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Title 43:
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PART 10—NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS

Section Contents

Subpart
A—Introduction
§ 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
archaeological 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.
§ 10.13   Future
applicability.

Subpart
D—General
§ 10.14   Lineal
descent and cultural affiliation.
§ 10.15   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
.

Source:   60 FR 62158, Dec. 4, 1995,
unless otherwise noted.

Subpart A—Introduction

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§ 10.1   Purpose and applicability.

top

(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 particular 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.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1,
1997]

§ 10.2   Definitions.

top

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, 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 or discovered 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
make available a list of Indian tribes and Indian tribal officials for the
purposes of carrying out this statute through the Manager, National NAGPRA
Program.

(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 NaKupuna '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) Manager, National NAGPRA Program means the official of the
Department of the Interior designated by the Secretary as responsible for
administration of matters relating to this part. Communications to the
Manager, National NAGPRA Program, should be addressed to: Manager,
National NAGPRA Program, National Park Service (2253), 1849 C Street NW.,
Washington, DC 20240.

(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 the 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
gravesite. For purposes of completing the summary requirements in §10.8
and the inventory requirements of §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 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 do 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 §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.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 70
FR 57179, Sept. 30, 2005; 71 FR 16501, Apr. 3, 2006]

Subpart B—Human Remains, Funerary Objects, Sacred Objects, or Objects
of Cultural Patrimony From Federal or Tribal Lands

top

§ 10.3   Intentional archaeological
excavations.

top

(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 §10.5;

(3) The disposition of the objects is consistent with their custody as
described in §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 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 §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 §10.5.

(2) Following consultation, the Federal agency official must complete a
written plan of action (described in §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 §10.3 (c)(2) and §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 §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 §10.6.

§ 10.4   Inadvertent discoveries.

top

(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 §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
§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 §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 §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 §10.3 (b)(1) of these regulations. The disposition of
all human remains, funerary objects, sacred objects, or objects of
cultural patrimony must be carried out following §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 §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 cultural patrimony must be excavated or removed, follow the
requirements and procedures in §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 §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
§10.4 (b) of these regulations.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1,
1997]

§ 10.5   Consultation.

top

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 §§10.3 and
10.4, take appropriate steps to identify the lineal descendant, Indian
tribe, or Native Hawaiian organization entitled to custody of the human
remains, funerary objects, sacred objects, or objects of cultural
patrimony pursuant to §10.6 and §10.14. The Federal agency official shall
notify in writing:

(i) Any known lineal descendants of the 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 §10.6 (a) with intentionally
excavated or inadvertently discovered human remains, funerary objects,
sacred objects, or objects of cultural patrimony:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1,
1997]

§ 10.6   Custody.

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(a) Priority of custody. This section carries out section 3 (a)
of the Act, subject to the limitations of §10.15, regarding the custody 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. 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
§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
excavated intentionally or 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
§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 excavated
intentionally or 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 excavated intentionally or 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 §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 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 Manager, National NAGPRA Program.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71
FR 16501, Apr. 3, 2006]

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

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Subpart C—Human Remains, Funerary Objects, Sacred Objects, or Objects
of Cultural Patrimony in Museums and Federal Collections

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§ 10.8   Summaries.

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(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:

(i) From whose tribal lands unassociated funerary objects, sacred
objects, or objects of cultural patrimony originated;

(ii) That are, or are likely to be, culturally affiliated with
unassociated funerary objects, sacred objects, or objects of cultural
patrimony; and

(iii) 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 Manager, National NAGPRA
Program. 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 manner to be
agreed upon by all parties. The Review committee also 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 funerary objects, 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 §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 §10.10 (a), must not proceed prior to submission of
a notice of intent to repatriate to the Manager, National NAGPRA Program,
and publication of the notice of intent to repatriate in theFederal 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 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 Manager, National NAGPRA Program must
publish the notice of intent to repatriate in theFederal
Register.Repatriation may not occur until at least thirty (30) days
after publication of the notice of intent to repatriate in theFederal Register.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71
FR 16501, Apr. 3, 2006]

§ 10.9   Inventories.

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(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 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 §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 and associated funerary
objects, including all information required under §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 Manager, National NAGPRA Program. 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 Manager, National NAGPRA Program.

(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 Manager, National NAGPRA Program notice of this result and a
copy of the list of culturally unidentifiable human remains and associated
funerary objects. The Manager, National NAGPRA Program 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 §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 §10.11.

(7) The Manager, National NAGPRA Program must publish notices of
inventory completion received from museums and Federal agencies in theFederal 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.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71
FR 16501, Apr. 3, 2006]

§ 10.10   Repatriation.

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(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 §10.2 (d)(2)(ii),
(d)(3), or (d)(4); and

(ii) The cultural affiliation of the object is established:

(A) Through the summary, consultation, and notification procedures in
§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 §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 §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 paragraph (a)(1) of this section from a lineal
descendent or 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 theFederal Registeras described in §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 §10.2 (d)(1) or (d)(2)(i); and

(ii) The affiliation of the deceased individual to known lineal
descendant, present day Indian tribe, or Native Hawaiian organization:

(A) Has been reasonably traced through the procedures outlined in §10.9
and §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 §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 §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 theFederal Registeras described
in §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 §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 Manager, National NAGPRA Program 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.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997; 71
FR 16501, Apr. 3, 2006]

§ 10.11   Disposition of culturally unidentifiable
human remains. [Reserved]

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§ 10.12   Civil penalties.

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(a) The Secretary's authority to assess civil penalties. The
Secretary is authorized by section 9 of the Act to assess civil penalties
on any museum that fails to comply with the requirements of the Act. The
Assistant Secretary for Fish and Wildlife and Parks may act on behalf of
the Secretary.

(b) Definition of “failure to comply.” (1) Your museum has
failed to comply with the requirements of the Act if it:

(i) After November 16, 1990, sells or otherwise transfers human
remains, funerary objects, sacred objects, or objects of cultural
patrimony contrary to provisions of the Act, including, but not limited
to, an unlawful sale or transfer to any individual or institution that is
not required to comply with the Act; or

(ii) After November 16, 1993, has not completed summaries as required
by the Act; or

(iii) After November 16, 1995, or the date specified in an extension
issued by the Secretary, whichever is later, has not completed inventories
as required by the Act; or

(iv) After May 16, 1996, or 6 months after completion of an inventory
under an extension issued by the Secretary, whichever is later, has not
notified culturally affiliated Indian tribes and Native Hawaiian
organizations; or

(v) Refuses, absent any of the exemptions specified in §10.10(c) of
this part, to repatriate human remains, funerary object, sacred object, or
object of cultural patrimony to a lineal descendant or culturally
affiliated Indian tribe or Native Hawaiian; or

(vi) Repatriates a human remains, funerary object, sacred object, or
object of cultural patrimony before publishing the required notice in the
Federal Register;

(vii) Does not consult with lineal descendants, Indian tribe officials,
and traditional religious leaders as required; or

(viii) Does not 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.

(2) Each instance of failure to comply will constitute a separate
violation.

(c) How to Notify the Secretary of a Failure to Comply. Any
person may bring an allegation of failure to comply to the attention of
the Secretary. Allegations must be in writing, and should include
documentation identifying the provision of the Act with which there has
been a failure to comply and supporting facts of the alleged failure to
comply. Documentation should include evidence that the museum has
possession or control of Native American cultural items, receives Federal
funds, and has failed to comply with specific provisions of the Act.
Written allegations should be sent to the attention of the Director,
National Park Service, 1849 C Street, NW, Washington, D.C. 20240.

(d) Steps the Secretary may take upon receiving such an allegation.
(1) The Secretary must acknowledge receipt of the allegation in
writing.

(2) The Secretary also may:

(i) Compile and review information relevant to the alleged failure to
comply. The Secretary may request additional information, such as
declarations and relevant papers, books, and documents, from the person
making the allegation, the museum, and other parties;

(ii) Identify the specific provisions of the Act with which you have
allegedly failed to comply; and

(iii) Determine if the institution of a civil penalty action is an
appropriate remedy.

(3) The Secretary must provide written notification to the person
making the allegation and the museum if the review of the evidence does
not show a failure comply.

(e) How the Secretary notifies you of a failure to comply. (1)
If the allegations are verified, the Secretary must serve you with a
written notice of failure to comply either by personal delivery or by
registered or certified mail (return receipt requested). The notice of
failure to comply must include:

(i) A concise statement of the facts believed to show a failure to
comply;

(ii) A specific reference to the provisions of the Act and/or these
regulations with which you allegedly have not complied; and

(iii) Notification of the right to request an informal discussion with
the Secretary or a designee, to request a hearing, as provided below, or
to await the Secretary's notice of assessment. The notice of failure to
comply also must inform you of your right to seek judicial review of any
final administrative decision assessing a civil penalty.

(2) With your consent, the Secretary may combine the notice of failure
to comply with the notice of assessment described in paragraph (h) of this
section.

(3) The Secretary also must send a copy of the notice of failure to
comply to:

(i) Any lineal descendant of a known Native American individual whose
human remains, funerary objects, or sacred objects are in question;
and

(ii) Any Indian tribes or 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 in question.

(f) Actions you may take upon receipt of a notice of failure to
comply. If you are served with a notice of failure to comply, you
may:

(1) Seek informal discussions with the Secretary;

(2) Request a hearing. Figure 1 outlines the civil penalty hearing and
appeal process. Where the Secretary has issued a combined notice of
failure to comply and notice of assessment, the hearing and appeal
processes will also be combined.

(3) Take no action and await the Secretary's notice of
assessment.

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(g) How the Secretary determines the penalty amount. (1) The
penalty amount must be determined on the record;

(2) The penalty amount must be .25 percent of your museum's annual
budget, or $5,000, whichever is less, and such additional sum as the
Secretary may determine is appropriate after taking into account:

(i) The archeological, historical, or commercial value of the human
remains, funerary object, sacred object, or object of cultural patrimony
involved; and

(ii) The damages suffered, both economic and non-economic, by the
aggrieved party or parties including, but not limited to, expenditures by
the aggrieved party to compel the museum to comply with the Act; and

(iii) The number of violations that have occurred at your museum.

(3) An additional penalty of up to $1,000 per day after the date that
the final administrative decision takes effect may be assessed if your
museum continues to violate the Act.

(4) The Secretary may reduce the penalty amount if there is:

(i) A determination that you did not willfully fail to comply; or

(ii) An agreement by you to mitigate the violation, including, but not
limited to, payment of restitution to the aggrieved party or parties;
or

(iii) A determination that you are unable to pay, provided that this
factor may not apply if you have been previously found to have failed to
comply with these regulations; or,

(iv) A determination that the penalty constitutes excessive punishment
under the circumstances.

(h) How the Secretary assesses the penalty. (1) The Secretary
considers all available information, including information provided during
the process of assessing civil penalties or furnished upon further request
by the Secretary.

(2) The Secretary may assess the civil penalty upon completing informal
discussions or when the period for requesting a hearing expires, whichever
is later.

(3) The Secretary notifies you in writing of the penalty amount
assessed by serving a written notice of assessment, either in person or by
registered or certified mail (return receipt requested). The notice of
assessment includes:

(i) The basis for determining the penalty amount assessed and/or any
offer to mitigate or remit the penalty; and

(ii) Notification of the right to request a hearing, including the
procedures to follow, and to seek judicial review of any final
administrative decision that assesses a civil penalty.

(i) Actions that you may take upon receipt of a notice of
assessment. If you are served with a notice of assessment, you may do
one of the following:

(1) Accept in writing or by payment of the proposed penalty, or any
mitigation or remission offered in the notice of assessment. If you accept
the proposed penalty, mitigation, or remission, you waive the right to
request a hearing.

(2) Seek informal discussions with the Secretary.

(3) File a petition for relief. You may file a petition for relief with
the Secretary within 45 calendar days of receiving the notice of
assessment. Your petition for relief may request the Secretary to assess
no penalty or to reduce the amount. Your petition must be in writing and
signed by an official authorized to sign such documents. Your petition
must set forth in full the legal or factual basis for the requested
relief.

(4) Request a hearing. Figure 1 outlines the civil penalty hearing and
appeal process.

(i) In addition to the documentation required in paragraph (g) of this
section, your request must include a copy of the notice of assessment and
must identify the basis for challenging the assessment.

(ii) In this hearing, the amount of the civil penalty assessed must be
determined in accordance with paragraph (h) of this section, and will not
be limited to the amount assessed by the Secretary or any offer of
mitigation or remission made by the Secretary.

(j) How you request a hearing. (1) You may file a written, dated
request for a hearing on a notice of failure to comply or notice of
assessment with the Hearings Division, Office of Hearings and Appeals,
U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, VA
22203-1923. You must enclose a copy of the notice of failure to comply or
the notice of assessment. Your request must state the relief sought, the
basis for challenging the facts used as the basis for determining the
failure to comply or fixing the assessment, and your preference of the
place and date for a hearing. You must serve a copy of the request on the
Solicitor of the Department of the Interior personally or by registered or
certified mail (return receipt requested) at the address specified in the
notice of failure to comply or notice of assessment. Hearings must take
place following procedures set forth in 43 CFR part 4, subparts A and
B.

(2) Your failure to file a written request for a hearing within 45 days
of the date of service of a notice of failure to comply or notice of
assessment waives your right to a hearing.

(3) Upon receiving a request for a hearing, the Hearings Division
assigns an administrative law judge to the case, gives notice of
assignment promptly to the parties, and files all pleadings, papers, and
other documents in the proceeding directly with the administrative law
judge, with copies served on the opposing party.

(4) Subject to the provisions of 43 CFR 1.3, you may appear by
representative or by counsel, and may participate fully in the
proceedings. If you fail to appear and the administrative law judge
determines that this failure is without good cause, the administrative law
judge may, in his/her discretion, determine that this failure waives your
right to a hearing and consent to the making of a decision on the
record.

(5) Departmental counsel, designated by the Solicitor of the Department
of the Interior, represents the Secretary in the proceedings. Upon notice
to the Secretary of the assignment of an administrative law judge to the
case, this counsel must enter his/her appearance on behalf of the
Secretary and must file all petitions and correspondence exchanges by the
Secretary and the respondent that become part of the hearing record.
Thereafter, you must serve all documents for the Secretary on his/her
counsel.

(6) Hearing administration. (i) The administrative law judge has
all powers accorded by law and necessary to preside over the parties and
the proceedings and to make decisions under 5 U.S.C. 554-557.

(ii) The transcript of testimony; the exhibits; and all papers,
documents, and requests filed in the proceedings constitute the record for
decision. The administrative law judge renders a written decision upon the
record, which sets forth his/her findings of fact and conclusions of law,
and the reasons and basis for them.

(iii) Unless you file a notice of appeal described in these
regulations, the administrative law judge's decision constitutes the final
administrative determination of the Secretary in the matter and takes
effect 30 calendar days from this decision.

(k) How you appeal a decision. (1) Either you or the Secretary
may appeal the decision of an administrative law judge by filing a “Notice
of Appeal” with the Interior Board of Indian Appeals, U.S. Department of
the Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954, within 30
calendar days of the date of the administrative law judge's decision. This
notice must be accompanied by proof of service on the administrative law
judge and the opposing party.

(2) To the extent they are not inconsistent with these regulations, the
provisions of the Department of the Interior Hearings and Appeals
Procedures in 43 CFR part 4, subpart D, apply to such appeal proceedings.
The appeal board's decision on the appeal must be in writing and takes
effect as the final administrative determination of the Secretary on the
date that the decision is rendered, unless otherwise specified in the
decision.

(3) You may obtain copies of decisions in civil penalty proceedings
instituted under the Act by sending a request to the Interior Board of
Indian Appeals, Office of Hearings and Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954. Fees for this
service are established by the director of that office.

(l) The final administrative decision. (1) When you have been
served with a notice of assessment and have accepted the penalty as
provided in these regulations, the notice constitutes the final
administrative decision.

(2) When you have been served with a notice of assessment and have not
filed a timely request for a hearing as provided in these regulations, the
notice of assessment constitutes the final administrative decision.

(3) When you have been served with a notice of assessment and have
filed a timely request for a hearing as provided in these regulations, the
decision resulting from the hearing or any applicable administrative
appeal from it constitutes the final administrative decision.

(m) How you pay the penalty. (1) If you are assessed a civil
penalty, you have 45 calendar days from the date of issuance of the final
administrative decision to make full payment of the penalty assessed to
the Secretary, unless you have filed a timely request for appeal with a
court of competent jurisdiction.

(2) If you fail to pay the penalty, the Secretary may request the
Attorney General of the United States to collect the penalty by
instituting a civil action in the U.S. District Court for the district in
which your museum is located. In these actions, the validity and amount of
the penalty is not subject to review by the court.

(3) Assessing a penalty under this section is not a waiver by the
Secretary of the right to pursue other available legal or administrative
remedies.

[68 FR 16360, Apr. 3, 2003, as amended at 70 FR 57179, Sept. 30,
2005]

§ 10.13   Future applicability.

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(a) General. This section sets forth the applicability of the Act to
museums and Federal agencies after expiration of the statutory deadlines
for completion of summaries and inventories.

(b) New holdings or collections.

(1) Any museum or Federal agency that, after completion of the
summaries and inventories as required by §§10.8 and 10.9, receives a new
holding or collection or locates a previously unreported current holding
or collection that may include human remains, funerary objects, sacred
objects or objects of cultural patrimony, must:

(i) Within 6 months of receiving a new holding or collection or
locating a previously unreported current holding or collection, or within
6 months of the effective date of this rule, whichever is later, provide a
summary of the holding or collection as required by §10.8 to any Indian
tribe or Native Hawaiian organization that is, or is likely to be,
affiliated with the collection; and

(ii) Within 2 years of receiving a new holding or collection or
locating a previously unreported current holding or collection, or within
2 years of the effective date of this rule, whichever is later, prepare,
in consultation with any affiliated Indian tribe or Native Hawaiian
organization, an inventory as required by §10.9 of these regulations. 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 under §10.9(f).

(2) Additional pieces or fragments of previously repatriated human
remains, funerary objects, sacred objects and objects of cultural
patrimony may be returned to the appropriate Indian tribe or Native
Hawaiian organization without publication of a notice in theFederal Register,as otherwise required under §§10.8(f) and
10.9(e), if they do not change the number or cultural affiliation of the
cultural items listed in the previous notice.

(3) A museum or Federal agency that receives a new holding or
collection for which a summary or inventory was previously prepared, as
required by §§10.8 or 10.9, may rely upon the previously prepared
documents. The receiving museum or Federal agency must provide a copy of
the previously prepared summary or inventory to all affiliated Indian
tribes or Native Hawaiian organizations, along with notification that the
receiving museum or Federal agency has assumed possession and control of
the holding or collection.

(c) New Indian tribes.

(1) Any museum or Federal agency that has possession or control of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony that are, or are likely to be, culturally affiliated with a
newly Federally recognized Native American tribe, must:

(i) Within 6 months of the publication in theFederal
Registerof the Native American group's placement on the list of Indian
Entities Recognized and Eligible to Receive Services from the United
States Bureau of Indian Affairs, or within 6 months of the effective date
of this rule, whichever is later, provide a summary of the collection as
required by §10.8 to that Indian tribe; and

(ii) Within 2 years of the publication in theFederal
Registerof the Native American group's placement on the list of Indian
Entities Recognized and Eligible to Receive Services from the United
States Bureau of Indian Affairs, or within 2 years of the effective date
of this rule, whichever is later, prepare, in consultation with the newly
recognized culturally affiliated Indian tribe an inventory as required by
§10.9. 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 under
§10.9(f).

(2) The list of Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs is published in
theFederal Registeras required by provisions of the
Federally Recognized Indian Tribe List Act of 1994 [Pub. L. 103–454, 108
Stat. 4791].

(d) New Federal funds. Any museum that has possession or control of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony and receives Federal funds for the first time after expiration
of the statutory deadlines for completion of summaries and inventories
must:

(1) Within 3 years of the date of receipt of Federal funds, or within 3
years of the effective date of this rule, whichever is later, provide a
summary of the collection as required by §10.8 to any Indian tribe or
Native Hawaiian organization that is, or is likely to be, culturally
affiliated with the collections; and

(2) Within 5 years of the date of receipt of Federal funds, or within 5
years of the effective date of this rule, whichever is later, prepare, in
consultation with any affiliated Indian tribe or Native Hawaiian
organization, an inventory as required by §10.9.

(e) Amendment of previous decision.

(1) Any museum or Federal agency that has previously published a notice
in theFederal Registerregarding the intent to repatriate
unassociated funerary objects, sacred objects, and objects of cultural
patrimony under §10.8(f), or the completion of an inventory of Native
American human remains and associated funerary objects as required by
§10.9(e), must publish an amendment to that notice if, based on subsequent
information, the museum or Federal agency revises its decision in a way
that changes the number or cultural affiliation of the cultural items
listed.

(2) Repatriation may not occur until at least 30 days after publication
of the amended notice in theFederal Register.

(f) All actions taken as required by this section must also comply with
all other relevant sections of 43 CFR 10.

[72 FR 13189, Mar. 21, 2007]

Subpart D—General

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§ 10.14   Lineal descent and cultural
affiliation.

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(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

(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.

§ 10.15   Limitations and remedies.

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(a) Failure to claim prior to repatriation. (1) Any person who
fails to make a timely claim prior to the repatriation or disposition 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 in possession thereof
pending resolution of the claim. Any person who is in 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 possession 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.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1,
1997]

§ 10.16   Review committee.

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(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
§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.

§ 10.17   Dispute resolution.

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(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

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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 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

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The following is an example of a Notice of Inventory Completion
published in theFederal Register.

National Park Service

Notice of Inventory Completion for Native American Human Remains and
Associated Funerary Objects from Hancock County, ME, in the Control of the
National Park Service.

AGENCY:National Park Service, Interior.

ACTION:Notice.

Notice is hereby given following provisions of the Native American
Graves Protection and Repatriation Act, 25 U.S.C. 3003(d), of completion
of the inventory of human remains and associated funerary objects from a
site in Hancock County, ME, that are presently in the control of the
National Park Service.

A detailed inventory and assessment of these human remains has been
made by National Park Service curatorial staff, contracted specialists in
physical anthropology and prehistoric archeology, and representatives of
the Penobscot Nation, Aroostook Band of Micmac, Houlton Band of Maliseet,
and the Passamaquoddy Nation, identified collectively hereafter as the
Wabanaki Tribes of Maine.

The partial remains of at least seven individuals (including five
adults, one subadult, and one child) were recovered in 1977 from a single
grave at the Fernald Point Site (ME Site 43–24), a prehistoric shell
midden on Mount Desert Island, within the boundary of Acadia National
Park. A bone harpoon head, a modified beaver tooth, and several animal and
fish bone fragments were found associated with the eight individuals.
Radiocarbon assays indicate the burial site dates between 1035–1155 AD.
The human remains and associated funerary objects have been catalogued as
ACAD–5747, 5749, 5750, 5751, 5752, 5783, 5784. The partial remains of an
eighth individual (an elderly male) was also recovered in 1977 from a
second grave at the Fernald Point Site. No associated funerary objects
were recovered with this individual. Radiocarbon assays indicate the
second burial site dates between 480–680 AD. The human remains have been
catalogued as ACAD–5748. The human remains and associated funerary objects
of all nine individuals are currently in the possession of the University
of Maine, Orono, ME.

Inventory of the human remains and associated funerary objects and
review of the accompanying documentation indicates that no known
individuals were identifiable. A representative of the Wabanaki Tribes of
Maine has identified the Acadia National Park area as a historic gathering
place for his people and stated his belief that there exists a
relationship of shared group identity between these individuals and the
Wabanaki Tribes of Maine. The Prehistoric Subcommittee of the Maine State
Historic Preservation Office's Archaeological Advisory Committee has found
it reasonable to trace a shared group identity from the Late Prehistoric
Period (1000–1500 AD) inhabitants of Maine as an undivided whole to the
four modern Indian tribes known collectively as the Wabanaki Tribes of
Maine on the basis of geographic proximity; survivals of stone, ceramic
and perishable material culture skills; and probable linguistic continuity
across the Late Prehistoric/Contact Period boundary. In a 1979 article,
Dr. David Sanger, the archeologist who conducted the 1977 excavations at
the Fernald Point Site and uncovered the abovementioned burials,
recognizes a relationship between Maine sites dating to the Ceramic Period
(2,000 B.P.–1600 A.D.) and present-day Algonkian speakers generally known
as Abenakis, including the Micmac, Maliseet, Passamaquoddy, Penboscot,
Kennebec, and Pennacook groups.

Based on the above mentioned information, officials of the National
Park Service have determined that, pursuant to 25 U.S.C. 3001 (2), there
is a relationship of shared group identity which can be reasonably traced
between these human remains and associated funerary objects and the
Wabanaki Tribes of Maine.

This notice has been sent to officials of the Wabanaki Tribes of Maine.
Representatives of any other Indian tribe which believes itself to be
culturally affiliated with these human remains and associated funerary
objects should contact Len Bobinchock, Acting Superintendent, Acadia
National Park, P.O. Box 177, Bar Harbor, ME 04609, telephone: (207)
288–0374, before August 31, 1994. Repatriation of these human remains and
associated funerary objects to the Wabanaki Tribes of Maine may begin
after that date if no additional claimants come forward.

Dated: July 21, 1994

Francis P. McManamon,

Departmental Consulting Archeologist,,

Chief, Archeological Assistance Division.

[Published: August 1, 1994]

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