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Proposed Rule2022-22376

Native American Graves Protection and Repatriation Act Systematic Process for Disposition and Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony

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Published

October 18, 2022

Issuing agencies

Interior Department

Abstract

The Department of the Interior proposes to revise regulations to improve implementation of the Native American Graves Protection and Repatriation Act of 1990. These proposed regulations would clarify and improve upon the systematic process for the disposition and repatriation of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony. The proposed changes would provide a step-by-step roadmap for museums and Federal agencies to comply with requirements within specific timelines to facilitate the required disposition and repatriation. The proposed changes would describe the processes in accessible language with clear timelines and terms, reduce ambiguity, and improve efficiency in meeting the requirements. In addition, the proposed changes emphasize consultation in every step and defer to the customs, traditions, and Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations.

Full Text

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[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Proposed Rules]
[Pages 63202-63260]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22376]

[[Page 63201]]

Vol. 87

Tuesday,

No. 200

October 18, 2022

Part III

Department of the Interior

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43 CFR Part 10

Native American Graves Protection and Repatriation Act Systematic
Process for Disposition and Repatriation of Native American Human
Remains, Funerary Objects, Sacred Objects, and Objects of Cultural
Patrimony; Proposed Rule

Federal Register / Vol. 87 , No. 200 / Tuesday, October 18, 2022 /
Proposed Rules

[[Page 63202]]

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

[NPS-WASO-NAGPRA-33190; PPWOCRADN0-PCU00RP14.550000]
RIN 1024-AE19

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: The Department of the Interior proposes to revise regulations
to improve implementation of the Native American Graves Protection and
Repatriation Act of 1990. These proposed regulations would clarify and
improve upon the systematic process for the disposition and
repatriation of Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony. The proposed changes would
provide a step-by-step roadmap for museums and Federal agencies to
comply with requirements within specific timelines to facilitate the
required disposition and repatriation. The proposed changes would
describe the processes in accessible language with clear timelines and
terms, reduce ambiguity, and improve efficiency in meeting the
requirements. In addition, the proposed changes emphasize consultation
in every step and defer to the customs, traditions, and Native American
traditional knowledge of lineal descendants, Indian Tribes, and Native
Hawaiian organizations.

DATES: Comments on the proposed rule must be received by 11:59 p.m. EDT
on January 17, 2023.
Federal Advisory Committee Act Meetings: The Native American Graves
Protection and Repatriation Review Committee (Review Committee) will
meet virtually during the comment period. The National Park Service
will announce the exact dates and times of the Review Committee
meetings in the Federal Register, once scheduled. These meetings will
be open to the public and there will be time for public comment.
Tribal Consultation Sessions: The Department of the Interior will
conduct consultation sessions with Indian Tribes virtually during the
comment period. The Department of the Interior will announce the exact
meeting dates and times of the consultation sessions, once scheduled,
on <a href="https://www.doi.gov/priorities/tribal-consultation/upcoming-tribal-consultations">https://www.doi.gov/priorities/tribal-consultation/upcoming-tribal-consultations</a> and by letter to Tribal leaders.
Native Hawaiian Consultation Sessions: The Department of the
Interior will conduct consultation sessions with the Native Hawaiian
Community virtually during the comment period. The Department of the
Interior's Office of Native Hawaiian Relations will invite the Native
Hawaiian Community to participate and provide the exact meeting dates
and times of the consultation sessions, once scheduled.
Public Listening Sessions: The Department of the Interior will host
virtual listening sessions during the comment period. The National Park
Service will announce the exact dates and times of the listening
sessions, once scheduled, on <a href="https://www.nps.gov/orgs/1335/events.htm">https://www.nps.gov/orgs/1335/events.htm</a>.
These meetings will be open to the public.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to decide
concerning the collection of information contained in this proposed
rule between 30 and 60 days after publication of this proposed rule in
the Federal Register. Therefore, comments should be submitted to OMB by
December 19, 2022.

ADDRESSES: You may submit written comments, identified by the
Regulation Identifier Number (RIN) 1024-AE19, by any one of the
following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail to: National NAGPRA Program, National Park Service,
1849 C Street NW, Mail Stop 7360, Washington DC 20240. Attn: Melanie
O'Brien, Manager NAGPRA Rule Comments.
Instructions: All submissions received must include the words
``National Park Service'' or ``NPS'' and the RIN (1024-AE19) for this
rulemaking. Comments received may be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information provided.
Written comments will not be accepted by fax, email, or in any way
other than those specified above. The NPS will not accept bulk comments
in any format (hard copy or electronic) submitted on behalf of others.
Oral Comments: Register for opportunities to make oral comments at:
<a href="https://www.nps.gov/orgs/1335/events.htm">https://www.nps.gov/orgs/1335/events.htm</a>. The consultation sessions
listed above are for federally recognized Indian Tribes and for
representatives of the Native Hawaiian Community. All oral comments by
other members of the public must be made during specified sessions of
the Review Committee meetings or public listening sessions. Oral
comments will be recorded and submitted for the record and oral
commenters should include a written copy of their statement prior to
the public meeting. Time for oral comments may be limited.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements should be
submitted by the date specified above in DATES to <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function. Please provide a copy of
your comments to the NPS Information Collection Clearance Officer
(ADIR-ICCO), 12201 Sunrise Valley Drive, Reston, VA 20191. Please
include ``1024-AE19'' in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Melanie O'Brien, National NAGPRA
Program, National Park Service, (202) 354-2201,
<a href="/cdn-cgi/l/email-protection#771a121b16191e1228185015051e12193719070459101801">melanie_o'<span class="__cf_email__" data-cfemail="2240504b474c624c52510c454d54">[email&#160;protected]</span></a>. Questions regarding the NPS's information
collection request may be submitted to Phadrea Ponds, NPS Information
Collection Clearance Officer, <a href="/cdn-cgi/l/email-protection#582830393c2a3d39072837363c2b1836282b763f372e"><span class="__cf_email__" data-cfemail="47372f26233522261837282923340729373469202831">[email&#160;protected]</span></a>. Please include
``1024-AE19'' in the subject line of your email request.

SUPPLEMENTARY INFORMATION:
I. Background
II. Previous Federal Actions
III. Development of the Proposed Rule
A. Cultural Affiliation
B. Consultation
C. Discovery on Federal or Tribal Lands
D. Comprehensive Agreements
E. Control
F. Funerary Objects
G. Stay of Repatriation for Scientific Study
H. Summaries
I. Acknowledged and Adjudicated Aboriginal Land
J. Federal Lands and Boarding Schools
IV. Overview of Major Proposed Changes
V. Section-by-Section Summary of Proposed Changes
A. Authority
B. Section 10.1 Introduction
C. Section 10.2 Definitions for This Part
D. Section 10.3 Cultural and Geographical Affiliation
E. Section 10.4 General
F. Section 10.5 Discovery
G. Section 10.6 Excavation
H. Section 10.7 Disposition
I. Section 10.8 General
J. Section 10.9 Repatriation of Unassociated Funerary Objects,
Sacred Objects, and Objects of Cultural Patrimony

[[Page 63203]]

K. Section 10.10 Repatriation of Human Remains and Associated
Funerary Objects
L. Section 10.11 Civil Penalties
M. Section 10.12 Review Committee
VI. Public Engagement and Request for Comments
VII. Compliance With Other Laws, Executive Orders and Department
Policy

I. Background

The Native American Graves Protection and Repatriation Act of 1990
(NAGPRA or Act) (25 U.S.C. 3001 et seq.) requires the disposition and
repatriation of Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony to lineal descendants,
Indian Tribes, and Native Hawaiian organizations (NHOs). The Act
governs the disposition of human remains or cultural items removed from
Federal or Tribal lands (25 U.S.C. 3002); requires the inventory of
human remains and associated funerary objects in holdings or
collections (25 U.S.C. 3003); requires a summary of unassociated
funerary objects, sacred objects, and objects of cultural patrimony in
holdings or collections (25 U.S.C. 3004); governs the repatriation of
human remains or cultural items in holdings or collections (25 U.S.C.
3005); creates a Federal advisory committee to monitor and review the
inventory and identification process and repatriation activities (25
U.S.C. 3006); and authorizes civil penalties for museums that fail to
comply with the Act (25 U.S.C. 3007).

II. Previous Federal Actions

The Secretary of the Interior (Secretary) is responsible for
implementation of the Act, including the issuance of regulations
implementing and interpreting its provisions (25 U.S.C. 3011). The
regulations are codified at 43 CFR part 10. The Department of the
Interior (Department) published the initial rule to implement NAGPRA in
1995 at 60 FR 62134 (December 4, 1995). Subsequently, the Department
published additional rules concerning:
<bullet> Civil penalties, at 68 FR 16354 (April 3, 2003);
<bullet> Future applicability, at 72 FR 13184 (March 21, 2007);
<bullet> Culturally unidentifiable human remains, at 75 FR 12378
(March 15, 2010);
<bullet> Technical amendments, at 78 FR 27078 (May 9, 2013);
<bullet> The definition of ``Indian tribe,'' at 79 FR 33482 (June
11, 2014); and
<bullet> Disposition of unclaimed cultural items, at 80 FR 68465
(November 5, 2015).
The Department also publishes annual adjustments to civil penalties
for inflation under the Federal Civil Penalties Inflation Adjustment
Act Improvements Act of 2015.

III. Development of the Proposed Rule

As part of the Department's regulatory review in accordance with
the Regulatory Flexibility Act and E.O. 13563, the Department regularly
seeks public input on how we may best achieve regulatory ends. Over the
past 12 years, parties affected by the definitions and procedures
established in 43 CFR part 10 have commented, in various forums, that
some of the regulatory provisions should be amended to improve
implementation of the Act.
The following paragraphs detail the degree of consultation,
coordination, and collaboration in this review, and the nature of
public comments that the Department received from lineal descendants,
Indian Tribes, NHOs, Federal agencies, museums, national museum and
scientific organizations, Indian Tribal historic preservation
organizations, the Review Committee, and interested members of the
public.
From March to July of 2011, the Department consulted with Indian
Tribes, NHOs, the Review Committee, Federal agencies, and the public on
full revisions to the regulations implementing the Act. This effort
resulted from the Department's publication of a final rule for the
disposition of culturally unidentifiable human remains in March of 2010
(75 FR 12378) which solicited comments on the final rule. Many of those
comments requested broader changes to the entire regulatory process. In
April 2012 (77 FR 12378), the Department published a proposed rule to
revise the regulations for accuracy and consistency based on some of
those comments. Additional comments on that proposed rule requested
changes that went beyond the scope of accuracy and consistency.
Since 2012, the Department has heard repeatedly from Indian Tribes,
NHOs, museums, and Federal agencies on the implementation of the Act
through the regulations. From 2012 to 2019 at 21 meetings of the Review
Committee, public commenters have highlighted concerns with the
regulations or challenges in implementing its procedures. The Review
Committee has heard frequently that the regulations themselves pose
barriers to successful and expedient repatriation.
As a result of previous consultation, public comment, and input
from the Review Committee, the Department developed a draft text of
regulatory revisions and on July 8, 2021, provided Indian Tribes and
NHOs with an invitation to consult on the draft text. Along with the
draft text, the Department provided a summary of the 2011 consultation
with Indian Tribes and NHOs and how the draft text was responsive to
that input. The Department hosted consultation sessions with Indian
Tribes on August 9, 13, and 16, 2021, and with NHOs on August 17, 2021.
In addition, the Department accepted written input until September 30,
2021. In total, we received 71 individual comment letters, which when
combined with oral comments from consultation sessions, yielded over
700 specific comments on sections of the draft text.
The Department reviewed each comment provided during consultation
and in writing and, wherever possible, adjusted the proposed
regulations to address them. In a separate document, the Department has
provided a summary of each comment and specific detailed responses. An
overview of the major comments received is provided here, and specific
adjustments made to the proposed regulations in response to comments
are noted throughout Part V. Section-by-Section Summary of Proposed
Changes.

A. Cultural Affiliation

We received a total of 179 comments on the definitions in the draft
text of ``cultural affiliation'' and ``geographical affiliation'' and
on the section for establishing cultural affiliation. Some of these
comments requested an alternative process be developed utilizing the
Secretary and the Review Committee to facilitate repatriation of human
remains currently labeled as ``culturally unidentifiable.'' These same
comments requested we strike most of the section on cultural
affiliation, citing to the language in the Act (25 U.S.C. 3003(d)(2)(C)
and 3005(a)(4)). Most comments focused on clarifying that one type of
information was sufficient for finding cultural affiliation, especially
geographic information. Some comments requested prioritizing the list
of information or giving more weight to certain lines of information.
Several comments suggested adopting language from the California
statute on deference to traditional Native American knowledge as expert
opinion. We received many supportive comments on the addition of
multiple cultural affiliations and closest cultural affiliation.
In response, the Department proposes to define a new term,
``affiliation,'' in the proposed regulations and to combine the process
for identifying

[[Page 63204]]

cultural and geographical affiliation into a single section. The
Department also proposes to define Native American traditional
knowledge which is referred to throughout the proposed revision in
identifying affiliation and cultural items and in conducting
consultation. In response to several comments, the Department
considered how an alternative process might work, considering the legal
limitations on the Secretary and the Review Committee under the Act.
The roles of the Secretary and the Review Committee are advisory only
in this part of the repatriation process, and an alternative process
limited by that role seems overly complicated and intrusive rather than
helpful or expeditious.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part and D. Section 10.3 Cultural and
Geographical affiliation.

B. Consultation

We received a total of 115 comments on the term ``consultation''
and the related regulatory provisions. Nearly all comments appreciated
the definition, but some comments suggested aligning it with
definitions found in 36 CFR part 800, Executive Order 13175, or the
U.N. Declaration on the Rights of Indigenous Peoples. Some comments
requested the definition make clear consultation is more than a
procedural step and that consultation must be a meaningful, responsive,
and accountable process. Several comments questioned the requirement
for Indian Tribes and NHOs to make written requests to consult.
In response, the Department proposes to define ``consultation'' to
seek consensus and to require a record of consultation that explains,
if applicable, why consensus or agreement could not be achieved. The
requirement for a written request to consult (which can include email)
is necessary to establish a required timeline for responding to a
request.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part, Plan of Action in E. Section
10.4 General, and Require that Consultation Seek Consensus, in J.
Section 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony and K. Section 10.10
Repatriation of human remains and associated funerary objects.

C. Discovery on Federal or Tribal Lands

We received more than 100 comments on the draft text for
discoveries on Federal or Tribal lands. Most of the comments were
directed at two issues--(1) notification or consultation with Indian
Tribes or NHOs when a discovery occurs, and (2) the timelines for
action by the appropriate official after a discovery. The comments
recommended that the requirements of the existing regulations at Sec.
10.4 be reinstated, specifically, immediate telephone notification and
written confirmation by the person who makes the discovery. Many
comments expressed concern over the draft text paragraph on evaluating
the potential for an excavation.
In response, the Department proposes to require written
documentation (which can include email but not text messages) of a
discovery within 24 hours. The Department proposes additional timelines
in this section to ensure adequate time for consultation, a plan of
action, and securing, protecting, monitoring, or, if required,
excavation of the discovery.
See Part V. Section-by-Section Summary of Proposed Changes, F.
Section 10.5 Discovery.

D. Comprehensive Agreements

We received 66 comments on the draft text on comprehensive
agreements. The majority of comments requested plans of action be
reinstated, and many comments remarked on the utility of a plan of
action in responding to discoveries or excavations and promoting
consultation and coordination between land managers and Indian Tribes.
A few comments requested changes to provide for immediate reburial of
human remains or cultural items without any procedural requirements
that might delay a reburial. A few comments requested tribal preference
be incorporated into both the plan of action and comprehensive
agreements.
In response, the Department proposes to move the requirement for a
plan of action in the existing regulations at Sec. 10.5 to the
beginning of the subpart, and provide the requirements, in three
separate steps, for a required plan of action before a planned
activity, including an excavation, or after a discovery.
See Part V. Section-by-Section Summary of Proposed Changes, E.
Section 10.4 General and references in F. Section 10.5 Discovery and G.
Section 10.6 Excavation.

E. Control

We received a total of 68 comments on the term ``control'' as
defined in the draft text. Many comments requested it be replaced with
the statutory term ``possession or control.'' Other comments requested
removing the use of ``legal interest'' from the definition, as the Act
does not recognize a museum or Federal agency has a lawful interest in
human remains or cultural items other than the ``right of possession.''
A few comments suggested museums and Federal agencies should be jointly
and severally liable for compliance with NAGPRA's inventory, summary,
and repatriation obligations. The same comments requested the removal
of the new term ``custody.''
In response, the Department proposes to define the term as
``possession or control'' as used in the Act. Further, the Department
has added clarifications to address how the Act did not intend for this
term to confer any legal rights upon a Federal agency or museum, but
instead act as an element of applicability of the Act's repatriation
provisions. The Department also proposes other regulatory revisions to
require Federal agencies and museums to share information and increase
efforts to complete inventories, summaries, and repatriation of human
remains and cultural items under loan or repository agreements to other
entities.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part, and I. Section 10.8 General.

F. Funerary Object

We received 64 comments on the definitions of ``funerary object,''
``associated funerary object,'' and ``unassociated funerary object.''
Many comments requested revisions to require consultation and include
the authority of Indian Tribes and NHOs in the definition.
In response, the Department proposes to clarify long-standing
confusion over the distinction between associated and unassociated
funerary objects. For both associated and unassociated funerary
objects, broad categorical identifications, including everything from a
burial site or specific area, may meet these definitions depending on
the information available and the results of consultation.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part.

G. Stay of Repatriation for a Scientific Study

We received 55 comments on the draft text carrying out the
provision of the Act if human remains or cultural items are
indispensable for completion of a specific scientific study the outcome
of which would be of major benefit to the United States (25 U.S.C.
3005(b)). Half of the comments recommended the provisions should only
apply to human

[[Page 63205]]

remains and associated funerary objects, and not to unassociated
funerary objects, sacred objects, and objects of cultural patrimony.
Other comments suggested the provisions of the Act were intended to be
limited to studies ongoing when the Act was passed in 1990. Other
comments suggested clarifying changes.
In response, the Department has clarified some of the provisions,
but has retained the provisions applying to both human remains and
cultural items as in the Act (25 U.S.C. 3005(b)). The recommendation
that this provision apply retroactively runs counter to the prospective
applicability of the Act and would conflict with the Act.
See Part V. Section-by-Section Summary of Proposed Changes, J.
Section 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony, and K. Section 10.10
Repatriation of human remains and associated funerary objects.

H. Summaries

We received 54 comments on the provision in the draft text
requiring that museums and Federal agencies prepare and submit a
summary of unassociated funerary objects, sacred objects, and objects
of cultural patrimony in its holding or collection. Comments pointed
out that the summary is prepared before consultation and that Indian
Tribes and NHOs are the best parties to determine whether any item in a
holding or collection fits a NAGPRA category. Museums and Federal
agencies could potentially use the draft text requirement to evade
preparing a summary, claiming that they do not have such objects when
they might.
In response, the Department proposes to retain language from the
existing regulations in both the opening paragraph to the section and
in the paragraph on completing a summary.
See Part V. Section-by-Section Summary of Proposed Changes, J.
Section 10.9 Repatriation of unassociated funerary objects, sacred
objects, and objects of cultural patrimony.

I. Acknowledged and Adjudicated Aboriginal Land

We received 51 comments on the new terms to replace ``aboriginal
land'' and ``aboriginal occupation.'' Several comments appreciated the
new definition of ``acknowledged aboriginal land'' and some comments
recommended that ``acknowledged aboriginal land'' be used not just in
Subpart C of the regulations, but also in Subpart B, either combined
with the definition of ``adjudicated aboriginal land,'' or instead of
that definition. Some comments suggested further clarifying language,
including addition of other sources or changes to the listed sources.
For ``acknowledged aboriginal land,'' many comments suggested changing
the first source, ``treaty sent by the President to the United States
Senate for ratification,'' to an earlier stage in the treaty-making
process, while another comment suggested that it be deleted, since only
a ratified treaty is final and authoritative.
In response, the Department proposes to add definitions of
``adjudicated aboriginal land'' and ``acknowledged aboriginal land'' to
distinguish the criteria for a determination of ``aboriginal land''
under Subpart B and the Act (25 U.S.C. 3002(a)), on the one hand, and
under Subpart C on the other. The Department proposes to include
intertribal treaties, diplomatic agreements, and bilateral accords
between and among Indian Tribes. In the Act, Congress defined ``the
aboriginal land of some Indian tribe'' as ``Federal land that is
recognized by a final judgement of the Indian Claims Commission or the
United States Court of Claims,'' and we have used that to define
``adjudicated aboriginal land.'' The Department can neither add to this
definition nor ignore it, so the comments requesting a change to the
application or definition of adjudicated aboriginal land cannot be
adopted.
See Part V. Section-by-Section Summary of Proposed Changes, C.
Section 10.2 Definitions for this part.

J. Federal Lands and Boarding Schools

We received 39 comments on the definition for ``Federal lands.''
Several comments requested the addition of specific language to provide
for protection and disposition of Native American children buried at
Indian boarding schools, especially in circumstances where the land is
not or was not owned or controlled by the U.S. Government, but the
Indian boarding school was operated by or for the U.S. Government. Some
comments asserted that the intentional excavation provisions of NAGPRA
(25 U.S.C. 3002(c)) could be used to authorize the disinterment of
Native children from these cemeteries on Federal or Tribal lands, and
suggested that, for this purpose, the Department expand the statutory
definition of ``Federal lands'' in the regulations to include any
former Indian boarding school where any amount of Federal funding,
government certifications, or permissions were granted, regardless of
the current ownership of land.
In response, as discussed in the Secretarial Memorandum
establishing the Federal Indian Boarding School Initiative, the
Department is committed to ``address[ing] the intergenerational impact
of Indian Boarding Schools to shed light on the traumas of the past.''
The Memorandum identifies the NAGPRA process as a possible method for
repatriation of some Native American children. While NAGPRA does not
require a Federal agency to engage in an intentional excavation of
possible burial sites, (Geronimo v. Obama, 725 F. Supp. 2d 182, 187, n.
4 (D.D.C. 2010)), we agree with the comments that the intentional
excavation provisions of NAGPRA apply to the human remains and cultural
items disinterred from cemeteries on Federal or Tribal lands. Congress
did not make any distinction in the Act between excavations from
cemeteries and excavations from other burial sites on Federal or Tribal
lands. In fact, the definition of ``burial site'' in the Act (25 U.S.C.
3001(1)) explicitly refers to both a ``natural or prepared physical
location.'' Furthermore, we agree with some comments that the
excavation provisions of NAGPRA do not conflict with the opinion of the
United States Court of Appeals for the Third Circuit in Thorpe v.
Borough of Thorpe, 770 F.3d 255 (3d Cir. 2014), where the Court ruled
that the repatriation provisions of NAGPRA (25 U.S.C. 3005) did not
apply to a proposed disinterment and repatriation of human remains. The
human remains at issue in that case, while Native American, were not
located on Federal or Tribal lands, so the excavation provisions were
not at issue, and were therefore not addressed by the Court of Appeals.
Thus, on Federal or Tribal lands, any excavation must comply with the
Act, including the requirements for consultation with (or consent from)
the appropriate Indian Tribe or NHO (25 U.S.C. 3002(c)) and the order
of priority for disposition of human remains (25 U.S.C. 3002(a)).
Unfortunately, the Department cannot, however, amend the regulatory
definition of ``Federal lands'' as the comments requested. Congress
specifically and explicitly defined Federal lands based on ownership or
control, not on receipt of Federal funds (as it did in the definition
of a ``museum''). Thus, ``[w]e have here an instance where the
Congress, presumably after due consideration, has indicated by plain
language a preference to pursue its stated goals . . . . In such case,
neither [a] court nor the agency is

[[Page 63206]]

free to ignore the plain meaning of the statute and to substitute its
policy judgment for that of Congress.'' Alabama Power Co. v. United
States EPA, 40 F.3d 450, 456 (D.C. Cir. 1994). See also, United
Keetoowah Band of Cherokee Indians of Okla. v. United States HUD, 567
F.3d 1235, 1243 (10th Cir. 2009) (same); Chevron U.S.A. v. Natural
Resources Defense Council, 467 U.S. 837, 842-43 (1984) (``If the intent
of Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed
intent of Congress''). The Department does, however, encourage the
custodians of records from boarding schools, whether on Federal or
Tribal lands or not, and the current owners of those boarding schools
and cemeteries, to fully consult with Indian Tribes and NHOs on
identification, disinterment, and repatriation of Native American
children. The Department stands ready to assist Indian Tribes and NHOs
in that process to the fullest extent of its authority.
Beginning in July 2021, the Department requested direct input from
the Review Committee on the draft regulatory text prepared for
consultation. The Review Committee held 14 meetings with over 50 hours
of meeting time devoted to discussion of and development of written
recommendations on the draft regulatory text. The Review Committee
submitted a written recommendations to the Secretary of the Interior on
March 14, 2022, and June 7, 2022. The Department reviewed these written
recommendations, along with the minutes and transcripts from the
related public meetings, in preparing the proposed regulations. The
major comments received related to the Introductory section (see
proposed 10.1) and the inventory update requirements in Subpart C--
Repatriation of human remains or cultural items by museums or Federal
agencies (see proposed 10.10(d) and (e)). Additional recommendations by
individual members of the Review Committee were also submitted. The
Department, wherever possible, adjusted the proposed regulations to
address the Review Committee recommendations.

IV. Overview of Major Proposed Changes

The proposed revisions to these regulations would streamline
requirements, clarify timelines and terms, reduce ambiguity, and
improve efficiency in the systematic process for the disposition and
repatriation of Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony under the Act. The revisions
being proposed today are intended to make the regulations more user-
friendly and would:
<bullet> Reduce the number of sections and remove duplicative
language. Existing requirements are condensed into a clear, easy to
follow, step-by-step process.
<bullet> Correct inaccuracies and ambiguities in the existing
regulations by using consistent language and clearly defined terms.
<bullet> Create a consistent writing style with clear, concise
headings that describe each specific regulatory step.
<bullet> Clarify when actions are required by lineal descendants,
Indian Tribes, Native Hawaiian organizations, museums, and Federal
agencies by using specific timelines and deadlines.
<bullet> Provide clear instructions to Indian Tribes, NHOs,
museums, and Federal agencies for establishing cultural and
geographical affiliation and resolving competing claims or requests.
The proposed changes in Subpart B--Protection of Human Remains or
Cultural Items on Federal or Tribal Lands would:
<bullet> Replace the requirement for Federal agencies to publish
two notices in a newspaper of general circulation for human remains or
cultural items removed from Federal lands with a requirement for
Federal agencies to submit one notice to the Manager, National NAGPRA
Program, for publication in the Federal Register.
<bullet> Require certain actions be taken by Indian Tribes, NHOs,
and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) for
discoveries or excavations on Tribal lands, including responding to a
discovery, certifying that an activity may resume, authorizing an
excavation, and documenting in writing the disposition of human remains
or cultural items.
<bullet> Require Federal agencies and DHHL on Federal lands in the
United States and Tribal lands in Hawai`i to develop a plan of action
or comprehensive agreement, in consultation with lineal descendants,
Indian Tribes, and NHOs, that includes instructions for protecting,
stabilizing, or covering human remains or cultural items in situ, if
appropriate.
<bullet> Clarify that the jurisdiction of a Federal agency to issue
a permit under Section 4 of the Archaeological Resources Protection Act
(ARPA) for an excavation is no broader than it is under ARPA.
The proposed changes in Subpart C--Museum or Federal Agency
Holdings or Collections would:
<bullet> Remove the term ``culturally unidentifiable'' (i.e., when
cultural affiliation cannot be determined for human remains) and
integrate the concept of repatriation through geographic origin into
the overall affiliation and inventory process.
<bullet> Require repatriation of associated funerary objects
together with human remains to an Indian Tribe or NHO with cultural or
geographical affiliation.
<bullet> Require updated inventories for human remains and
associated funerary objects previously included in an inventory but not
published in a notice of inventory completion. For the updated
inventory, the proposed regulations would require a museum or Federal
agency to initiate consultation, consult with requesting parties, and
determine if there is a known lineal descendant or a connection between
the human remains and associated funerary objects and Indian Tribes or
NHOs with cultural or geographical affiliation.
<bullet> Require museums and Federal agencies to submit a notice of
inventory completion within 6 months of completing or updating an
inventory of human remains and associated funerary objects with a known
lineal descendant or a connection to an Indian Tribe or NHO with
cultural or geographical affiliation.
<bullet> Require museums and Federal agencies to send repatriation
statements to the National NAGPRA Program. In the existing regulations,
museums and Federal agencies are not required to report on any actions
that occur after the publication of a notice. The proposed regulations
would require both Federal agencies and museums to provide the Manager,
National NAGPRA Program, with a copy of the written statement
completing the repatriation, as recommended by the Government
Accountability Office in a 2010 report on the implementation of the
Act.
<bullet> Require museums to submit a statement describing holdings
or collections in its custody to the responsible Federal agency, if
known, and to the Manager, National NAGPRA Program. If a museum cannot
identify a person, institution, state or local agency, or Federal
agency that likely has possession or control of the holding or
collection, it must submit a statement to the Manager, National NAGPRA
Program. In the existing regulations, museums have no requirement to
report on Federal holdings or collections. The proposed changes would
align with the Department's response to the Government Accountability
Office's 2010 report on the implementation of the Act.

[[Page 63207]]

V. Section-by-Section Summary of Proposed Changes

Table 1 shows how the Department proposes to reorganize the
existing regulatory requirements and summarizes the proposed changes.

Table 1--Summary of Proposed Changes
----------------------------------------------------------------------------------------------------------------
Proposed 43
Existing 43 CFR section CFR section Summary of proposed changes
----------------------------------------------------------------------------------------------------------------
10.1.......................................... 10.1 <bullet> Adds paragraphs on Accountability, Duty
10.15......................................... of care, Delivery of written documents, and
Deadlines and timelines.
<bullet> Informs parties of the result in
failing to claim or request human remains or
cultural items prior to disposition or
repatriation.
<bullet> Clarifies final agency action in a
specific paragraph.
10.2.......................................... 10.2 <bullet> Revises definitions for consistency and
to reduce ambiguities.
<bullet> Adds new terms to clarify requirements.
<bullet> Removes obsolete terms.
10.14......................................... 10.3 <bullet> Implements Congressional intent by
defining ``affiliation'' as a connection
between human remains or cultural items and an
Indian Tribe or NHO. Affiliation is established
by identifying cultural or geographical
affiliation.
<bullet> Adds new paragraphs to assist when
there are multiple Indian Tribes or NHOs with
affiliation.
10.2.......................................... 10.4 <bullet> Provides a general overview to the
10.3.......................................... responsibilities of Indian Tribes, NHOs,
10.4.......................................... Federal agencies, and DHHL under the Act.
10.5.......................................... <bullet> Outlines the requirements in three
steps for a plan of action, developed in
consultation with Indian Tribes and NHOs.
<bullet> Consolidates compliance options for
land management activities that might result in
a discovery or excavation of human remains or
cultural items.
10.4.......................................... 10.5 <bullet> Reduces and streamlines requirements
for discoveries.
<bullet> Provides a clear, documented process
and timeline for resuming activities after a
discovery.
10.3.......................................... 10.6 <bullet> Removes duplicative language and
10.5.......................................... simplifies the excavation requirements.
<bullet> Clarifies and limits when a permit
under Section 4 of ARPA is required.
10.6.......................................... 10.7 <bullet> Adds process for disposition to a
10.7.......................................... lineal descendant and clarifies requirements
for disposition on Tribal lands.
<bullet> Requires publication of notices in the
Federal Register (rather than in newspapers) to
improve the effectiveness of the notification
and reduce burden on Indian Tribes and NHOs.
N/A........................................... 10.8 <bullet> Provides a general overview to the
responsibilities of museums and Federal
agencies for holdings and collections subject
to the Act.
<bullet> Requires museums to submit statements
on holdings or collections in their custody but
not in their possession or control one year
after the effective date of the final rule.
10.8.......................................... 10.9 <bullet> Clarifies when and what actions are
10.9.......................................... 10.10 required for repatriation of human remains or
10.10......................................... cultural items in a simple step-by-step
10.11......................................... process.
10.13......................................... <bullet> Updates the deadlines for completing
summaries and inventories to the effective date
of the final rule.
<bullet> Integrates the timelines into the step-
by-step process for any new holdings or
collections, newly recognized Indian Tribes,
new museums, or amendments to previous
decisions.
<bullet> Establishes timelines, deadlines, and
instructions for responding to requests for
human remains or cultural items and completing
repatriations.
10.11......................................... 10.10 <bullet> Requires updated inventories two years
after the effective date of the final rule and
notices of inventory completion six months
after updating or completing an inventory.
<bullet> Eliminates ``culturally
unidentifiable'' when cultural affiliation
cannot be determined.
<bullet> Requires repatriation of associated
funerary objects with human remains that have a
cultural or geographical affiliation.
10.12......................................... 10.11 <bullet> Removes the limited definition of a
failure to comply.
<bullet> Replaces the dual hearing process with
a single hearing process to contest the failure
to comply or the penalty assessment.
10.16......................................... 10.12 <bullet> Consolidates and clarifies the
10.17......................................... responsibilities of and procedures for the
Review Committee.
<bullet> Clarifies requirements and the process
for informal dispute resolution through
informal negotiations and request before the
Review Committee.
----------------------------------------------------------------------------------------------------------------

A. Authority

NAGPRA, 25 U.S.C. 3001 et seq., is the primary authority for the
issuance of regulations implementing and interpreting the Act's
provisions. The authority section continues to cite 25 U.S.C. 9 which
authorizes the Secretary to make such regulations as he or she may
think fit for carrying into effect the various provisions of any act
relating to Indian affairs. Because the Act is Indian law (Yankton
Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp 2d
1047, 1056 (D.S.D. 2000)), the Secretary may promulgate any regulations
needed to implement it under the broad authority to supervise and
manage Indian affairs given by Congress (United States v. Eberhardt,
789 F.2d 1354, 1360 (9th Cir. 1986)). Although 43 CFR part 10
previously cited one provision of the Archaeological Resources
Protection Act (ARPA, 16 U.S.C. 470dd(2)) as an authority, the
Department has determined that reliance on ARPA as authority for these
regulations is unnecessary.

B. Section 10.1 Introduction

This section of the proposed rule would reorganize for readability
and restate in plain language the purpose and general requirements
found in the existing regulations. In response to

[[Page 63208]]

consultation with Indian Tribes and NHOs, the Department proposes the
purpose paragraph (see proposed Sec. 10.1(a)) recognize and ensure
deference to the rights of lineal descendants, Indian Tribes, and NHOs,
as provided under the Act. The Department is specifically seeking input
during public comment on the proposed purpose paragraph.
In the applicability paragraph (see proposed Sec. 10.1(b)), the
Department proposes a revision to clarify that these regulations
pertain to Native American human remains or cultural items and require
certain actions for their protection in the event of a discovery or
excavation on Federal or Tribal lands after November 16, 1990, and for
their repatriation if in the possession or control of a museum or
Federal agency. The Act does not provide express authority for applying
the discovery and excavation provisions to land that does not meet the
definition of Federal or Tribal lands (25 U.S.C. 3002). However,
depending on other relevant state or local laws, human remains or
cultural items discovered or excavated from private or state lands may
be subject to the repatriation provisions under Subpart C.
To further clarify the applicability of these regulations, the
Department proposes to remove the existing paragraph Sec. 10.1(b)(2)
to correct the misconception that human remains or cultural items must,
themselves, be indigenous to Alaska, Hawai`i, and the continental
United States. Under the Act, ``indigenous'' relates to the definition
of ``Native American.'' Human remains or cultural items are ``Native
American'' based on a relationship to a tribe, people, or culture that
is indigenous to the United States.
In response to consultation with Indian Tribes and NHOs, the
Department proposes new regulatory provisions to address accountability
by museums and Federal agencies and to require a duty of care for human
remains and cultural items (see proposed Sec. 10.1(c) and (d),
respectively). The paragraph on duty of care was drawn from language in
the existing regulations at Sec. 10.7(2) and (3) which includes a
requirement for Federal agencies to consider and respect the traditions
of potential claimants (i.e., Indian Tribes and NHOs) including, but
not limited to, traditions regarding housing, maintenance, and
preservation, to the maximum extent feasible (emphasis added). During
consultation, many Indian Tribes and NHOs requested that ``to the
maximum extent feasible'' be incorporated into the duty of care
requirement. The Department proposes to use the phrase ``to the maximum
extent possible'' in the duty of care requirement for both museums and
Federal agencies. In addition, this phrase is used to describe
implementation of a plan of action under Subpart B and in the
definition of consultation and the related regulatory steps in both
Subpart B and C. The Department intends this phrase, ``to the maximum
extent possible,'' to mean museums and Federal agencies will make a
reasonable effort to:
<bullet> seek consensus during consultation,
<bullet> provide appropriate treatment, care, or handling of human
remains or cultural items, and
<bullet> incorporate identifications, recommendations, and Native
American traditional knowledge (see definition below) in making
determinations.
Proposed Sec. 10.1(e) would: (1) consolidate and clarify those
requirements governing the delivery of written documents that are
currently dispersed throughout the existing regulations; and (2)
provide for delivery of written documents by email with proof of
receipt, and explicitly exclude delivery of written documents by text
message or social media message.
Proposed Sec. 10.1(f) would describe how deadlines and timelines
for written documents are calculated based on business days, i.e.,
Monday through Friday, and that documents are deeded timely based on
the sent date.
The Department also proposes to relocate to this Introduction
section existing regulatory provisions regarding (1) failure to make a
claim or a request (see proposed Sec. 10.1(g)), (2) judicial
jurisdiction (see proposed Sec. 10.1(h)), and (3) final agency action
(see proposed Sec. 10.1(i)). Regarding final agency action, ``a final
determination making the Act or this part inapplicable'' is intended to
be construed broadly across the regulatory process, including some
circumstances where a Federal agency's failure to comply with a
regulatory requirement or deadline may demonstrate its determination
that either the Act or this part is inapplicable. Regarding judicial
jurisdiction (25 U.S.C. 3009(3)) nothing in the Act or these
regulations is intended to abrogate any concurrent Tribal jurisdiction
that may exist with respect to alleged violations of similar Tribal
laws on Tribal lands.
Table 2 shows how the Department proposes to reorganize the
existing regulatory requirements.

Table 2--Cross-Reference of Existing Provisions to Proposed Sec. 10.1
----------------------------------------------------------------------------------------------------------------

[[Page 63209]]

C. Section 10.2 Definitions for This Part

This section of the proposed rule defines terms used throughout
this part. The Department proposes to reorganize defined terms in
alphabetical order and remove the paragraph designations in the
existing regulations at Sec. 10.2 in conformance with the Federal
Register Document Drafting Handbook.
The Department does not propose any substantive changes to the
following 10 definitions: Act, discovery (replaces ``inadvertent
discovery''), excavation (replaces ``intentional excavation''), Federal
agency, Manager, National NAGPRA Program, museum, person, Review
Committee, Secretary, and summary. The Department proposes to remove
the following seven definitions that are no longer used in the proposed
regulations: burial site, cultural affiliation (see affiliation),
culturally unidentifiable, Federal agency official, Indian Tribe
official, museum official, and Native Hawaiian (see Native Hawaiian
organization).
Table 3 shows how the Department proposes to add, replace, or
revise terms for consistency, to reduce ambiguities, and to clarify
requirements throughout this part. Except as noted in the table, all
terms are explained in the immediate section below.

Table 3--Changes to Existing Terms in Proposed Sec. 10.2
----------------------------------------------------------------------------------------------------------------
Change Defined term
----------------------------------------------------------------------------------------------------------------
New terms................................... acknowledged aboriginal land.
adjudicated aboriginal land.
affiliation.
ahupua`a.
appropriate official *.
ARPA *.
ARPA Indian lands *.
ARPA Public lands *.
consultation.
cultural item.
custody.
holding or collection.
Indian Tribe (previously reserved).
Native American traditional knowledge.
`ohana.
right of possession.
Tribal lands of an NHO.
United States.
Replace terms............................... ``disposition'' and ``repatriation'' replace ``disposition''.
``possession or control'' replaces ``possession'' and ``control''.
Revise existing terms....................... Federal lands.
funerary object.
human remains.
inventory.
lineal descendant.
Native American.
Native Hawaiian organization.
object of cultural patrimony.
receives Federal funds.
sacred object.
traditional religious leader.
Tribal lands.
unclaimed cultural item.
----------------------------------------------------------------------------------------------------------------
* See proposed Sec. 10.4 and Sec. 10.6 and related preamble section.

1. ``Acknowledged Aboriginal Land'' and ``Adjudicated Aboriginal Land''
The Department proposes to add two new terms to replace
``aboriginal lands'' and ``aboriginal occupation,'' which are not
defined but are used in the existing regulations Sec. Sec. 10.6 and
10.11. The new terms, ``acknowledged aboriginal land'' and
``adjudicated aboriginal land,'' would contain the same requirements
for ``aboriginal lands'' and ``aboriginal occupation,'' found in the
existing regulations at Sec. Sec. 10.6(a)(2)(iii)(A) and
10.11(b)(2)(ii) and (c)(1)(ii), but the new definitions would
distinguish and clarify how to apply the terms.
For ``acknowledged aboriginal land,'' the definition would
elaborate on which treaties may be used to identify aboriginal land and
would add other Federal, foreign, or intertribal government documents
to the list of acceptable sources. Some examples of other Federal
documents that provide information on aboriginal occupation by an
Indian Tribe are ``Report to the President by the Indian Peace
Commission, 1868,'' ``Annual Reports of the Commissioner on Indian
Affairs,'' and ``Alaska Natives and the Land'' (by the Federal Field
Committee for Development Planning in Alaska, October 1968). A source
for identifying intertribal treaties, diplomatic agreements, and
bilateral accords is David H. DeJong's book ``American Indian
Treaties,'' which identifies 63 intertribal treaties, dating between
1666 and 1903. The Department has intentionally declined to require
that intertribal treaties, diplomatic agreements, or bilateral accords
be in writing in recognition of traditional forms of documentation,
such as two-row wampum belts.
For ``adjudicated aboriginal land,'' the definition is drawn from
the Act (25 U.S.C. 3002(a)(2)(C)) and clarified, based on Sections 15
and 22 of the Indian Claims Commission Act of 1946 (Pub. L. 79-726, 60
Stat. 1049), that a final judgment also includes a judgment concerning
a settlement (compromise of claim) if that judgment or settlement
either explicitly recognizes certain land

[[Page 63210]]

as the aboriginal land of an Indian Tribe or adopts findings of fact
that do so.
2. ``Affiliation''
The Department proposes a new term, ``affiliation,'' and to remove
the existing definitions of ``cultural affiliation'' and ``culturally
unidentifiable.'' This change reflects Congressional intent and focus
on affiliation for the sole purpose of disposition or repatriation. In
defining affiliation, Congress ``intended to ensure that the claimant
has a reasonable connection with the materials'' (H. Rep. 101-877, at
14, and S. Rep. 101-473, at 6). Identifying ``cultural affiliation''
has been a significant barrier to disposition and repatriation under
the Act, despite the clear intent of Congress that it be used for no
other purpose than to ensure a reasonable connection between the human
remains and cultural items and an Indian Tribe or NHO. Defining
``affiliation'' in these regulations without the qualifier of
``cultural'' better aligns with Congressional intent, and addresses
concerns raised during consultation with Indian Tribes and NHOs about
implementing the term ``geographical affiliation'' separately from
cultural affiliation. In response to consultation with Indian Tribes
and NHOs, we have combined cultural and geographical affiliation into
this definition and the section on affiliation. The definition of
``cultural affiliation'' from the Act and the existing regulations, the
lines of information, and the use of geographic relationships
consistent with the existing regulation are all incorporated into the
regulatory process by which ``affiliation'' is established in the
proposed text at Sec. 10.3.
3. ``Ahupua`a''
The Department proposes to add a new term, ``ahupua`a,'' to use
when determining the Native Hawaiian organization with the closest
affiliation to human remains or cultural items. While the term serves a
geographic purpose, identifying a traditional land division, an
ahupua`a may also be associated with various traditional and customary
practices in addition to habitation and provides important cultural
connections between its earlier occupants or traditional users and
Native Hawaiian organizations. Traditionally, the occupants of an
ahupua`a are its primary stewards.
4. ``Consultation''
The Department proposes to add a new term, ``consultation,'' using
language provided by Congress (H. Rep. 101-877, at 16). In response to
consultation with Indian Tribes and NHOs, the Department proposes to
require that consultation seek consensus and incorporate
identifications, recommendations, and Native American traditional
knowledge, to the maximum extent possible.
5. ``Cultural Item''
In response to consultation with Indian Tribes and NHOs, the
Department proposes to add a new term, ``cultural item,'' and
specifically exclude human remains from that definition. Although
Congress included human remains in defining cultural items (25 U.S.C.
3001(3)), the Department proposes throughout these regulations to use
the phrase ``human remains or cultural items'' rather than ``cultural
items.'' This edit is responsive to requests from some Indian Tribes
and NHOs who oppose any language that identifies people as items since
this can be seen as objectifying and dehumanizing. This edit does not
have any impact on the applicability or scope of these regulations.
In response to consultation with Indian Tribes and NHOs, the
Department proposes to add to the definition of cultural items (and to
subsequent specific definitions of cultural items) that identification
of cultural items is according to a lineal descendant, Indian Tribe, or
NHO based on customs, traditions, or Native American traditional
knowledge. In the Act, the identification of cultural items is
dependent upon consultation with lineal descendants, Indian Tribes, and
NHOs. By adding this phrase to the definition of cultural items, the
Department seeks to emphasize that consultation, which is required
throughout the proposed regulation, is how a lineal descendant, Indian
Tribe, or NHO shares the information needed to identify a cultural
item.
The Act was enacted for the benefit of Indians, therefore the
canons of construction for Indian law applies. The Act and these
regulations ``are to be construed liberally in favor of the Indians,
with ambiguous provisions interpreted to their benefit'' (Yankton Sioux
Tribe v. United States Army Corps of Engineers, 83 F. Supp 2d 1047,
1056 (D.S.D. 2000)). Consistent with this principle, the Department
proposes to require deference to lineal descendants, Indian Tribes, and
NHOs throughout the regulations, but specifically for identification of
cultural items. Legislative intent on the definition of cultural item,
generally, and to each definition specifically, is clear. ``The
Committee has made every effort to incorporate the comments and address
the concerns of members of the scientific and museum communities with
regard to the substantive definitions set forth in the Act, while at
the same time recognizing that there are over 200 tribes and 200 Alaska
Native villages and Native Hawaiian communities, each with distinct
cultures and traditional and religious practices that are unique to
each community. Accordingly, the definitions of sacred objects,
funerary objects, and items of cultural patrimony will vary according
to the tribe, village, or Native Hawaiian community.'' (Senate Rpt.
101-473, page 4).
6. ``Custody''
The Department proposes to add a new term, ``custody,'' that would
indicate an obligation for human remains or cultural items that is less
than ``possession or control.'' See discussion of ``possession or
control'' below. This newly defined term does not have the same meaning
as the general meaning given to the same word used throughout the
existing regulations, especially at Sec. 10.6.
7. ``Disposition''
The Department proposes to replace the term ``disposition'' in the
existing regulations at Sec. 10.2(g)(5) with two separate terms:
``disposition'' and ``repatriation.'' In the proposed revision,
``disposition'' applies only to Subpart B. The proposed revision to
``disposition'' would denote that an Indian Tribe, NHO, Federal agency,
or DHHL acknowledges and recognizes that a lineal descendant, Indian
Tribe, or NHO has control or ownership of human remains or cultural
items removed from Federal or Tribal lands. Although the phrase,
control or ownership, is not defined in the Act or the proposed
regulations, it is used to refer to the rights of lineal descendants,
Indian Tribes, and NHOs in Native American human remains or cultural
items as acknowledged and recognized by the Act. The phrase, control or
ownership, is used to differentiate ``disposition'' and
``repatriation'' from terms used in other sections of the Act, such as
the ``right of possession,'' which a museum or Federal agency may use
to assert its lawful control or ownership, or ``possession or
control,'' which is an element of applicability under the Act that
itself does not determine control or ownership or a right of
possession. In describing disposition, the Act uses the terms
``ownership,'' ``control,'' ``right of control,'' and ``title to'' (25
U.S.C. 3002). Of these terms, the phrase, control or ownership, is the
most appropriate to apply to human remains as well as cultural items
that may be subject to

[[Page 63211]]

disposition and describes the existing rights of lineal descendants,
Indian Tribes, and NHOs more accurately. The phrase, control or
ownership, is intended to indicate that, as in the Act, human remains
or cultural items removed from Federal or Tribal lands belong, in the
first instance, to lineal descendants, Indian Tribes, and NHOs and not
to the Federal agency.
8. ``Federal Land''
The Department proposes to revise the term ``Federal land'' to
clarify the lands on which Federal programs or activities may be
subject to the Act. As in the existing regulations, ``Federal land''
includes lands not just owned by the United States Government, but also
lands under its control. (Note that the general term ``control'' as
used in this discussion of Federal land is not the same as the defined
term ``possession or control'' as used in the Act). Whether Federal
control of the lands on which it conducts its programs or activities is
sufficient to apply these regulations depends on the circumstances and
scope of the Federal agency's authority, and on the nature of State and
local jurisdiction. Because of the wide array of agency-specific
authorities that can establish federally controlled lands, the Federal
agency officials must make such determinations on a case-by-case basis
and, in doing so, should consult with their legal counsel.
While Federal agency officials must ultimately make their own
determinations as to the lands under the control of their agency, the
drafters note that, in general, a Federal agency will only have
sufficient legal interest to ``control'' lands it does not own when it
has sufficient statutory jurisdiction with respect to those lands or
other form of property interest in the land, such as a lease, easement,
or other agreement with terms that have indicia of control. See Yankton
Sioux Tribe v. United States Army Corps of Eng'rs, 396 F. Supp 2d 1087
(D.S.D. 2005); Crow Creek Sioux Tribe v. Brownlee, 331 F.3d 912 (D.C.
Cir. 2003) (the Act still applied to lands transferred by the U.S. Army
Corps of Engineers to South Dakota pursuant to the Water Resources
Development Act due to a specific statutory provision applicable to
those transferred lands). Where two or more Federal agencies share
regulatory or management jurisdiction over federally owned or
controlled lands, the Federal agency with primary management authority
will generally have ``control'' for purposes of implementing these
regulations.
On the other hand, the drafters note that Federal agency
participation in a regulatory or supervisory capacity does not
necessarily rise to the level of Federal ``control.'' See, e.g., Castro
Romero v. Becken, 256 F.3d 349 (5th Cir. 2001) (claims for violations
of the Act with regard to human remains found on municipal land could
not be upheld, even though a Federal agency was involved in the project
in a supervisory role); Western Mohegan Tribe and Nation of New York v.
New York, 100 F. Supp. 2d 122, (N.D.N.Y. 2000), aff'd in part, vacated
in part on other grounds 246 F.3d 230 (2nd Cir. 2001) (``Plaintiffs'
broad reading of the statute is inconsistent with the Act's plain
meaning and its legislative history where the language `Federal lands'
denotes a level of dominion commonly associated with ownership, not
funding pursuant to statutory obligations or regulatory permits.'').
For example, the fact that a Federal permit is required to undertake an
activity on non-Federal land generally is not sufficient legal interest
in and of itself to ``control'' the land within the meaning of the Act
and this proposed rule.
Indian lands outside reservation boundaries that are held in trust
by the United States Government or are held by an Indian landowner
subject to restrictions on alienation imposed by the United States
Government, such as allotments, are subject to Federal control and are
treated as Federal lands under these regulations. The control of the
United States Government over Indian land is the same whether it is in
trust or restricted status and whether it is within the exterior
boundaries of a reservation or not. United States v. Ramsey, 271 U.S.
467, 471-72 (1926). See also Cohen's Handbook of Federal Indian Law
Sec. 16.03[1], at 1071 (Nell Jessup Newton ed., 2012). Since
Congress's control is virtually the same for trust allotments and off-
reservation allotted lands with Federal restraints on encumbrance and
alienation (restricted fee allotments), then Federal control of such
lands as a matter of law meets the Western Mohegan standard noted
above. The treatment of off-reservation Indian land as ``Federal land''
for purposes of the Act is consistent with the current practice of the
Bureau of Indian Affairs.
9. ``Funerary Object''
The Department proposes to revise the term ``funerary object'' and
align it with the definitions in the Act for ``associated funerary
object'' and ``unassociated funerary object.'' The portion of the
statutory definition that is the same between the two terms has been
used to define ``funerary object.'' As defined in the Act, the only
difference between the definition for associated and unassociated
funerary objects is the location of the related human remains. A single
object may be a funerary object if the object is identified as having
been placed with or near human remains. Therefore, determining if the
funerary object is associated or unassociated does not require
identifying the specific individual with which the object was placed,
but rather, only requires identifying the location of the related human
remains.
For example, an authorized excavation in 1940 removed a Native
American object from what was thought to be a village site dating
between 2000 BCE to 500 CE. The object dates to the late pre-contact
period, likely between 1500-1580 CE, based on materials and form.
Fragmentary human remains were identified during the excavation and
noted in field notes, but no human remains were removed. Based on
information available including the results of consultation, it is
reasonable to believe the object was placed intentionally in this
location because of the human remains, but it is also reasonable to
believe the object was placed there many centuries after the human
remains. Nevertheless, the object meets the definition of a funerary
object since it was intentionally placed near human remains.
The funerary object does not, however, meet the definition of an
associated funerary object. Human remains were identified, but no human
remains were removed during the excavation. In the information
available, there is no record of human remains being removed from the
site at any other time. Through consultation with Indian Tribes, the
funerary object was not identified as being the kind of object made
exclusively for burial purposes or to contain human remains.
When a funerary object is not an associated funerary object, it may
be an unassociated funerary object if it meets one or more of the
criteria in the definition (see proposed Sec. 10.2 Funerary object
(2)). The funerary object is not related to specific individuals or
families (see proposed Sec. 10.2 Funerary object (2)(ii)). The
funerary object was not removed from a specific burial site or an area
known to be a burial site (see proposed Sec. 10.2 Funerary object
(2)(iii) and (iv)). However, the funerary object is related to known
human remains (identified in the field notes), but those human remains
were not removed from the site (see proposed Sec. 10.2 Funerary object
(2)(i)). Therefore, the funerary object meets the definition of an
unassociated funerary object.

[[Page 63212]]

In response to consultation with Indian Tribes and NHOs, the
Department proposes to add to the definition of funerary object (and to
all specific definitions of cultural items) that identification of a
funerary object is according to a lineal descendant, Indian Tribe, or
NHO based on customs, traditions, or Native American traditional
knowledge. In the Act, the identification of a funerary object is
dependent upon consultation with lineal descendants, Indian Tribes, and
NHOs. By adding this phrase to the definition of a funerary object, the
Department seeks to emphasize that consultation, which is required
throughout the proposed regulation, is how a lineal descendant, Indian
Tribe, or NHO shares the information needed to identify a funerary
object.
10. ``Holding or Collection''
The Department proposes to add a new term ``holding or collection''
which is not defined in the Act. The proposed definition is drawn from
dictionary definitions as well as the International Council of Museums'
2007 definition. Merriam-Webster Dictionary defines ``collection'' as
``something collected; especially: an accumulation of objects gathered
for study, comparison, or exhibition . . .'' and defines ``holding'' as
``any property that is owned or possessed . . .'' The International
Council of Museums' 2007 definition of a museum is an institution
``which acquires, conserves, researches, communicates and exhibits . .
. for the purposes of education, study, and enjoyment.'' Additional
purposes in this definition are taken from Unit 34 of ``Museum Basics''
(1993) by Timothy Ambrose, which lists different types of museum
collections. In response to consultation with Indian Tribes and NHOs,
we have refrained from using offensive purposes listed in some of these
sources such as ``enjoyment'' or ``personal benefit.'' While the
proposed definition includes a wide variety of purposes, a holding or
collection under this proposed rule would not be limited to only these
purposes.
11. ``Human Remains''
The Department proposes to revise the term ``human remains'' to
clarify what is and what is not considered human remains for purposes
of disposition and repatriation. The proposed revision is based on the
explanation provided in the preamble to the 1995 final rule (60 FR
62137, December 4, 1995). The explanation noted that the Act makes no
distinction between fully articulated burials and isolated bones and
teeth. The preamble then stated that the final rule added language
excluding ``naturally shed'' human remains from consideration under the
Act. The preamble clarified that this exclusion does not include human
remains for which there is evidence of purposeful disposal or
deposition. The preamble then addressed a question asked by a commenter
who sought clarification on the status of human remains that were not
freely given but had been incorporated into objects that are not
cultural items as defined in the regulations. The preamble explained
that the legislative history does not address this question and
therefore the proper disposition of such human remains must be
determined on a case-by-case basis.
Consistent with the advice in 1995, identification of human remains
must be made on a case-by-case basis. The Act requires identification
of all human remains in a holding or collection, including human
remains reasonably believed to be comingled with other material (such
as soil or faunal remains). During consultation with lineal
descendants, Indian Tribes, and NHOs, museums and Federal agencies
should evaluate if an entire admixture can be treated as human remains.
If such a request is made during consultation, but it is not possible
to treat the admixture as human remains, the record of consultation
should include the effort to identify a mutually agreeable alternative.
The proposed definition provides two ways human remains may be
incorporated into an object or item. For example, depending on the
results of consultation, a scalp shirt with human remains or a flute
made with human remains that is not a funerary object, a sacred object,
or an object of cultural patrimony would be considered human remains
and subject to disposition or repatriation under the Act and the
proposed regulations. Human remains that are incorporated into a
funerary object, sacred object, or object of cultural patrimony would
not be treated as human remains, but as a cultural item and subject to
disposition or repatriation under the Act and the proposed regulations.
12. ``Indian Tribe''
The Department proposes to add a definition for the term ``Indian
Tribe,'' currently reserved in the existing regulations at Sec.
10.2(b)(2). The list of federally recognized Indian Tribes is the list
of Indian Tribes for the purposes of NAGPRA. Throughout the proposed
rule, the term is used in the singular form, but it is expected that
multiple Indian Tribes may meet the criteria under this part for
disposition or repatriation of the same human remains or cultural
items. Any Indian Tribe with cultural or geographical affiliation may
submit a claim for disposition or a request for repatriation. Two or
more Indian Tribes may agree to joint disposition or joint repatriation
of human remains or cultural items. Claims or requests for joint
disposition or joint repatriation should be considered a single claim
or request and not competing claims or requests.
13. ``Inventory''
The Department proposes to revise the term ``inventory'' to
accurately reflect the content as required by the Act. In response to
consultation with Indian Tribes and NHOs, the Department is aware that
the existing regulatory definition has been a barrier to expeditious
repatriation as it requires an ``item-by-item description.'' In the
Act, an inventory is defined as a ``simple itemized list.'' The
proposed revision to the definition uses the exact language from the
Act and includes the information required to be included in an
inventory.
14. ``Lineal Descendant''
The Department proposes to revise the definition and remove the
criteria for determining lineal descent in the existing regulations at
Sec. Sec. 10.2(b)(2) and 10.14(b). The term ``lineal descendant'' is
not defined in the Act. The revised definition would allow for
disposition or repatriation of human remains and associated funerary
objects to a ``lineal descendant'' in the following cases:
<bullet> The identity of a particular deceased individual is known,
and a specific living person is known to be the direct descendant of
the deceased individual. For example, the human remains are of the
great-great-grandfather of the living great-great-granddaughter.
<bullet> The identity of each deceased individual in a group of
human remains is not known, but a specific living person is known to be
the direct descendant of all the deceased individuals in the group. For
example, all that is known is that the human remains of multiple
individuals are the great-great-grandfather, great-grandfather, father,
and maternal uncle of a specific living person, who is the direct
descendant of them all under a traditional system of descent.
Throughout the proposed rule, the term is used in the singular
form, but it is expected that multiple lineal descendants may meet the
criteria under this part for disposition or repatriation of the same
human remains, funerary

[[Page 63213]]

objects, or sacred objects. Any lineal descendant may submit a claim
for disposition or a request for repatriation for human remains,
funerary objects, or sacred objects. Two or more lineal descendants may
agree to joint disposition or joint repatriation of human remains,
funerary objects, or sacred objects. Claims or requests for joint
disposition or joint repatriation should be considered a single claim
or request and not competing claims or requests.
15. ``Museum''
The Department proposes a slight addition to the term ``museum'' to
clarify that, consistent with the Act, the term does not include the
Smithsonian Institution. Also consistent with the Act, the term
``museum'' includes State or local government agencies, including
subdivisions of State or local government agencies. Consequently, any
of the following examples may be a museum under the Act and the
proposed regulations if they meet all the criteria of the definition: a
county coroner's office, a city medical examiner's office, a State
police department or local post, a city library, or a city water
authority.
16. ``Native American''
The Department proposes to revise and clarify the existing
definition of ``Native American.'' The Act applies to human remains or
cultural items that meet the definition of ``Native American.''
``Native American'' human remains or cultural items are not only items
of a tribe, people, or culture that is indigenous to the United States,
but are also items that are related to such tribe, people, or culture.
Because Congress did not define ``tribe,'' ``people,'' or ``culture,''
the proposed definition of the term ``Native American'' incorporates
statutory and dictionary definitions to better clarify these terms.
17. ``Native American Traditional Knowledge''
The Department proposes to add a new term, ``Native American
traditional knowledge,'' for use in the definition of ``consultation''
and ``cultural item'' as well as definitions of specific kinds of
cultural items. In response to consultation with Indian Tribes and
NHOs, this definition is a variation on what was suggested by a
specific Indian Tribe, but this term is rooted in the larger concept of
indigenous ways of knowing. The proposed definition attempts to cover
the wide variety of terminology related to this concept while remaining
consistent with the disposition and repatriation process under the Act.
The Department recognizes that there is different terminology used by
and among Native American people that incorporates this concept.
Additionally, the concept of traditional knowledge is recognized by a
number of Federal agencies in the context of land management activities
and the use of natural or cultural resources. In these contexts, it is
often referred to as traditional ecological knowledge or TEK. It may
also be referred to as indigenous knowledge or traditional cultural
knowledge. For the limited purposes of these regulations, the term
``Native American traditional knowledge'' is inclusive of all these
terms and may provide information needed to identify affiliation
(either cultural or geographical), funerary objects, lineal
descendants, objects of cultural patrimony, and sacred objects. We
welcome additional input on the specifics in this definition as well as
its use in the regulatory text.
18. ``Native Hawaiian Organization''
The Department proposes to revise the term ``Native Hawaiian
organization'' (NHO) by incorporating the definition of ``Native
Hawaiian'' from the Act. While the Act uses the phrase ``aboriginal
people'' to define Native Hawaiian, the proposed regulations use the
phrase ``indigenous people'' to better relate to the definition of
Native American and distinguish from the use of aboriginal elsewhere in
the Act and regulations referring to land. The proposed definition
would include those entities that the Secretary, through the Office of
Native Hawaiian Relations, has identified on the most current Native
Hawaiian Organization Notification List. The Department also proposes
to include in the definition of NHO the Hawaiian Homes Commission Act
(HHCA) Beneficiary Associations and Homestead Associations. Although
the Act names Hui Malama I Na Kupuna O Hawai`i Nei as a Native Hawaiian
organization, that group ceased to exist in 2015, so the proposed
definition does not include it.
Throughout the proposed rule, ``Native Hawaiian organization'' is
used in the singular form, but it is expected that multiple NHOs may
meet the criteria under this part for disposition or repatriation of
the same human remains or cultural items. Any NHO with affiliation may
submit a claim for disposition or a request for repatriation under the
proposed rule. Two or more NHOs may agree to joint disposition or joint
repatriation of human remains or cultural items. Claims or requests for
joint disposition or joint repatriation would be considered a single
request and not competing claims or requests.
19. ``Object of Cultural Patrimony''
The Department proposes to revise the definition of ``object of
cultural patrimony'' to clarify what a Native American group or culture
is for purposes of the definition. In response to consultation with
Indian Tribes and NHOs and a specific suggestion from an Indian Tribe,
the Department also proposes to add a sentence to recognize that a
caretaker may have been entrusted with responsibility for an object and
may have even conferred that responsibility on another caretaker, but
the object can still be an object of cultural patrimony. In response to
consultation with Indian Tribes and NHOs, the Department proposes to
add to the definition (and to all specific definitions of cultural
items) that identification of an object of cultural patrimony is
according to an Indian Tribe or NHO based on customs, traditions, or
Native American traditional knowledge. In the Act, the identification
of an object of cultural patrimony is dependent upon consultation with
lineal descendants, Indian Tribes, and NHOs. By adding this phrase to
the definition of an object of cultural patrimony, the Department seeks
to emphasize that consultation, which is required throughout the
proposed regulation, is how an Indian Tribe or NHO shares the
information needed to identify an object of cultural patrimony.
20. `` `Ohana''
To emphasize the importance of the familial or kinship relationship
in Hawai`i, the Department proposes to add a new term `` `ohana,'' used
in the definition of ``Native Hawaiian organization'' and in
determining the NHO with the closest affiliation.
21. ``Possession or Control''
In response to consultation with Indian Tribes and NHOs, the
Department proposes to replace the two separate terms in the existing
regulations ``possession'' and ``control'' into one term, as used in
the Act, ``possession or control.'' Congress used these two words as a
single term throughout the Act except for ``right of possession''
(discussed later). The phrase ``possession or control'' as used in the
Act connotes a singular interest in human remains or cultural items and
utilizes the two elements of the phrase only to address the physical
location of the human remains or cultural items. In the Act, having
possession or control means a museum or Federal agency may

[[Page 63214]]

make decisions about human remains or cultural items without having to
request permission from some other entity or person (an interest). This
interest is present regardless of the physical location of the human
remains or cultural items. For a similar example, a person has the same
interest in property that is in the person's home as in property that
same person keeps in an offsite storage unit. The person can make
decisions about the property in the storage unit without having to
request permission from the storage facility. Regardless of the
physical location of the property, the person's interest in the
property is the same whether it is in their home or in the custody of
the storage facility.
The Department also proposes to define a separate term,
``custody,'' that would indicate an obligation that is less than
``possession or control.'' Whether a Federal agency or museum has a
sufficient interest in human remains or cultural items to establish
possession or control is a legal determination that must be made on a
case-by-case basis. However, when a museum with custody of human
remains or cultural items cannot identify any person, institution,
State or local government agency, or Federal agency with possession or
control, the museum should presume it has possession or control for
purposes of repatriation under the Act. When a Federal agency cannot
determine if human remains or cultural items came into its possession
or control before or after November 16, 1990, or cannot identify the
type of land the human remains or cultural items were removed from, the
Federal agency should presume it has possession or control for purposes
of repatriation under the Act. This determination alone does not create
any legal rights or indicate that a museum or Federal agency has a
``right of possession'' to human remains or cultural items; it is
merely a jurisdictional requirement for application of the Act to human
remains or cultural items subject to repatriation by the appropriate
museum or Federal agency.
The Department received several comments through consultation with
Indian Tribes and NHOs requesting that it expand the scope of the term
``possession or control'' to include both those entities that have
possession or control as defined in the existing regulations and those
entities that merely have custody as defined in this proposed rule. In
some cases, this request would make multiple entities concurrently
responsible for fulfilling the Act's inventory, summary, and
repatriation processes. The Department has declined to make this change
as such an interpretation is inconsistent with the framework and
legislative history of the Act. Congress provided no indication in the
Act or its legislative history that such an expansive interpretation
was its intent, and various features of the Act, including civil
penalties, right of possession, and museum obligations, presume that a
single museum or Federal agency would be responsible for compliance
with the Act. However, the Department acknowledges the underlying
intent of this request to ensure repatriation of all holdings or
collections subject to the Act and has proposed other revisions that
seek to address this issue by directing museums and Federal agencies to
share greater information and increase efforts to complete inventories,
summaries, and repatriation of human remains and cultural items in the
custody of other entities.
22. ``Receives Federal Funds''
The Department proposes to revise the term ``receives Federal
funds'' to clarify that any recipient of Federal financial assistance
would be deemed to receive Federal funds under this part. The
definition is drawn from the interpretation of comparable terms from
the Rehabilitation Act of 1973, Title IX of the Education Amendments of
1972, as amended, implementing regulations, and OMB's Requirements,
Cost Principles, and Audit Requirements for Federal Awards (2 CFR part
200). The ``Receives Federal funds'' requirement may be satisfied by
direct or indirect receipt of funds from the Federal government.
Satisfaction of the requirement through indirect funding is permissible
and consistent with the Supreme Court's decision in Grove City College
v. Bell, 465 U.S. 555 (1982).
For example, an educational institution that accepts no direct
Federal financial assistance is deemed to receive Federal financial
assistance when it enrolls students who receive Federal grants that
must be used for educational purposes (34 CFR part 106). A Tribal
museum receives Federal funds for purposes of repatriation if the
Indian Tribe of which the museum is a part receives Federal financial
assistance. A county library receives Federal funds for purposes of
repatriation if its State government or other agency provides a
subaward to the library as part of a Federal grant or award. The term
also underscores that the U.S. Government's payments that are
compensatory, such as payments in lieu of taxes paid under the Payments
in Lieu of Taxes Act, as amended (31 U.S.C. 6901 et seq.) are not
considered Federal financial assistance (and see McMullen v. Wakulla
County Board of County Commissioners, 650 Fed. Appx. 703 (11th Cir.
2016)).
23. ``Repatriation''
The Department proposes to replace the term ``disposition'' in the
existing regulations at Sec. 10.2(g)(5) with two separate terms:
``disposition'' and ``repatriation'' used consistently throughout the
regulations. In the proposed revision, ``repatriation'' applies only to
Subpart C and has been incorporated into the title of that subpart. The
proposed revision would denote that a museum or Federal agency
acknowledges and recognizes that a lineal descendant, Indian Tribe, or
NHO has control or ownership of human remains or cultural items in a
holding or collection. Although the phrase, control or ownership, is
not defined in the Act or the regulations, it is used to refer to the
rights of lineal descendants, Indian Tribes, and NHOs in Native
American human remains or cultural items acknowledged and recognized by
the Act. The phrase, control or ownership, is used to differentiate
``disposition'' and ``repatriation'' from terms used in other sections
of the Act, such as the ``right of possession,'' which a museum or
Federal agency may use to assert its lawful control or ownership, or
``possession or control,'' which is an element of applicability under
the Act that itself does not determine control or ownership or a right
of possession. In describing repatriation, the Act uses the terms
``return,'' ``owned,'' and ``owned or controlled'' (25 U.S.C. 3005). Of
these terms, the phrase, control or ownership, is the most appropriate
to apply to human remains as well as cultural items that may be subject
to repatriation and describes the existing rights of lineal
descendants, Indian Tribes, and NHOs more accurately. The phrase,
control or ownership, is intended to indicate that, as in the Act,
human remains and cultural items in holdings or collections belong, in
the first instance, to lineal descendants, Indian Tribes, and NHOs and
not to the museum or Federal agency unless the museum or Federal agency
is able to prove a ``right of possession.'' By using ``right of
possession'' as a standard of repatriation, the Act establishes that
museums and Federal agencies do not have a rightful legal interest in
human remains or cultural items unless the museum or Federal agency can
prove an authoritative transfer of that ``right of possession.''
24. ``Right of Possession''
The Department proposes a new defined term ``right of possession''
by

[[Page 63215]]

moving the text from the existing regulations at Sec. 10.10(a)(2). The
Act recognizes a ``right of possession'' to cultural items; however,
Congress acknowledged that this right is qualified with respect to
human remains and associated funerary objects. The Act utilizes the
concept of right of possession first as a defense against criminal
sanctions for the sale, purchase, use, or transport for profit of human
remains (18 U.S.C. 1170); and again, where museums and Federal agencies
are permitted to assert a right of possession to unassociated funerary
objects, sacred objects, and objects of cultural patrimony with
evidence (25 U.S.C. 3005).
Congress did not provide a process for a museum or Federal agency
to assert a right of possession to human remains and associated
funerary objects. This approach is consistent with Congress' intent to
distinguish human remains and associated funerary objects from cultural
items as quasi-property. Applicable common law in the United States
generally accepts that human remains and associated burial items cannot
be ``owned'' in the same manner as conventional property. The Act (25
U.S.C. 3001 (13)) follows the common law by distinguishing between the
property attributes of Native American unassociated funerary objects,
sacred objects, or objects of cultural patrimony, and the quasi-
property attributes of Native American human remains and associated
funerary objects.
Congress acknowledged that the right of possession to unassociated
funerary objects, sacred objects, or object of cultural patrimony, as
defined in the Act, may be subject to a Fifth Amendment takings
analysis, and that these objects may potentially be considered
property. A right of possession for prehistoric cultural items fitting
these categories might be shown through a written authorization from a
competent authority to excavate, remove, and curate such items from a
particular area or site. Although Congress also determined that the
original acquisition of Native American human remains and associated
funerary objects which were exhumed, removed, or otherwise obtained
with full knowledge and consent of the next of kin or the official
governing body of the appropriate Indian Tribe or NHO is deemed to give
right of possession to those human remains and associated funerary
objects, Congress chose not to make that right of possession to human
remains and associated funerary objects subject to a Fifth amendment
takings analysis. Congress was clear that it did not intend to
categorize human remains and associated funerary objects as property
under the Act, as had been its approach for unassociated funerary
objects, sacred objects, or object of cultural patrimony. Thus, a Fifth
Amendment taking does not result from the repatriation of human remains
and associated funerary objects.
In the proposed revision, the Department interprets ``voluntary
consent'' and ``full knowledge and consent'' considering the history of
Indian country and recognizes that ``voluntary consent'' and ``full
knowledge and consent'' does not include ``consent'' given under duress
or as a result of bribery, blackmail, fraud, misrepresentation, or
duplicity on the part of the recipient. As such, consent in this
definition must be shown to have been fully free, prior, and informed
consent.
25. ``Sacred Object''
In response to consultation with Indian Tribes and NHOs, the
Department proposes to revise that a sacred object is, in the words of
the Act, ``needed'' for a traditional Native American religious
practice. Such practice could include the need to ritually inter the
object. The Department proposes to add to the definition of sacred
object (and to all specific definitions of cultural items) that
identification of a sacred object is according to a lineal descendant,
Indian Tribe, or NHO based on customs, traditions, or Native American
traditional knowledge. In the Act, the identification of a sacred
object is dependent upon consultation with lineal descendants, Indian
Tribes, and NHOs. By adding this phrase to the definition of a sacred
object, the Department seeks to emphasize that consultation, which is
required throughout the proposed regulation, is how a lineal
descendant, Indian Tribe, or NHO shares the information needed to
identify a sacred object.
26. ``Traditional Religious Leader''
The Department proposes to revise the term ``traditional religious
leader'' in response to consultation with Indian Tribes and NHOs. The
term is not defined in the Act and the proposed revisions are intended
to clarify and simplify the definition. The proposed revisions intend
to place the authority for identifying a traditional religious leader
in the hands of an Indian Tribe or NHO. There is no requirement for an
Indian Tribe or NHO to disclose information about the cultural,
ceremonial, or religious practices or cultural duties or leadership
role used to identify a traditional religious leader.
27. ``Tribal Lands''
The Department proposes to revise the term ``Tribal lands'' by
removing the provision in the existing regulations related to a taking
of property without compensation within the meaning of the Fifth
Amendment of the United States Constitution (25 U.S.C. 3001(13)).
Comments to the 1995 final rule sought clarification regarding the
application of NAGPRA to privately owned lands within the exterior
boundaries of an Indian reservation. To address any potential conflict,
the final rule codified language stating that the regulations will not
apply to Tribal lands to the extent that any particular action
authorized or required will result in such a taking of property. A
review of the legislative history for the Act shows this concept does
not apply to the statute as enacted and therefore is removed from the
definition of Tribal lands.
28. ``Tribal Lands of an NHO''
The Department proposes to add a new term ``Tribal lands of an
NHO'' to more accurately describe a subset of Tribal lands in
Hawai[revaps]i so it can be applied in the regulatory process in
Subpart B. In the Act, priority for disposition of human remains or
cultural items from Tribal lands is in the Indian Tribe or NHO on whose
Tribal lands the human remains or cultural items were removed. While
the Tribal lands of an Indian Tribe is clearly identified by the
definition of Tribal lands, the application of this priority on Tribal
lands in Hawai[revaps]i is not clear from the definition of Tribal
lands alone. This definition provides for an NHO to take on
responsibility for the provisions of the Act from the State of
Hawai[revaps]i DHHL. When an NHO has a lease or license from DHHL
pursuant to the Hawaiian Homes Commission Act (HHCA), that NHO can
elect to take on any of the responsibilities under Subpart B of the
proposed regulations on its Tribal lands (see proposed Sec. Sec.
10.5(c), 10.6(a), and 10.7(c)).
29. ``Unclaimed Cultural Items''
The Department proposes to revise the term ``unclaimed cultural
items'' for clarity. The proposed revision retains the same central
requirement of the existing definition but removes the more regulatory
process part of the existing regulation to the regulatory text (see
proposed Sec. 10.7(e)).
30. ``United States''
The Department proposes to add a new term ``United States'' to
provide a geographical descriptor throughout this part.

[[Page 63216]]

D. Section 10.3 Cultural and Geographical Affiliation

This section of the proposed rule would improve the organizational
structure of the existing regulations and better align the requirements
with Congressional intent. The Department proposes to relocate existing
regulatory provisions at Sec. 10.14 to Subpart A-General.
The proposed revisions would remove the criteria for determining
lineal descent in the existing regulations at Sec. 10.14(b), as it is
repetitive of the definition for lineal descendant and not necessary.
In conjunction with the defined term ``affiliation,'' the proposed
revisions reflect the intent of Congress that for purposes of
disposition or repatriation, all that is required is a reasonable
connection between human remains or cultural items and an Indian Tribe
or NHO (H. Rep. 101-877, at 14, and S. Rep. 101-473, at 6). The
proposed revisions identify two kinds of affiliation for purposes of
disposition or repatriation: cultural or geographical.
1. Cultural Affiliation
For cultural affiliation, the proposed revisions clarify the
existing requirements by moving ``cultural affiliation'' to this
section to include not only what it is, but also how it is established
and what it does not require. The proposed revisions simplify the
information and criteria needed to identify cultural affiliation by
removing extraneous or duplicative language that has often been a
barrier to repatriation. The proposed revisions also clearly explain
that more than one Indian Tribe or NHO may have a cultural affiliation
to human remains or cultural items.
For example, assume that the only information available for
individual human remains shows that the human remains were removed from
a particular site and that the human remains have a date range spanning
1,000 years. Indian Tribe A has a relationship of shared group identity
to an earlier group who occupied the site at some point during that
1,000-year span. Similarly, Indian Tribe B has a shared group identity
with a different earlier group that also occupied the site at different
point during that 1,000-year span. Even though Indian Tribe A and
Indian Tribe B do not themselves have a relationship of shared group
identity, both Indian Tribe A and Indian Tribe B have a cultural
affiliation with the human remains from that site.
In response to consultation with Indian Tribes and NHOs, the
Department emphasizes that ``a preponderance of the evidence'' is a
similar standard to a ``reasonableness'' requirement, both of which are
common legal concepts. In both standards, a ``more likely than not''
assessment is required, such that the reasonableness requirement for
tracing cultural affiliation is satisfied by a preponderance of the
evidence establishing cultural affiliation. Congressional report
language states cultural affiliation ``shall be established by a simple
preponderance of the evidence,'' and that phrase is used in the
proposed revisions.
2. Geographical Affiliation
For geographical affiliation, the proposed revisions draw on
language in the Act requiring the identification of ``the geographical
and cultural affiliation'' (25 U.S.C. 3003(a)) and include the
information and criteria needed to establish geographical affiliation.
The proposed revisions clarify, as under the existing regulations at
Sec. 10.11, ``geographical affiliation'' is identified by tracing a
relationship between an Indian Tribe or NHO and a geographic area
connected to the human remains or cultural items. While cultural
affiliation requires a simple preponderance of the evidence given the
information available, geographical affiliation only requires that the
information be available. The proposed revisions also clearly explain
that more than one Indian Tribe or NHO may have a geographical
affiliation to human remains or cultural items.
For example, assume that the geographic area connected to human
remains and associated funerary objects is the Tribal lands of Indian
Tribe L, the adjudicated aboriginal land of Indian Tribe N, and the
acknowledged aboriginal land of Indian Tribes M, N, O, and P. All the
Indian Tribes (L, M, N, O, and P) have a geographical affiliation with
the human remains. Any information beyond the geographic area, for
example when the human remains or cultural items were removed or types
of associated funerary objects, may provide information sufficient to
identify a more specific cultural affiliation to one or more of the
Indian Tribes but must not be used to limit the geographical
affiliation to all the Indian Tribes.
The proposed revision states (in response to consultation with
Indian Tribes and NHOs) that the information used to identify
geographical affiliation may provide information sufficient to also
establish cultural affiliation. Because geographical information is one
line of information that may be used for cultural affiliation, that
information alone may be sufficient to establish cultural affiliation
as well as geographical affiliation.
3. Multiple Affiliations and Closest Affiliations
The proposed revisions provide clear instructions to Indian Tribes,
NHOs, museums, and Federal agencies for making and considering single
claims or requests and for resolving competing claims or requests by
identifying the Indian Tribe or NHO with the closest affiliation (see
proposed Sec. 10.3(c) and (d)). The proposed revisions clearly explain
that two or more Indian Tribes or Native Hawaiian organization may
submit a claim for disposition or a request for repatriation and may
claim joint disposition or request joint repatriation of human remains
or cultural items. Joint claims or requests are considered a single
claim or request and not competing claims or requests.
In rare cases when there are competing claims or requests, museums
and Federal agencies must identify the ``closest cultural affiliation''
(25 U.S.C. 3002(a)(2)(B)) and the ``most appropriate claimant'' (25
U.S.C. 3005 (e)). The Act provides no process for making these
identifications, but in the inventory and notification provisions of
the Act (25 U.S.C. 3003(d)(2)(B) and (C)), there is a distinction made
between two types of cultural affiliation: clearly identifiable as to
tribal origin and not clearly identifiable as being culturally
affiliated but determined by a reasonable belief. The Department
proposes to use this language to inform how a museum or Federal agency
might resolve competing claims for disposition or requests for
repatriation. The standard for establishing cultural affiliation in the
first instance is always a preponderance of the evidence, but when
multiple Indian Tribes or NHOs meet that standard and have submitted
competing claims or requests, these paragraphs provide a priority order
to differentiate between culturally affiliated Indian Tribes. In
resolving competing claims or requests, a museum or Federal agency may
identify one or more Indian Tribes or NHOs with the closest
affiliation.
Table 4 shows how the Department proposes to reorganize the
existing regulatory requirements regarding cultural or geographical
affiliation.

[[Page 63217]]

Table 4--Cross-Reference of Existing Provisions to Proposed Sec. 10.3
----------------------------------------------------------------------------------------------------------------

E. Section 10.4 General

This section of the proposed rule would provide a general overview
to Subpart B and clarify the responsibilities of Indian Tribes, NHOs,
Federal agencies, and the State of Hawai`i Department of Hawaiian Home
Lands (DHHL) for human remains or cultural items on Federal or Tribal
lands. This section would consolidate general information in the
existing regulations at Sec. Sec. 10.3, 10.4, and 10.5. The Department
proposes to revise the title of Subpart B (in response to consultation
with Indian Tribes and NHOs) to better reflect the intent of Congress
for this section of the Act (25 U.S.C. 3002).
1. Appropriate Official
The Department proposes to employ a new term, ``appropriate
official,'' to denote the person or persons responsible for completing
the regulatory requirements related to a discovery, excavation, and
disposition of human remains or cultural items on Federal or Tribal
lands. The revision would improve consistency with the Act by requiring
certain actions be taken by the appropriate official for an Indian
Tribe, NHO, Federal agency, and DHHL concerning discoveries,
excavations, and disposition on Federal or Tribal lands.
2. Plan of Action
On all Federal lands in the United States or on some Tribal lands
in Hawai`i, the Department proposes (in response to consultation with
Indian Tribes and NHOs) to move the existing regulatory requirement for
a plan of action to the beginning of the subpart. In the existing
regulations, Sec. 10.5(e) requires Federal agency officials to
prepare, approve, and sign a written plan of action after consultation
and before a planned activity that may result in the excavation of
human remains or cultural items. The proposed revisions would require a
plan of action before for any planned activity that may result in the
discovery or excavation of human remains or cultural items as well as
after a discovery of human remains or cultural items and before
authorizing an excavation that may result in the discovery or
excavation of human remains or cultural items. The Department proposes
to simplify the plan of action in three separate steps (see proposed
Sec. 10.4(b)): (1) Step 1--Initiate consultation; (2) Step 2--Consult
with requesting parties; and (3) Step 3--Approve and sign the plan of
action. Consulting parties listed in Sec. 10.4(b)(1) would not be
considered the same as consulting parties under other applicable law,
specifically under 36 CFR part 800. The Department proposes to use
specific terms to clarify the distinction between a consulting party
(as defined in Sec. 10.4(b)(1)(i)) and a requesting party (any
consulting party that submits a written request to consult).
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that consultation seek consensus, to the
maximum extent possible, on the content of the plan of action. In
addition, a record of consultation must include the effort made to seek
consensus or describe efforts to identify a mutually agreeable
alternative. The consultation record must note the concurrence,
disagreement, or nonresponse of the requesting parties to the plan of
action. These requirements are used throughout the proposed regulations
whenever consultation with requesting parties is required. The
Department proposes to remove some of the existing requirements for a
plan of action that are not necessary and overly intrusive. Depending
on the results of consultation, any of these elements may be included
in a plan of action but are no longer the minimum requirement for a
plan of action. Specifically, the Department proposes to remove the
following items from a plan of action in the existing regulations at
Sec. 10.5(e):
(1) The kinds of objects considered as cultural items;
(2) The specific information used to determine disposition;
(4) The planned archaeological recording;
(5) The kinds of analysis planned for each kind of object; and
(8) The nature of reports to be prepared.
The Department proposes to include in a plan of action the
preference of requesting parties for stabilizing and covering human
remains or cultural items in situ, protecting and relocating human
remains or cultural items, if removed, or providing appropriate
treatment, care, or handling of human remains or cultural items. For
example, under the proposed regulations, a plan of action might
indicate that requesting parties prefer protection of human remains or
cultural items in situ, but when that is not possible, the plan of
action may require that the appropriate official protect and relocate
the human remains or cultural items by burying them in a nearby
location. Once disposition under Sec. 10.7 is complete (including any
required notice publication and claim), the claimants may determine the
care, custody, or physical transfer of the human remains or cultural
items, including deciding to leave the human remains or cultural items
buried in the nearby location.
In response to consultation with Indian Tribes and NHOs and based
the experience of Federal agencies with these requirements since 1990,
the Department is aware of a preference by some Indian Tribes for
allowing natural exposure or erosion of human remains or cultural items
to continue, without covering or removing human remains or cultural
items. In those cases, a plan of action may indicate that requesting
parties prefer the appropriate official take no action upon the
discovery of human remains or cultural items that

[[Page 63218]]

are naturally exposed. The plan of action should also indicate what the
appropriate official will do if the human remains or cultural items
cannot be left in place. If disposition under Sec. 10.7 is required
because the human remains or cultural items could not be left in place,
the claimants (after notice publication and claim, if required) may
determine the care, custody, or physical transfer of the human remains
or cultural items, including returning them to a safe location to
continue a natural process.
3. Comprehensive Agreement
The Department proposes to retain the option for Federal agencies
or DHHL to enter into a comprehensive agreement for all land managing
activities on Federal or Tribal lands under its responsibility. The
proposed regulations would require a comprehensive agreement be
consented to by a majority of requesting parties and include, at
minimum, the information required in a plan of action.
Table 5 shows how the Department proposes to reorganize the
existing regulatory requirements on Federal or Tribal lands after
November 16, 1990.

Table 5--Cross-Reference of Existing Provisions to Proposed Sec. 10.4
----------------------------------------------------------------------------------------------------------------

F. Section 10.5 Discovery

This section of the proposed rule would implement the requirements
of the Act regarding a discovery of human remains or cultural items on
Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(d)).
This section would include and clarify the requirements in the existing
regulations at Sec. 10.4(b) through (e) regarding discoveries.
1. Reporting and Documentation Requirements Upon Discovery
The proposed language in Sec. 10.5(a) and (b) would prescribe
specific reporting and documentation procedures that any person who
knows or has reason to know of a discovery must take upon discovery of
human remains or cultural items. Specifically, the proposed language
would:
<bullet> Establish reporting timeframes (immediately with written
documentation in 24 hours), requirements to secure and protect the
discovery, and documentation requirements to include the location and
contents of the discovery.
<bullet> Provide clear instructions for reporting the discovery in
Table 1 to Sec. 10.5, which identifies the appropriate official and
the additional point of contact who must be informed of a discovery,
based on the location of the discovery.
2. Timeframes To Respond to Discovery
The Department also proposes to require the appropriate official
respond to any discovery on Federal or Tribal lands and keep the
existing regulations' timeline of three days. On Tribal lands, the
existing regulations only recommend actions by an appropriate official
by using the verb ``may'' in the existing regulation at Sec. 10.4(e).
The Department proposes to change this to ``require,'' on Tribal lands
in Alaska and the continental United States, that the appropriate
official for an Indian Tribe respond to a discovery and certify that an
activity may resume (see proposed Sec. 10.5(c) and (e)), with an
option to delegate this responsibility to the Bureau of Indian Affairs
or another Federal agency. On Tribal lands of an NHO, the NHO may
accept responsibility for discoveries on its Tribal lands; otherwise
DHHL is responsible for discoveries on Tribal lands in Hawai`i. Table 6
shows the name of each requirement and a shortened version of the
deadline in the proposed revisions.

Table 6--Discovery
------------------------------------------------------------------------
Requirement Deadline (no later than)
------------------------------------------------------------------------
Report a discovery..................... 24 hours after a discovery.
Cease any nearby activity.............. Immediately.
Respond to a discovery................. 3 days after a report of a
discovery.
Approve and sign a plan of action...... 30 days after a report of a
discovery.
Certify an activity may resume......... 35 days after a report of a
discovery.
Resume an activity..................... 30 days after certification.
------------------------------------------------------------------------

3. Plan of Action
On all Federal lands in the United States or on Tribal lands in
Hawai`i, the Department proposes (in response to consultation with
Indian Tribes and NHOs) to revise the existing notification and
consultation requirements for discoveries under Sec. 10.4(d)(iii) and
(iv) by requiring a plan of action. Although

[[Page 63219]]

the Act does not require consultation on a discovery, the Department
proposes to require the appropriate official, in consultation with
Indian Tribes or NHOs, prepare, approve, and sign a plan of action
within 30 days of a discovery. The Department hopes that by requiring a
plan of action after a discovery, Federal agencies and DHHL will be
encouraged to engage in consultation earlier and develop a plan of
action prior to a discovery. The requirement for a plan of action is
waived if, prior to the discovery, the appropriate official approved
and signed a comprehensive agreement or plan of action, or if an NHO
agreed to be responsible for discoveries on its Tribal lands.
4. Certification and Resumption of Activity
The Department proposes to provide additional time for the
appropriate official to certify an activity related to a discovery may
resume. In the existing regulations at Sec. 10.4(d) and (e), the
appropriate official on Federal or Tribal lands must certify receipt of
a notification of a discovery within three days and the activity
related to the discovery may resume 30 days later. The existing
regulations do not allow for any additional time and do not provide a
mechanism for the appropriate official to prevent an activity from
resuming 33 days after a discovery.
The Department proposes to build in an additional 35 days, if
needed, for consultation with Indian Tribes and NHOs, evaluation of the
discovery, and to carry out a plan of action (see proposed Sec.
10.5(e)). The Department is specifically seeking input during public
comment on this timeline. The Act requires that an activity may resume
30 days after the appropriate official certifies that notification of a
discovery was received (25 U.S.C. 3002(d)(1), last sentence). The
legislative history clearly indicates that reporting a discovery is not
meant to be an impediment to resuming a lawful activity on Federal or
Tribal lands. However, the Department proposes to allow an additional
35 days in the timeline by separating the requirements for responding
to a discovery within 3 days from the requirements for certifying that
an activity may resume within 30 days. This would allow a maximum of 65
business days (35 business days to certify and 30 business days later
resume the activity) after a discovery on Federal or Tribal lands
before an activity could resume. If the appropriate official determines
an earlier date for resuming the activity is acceptable, there is no
restriction against certifying the activity may resume within less than
65 days. The proposed change would allow the appropriate official more
time, if needed, to consult with Indian Tribes and NHOs, evaluate the
potential need for an excavation, and carry out the steps in a plan of
action.
Table 7 shows how the Department proposes to reorganize the
existing regulatory requirements regarding a discovery.

Table 7--Cross-Reference of Existing Provisions to Proposed Sec. 10.5
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.4(b)...................... Discovery............... 10.5(a)...................... Report any discovery.
10.4(c)...................... Ceasing activity........ 10.5(b)...................... Cease any nearby
activity.
10.4(d)...................... (1) As soon as possible, 10.5(c)...................... Respond to a discovery.
10.4(e)...................... but no later than three
(3) working days . ..
10.4(d)...................... (1) (iv) Initiate 10.5(d)...................... Approve and sign a plan
consultation. of action.
10.4(d)...................... (2) Resumption of 10.5(e)...................... Certify that an activity
10.4(e)...................... activity. may resume.
10.4(a)...................... General................. ............................. Removed.
----------------------------------------------------------------------------------------------------------------

G. Section 10.6 Excavation

This section of the proposed rule would implement the requirements
of the Act regarding excavation of human remains or cultural items on
Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(c)).
This section would include and clarify the requirements in the existing
regulations at Sec. 10.3(b) and (c) regarding excavations.
1. Jurisdiction to Issue ARPA Permit
The Department proposes to revise the existing regulations to
clarify the jurisdiction of a Federal agency to issue a permit under
Section 4 of the Archaeological Resources Protection Act (ARPA) for an
excavation. This proposed change, based on the legislative history of
NAGPRA, would address requests from Federal agencies and DHHL to
correct the scope of jurisdiction in the existing regulations at Sec.
10.3(b)(1), which requires the Bureau of Indian Affairs to take certain
actions on private lands for which they do not have jurisdictional
authority. The Department proposes that an excavation on Federal or
Tribal lands would only require a permit under the ARPA (16 U.S.C.
470cc) if the excavation would occur on ``Indian lands'' or ``public
lands'' under ARPA (referred to and defined as ``ARPA Indian lands''
and ``ARPA public lands''), subject to the exemptions in the ARPA
Uniform Regulations. ARPA's definition of ``Indian lands'' and ``public
lands'' is narrower than ``Tribal lands'' and ``Federal lands'' under
NAGPRA, which is why the Department proposes to include the ARPA
definitions in these proposed regulations. The legislative history of
NAGPRA makes clear that Congress intended to protect human remains and
cultural items by requiring ARPA permits be issued for NAGPRA
excavations when a permit is also required under ARPA.
2. Requirement for Consent to Excavation
Consistent with the Act, the proposed language in Sec. 10.6(a)
would require, on Tribal lands, an Indian Tribe or NHO to consent in
writing to an excavation. On Tribal lands in Alaska and the continental
United States, an Indian Tribe may delegate this responsibility to the
Bureau of Indian Affairs or another Federal agency. On Tribal lands of
an NHO, the NHO may accept responsibility for excavations on its Tribal
lands; otherwise DHHL is responsible for excavations on Tribal lands in
Hawai`i.
3. Requirement for Plan of Action Prior To Authorizing Excavation
On all Federal lands in the United States or on Tribal lands in
Hawai`i, the Department proposes (in response to consultation with
Indian Tribes and NHOs) to revise the notification and consultation
requirements for excavations under existing Sec. 10.3(c)(1)

[[Page 63220]]

by requiring a plan of action prior to authorizing an excavation of
human remains or cultural items. The Act requires consultation with the
appropriate Indian Tribe or NHO prior to permitting an excavation, and
the Department proposes to require the appropriate official, in
consultation with Indian Tribes and NHOs, prepare, approve, and sign a
plan of action prior to authorizing an excavation of human remains or
cultural items as proof of consultation. The Department hopes that by
requiring a plan of action before authorizing an excavation, Federal
agencies and DHHL will be encouraged to engage in consultation earlier
and develop a plan of action prior to any need for an excavation. The
requirement for a plan of action is waived if, prior to authorizing the
excavation of human remains or cultural items, the appropriate official
approved and signed a comprehensive agreement or plan of action, or if
an NHO agreed to be responsible for excavations on its Tribal lands.
Table 8 shows how the Department proposes to reorganize the
existing regulatory requirements regarding excavation and consultation.

Table 8--Cross-Reference of Existing Provisions to Proposed Sec. 10.6
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.3(b)...................... Specific Requirements. 10.6......................... A permit under Section 4
(1) . . . following the of ARPA is required
requirements of ARPA . when . . .
. .
10.3(b)...................... (2) . . . in the case of 10.6(a)...................... On Tribal lands.
tribal lands, consent
of, the appropriate . .
.
(4) Proof of the
consultation or consent
is shown . . ..
10.3(c)...................... Procedures.
(4) . . . on tribal
lands, the Indian tribe
or NHO may . . ..
10.3(c)...................... Procedures.............. 10.6(b)...................... On Federal lands in the
(1) . . . the Federal United States or on
agency official must Tribal lands in
notify in writing . . .. Hawai`i.
(2) . . . must complete
a written plan of
action . . ..
10.3(a)...................... General................. ............................. Removed.
10.3(b)...................... (3) The disposition of ............................. Removed.
the objects . . ..
----------------------------------------------------------------------------------------------------------------

H. Section 10.7 Disposition

This section of the proposed rule would implement the requirements
of the Act regarding the disposition of human remains or cultural items
removed from Federal or Tribal lands after November 16, 1990 (25 U.S.C.
3002(a) and (b)). This section would include and clarify the
requirements in the existing regulations at Sec. Sec. 10.6 and 10.7
regarding dispositions.
1. Consistent Use of the Term ``Disposition''
The Department proposes to replace the term ``disposition'' in the
existing regulations with two separate terms: ``disposition'' and
``repatriation.'' In the proposed revision, ``disposition'' applies
consistently throughout but only to Subpart B. In the existing
regulations, ``disposition'' and the undefined word custody are used
interchangeably at times while ``disposition'' is also used as a catch-
all term for any transfer of human remains or cultural items under the
regulations. The Act uses the terms ``ownership,'' ``right of control
of the disposition,'' and ``disposition of and control over'' in
describing this process (25 U.S.C. 3002). In the proposed revision,
``disposition'' is the title of this section and means the appropriate
official acknowledges and recognizes a lineal descendant, Indian Tribe,
or Native Hawaiian organization has control or ownership of human
remains or cultural items removed from Federal or Tribal lands.
2. Timeline for Disposition
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that disposition occur as soon as
possible, but no later than one year, after the discovery or excavation
of human remains or cultural items on Federal or Tribal lands. In the
existing regulations, there is no deadline for disposition, and the
Department is aware of many instances where human remains or cultural
items have not completed the regulatory process for years or even
decades after discovery or excavation. This timeline will ensure that,
on all Federal lands in the United States or on Tribal lands in
Hawai`i, when disposition cannot be completed within one year, the
Federal agency or DHHL reports the human remains or cultural items to
the Manager, National NAGPRA Program.
The Department proposes to clarify the requisite steps for
disposition by establishing a step-by-step process with corresponding
deadlines. Table 9 shows the name of each step and a shortened version
of the deadline in the proposed revisions.

Table 9--Step-by-Step Process for Disposition
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Inform consulting parties...... 6 months after a discovery or
excavation.
Step 2--Submit a notice of intended 6 months after Step 1.
disposition.
Step 3--Receive and consider a claim Any time after notice
for disposition. publication.
Step 4--Respond to a claim for 30 days after Step 3.
disposition.
Step 5--Disposition of the human 90 days after Step 4.
remains or cultural items.
------------------------------------------------------------------------

[[Page 63221]]

3. Priority for Disposition
The Department proposes to simplify and clarify information
contained in the existing regulations at Sec. 10.6(a). The proposed
revisions are consistent with the Act and the existing regulations in
establishing the priority for disposition (see proposed Sec. 10.7(a)),
which can be simplified to be:
(1) Lineal descendants,
(2) Tribal lands Indian Tribe or NHO,
(3) Indian Tribe or NHO with clear cultural affiliation,
(4) Indian Tribe or NHO with reasonably identified cultural
affiliation,
(5)(i) Adjudicated aboriginal land Indian Tribe, and
(5)(ii) Indian Tribe with a stronger cultural relationship than
(5)(i).
4. Align Disposition to a Lineal Descendant or on Tribal Lands to the
Act
The Department proposes to remove the requirement in the existing
regulations at Sec. 10.6(c) for publishing notices or requiring claims
for disposition to a lineal descendant. The existing regulations do not
provide any requirements for disposition of human remains or cultural
items from Tribal lands. The Department proposes to require written
documentation for disposition to a lineal descendant or on Tribal lands
to better align with the Act (25 U.S.C. 3002(a)(1) and (2)(A); note the
lack of a requirement for a notice or claim). On Tribal lands in Alaska
and the continental United States, an Indian Tribe may delegate its
responsibilities for disposition to the Bureau of Indian Affairs or
another Federal agency. On Tribal lands of an NHO, the NHO may accept
responsibility for dispositions on its Tribal lands; otherwise DHHL is
responsible for dispositions on Tribal lands in Hawai`i.
5. Revise Requirements for Notices and Claims for Disposition
The Department proposes to revise language in the existing
regulations at Sec. 10.6(c) describing the requirements for Federal
agencies to publish notices, receive claims, and complete dispositions
in one paragraph with long, complex sentences. On all Federal lands in
the United States and on Tribal lands in Hawai`i, the proposed
revisions would provide five clearly written steps to complete the
disposition of human remains or cultural items and establish deadlines
and timelines.
The Department proposes to change the notice publication
requirement in the existing regulations at Sec. 10.6(c) that requires
two publications of a notice in local area newspapers at least one week
apart. This requirement has become increasingly burdensome given the
general changes in newspaper publications since 1995. The Department
proposes to require only one publication in the Federal Register by the
Manager, National NAGPRA Program.
The Department proposes a new requirement for completing
dispositions by sending claimants and the Manager, National NAGPRA
Program, a written disposition statement. In the case of joint claims
for disposition, the disposition statement would identify and be sent
to all claimants. In the case of competing claims for disposition, the
proposed revisions give guidance and timelines for identifying the most
appropriate claimant and completing the disposition. The Act requires
that the Federal agency apply the priority order and determine the
``closest cultural affiliation'' based on the evidence before it (25
U.S.C. 3002(a)(2)(B)) and does not provide for a stay of disposition to
acquire further evidence or information.
6. Unclaimed Human Remains or Cultural Items
The Department proposes to move the existing section at Sec. 10.7
to be a paragraph under the larger disposition section and modify the
existing timeline. On all Federal lands in the United States or on
Tribal lands in Hawai`i, when disposition cannot be completed within
one year of a discovery, excavation, or notice of intended disposition,
the proposed revisions require that the Federal agency or DHHL must
report the human remains or cultural items to the Manager, National
NAGPRA Program. These provisions would apply to any human remains or
cultural items that were discovered or excavated on Federal lands in
the United States or on Tribal lands in Hawai`i after November 16,
1990, even if it has been more than one year since the discovery,
excavation, or notice of intended disposition. Federal agencies and
DHHL should submit a list of all unclaimed human remains or cultural
items removed from Federal or Tribal lands. As in the existing
regulations at Sec. 10.7(c) through (e), the proposed revisions would
provide a process whereby a Federal agency or DHHL may transfer or
reinter unclaimed human remains or cultural items, after it publishes a
notice of proposed transfer or reinterment.
The Department proposes to clarify the requisite steps for
unclaimed human remains or cultural items by establishing a step-by-
step process with corresponding deadlines. Table 10 shows the name of
each step and a shortened version of the deadline in the proposed
revisions.

Table 10--Step-by-Step Process for Unclaimed Human Remains or Cultural
Items
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Submit a list of unclaimed 1 year after effective date,
cultural items. update by Dec 31 each year.
Step 2--Agree to transfer or decide to Any time after Step 1.
reinter human remains or cultural
items.
Step 3--Submit a notice of proposed 30 days after Step 2.
transfer or reinterment.
Step 4--Transfer or reinter the human 90 days after Step 3.
remains or cultural items.
------------------------------------------------------------------------

Table 11 shows how the Department proposes to reorganize and revise
the existing regulatory requirements regarding disposition.

Table 11--Cross-Reference of Existing Provisions to Proposed Sec. 10.7
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.6(a)...................... Priority of custody..... 10.7(a)...................... Priority for
disposition.
New..................... 10.7(b)...................... To a lineal descendant.
10.15(d)..................... Savings provisions...... (3) After the
disposition statement
is sent . . .

[[Page 63222]]

New..................... 10.7(c)...................... On Tribal lands.
10.15(d)..................... Savings provisions...... (4) After the
disposition statement
10.10(c)..................... (3) . . . from expressly
relinquishing title to
. .
10.6(c)...................... Final notice, claims and 10.7(d)...................... On Federal lands in the
disposition with United States or on
respect to Federal Tribal lands in
lands. Hawai`i.
(1) Step 1: Inform
consulting parties.
(2) Step 2: Submit a
notice of intended
disposition.
(3) Step 3: Receive and
consider a claim for
disposition.
(4) Step 4: Respond to a
claim for disposition.
(5) Step 5: Disposition
of the human remains or
cultural items.
10.15(d)..................... Savings provisions...... (5)(iii) After the
disposition statement .
. .
10.10(c)..................... (3) . . .from expressly ........................
relinquishing title to
. . .
10.7......................... Disposition of unclaimed 10.7(e)...................... Unclaimed human remains
. . .. or cultural items . . .
10.7(b)...................... (1) Submit a list of (1) Step 1: Submit a
items . . . list of unclaimed human
remains or cultural
items.
10.7(c)...................... . . . upon request, (2) Step 2: Agree to
transfer . . . transfer or decide to
reinter human remains
or cultural items.
(3) Step 3: Submit a
notice of proposed
transfer or
reinterment.
(4) Step 4: Transfer or
reinter the human
remains or cultural
items.
(4)(ii) After transfer
or reinterment occurs .
. .
10.7(d)...................... . . . reinter . . .
10.7(e)...................... (2) Publish a notice of
the proposed transfer
or reinterment . . .
New.....................
10.15(d)..................... Savings provisions.
10.10(c)..................... (3) . . . from expressly ........................
relinquishing title to
. . .
10.6(b)...................... Custody of human remains Removed.
. . ..
10.7(b)...................... (2) Care for and manage 10.1(d)...................... Duty of care.
. . ..
(3) To the maximum
extent feasible . . ..
10.7(a)...................... This section carries out Removed.
. . ..
10.7(e)...................... (1) Submit the list ........................
required . . ..
(3) Send to the Manager,
National NAGPRA Program
. . .
----------------------------------------------------------------------------------------------------------------

I. Section 10.8 General
This section of the proposed rule would provide a general overview
to Subpart C and clarify the requirements for museums and Federal
agency with possession or control of holdings or collections. The
section would consolidate general information in the existing
regulations at Sec. Sec. 10.8(a), 10.9(a), 10.11(e), and 10.17(a). The
Department proposes to revise the title of Subpart C (in response to
consultation with Indian Tribes and NHOs) to better reflect the intent
of Congress for these sections of the Act (25 U.S.C. 3003-3005).
1. Clarify Who Has Responsibility for Holdings or Collections
The Department proposes to clarify, regardless of the physical
location of a holding or collection, who is responsible for carrying
out the requirements of the Act. The proposed revisions would provide
both museums and Federal agencies with instructions on determining
possession or control of holdings or collections. As discussed in the
definition section, whether a museum or Federal agency has possession
or control is a legal determination that must be made on a case-by-case
basis. However, when a museum with custody of human remains or cultural
items cannot identify any person, institution, State or local
government agency, or Federal agency with possession or control, the
museum should presume it has possession or control for purposes of
Subpart C. When a Federal agency cannot determine if human remains or
cultural items came into its possession or control before or after
November 16, 1990, or cannot identify the type of land the human
remains or cultural items were removed from, the Federal agency should
presume it has possession or control for purposes of Subpart C.
2. Museums With Custody of a Federal Agency Holding or Collection
The Department proposes two new requirements aimed at locating
Federal collections in non-Federal museums (see proposed Sec.
10.8(c)). Specifically, the proposed language would require that:
<bullet> A museum must submit a statement describing Federal
holdings or collections in its custody to the responsible Federal
agency and to the Manager, National NAGPRA Program, no later than one
year after the effective date of the final rule; and
<bullet> Within 120 days of receiving such a statement, the Federal
agency must acknowledge its possession or control of a holding or
collection, acknowledge that it does not have possession or control of
a holding or collection, or acknowledge it has joint possession or
control with the museum.
These new requirements are a direct response to requests from
Federal agencies and Indian Tribes who struggle to locate Federal
collections in non-Federal museums. In 2010, the Government
Accountability Office commented on this issue in its report on Federal
agency compliance with the Act. Addressing this issue, the Department's
detailed response to the Government Accountability Office's

[[Page 63223]]

report stated, ``These instances illustrate the importance of
repositories notifying agencies upon discovery of Federal collections
in their possession.'' This requirement is consistent with the
conditions for repositories holding Federal collections under 36 CFR
part 79, its referenced Federal property management authorities, and
the Secretary's authority to prescribe regulations relating to Indian
affairs under 25 U.S.C 9 (United States v. Eberhardt, 780 F.2d 1354,
1360 (9th Cir.1986)).
If a museum has custody of a holding or collection from multiple
agencies or is unsure which Federal agency has possession or control of
the holding or collection, the museum must send information on the
holding or collection to any Federal agency that might have an interest
and to the Manager, National NAGPRA Program. If a museum is unsure of
who the appropriate point of contact is for a Federal agency, the
Department recommends contacting the Federal Preservation Officer to
assist in identifying the appropriate agency contact. The Advisory
Council on Historic Preservation keeps an updated list at <a href="https://www.achp.gov/protecting-historic-properties/fpo-list">https://www.achp.gov/protecting-historic-properties/fpo-list</a>. In responding to
such statement, a Federal agency need not perform exhaustive research
to determine whether it has possession or control of the collection,
but it must merely assess the museum's statement on possession or
control based on the information available to the Federal agency.
3. Museums With Custody of Other Holdings or Collections
The Department proposes a new requirement for museums with custody
of holdings or collections for which the museum cannot identify who has
possession or control. The museum would be required to submit a
statement describing holdings or collections in its custody for which
it cannot identify any person, institution, State or local government
agency, or Federal agency with possession or control. The statement
would be sent to the Manager, National NAGPRA Program, no later than
one year after the effective date of the final rule. This new
requirement is a direct response to requests from Indian Tribes who
struggle to determine their rights to holdings or collections in the
custody, but not in the possession or control, of a museum. The
Manager, National NAGPRA Program, would share this information with
appropriate parties to determine possession and control and proceed
with the inventory, summary, and repatriation processes.
Table 12 shows how the Department proposes to reorganize and add to
the existing regulatory requirements for museum or Federal agency
holdings or collections.

Table 12--Cross-Reference of Existing Provisions to Proposed Sec. 10.8
----------------------------------------------------------------------------------------------------------------
(1) Existing 43 CFR section (1) Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.8(a).................... General.................... 10.8(a)................... Museum holding or
collection.
10.9(a) 10.8(b)................... Federal agency holding or
collection
New........................ 10.8(c)................... Museums with custody of a
Federal agency holding or
collection.
10.8(d)................... Museums with custody of
other holdings or
collections.
10.11(e)................... Disputes................... 10.8(e)................... Contesting actions on
repatriation.
10.17(a)................... Formal and informal
resolutions.
----------------------------------------------------------------------------------------------------------------

J. Section 10.9 Repatriation of Unassociated Funerary Objects, Sacred
Objects, and Objects of Cultural Patrimony

This section of the proposed rule would implement the requirements
of the Act regarding summaries of holdings or collections to facilitate
the repatriation of unassociated funerary objects, sacred objects, or
objects of cultural patrimony (25 U.S.C. 3004 and 3005). In response to
consultation with Indian Tribes and NHOs, the Department proposes to
retain the existing requirement that a museum or Federal agency prepare
a summary for any holding or collection that may contain unassociated
funerary objects, sacred objects, or objects of cultural patrimony.
NAGPRA requires ``Each Federal agency or museum which has possession or
control over holdings or collections of Native American unassociated
funerary objects, sacred objects, or objects of cultural patrimony
shall provide a written summary of such objects based upon available
information held by such agency or museum'' (25 U.S.C. 3004(a)). The
statutory language is unclear whether summaries should include only the
unassociated funerary objects, sacred objects, or objects of cultural
patrimony, or the entire collection which may include these cultural
items. The Act was enacted for the benefit of Indians and therefore the
canon of construction applies that statutes ``are to be construed
liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit'' (Yankton Sioux Tribe v. United States
Army Corps of Engineers, 83 F. Supp 2d 1047, 1056 (D.S.D. 2000)). The
legislative history and statutory language are clear that the summary
is intended as an initial step in bringing an Indian Tribe and Native
Hawaiian organization into consultation with a museum or Federal
agency. As Indian Tribes and NHOs noted during consultation,
identification of specific sacred objects or objects of cultural
patrimony must be done in consultation with Indian Tribe or NHO
representatives and traditional religious leaders since few, if any,
museums or Federal agencies have the necessary personnel to make such
identifications. Further, identification of specific unassociated
funerary objects, sacred objects, and objects of cultural patrimony
would require a museum or Federal agency to complete an item-by item
listing first. That would be directly contrary to Congress's admonition
that a summary should not be an object-by-object listing (25 U.S.C.
3004(b)(1)(A)).
The Department proposes to consolidate the requirements for
repatriation of unassociated funerary objects, sacred objects, and
objects of cultural patrimony into a seven-step process in a single
section. These same requirements are currently spread out among the
existing regulations at Sec. Sec. 10.8, 10.10, and 10.13. In addition,
the Department proposes to add more detailed instructions for
evaluating multiple requests for repatriation and resolving stays of
repatriation than currently in the existing regulations at Sec.
10.10(c).

[[Page 63224]]

1. Establish a Step-by-Step Process for Repatriation
The Department proposes to clarify the requisite steps for
repatriation by establishing a step-by-step process with corresponding
deadlines. Table 13 shows the name of each step and a shortened version
of the deadline in the proposed revisions.

Table 13--Step-by-Step Process for Repatriation
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Complete a summary . . ........ 6 months for a new collection.
Step 2--Initiate consultation.......... 30 days after Step 1.
Step 3--Consult with requesting parties 10 days after a request,
propose a timeline for
consultation.
Step 4--Receive and consider a request Any time after a summary is
for repatriation. complete.
Step 5--Respond to a request for 60 days after Step 4.
repatriation.
Step 6--Submit a notice of intended 30 days after Step 5.
repatriation.
Step 7--Repatriation of the 90 days after notice
unassociated funerary object, sacred publication.
object, or objects of cultural
patrimony.
------------------------------------------------------------------------

The intent of these proposed revisions is to correct inaccuracies
and ambiguities in the existing regulations by using a clear, easy to
follow, step-by-step process, and ensure a timely resolution of any
requests for repatriation. For example, the proposed revisions would
clarify, consistent with the Act, that invitations to consult follow
the completion of a summary. In the existing regulations at Sec.
10.8(d)(2), consultation is initiated ``no later than the completion of
the summary process.''
The proposed revisions would also directly address a required step
that lacks explanation or deadlines in the existing regulations. The
Department proposes in Step 5 to require a museum or Federal agency to
respond no later than 60 days after receiving a request for
repatriation. The Department also proposes four specific options for
the response, summarized as follows:
(1) Accept the request and agree to the repatriation.
(2) Reject the request, explain why, and ask for more information.
(3) Assert and prove a right of possession and refuse repatriation.
(4) Determine the most appropriate requestor among competing
requests.
2. Update Deadlines, Establish New Timelines, and Clarify Procedures
To update deadlines for completing a summary, the proposed
revisions integrate all the deadlines for completing a summary in the
first paragraph (see proposed Sec. 10.9(a), Table 1 to Sec. 10.9).
The proposed revisions would identify the past required deadlines for
completing a summary (i.e., November 16, 1993). The Act does not
clearly indicate when museums or Federal agencies must complete a
summary after the statutory deadline for reporting had passed. The
existing regulations at Sec. 10.13 provide these requirements for
newly acquired or newly regulated holdings or collections beginning in
2007. The proposed revisions use the same deadlines as the existing
regulations.
To establish new timelines, the proposed revisions would require in
Step 2 a written request to consult. This new requirement for a written
request to consult (which can include email) is necessary to then
require a museum or Federal agency to respond to the request within 10
days. In this same subparagraph, the proposed revisions require
requests to consult be submitted prior to a notice publication. This
requirement ensures the repatriation process moves forward by certain
deadlines in later steps. After publication of a notice, any party,
even if they have not requested to consult, can make a request for
repatriation as a competing claim (see proposed Sec. 10.9(f)(4)).
To clarify procedures, the proposed revisions would require in Step
4 that any party wishing to make a request for repatriation must do so
in writing. In the existing regulations at Sec. Sec. 10.8 and 10.10,
there are references to making requests for repatriation, but not until
the very end of the process under notification in the existing
regulations at Sec. 10.10(a)(3) is it clear that such a request must
be in writing. The Department is specifically seeking input during
public comment on the deadlines for responding to a request for
repatriation and sending a repatriation statement.
3. Require That Consultation Seek Consensus
In response to consultation with Indian Tribes and NHOs, the
Department proposes to require that consultation seek consensus, to the
maximum extent possible. In addition, a record of consultation must
include the effort made to seek consensus or describe efforts to
identify a mutually agreeable alternative. For any determination
considered during the consultation process, the consultation record
must note the concurrence, disagreement, or nonresponse of the
requesting parties. These requirements are used throughout the proposed
regulations whenever consultation with requesting parties is required.
4. Protect Sensitive Information and Disclose Hazardous Substances
The Department proposes to remove the existing regulations at Sec.
10.8(d)(4)(iii) because it requires Indian Tribes and NHOs to provide
information about funerary objects, sacred objects, or objects of
cultural patrimony. This kind of information is often very sensitive
and providing it in writing or in the absence of qualified persons
within the Indian Tribe or NHO might be inappropriate. The proposed
language would still provide for an exchange of information about the
types of objects that might be unassociated funerary objects, sacred
objects, or objects of cultural patrimony, but would do so in a way to
allow for sensitive information to be protected.
In the existing regulations at Sec. 10.10(e), museums and Federal
agencies must inform Indian Tribes and NHOs about any potentially
hazardous substances used to treat any of the objects only after
repatriation has occurred. The proposed revisions would require a
museum or Federal agency to disclose information about the presence of
any potentially hazardous substances first in the summary (see proposed
Sec. 10.9(a)(1)(v)) and second in the notice of intended repatriation
(see proposed Sec. 10.9(f)(1)(vi)).
5. Clarify Requirements for Notices
The proposed revisions clearly outline informational requirements
for a Federal Register notice and do so with greater detail than the
existing

[[Page 63225]]

regulations at Sec. 10.8(f). To protect potentially sensitive
information, the only location information that would be required is
the county and State where the unassociated funerary object, sacred
object, or object of cultural patrimony were removed, if known. Other
informational requirements of a Federal Register notice would include:
(1) the identification of the cultural item specifically as an
unassociated funerary object, a sacred object, an object of cultural
patrimony, or both a sacred object and an object of cultural patrimony;
(2) the requestor, with no requirement that other lineal descendants or
Indian Tribes or NHOs with cultural affiliation be listed in the
notice; and (3) a brief abstract of the information showing the
requestor is a lineal descendant or an Indian Tribe or NHO with
cultural affiliation.
In enumerating the unassociated funerary objects, sacred objects,
or objects of cultural patrimony in a notice, museums and Federal
agencies would be encouraged to count in a way that reduces the chances
of having to issue a correction notice. For example, identifying 3 lots
of shell beads means that no matter the exact number of beads present,
the count would stand, whereas identifying exactly 1,960 shell beads in
a notice would mean that if additional (or fewer) beads were located
before repatriation occurs, a correction notice would be required
because the number of objects would have changed.
6. Written Repatriation Statement
The Department proposes to require a new document to complete the
repatriation of an unassociated funerary object, sacred object, or
object of cultural patrimony to a requestor. A written repatriation
statement would be sent to and would identify all requestors in the
case of joint requests. In accordance with the recommendation by the
Government Accountability Office in a 2010 report on the implementation
of the Act, a copy of the repatriation statement would also be sent to
the Manager, National NAGPRA Program. Table 14 shows how the Department
proposes to reorganize the existing regulatory requirements for
repatriation of unassociated funerary objects, sacred objects, and
objects of cultural patrimony.

Table 14--Cross-Reference of Existing Provisions to Proposed Sec. 10.9
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
Existing 43 CFR section Proposed 43 CFR section
----------------------------------------------------------------------------------------------------------------
10.8(b)...................... Contents of summaries... 10.9(a)...................... Step 1: Complete a
summary of . . .
10.8(e)...................... Using summaries to (1) A summary must
determine affiliation. include . . .
10.10(e)..................... . . . inform recipients (1)(v) The presence of
of repatriation . . . any potentially
treatment with hazardous substances .
potentially hazardous . .
substances.
10.13(b)..................... New holdings or (2) After [effective
collections. date of final rule], .
. . must submit a
summary . . .
10.13(d)..................... New Federal funds.......
10.8(c)...................... Completion.............. (3) Prior to [effective
date of final rule], .
. . must have submitted
a summary . . .
10.13(b)..................... (3) Previously prepared (4) After [effective
summary or inventory.. date of final rule], .
. . acquires possession
or control of a holding
or collection that
contains . . .
10.8(d)...................... Consultation............ 10.9(b)...................... Step 2: Initiate
(1) Consulting parties.. consultation.
(1) Consulting parties
are . . .
(2) Initiation of (2) An invitation to
consultation. consult must . . .
New..................... (3) Any consulting party
. . . must . . .
(4) . . . identifies a
new consulting party .
. .
10.13(c)..................... New Indian Tribes....... (4)(ii) . . . after the
addition of a Tribal
entity to the list of
federally recognized
Indian Tribes . . .
10.8(d)...................... (4) Requests for 10.9(c)...................... Step 3: Consult with
information. requesting parties
(1) . . . a museum or
Federal agency must ask
for the following
information . . .
New..................... (2) The consultation
process must . . .
(3) The museum or
Federal agency must
prepare a record of
consultation . . .
10.8(d)...................... (3) Provision of (4) . . . A museum or
information. Federal agency must
provide access to the
additional information
. . .
New..................... 10.9(d)...................... Step 4: Receive and
consider a request for
repatriation.
(1) A request for
repatriation . . . must
be received . . .
(2) Requests from two or
more . . .
10.10(a)..................... (1) Criteria............ (3) A request for
repatriation must
satisfy . . .
New..................... 10.9(e)...................... Step 5: Respond to a
request for
repatriation.
10.8(f)...................... Notification............ 10.9(f)...................... Step 6: Submit a notice
of intended
repatriation
10.10(e)..................... . . . treatment with (1)(vi) . . . the
potentially hazardous presence of any
substances. potentially hazardous
10.13(b)..................... (2) Additional pieces or (3) If the number or
fragments.. identity . . . changes
. . .
10.13(e)..................... Amendment of previous
decision.
10.10(a)..................... (3) Notification........ 10.9(g)...................... Step 7: Repatriation of
10.10(d)..................... Place and manner of the unassociated
repatriation.. funerary object, sacred
object, or object of
cultural patrimony.
10.10(f)..................... Record of repatriation..
10.15(d)..................... Savings provisions......
10.10(c)..................... (2) Circumstances where 10.9(h)...................... Evaluating competing
there are multiple requests for
requests for repatriation.
repatriation.
10.10(c)..................... Exceptions.............. 10.9(i)...................... Stay of repatriation.

[[Page 63226]]

10.8(d)...................... (4)(iii) Kinds of Removed.
cultural items.
----------------------------------------------------------------------------------------------------------------

K. Section 10.10 Repatriation of Human Remains and Associated Funerary
Objects

This section of the proposed rule would implement the requirements
of the Act regarding inventories of holdings or collections to
facilitate the repatriation of human remains and associated funerary
objects (25 U.S.C. 3003 and 3005). The Department proposes to
consolidate the requirements for repatriation of human remains and
associated funerary objects into an eight-step process in a single
section. These same requirements are currently spread out among the
existing regulations at Sec. Sec. 10.9, 10.10, 10.11, and 10.13. In
addition, the Department proposes to add more detailed instructions for
evaluating multiple requests for repatriation and resolving stays of
repatriation than currently in the existing provisions at Sec.
10.10(c).
1. Eliminate ``Culturally Unidentifiable''
On March 15, 2010, the Department issued a final rule with request
for comment that codified procedures for the disposition of culturally
unidentifiable Native American human remains in the possession or
control of museums or Federal agencies (75 FR 12378, March 15, 2010).
These procedures require museums and Federal agencies to consult with,
and transfer control of, culturally unidentifiable human remains to the
Indian Tribes and NHOs from whose Tribal lands or from whose aboriginal
lands the human remains were removed.
Comments on the March 15, 2010, final rule raised concerns that the
financial burden on museums of consultation and disposition of
culturally unidentifiable human remains would be ``tremendous,''
``onerous,'' ``overwhelming,'' ``ruinous,'' or ``significant.''
However, since the Act became law in 1990, museums and Federal agencies
have accounted for over 84,000 Native American human remains in
notices, including over 21,000 culturally unidentifiable human remains,
with no indication that a single museum has suffered overwhelming or
ruinous consequences from compliance with the Act. Every year since
1994, Congress has provided approximately $2 million dollars in grant
funds for consultation and repatriation activities to assist in
compliance with the Act.
Comments for the March 15, 2010, final rule also raised questions
about what types of relationships were required for disposition of
culturally unidentifiable human remains. Using a geographic
relationship between an Indian Tribe or NHO and human remains and
associated funerary objects for the purpose of repatriation aligns with
the Act's requirements for museums and Federal agencies to ``identify
the geographical and cultural affiliation of such items'' and with the
general intent of repatriation under the Act. As noted in the response
to comments for the March 15, 2010, final rule, the disposition of
human remains, funerary objects, sacred objects, and objects of
cultural patrimony to Indian Tribes and NHOs based on criteria other
than cultural affiliation was clearly anticipated by Congress.
Section 3002(a)(2) of the Act which was used as the model for the
March 15, 2010, final rule specifically authorizes disposition of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony removed from Federal or Tribal lands after November 16, 1990
to the Indian Tribe or NHO on whose Tribal lands the human remains or
cultural items were removed, to the Indian Tribe or NHO with cultural
affiliation to the human remains or cultural items, or to the Indian
Tribe having aboriginally occupied the Federal land where the human
remains or cultural items were removed. Significantly, under the Act,
ownership or control of human remains or cultural items based on Tribal
lands origin is given a higher priority than cultural affiliation.
Consistent with the terms of the Act, the 2010 rule codified a process
for disposition of culturally unidentifiable human remains to the
Indian Tribe or NHO from whose Tribal lands, at the time of excavation
or removal, or from whose aboriginal land the human remains were
removed. In addition to the Act, the implementing regulations rely on
the specific recommendations from the Review Committee for disposition
of culturally unidentifiable human remains and additional information
gleaned from culturally unidentifiable inventories. The existing
regulations are consistent with the Department's determination that it
was reasonable and appropriate for the disposition of culturally
unidentifiable human remains to be based on geographical information
given that the designation of ``culturally unidentifiable'' is often
due to a lack of information occasioned by some collection practices
rather than a lack of geographical information.
To streamline the existing regulations at Sec. 10.11 regarding
disposition of human remains and associated funerary objects currently
referred to as culturally unidentifiable, the Department proposes to
incorporate the concepts underlying the existing regulations more
logically into the overall inventory and repatriation process. As a
result, the Department also proposes to generally remove the term
``culturally unidentifiable'' as the streamlining of these concepts
would make this term no longer serve a useful regulatory purpose.
Further, this proposed change is intended to more accurately reflect
the geographically focused analysis required for an inventory of human
remains and associated funerary objects. As discussed above, the
proposed revisions identify two kinds of affiliation for purposes of
repatriation: cultural or geographical. As discussed in more detail
below, the proposed revisions would require that an inventory of human
remains and associated funerary objects include determinations of both
cultural and geographical affiliation or an explanation why no
affiliation could be identified.
2. Require Repatriation of Associated Funerary Objects
While the existing regulations at Sec. 10.11 mandate the
disposition of certain categories of culturally unidentifiable human
remains by museums and Federal agencies upon receipt of a claim, the
transfer of culturally unidentifiable associated funerary objects under
the existing regulations is at the discretion of the museum or Federal
agency. Following publication of the 2007 proposed rule (72 FR 58582,
October 16, 2007), the Department received numerous comments on the
voluntary transfer of culturally unidentifiable associated funerary
objects. Most of the comments stated that transfer of such objects
should also be mandatory. These comments were carefully considered,

[[Page 63227]]

but the Department determined that this area of law was not clearly
resolved at that time and needed further consideration. The March 15,
2010, final rule retained the voluntary transfer provision. After the
publication of the final rule, the Department received additional
comments on this issue, which have been reviewed in the development of
the proposed revisions.
The Department proposes to require repatriation of associated
funerary objects whenever repatriation of the related human remains
occurs. In the Act, Congress differentiated human remains and
associated funerary objects from unassociated funerary objects, sacred
objects, and objects of cultural patrimony. Congress did this both in
its treatment of these items throughout the Act and in its assessment
of the potential legal interests at stake for those items, for example,
by differentiating the use and analysis of right of possession for
human remains and associated funerary objects from a right of
possession for cultural items. With respect to the Act, Congress
acknowledged that no general property interest exists either in human
remains or in the funerary objects associated with them in a burial.
This follows common law principles indicating that the next-of-kin of a
deceased individual have a quasi-property right of control over the
lawful disposition of the decedent's remains. For these reasons, the
proposed revision would require repatriation of associated funerary
objects whenever the repatriation of human remains is required. Such an
action, based on this guidance from Congress, would not result in a
taking of property within the meaning of the Fifth Amendment of the
United States Constitution.
3. Establish a Step-By-Step Process for Repatriation
The Department proposes to clarify the requisite steps for
repatriation of human remains and associated funerary objects by
establishing a step-by-step process with corresponding deadlines. Table
15 shows the name of each step and a shortened version of the deadline
in the proposed revisions.

Table 15: Step-by-Step Process for Repatriation
------------------------------------------------------------------------
Step number and name Deadline (no later than)
------------------------------------------------------------------------
Step 1--Compile an itemized list of Before deadline in Step 4.
human remains and associated funerary
objects.
Step 2--Initiate consultation.......... Before deadline in Step 4.
Step 3--Consult with requesting parties 10 days after a request,
propose a timeline for
consultation.
Step 4--Complete/update an inventory... 2 years for a new collection/2
years after effective date for
update.
Step 5--Submit a notice of inventory 6 months after Step 4.
completion.
Step 6--Receive and consider a request Any time after notice
for repatriation. publication.
Step 7--Respond to a request for 30 days after Step 6.
repatriation.
Step 8--Repatriation of the human 90 days after Step 7.
remains and associated funerary
objects.
------------------------------------------------------------------------

The intent of these proposed revisions is to correct inaccuracies
and ambiguities

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