[Federal Register Volume 76, Number 128 (Tuesday, July 5, 2011)]
[Rules and Regulations]
[Pages 39007-39009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16788]



Office of the Secretary of the Interior

43 CFR Part 10

RIN 1024-AD98

Native American Graves Protection and Repatriation Act 
Regulations-- Definition of ``Indian Tribe''

AGENCY: Office of the Secretary, Interior.

ACTION: Interim final rule with request for comments.


SUMMARY: This amendment to the Department's regulations implementing 
the Native American Graves Protection and Repatriation Act (NAGPRA) 
removes the definition of ``Indian tribe,'' because it is inconsistent 
with the statutory definition of that term.

DATES: This rule is effective July 5, 2011. Comments must be received 
by September 6, 2011.

ADDRESSES: You may submit comments, identified by the Regulation 
Identifier Number (RIN) 1024-AD98, by any of the following methods:

--Federal rulemaking portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
--Mail to: Dr. Sherry Hutt, Manager, National NAGPRA Program, National 
Park Service, 1201 Eye Street, NW., (2253), Washington, DC 20005.
--Hand deliver to: Dr. Sherry Hutt, 1201 Eye Street, NW., 8th floor, 
Washington, DC.

FOR FURTHER INFORMATION CONTACT: Dr. Sherry Hutt, Manager, National 
NAGPRA Program, National Park Service, 1201 Eye Street, NW., 8th floor, 
Washington, DC 20005, telephone (202) 354-1479, facsimile (202) 371-



    The Secretary is responsible for implementation of the Native 
American Graves Protection and Repatriation Act, including the issuance 
of appropriate regulations implementing and interpreting its 
provisions. See 25 U.S.C. 3001 et seq.


    The Native American Graves Protection and Repatriation Act (NAGPRA) 
addresses the rights of lineal descendants, Indian Tribes, and Native 
Hawaiian organizations to certain Native American human remains, 
funerary objects, sacred objects, and objects of cultural patrimony. 
NAGPRA defines ``Indian tribe'' as ``any tribe, band, nation, or other 
organized group or community of Indians, including any Alaska Native 
village (as defined in, or established pursuant to, the Alaska Native 
Claims Settlement Act) (43

[[Page 39008]]

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'' (25 U.S.C. 3001(7)).
    The Department of the Interior (Department) published the initial 
rules to implement NAGPRA on December 4, 1995 (60 FR 62158). These 
rules defined ``Indian tribe'' to include, in addition to any Alaska 
Native village, any Alaska Native corporation (43 CFR 10.2(b)(2)).
    From July 2009 to July 2010, at the request of Congress, the 
Government Accountability Office (GAO) conducted a performance audit to 
address the status of NAGPRA implementation among Federal agencies. In 
its report, Native American Graves Protection and Repatriation Act: 
After Almost 20 Years, Key Federal Agencies Still Have Not Fully 
Complied with the Act (Report no. GAO-10-768 (July 2010); GAO Report), 
the GAO recommended, among other things, that the National NAGPRA 
Program, in conjunction with the Department's Office of the Solicitor, 
reassess whether any Alaska Native corporations should be considered as 
``eligible entities for purposes of carrying out NAGPRA. * * *'' (GAO 
Report, at 55).
    The recommendation and analysis in the GAO report have engendered 
significant uncertainty on the part of museums and Federal agencies 
concerning the status of Alaska Native corporations under NAGPRA. The 
Department has received a number of questions including whether Alaska 
Native corporations may assert claims for human remains and other 
cultural items; whether the NAGPRA requirements for consultation with 
Indian Tribes apply to Alaska Native corporations; whether Alaska 
Native corporations are authorized under the law to bring matters to 
the NAGPRA Review Committee; and whether Alaska Native corporations can 
be recipients of grants authorized by NAGPRA.
    To address these questions, and as recommended by GAO, the 
Department's Office of the Solicitor examined the legal basis for the 
existing regulatory provision that included Alaska Native corporations 
as Indian Tribes under the Act. The opinion of the Solicitor's Office 
is posted on the National NAGPRA Program's Web site at http://www.nps.gov/history/nagpra/DOCUMENTS/Solicitors_Memo_ANCSA_03182011.pdf. The Solicitor's Office found that Congress did not import 
the definition of ``Indian tribe'' into NAGPRA verbatim from the Indian 
Self Determination and Education Assistance Act (25 U.S.C. 450b; 
ISDEAA). Whereas the ISDEAA definition includes Alaska Native 
corporations, the NAGPRA definition does not. According to the 
legislative history of NAGPRA, the definition of ``Indian tribe'' in 
the Act was deliberately changed from that in the ISDEAA in order to 
``delete[ ] land owned by any Alaska Native Corporation from being 
considered as `tribal land' '' (136 Cong. Rec. 36,815 (1990)). The 
Solicitor's Office ``therefore strongly recommend[ed] that the 
regulatory definition of `Indian tribe' be changed as soon as feasible 
to conform to the statutory definition.'' This interim final rule 
implements that recommendation by deleting the regulatory definition of 
``Indian tribe.'' The effect of the removal of the definition from the 
regulations is that we will now use only the statutory definition of 
``Indian tribe'' in implementing NAGPRA.

Compliance With Other Laws and Executive Orders

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and has not been reviewed 
by the Office of Management and Budget under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights or 
obligations of their recipients.
    (4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act (RFA)

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, local or Tribal 
government agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act (UMRA)

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or Tribal governments, or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    Under the criteria in Executive Order 12630, this rule does not 
have significant takings implications. A takings implication assessment 
is not required. No taking of personal property will occur as a result 
of this rule.

Federalism (Executive Order 13132)

    Under the criteria in Executive Order 13132, this rule does not 
have sufficient Federalism implications to warrant the preparation of a 
Federalism summary impact statement. A Federalism summary impact 
statement is not required.

Consultation With Indian Tribes (Executive Order 13175)

    Under the criteria in Executive Order 13175 we have evaluated this 
rule and determined that it has no potential effects on Federally 
recognized Indian Tribes.

Paperwork Reduction Act (PRA)

    This regulation does not contain information collection 
requirements, and a submission under the PRA is not required.

National Environmental Policy Act (NEPA)

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under NEPA is not required because the rule is covered by a categorical 
exclusion under 43 CFR 46.210(i), ``Policies, directives, regulations, 
and guidelines: that are of an administrative, financial, legal, 
technical, or procedural nature; or whose environmental effects are too

[[Page 39009]]

broad, speculative, or conjectural to lend themselves to meaningful 
analysis and will later be subject to the NEPA process, either 
collectively or case-by-case.'' We have also determined that the rule 
does not involve any of the extraordinary circumstances listed in 43 
CFR 46.215 that would require further analysis under NEPA.

Information Quality Act (IQA)

    In developing this rule, we did not conduct or use a study, 
experiment, or survey requiring peer review under the Information 
Quality Act (Pub. L. 105-554).

Effects on the Energy Supply (Executive Order 13211)

    The rule is not a significant energy action under the definition in 
Executive Order 13211. A statement of Energy Effects is not required.

Determination To Issue an Interim Final Rule With Immediate Effective 

    The Department is publishing this rule as an interim final rule 
with request for comment, but without prior notice and opportunity for 
comment, as allowed by the Administrative Procedure Act (5 U.S.C. 
553(b)(3)(B)). Under this provision, an agency may issue a regulatory 
action without notice and an opportunity for comment when the agency, 
for good cause, finds that the notice and comment procedures are 
``impracticable, unnecessary or contrary to the public interest.'' The 
Department for good cause finds that prior notice and comment are 
unnecessary because this rule amends the existing rule to conform with 
the Act. See, e.g., Komjathy v. National Transp. Safety Bd., 832 F.2d 
1294, 1296-1297 (DC Cir. 1987), and Gray Panthers Advocacy Committee, 
et al. v. Sullivan, 936 F.2d 1284 (DC Cir. 1991). Under 5 U.S.C. 
553(d)(3), the Department for good cause finds that this rule should be 
made effective upon publication in the Federal Register, rather than 
after the usual 30-day period. This finding is based on the uncertainty 
caused by the GAO report described above and the need to ensure 
compliance with the requirements of the Act.
    The Department is requesting comments on this interim final rule. 
The Department will review any comments received and anticipates 
responses to comments in either a new final rule or in a future 
proposed rulemaking also addressing other substantive changes to the 
regulations found at 43 CFR part 10.

Drafting Information

    This interim final rule was prepared by staff of the National 
NAGPRA Program and of the Office of the Solicitor, Divisions of Parks 
and Wildlife and Indian Affairs.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this interim final rule to the address noted at the 
beginning of this rulemaking.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment including your personal identifying 
information may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 43 CFR Part 10

    Administrative practice and procedure, Graves, Hawaiian Natives, 
Historic preservation, Indians--claims, Museums, Reporting and 
recordkeeping requirements, Repatriation.

    In consideration of the foregoing, the Department of the Interior 
amends 43 CFR part 10 as follows:


1. The authority for part 10 continues to read as follows:

    Authority: 25 U.S.C. 3001 et seq.

Sec.  10.2  [Removed and Reserved]

2. In Sec.  10.2, remove and reserve paragraph (b)(2).

    Dated: June 7, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-16788 Filed 7-1-11; 8:45 am]