agencies, Indian
tribes, and Native Hawaiian organizations required under the Act. One
commenter requested clarification of the deadlines and funding
responsibility of this section. Section 10.8 (c) of these regulations
clearly states that summaries under this section are to be sent to
affiliated or likely affiliated tribes by November 16, 1993. Funding
responsibilities lie with the museums and Federal agencies maintaining
such collections. Grants to aid museums, Indian tribes, and Native
Hawaiian organizations in carrying out the Act are authorized in
section 10 of the Act.
Three commenters questioned use of the term ``undertakings'' in the
last
[[Page 62149]]
sentence of Sec. 10.8 (a). One commenter (67-3) recommended defining
the term as used in section 106 of NHPA. Two commenters recommended
changing the term to ``activities'' or ``actions'' to make it clear
that provisions of the Act do not necessarily apply to Federal
``undertakings'' conducted on private land. The term has been changed
to ``actions'' to clarify that Federal agencies may not be responsible
for ensuring that requirements of this section are met for all
collections obtained as part of section 106 ``undertakings'' on non-
Federal land.
One commenter recommended including language in Sec. 10.8 (a) to
require Federal agencies to consult with non-Federal institutions prior
to initiating consultation with Indian tribes or Native Hawaiian
organizations that are culturally affiliated with human remains,
funerary objects, sacred objects, or objects of cultural patrimony from
Federal lands but currently in the possession of the non-Federal
institution. Another commenter recommended including specific language
to stress that non-Federal institutions do not have authorization to
unilaterally dispose of human remains, funerary objects, sacred
objects, or objects of cultural patrimony from Federal lands.
Requirements regarding the relationship between Federal agencies and
non-Federal institutions are not specified in the Act. ARPA and NHPA
assign responsibility for long term care and curation of collections
from Federal land and actions to the Federal agency that manages the
land or undertakes the action.
One commenter recommended including language in Sec. 10.8 (b)
specifying that summaries should include information readily available
from museum records as to whether an object is an unassociated funerary
object, sacred object, or object of cultural patrimony, as well as an
assessment of the general reliability of the records. Information
regarding individual unassociated funerary objects, sacred objects, and
objects of cultural patrimony is more appropriately shared during the
consultation process. The regulatory text has not been changed.
Three commenters recommended including some provision for extension
of the November 16, 1993 deadline for completion of the summaries in
Sec. 10.8 (c). While provisions for extensions to the November 16, 1995
deadline for completion of inventories of human remains and associated
funerary objects are included in section 5 (c) of the Act, no such
provisions for extension of the summary deadlines are included in
either the statutory language or in the legislative history. Provisions
for extensions to the summary deadlines have not been included in these
regulations.
Six commenters recommended changes regarding the identification of
consulting parties in Sec. 10.8 (d)(1). Two commenters recommended
deleting Sec. 10.8 (d)(1)(i) requiring consultation with lineal
descendants, since section 7 (a)(3) of the Act only requires
consultation with lineal descendants to determine the place and manner
of delivery of human remains, funerary objects, sacred objects, or
objects of cultural patrimony being repatriated. The subsection
requiring consultation with lineal descendants has been deleted. Two
commenters recommended that identification of traditional religious
leaders in Sec. 10.8 (d)(1)(ii) be made by ``members of'' Indian tribes
and Native Hawaiian organizations to be consistent with the definition
of that term. The phrase has been edited to conform with the definition
of in Sec. 10.2 (a)(13). One commenter recommended deleting Sec. 10.8
(d)(1)(ii)(A) and (a)(ii)(B) requiring consultation with Indian tribes
from whose tribal or aboriginal lands unassociated funerary objects,
sacred objects, and objects of cultural patrimony were recovered since
section 7 (a)(2) of the Act specifies that only lineal descendants and
culturally affiliated Indian tribes and Native Hawaiian organizations
have standing to make a claim. Another commenter recommended including
language in the rule indicating a presumption that the Indian tribe
from whose tribal lands unassociated funerary objects, sacred objects,
and objects of cultural patrimony were recovered is the custodian. The
requirements in Sec. 10.8 (d)(1)(ii)(A) and (d)(1)(ii)(B) are included
to ensure that all Indian tribes and Native Hawaiian organizations that
are potentially culturally affiliated with particular unassociated
funerary objects, sacred objects, and objects of cultural patrimony are
included in the consultation process. Whether an Indian tribe from
whose tribal or aboriginal lands a particular unassociated funerary
object, sacred object, or objects of cultural patrimony originated is
culturally affiliated with that object must be determined on an item-
by-item basis. Two commenters recommended deleting the phrase ``or
likely to be'' in Sec. 10.8 (d)(1)(iii). This subsection defines the
class of consulting parties from which the culturally affiliated Indian
tribe or Native Hawaiian organization will be identified. The phrase is
used to indicate that the identification of consulting parties should
be inclusive to ensure all Indian tribes and Native Hawaiian
organizations that are, or are likely to be culturally affiliated with
the unassociated funerary objects, sacred objects, or objects of
cultural patrimony are included in the consultation process.
One commenter recommended revising the requirement to initiate
consultation no later than the completion of the summary process in
Sec. 10.8 (d)(2) to indicate consultation must follow completion of the
summary. Another commenter recommended revising the subsection to
require the initiation of consultation as early as possible. Another
commenter recommended requiring museums and Federal agencies to provide
Indian tribes and Native Hawaiian organizations with a ``notice of
summary'' indicating that their collections were under review. The
Review Committee recommended revising the subsection to indicate that
consultation should result in telephone or face-to-face dialogue. The
drafters intend the summary to serve as an initial invitation from the
museum or Federal agency to the Indian tribe or Native Hawaiian
organization to engage in consultation regarding the identification of
unassociated funerary objects, sacred objects, and objects of cultural
patrimony in their collection. All museums and Federal agencies are
required to complete their summaries by November 16, 1993. Language has
been added to the subsection indicating that consultation may be
initiated with a letter, but should be followed up by telephone or
face-to-face dialogue with the appropriate Indian tribe official.
The Review Committee recommended requiring museums and Federal
agencies to provide copies of their summaries to the Departmental
Consulting Archeologist in Sec. 10.8 (d)(3). The Departmental
Consulting Archeologist provides staff support to the Review Committee,
which in turn is required, under section 8 (c)(2) of the Act, to
monitor the summary and inventory processes to ensure a fair, objective
consideration and assessment of all available relevant information and
evidence. The recommended language has been included. One commenter
requested clarification regarding the requirement in the second
sentence of Sec. 10.8 (d)(3) that museums and Federal agencies, upon
request, provide Indian tribes and Native Hawaiian organizations with
access to records, catalogues, relevant studies, or other pertinent
data. The regulatory language is drawn from section 6 (b)(2) of the
Act.
[[Page 62150]]
Museums or Federal agencies may not limit Indian tribal access to
information needed to determine the geographic origin, cultural
affiliation, and basic facts surrounding acquisition and accession of
object covered by the summary. Museums or Federal agencies are under no
obligation to pay the travel or other expenses of visiting Indian tribe
representatives or traditional religious leaders.
One commenter recommended inclusion of time limits for Indian tribe
and Native Hawaiian organization responses to museum and Federal agency
requests for information outlined in Sec. 10.8 (d)(4). No time limits
for Indian tribe and Native Hawaiian organization response are included
in the statutory language or the legislative history and none have been
included in this subsection. Indian tribes and Native Hawaiian
organizations are under no requirement to respond to museum or Federal
agency requests for information. One commenter recommended revising the
request for information under Sec. 10.8 (d)(4)(i) to include the name
and address of one or more traditional religious leaders. Requirements
to request the name and address of traditional religious leaders have
already been included under Sec. 10.8 (d)(4)(iii). One commenter
objected to the implication in Sec. 10.8 (d)(4)(ii) that, prior to
consultation, a museum or Federal agency official could identify a
sacred object in their collection to request the name and address of
the lineal descendants of its previous custodian. Documentation may be
sufficient to indicate that a particular item in a museum of Federal
agency's collection might fit the definition of sacred object. The
museum or Federal agency should use this information to advance the
consultation process by requesting the name and address of any lineal
descendants of its previous custodian. One commenter recommended that
the requests for information also include a description of the Indian
tribe's traditional kinship system under Sec. 10.8 (d)(4)(ii)(A).
Information regarding an Indian tribe's traditional kinship system is
only necessary when an individual is claiming an unassociated funerary
object or sacred object, and is more appropriately requested at that
time. One commenter recommended amending Sec. 10.8 (d)(4)(iii) to
require consultation and agreement with the recommendations of
traditional religious leaders. The recommended requirement is not
appropriate since the statutory language does not require Indian tribes
or Native Hawaiian organizations to provide information regarding
traditional religious leaders. One commenter recommended limiting the
request for information to recommendations on how the consultation
process should be conducted and that Sec. 10.8 (d)(4)(i), (4)(ii),
(4)(iii), and (4)(v) be deleted. The drafters recognize that the
identification of lineal descendants, funerary objects, sacred objects,
and objects of cultural patrimony may require Indian tribes and Native
Hawaiian organizations to divulge sensitive information. Requesting the
information at the beginning of consultation, however, may lead to a
more open and effective consultation process. Indian tribe officials
are under no obligation to respond to these inquires.
One commenter, fearing widespread misapplication of these
regulations, recommended requiring museums and Federal agency officials
to document certain information and use that information to identify
unassociated funerary objects, sacred objects, objects of cultural
patrimony, lineal descendants, and culturally affiliated Indian tribes
and Native Hawaiian organizations. The recommended text has been
included as Sec. 10.8 (a) and the subsequent section renumbered.
Submission of this information to the Departmental Consulting
Archeologist is not required by these regulations. The Review
Committee, pursuant to section 8 (f), may request access to this
information.
Two commenters requested clarification for requiring notification
prior to repatriation of unassociated funerary objects, sacred objects,
and objects of cultural patrimony in Sec. 10.8 (e) (renumbered as
Sec. 10.8 (f)). The notification required in section 5 (d) of the Act
ensures due process regarding the repatriation of human remains and
associated funerary objects. Provisions of this subsection extend the
notification procedures to ensure due process in the repatriation of
unassociated funerary objects, sacred objects, and objects of cultural
patrimony. The Review Committee recommended reducing the specificity of
the requirement of an object-by-object listing of unassociated funerary
objects, sacred objects, and objects of cultural patrimony to be
repatriated. The regulatory text has been revised to require a
description of any unassociated funerary objects, sacred objects, and
objects of cultural patrimony to be repatriated in sufficient detail so
as to allow others to determine if they are interested in the claim.
Section 10.8 (e) of these regulations requires that museums and Federal
agencies consider the same types of information as are required in
Sec. 10.9 (c) in evaluating requests for repatriation. Two commenters
recommended including text establishing a deadline for responses to the
required notification. A minimum waiting period of thirty (30) days
following publication of the notice of intent to repatriate in the
Federal Register is established in Sec. 10.10 (a)(3). Any claim
received by a museum or Federal agency prior to actual repatriation,
however, should be given full consideration. One commenter recommended
requiring museum officials to consult with the appropriate Federal
agency officials prior to issuance of notices by the museum regarding
unassociated funerary objects, sacred objects, or objects of cultural
patrimony that were excavated intentionally or discovered inadvertently
on Federal lands. Notices regarding the repatriation of unassociated
funerary objects, sacred objects, or objects of cultural patrimony that
were excavated from Federal lands can only be issued by the appropriate
Federal agency or by an institution specifically authorized to issue
such notices by the appropriate Federal agency. One commenter
recommended including language in this subsection informing Indian
tribes and Native Hawaiian organizations of their right by law to
request access to museum or Federal agency records as they relate to
the review of their claim. The recommended language is included in
Sec. 10.8 (d)(3). The Review Committee recommended inclusion of text in
this subsection to reiterate the requirement in Sec. 10.10 (a)(3) that
repatriation not occur until at least thirty (30) days after
publication of a notice of intent to repatriate in the Federal
Register. The proposed language has been included.
Section 10.9
This section presents procedures for carrying out section 5 of the
Act related to conducting inventories of human remains and associated
funerary objects in the collections of Federal agencies or museums
receiving Federal funds. Fifteen commenters recommended changes to the
inventory procedures in Sec. 10.9. One commenter requested
clarification of the deadlines and funding responsibility of this
section. Section 10.9 (f) states that inventories under this section
are to be completed not later than November 16, 1995. Funding
responsibilities lie with the museums and Federal agencies maintaining
such collections. Three commenters requested funding aid to comply with
the Act. Although section 10 of the Act authorizes funding in
[[Page 62151]]
terms of grants to aid museums, Indian tribes, and Native Hawaiian
organizations in carrying out the Act, funds were first appropriated
during FY 1994.
One commenter requested clarification regarding the term
``geographical affiliation'' in the first sentence of Sec. 10.9 (a).
The term has been changed to ``geographical origin'' to reflect usage
in section 5 (b)(2) of the Act. Two commenters recommended deleting the
term ``undertakings'' from the last sentence of Sec. 10.9 (a) because
of its long history as a legal term of art under section 106 of the
NHPA. The term has been changed to ``actions'' to avoid any confusion.
One commenter recommended inclusion of language in Sec. 10.9 (b)
stressing that Federal agency officials are responsible for carrying
out consultation regarding human remains and associated funerary
objects that were excavated or removed from Federal lands and that are
currently in a non-Federal repository. One commenter suggested
inclusion of language allowing shared responsibility between a Federal
agency and curating institution. Federal agency officials are
responsible for carrying out the Act regarding all human remains,
funerary objects, sacred objects, or objects of cultural patrimony
excavated intentionally or discovered inadvertently on Federal lands,
regardless of the type of institution that currently is in possession
of those human remains, funerary objects, sacred objects, or objects of
cultural patrimony. Section 10.9 (a) emphasizes this responsibility of
Federal agencies. Two commenters recommended including a stipulation in
Sec. 10.9 (b) allowing a museum or Federal agency to declare that, due
to unresponsiveness, no further contact with an Indian tribe or Native
Hawaiian organization will be pursued. The drafters consider the
recommended language counterproductive to achieving the type of
effective consultation envisioned by the Act. Museums and Federal
agencies are required to complete inventories of human remains and
associated funerary objects in their collections by November 16, 1995.
If no response is forthcoming after repeated attempts to contact Indian
tribe officials by telephone, fax, and mail, the museum or Federal
agency official may be required to complete the inventory without
consultation to meet the statutory deadline. The drafters suggest
museum and Federal agency officials document attempts to contact Indian
tribe officials to demonstrate good faith compliance with these
regulations and the Act.
One commenter recommended rewriting the requirements regarding
consultation with lineal descendants in Sec. 10.9 (b)(1)(i) to
coordinate these activities through designated Indian tribe officials.
The statute gives lineal descendants priority over culturally
affiliated Indian tribes or Native Hawaiian organizations for the
repatriation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony. Establishing a system in which contact
with lineal descendants is coordinated through Indian tribes or Native
Hawaiian organizations would be detrimental to the rights of lineal
descendants, particularly those that are not members of an Indian tribe
or Native Hawaiian organization. One commenter recommended amending
Sec. 10.9 (b)(1)(i) to make it clear that museum and Federal agency
officials must consult with lineal descendants of individuals whose
remains and associated funerary objects are, in the opinion of the
responsible Federal agency official or museum official, likely to be
subject to the inventory provisions of these regulations. The drafters
consider the current language to describe adequately the
responsibilities of Federal agency officials or museum officials
regarding consultation with lineal descendants.
One commenter recommended rewording the first sentence of Sec. 10.9
(b)(1)(ii) to make it clear that consultation must be with Indian tribe
officials. This change has been made. Two commenters recommended
changing the second part of the sentence to indicate that traditional
religious leaders must be recognized by members of the Indian tribe.
The text has been changed to conform with the definition of in
Sec. 10.2 (a)(13). One commenter recommended inserting the word ``the''
prior to each usage of ``human remains'' throughout Sec. 10.9
(b)(1)(ii)(A), (B), and (C) to make it clear that the procedures refer
to specific human remains and not human remains in general. The
recommended change has been made.
Three commenters recommended restructuring the consultation process
in Sec. 10.9 (b)(2) to allow museums and Federal agencies to make a
tentative determination of cultural affiliation and then allow comment
on the determination by interested groups. Section 5 (b)(1)(A) of the
Act requires that inventories be completed in consultation with Indian
tribe and Native Hawaiian organization officials and traditional
religious leaders. The notification procedures in Sec. 10.9 (e) are
designed to ensure that all interested parties have the opportunity to
participate in the consultation process. Another commenter recommended
requiring consultation at the earliest possible moment in the inventory
process. Language reflecting the latter recommendation has been
included in the text.
One commenter recommended revising Sec. 10.9 (b)(3)(iv) to state
that if any additional documentation was used to identify cultural
affiliation, this documentation must be made available on request.
Language ensuring Indian tribes and Native Hawaiian organization access
to relevant documentation is included in Sec. 10.9 (e).
One commenter recommended deleting the word ``reasonably'' from
Sec. 10.9 (b)(4)(v) on the grounds that it is unreasonable for the
United States to request an Indian tribe or Native Hawaiian
organization to be reasonable in its beliefs regarding objects used for
burial purposes. Reasonableness in this context refers to an accepted
legal standard and has been retained in the regulatory text.
One commenter objected to the information requirements in Sec. 10.9
(c) as exceeding requirements of the Act. Another commenter recommended
amending the requirements to ensure that completion of the inventory
would not be delayed. The information requirements in Sec. 10.9 (c)
were drawn from section 5 (a)(2) of the Act. One commenter recommended
including text in Sec. 10.9 (c) specifying the types of information
that can not be requested. The Act does not identify any types of
information that can not be requested. The drafters consider inclusion
of such a requirement to be detrimental to the development of
productive dialogues between museums, Federal agencies, Indian tribes,
and Native Hawaiian organizations. One commenter recommended
reorganizing the information requirements for clarity. Sections 10.9
(c)(1) through (c)(8) have been reorganized and renumbered. One
commenter recommended changing Sec. 10.9 (c)(7) to require either a
description or photographic documentation of the human remains,
funerary objects, sacred objects, or objects of cultural patrimony, and
not both. The drafters consider description of the human remains,
funerary objects, sacred objects, or objects of cultural patrimony to
be necessary in all cases, with photographic documentation considered
appropriate in some circumstances. The types of information required in
Sec. 10.9 (c) have not been changed. The drafters feel that careful,
detailed consideration of all human remains and associated funerary
objects is critical to carry out the statutory requirements. Basic
descriptive
[[Page 62152]]
information is necessary to ensure accountability and that the human
remains and associated funerary objects conform to the statutory
definitions. Detailed information from Federal agency or museum records
and other sources are essential in reaching determinations of lineal
descent or cultural affiliation as part of the inventory procedures.
One commenter recommended consolidating the two listings described
in Sec. 10.9 (d)(1) and (d)(2) into one list. Separation of the two
lists reflects the different purposes intended in the Sec. 10.9 (e)
inventory process. The listing of culturally affiliated human remains
and associated funerary objects is sent directly to Indian tribes and
Native Hawaiian organizations, with a copy to the Departmental
Consulting Archeologist. The listing of culturally unidentifiable human
remains and associated funerary objects is sent only to the
Departmental Consulting Archeologist. One commenter objected to use of
the term ``clearly'' regarding the determination of cultural
affiliation in Sec. 10.9 (d)(1) as being contrary to Congressional
intent and recommended deleting it from the regulatory text. The term
was drawn from section 5 (d)(1)(B) of the Act and reflects
Congressional intent. Another commenter recommended keeping the list of
those human remains and associated funerary objects that are clearly
identifiable as to tribal origin separate from those human remains and
associated funerary objects are determined by reasonable belief to be
cultural affiliated with the same Indian tribe or Native Hawaiian
organization. Since both categories of human remains and associated
funerary objects are considered to be culturally affiliated with the
Indian tribe or Native Hawaiian organization, and are thus available
for repatriation by that Indian tribe or Native Hawaiian organization,
there is no practical reason to separate the lists.
One commenter recommended clarifying throughout this subsection
that museum or Federal agency officials may need to send the same
inventory to multiple Indian tribes or Native Hawaiian organizations.
The text has been modified to reflect this concern.
Four commenters recommended replacing the word ``shall'' in the
second sentence of Sec. 10.9 (e)(4) with ``should.'' The Secretary has
delegated authority to carry out some provisions of the Act to the
Departmental Consulting Archeologist. These responsibilities include
providing staff support to the Review Committee. The Review Committee
is required under section 8 (c)(2) of the Act to monitor the inventory
and identification process. Submission of inventories in electronic
format is intended to facilitate the monitoring process. However, in
recognition that some museums may have difficulty meeting the
electronic format requirement, the drafters have changed the word
``shall'' in the second sentence to ``should.'' One commenter
recommended also allowing Federal agencies to use alternative methods
for submission of notices to the Departmental Consulting Archeologist.
The phrase ``and Federal agencies'' has been inserted after ``museums''
in the text. The Review Committee recommended inclusion of language in
this subsection requiring museums and Federal agencies to retain
possession of culturally unidentifiable human remains pending
promulgation of Sec. 10.11 of these regulations. The recommended
language has been included.
One commenter recommended requiring listings of culturally
unidentifiable human remains described in Sec. 10.9 (e)(6) be sent to
all Indian tribes and Native Hawaiian organizations as well as to the
Departmental Consulting Archeologist. Section 8 (c)(5) of the Act gives
the Review Committee responsibility for recommending specific action
for developing a process for disposition of culturally unidentifiable
human remains. Section 10.11 of these regulations has been reserved for
that purpose. The drafters consider it premature at this time to
establish such procedures.
Two commenters requested extending the November 16, 1995 deadline
for completion of inventories in Sec. 10.9 (f). The deadline for
completion of inventories is specified in section 5 (b)(1)(B) of the
Act and would require Congressional action to change. One commenter
recommended including language in this subsection to indicate that the
requirement to repatriate may be suspended during the preparation of
the inventories. The drafters consider such a suspension of the
requirement to repatriate counter to statutory language and legislative
history. Two commenters recommended including language in this
subsection to allow Federal agencies to apply for extensions of time to
complete their inventories. Section 5 (c) of the Act specified that any
museum which has made a good faith effort but which has been unable to
complete an inventory may appeal to the Secretary for an extension of
the time requirements. No provisions are provided in the Act for
Federal agencies to apply for extension. One commenter recommended
including language in this subsection limiting the number and length of
extensions granted to a museum to complete its inventories. The
Secretary will determine the number and length of extensions on a case-
by-case basis. One commenter recommended requiring museums to apply for
an extension in the second sentence of Sec. 10.9 (f). While a museum
may chose not to apply for an extension, it is likely that failure to
do so would be taken into account by the Secretary in determining if
the museum had failed to comply with the requirements of the Act. One
commenter requested clarification regarding a situation in which a
museum fails to complete an inventory of human remains and associated
funerary objects from Federal lands. Federal agencies are responsible
for completion of summaries and inventories of all human remains,
funerary objects, sacred objects, or objects of cultural patrimony from
Federal lands regardless of the type of institution in which they are
currently curated. One commenter recommended incorporation of personnel
qualifications in this subsection for individuals involved in the
completion of the inventory plan. Museums are expected in make sure
that all of their personnel are qualified to undertake the tasks
expected of them.
Section 10.10
Thirty-three commenters recommended changes to the section on
repatriation. One commenter recommended rewriting Sec. 10.10 (a)(1) and
Sec. 10.10 (b)(1) to emphasis that all of the criteria for repatriation
must be met. The initial sentence of each section has been rewritten to
state ``If all the following criteria are met...'' In addition, the
word ``and'' has been added at the end of all but the final roman
numeralled subsections in these two sections. Another commenter
requested clarification of the term ``expeditiously'' which is used in
both sections. The rule of statutory construction generally holds that
undefined terms are interpreted in their common meaning.
One commenter recommended inclusion of language in Sec. 10.10
(a)(1)(ii) and (b)(1)(ii) allowing several Indian tribes or Native
Hawaiian organizations to make joint claims for human remains, funerary
objects, sacred objects, or objects of cultural patrimony. The drafters
feel the current language allows for joint claims. Another commenter
recommended amending Sec. 10.10 (a)(1)(ii) and Sec. 10.10 (b)(1)(ii) to
clarify that the cultural affiliation of human remains, funerary
objects, sacred objects, or objects of cultural patrimony can be
established independently of the
[[Page 62153]]
summary and inventory processes by presentation of a preponderance of
the evidence by a requesting Indian tribe or Native Hawaiian
organization. Additional text has been inserted under Sec. 10.10
(a)(1)(ii)(B) and Sec. 10.10 (b)(1)(ii)(B) to clarify this issue.
Another commenter requested inserting the phrase ``culturally
affiliated'' before ``Indian tribe'' in Sec. 10.10 (a)(1)(iii), The
recommended text has been included.
One commenter recommended deleting the phrase ``which, if standing
alone before the introduction of evidence to the contrary'' from
Sec. 10.10 (a)(1)(iii). This phrase is taken directly from section 7
(c) of the Act regarding the standard of repatriation for unassociated
funerary objects, sacred objects, and objects of cultural patrimony;
and has been retained in the regulations.
One commenter recommended rewriting Sec. 10.10 (a)(1)(iv) to make
clear that a Federal agency or museum must present evidence to overcome
the inference of tribal custody and prove its right of possession to
unassociated funerary objects, sacred objects, or objects of cultural
patrimony. The existing text is drawn from section 7 (c) of the Act and
is interpreted to provide Federal agencies with some discretion as to
whether information regarding right of possession must be used to
challenge a request for repatriation.
One commenter recommended deleting Sec. 10.10 (a)(1)(v) and
Sec. 10.10 (b)(1)(iii), referring to specific repatriation exemptions,
to avoid confusion and havoc with Indian tribes. The specific
exemptions to repatriation referred to in these subsections come from
section 7 (b) and (e) of the Act.
Two commenters recommended changes to Sec. 10.10 (a)(2) regarding
right of possession. One commenter requested clarification of how right
of possession might be demonstrated for prehistoric human remains,
funerary objects, sacred objects, or objects of cultural patrimony. The
right of possession basis for retaining cultural items in an existing
collection does not apply to human remains or associated funerary
objects, only to unassociated funerary objects, sacred objects, and
objects of cultural patrimony. A right of possession for prehistoric
cultural items fitting these categories might be written authorization
from a competent authority to excavate, remove, and curate such items
from a particular area or site. Another commenter recommended locating
the definition of right of possession would more appropriately with the
other definitions in Sec. 10.2. The concept of right of possession has
limited applicability in these regulations to unassociated funerary
objects, sacred objects, and objects of cultural patrimony. The
explanation of right of possession is retained at this place in the
regulations because it is only used for this specific aspect of the
Act.
Three commenters recommended changes to Sec. 10.10 (a)(3) and
Sec. 10.10 (b)(2) regarding notification. Two commenters requested
clarification of whether the ninety (90) days during which repatriation
must take place begins from the day a request for repatriation is
received or from the day the responsible museum of Federal agency
official makes a positive determination that the criteria for
repatriation apply. The first sentence of this section has been
redrafted to clarify that the ninety (90) day period begins with the
receipt of a written request for repatriation from a culturally
affiliated Indian tribe or Native Hawaiian organization. Another
commenter stated that ninety (90) days may not be sufficient to
determine to validity of each request. Section 7 of the Act requires
that repatriation must be done ``expeditiously'' and implies in section
7 (b) a ninety (90) day time frame for such actions. Text has been
added to provide for a longer period if mutually agreed upon. It is
noted that determination of the validity of a claim should not be
difficult since this period only applies to requests from Indian tribes
and Native Hawaiian organizations that have been determined to be
culturally affiliated with specific human remains, funerary objects,
sacred objects, or objects of cultural patrimony.
Five commenters recommended changes to Sec. 10.10 (b) regarding the
repatriation of human remains and associated funerary objects. One
commenter identified the criteria for repatriating human remains and
associated funerary objects as being very confusing and recommended
rewriting them for comprehension by lay people. One commenter
recommended reiterating the applicability of ``right of possession'' to
human remains and associated funerary objects recognized in the last
sentence of section 2 (13) of the Act in this section of the
regulations. American law generally recognizes that human remains can
not be ``owned.'' This interpretation is consistent with the second
sentence of section 2 (13) of the Act that specifically refers to
unassociated funerary objects, sacred objects, and objects of cultural
patrimony, and with section 7 (a)(1) and (a)(2) of the Act in which no
right of possession to human remains or associated funerary objects is
inferred. One commenter strongly objected to the requirement in
Sec. 10.10 (b)(2) that repatriation not occur until at least thirty
days after publication of a notice of inventory completion in the
Federal Register, referring to section 11 (1)(A) of the Act that states
that nothing in the Act shall be construed to limit the authority of
any museum or Federal agency to return or repatriate. Publication of
the notice in the Federal Register was recognized in section 5 (d)(3)
of the Act as necessary to ensure Constitutional due process
requirements. Delaying a repatriation for thirty (30) days following
publication of the notice provides any other legitimate claimant with
an opportunity to come forward with a claim. This requirement in no way
limits any organization's authority to repatriate. Section 11 (2) of
the Act states that nothing in the Act shall be construed to delay
action on repatriation requests ``that are pending on the date of
enactment of this Act,'' and makes it clear that Congress anticipated
there might be some subsequent delays of repatriation initiated after
November 16, 1990, due to the statutory provisions. One commenter asked
whether a second Federal Register notice is required to document a
claim following publication of a Notice of Inventory Completion.
Requests for repatriation made after completion of the inventory and
publication of the Notice of Inventory Completion in the Federal
Register do not require publication of a second notice, unless it is
determined as a result of a competing claim or otherwise that a
different Indian tribe or Native Hawaiian organization than the one
identified in the original notice is the proper recipient. In such
instances, a second Federal Register notice is required prior to
repatriation. In situations where more than one Indian tribe or Native
Hawaiian organization was listed in the original notice, the museum or
Federal agency official should consult with each of the listed Indian
tribes or Native Hawaiian organizations prior to repatriating to any
one of them.
Three commenters recommended deleting Sec. 10.10 (c)(1) regarding
the exception to the repatriation requirements for studies of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony of major benefit to the United States. This exemption is
drawn from section 7 of the Act. One commenter identified the phrase
``commenced prior to receipt of a request'' in this subsection as not
being included in the statutory language and recommended deleting it.
The phrase has been deleted. Six
[[Page 62154]]
commenters recommended clarifying the concept of ``major benefit'' in
the exemption for completion of a specific scientific study in
Sec. 10.10 (c)(1). Such determinations necessarily will have to be made
on a case-by-case basis. One commenter recommended that the deadline
after completion of a study by which human remains, funerary objects,
sacred objects, or objects of cultural patrimony must be repatriated be
left to the discretion of the parties involved. The requirement that
human remains, funerary objects, sacred objects, or objects of cultural
patrimony be repatriated no later than ninety days (90) after
completion of the study is drawn from the statutory language.
One commenter recommended replacing the phrase ``proper recipient''
in the first sentence of Sec. 10.10 (c)(2) with ``most appropriate
recipient.'' The recommended change has been made. One commenter
recommended including language in this subsection requiring museums and
Federal agencies to comply with multiple party claims. The language in
these regulations does not preclude claims for repatriation made by
groups of lineal descendants or groups of Indian tribes or Native
Hawaiian organizations. Museum and Federal agency officials are
responsible for assessing the merits of each claim received.
One commenter recommended deleting the ``takings exemption'' in
Sec. 10.10 (c)(3) since it requires complex legal analysis that would
unduly burden museum and Federal agency officials and is contrary to
the provisions of the Act regarding the determination of custody of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony. The language in this subsection was drawn from section 2
(13) of the Act. Six commenters requested additional clarification of
the subsection. Additional language has been included in the text. One
commenter objected to the ``globalization'' of the constitutional test
of a Fifth Amendment taking in this subsection to include human remains
and associated funerary objects, stating that such an interpretation is
not supported by the statutory language and recommending that the
drafters refrain from attempting to redress in regulation what the
commenter considers a facially unconstitutional element of the Act. The
regulation has not been changed in response to this comment. The Act
does not indicate an express intention to effectuate a legislative or
regulatory taking. It is possible, though not likely, that human
remains may be subject to Fifth Amendment concerns, e.g., where the
human remains have been incorporated into another object. The same
commenter recommended including text to exempt museums from the threat
of civil penalties in situations where the museum invokes its authority
to refuse to repatriate human remains and associated funerary objects
based on ``otherwise applicable property law.'' A determination that
repatriation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony constitutes a taking of property without
just compensation within the meaning of the Fifth Amendment of the
United States Constitution must be made by a court of competent
jurisdiction and can not be ``invoked'' by a museum or Federal agency.
Assessment of civil penalties by the Secretary will necessarily be made
on a case-by-case basis and, as such, the recommended exemption is not
considered appropriate. However, the drafters consider it unlikely that
the Secretary would assess civil penalties while a takings issue is
being considered by a court of competent jurisdiction.
One commenter recommended deleting the reference in Sec. 10.10
(c)(4) to other repatriation limitations in Sec. 10.15. Section 10.15
includes limitation and remedies applying to both the disposition of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony excavated intentionally or discovered inadvertently on
Federal land or tribal lands and to the repatriation of human remains,
funerary objects, sacred objects, or objects of cultural patrimony in
the possession or control of museums or Federal agencies.
Two commenters requested clarification regarding procedures related
to the transfer of custody of human remains, funerary objects, sacred
objects, or objects of cultural patrimony to lineal descendants or
Indian tribes in Sec. 10.10 (d). Museum and Federal agency officials
are responsible for making decisions regarding place and manner of
repatriation. However, prior to making such decisions, they must first
consult with the requesting lineal descendants or culturally affiliated
Indian tribes.
One commenter recommended including additional text requiring
museum and Federal agency officials to inform recipients of
repatriations of any known treatments, such as application of
pesticides, preservatives, or other substances, that might represent a
potential hazard to the human remains, funerary objects, sacred
objects, or objects of cultural patrimony or the persons handling them.
The recommended text has been included as Sec. 10.10 (e) and subsequent
subsections renumbered.
Two commenters recommended including language in Sec. 10.10 (e)
(renumbered as Sec. 10.10 (f)) advising museum and Federal agency
officials that, upon the request of Indian tribe officials, they take
steps to ensure that information of a particularly sensitive nature is
not made available to the general public. The recommended text has been
included in the rule. Documentation of some cultural items,
particularly sacred objects and objects of cultural patrimony, is
expected to require Indian tribe officials and traditional religious
leaders to divulge some information considered sensitive to the Indian
tribe or Native Hawaiian organization. There is currently no exemption
available to protect such sensitive information from disclosure under
the Freedom of Information Act. Museum or Federal officials may wish to
ensure that sensitive information does not become part of the public
record by not writing such information down in the first place.
Two commenters identified ``unidentified human remains,'' referred
to in Sec. 10.10 (f) (renumbered as Sec. 10.10 (g)) as a category not
supported by the statutory language, and recommended deleting the term.
Section 8 (c)(5) of the Act required the Review Committee to compile an
inventory and make recommendations regarding specific actions for
developing a process for disposition of ``culturally unidentifiable
human remains.'' Section 10.10 (g) has been amended to reflect that
statutory language.
One commenter requested that Sec. 10.10 reference the requirements
of the Migratory Bird Treaty Act, the Bald and Golden Eagle Act, the
Endangered Species Act and the Marine Mammal Act. While it is not
appropriate to include the requirements of these acts in the
regulations, museums, Federal agencies, and Indian tribes should be
aware that additional statutes and regulations may affect the transport
and possession of repatriated objects. For additional information,
contact, the U.S. Fish and Wildlife Service, Division of Law
Enforcement, PO Box 3247, Arlington VA 22203-3247.
Section 10.11
This section has been reserved for procedures related to the
disposition of culturally unidentifiable human remains in museum or
Federal agency collections. One commenter questioned the authority
under which the Federal government can determine the final disposition
of human remains for which no cultural affiliation can reasonably be
established. Another commenter recommended changing the title of this
[[Page 62155]]
section to read ``culturally and geographically unidentifiable'' to
ensure that a ``simple-minded or hostile reading of the rules'' would
not result in assignment of many human remains to the catch-all
category. One commenter requested clarification for procedures
concerning ``affected remains of . . . biologically extinct peoples''.
Section 8 (c)(5) and (c)(7) of the Act gives the Review Committee the
responsibilities of recommending specific actions for developing a
process for disposition of ``culturally unidentifiable human remains''
and consulting with the Secretary in the development of regulations to
carry out the statute. Section 13 of the Act charges the Secretary with
promulgating regulations to carry out the statute. One commenter
recommended interring all culturally unidentifiable human remains in a
tribal or intertribal cemetery. One commenter recommended sending
inventories of all culturally unidentifiable human remains to all
Indian tribes and Native Hawaiian organizations. One commenter
requested that this section be published promptly. Another commenter
recommended seeking Indian tribal input in developing this section to
ensure that ``the dominant society [not dictate] the proposed language
to protect their own interests.'' A draft of this section is being
developed currently and will submitted to the Review Committee for
discussion and recommendations prior to publication as proposed
regulation for public comment in the Federal Register.
Section 10.12
This section has been reserved for procedures related to the
assessment of civil penalties by the Secretary against any museum that
fails to comply with the requirements of the statute. One commenter
requested prompt publication of this section. A draft of this section
is currently being developed and will submitted to the Review Committee
for discussion prior to publication for public comment in the Federal
Register.
Section 10.13
This section has been reserved for procedures related to the future
applicability of the statute. One commenter recommended that the
section should include continuing responsibilities for museums and
Federal agencies to update summaries and inventories of human remains,
funerary objects, sacred objects, or objects of cultural patrimony to
reflect new accessions, first time receipt of Federal funds, and the
recognition of new Indian tribes and Native Hawaiian organizations. One
commenter requested clarification on the subject of future accessions.
One commenter stressed that tribal input, comment and recommendations
are imperative in formulating this section. A draft of this section is
currently being developed and will be submitted to the Review Committee
for discussion prior to publication for public comment in the Federal
Register. One commenter proposed inclusion of a ten year time limit
during which Indian tribes must make claims for repatriation. Time
limits for claims were discussed by Congress when the bill was being
considered but were not included in the Act. Inclusion of such time
limits in the regulations would contradict Congressional intent.
Section 10.14
Eighteen commenters recommended changes to the section on lineal
descent and cultural affiliation. Two commenters recommended further
identification in Sec. 10.14 (a) of the parties responsible for
completing the required activities. On Federal lands, Federal agency
officials are responsible for determining which modern Indian tribes
and Native Hawaiian organizations may have valid claims upon human
remains, funerary objects, sacred objects, or objects of cultural
patrimony that are excavated intentionally or discovered inadvertently
on lands they manage. For existing collections, the museum or Federal
agency official is responsible for assembling, describing, evaluating
human remains, funerary objects, sacred objects, or objects of cultural
patrimony and making determinations regarding their cultural
affiliation and disposition. It is the responsibility of lineal
descendants, Indian tribes or Native Hawaiian organizations that
disagree with determinations of cultural affiliation made by a Federal
agency or museum official to develop and present information to
challenge that determination.
Another commenter recommended changing all references to Indian
tribe in this section to ``Indian tribe or tribes'' to reflect the fact
that Indian tribes may bring joint claims for certain items. The
drafters consider the current language to support the possibility of
joint claims.
One commenter identified the criteria for determining lineal
descendants in Sec. 10.14 (b) as being overly restrictive and
recommended broadening them to allow for both individual and Indian
tribe and Native Hawaiian organization claims. One commenter requested
including a procedure ``for independent verification of claimed
descent.'' Criteria for determining lineal descent have been narrowly
defined to reflect the priority given these claims under section 3 and
section 7 of the Act. One commenter requested that the section include
procedures for independent verification of any claims of lineal descent
based upon traditional kinship systems. Museum or Federal agency
officials are responsible for evaluating claims of lineal descent.
Three commenters identified criteria for determining cultural
affiliation under Sec. 10.14 (c)(1), (2) and (3) as placing an undue
and unrealistic burden of proof on Indian tribes and Native Hawaiian
organizations, and recommended fewer requirements. The three criteria
-- existence of an identifiable present-day Indian tribe or Native
Hawaiian organization, evidence of the existence of an identifiable
earlier group, and evidence of a shared group identity that can be
reasonably traced between the present-day Indian tribe or Native
Hawaiian organization and the earlier group--are the components of the
statutory definition of cultural affiliation at section 2 (2) of the
Act. They have been retained in the regulations.
Three commenters recommended rewording Sec. 10.14 (c)(2) for
clarification. The second sentence of Sec. 10.14 (c)(2) has been
rewritten to read: ``Evidence to support this requirement may include,
but is not necessarily limited to: . . .'' One commenter recommended
rewording Sec. 10.14 (c)(2)(ii) to emphasize the desirability of
demonstrating linkages between claimants and archeological remains. One
commenter questioned whether it is possible to make biological
distinctions between earlier groups as suggested in Sec. 10.14
(c)(2)(iii). Cultural affiliation between particular human remains,
funerary objects, sacred objects, or objects of cultural patrimony and
particular Indian tribes and Native Hawaiian organizations must be
determined on a case-by-case basis.
One commenter recommended regarding human remains or cultural
objects found within the traditional (aboriginal) territory of an
Indian tribe as being culturally affiliated with that Indian tribe,
regardless of the antiquity of the human remains, funerary objects,
sacred objects, or objects of cultural patrimony. The statutory
provisions related to intentional excavation and inadvertent discovery
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony on Federal or tribal lands (section 3 of the Act)
includes provisions for the disposition of human remains, funerary
objects, sacred objects, or objects of
[[Page 62156]]
cultural patrimony to the Indian tribe that is recognized as
aboriginally occupying the area in which the human remains or objects
were recovered, if upon notice, such tribe states a claim for such
human remains or items. No such criteria are included in the statutory
sections regarding repatriation of human remains, funerary objects,
sacred objects, or objects of cultural patrimony in museum or Federal
agency collections.
One commenter recommended inclusion of language from House Report
101-877 (page 5) clarifying that determinations of cultural affiliation
should be based on an overall evaluation of the totality of the
circumstances and evidence and should not be precluded solely because
of some gaps in the record. Language from the House Report has been
included as Sec. 10.14 (d), and the subsequent sections relettered.
One commenter noted that the types of evidence listed in Sec. 10.14
(e) were originally derived from section 7 (a)(4) of the Act--which
deals exclusively with the determination of cultural affiliation -- and
recommends that lineal descent should be established through normally
accepted methods of evidence. Section 7 (a) of the Act, of which
section 7 (a)(4) is a subpart, deals with both determinations of lineal
descent and cultural affiliation. It is the opinion of the drafters
that each of the types of evidence listed could potentially be used to
support a claim of lineal descent and should be available for use by
potential claimants.
One commenter objected to oral tradition and folklore being allowed
as evidence in Sec. 10.14 (d), particularly for those areas, such as
central, southwestern, southern, and coastal Texas, ``where the
aboriginal inhabitants have no biological descendants.'' One commenter
recommended including a statement that physical anthropological/
biological, archeological, and other ``hard'' scientific evidence will
have the greatest bearing in determining the cultural affiliation of
prehistoric materials, scaled with weight increasing as distance in
time increases. One commenter recommended inclusion of a statement
regarding ``standards of evidence.'' The applicability and strength of
particular types of evidence must be determined on a case-by-case
basis. It would be inappropriate to place stipulations on the
applicability of various types of evidence in regulation.
Two commenters recommended changing the last sentence of Sec. 10.14
(e) to require that cultural affiliation be established with scientific
certainty to avoid any misuse of the Act. A standard of scientific
certainty is not consistent with Congressional intent. The statement of
evidence in this subsection is drawn from section 7 (a)(4) of the Act.
Two other commenters questioned whether this subsection might give the
impression that scientific research is of no value in determining
cultural affiliation. Section 7 (a)(4) identifies scientific
information related to numerous fields as having relevance to the
determination of cultural affiliation. One commenter recommended
stipulating that no repatriation will occur until the analysis is
completed. Section 5 (a) specifies that the geographic and cultural
affiliation of human remains and associated funerary objects be
determined ``to the extent possible based on information possessed by
the museum of Federal agency.'' No new scientific research is required.
Delaying repatriation until new scientific research is completed
contradicts the intent of Congress unless that scientific research is
considered to be of major benefit to the United States.
Section 10.15
Eleven commenters recommended changes to the section on
repatriation limitations and remedies. One commenter stated the section
was not consistent with the statute and recommended deleting it in its
entirety. Two commenters identified Sec. 10.15 (a)(1) as being unduly
harsh to Indian tribes and Native Hawaiian organizations, and
recommended deleting it. Section 10.15 (a)(1) ensures that any claim
received prior to the disposition or repatriation of human remains,
funerary objects, sacred objects, or objects of cultural patrimony must
be considered by the museum or Federal agency. Claims made after
disposition or repatriation have occurred are properly the
responsibility of the receiving lineal descendant, Indian tribe, or
Native Hawaiian organization. The subsection has been retained as it is
important for the protection of museums and Federal agencies that
comply with the Act and regulations. One commenter recommended adding
another subsection under the title ``Multiple Claimants'' to address
such situations. Three commenters recommended specifying that a time
period for competing parties to reach agreement on the appropriate
disposition or repatriation of human remains, funerary objects, sacred
objects, or objects of cultural patrimony. No time period has been
established because it appears to be contrary to Congressional intent.
One commenter recommended inclusion of a statement specifying who
decides the disposition of human remains, funerary objects, sacred
objects, or objects of cultural patrimony that cannot be shown to be
culturally affiliated to a present-day Indian tribe or Native Hawaiian
organization. Section 10.11 of the regulations has been reserved for
procedures related to the disposition of culturally unidentifiable
human remains.
One commenter recommended completing Sec. 10.15 (b), reserved for
``Failure to claim where no repatriation or disposition has occurred,''
as quickly as possible. Another commenter questioned whether the
statutory language supports the inclusion of unclaimed cultural items
as well as human remains. Section 3 (b) of the Act addresses the
disposition of ``unclaimed human remains and objects'' and requires the
Secretary to publish regulations to carry out their disposition in
consultation with the Review Committee, Native American groups, and
representatives of museums and the scientific community.
One commenter asked for clarification regarding whether the denial
of a request for repatriation implied in Sec. 10.15 (c) would have the
effect of stopping the ``90-day clock'' for expedient repatriation.
Museum and Federal agency officials are required to make a decision
regarding claims for the disposition or repatriation of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
within ninety (90) days of receipt of that claim. Once that decision is
made, the museum or Federal agency official has carried out their
responsibility. Another commenter recommended that this subsection
state specifically that museums and Federal agencies must repatriate
within ninety (90)-days of receipt of a written request. Section 10.10
(a)(3) and (b)(2) specify that museums and Federal agencies must
repatriate human remains, funerary objects, sacred objects, or objects
of cultural patrimony in their collections within ninety (90) days of
receipt of a written request for repatriation that satisfies the
requirements of Sec. 10.10 (a)(1) and (b)(1), respectively, provided
that the repatriation may not occur until at least thirty (30) days
after publication of the appropriate notice in the Federal Register.
Section 10.16
Two commenters recommended changes to the section on the Review
Committee. One commenter recommended deletion of the term ``culturally
unidentifiable human remains'' on the grounds that there is no such
category recognized under the Act.
[[Page 62157]]
Section 8 (b)(5) of the Act requires the Review Committee to compile an
inventory of culturally unidentifiable human remains and recommend
specific actions for developing a process for disposition of such human
remains. Another commenter recommended specifying the criteria to be
used by the Review Committee in resolving disputes. One commenter
requested clarification as to the ``arbitrator'' for disputes arising
from the Act. The Review Committee has established its own guidelines
for facilitating the resolution of disputes that include both
procedures and criteria. Copies of these procedures are available from
the Department of the Interior through the Departmental Consulting
Archeologist, Archeological Assistance Division, National Park Service.
Section 10.17
Three commenters recommended changes to the section on dispute
resolution. One commenter recommended strengthening the section to
provide a realistic and definitive forum for resolving problems.
Another commenter recommended including criteria to be used by the
Review Committee in resolving disputes. A third commenter recommended
that appropriate time frames should be established for Review Committee
comments concerning disputes. The Review Committee has established its
own guidelines for facilitating the resolution of disputes that include
both procedures and criteria. Copies of these procedures are available
from the Department of the Interior through the Departmental Consulting
Archeologist, Archeological Assistance Division, National Park Service.
Appendix A
Four commenters recommended changes to the sample summary. Two
commenters recommended narrowing the focus of the summary from
collections held by a museum which may contain unassociated funerary
objects, sacred objects, or objects of cultural patrimony to a summary
of those specific objects. This proposed text was not changed for
reasons previously presented in the discussion of section 10.8.
One commenter objected to the enumeration of sites and objects in
the seventh paragraph of the sample summary as being both impractical
and impossible. The enumeration of sites and objects in the sample
summary are identified clearly as approximations. Further, provision of
this type of information to Indian tribes and Native Hawaiian
organizations is consistent with the requirements of section 6 of the
Act as clarified in section 10.8 of these regulations.
One commenter objected to the apparently broad access to museum
records given Indian tribes in the final paragraph. The sentence in
question closely paraphrases section 6 (b)(2) of the Act and has not
been changed.
Appendix B
This appendix was reserved for a sample inventory of human remains
and associated funerary objects. One commenter stressed the importance
of developing this section as quickly as possible. A sample inventory
of human remains and associated funerary objects currently has been
developed in consultation with the Review Committee and distributed to
Indian tribes, Native Hawaiian organizations, museums, and Federal
agencies. This reserved appendix has been deleted from the rule.
Appendix C
The notice of inventory completion in this appendix has been
updated with a more recent version and retitled as Appendix B.
Appendix D
The Review Committee recommended deleting this section that had
been reserved for a sample memorandum of understanding dealing with
repatriation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony in Federal collections from the
regulations. Guidance regarding such memoranda of understanding will be
developed and distributed by the Department of the Interior.
Appendix E
The Review Committee recommended deleting this section that had
been reserved for a sample memorandum of understanding dealing with
intentional excavation on Federal or tribal lands from the regulations.
Guidance regarding such memoranda of understanding will be developed
and distributed by the Department of the Interior.
Authorship These proposed regulations were prepared by Dr. Francis
P. McManamon (Departmental Consulting Archeologist, National Park
Service), Dr. C. Timothy McKeown (NAGPRA Program Leader, National Park
Service), and Mr. Lars Hanslin (Senior Attorney, Office of the
Solicitor), in consultation with the Native American Graves Protection
and Repatriation Review Committee as directed by section 8 (c)(7) of
the Act.
Compliance with the Paperwork Reduction Act
The collections of information contained in this rule have been
approved by the Office of Management and Budget as required by 44
U.S.C. 3501 et seq (OMB control number 1024-0144). Public reporting
burden for this collection of information is expected to average 100
hours for the exchange of summary/inventory information between a
museum or Federal agency and an Indian tribe or Native Hawaiian
organization and six hours per response for the notification to the
Secretary, including time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collected information. Two commenters
questioned use of an average amount of time to characterize the
expected burden. While the amount of time required to complete the
reporting requirements of these regulations will vary between
institutions depending on the size and nature of their collections and
the comprehensiveness of their documentation, review of summaries,
inventories, and notices received by the Departmental Consulting
Archeologist confirms the accuracy of the previous estimates. Send
comments regarding this burden estimate or any other aspects of this
collection of information, including suggestions for reducing the
burden, to Information Collection Officer, National Park Service, Box
37127, Washington D.C. 20013 and to the Office of Management and
Budget, Paperwork Reduction Project, Washington DC 20503.
Compliance with Other Laws
This rule has been reviewed under Executive Order 12866. The final
rule implements provisions of the Native American Graves Protection and
Repatriation Act of 1990 and addresses the rights of lineal
descendants, Indian tribes, and Native Hawaiian organizations to Native
American human remains, funerary objects, sacred objects, and objects
of cultural patrimony. The final rule requires that any museum
receiving Federal funds prepare summaries and conduct inventories.
These requirements are within professionally accepted standards for
museum record keeping consistent with the purposes of such institutions
or organizations. Grants have been awarded during FY 1994 and FY 1995
to assist museums in these tasks. Federal agencies will incur costs in
two ways: (1) Preparing the summaries and conducting the
[[Page 62158]]
inventories; and (2) conducting consultation prior to planned
excavations and following inadvertent discoveries on Federal or tribal
lands. The Congressional Budget Office estimated costs for summary and
inventory activities at between $5 and $30 million over a five year
period. Many of the actions required of Federal agencies under item (2)
are recommended or required by previous legislation--such as the
National Historic Preservation Act and the Archaeological Resources
Protection Act--and costs for these activities are not expected to
increase appreciably, particularly if the Federal agencies are able to
coordinate their consultation and review activities as encouraged by
these regulations and other guidance documents.
The Department of the Interior certifies that this document does
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The Department of the Interior has determined that these final
regulations meet the applicable standards provided in sections 2(a) and
2(b) of Executive Order 12778.
The Department of the Interior has determined that these final
regulations will not have a significant effect on the quality of the
human environment under the National Environmental Policy Act (42
U.S.C. 4321-4347). In addition, the Department of the Interior has
determined that these final regulations are categorically excluded from
the procedural requirements of the National Environmental Policy Act by
Departmental regulations in 516 DM 2. As such, neither an Environmental
Assessment nor an Environmental Impact statement has been prepared.
List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Graves, Hawaiian Natives,
Historic preservation, Indians--Claims, Indians--lands, Museums, Public
lands, Reporting and record keeping requirements.
For the reasons set out in the preamble, 43 CFR Subtitle A is
amended by adding Part 10 to read as follows:
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
Subpart A--Introduction
Sec.
10.1 Purpose and applicability.
10.2 Definitions
Subpart B--Human Remains, Funerary Objects, Sacred Objects, or Objects
of Cultural Patrimony from Federal or Tribal Lands
10.3 Intentional archeological excavations.
10.4 Inadvertent discoveries.
10.5 Consultation.
10.6 Custody.
10.7 Disposition of unclaimed human remains, funerary objects,
sacred objects, or objects of cultural patrimony. [Reserved]
Subpart C--Human Remains, Funerary Objects, Sacred Objects, or Objects
of Cultural Patrimony in Museums and Federal Collections
10.8 Summaries.
10.9 Inventories.
10.10 Repatriation.
10.11 Disposition of culturally unidentifiable human remains.
[Reserved]
10.12 Civil penalties. [Reserved]
10.13 Future applicability. [Reserved]
Subpart D--General
10.14 Lineal descent and cultural affiliation.
10.15 Repatriation limitations and remedies.
10.16 Review committee.
10.17 Dispute resolution.
Appendix-A to Part 10--Sample summary.
Appendix-B to Part 10--Sample notice of inventory completion.
Authority: 25 U.S.C. 3001 et seq.
Subpart A--Introduction
Sec. 10.1 Purpose and applicability.
(a) Purpose. These regulations carry out provisions of the Native
American Graves Protection and Repatriation Act of 1990 (Pub.L. 101-
601; 25 U.S.C. 3001-3013;104 Stat. 3048-3058). These regulations
develop a systematic process for determining the rights of lineal
descendants and Indian tribes and Native Hawaiian organizations to
certain Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony with which they are
affiliated.
(b) Applicability. (1) These regulations pertain to the
identification and appropriate disposition of human remains, funerary
objects, sacred objects, or objects of cultural patrimony that are:
(i) In Federal possession or control; or
(ii) In the possession or control of any institution or State or
local government receiving Federal funds; or
(iii) Excavated intentionally or discovered inadvertently on
Federal or tribal lands.
(2) These regulations apply to human remains, funerary objects,
sacred objects, or objects of cultural patrimony which are indigenous
to Alaska, Hawaii, and the continental United States, but not to
territories of the United States.
(3) Throughout these regulations are decision points which
determine their applicability in particularly circumstances, e.g., a
decision as to whether a museum ``controls'' human remains and cultural
objects within the meaning of the regulations, or, a decision as to
whether an object is a ``human remain,'' ``funerary object,'' ``sacred
object,'' or ``object of cultural patrimony'' within the meaning of the
regulations. Any final determination making the Act or these
regulations inapplicable is subject to review pursuant to section 15 of
the Act.
Sec. 10.2 Definitions.
In addition to the term Act, which means the Native American Graves
Protection and Repatriation Act as described above, definitions used in
these regulations are grouped in seven classes: Parties required to
comply with these regulations; Parties with standing to make claims
under these regulations; Parties responsible for implementing these
regulations; Objects covered by these regulations; Cultural
affiliation; Types of land covered by these regulations; and Procedures
required by these regulations.
(a) Who must comply with these regulations? (1) Federal agency
means any department, agency, or instrumentality of the United States.
Such term does not include the Smithsonian Institution as specified in
section 2 (4) of the Act.
(2) Federal agency official means any individual authorized by
delegation of authority within a Federal agency to perform the duties
relating to these regulations.
(3) Museum means any institution or State or local government
agency (including any institution of higher learning) that has
possession of, or control over, human remains, funerary objects, sacred
objects, or objects of cultural patrimony and receives Federal funds.
(i) The term ``possession'' means having physical custody of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony with a sufficient legal interest to lawfully treat the
objects as part of its collection for purposes of these regulations.
Generally, a museum or Federal agency would not be considered to have
possession of human remains, funerary objects, sacred objects, or
objects of cultural patrimony on loan from another individual, museum,
or Federal agency.
(ii) The term ``control'' means having a legal interest in human
remains,
[[Page 62159]]
funerary objects, sacred objects, or objects of cultural patrimony
sufficient to lawfully permit the museum or Federal agency to treat the
objects as part of its collection for purposes of these regulations
whether or not the human remains, funerary objects, sacred objects or
objects of cultural patrimony are in the physical custody of the museum
or Federal agency. Generally, a museum or Federal agency that has
loaned human remains, funerary objects, sacred objects, or objects of
cultural patrimony to another individual, museum, or Federal agency is
considered to retain control of those human remains, funerary objects,
sacred objects, or objects of cultural patrimony for purposes of these
regulations.
(iii) The phrase ``receives Federal funds'' means the receipt of
funds by a museum after November 16, 1990, from a Federal agency
through any grant, loan, contract (other than a procurement contract),
or other arrangement by which a Federal agency makes or made available
to a museum aid in the form of funds. Federal funds provided for any
purpose that are received by a larger entity of which the museum is a
part are considered Federal funds for the purposes of these
regulations. For example, if a museum is a part of a State or local
government or a private university and the State or local government or
private university receives Federal funds for any purpose, the museum
is considered to receive Federal funds for the purpose of these
regulations.
(4) Museum official means the individual within a museum designated
as being responsible for matters relating to these regulations.
(5) Person means an individual, partnership, corporation, trust,
institution, association, or any other private entity, or, any
official, employee, agent, department, or instrumentality of the United
States, or of any Indian tribe or Native Hawaiian organization, or of
any State or political subdivision thereof that discovers human
remains, funerary objects, sacred objects or objects of cultural
patrimony on Federal or tribal lands after November 16, 1990.
(b) Who has standing to make a claim under these regulations?
(1) Lineal descendant means an individual tracing his or her
ancestry directly and without interruption by means of the traditional
kinship system of the appropriate Indian tribe or Native Hawaiian
organization or by the common law system of descendance to a known
Native American individual whose remains, funerary objects, or sacred
objects are being claimed under these regulations.
(2) Indian tribe means any tribe, band, nation, or other organized
Indian group or community of Indians, including any Alaska Native
village or corporation as defined in or established by the Alaska
Native Claims Settlement Act (43 U.S.C. 1601 et seq.), which is
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians. The
Secretary will distribute a list of Indian tribes for the purposes of
carrying out this statute through the Departmental Consulting
Archeologist.
(3)(i) Native Hawaiian organization means any organization that:
(A) Serves and represents the interests of Native Hawaiians;
(B) Has as a primary and stated purpose the provision of services
to Native Hawaiians; and
(C) Has expertise in Native Hawaiian affairs.
(ii)The term Native Hawaiian means any individual who is a
descendant of the aboriginal people who, prior to 1778, occupied and
exercised sovereignty in the area that now constitutes the State of
Hawaii. Such organizations must include the Office of Hawaiian Affairs
and Hui Malama I Na Kupuna 'O Hawai'i Nei.
(4) Indian tribe official means the principal leader of an Indian
tribe or Native Hawaiian organization or the individual officially
designated by the governing body of an Indian tribe or Native Hawaiian
organization or as otherwise provided by tribal code, policy, or
established procedure as responsible for matters relating to these
regulations.
(c) Who is responsible for carrying out these regulations?
(1) Secretary means the Secretary of the Interior.
(2) Review Committee means the advisory committee established
pursuant to section 8 of the Act.
(3) Departmental Consulting Archeologist means the official of the
Department of the Interior designated by the Secretary as responsible
for the administration of matters relating to these regulations.
Communications to the Departmental Consulting Archeologist should be
addressed to:
Departmental Consulting Archeologist
National Park Service,
PO Box 37127
Washington, DC 20013-7127.
(d) What objects are covered by these regulations? The Act covers
four types of Native American objects. The term Native American means
of, or relating to, a tribe, people, or culture indigenous to the
United States, including Alaska and Hawaii:
(1) Human remains means the physical remains of a human body of a
person of Native American ancestry. The term does not include remains
or portions of remains that may reasonably be determined to have been
freely given or naturally shed by the individual from whose body they
were obtained, such as hair made into ropes or nets. For the purposes
of determining cultural affiliation, human remains incorporated into a
funerary object, sacred object, or object of cultural patrimony, as
defined below, must be considered as part of that item.
(2) Funerary objects means items that, as part of the death rite or
ceremony of a culture, are reasonably believed to have been placed
intentionally at the time of death or later with or near individual
human remains. Funerary objects must be identified by a preponderance
of the evidence as having been removed from a specific burial site of
an individual affiliated with a particular Indian tribe or Native
Hawaiian organization or as being related to specific individuals or
families or to known human remains. The term burial site means any
natural or prepared physical location, whether originally below, on, or
above the surface of the earth, into which as part of the death rite or
ceremony of a culture, individual human remains were deposited, and
includes rock cairns or pyres which do not fall within the ordinary
definition of grave site. For purposes of completing the summary
requirements in Sec. 10.8 and the inventory requirements of Sec. 10.9:
(i) Associated funerary objects means those funerary objects for
which the human remains with which they were placed intentionally are
also in the possession or control of a museum or Federal agency.
Associated funerary objects also means those funerary objects that were
made exclusively for burial purposes or to contain human remains.
(ii) Unassociated funerary objects means those funerary objects for
which the human remains with which they were placed intentionally are
not in the possession or control of a museum or Federal agency. Objects
that were displayed with individual human remains as part of a death
rite or ceremony of a culture and subsequently returned or distributed
according to traditional custom to living descendants or other
individuals are not considered unassociated funerary objects.
(3) Sacred objects means items that are specific ceremonial objects
needed by traditional Native American religious leaders for the
practice of traditional Native American religions by their
[[Page 62160]]
present-day adherents. While many items, from ancient pottery sherds to
arrowheads, might be imbued with sacredness in the eyes of an
individual, these regulations are specifically limited to objects that
were devoted to a traditional Native American religious ceremony or
ritual and which have religious significance or function in the
continued observance or renewal of such ceremony. The term traditional
religious leader means a person who is recognized by members of an
Indian tribe or Native Hawaiian organization as:
(i) Being responsible for performing cultural duties relating to
the ceremonial or religious traditions of that Indian tribe or Native
Hawaiian organization, or
(ii) Exercising a leadership role in an Indian tribe or Native
Hawaiian organization based on the tribe or organization's cultural,
ceremonial, or religious practices.
(4) Objects of cultural patrimony means items having ongoing
historical, traditional, or cultural importance central to the Indian
tribe or Native Hawaiian organization itself, rather than property
owned by an individual tribal or organization member. These objects are
of such central importance that they may not be alienated,
appropriated, or conveyed by any individual tribal or organization
member. Such objects must have been considered inalienable by the
culturally affiliated Indian tribe or Native Hawaiian organization at
the time the object was separated from the group. Objects of cultural
patrimony include items such as Zuni War Gods, the Confederacy Wampum
Belts of the Iroquois, and other objects of similar character and
significance to the Indian tribe or Native Hawaiian organization as a
whole.
(e) What is cultural affiliation? Cultural affiliation means that
there is a relationship of shared group identity which can reasonably
be traced historically or prehistorically between members of a present-
day Indian tribe or Native Hawaiian organization and an identifiable
earlier group. Cultural affiliation is established when the
preponderance of the evidence -- based on geographical, kinship,
biological, archeological, linguistic, folklore, oral tradition,
historical evidence, or other information or expert opinion --
reasonably leads to such a conclusion.
(f) What types of lands to the excavation and discovery provisions
of these regulations apply to?
(1) Federal lands means any land other than tribal lands that are
controlled or owned by the United States Government, including lands
selected by but not yet conveyed to Alaska Native Corporations and
groups organized pursuant to the Alaska Native Claims Settlement Act
(43 U.S.C. 1601 et seq.). United States ``control,'' as used in this
definition, refers to those lands not owned by the United States but in
which the United States has a legal interest sufficient to permit it to
apply these regulations without abrogating the otherwise existing legal
rights of a person.
(2) Tribal lands means all lands which:
(i) Are within the exterior boundaries of any Indian reservation
including, but not limited to, allotments held in trust or subject to a
restriction on alienation by the United States; or
(ii) Comprise dependent Indian communities as recognized pursuant
to 18 U.S.C. 1151; or
(iii) Are administered for the benefit of Native Hawaiians pursuant
to the Hawaiian Homes Commission Act of 1920 and section 4 of the
Hawaiian Statehood Admission Act (Pub.L. 86-3; 73 Stat. 6).
(iv) Actions authorized or required under these regulations will
not apply to tribal lands to the extent that any action would result in
a taking of property without compensation within the meaning of the
Fifth Amendment of the United States Constitution.
(g) What procedures are required by these regulations?
(1) Summary means the written description of collections that may
contain unassociated funerary objects, sacred objects, and objects of
cultural patrimony required by Sec. 10.8 of these regulations.
(2) Inventory means the item-by-item description of human remains
and associated funerary objects.
(3) Intentional excavation means the planned archeological removal
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony found under or on the surface of Federal or tribal
lands pursuant to section 3 (c) of the Act.
(4) Inadvertent discovery means the unanticipated encounter or
detection of human remains, funerary objects, sacred objects, or
objects of cultural patrimony found under or on the surface of Federal
or tribal lands pursuant to section 3 (d) of the Act.
Subpart B--Human Remains, funerary objects, sacred objects, or
objects of cultural patrimony from Federal or Tribal Lands
Sec. 10.3 Intentional archeological excavations.
(a) General. This section carries out section 3 (c) of the Act
regarding the custody of human remains, funerary objects, sacred
objects, or objects of cultural patrimony that are excavated
intentionally from Federal or tribal lands after November 16, 1990.
(b) Specific Requirements. These regulations permit the intentional
excavation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony from Federal or tribal lands only if:
(1) The objects are excavated or removed following the requirements
of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa
et seq.) and its implementing regulations. Regarding private lands
within the exterior boundaries of any Indian reservation, the Bureau of
Indian Affairs (BIA) will serve as the issuing agency for any permits
required under the Act. For BIA procedures for obtaining such permits,
see 25 CFR part 262 or contact the Deputy Commissioner of Indian
Affairs, Department of the Interior, Washington, DC 20240. Regarding
lands administered for the benefit of Native Hawaiians pursuant to the
Hawaiian Homes Commission Act, 1920, and section 4 of Pub. L. 86-3, the
Department of Hawaiian Home Lands will serve as the issuing agency for
any permits required under the Act, with the Hawaii State Historic
Preservation Division of the Department of Land and Natural Resources
acting in an advisory capacity for such issuance. Procedures and
requirements for issuing permits will be consistent with those required
by the ARPA and its implementing regulations;
(2) The objects are excavated after consultation with or, in the
case of tribal lands, consent of, the appropriate Indian tribe or
Native Hawaiian organization pursuant to Sec. 10.5;
(3) The disposition of the objects is consistent with their custody
as described in Sec. 10.6; and
(4) Proof of the consultation or consent is shown to the Federal
agency official or other agency official responsible for the issuance
of the required permit.
(c) Procedures. (1) The Federal agency official must take
reasonable steps to determine whether a planned activity may result in
the excavation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony from Federal lands. Prior to issuing any
approvals or permits for activities, the Federal agency official must
notify in writing the Indian tribes or Native Hawaiian organizations
that are likely to be culturally affiliated with any human remains,
funerary objects, sacred objects, or objects of cultural patrimony that
may be excavated. The Federal
[[Page 62161]]
agency official must also notify any present-day Indian tribe which
aboriginally occupied the area of the planned activity and any other
Indian tribes or Native Hawaiian organizations that the Federal agency
official reasonably believes are likely to have a cultural relationship
to the human remains, funerary objects, sacred objects, or objects of
cultural patrimony that are expected to be found. The notice must be in
writing and describe the planned activity, its general location, the
basis upon which it was determined that human remains, funerary
objects, sacred objects, or objects of cultural patrimony may be
excavated, and, the basis for determining likely custody pursuant to
Sec. 10.6. The notice must also propose a time and place for meetings
or consultations to further consider the activity, the Federal agency's
proposed treatment of any human remains, funerary objects, sacred
objects, or objects of cultural patrimony that may be excavated, and
the proposed disposition of any excavated human remains, funerary
objects, sacred objects, or objects of cultural patrimony. Written
notification should be followed up by telephone contact if there is no
response in 15 days. Consultation must be conducted pursuant to
Sec. 10.5.
(2) Following consultation, the Federal agency official must
complete a written plan of action (described in Sec. 10.5(e)) and
execute the actions called for in it.
(3) If the planned activity is also subject to review under section
106 of the National Historic Preservation Act (16 U.S.C. 470 et seq.),
the Federal agency official should coordinate consultation and any
subsequent agreement for compliance conducted under that Act with the
requirements of Sec. 10.3 (c)(2) and Sec. 10.5. Compliance with these
regulations does not relieve Federal agency officials of requirements
to comply with section 106 of the National Historic Preservation Act
(16 U.S.C. 470 et seq.).
(4) If an Indian tribe or Native Hawaiian organization receives
notice of a planned activity or otherwise becomes aware of a planned
activity that may result in the excavation of human remains, funerary
objects, sacred objects, or objects of cultural patrimony on tribal
lands, the Indian tribe or Native Hawaiian organization may take
appropriate steps to:
(i) Ensure that the human remains, funerary objects, sacred
objects, or objects of cultural patrimony are excavated or removed
following Sec. 10.3 (b), and
(ii) make certain that the disposition of any human remains,
funerary objects, sacred objects, or objects of cultural patrimony
excavated intentionally or discovered inadvertently as a result of the
planned activity are carried out following Sec. 10.6.
Sec. 10.4 Inadvertent discoveries.
(a) General. This section carries out section 3 (d) of the Act
regarding the custody of human remains, funerary objects, sacred
objects, or objects of cultural patrimony that are discovered
inadvertently on Federal or tribal lands after November 16, 1990.
(b) Discovery. Any person who knows or has reason to know that he
or she has discovered inadvertently human remains, funerary objects,
sacred objects, or objects of cultural patrimony on Federal or tribal
lands after November 16, 1990, must provide immediate telephone
notification of the inadvertent discovery, with written confirmation,
to the responsible Federal agency official with respect to Federal
lands, and, with respect to tribal lands, to the responsible Indian
tribe official. The requirements of these regulations regarding
inadvertent discoveries apply whether or not an inadvertent discovery
is duly reported. If written confirmation is provided by certified
mail, the return receipt constitutes evidence of the receipt of the
written notification by the Federal agency official or Indian tribe
official.
(c) Ceasing activity. If the inadvertent discovery occurred in
connection with an on-going activity on Federal or tribal lands, the
person, in addition to providing the notice described above, must stop
the activity in the area of the inadvertent discovery and make a
reasonable effort to protect the human remains, funerary objects,
sacred objects, or objects of cultural patrimony discovered
inadvertently.
(d) Federal lands. (1) As soon as possible, but no later than three
(3) working days after receipt of the written confirmation of
notification with respect to Federal lands described in Sec. 10.4 (b),
the responsible Federal agency official must:
(i) Certify receipt of the notification;
(ii) Take immediate steps, if necessary, to further secure and
protect inadvertently discovered human remains, funerary objects,
sacred objects, or objects of cultural patrimony, including, as
appropriate, stabilization or covering;
(iii) Notify by telephone, with written confirmation, the Indian
tribes or Native Hawaiian organizations likely to be culturally
affiliated with the inadvertently discovered human remains, funerary
objects, sacred objects, or objects of cultural patrimony, the Indian
tribe or Native Hawaiian organization which aboriginally occupied the
area, and any other Indian tribe or Native Hawaiian organization that
is reasonably known to have a cultural relationship to the human
remains, funerary objects, sacred objects, or objects of cultural
patrimony. This notification must include pertinent information as to
kinds of human remains, funerary objects, sacred objects, or objects of
cultural patrimony discovered inadvertently, their condition, and the
circumstances of their inadvertent discovery;
(iv) Initiate consultation on the inadvertent discovery pursuant to
Sec. 10.5;
(v) If the human remains, funerary objects, sacred objects, or
objects of cultural patrimony must be excavated or removed, follow the
requirements and procedures in Sec. 10.3 (b) of these regulations; and
(vi) Ensure that disposition of all inadvertently discovered human
remains, funerary objects, sacred objects, or objects of cultural
patrimony is carried out following Sec. 10.6.
(2) Resumption of activity. The activity that resulted in the
inadvertent discovery may resume thirty (30) days after certification
by the notified Federal agency of receipt of the written confirmation
of notification of inadvertent discovery if the resumption of the
activity is otherwise lawful. The activity may also resume, if
otherwise lawful, at any time that a written, binding agreement is
executed between the Federal agency and the affiliated Indian tribes or
Native Hawaiian organizations that adopt a recovery plan for the
excavation or removal of the human remains, funerary objects, sacred
objects, or objects of cultural patrimony following Sec. 10.3 (b)(1) of
these regulations. The disposition of all human remains, funerary
objects, sacred objects, or objects of cultural patrimony must be
following Sec. 10.6.
(e) Tribal lands. (1) As soon as possible, but no later than three
(3) working days after receipt of the written confirmation of
notification with respect to Tribal lands described in Sec. 10.4 (b),
the responsible Indian tribe official may:
(i) Certify receipt of the notification;
(ii) Take immediate steps, if necessary, to further secure and
protect inadvertently discovered human remains, funerary objects,
sacred objects, or objects of cultural patrimony, including, as
appropriate, stabilization or covering;
(iii) If the human remains, funerary objects, sacred objects, or
objects of
[[Page 62162]]
cultural patrimony must be excavated or removed, follow the
requirements and procedures in Sec. 10.3 (b) of these regulations; and
(iv) Ensure that disposition of all inadvertently discovered human
remains, funerary objects, sacred objects, or objects of cultural
patrimony is carried out following Sec. 10.6.
(2) Resumption of Activity. The activity that resulted in the
inadvertent discovery may resume if otherwise lawful after thirty (30)
days of the certification of the receipt of notification by the Indian
tribe or Native Hawaiian organization.
(f) Federal agency officials. Federal agency officials should
coordinate their responsibilities under this section with their
emergency discovery responsibilities under section 106 of the National
Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 36 CFR 800.11
or section 3 (a) of the Archeological and Historic Preservation Act (16
U.S.C. 469 (a-c)). Compliance with these regulations does not relieve
Federal agency officials of the requirement to comply with section 106
of the National Historical Preservation Act (16 U.S.C. 470 (f) et
seq.), 36 CFR 800.11 or section 3 (a) of the Archeological and Historic
Preservation Act (16 U.S.C. 469 (a-c)).
(g) Notification requirement in authorizations. All Federal
authorizations to carry out land use activities on Federal lands or
tribal lands, including all leases and permits, must include a
requirement for the holder of the authorization to notify the
appropriate Federal or tribal official immediately upon the discovery
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony pursuant to Sec. 10.4 (b) of these regulations.
Sec. 10.5 Consultation.
Consultation as part of the intentional excavation or inadvertent
discovery of human remains, funerary objects, sacred objects, or
objects of cultural patrimony on Federal lands must be conducted in
accordance with the following requirements.
(a) Consulting parties. Federal agency officials must consult with
known lineal descendants and Indian tribe officials:
(1) from Indian tribes on whose aboriginal lands the planned
activity will occur or where the inadvertent discovery has been made;
and
(2) from Indian tribes and Native Hawaiian organizations that are,
or are likely to be, culturally affiliated with the human remains,
funerary objects, sacred objects, or objects of cultural patrimony; and
(3) from Indian tribes and Native Hawaiian organizations that have
a demonstrated cultural relationship with the human remains, funerary
objects, sacred objects, or objects of cultural patrimony.
(b) Initiation of consultation. (1) Upon receiving notice of, or
otherwise becoming aware of, an inadvertent discovery or planned
activity that has resulted or may result in the intentional excavation
or inadvertent discovery of human remains, funerary objects, sacred
objects, or objects of cultural patrimony on Federal lands, the
responsible Federal agency official must, as part of the procedures
described in Sec. 10.3 and Sec. 10.4, take appropriate steps to
identify the lineal descendant, Indian tribe, or Native Hawaiian
organization entitled to custody of the human remains, funerary
objects, sacred objects, or objects of cultural patrimony pursuant to
Sec. 10.6 and Sec. 10.14. The Federal agency official shall notify in
writing:
(i) any known lineal descendants of the individual whose remains,
funerary objects, sacred objects, or objects of cultural patrimony have
been or are likely to be excavated intentionally or discovered
inadvertently; and
(ii) the Indian tribes or Native Hawaiian organizations that are
likely to be culturally affiliated with the human remains, funerary
objects, sacred objects, or objects of cultural patrimony that have
been or are likely to be excavated intentionally or discovered
inadvertently; and
(iii) the Indian tribes which aboriginally occupied the area in
which the human remains, funerary objects, sacred objects, or objects
of cultural patrimony have been or are likely to be excavated
intentionally or discovered inadvertently; and
(iv) the Indian tribes or Native Hawaiian organizations that have a
demonstrated cultural relationship with the human remains, funerary
objects, sacred objects, or objects of cultural patrimony that have
been or are likely to be excavated intentionally or discovered
inadvertently.
(2) The notice must propose a time and place for meetings or
consultation to further consider the intentional excavation or
inadvertent discovery, the Federal agency's proposed treatment of the
human remains, funerary objects, sacred objects, or objects of cultural
patrimony that may be excavated, and the proposed disposition of any
intentionally excavated or inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony.
(3) The consultation must seek to identify traditional religious
leaders who should also be consulted and seek to identify, where
applicable, lineal descendants and Indian tribes or Native Hawaiian
organizations affiliated with the human remains, funerary objects,
sacred objects, or objects of cultural patrimony.
(c) Provision of information. During the consultation process, as
appropriate, the Federal agency official must provide the following
information in writing to the lineal descendants and the officials of
Indian tribes or Native Hawaiian organizations that are or are likely
to be affiliated with the human remains, funerary objects, sacred
objects, or objects of cultural patrimony excavated intentionally or
discovered inadvertently on Federal lands:
(1) A list of all lineal descendants and Indian tribes or Native
Hawaiian organizations that are being, or have been, consulted
regarding the particular human remains, funerary objects, sacred
objects, or objects of cultural patrimony;
(2) An indication that additional documentation used to identify
affiliation will be supplied upon request.
(d) Requests for information. During the consultation process,
Federal agency officials must request, as appropriate, the following
information from Indian tribes or Native Hawaiian organizations that
are, or are likely to be, affiliated pursuant to Sec. 10.6 (a) with
intentionally excavated or inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony:
(1) Name and address of the Indian tribe official to act as
representative in consultations related to particular human remains,
funerary objects, sacred objects, or objects of cultural patrimony;
(2) Names and appropriate methods to contact lineal descendants who
should be contacted to participate in the consultation process;
(3) Recommendations on how the consultation process should be
conducted; and
(4) Kinds of cultural items that the Indian tribe or Native
Hawaiian organization considers likely to be unassociated funerary
objects, sacred objects, or objects of cultural patrimony.
(e) Written plan of action. Following consultation, the Federal
agency official must prepare, approve, and sign a written plan of
action. A copy of this plan of action must be provided to the lineal
descendants, Indian tribes and Native Hawaiian organizations involved.
Lineal descendants and Indian tribe official(s) may sign the written
plan of action as appropriate. At a minimum, the plan of action must
comply with Sec. 10.3 (b)(1) and document the following:
[[Page 62163]]
(1) The kinds of objects to be considered as cultural items as
defined in Sec. 10.2 (b);
(2) The specific information used to determine custody pursuant to
Sec. 10.6;
(3) The planned treatment, care, and handling of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
recovered;
(4) The planned archeological recording of the human remains,
funerary objects, sacred objects, or objects of cultural patrimony
recovered;
(5) The kinds of analysis planned for each kind of object;
(6) Any steps to be followed to contact Indian tribe officials at
the time of intentional excavation or inadvertent discovery of specific
human remains, funerary objects, sacred objects, or objects of cultural
patrimony;
(7) The kind of traditional treatment, if any, to be afforded the
human remains, funerary objects, sacred objects, or objects of cultural
patrimony by members of the Indian tribe or Native Hawaiian
organization;
(8) The nature of reports to be prepared; and
(9) The disposition of human remains, funerary objects, sacred
objects, or objects of cultural patrimony following Sec. 10.6.
(f) Comprehensive agreements. Whenever possible, Federal agencies
should enter into comprehensive agreements with Indian tribes or Native
Hawaiian organizations that are affiliated with specific human remains,
funerary objects, sacred objects, or objects of cultural patrimony and
have claimed, or are likely to claim, those human remains, funerary
objects, sacred objects, or objects of cultural patrimony excavated
intentionally or discovered inadvertently on Federal lands. These
agreements should address all Federal agency land management activities
that could result in the intentional excavation or inadvertent
discovery of human remains, funerary objects, sacred objects, or
objects of cultural patrimony. Consultation should lead to the
establishment of a process for effectively carrying out the
requirements of these regulations regarding standard consultation
procedures, the determination of custody consistent with procedures in
this section and Sec. 10.6, and the treatment and disposition of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony. The signed agreements, or the correspondence related to the
effort to reach agreements, must constitute proof of consultation as
required by these regulations.
(g) Traditional religious leaders. The Federal agency official must
be cognizant that Indian tribe officials may need to confer with
traditional religious leaders prior to making recommendations. Indian
tribe officials are under no obligation to reveal the identity of
traditional religious leaders.
Sec. 10.6 Custody.
(a) Priority of custody. This section carries out section 3 (a) of
the Act, subject to the limitations of Sec. 10.15, regarding the
custody of human remains, funerary objects, sacred objects, or objects
of cultural patrimony excavated intentionally or discovered
inadvertently on Federal or tribal lands after November 16, 1990. For
the purposes of this section, custody means ownership or control of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony excavated intentionally or discovered inadvertently in
Federal or tribal lands after November 16, 1990. Custody of these human
remains, funerary objects, sacred objects, or objects of cultural
patrimony is, with priority given in the order listed:
(1) In the case of human remains and associated funerary objects,
in the lineal descendant of the deceased individual as determined
pursuant to Sec. 10.14 (b);
(2) In cases where a lineal descendant cannot be ascertained or no
claim is made, and with respect to unassociated funerary objects,
sacred objects, and objects of cultural patrimony:
(i) In the Indian tribe on whose tribal land the human remains,
funerary objects, sacred objects, or objects of cultural patrimony were
discovered inadvertently;
(ii) In the Indian tribe or Native Hawaiian organization that has
the closest cultural affiliation with the human remains, funerary
objects, sacred objects, or objects of cultural patrimony as determined
pursuant to Sec. 10.14 (c); or
(iii) In circumstances in which the cultural affiliation of the
human remains, funerary objects, sacred objects, or objects of cultural
patrimony cannot be ascertained and the objects were discovered
inadvertently on Federal land that is recognized by a final judgment of
the Indian Claims Commission or the United States Court of Claims as
the aboriginal land of an Indian tribe:
(A) In the Indian tribe aboriginally occupying the Federal land on
which the human remains, funerary objects, sacred objects, or objects
of cultural patrimony were discovered inadvertently, or
(B) If it can be shown by a preponderance of the evidence that a
different Indian tribe or Native Hawaiian organization has a stronger
cultural relationship with the human remains, funerary objects, sacred
objects, or objects of cultural patrimony, in the Indian tribe or
Native Hawaiian organization that has the strongest demonstrated
relationship with the objects.
(b) Custody of human remains, funerary objects, sacred objects, or
objects of cultural patrimony and other provisions of the Act apply to
all intentional excavations and inadvertent discoveries made after
November 16, 1990, including those made before the effective date of
these regulations.
(c) Final notice, claims and disposition with respect to Federal
lands. Upon determination of the lineal descendant, Indian tribe, or
Native Hawaiian organization that under these regulations appears to be
entitled to custody of particular human remains, funerary objects,
sacred objects, or objects of cultural patrimony excavated
intentionally or discovered inadvertently on Federal lands, the
responsible Federal agency official must, subject to the notice
required herein and the limitations of Sec. 10.15, transfer custody of
the objects to the lineal descendant, Indian tribe, or Native Hawaiian
organization following appropriate procedures, which must respect
traditional customs and practices of the affiliated Indian tribes or
Native Hawaiian organizations in each instance. Prior to any such
disposition by a Federal agency official, the Federal agency official
must publish general notices of the proposed disposition in a newspaper
of general circulation in the area in which the human remains, funerary
objects, sacred objects, or objects of cultural patrimony were
excavated intentionally or discovered inadvertently and, if applicable,
in a newspaper of general circulation in the area(s) in which
affiliated Indian tribes or Native Hawaiian organizations members now
reside. The notice must provide information as to the nature and
affiliation of the human remains, funerary objects, sacred objects, or
objects of cultural patrimony and solicit further claims to custody.
The notice must be published at least two (2) times at least a week
apart, and the transfer must not take place until at least thirty (30)
days after the publication of the second notice to allow time for any
additional claimants to come forward. If additional claimants do come
forward and the Federal agency official cannot clearly determine which
claimant is entitled to custody, the Federal agency must not transfer
custody of the objects until such time as the proper recipient is
determined pursuant to these
[[Page 62164]]
regulations. The Federal agency official must send a copy of the notice
and information on when and in what newspaper(s) the notice was
published to the Departmental Consulting Archeologist.
Sec. 10.7 Disposition of unclaimed human remains, funerary objects,
sacred objects, or objects of cultural patrimony. [Reserved]
Subpart C--Human remains, funerary objects, sacred objects, or
objects of cultural patrimony in museums and Federal collections
Sec. 10.8 Summaries.
(a) General. This section carries out section 6 of the Act. Under
section 6 of the Act, each museum or Federal agency that has possession
or control over collections which may contain unassociated funerary
objects, sacred objects, or objects of cultural patrimony must complete
a summary of these collections based upon available information held by
the museum or Federal agency. The purpose of the summary is to provide
information about the collections to lineal descendants and culturally
affiliated Indian tribes or Native Hawaiian organizations that may wish
to request repatriation of such objects. The summary serves in lieu of
an object-by-object inventory of these collections, although, if an
inventory is available, it may be substituted. Federal agencies are
responsible for ensuring that these requirements are met for all
collections from their lands or generated by their actions whether the
collections are held by the Federal agency or by a non-Federal
institution.
(b) Contents of summaries. For each collection or portion of a
collection, the summary must include: an estimate of the number of
objects in the collection or portion of the collection; a description
of the kinds of objects included; reference to the means, date(s), and
location(s) in which the collection or portion of the collection was
acquired, where readily ascertainable; and information relevant to
identifying lineal descendants, if available, and cultural affiliation.
(c) Completion. Summaries must be completed not later than November
16, 1993.
(d) Consultation. (1) Consulting parties. Museum and Federal agency
officials must consult with Indian tribe officials and traditional
religious leaders:
(A) From whose tribal lands unassociated funerary objects, sacred
objects, or objects of cultural patrimony originated;
(B) That are, or are likely to be, culturally affiliated with
unassociated funerary objects, sacred objects, or objects of cultural
patrimony; and
(C) From whose aboriginal lands unassociated funerary objects,
sacred objects, or objects of cultural patrimony originated.
(2) Initiation of consultation. Museum and Federal agency officials
must begin summary consultation no later than the completion of the
summary process. Consultation may be initiated with a letter, but
should be followed up by telephone or face-to-face dialogue with the
appropriate Indian tribe official.
(3) Provision of information. During summary consultation, museum
and Federal agency officials must provide copies of the summary to
lineal descendants, when known, and to officials and traditional
religious leaders representing Indian tribes or Native Hawaiian
organizations that are, or are likely to be, culturally affiliated with
the cultural items. A copy of the summary must also be provided to the
Departmental Consulting Archeologist. Upon request by lineal
descendants or Indian tribe officials, museum and Federal agency
officials must provide lineal descendants, Indian tribe officials and
traditional religious leaders with access to records, catalogues,
relevant studies, or other pertinent data for the limited purposes of
determining the geographic origin, cultural affiliation, and basic
facts surrounding acquisition and accession of objects covered by the
summary. Access to this information may be requested at any time and
must be provided in a reasonable must be provided access to such
materials.
(4) Requests for information. During the summary consultation,
museum and Federal agency officials must request, as appropriate, the
following information from Indian tribes and Native Hawaiian
organizations that are, or are likely to be, culturally affiliated with
their collections:
(i) Name and address of the Indian tribe official to act as
representative in consultations related to particular objects;
(ii) Recommendations on how the consultation process should be
conducted, including:
(A) Names and appropriate methods to contact any lineal
descendants, if known, of individuals whose unassociated funerary
objects or sacred objects are included in the summary;
(B) Names and appropriate methods to contact any traditional
religious leaders that the Indian tribe or Native Hawaiian organization
thinks should be consulted regarding the collections; and
(iii) Kinds of cultural items that the Indian tribe or Native
Hawaiian organization considers to be sacred objects or objects of
cultural patrimony.
(e) Museum and Federal agency officials must document the following
information regarding unassociated funerary objects, sacred objects,
and objects of cultural patrimony in their collections and must use
this documentation in determining the individuals, Indian tribes, and
Native Hawaiian organizations with which they are affiliated:
(1) Accession and catalogue entries;
(2) Information related to the acquisition of unassociated funerary
object, sacred object, or object of cultural patrimony, including:
(i) the name of the person or organization from whom the object was
obtained, if known;
(ii) The date of acquisition,
(iii) The place each object was acquired, i.e., name or number of
site, county, state, and Federal agency administrative unit, if
applicable; and
(iv) The means of acquisition, i.e., gift, purchase, or excavation;
(3) A description of each unassociated funerary object, sacred
object, or object of cultural patrimony, including dimensions,
materials, and photographic documentation, if appropriate, and the
antiquity of such objects, if known;
(4) A summary of the evidence used to determine the cultural
affiliation of the unassociated funerary objects, sacred objects, or
objects of cultural patrimony pursuant to Sec. 10.14 of these
regulations.
(f) Notification. Repatriation of unassociated funerary objects,
sacred objects, or objects of cultural patrimony to lineal descendants,
culturally affiliated Indian tribes, or Native Hawaiian organizations
as determined pursuant to Sec. 10.10 (a), must not proceed prior to
submission of a notice of intent to repatriate to the Departmental
Consulting Archeologist, and publication of the notice of intent to
repatriate in the Federal Register. The notice of intent to repatriate
must describe the unassociated funerary objects, sacred objects, or
objects of cultural patrimony being claimed in sufficient detail so as
to enable other individuals, Indian tribes or Native Hawaiian
organizations to determine their interest in the claimed objects. It
must include information that identifies each claimed unassociated
funerary object, sacred object, or object of cultural patrimony and the
circumstances surrounding its acquisition, and describes the objects
that are clearly identifiable as to cultural
[[Page 62165]]
affiliation. It must also describe the objects that are not clearly
identifiable as being culturally affiliated with a particular Indian
tribe or Native Hawaiian organization, but which, given the totality of
circumstances surrounding acquisition of the objects, are likely to be
culturally affiliated with a particular Indian tribe or Native Hawaiian
organization. The Departmental Consulting Archeologist must publish the
notice of intent to repatriate in the Federal Register. Repatriation
may not occur until at least thirty (30) days after publication of the
notice of intent to repatriate in the Federal Register.
Sec. 10.9 Inventories.
(a) General. This section carries out section 5 of the Act. Under
section 5 of the Act, each museum or Federal agency that has possession
or control over holdings or collections of human remains and associated
funerary objects must compile an inventory of such objects, and, to the
fullest extent possible based on information possessed by the museum or
Federal agency, must identify the geographical and cultural affiliation
of each item. The purpose of the inventory is to facilitate
repatriation by providing clear descriptions of human remains and
associated funerary objects and establishing the cultural affiliation
between these objects and present-day Indian tribes and Native Hawaiian
organizations. Museums and Federal agencies are encouraged to produce
inventories first on those portions of their collections for which
information is readily available or about which Indian tribes or Native
Hawaiian organizations have expressed special interest. Early focus on
these parts of collections will result in determinations that may serve
as models for other inventories. Federal agencies must ensure that
these requirements are met for all collections from their lands or
generated by their actions whether the collections are held by the
Federal agency or by a non-Federal institution.
(b) Consultation--(1) Consulting parties. Museum and Federal agency
officials must consult with:
(i) Lineal descendants of individuals whose remains and associated
funerary objects are likely to be subject to the inventory provisions
of these regulations; and
(ii) Indian tribe officials and traditional religious leaders:
(A) From whose tribal lands the human remains and associated
funerary objects originated;
(B) That are, or are likely to be, culturally affiliated with human
remains and associated funerary objects; and
(C) From whose aboriginal lands the human remains and associated
funerary objects originated.
(2) Initiation of consultation. Museum and Federal agency officials
must begin inventory consultation as early as possible, no later in the
inventory process than the time at which investigation into the
cultural affiliation of human remains and associated funerary objects
is being conducted. Consultation may be initiated with a letter, but
should be followed up by telephone or face-to-face dialogue.
(3) Provision of information. During inventory consultation,
museums and Federal agency officials must provide the following
information in writing to lineal descendants, when known, and to
officials and traditional religious leaders representing Indian tribes
or Native Hawaiian organizations that are, or are likely to be,
culturally affiliated with the human remains and associated funerary
objects.
(i) A list of all Indian tribes and Native Hawaiian organizations
that are, or have been, consulted regarding the particular human
remains and associated funerary objects;
(ii) A general description of the conduct of the inventory;
(iii) The projected time frame for conducting the inventory; and
(iv) An indication that additional documentation used to identify
cultural affiliation will be supplied upon request.
(4) Requests for information. During the inventory consultation,
museum and Federal agency officials must request, as appropriate, the
following information from Indian tribes and Native Hawaiian
organizations that are, or are likely to be, culturally affiliated with
their collections:
(i) Name and address of the Indian tribe official to act as
representative in consultations related to particular human remains and
associated funerary objects;
(ii) Recommendations on how the consultation process should be
conducted, including:
(A) Names and appropriate methods to contact any lineal descendants
of individuals whose remains and associated funerary objects are or are
likely to be included in the inventory; and
(B) Names and appropriate methods to contact traditional religious
leaders who should be consulted regarding the human remains and
associated funerary objects.
(iii) Kinds of cultural objects that the Indian tribe or Native
Hawaiian organization reasonably believes to have been made exclusively
for burial purposes or to contain human remains of their ancestors.
(c) Required information. The following documentation must be
included, if available, for all inventories completed by museum or
Federal agency officials:
(1) Accession and catalogue entries, including the accession/
catalogue entries of human remains with which funerary objects were
associated;
(2) Information related to the acquisition of each object,
including:
(i) the name of the person or organization from whom the object was
obtained, if known;
(ii) The date of acquisition,
(iii) The place each object was acquired, i.e., name or number of
site, county, state, and Federal agency administrative unit, if
applicable; and
(iv) The means of acquisition, i.e., gift, purchase, or excavation;
(3) A description of each set of human remains or associated
funerary object, including dimensions, materials, and, if appropriate,
photographic documentation, and the antiquity of such human remains or
associated funerary objects, if known;
(4) A summary of the evidence, including the results of
consultation, used to determine the cultural affiliation of the human
remains and associated funerary objects pursuant to Sec. 10.14 of these
regulations.
(d) Documents. Two separate documents comprise the inventory:
(1) A listing of all human remains and associated funerary objects
that are identified as being culturally affiliated with one or more
present-day Indian tribes or Native Hawaiian organizations. The list
must indicate for each item or set of items whether cultural
affiliation is clearly determined or likely based upon the
preponderance of the evidence; and
(2) A listing of all culturally unidentifiable human remains and
associated funerary objects for which no culturally affiliated present-
day Indian tribe or Native Hawaiian organization can be determined.
(e) Notification. (1) If the inventory results in the
identification or likely identification of the cultural affiliation of
any particular human remains or associated funerary objects with one or
more Indian tribes or Native Hawaiian organizations, the museum or
Federal agency, not later than six (6) months after completion of the
inventory, must send such Indian tribes or Native Hawaiian
organizations the inventory of culturally affiliated human remains,
including all information required
[[Page 62166]]
under Sec. 10.9 (c), and a notice of inventory completion that
summarizes the results of the inventory.
(2) The notice of inventory completion must summarize the contents
of the inventory in sufficient detail so as to enable the recipients to
determine their interest in claiming the inventoried items. It must
identify each particular set of human remains or each associated
funerary object and the circumstances surrounding its acquisition,
describe the human remains or associated funerary objects that are
clearly identifiable as to cultural affiliation, and describe the human
remains and associated funerary objects that are not clearly
identifiable as being culturally affiliated with an Indian tribe or
Native Hawaiian organization, but which, given the totality of
circumstances surrounding acquisition of the human remains or
associated objects, are identified as likely to be culturally
affiliated with a particular Indian tribe or Native Hawaiian
organization.
(3) If the inventory results in a determination that the human
remains are of an identifiable individual, the museum or Federal agency
official must convey this information to the lineal descendant of the
deceased individual, if known, and to the Indian tribe or Native
Hawaiian organization of which the deceased individual was culturally
affiliated.
(4) The notice of inventory completion and a copy of the inventory
must also be sent to the Departmental Consulting Archeologist. These
submissions should be sent in both printed hard copy and electronic
formats. Information on the proper format for electronic submission and
suggested alternatives for museums and Federal agencies unable to meet
these requirements are available from the Departmental Consulting
Archeologist.
(5) Upon request by an Indian tribe or Native Hawaiian organization
that has received or should have received a notice of inventory
completion and a copy of the inventory as described above, a museum or
Federal agency must supply additional available documentation to
supplement the information provided with the notice. For these
purposes, the term documentation means a summary of existing museum or
Federal agency records including inventories or catalogues, relevant
studies, or other pertinent data for the limited purpose of determining
the geographical origin, cultural affiliation, and basic facts
surrounding the acquisition and accession of human remains and
associated funerary objects.
(6) If the museum or Federal agency official determines that the
museum or Federal agency has possession of or control over human
remains that cannot be identified as affiliated with a particular
individual, Indian tribes or Native Hawaiian organizations, the museum
or Federal agency must provide the Department Consulting Archeologist
notice of this result and a copy of the list of culturally
unidentifiable human remains and associated funerary objects. The
Departmental Consulting Archeologist must make this information
available to members of the Review Committee. Section 10.11 of these
regulations will set forth procedures for disposition of culturally
unidentifiable human remains of Native American origin. Museums or
Federal agencies must retain possession of such human remains pending
promulgation of Sec. 10.11 unless legally required to do otherwise, or
recommended to do otherwise by the Secretary. Recommendations regarding
the disposition of culturally unidentifiable human remains may be
requested prior to final promulgation of Sec. 10.11.
(7) The Departmental Consulting Archeologist must publish notices
of inventory completion received from museums and Federal agencies in
the Federal Register.
(f) Completion. Inventories must be completed not later than
November 16, 1995. Any museum that has made a good faith effort to
complete its inventory, but which will be unable to complete the
process by this deadline, may request an extension of the time
requirements from the Secretary. An indication of good faith efforts
must include, but not necessarily be limited to, the initiation of
active consultation and documentation regarding the collections and the
development of a written plan to carry out the inventory process.
Minimum components of an inventory plan are: a definition of the steps
required; the position titles of the persons responsible for each step;
a schedule for carrying out the plan; and a proposal to obtain the
requisite funding.
Sec. 10.10 Repatriation.
(a) Unassociated funerary objects, sacred objects, and objects of
cultural patrimony--(1) Criteria. Upon the request of a lineal
descendant, Indian tribe, or Native Hawaiian organization, a museum or
Federal agency must expeditiously repatriate unassociated funerary
objects, sacred objects, or objects of cultural patrimony if all the
following criteria are met:
(i) The object meets the definitions established in Sec. 10.2 (b)
(4), (5) or (6); and
(ii) The cultural affiliation of the object is established:
(A) through the summary, consultation, and notification procedures
in Sec. 10.14 of these regulations; or
(B) by presentation of a preponderance of the evidence by a
requesting Indian tribe or Native Hawaiian organization pursuant to
section 7(c) of the Act; and
(iii) The known lineal descendant or culturally affiliated Indian
tribe or Native Hawaiian organization presents evidence which, if
standing alone before the introduction of evidence to the contrary,
would support a finding that the museum or Federal agency does not have
a right of possession to the objects as defined in Sec. 10.10 (a)(2);
and
(iv) The agency or museum is unable to present evidence to the
contrary proving that it does have a right of possession as defined
below; and
(v) None of the specific exceptions listed in Sec. 10.10 (c) apply.
(2) Right of possession. For purposes of this section, ``right of
possession'' means possession obtained with the voluntary consent of an
individual or group that had authority of alienation. The original
acquisition of a Native American unassociated funerary object, sacred
object, or object of cultural patrimony from an Indian tribe or Native
Hawaiian organization with the voluntary consent of an individual or
group with authority to alienate such object is deemed to give right of
possession to that object.
(3) Notification. Repatriation must take place within ninety (90)
days of receipt of a written request for repatriation that satisfies
the requirements of Sec. 10.10 (a)(1) from a culturally affiliated
Indian tribe or Native Hawaiian organization, provided that the
repatriation may not occur until at least thirty (30) days after
publication of the notice of intent to repatriate in the Federal
Register as described in Sec. 10.8.
(b) Human remains and associated funerary objects--(1) Criteria.
Upon the request of a lineal descendant, Indian tribe, or Native
Hawaiian organization, a museum and Federal agency must expeditiously
repatriate human remains and associated funerary objects if all of the
following criteria are met:
(i) The human remains or associated funerary object meets the
definitions established in Sec. 10.2 (b)(1) or (b)(3); and
(ii) The affiliation of the deceased individual to known lineal
descendant, present day Indian tribe, or Native Hawaiian organization:
[[Page 62167]]
(A) has been reasonably traced through the procedures outlined in
Sec. 10.9 and Sec. 10.14 of these regulations; or
(B) has been shown by a preponderance of the evidence presented by
a requesting Indian tribe or Native Hawaiian organization pursuant to
section 7(c) of the Act; and
(iii) None of the specific exceptions listed in Sec. 10.10 (c)
apply.
(2) Notification. Repatriation must take place within ninety (90)
days of receipt of a written request for repatriation that satisfies
the requirements of Sec. 10.10 (b)(1) from the culturally affiliated
Indian tribe or Native Hawaiian organization, provided that the
repatriation may not occur until at least thirty (30) days after
publication of the notice of inventory completion in the Federal
Register as described in Sec. 10.9.
(c) Exceptions. These requirements for repatriation do not apply
to:
(1) Circumstances where human remains, funerary objects, sacred
objects, or objects of cultural patrimony are indispensable to the
completion of a specific scientific study, the outcome of which is of
major benefit to the United States. Human remains, funerary objects,
sacred objects, or objects of cultural patrimony in such circumstances
must be returned no later than ninety (90) days after completion of the
study; or
(2) Circumstances where there are multiple requests for
repatriation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony and the museum or Federal agency, after
complying with these regulations, cannot determine by a preponderance
of the evidence which requesting party is the most appropriate
claimant. In such circumstances, the museum or Federal agency may
retain the human remains, funerary objects, sacred objects, or objects
of cultural patrimony until such time as the requesting parties
mutually agree upon the appropriate recipient or the dispute is
otherwise resolved pursuant to these regulations or as ordered by a
court of competent jurisdiction; or
(3) Circumstances where a court of competent jurisdiction has
determined that the repatriation of the human remains, funerary
objects, sacred objects, or objects of cultural patrimony in the
possession or control of a museum would result in a taking of property
without just compensation within the meaning of the Fifth Amendment of
the United States Constitution, in which event the custody of the
objects must be as provided under otherwise applicable law. Nothing in
these regulations must prevent a museum or Federal agency, where
otherwise so authorized, or a lineal descendant, Indian tribe, or
Native Hawaiian organization, from expressly relinquishing title to,
right of possession of, or control over any human remains, funerary
objects, sacred objects, or objects of cultural patrimony.
(4) Circumstances where the repatriation is not consistent with
other repatriation limitations identified in Sec. 10.15 of these
regulations.
(d) Place and manner of repatriation. The repatriation of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony must be accomplished by the museum or Federal agency in
consultation with the requesting lineal descendants, or culturally
affiliated Indian tribe or Native Hawaiian organization, as
appropriate, to determine the place and manner of the repatriation.
(e) The museum official or Federal agency official must inform the
recipients of repatriations of any presently known treatment of the
human remains, funerary objects, sacred objects, or objects of cultural
patrimony with pesticides, preservatives, or other substances that
represent a potential hazard to the objects or to persons handling the
objects.
(f) Record of repatriation. (1) Museums and Federal agencies must
adopt internal procedures adequate to permanently document the content
and recipients of all repatriations.
(2) The museum official or Federal agency official, at the request
of the Indian tribe official, may take such steps as are considered
necessary pursuant to otherwise applicable law, to ensure that
information of a particularly sensitive nature is not made available to
the general public.
(g) Culturally unidentifiable human remains. If the cultural
affiliation of human remains cannot be established pursuant to these
regulations, the human remains must be considered culturally
unidentifiable. Museum and Federal agency officials must report the
inventory information regarding such human remains in their holdings to
the Departmental Consulting Archeologist who will transmit this
information to the Review Committee. The Review Committee is
responsible for compiling an inventory of culturally unidentifiable
human remains in the possession or control of each museum and Federal
agency, and, for recommending to the Secretary specific actions for
disposition of such human remains.
Sec. 10.11 Disposition of culturally unidentifiable human remains.
[Reserved]
Sec. 10.12 Civil penalties. [Reserved]
Sec. 10.13 Future applicability. [Reserved]
Subpart D--General
Sec. 10.14 Lineal descent and cultural affiliation.
(a) General. This section identifies procedures for determining
lineal descent and cultural affiliation between present-day individuals
and Indian tribes or Native Hawaiian organizations and human remains,
funerary objects, sacred objects, or objects of cultural patrimony in
museum or Federal agency collections or excavated intentionally or
discovered inadvertently from Federal lands. They may also be used by
Indian tribes and Native Hawaiian organizations with respect to tribal
lands.
(b) Criteria for determining lineal descent. A lineal descendant is
an individual tracing his or her ancestry directly and without
interruption by means of the traditional kinship system of the
appropriate Indian tribe or Native Hawaiian organization or by the
common law system of descendence to a known Native American individual
whose remains, funerary objects, or sacred objects are being requested
under these regulations. This standard requires that the earlier person
be identified as an individual whose descendants can be traced.
(c) Criteria for determining cultural affiliation. Cultural
affiliation means a relationship of shared group identity that may be
reasonably traced historically or prehistorically between a present-day
Indian tribe or Native Hawaiian organization and an identifiable
earlier group. All of the following requirements must be met to
determine cultural affiliation between a present-day Indian tribe or
Native Hawaiian organization and the human remains, funerary objects,
sacred objects, or objects of cultural patrimony of an earlier group:
(1) Existence of an identifiable present-day Indian tribe or Native
Hawaiian organization with standing under these regulations and the
Act; and
(2) Evidence of the existence of an identifiable earlier group.
Support for this requirement may include, but is not necessarily
limited to evidence sufficient to:
(i) Establish the identity and cultural characteristics of the
earlier group,
(ii) Document distinct patterns of material culture manufacture and
distribution methods for the earlier group, or
[[Page 62168]]
(iii) Establish the existence of the earlier group as a
biologically distinct population; and
(3) Evidence of the existence of a shared group identity that can
be reasonably traced between the present-day Indian tribe or Native
Hawaiian organization and the earlier group. Evidence to support this
requirement must establish that a present-day Indian tribe or Native
Hawaiian organization has been identified from prehistoric or historic
times to the present as descending from the earlier group.
(d) A finding of cultural affiliation should be based upon an
overall evaluation of the totality of the circumstances and evidence
pertaining to the connection between the claimant and the material
being claimed and should not be precluded solely because of some gaps
in the record.
(e) Evidence. Evidence of a kin or cultural affiliation between a
present-day individual, Indian tribe, or Native Hawaiian organization
and human remains, funerary objects, sacred objects, or objects of
cultural patrimony must be established by using the following types of
evidence: Geographical, kinship, biological, archeological,
anthropological, linguistic, folklore, oral tradition, historical, or
other relevant information or expert opinion.
(f) Standard of proof. Lineal descent of a present-day individual
from an earlier individual and cultural affiliation of a present-day
Indian tribe or Native Hawaiian organization to human remains, funerary
objects, sacred objects, or objects of cultural patrimony must be
established by a preponderance of the evidence. Claimants do not have
to establish cultural affiliation with scientific certainty.
Sec. 10.15 Repatriation limitations and remedies.
(a) Failure to claim prior to repatriation. (1) Any person who
fails to make a timely claim prior to the repatriation or transfer of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony is deemed to have irrevocably waived any right to claim such
items pursuant to these regulations or the Act. For these purposes, a
``timely claim'' means the filing of a written claim with a responsible
museum or Federal agency official prior to the time the particular
human remains, funerary objects, sacred objects, or objects of cultural
patrimony at issue are duly repatriated or disposed of to a claimant by
a museum or Federal agency pursuant to these regulations.
(2) If there is more than one (1) claimant, the human remains,
funerary object, sacred object, or objects of cultural patrimony may be
held by the responsible museum or Federal agency or person having
custody thereof pending resolution of the claim. Any person who has
custody of such human remains, funerary objects, sacred objects, or
objects of cultural patrimony and does not claim entitlement to them
must place the objects in the custody of the responsible museum or
Federal agency for retention until the question of custody is resolved.
(b) Failure to claim where no repatriation or disposition has
occurred. [Reserved]
(c) Exhaustion of remedies. No person is considered to have
exhausted his or her administrative remedies with respect to the
repatriation or disposition of human remains, funerary objects, sacred
objects, or objects of cultural patrimony subject to subpart B of these
regulations, or, with respect to Federal lands, subpart C of these
regulations, until such time as the person has filed a written claim
for repatriation or disposition of the objects with the responsible
museum or Federal agency and the claim has been duly denied following
these regulations.
(d) Savings provisions. Nothing in these regulations can be
construed to:
(1) Limit the authority of any museum or Federal agency to:
(i) Return or repatriate human remains, funerary objects, sacred
objects, or objects of cultural patrimony to Indian tribes, Native
Hawaiian organizations, or individuals; and
(ii) Enter into any other agreement with the consent of the
culturally affiliated Indian tribe or Native Hawaiian organization as
to the disposition of, or control over, human remains, funerary
objects, sacred objects, or objects of cultural patrimony.
(2) Delay actions on repatriation requests that were pending on
November 16, 1990;
(3) Deny or otherwise affect access to court;
(4) Limit any procedural or substantive right which may otherwise
be secured to individuals or Indian tribes or Native Hawaiian
organizations; or
(5) Limit the application of any State or Federal law pertaining to
theft of stolen property.
Sec. 10.16 Review committee.
(a) General. The Review Committee will advise Congress and the
Secretary on matters relating to these regulations and the Act,
including, but not limited to, monitoring the performance of museums
and Federal agencies in carrying out their responsibilities,
facilitating and making recommendations on the resolution of disputes
as described further in Sec. 10.17, and compiling a record of
culturally unidentifiable human remains that are in the possession or
control of museums and Federal agencies and recommending actions for
their disposition.
(b) Recommendations. Any recommendation, finding, report, or other
action of the Review Committee is advisory only and not binding on any
person. Any records and findings made by the Review Committee may be
admissible as evidence in actions brought by persons alleging a
violation of the Act.
Sec. 10.17 Dispute resolution.
(a) Formal and informal resolutions. Any person who wishes to
contest actions taken by museums, Federal agencies, Indian tribes, or
Native Hawaiian organizations with respect to the repatriation and
disposition of human remains, funerary objects, sacred objects, or
objects of cultural patrimony is encouraged to do so through informal
negotiations to achieve a fair resolution of the matter. The Review
Committee may aid in this regard as described below. In addition, the
United States District Courts have jurisdiction over any action brought
that alleges a violation of the Act.
(b) Review Committee Role. The Review Committee may facilitate the
informal resolution of disputes relating to these regulations among
interested parties that are not resolved by good faith negotiations.
Review Committee actions may include convening meetings between parties
to disputes, making advisory findings as to contested facts, and making
recommendations to the disputing parties or to the Secretary as to the
proper resolution of disputes consistent with these regulations and the
Act.
Appendix A to Part 10--Sample Summary
The following is a generic sample and should be used as a
guideline for preparation of summaries tailoring the information to
the specific circumstances of each case.
Before November 17, 1993
Chairman or Other Authorized Official
Indian tribe or Native Hawaiian organization
Street
State
Dear Sir/Madame Chair:
I write to inform you of collections held by our museum which
may contain unassociated funerary objects, sacred objects, or
objects of cultural patrimony that are, or are likely to be,
culturally affiliated with your Indian tribe or Native Hawaiian
organization. This notification is required by section 6 of
[[Page 62169]]
the Native American Graves Protection and Repatriation Act.
Our ethnographic collection includes approximately 200 items
specifically identified as being manufactured or used by members of
your Indian tribe or Native Hawaiian organization. These items
represent various categories of material culture, including sea and
land hunting, fishing, tools, household equipment, clothing, travel
and transportation, personal adornment, smoking, toys, and
figurines. The collection includes thirteen objects identified in
our records as ``medicine bags.''
Approximately half of these items were collected by John Doe
during his expedition to your reservation in 1903 and accessioned by
the museum that same year (see Major Museum Publication, no. 65
(1965).
Another 50 of these items were collected by Jane Roe during her
expeditions to your reservation between 1950-1960 and accessioned by
the museum in 1970 (see Major Museum: no. 75 (1975). Accession
information indicates that several of these items were collected
from members of the Able and Baker families.
For the remaining approximately 50 items, which were obtained
from various collectors between 1930 and 1980, additional collection
information is not readily available.
In addition to the above mentioned items, the museum has
approximately 50 ethnographic items obtained from the estate of a
private collector and identified as being collected from the
``northwest portion of the State.''
Our archeological collection includes approximately 1,500 items
recovered from ten archeological sites on your reservation and
another 5,000 items from fifteen sites within the area recognized by
the Indian Claims Commission as being part of your Indian tribe's
aboriginal territory.
Please feel free to contact Fred Poe at (012) 345-6789 regarding
the identification and potential repatriation of unassociated
funerary objects, sacred objects, or objects of cultural patrimony
in this collection that are, or are likely to be, culturally
affiliated with your Indian tribe or Native Hawaiian organization.
You are invited to review our records, catalogues, relevant studies
or other pertinent data for the purpose of determining the
geographic origin, cultural affiliation, and basic facts surrounding
acquisition and accession of these items. We look forward to working
together with you.
Sincerely,
Museum Official
Major Museum
Appendix B to Part 10--Sample Notice of Inventory Completion
The following is an example of a Notice of Inventory Completion
published in the Federal Register.
National Park Service
Notice of Inventory Completion for Native American Human Remains
and Associated Funerary Objects from Hancock County, ME, in the
Control of the National Park Service.
AGENCY: National Park Service, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
Notice is hereby given following provisions of the Native
American Graves Protection and Repatriation Act, 25 U.S.C. 3003(d),
of completion of the inventory of human remains and associated
funerary objects from a site in Hancock County, ME, that are
presently in the control of the National Park Service.
A detailed inventory and assessment of these human remains has
been made by National Park Service curatorial staff, contracted
specialists in physical anthropology and prehistoric archeology, and
representatives of the Penobscot Nation, Aroostook Band of Micmac,
Houlton Band of Maliseet, and the Passamaquoddy Nation, identified
collectively hereafter as the Wabanaki Tribes of Maine.
The partial remains of at least seven individuals (including
five adults, one subadult, and one child) were recovered in 1977
from a single grave at the Fernald Point Site (ME Site 43-24), a
prehistoric shell midden on Mount Desert Island, within the boundary
of Acadia National Park. A bone harpoon head, a modified beaver
tooth, and several animal and fish bone fragments were found
associated with the eight individuals. Radiocarbon assays indicate
the burial site dates between 1035-1155 AD. The human remains and
associated funerary objects have been catalogued as ACAD-5747, 5749,
5750, 5751, 5752, 5783, 5784. The partial remains of an eighth
individual (an elderly male) was also recovered in 1977 from a
second grave at the Fernald Point Site. No associated funerary
objects were recovered with this individual. Radiocarbon assays
indicate the second burial site dates between 480-680 AD. The human
remains have been catalogued as ACAD-5748. The human remains and
associated funerary objects of all nine individuals are currently in
the possession of the University of Maine, Orono, ME.
Inventory of the human remains and associated funerary objects
and review of the accompanying documentation indicates that no known
individuals were identifiable. A representative of the Wabanaki
Tribes of Maine has identified the Acadia National Park area as a
historic gathering place for his people and stated his belief that
there exists a relationship of shared group identity between these
individuals and the Wabanaki Tribes of Maine. The Prehistoric
Subcommittee of the Maine State Historic Preservation Office's
Archaeological Advisory Committee has found it reasonable to trace a
shared group identity from the Late Prehistoric Period (1000-1500
AD) inhabitants of Maine as an undivided whole to the four modern
Indian tribes known collectively as the Wabanaki Tribes of Maine on
the basis of geographic proximity; survivals of stone, ceramic and
perishable material culture skills; and probable linguistic
continuity across the Late Prehistoric/Contact Period boundary. In a
1979 article, Dr. David Sanger, the archeologist who conducted the
1977 excavations at the Fernald Point Site and uncovered the
abovementioned burials, recognizes a relationship between Maine
sites dating to the Ceramic Period (2,000 B.P.-1600 A.D.) and
present-day Algonkian speakers generally known as Abenakis,
including the Micmac, Maliseet, Passamaquoddy, Penboscot, Kennebec,
and Pennacook groups.
Based on the above mentioned information, officials of the
National Park Service have determined that, pursuant to 25 U.S.C.
3001 (2), there is a relationship of shared group identity which can
be reasonably traced between these human remains and associated
funerary objects and the Wabanaki Tribes of Maine.
This notice has been sent to officials of the Wabanaki Tribes of
Maine. Representatives of any other Indian tribe which believes
itself to be culturally affiliated with these human remains and
associated funerary objects should contact Len Bobinchock, Acting
Superintendent, Acadia National Park, P.O. Box 177, Bar Harbor, ME
04609, telephone: (207) 288-0374, before August 31, 1994.
Repatriation of these human remains and associated funerary objects
to the Wabanaki Tribes of Maine may begin after that date if no
additional claimants come forward.
Dated: July 21, 1994
Francis P. McManamon,
Departmental Consulting Archeologist,
Chief, Archeological Assistance Division.
[Published: August 1, 1994]
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-29418 Filed 12-1-95; 8:45 am]
BILLING CODE 4310-70-F
