[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]]

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Part II





Department of the Interior





_______________________________________________________________________



Office of the Secretary



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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.

-----------------------------------------------------------------------

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.

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    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