Home/Federal/Federal Register/2023-27040

Rule2023-27040

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

Primary source

Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.

Published

December 13, 2023

Effective

January 12, 2024

Issuing agencies

Interior Department

Abstract

This final rule revises and replaces definitions and procedures for lineal descendants, Indian Tribes, Native Hawaiian organizations, museums, and Federal agencies to implement the Native American Graves Protection and Repatriation Act of 1990. These regulations clarify and improve upon the systematic processes for the disposition or repatriation of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony. These regulations provide a step-by-step roadmap with specific timelines for museums and Federal agencies to facilitate disposition or repatriation. Throughout these systematic processes, museums and Federal agencies must defer to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations.

Full Text

<html>
<head>
<title>Federal Register, Volume 88 Issue 238 (Wednesday, December 13, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 238 (Wednesday, December 13, 2023)]
[Rules and Regulations]
[Pages 86452-86540]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27040]

[[Page 86451]]

Vol. 88

Wednesday,

No. 238

December 13, 2023

Part II

Department of the Interior

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

43 CFR Part 10

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

Federal Register / Vol. 88 , No. 238 / Wednesday, December 13, 2023 /
Rules and Regulations

[[Page 86452]]

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

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

[NPS-WASO-NAGPRA-NPS0036506; PPWOCRADN0-PCU00RP14.550000]
RIN 1024-AE19

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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

SUMMARY: This final rule revises and replaces definitions and
procedures for lineal descendants, Indian Tribes, Native Hawaiian
organizations, museums, and Federal agencies to implement the Native
American Graves Protection and Repatriation Act of 1990. These
regulations clarify and improve upon the systematic processes for the
disposition or repatriation of Native American human remains, funerary
objects, sacred objects, or objects of cultural patrimony. These
regulations provide a step-by-step roadmap with specific timelines for
museums and Federal agencies to facilitate disposition or repatriation.
Throughout these systematic processes, museums and Federal agencies
must defer to the Native American traditional knowledge of lineal
descendants, Indian Tribes, and Native Hawaiian organizations.

DATES: This rule is effective January 12, 2024. Comments on the
information collection requirements in this final rule must be
submitted to the Office of Management and Budget by January 12, 2024.

ADDRESSES: All public comments and attachments received, as well as
supporting documentation used in the preparation of these regulations,
are available online at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket No. NPS-
2022-0004. 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
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), 13461 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#432e262f222d2a261c2c6421312a262d032d33306d242c35">melanie_o'<span class="__cf_email__" data-cfemail="fe9c8c979b90be908e8dd0999188">[email&#160;protected]</span></a>. Questions regarding the NPS's information
collection request (ICR) may be submitted to Phadrea Ponds, NPS
Information Collection Clearance Officer, <a href="/cdn-cgi/l/email-protection#17677f76736572764867787973645779676439707861"><span class="__cf_email__" data-cfemail="582830393c2a3d39072837363c2b1836282b763f372e">[email&#160;protected]</span></a>. Please
include ``1024-AE19'' in the subject line of your email request. In
compliance with the Providing Accountability Through Transparency Act
of 2023, the plain language summary of the proposal is available on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> in the docket for this rulemaking.

SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of Public Comments and Responses
A. General Comments
B. Section 10.1 Introduction
C. Section 10.2 Definitions for This Part
D. Section 10.3 Determining Cultural Affiliation
E. Subparts B and C
F. Section 10.4 General
G. Section 10.5 Discovery
H. Section 10.6 Excavation
I. Section 10.7 Disposition
J. Subpart C
K. Section 10.8 General
L. Section 10.9 Repatriation of Unassociated Funerary Objects,
Sacred Objects, or Objects of Cultural Patrimony
M. Section 10.10 Repatriation of Human Remains or Associated
Funerary Objects
N. Section 10.11 Civil Penalties
O. Section 10.12 Review Committee
III. Response to Public Engagement and Request for Comments
A. Public Engagement
B. Requests for Comment
C. Use of Received Feedback
IV. Compliance With Other Laws, Executive Orders, and Department
Policy

I. Background

On November 16, 1990, President George Bush signed into law the
Native American Graves Protection and Repatriation Act (NAGPRA or Act)
(25 U.S.C. 3001, et seq.). The Act recognizes the rights of lineal
descendants, Indian Tribes, and Native Hawaiian organizations (NHOs) in
Native American human remains, funerary objects, sacred objects, and
objects of cultural patrimony. The Secretary of the Interior is
responsible for promulgating regulations to carry out the provisions of
the Act and delegated this authority to the Assistant Secretary. Since
1993, the Department of the Interior (Department) has published rules
under the title ``Native American Graves Protection and Repatriation
Act Regulations'' including:
<bullet> RIN 1024-AC07, 1993 Proposed Rule (58 FR 31122, May 28,
1993) and 1995 Final Rule (60 FR 62134, December 4, 1995);
<bullet> RIN 1024-AC84, Civil Penalties Final Rule (68 FR 16354,
April 3, 2003) and Future Applicability Final Rule (72 FR 13184, March
21, 2007);
<bullet> RIN 1024-AD68, 2007 Proposed Rule Disposition of
Culturally Unidentifiable Human Remains (72 FR 58582, October 16, 2007)
and 2010 Final Rule Disposition of Culturally Unidentifiable Human
Remains (75 FR 12378, March 15, 2010); and
<bullet> RIN 1024-AE00, Disposition of Unclaimed Cultural Items
Final Rule (80 FR 68465, November 5, 2015).

II. Summary of Public Comments and Responses

The Department (we) published a proposed rule (RIN 1024-AE19) in
the Federal Register on October 18, 2022 (87 FR 63202, hereafter 2022
Proposed Rule) to clarify and improve upon the systematic processes for
disposition or repatriation of Native American human remains and
cultural items. We accepted public comments for 90 days via the mail,
hand delivery, and the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. After considering several requests for extensions
of the public comment period beyond the original 90 days, we extended
the comment period an additional 14 days until January 31, 2023.
All comments received by the deadline are publicly available on
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, Docket No. NPS-2022-0004. During the
comment period, we received a total of 206 submissions which included
181 individual submissions posted to the docket and 25 attachments as
identified by the submitter. When necessary, we have cited to specific
submissions as NPS-2022-0004-XXXX. We received submissions from a range
of sources including individual members of the public, Indian Tribes,
museums, and organizations. Table 1 shows the number of submissions by
type of submitter.

Table 1--Submissions Received by Submitter
------------------------------------------------------------------------
Submitter Submissions
------------------------------------------------------------------------
Individuals............................................. 95
Federally recognized Indian Tribes*..................... 48
Museums................................................. 13
Museum or scientific organizations**.................... 9
Native American organizations........................... 8
Duplicate submissions................................... 4

[[Page 86453]]

Indian groups without Federal recognition............... 3
Federal Advisory Review Committee....................... 1
Native Hawaiian organizations........................... 0
------------------------------------------------------------------------
* Two submissions were on behalf of multiple Indian Tribes making the
total number of Indian Tribes represented 55.
** These submissions are by professional organizations representing
museums or scientific professionals and they are separate and distinct
from the museums above.

In these final regulations, we focus our discussion on changes from
the 2022 Proposed Rule based on comments we received during the comment
period and our further consideration of the issues raised. For
background on the statutory and legislative history and case law
relevant to these regulations, we refer the reader to the previously
published rules under the title ``Native American Graves Protection and
Repatriation Act Regulations'' referenced in I. Background. We reviewed
and considered all comments prior to developing this final rule. We
have provided 124 summaries of comments and our direct responses below;
we combined similar comments where appropriate. Table 2 shows the
largest number of comments by issue.

Table 2--Top 10 Issues by Number of Comments
------------------------------------------------------------------------
Number of See comment and
Issue comments response
------------------------------------------------------------------------
Changes to ``affiliation''...... 102 Comment 58. to 61.
Role of Indian groups without 53 Comment 3. and 39.
Federal recognition. See also Comment
91. and 114.
Steps for consultation.......... 53 Comment 64.
Timelines under Subpart C....... 46 Comment 92.
Require consent or consultation 45 Comment 15.
before allowing scientific
study.
Duty of care, including 44 Comment 12. to
scientific study. Comment 17.
``Possession or control''....... 44 Comment 49.
Specific steps in Subpart C..... 42 Comment 94.
Purpose of this rule............ 42 Comment 9.
``Consultation''................ 39 Comment 30.
------------------------------------------------------------------------

In addition, we received 109 comments generally supporting the
regulations and the changes (see Comment 1.), and we received 96
comments on the estimated burden and information collection
requirements for the revised regulations (see Comment 4.). We received
43 comments requesting action by the Department of the Interior outside
of the scope of these regulations (see Comment 6.). Four comments
requested changes in these regulations from business days to calendar
days, which is significant in that it impacts all the timelines under
this final rule (see Comment 19).
In response to these comments and others discussed in detail below,
we made the following major changes in the final rule:
1. Removed ``geographical affiliation'' in its entirety, simplified
the process for cultural affiliation to provide that one type of
information, including geographical information, is sufficient for
cultural affiliation, and replaced ``preponderance of the evidence''
with ``clearly or reasonably identify'' (Sec. 10.3 Determining
cultural affiliation).
2. Removed all reference to Indian groups without Federal
recognition and prioritized the rights of federally recognized Indian
Tribes in disposition and repatriation (Sec. 10.2 Definitions for this
part ``Indian Tribe'' and Sec. Sec. 10.7(d) Disposition and 10.10(k)
Repatriation).
3. Required free, prior, and informed consent before any exhibition
of, access to, or research on human remains or cultural items (Sec.
10.1(d) Duty of Care).
4. Extended the timeline to allow five years (rather than two as
proposed) for museums and Federal agencies to consult and update
inventories of human remains and associated funerary objects (Sec.
10.10(d) Repatriation).
5. Replaced ``business days'' with ``calendar days'' and extended
deadlines as a result (Sec. 10.1(f) Deadlines).
6. Revised ``consultation'' to provide more instruction on goals
and process (Sec. 10.2 Definitions for this part ``Consultation'').
7. Removed the requirement for written requests to consult from
Indian Tribes or NHOs, and therefore removed the requirement for a
museum or Federal agency to respond within a set timeframe (Sec. Sec.
10.4(b), 10.9(b), and 10.10(b) Initiate consultation).
Despite receiving many comments, we have not revised the
definitions or application of ``possession or control'' and
``custody.'' As in the Act, ``possession or control'' is a
jurisdictional requirement for human remains or cultural items subject
to these regulations and for repatriation (Sec. 10.2 Definitions for
this part ``custody'' and ``possession or control'').

A. General Comments

1. Comment: We received 109 comments generally supporting these
regulations and the overall goals of disposition or repatriation.
Comments from individuals, including many students in high school,
college, and graduate school, offered support for the general principle
of returning ancestors and objects to lineal descendants, Indian
Tribes, and NHOs. Museum and museum and scientific organizations
supported the overall goals to clarify and improve upon the systematic
processes for disposition and repatriation. A few comments from museums
focused on the impact the revised regulations would have on the museum
profession. One comment stated ``Overall, the language in the proposed
draft reflects contemporary best practices around repatriation and
codification in 43 CFR part 10 makes sense in an effort to standardize
repatriation activities across diverse institutions, agencies, and
Tribes'' (NPS-2022-0004-0129). Another museum commented:

A fundamental shift in priorities is necessary at institutions
who have fallen short in their efforts to comply with the
legislation's intent. It is time for institutions to prioritize this
work, in both the allocation of resources and the ethical commitment
to genuinely engage in consultation with Native Nations. The passage
of these proposed revisions is a necessary step towards addressing
the legacy of colonial injustices imposed upon Indigenous Peoples in
the United States (NPS-2022-0004-0115).

[[Page 86454]]

Many Indian Tribes and Native American organizations also expressed
appreciation and support for the revisions and felt the changes better
reflected Congressional intent. One Indian Tribe stated:

We appreciate the difficult work and coordination the Department
has undertaken to make vast and meaningful changes to shift the
burden of NAGPRA compliance to where it belongs--to federal agencies
and museums. We explain below several changes that we support. While
in the interest of brevity, we focus our comments on areas of
concern, the Department should understand that our Tribes welcome
this proposed rule. With our comments below addressed, we believe
the new regulations will better implement NAGPRA and facilitate the
repatriation of our Ancestors and sacred objects as Congress
intended (NPS-2022-0004-0158).

DOI Response: As discussed more fully throughout this document, we
agree with many of these statements; and, as a result, we are
publishing this final rule. We appreciate the comments from
individuals, especially from students, not only for supporting this
effort but for engaging in the rulemaking process. We appreciate the
supportive, yet constructive comments from museums and museum and
scientific organizations. We are indebted to the many Indian Tribes who
provided comments as well as those who provided input during
consultation throughout the process of developing these regulations.
2. Comment: We received nine comments generally objecting to the
changes to these regulations. One comment stated the process was more
of a political statement than a necessity. One comment supported the
idea of clarifying the repatriation process but felt the proposed rule
would undermine existing efforts and result in a rushed, transactional
process. One comment felt the proposed regulations would hinder
meaningful consultation and impede the progress that museums, Indian
Tribes, and NHOs have made so far. One comment believed the revisions
compounded difficulties that both museums and Indian Tribes already
face and would reduce efficiency rather than improve it. One comment
stated that in addition to a lack of statutory authority for some of
the revisions, the Department had not identified any inadequacies or
difficulties in the existing regulations, particularly with respect to
Subpart B. One comment saw the revisions as a reversal rather than a
strengthening of Congressional intent and stated that, as the drafted,
the revisions are ``based upon `restorative justice' rather than the
words and intent of Congressional legislation, [and] has gone too
far.'' The comment stated the revisions reflected a larger cultural
shift and that Native activist groups ``have urged aggressive claims
for repatriation and demanded that [T]ribal permission be sought for
the transfer of objects long in legal circulation'' (NPS-2022-0004-
0188). Three comments from Indian Tribes expressed concerns that the
revisions would slow down or even stop the work of repatriation. All
three comments believed the revisions are too extensive and too complex
and will, ultimately, create more issues than the revisions resolve.
One of these comments was especially concerned that the revisions did
not address two central and persistent issues that Indian Tribes have
long asked for: enhanced enforcement and protection of private
information.
DOI Response: As discussed more fully throughout this document, we
disagree with many of these statements; and, as a result, we are
proceeding with publication of this final rule despite these
objections. These regulations reflect and implement the legal
requirements established by Congress. We understand that some of the
timelines under this final rule will require faster action by museums
and Federal agencies than under the existing regulations. However,
certain deadlines can be extended or actions delayed, provided the
appropriate lineal descendant, Indian Tribe, or NHO has agreed to
extend or delay the process. We believe the changes in these
regulations will enhance meaningful consultation and ensure that
resulting efforts are based on consensus or agreement. We believe that
the increased transparency and communication required by these
regulations will resolve some of the existing challenges faced by all
parties. As discussed in more detail throughout this document, these
revisions are within the Secretary's statutory authority and based on
over 30 years of input, comment, and experience in implementing the
Act. As reflected in the supportive comments above, these revisions
reflect best practices and changes in the wider professional
disciplines, while at the same time adhering to the language and limits
provided by Congress. We have incorporated requests from Indian Tribes
and NHOs to the maximum extent possible, but we do not believe these
revisions will stop the work of repatriation or create more issues than
are resolved. We do anticipate that the work of repatriation may be
slowed as all parties adjust to the revisions in these regulations and
especially as all parties re-evaluate past practices considering these
simplified, clarified, and streamlined regulations. We reiterate here,
as we have throughout this document, that the goal of this final rule
is to clarify and improve the systematic processes for disposition and
repatriation by making the requirements clear to all parties involved.
3. Comment: We received 53 comments on the standing of Indian
groups without Federal recognition under these regulations. Of that
total, 40 comments supported giving standing to Indian groups without
Federal recognition while 13 comments opposed it. Some comments also
suggested changes to 25 CFR part 83 to recognize more groups and that
the National NAGPRA Program should help educate groups on how to
achieve Federal recognition.
DOI Response: The recognition process and training concerning it
are outside the scope of these regulations. Furthermore, as discussed
below under that definition, these regulations cannot expand the
definition of ``Indian Tribe'' beyond that provided in the Act. Indian
groups without Federal recognition, including State recognized tribes,
are not completely excluded from the disposition or repatriation
processes. As is the current practice, Indian groups without Federal
recognition can work with federally recognized Indian Tribes as part of
a joint claim for disposition or joint request for repatriation. See
also Comment 39.
4. Comment: We received 96 comments about the estimated burden and
related information collection requirements of the proposed
regulations. Of that total, nine comments supported some part of the
burden estimate, including agreeing that there is a wide variation in
the actual time required because of differences in size and complexity
of the required responses. Two of these comments supported the overall
burden estimate and agreed that the changes would yield long-term
savings, despite the short-term increased costs. Five of these comments
agreed that the collection of information is necessary and has a
practical utility. One comment specifically stated the information
collected had no practical utility and should not be required. Five
comments suggested one way to minimize the burden of these regulations
was for the Department to provide online resources to assist with
identifying Indian Tribes with potential cultural affiliation.
Eighteen comments generally objected to the burden estimate. Many
of these comments felt the methods and assumptions were flawed and did
not

[[Page 86455]]

reflect the actual amount of effort required to comply with these
regulations. Several comments stated that the proposed regulations
significantly expanded the administrative, staffing, and financial
burdens already imposed on museums and Federal agencies and that
museums and Federal agencies are already facing capacity and resource
limitations that prevent them from completing the already burdensome
requirements under the existing regulations. Five comments stated that,
regarding the quality, utility, and clarity of the information to be
collected, there was a disconnect between oral statements by the
National Park Service staff and the proposed regulations on the
requirements for consultation and reporting (see NPS-2022-0004-0081). A
few comments stated additional financial resources must be provided
before any additional tasks can be required and that it was
unreasonable and misguided to expect museums and Federal agencies to
comply without providing additional funds. Two comments stated that the
estimates should not rely on responses from the last three years to
estimate costs due to the pandemic. One comment requested that the
General Accountability Office estimate the costs of the proposed
regulations. One comment questioned the authority of the Department to
collect information that could be used to monitor the repatriation
process.
A total of 31 comments specifically discussed the impact of these
regulations on Indian Tribes and NHOs and suggested some possible
solutions to lessen the burden. Of that total, 18 comments suggested
the Department create a dedicated grant program for Indian Tribes and
NHOs. One of these comments expressed that museums have been wasting
grant funds on unnecessary tasks since 1994 and more grant funding
should be provided to Indian Tribes and NHOs. Five comments felt the
burden on Indian Tribes and NHOs in these regulations was
underestimated, too high, or prohibitively expensive. One comment from
an individual stated the burden on Indian Tribes and NHOs could not be
minimized with technology due to a general lack of access to the
internet in Indian Country. One comment requested the regulations
provide more funding as well as flexibility for Indian Tribes to engage
with repatriation at their own pace. Seven comments questioned the
costs to Indian Tribes under Subpart B of the proposed regulations,
which some estimated to be $40 million per year.
Eighteen comments provided input or alternative estimates for
specific tasks. Two comments believe tasks are missing from the
estimate, such as documentation review, correspondence after
consultation, travel arrangements, hosting arrangements, inventory/
packet/documentation preparation, room setup, consultation
participation, documentation of consultation, administrative
requirements, moving items to or from storage, and implementation of
care guidance. One comment stated the costs of physical transfer should
be included and, for a large repatriation, staff time alone can exceed
$100,000 for physical transfer. Two comments stated the estimate for
initiating consultation should be much higher, from 40 hours to at
least 140 hours, to include the time required to identify consulting
parties, prepare, and distribute letters or emails, and to make follow
up phone calls. One comment suggested the estimate for conducting
consultation be increased to provide for staff to retrieve collections
from storage and travel by many representatives (sometimes up to ten
people) from Indian Tribes or NHOs to conduct a physical review. Three
comments stated the estimate for completing an inventory was too low as
even an inventory update was an enormous undertaking that required
significant time and resources. One of these comments noted that a
previously prepared inventory did not reduce the necessary time, as
previous inventories are generally ``woefully inadequate.'' One of
these comments stated that, based on experience, it takes 10 hours to
inventory one box plus an additional 6-8 hours to describe each
individual or object in the box and an additional 40 hours per site to
produce a final report. The comment estimated that for 200 boxes, it
would take 2,000 hours to inventory the boxes, and this did not include
additional time to describe each object or write a site report (NPS-
2022-0004-0125). One comment stated the estimate for a summary was also
underestimated and stated it takes anywhere from 6 months to two years
to prepare a summary and then an additional six months for illustration
and documentation of the objects. Five comments believe the estimate
for preparing notices (either for inventory completion or intended to
repatriation) were underestimated. One of these comments estimated it
takes 120 hours to facilitate a notice of inventory completion plus
additional time to verify the information with a physical review. Four
of these comments suggested that for each notice type, the minimum
amount of time required was 2 hours while the maximum amount of time
was between 10 and 30 hours per notice, plus additional time to consult
on the draft notice. One comment stated evaluating competing requests
and resolving stays of repatriation required significantly more time,
estimating between 100 and 1,000 hours, especially when considering the
involvement of legal departments, executives, and board members in
those tasks. Two comments stated the rate used to calculate costs
should be $100 to $120 per hour.
Fourteen comments provided estimates for the total costs of Subpart
C of these regulations. For Indian Tribes and NHOs several estimated a
cost of $17.2 million per year. For museums and Federal agencies one
comment estimated $19.4 million per year. The two estimates were
developed by one individual, using grant awards from 2011 to 2021 to
estimate the average cost for a notice of inventory completion ($14,416
per notice). After calculating an estimated cost for museums and
Federal agencies to comply with the proposed regulations, the estimate
calculated the costs for Indian Tribes and NHOs by using the percentage
of funding awarded in grants from 2011-2021 to museums (58%) and Indian
Tribes or NHOs (42%) to estimate a total burden for the proposed
regulations at $91.4 million over 30 months or $36.6 million per year
(see NPS-2022-0004-0174). Other comments estimated a total for museums
only between $25 million and $118 million per year. One museum provided
a variety of estimates based on current project budgets which ranged
from $200,000 to $500,000 per project per year for one museum. The
comment estimated the burden for the single museum at 19,000 hours per
year ($1.273 million per year per museum assuming an hourly rate of
$67/hour). When applied to all 407 museums that will be required to
update inventories under these regulations, that amounts to the highest
estimate of $518.1 million per year for museums alone, although the
comment noted that not all museums will require the same number of
hours). The same comment questioned how the Department estimated that
the proposed regulations do not impose an unfunded mandate on State,
local, or [T]ribal governments or the private sector of more than $100
million per year (see NPS-2022-0004-0125).
One comment detailed the hours involved in one part of a two-part
project over 15 months. The first phase of the project included 13
consultation meetings which required hundreds of

[[Page 86456]]

hours of time by Indian Tribes and museum staff, including hundreds of
phone calls. Consultants hired to develop and complete the first phase
of the project spent thousands of hours on the first phase and travel
expenses totaled $3,000. In the first phase, 31 notices of inventory
completion were published, although the comment stated that the number
of notices could be irrelevant as each notice involved a single group
of Indian Tribes and one museum and could have been a single notice.
The first phase of the project covered 1,021 individuals and 11,590
associated funerary objects. The comment noted that these estimates do
not include the hours involved in preparation of the original inventory
of human remains and associated funerary objects completed in the early
1990s. Although a total estimated cost for this phase of the project
was not provided, elsewhere the comment suggested at minimum $100 to
$120 an hour should be used in dollar estimates (see NPS-2022-0004-
0135). Using the lower hourly figure and the number of hours provided,
the estimate for the first phase of the project is $123,000 over 15
months or $98,400 per year. When applied to all 407 museums that will
be required to update inventories under these regulations, it equals an
estimated $40 million per year for museums.
DOI Response: We appreciate the specific input on the estimated
costs for certain requirements in these regulations. We have addressed
many of these comments in the revised Cost-Benefit and Regulatory
Flexibility Threshold Analyses for the final regulations. We reiterate
that the Department believes the short-term increased costs of these
regulations are justified by the associated long-term quantitative and
qualitative benefits. We believe the information collected under these
regulations is necessary and any information collected by the
Department under these regulations is required by the Act for
administrative purposes (such as publishing notices) and is not used
for monitoring or evaluating the quality of that information. The
Department will develop and provide templates for all information
collection requirements, and we will provide additional resources to
assist with identifying consulting parties to minimize the burdens of
these regulations, as discussed further in Comment 95. Any changes to
the amount of available funding through grants are beyond the scope of
these regulations and are the purview of Congress and the
appropriations process. We cannot limit the grant awards to only Indian
Tribes and NHOs as that would be inconsistent with the Act.
Regarding the hourly rate used to calculate costs, we used the
Bureau of Labor Statistics (BLS) News Release USDL-23-1305, March 2023
Employer Costs for Employee Compensation--released June 16, 2023
(<a href="https://www.bls.gov/news.release/ecec.nr0.htm">https://www.bls.gov/news.release/ecec.nr0.htm</a>, accessed 12/1/2023).
This is a standard source we have used in estimating the burden of
these regulations as a part of our compliance with the Paperwork
Reduction Act. Any person equates to Civil workers. Table 2 lists the
hourly rate for full-time workers as $43.07, including benefits. Lineal
descendants equate to Private Industry Workers: Table 6 lists the
hourly rate for all workers as $40.79, including benefits. Any Affected
Party, Indian Tribes/NHOs, Federal agencies, and museums equates to
State and Local Government Workers. Table 3 lists the hourly rate for
Professional and related Workers as $67.01, including benefits.
Regarding the impact of these regulations on Indian Tribes and
NHOs, we anticipate a change in how grant funds are awarded due to the
changes in these regulations. During the first five years after
publication of the final regulations, grant funds will likely continue
to go to consultation and documentation projects to consult and update
inventories. After five years, we anticipate more grant funds will be
requested by Indian Tribes or NHOs for repatriation assistance or for
making requests for repatriation. As noted in Comment 102, the Notice
of Funding Opportunity for NAGPRA grants is where any changes to the
allowable activities for grants will be made. We do not intend to
impose requirements on lineal descendants, Indian Tribes, or NHOs to
respond to invitations to consult or to submit claims for disposition
or requests for repatriation. Those are actions that lineal
descendants, Indian Tribes, and NHOs may choose to take but are not
required.
We agree there are new requirements for Indian Tribes to take
certain actions under Subpart B that under the existing regulations are
voluntary. We disagree that all those requirements under Subpart B are
new, and we strongly disagree with the estimate provided. As discussed
in Comment 70 and Comment 83, we disagree that the Act, the existing
regulations, or any other regulations designate that the BIA is
responsible for discovery, excavation, and disposition on Tribal lands
in Alaska and the continental United States. We agree that Indian
Tribes have discretion under the existing regulations in responding to
a discovery on Tribal lands and that the final regulations will require
Indian Tribes to respond to discoveries on Tribal land. This is to
improve consistency with the Act and clarify the responsibilities in
these regulations. We understand that in some cases these
responsibilities may exceed the capacity or resources of an Indian
Tribe, and in those cases, the Indian Tribe can delegate these
responsibilities to the Bureau of Indian Affairs or another Federal
agency with primary management authority. Lastly, we note that Tribal
laws, policies, and administrative capacity vary greatly, and the
comments do not seem to take that into account by applying a blanket
assumption of the same cost for each Indian Tribe. The comments also do
not consider the small number of actions on Tribal lands per year,
which is not likely to significantly change based on the final
regulations.
Regarding the alternative estimates provided by some comments, we
believe that any estimate based on current practice or past grant
awards is inherently flawed and does not account for the specific
objective of the proposed and final regulations to simplify and improve
the systematic processes within specific timeframes. We understand that
our estimates do not reflect the actual amount of time some museums and
Federal agencies currently spend on compliance with these regulations.
We strongly disagree, however, that our estimates do not reflect what
is required by these regulations. In the 33 years since the passage of
the Act, each museum or Federal agency has approached the requirements
of these regulations in different ways, and, as a result, there is a
wide variation in how much time and money is spent to comply with these
regulations. As noted in the proposed regulations and elsewhere in this
document, one of our goals in revising the regulations is to improve
efficiency and consistency in meeting these requirements. Necessarily,
this will mean a difference between our estimated costs for these
regulations and current practices. While we understand the objections
to our estimates and the concerns about insufficient funding to carry
out these requirements, the Secretary, the Assistant Secretary, and the
Department are committed to changing the implementation of the Act and
to clearing a path to expeditious repatriation as Congress intended.
Concerns about the financial burden of the Act and these
regulations on museums were expressed even before the Act was passed.
In discussing the key compromises made to the final bill

[[Page 86457]]

in 1990, Representative Campbell stated that limiting the inventory
requirement to only human remains and associated funerary objects
``will go a long way to reduce cost to museum and at the same time
encourage both sides to sit down early together to discuss their
options'' (136 Cong. Rec. 31938). With this change and the
authorization of a grant program to assist museums with the inventory
requirements, the Association of American Museums and the Antique
Tribal Arts Dealers Association withdrew their objections to the final
legislation.
As envisioned by Congress, most of the requirements for
repatriation under the Act should have been completed by 1995, although
extensions were authorized in some cases. In 1990, the Congressional
Budget Office (CBO) reviewed the Act and estimated the legislation
would cost between $20 million and $50 million over five years. The
main costs of the Act were in preparing inventories of human remains,
estimated between $5 million and $30 million over five years, ``for
museums to provide [T]ribes with the basic information required by the
bill.'' The CBO acknowledged that to some extent, ``the total cost is
discretionary--the more funds made available, the more accurate and
comprehensive will be the information collected by museums.'' More
extensive and expensive studies might be required for some human
remains, but, as the CBO noted, such studies were not required by the
Act. CBO noted that ``If museums were required to identify all of their
holdings definitively, the costs of this bill would be significantly
higher than the $30 million estimate.'' The other $15 million to $20
million in estimated costs were for identifying funerary objects and
completing summaries as well as for Indian Tribes to make claims and
repatriate human remains or cultural items (H. Rpt. 101-877, at 21-22).
After nearly 33 years of implementation, the total cost of
repatriation is clearly discretionary, and, in addition to funds, the
more time that has been available to complete an inventory of human
remains, the more comprehensive, extensive, and expensive the
inventories have become. After meeting the initial deadline for
inventories in 1995, many museums and Federal agencies have continued
to update inventories at their own discretion, going beyond what is
required by the Act and the existing regulations. Under the Act and the
existing regulations, an inventory of human remains only requires use
of ``information possessed by such museum or Federal agency'' (25
U.S.C. 3003(a)). Yet, despite the minimum requirements, hundreds of
museums and several Federal agencies submit updated inventories each
year. The number of museums updating inventory data is relatively large
and accounts for multiple submissions each year from a single museum
because the data is updated on a case-by-case basis at the discretion
of the museum.
Since 1993, the Department has provided estimated hours for tasks
under these regulations as a part of its compliance with the Paperwork
Reduction Act. These estimates are far below the estimates provided by
some comments, but these estimates have been consistently used by the
Department and reflect what the Department believes is required by the
Act and these regulations. The 1993 Proposed Rule included an estimate
of ``100 hours for the exchange of summary/inventory information
between a museum or Federal agency and an Indian [T]ribe or Native
Hawaiian organization . . .'' (58 FR 31124). From 1993 until publishing
the proposed regulations in 2022, we continued to use the estimate of
100 hours per museum for a new summary or inventory. This is far less
than the comment that stated a museum spends 19,000 hours per year on
its inventory and summary and related tasks.
The 1993 Proposed Rule included an estimate of ``six hours per
response for the notification to the Secretary, including time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the collected
information'' (58 FR 31124). In 2012, we increased this estimate to 10
hours per notice. This is less than the estimate provided in the
comments of 120 hours to facilitate a notice, including gathering and
maintaining data and reviewing and verifying the information, or the
estimated range of two hours to 30 hours, for a median of 16 hours, to
just complete the notice template. The estimate based on previous
grants suggests a notice costs $14,416 each which equates to between
120 hours and 225 hours per notice, depending on the hourly rate
applied. We agree with the one comment that stated the number of
notices is irrelevant to estimating the burden involved. Although not
explicitly stated in the existing regulations, the final regulations
clearly state that museums or Federal agencies may include in a single
notice all human remains and associated funerary object having the same
lineal descendant or cultural affiliation for efficiency and
expediency. The comment that stated 31 notices could have been combined
in to one notice demonstrates the discretion museums and Federal
agencies exercise in complying with these regulations.
The 2010 Final Rule added a new estimate related to the new
regulatory requirements. Under the regulations, museums and Federal
agencies were required to (1) provide to Indian Tribes and NHOs a list
of Indian groups without Federal recognition that may have a
relationship to human remains and associated funerary items and (2)
request from Indian Tribes and NHOs the temporal and/or geographic
criteria used to identify the groups of human remains to be included in
consultation. The estimated burden on museums for this collection of
information was 30 minutes total, including time for reviewing existing
data sources, gathering and maintaining data, and preparing a
transmission to other consulting parties. In the 2022 Proposed Rule, we
renamed this requirement ``Initiating consultation and requesting
information,'' and we increased the estimated time required to range
from less than one hour, or 0.50 hours, up to 5 hours, or a median of
2.75 hours. This is far less than the comments that suggested this
should be much higher and range from 40 hours to 140 hours, or a median
of 90 hours to initiate consultation and request information.
In preparing the Cost-Benefit and Regulatory Flexibility Threshold
Analyses for the 2022 Proposed Rule, we accounted for all actions that
are required under the existing regulations to calculate the baseline
conditions. We disagree that our estimate is missing required tasks,
and the tasks identified by comments as missing are generally included
in the estimate for conducting consultation. The costs of conducting
consultation vary greatly, depending on the size and complexity of the
consultation. However, we note that consultation does not require any
specific documentation beyond what was already prepared in the initial
summary or inventory. The additional tasks of inventory/packet/
documentation preparation or even moving items from storage for
purposes of consultation are not required by the regulations. A
physical inspection of a collection is not required by these
regulations, although we understand that for some museums, lineal
descendants, Indian Tribes, or NHOs, in person consultation is
preferred. As for the costs of physical transfer, we address this
further in Comments 51 and 66 in this document. Physical transfer, and
any costs that accompany that effort, are not required by these

[[Page 86458]]

regulations, and we note that grants are provided specifically for
assisting with the costs of physical transfer.
As these comments clearly emphasize, the burden estimates vary
widely. In its 1990 evaluation of the Act, the Congressional Budget
Office made a similar conclusion, noting ``[t]here is considerable
disagreement about the nature of the inventory required by H.R. 5237,''
and widely varied estimates of costs. In the end, the CBO estimated
only $5 million to $30 million over five years would be required which
reflected the ``costs of an inventory of museums' collections, as well
as a review of existing information to determine [Tribal] origin'' (H.
Rpt. 101-877, at 22).
5. Comment: We received 25 comments expressing concerns for the
protection of sensitive information in the regulations. Some comments
suggested use of the Privacy Act and the Archeological Resources
Protection Act (ARPA) to withhold information about human remains and
cultural items. Other comments suggested changes to the regulations to
require that museums and Federal agencies keep sensitive information
confidential.
DOI Response: While we appreciate the suggestions, we cannot make
the requested changes. First, neither the Privacy Act nor ARPA apply.
Deceased individuals do not have any Privacy Act rights, nor do
executors or next-of-kin. See, generally, OMB 1975 Guidelines, 40 FR
28, 40 FR 951 (also available at <a href="https://www.justice.gov/paoverview_omb-75">https://www.justice.gov/paoverview_omb-75</a>, accessed 12/1/2023) (stating ``the thrust of the Act
was to provide certain statutory rights to living as opposed to
deceased individuals'' and ``the Act did not contemplate permitting
relatives and other interested parties to exercise rights granted by
the Privacy Act to individuals after the demise of those
individuals''). Similarly, the exemption from disclosure under ARPA
applies specifically to ``the nature and location of any archaeological
resource for which the excavation or removal requires a permit or other
permission under [ARPA] or under any other provision of Federal law''
(16 U.S.C. 470hh(a)). Thus, the ARPA provision is directed to
archaeological resources that would require a permit for excavation or
removal, which applies to some but not all human remains and cultural
items under the Act and these regulations.
In the proposed regulations and in these final regulations, the
Department has taken steps to remove requirements for museums or
Federal agencies to disclose sensitive information in an inventory,
summary, or notice. While we cannot dictate how a museum or Federal
agency responds to a request for disclosure of sensitive information,
we encourage a museum or Federal agency, at the request of a lineal
descendant, Indian Tribe, or NHO, to ensure that information of a
particularly sensitive nature is not made available to the public.
Since 1995, the Department has recommended museum or Federal officials
ensure that sensitive information does not become part of the public
record by not collecting, or writing down, such information in the
first place (1995 Final Rule, 60 FR 62154).
6. Comment: We received 43 comments requesting additional action by
the Department of the Interior outside of these regulations. Of that
total, nine comments requested the Department impose NAGPRA-related
conditions on any museum that received any Federal grant. Seven
comments requested the Department move the National NAGPRA Program out
of the National Park Service. A total of 11 comments requested the
Department conduct more consultation on these regulations before
issuing final regulations; five comments requested consultation with
only Indian Tribes and NHOs while six comments requested consultation
with all constituents. Five comments requested further engagement with
the Department on these regulations. Five comments requested the
Department conduct or request an audit of the National NAGPRA Program,
Federal agency compliance, or the grant program. Four comments
requested the Department provide more information about the changes to
these regulations, either through training or simplified documents
outlining the changes. One comment requested the Department ensure its
own bureaus follow these regulations. One comment requested the
proposed regulations be withdrawn and the Department start a new effort
to develop these regulations in consultation with Indian Tribes and
NHOs.
DOI Response: We appreciate the requests for additional action by
the Department. We agree that additional information about changes to
these regulations will be needed, and we plan on providing as many
opportunities as we can for training sessions, discussions, and
guidance documents once the regulations are effective. We welcome any
other suggestions for how we can support museums, lineal descendants,
Indian Tribes, or NHOs with these regulations. We are working to ensure
all the bureaus within the Department of the Interior have adequate
staffing and support to ensure compliance with these regulations.
We decline to include in these regulations a requirement for
imposing NAGPRA-related conditions on Federal grants. All Federal grant
recipients are required to provide assurances that they will comply
with all applicable requirements of Federal laws, regulations, and
policies (see ``Assurances for Construction/Non-Construction Programs
(SF-424D and SF-424B)'' at <a href="https://www.grants.gov/forms/forms-repository/sf-424-family">https://www.grants.gov/forms/forms-repository/sf-424-family</a>, accessed 12/1/2023). While we cannot include
the requested provisions in these regulations, we agree to work with
the Office of Management and Budget to explore whether and how a
NAGPRA-specific condition might be included in the general assurances
required for all Federal grant programs. We decline to withdraw the
proposed regulations or to engage in additional consultations at this
time. We are committed to implementing the final regulations as soon as
possible to ensure these long-overdue changes are implemented.
Regarding the location of the National NAGPRA Program, we
appreciate the input we received during Tribal consultation in 2021 and
in response to the proposed regulations. Currently, we have not decided
about the future location of the National NAGPRA Program. Regarding the
requests for an audit of the National NAGPRA Program, Federal agency
compliance, or the grant program, all Federal agency programs,
including the National NAGPRA Program, Federal agency NAGPRA programs,
and the NAGPRA grant program, are subject to regular internal control
reviews under the Office of Management and Budget Circular A-123,
Management's Responsibility for Enterprise Risk Management and Internal
Control (revised 7/15/2016). Along with other management and
performance evaluation processes, the National NAGPRA Program and all
Federal agency programs undergo routine and regular review. We will
continue to consider the need for additional management oversight.
7. Comment: We received 22 comments concerning how the regulations
should balance the interests of, on the one hand, repatriation, and on
the other hand, scientific study. Of that total, 17 comments outright
objected to the regulations giving museums or Federal agencies
decision-making authority for disposition or repatriation. Thirteen of
these comments, which came from one submission, asserted that decisions
on cultural affiliation, evaluation of requests, repatriation, and
competing requests should be in the

[[Page 86459]]

hands of the appropriate Indian Tribes or NHOs and not museums and
Federal agencies (see NPS-2022-0004-0157). Four comments provided
similar sentiments. One comment requested that an independent authority
evaluate decisions made by museums and Federal agencies. One comment
noted that despite positive changes, the proposed regulations still had
not truly shifted the burden of having to prove the identity or
cultural affiliation of human remains or cultural items off Indian
Tribes or NHOs because the regulations did not give the power of
decision making to Indian Tribes or NHOs.
By contrast, two comments objected to the proposed regulations
claiming that they eliminate the balance of interests that Congress
intended when it passed the Act. Both comments referenced or quoted
from statements made by Senators Inouye and McCain in 1992, to the
effect that the Act represents a balance between scientific study and
respectful treatment of human remains and cultural items. One of these
comments stressed that the proposed regulations were inherently
imbalanced because they were developed through consultation only with
Indian Tribes and NHOs and not with museums, scientific organizations,
and Federal agencies (see NPS-2022-0004-0150). Citing to ``. . . words
such as `balance' and `compromise' [in] describing the law in a special
issue of the Arizona State Law Journal published shortly after the bill
was passed (vol. 24, 1992),'' the other objecting comment stated,
``[i]n my view, a rule published in 2010 (43 CFR 10.11) began to move
NAGPRA away from the balance that Congress intended. The new
regulations proposed here would make that balance go away entirely''
(see NPS-2022-0004-0172).
Three comments directly refuted the two objecting comments as gross
misrepresentations of the Act. One of these comments concluded that the
imbalance is because the Act vests decision making with museums and
Federal agencies and stated ``where there is disagreement between
institutions and Tribes regarding affiliation, it requires that the
Tribes take extraordinary lengths to press claims. The challenge is,
can this rule or any rule really overcome the inherent imbalance in the
Act?'' (see NPS-2022-0004-0129). Another comment supported the proposed
regulations in trying to shift the balance more toward Indian Tribes
and NHOs because, since 1990, repatriation has been too slow, and the
burdens placed on Indian Tribes and NHOs has been too great. The
comment supported the proposed regulations as representing the
``continued evolution to ensure NAGPRA's relevance to its true
constituents-Indian [T]ribes and Native Hawaiian organizations'' (see
NPS-2022-0004-0080). A third comment refuting the objecting comments
stated:

Though some argue that repatriation is a weighing of interests
between science and human rights, that interest is absent from the
Act, which is singularly aimed at providing restitution. The Act
creates an administrative process for repatriation and disposition
to provide restitution for harms that have been called out by
Congress as genocide and human rights violations. The only exception
the Act provides to repatriation is when a museum or agency can
prove that they have a ``right of possession.'' Even permitting
completion of a scientific study of major benefit to the United
States does not prevent repatriation, and will only delay it. 25
U.S.C. 3005(b).
Museums--even well-funded ones--have admitted that they will not
be proactive with their CUI inventories, even with the NAGPRA
funding they request, and that instead, they will continue to work
to overcomplicate the process, based on the current regulations and
criteria outlined there. Thus, it is imperative that the Secretary
take over this duty and correct the Ancestors and their belongings
that languish under a label called ``unidentifiable'' (NPS-2022-
0004-0153).

DOI Response: Nowhere in the Act did Congress say that decisions
about disposition or repatriation are made by balancing the interests
of science against the interests of human rights. While we are aware of
the statements made by Senators Inouye and McCain in 1992, we
understand those statements to say that the Act itself is the product
of balancing these interests. The lengthy process of developing,
drafting, and agreeing to the language of the Act is how Congress
ensured a balance between scientific study and respectful treatment of
human remains and cultural items.
To ensure all information related to the Congressional record is
available, the documents that provide legislative intent are available
on the National NAGPRA Program website (<a href="https://www.nps.gov/subjects/nagpra/the-law.htm">https://www.nps.gov/subjects/nagpra/the-law.htm</a>, accessed 12/1/2023). Beyond the two reports, the
Congressional Record provides statements by individual members of
Congress. In the Senate, Senator Inouye's full statement is available
in the Congressional Record Senate (October 26, 1990) on page 35678-
35679. Senator McCain's opening statement is on the preceding page
35677. A discussion of the impact of the legislation on development
activities on Federal lands by Senators McCain and Simpson is on page
35679-35680. In the House, Representatives Campbell (D-CO), Rhodes (R-
AZ), Collins (D-IL), Richardson (D-NM), Bennett (D-FL), Mink (D-HI),
and Udall (D-AZ) provided statements in the Congressional Record House
(October 22, 1990) on pages 31937-31941.
We agree with the objecting comments that the Congressional record
is replete with references to the balance, compromise, and agreement in
both the process to develop the Act and in the content of the Act
itself. We agree with the objecting comments that the Act creates a
balance, but we believe that the balance is built into the Act itself
through compromises made in the Act before its final passage. The
objecting comments appear to indicate that the balance Congress
intended comes in only repatriating some human remains and even fewer
associated funerary objects (as suggested by the objecting comments
reference to the 2010 Final Rule) or that in each decision on
disposition or repatriation, a museum or Federal agency must balance
the interests of science with those of human rights. We disagree with
this interpretation of the legislative history.
The Congressional record of the House clearly identified ``points
of compromise'' in the final version of the Act. Representatives
Campbell and Richardson stated the Act represents a compromise on the
following issues:

1. Limiting the inventory requirement to only human remains and
associated funerary objects rather than all Native American
collections;
2. Clarifying the definition of cultural affiliation to
incorporate anthropological and archeological criteria (i.e., traced
historically or prehistorically);
3. Adding a standard of repatriation for unassociated funerary
objects, sacred objects, and objects of cultural patrimony by
defining ``right of possession;''
4. Tightening the definitions of unassociated funerary objects
and sacred objects;
5. Clarifying the definition of museum to not apply to private
individuals who receive Federal payments such as social security;
and
6. Balancing representation of the Review Committee to include
all groups affected by the Act.

Representative Campbell's statement included two other compromises
in the final version of the Act:

The bill takes into account that many of these items may be of
considerable scientific value and allows for current studies to
continue with repatriation occurring after the completion of such a
study. It further acknowledges that repatriation is not the only
alternative and I encourage all sides to try and work out agreeable
compromises where all interested parties can benefit from

[[Page 86460]]

access to some of the items (136 Cong. Rec. 31938, emphasis added).

We agree with the last comment summarized above that the only
exception to expeditious repatriation under the Act is proving a
``right of possession'' (25 U.S.C. 3005(c)). Any need to complete a
scientific study does not prevent repatriation but only delays it (25
U.S.C. 3005(b)). In addition, we note that any need to excavate human
remains or cultural items on Federal or Tribal lands is only permitted
after consultation (on Federal lands) or consent (on Tribal lands), and
that regardless of any scientific study, disposition of human remains
or cultural items to the appropriate lineal descendant, Indian Tribe,
or NHO is always required (25 U.S.C. 3002(c)). Accordingly, we conclude
that the objective of the systematic processes in the Act is the
disposition or repatriation of human remains or cultural items, not to
achieve any kind of balance between the interests of science and the
interests of human rights.
We intend these regulations to better align with the processes for
disposition and repatriation found in the Act. In these regulations, we
cannot remove the decision-making authority vested in museums and
Federal agencies because doing so would be inconsistent with the Act.
We can, and have, included requirements for museums and Federal
agencies to consult, collaborate, and, in the case of scientific study
or research, obtain consent from lineal descendants, Indian Tribes, or
NHOs (see Comment 15). In addition, these regulations require museums
and Federal agencies to defer to the Native American traditional
knowledge of lineal descendants, Indian Tribes, and NHOs in all
decision-making steps.
In developing both the proposed and final regulations, we
emphasized consultation with Indian Tribes and NHOs and incorporated
comments from consultation to the maximum extent possible. This does
not indicate an imbalance in the process to develop these regulations
or in the resulting product, but rather reflects the special
relationship between the Federal government and Indian Tribes and NHOs
(25 U.S.C. 3010). Furthermore, while the Act is the primary authority
for these regulations, Congress authorized the Secretary to make such
regulations for carrying into effect the various provisions of any act
relating to Indian affairs (25 U.S.C. 9). As 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 this
provision 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)).
Finally, a statement in the Congressional record by Senator Inouye
is directly relevant to the objective of these revised regulations to
better reflect Congressional intent:

This legislation is designed to facilitate a more open and
cooperative relationship between native Americans and museums. For
museums that have dealt honestly and in good faith with native
Americans, this legislation will have little effect. For museums and
institutions which have consistently ignored the requests of native
Americans, this legislation will give native Americans greater
ability to negotiate. Mr. President, I believe this bill represents
a major step in correcting an injustice that started over 100 years
ago. It is appropriate that Congress take an active role in helping
to restore these rights to native Americans and I urge the adoption
of this measure by the Senate (136 Cong. Rec. 35678).

8. Comment: We received two comments requesting the Department
develop guidance and a framework to establish reburial areas for
repatriated collections. The comments point to the U.S. Department of
Agriculture, Forest Service, as an example of how land-managing Federal
agencies can assist and support reburials on Federal lands.
DOI Response: We appreciate the request, and we understand the
significant issues involved with securing lands for reburial. While
this request is outside the scope of these regulations, the Department
will consider how guidance and policy might be used to effectuate the
requested change.

B. Section 10.1 Introduction

9. Comment: We received 42 comments on Sec. 10.1(a) Purpose. Of
that total, 18 comments supported the revised paragraph, specifically
the inclusion of deference to lineal descendants, Indian Tribes, and
NHOs in the purpose paragraph. An additional 19 comments, while
generally supportive, also suggested changes to the paragraph.
Suggested changes include adherence to the purpose as stated by
Congress, emphasizing the limited exceptions to disposition or
repatriation, a significant change to verb tense, and defining and
referencing deference in the regulatory text. On the other hand, four
comments specifically objected to the inclusions of deference in the
purpose paragraph and expressed concerns about how deference applies
when there are disagreements among Indian Tribes or when other
requirements or definitions do not allow for deference to lineal
descendants, Indian Tribes, or NHOs. One comment generally objected to
the change in the purpose as an entire rewrite of the regulations that
would impede the systematic repatriation process.
DOI Response: We specifically requested input on the proposed
purpose paragraph, and we appreciate the response and have made changes
where permissible. As many comments indicate, the proposed purpose
paragraph was not as clear or effective as we had intended. Although
some comments suggested we delete the sentence on the rights the Act
recognizes, we have retained the sentence given the number of
supporting comments we received, but we have changed the verb tense as
requested. We have revised the purpose paragraph as suggested by
several comments to paraphrase the language used by Congress (H. Rpt.
101-877, at 8) which outlines the two separate processes for
disposition and repatriation under the Act. The purpose paragraph uses
plain language to describe the overall goals of these two separate
processes for disposition and repatriation (protect and restore). In
response to the objections and concerns about deference, we have
included both consultation and deference as a part of the purpose for
these regulations to ensure meaningful consideration of Native American
traditional knowledge throughout these processes. It is through
consultation and deference that these regulations ensure the rights of
lineal descendants, Indian Tribes, and NHOs the Act recognizes.
10. Comment: We received four comments on Sec. 10.1(b)
Applicability. Three comments suggested editorial changes to the
paragraph while one comment strongly supported the paragraph,
especially with its focus on museums and Federal agencies as the
applicable party.
DOI Response: Considering the revisions to Sec. 10.1(a), we have
made changes to this paragraph to emphasize the applicable parties that
are responsible for each major section of these regulations. We tried
to make this paragraph clear that many parts of the Act and these
regulations are not limited to Federal or Tribal lands. In response to
other comments on the requirements of these regulations, we have
clarified that lineal descendants, Indian Tribes, and NHOs are not
required to consult or to make a claim for disposition or a request for
repatriation.
11. Comment: We received two comments related to Sec. 10.1(c)
Accountability. One comment suggested

[[Page 86461]]

requiring a duty of candor by museums and Federal agencies to disclose
any human remains or cultural items that were destroyed, deaccessioned,
lost, or in any other way removed from the provisions of these
regulations. One comment suggested adding transparency to the
accountability requirements.
DOI Response: We cannot make the requested change regarding candor
as it is contrary to the requirements of the Act. A museum or Federal
agency must compile a summary of cultural items and an itemized list of
human remains and associated funerary objects in its possession or
control (25 U.S.C. 3003(a) and 3004(a)). Based on the information
available, a museum or Federal agency must determine if human remains
or cultural items that are destroyed, deaccessioned, lost, or in any
other way removed are under its possession or control and therefore
subject to these regulations. We note that in these regulations, as in
the proposed regulations, a museum or Federal agency must ensure the
summary and itemized list are comprehensive and cover any holding or
collection relevant to Sec. 10.9 and Sec. 10.10.
12. Comment: We received five comments objecting to Sec. 10.1(d)
Duty of care because the requirements went beyond the statutory
authority and should be recommendations not requirements. Some of these
comments suggested that the costs to comply with this paragraph would
be substantial, that additional curation and collections facilities may
need to be constructed, and that conflicts might arise with standard
curation, conservation, and preservation principles or practices. One
comment questioned how conflicts among Indian Tribes should be handled.
Another comment stated that research on human remains and cultural
items is necessary to determine cultural affiliation and, therefore,
the requirements in this paragraph conflict with the requirements in
Sec. 10.3. One comment suggested that ``to the maximum extent
possible'' and ``safeguard and preserve'' should be replaced with
``reasonable effort'' and a cross-reference to requirements in 36 CFR
part 79, respectively.
DOI Response: We disagree that these requirements go beyond the
statutory authority or that these requirements should only be
recommendations. The Secretary's authority for promulgating these
regulations is discussed extensively in other responses to comments
(see Comment 7), the 2010 Final Rule (75 FR 12379), and the 2022
Proposed Rule (87 FR 63207). Given the number of supporting comments
for this paragraph during consultation in 2021, including from the
Secretary's Federal Advisory Review Committee (Review Committee), and
comments on the proposed regulations requesting we strengthen these
requirements (see Comments 13-17), we chose not to revise these
requirements into recommendations. We strongly disagree with the
comment that research on human remains or cultural items is required by
the Act or these regulations to determine cultural affiliation or for
any other purpose. Rather, the Act explicitly and specifically does not
require new scientific studies or other means of acquiring or
preserving information (25 U.S.C. 3003(b)(2)), and we have incorporated
similar language into this paragraph to clarify (see Comment 16).
Earlier drafts of these regulations referenced 36 CFR part 79, as
suggested by one comment, but we received substantial negative feedback
on this during consultation in 2021 and from the Review Committee. Most
of that feedback felt the inclusion of 36 CFR part 79 in these
regulations was confusing or concerning. Federal agencies and their
repositories must still care for and manage collections that are
covered by the provisions of 36 CFR part 79. Regarding speculation on
substantial costs, conflicts with conservation and preservation
principles, and conflicts among lineal descendants, Indian Tribes, or
NHOs, the final regulations now require museums and Federal agencies to
make a ``reasonable and good-faith effort'' to incorporate and
accommodate Native American traditional knowledge in the storage,
treatment, or handling of human remains or cultural items (see Comment
14).
13. Comment: We received 16 comments supporting Sec. 10.1(d) Duty
of care as proposed while 23 comments were generally supportive but
suggested changes to strengthen the requirements. Many comments
requested this paragraph clearly apply to all Native American
collections, even those on loan or where specific cultural items
subject to the Act have not been identified. Some comments specifically
requested ``custody'' be deleted from the paragraph in line with
requested changes to expand ``possession or control'' or that this
paragraph clearly state that a museum or Federal agency only has a duty
of care and does not have rightful ownership of Native American human
remains or cultural items. Several comments requested a definition of
``care for, safeguard, and preserve.'' One comment requested this
paragraph include a requirement for the National NAGPRA Program to make
sporadic inspections of all museums and Federal agencies to ensure
professional museum and archival standards are met, including
physically securing collections through clean, rodent-free, and locked
areas with limited access. One comment requested additional clarifying
language to ensure these requirements do not serve as a justification
to delay or avoid repatriation. One comment requested two additional
paragraphs be included to require museums and Federal agencies to
provide specific and detailed information on any study or research of
Native American collections conducted after 1990, including copies of
published work and photographs.
DOI Response: We cannot require that this paragraph, or this part,
apply to all Native American collections as that would be inconsistent
with the Act (25 U.S.C. 3003(a) and 3004(a)). The requirements of this
paragraph are limited to human remains and cultural items as defined by
the Act and these regulations. We cannot remove ``custody'' from the
first sentence and still ensure that this paragraph will apply to human
remains and cultural items that are on loan but still subject to the
Act (see the definitions of ``custody'' and ``possession or control''
discussed elsewhere). We have intentionally included ``custody'' in the
duty of care requirement to ensure all Native American human remains
and cultural items are cared for, safeguarded, and preserved until the
disposition and repatriation processes are complete. However, the
inclusion of museums or Federal agencies with ``custody'' is not
intended to limit the ability of the museum or Federal agency with
possession or control of the human remains or cultural items from
carrying out its responsibilities under this paragraph or these
regulations. We cannot include the requested statement on rightful
ownership as it would be contrary to the provisions of the Act where a
museum or Federal agency can prove it has a right of possession to a
cultural item. We have not changed or defined ``to care for, safeguard,
and preserve,'' and these terms should be understood to have a
standard, dictionary definition. We believe these terms, along with
paragraphs (d)(1), (d)(2), and (d)(3), are sufficient to ensure an
adequate standard of care for human remains and cultural items,
including that the human remains or cultural items are properly stored
and physically secured in a clean and locked area and are reasonably
believed to be safe from damage or destruction by pests or natural
elements. We believe the

[[Page 86462]]

timelines included in the disposition or repatriation processes ensure
that these requirements will not be used to delay or avoid
repatriation, and we note that any request for an extension of the
deadlines for repatriation or for a stay of repatriation for scientific
studies would require consultation with and consent of the appropriate
lineal descendant, Indian Tribe, or NHO. While we appreciate the
suggestion to require information on any past research or study be
provided to lineal descendants, Indian Tribes, or NHOs as a part of a
duty of care, this provision is already provided for in Sec. Sec.
10.9(c)(4) and 10.10(c)(4). Under the Act and these regulations, lineal
descendants, Indian Tribes, and NHOs have a right to request records,
catalogues, relevant studies, or other pertinent data (25 U.S.C.
3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and Federal agencies
are required to share that information (25 U.S.C. 3005(d)). As required
by the Act, additional information is only provided upon request of an
Indian Tribe or NHO, and we cannot make this a requirement that applies
to all human remains or cultural items absent such a request.
In conjunction with that reasoning, we have removed the requirement
for lineal descendants, Indian Tribes, or NHOs to first make a request
for the duty of care requirements that follow, and we have removed ``to
the maximum extent possible'' from the introductory phrase (see Comment
14). We have revised this paragraph to include paragraphs (d)(1),
(d)(2), and (d)(3) on what a museum or Federal agency must do as a part
of its more general duty of care for human remains or cultural items.
These three requirements align with the purpose of the Act, these
regulations, and Congressional intent, which was stated as follows:

The [Senate] Committee intends the provisions of this Act to
establish a process which shall provide a framework for discussions
between Indian [T]ribes and museums and Federal agencies. The
Committee believes that the process established under this Act will
prevent many of the past instances of cultural insensitivity to
Native American peoples. The Committee has received testimony
describing instances where museums have treated Native American
human remains and funerary objects in a manner entirely different
from the treatment of other human remains. Several [T]ribal leaders
expressed their outrage at the manner in which Native American human
remains had been treated, stored or displayed and the use of
culturally sensitive materials and objects in violation of
traditional Native American religious practices. In the long history
of relations between Native Americans and museums, these culturally
insensitive practices have occurred because of the failure of
museums to seek the consent of or consult with Indian [T]ribes (S.
Rpt. 101-473, at 3).

Section 10.1(d)(1) requires museums and Federal agencies to consult
on the appropriate storage, treatment, or handling of human remains or
cultural items, which was reiterated in the proposed regulations at
Sec. Sec. 10.4, 10.9, and 10.10. In these final regulations, we have
revised those specific sections to refer to this paragraph.
Section 10.1(d)(2) requires museums and Federal agencies to make a
reasonable and good-faith effort to incorporate and accommodate
requests made by consulting parties (see Comment 14).
Section 10.1(d)(3) requires museums and Federal agencies to obtain
consent from consulting parties prior to any exhibition of, access to,
or research on human remains or cultural items (see Comment 15-17).
14. Comment: Of the 23 comments requesting we strengthen the duty
of care requirements, many requested ``deference'' replace ``to the
maximum extent possible.'' In addition, all comments objecting to the
duty of care requirements raised concerns about the vagueness of this
phrase and the potential for conflict between and among consulting
parties on the implementation of this phrase.
DOI Response: We have removed the phrase and revised Sec.
10.1(d)(2) to require museums and Federal agencies make a reasonable
and good-faith effort (in place of ``to the maximum extent possible''
in the proposed regulations) to incorporate and accommodate the Native
American traditional knowledge in caring for human remains or cultural
items. As the purpose of the Act and these regulations is the
disposition or repatriation of human remains and cultural items,
museums and Federal agencies must prioritize requests for storage,
treatment, or handling by lineal descendants, Indian Tribes, or NHOs
who will be the future caretakers of the human remains or cultural
items. These requests may require alterations or exceptions to standard
curation or preservation practices. In addition, as noted elsewhere,
when consultation on the duty of care does not result in consensus,
agreement, or mutually agreeable alternatives, the consultation record
must describe the concurrence, disagreement, or nonresponse of the
consulting parties.
As an example of how this requirement might be implemented, a
consulting Indian Tribe might request that an offering of organic
material be placed with human remains until repatriation and physical
transfer of the collection is complete. During consultation, the museum
and Indian Tribe might agree on how to accommodate this request while
still protecting and preserving the collection. The resulting agreement
might include increased pest monitoring in the area with the offering,
enclosing the offering in a glass jar next to the human remains or
cultural items, or identifying an alternative location for the
offering.
As another example of this requirement, a consulting Indian Tribe
might request that a particular type of oil or substance be applied to
an animal hide that is incorporated into a cultural item. Traditional
knowledge indicates that the oil or substance provides both physical
and spiritual protection of the cultural item until it is repatriated.
During consultation, the museum and Indian Tribe could agree on the
appropriate individual, possibly a trained conservator or a Tribal
member, and the appropriate method to apply the substance that does not
affect other parts of the cultural item or other items in the
collection.
Other examples of requests a lineal descendant, Indian Tribe, or
NHO might make for specific human remains or cultural items in a
collection include smudging in a collection storage space; using
specific cloth to cover collections; restrictions on who, how, or when
collections are handled; orienting collections in a certain direction;
storing certain collections separately or storing certain collections
together. Each of these requests must be considered in light of other
policies or systems, such as safety precautions, fire suppression
systems, human resource policies, or space limitations. Through
consultation, these requests may be incorporated and accommodated in a
mutually agreeable way. Resources from the School for Advanced Research
and the American Alliance of Museums are available to assist all
parties with these types of discussions and accommodations (``Standards
for Museums with Native American Collections,'' May 2023, <a href="https://sarweb.org/iarc/smnac/">https://sarweb.org/iarc/smnac/</a>, and ``Indigenous Collections Care Guide,''
publication pending, <a href="https://sarweb.org/iarc/icc/">https://sarweb.org/iarc/icc/</a>, accessed 12/1/2023).
15. Comment: Of the 23 comments requesting that we strengthen the
duty of care requirements, many requested that museums and Federal
agencies must obtain consent from lineal descendants, Indian Tribes, or
NHOs before any activity occurs that involves any Native American
collections, but especially prior to allowing access to or research on
human remains and cultural items. Some comments requested adding a
requirement to remove human

[[Page 86463]]

remains or cultural items from display or public access. Some comments
requested replacing ``Limit'' with ``Prohibit'' and include
``exhibition of'' with ``access to and research on'' in Sec.
10.1(d)(3). One of the comments objecting to the duty of care
requirement stated that a limitation on research conflicted with the
requirements for determining cultural affiliation, which requires
research.
In addition to these comments, 45 comments on provisions for
``scientific study'' found in Subpart C echoed these requests that the
regulations strengthen the protection of human remains or cultural
items in holdings or collections. Most of these comments requested that
museums and Federal agencies obtain consent from lineal descendants,
Indian Tribes, or NHOs prior to allowing any research on human remains
or cultural items. The second largest group of comments suggested that
museums and Federal agencies must consult with lineal descendants,
Indian Tribes, or NHOs prior to allowing research on human remains or
cultural items. One comment from a museum and scientific organization
requested that the regulations better align with the ethical principles
of professional archaeological and anthropological organizations, which
call for input, consensus, and informed consent from descendant
communities (NPS-2022-0004-0139). One comment from an Indian Tribe
explained that research and scientific studies continue to be conducted
on human remains and cultural items, despite the repeated requests of
Indian Tribes, and this research and study has delayed or even
prevented repatriation in some cases. The comment states:

We have raised these issues many times at the Congressional
level before the Senate Committee on Indian Affairs and before the
NAGPRA Review Committee and nothing was done to prevent the illegal
study of our relatives or the lengthy delays in their repatriation
and reburial. Changes must be made now to prevent any further
privileged use of the Act by agencies and museums who have been
allowed to ignore the plain speech in the Act regarding the study of
our deceased ancestors and their burial property.
It is plain to see that agencies and museums have had more than
enough time (the 33 years that NAGPRA has existed plus all the
decades our relatives sat ignored and collecting dust in museum or
agency repositories) to conduct their illegal studies and analyses
of our poor deceased relatives and their burial property and insist
that steps be taken now to prevent any further studies of our
deceased relatives and their burial property (NPS-2022-0004-0123).

DOI Response: In response to these comments, we revised Sec.
10.1(d)(3), by replacing ``Limit'' with ``Obtain free, prior, and
informed consent'' and adding ``exhibition of'' to ``access to or
research on human remains or cultural items.'' We cannot, as requested
by some comments, prohibit exhibition, access, or research on human
remains or cultural items as that would exceed the Secretary's
authority under the Act and would be contrary to Congressional intent.
While the Act is the primary authority for these regulations, Congress
authorized the Secretary to make such regulations for carrying into
effect the various provisions of any act relating to Indian affairs (25
U.S.C. 9). As 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 this provision 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)).
Ambiguities in statutes passed for the benefit of Indians are to be
construed to the benefit of the Indians (Bryan v. Itasca County, 426
U.S. 373 (1976)).
The Act does not prohibit museums or Federal agencies from
conducting scientific studies of human remains or cultural items but
does clearly state that such studies are not authorized by or required
to comply with the Act (25 U.S.C. 3003(b)(2)). The Act allows for a
scientific study to delay, but not to prevent, repatriation (25 U.S.C.
3005(b)). The Act provides only one exception to expeditious
repatriation by proving a ``right of possession'' (25 U.S.C. 3005(c)).
In addition, the Act allows for excavation of human remains or cultural
items from Federal or Tribal lands for purposes of a study, but only
after consultation (on Federal lands) or consent (on Tribal lands) (25
U.S.C. 3002(c)). As a result, there is some ambiguity in the Act
related to scientific study, which has been interpreted to mean that
the Act neither authorizes nor prohibits scientific study of human
remains or cultural items. In exercising the Secretary's authority for
these regulations, the Department considered both the legislative and
regulatory history related to scientific study of human remains or
cultural items subject to the Act, as well as related recommendations
from the Review Committee who is responsible for monitoring the
repatriation process (25 U.S.C. 3006(c)(2)).
The legislative history shows Congress intended for the Act to give
lineal descendants, Indian Tribes, and NHOs a more equitable voice in
any future scientific study of human remains or cultural items. One
central goal of the Act was ``to allow for the development of
agreements between Indian [T]ribes and museums which reflect an
understanding of the important historic and cultural value of the
remains and objects in museums collections'' (S. Rpt. 101-473, at 4).
The Senate Report provided a model of this kind of agreement where a
museum agreed to return human remains to an Indian Tribe for burial,
and the Indian Tribe chose to bury the human remains in a specially
designed crypt that could be opened periodically to provide access for
scientists to continue the study of the human remains. Earlier drafts
of the legislation allowed for a request for repatriation to be denied
if the requested item was part of a scientific study (H. Rpt. 101-877,
at 11). In explaining the substitute amendment that ultimately became
the Act, Congress explained the change to only delaying, not denying,
repatriation for a scientific study was a means of urging ``the
scientific community to enter into mutually agreeable situations with
culturally affiliated [T]ribes in such matters'' (H. Rpt. 101-877, at
15).
As discussed in Comment 7, in describing the compromises in the
final legislation, Representative Campbell stated that the Act
acknowledges ``that many of these items may be of considerable
scientific value'' and ``that repatriation is not the only
alternative.'' Representative Campbell recommended ``agreeable
compromises where all interested parties can benefit from access to
some of the items'' (136 Cong. Rec. 31938). Similarly, in urging the
passage of the bill, Senator Inouye stated ``[f]or museums and
institutions which have consistently ignored the requests of native
Americans, this legislation will give native Americans greater ability
to negotiate'' (136 Cong. Rec. 35678). This sentiment was echoed by
Senator Akaka who stated the Act would, among other things, ``eliminate
the longstanding policy of scientific research on future remains
found'' (136 Cong. Rec. 35678).
In its final version, the Act used the term ``scientific study''
twice. First, in describing what documentation may be requested, the
Act explicitly and specifically does not require new scientific studies
on human remains or associated funerary objects (25 U.S.C. 3003(b)(2),
referred to here as ``scientific studies are not required''). Second,
the Act requires that when a specific scientific study of human
remains, associated funerary objects, unassociated funerary objects,
sacred objects, or objects of cultural patrimony will result in a major
benefit to the United States, a museum or Federal agency may postpone
repatriation but

[[Page 86464]]

may not deny the request for repatriation (25 U.S.C. 3005(b)), referred
to here as ``delay for scientific study'').
The regulations as proposed in 1993 and as promulgated in 1995
addressed only the delay for scientific study under the exceptions to
repatriation in Sec. 10.10. The regulations included the statutory
language on documentation of human remains at Sec. 10.9 but did not
include that scientific studies are not required. The 1995 Final Rule
made a reference to both scientific study provisions in responding to
one comment that repatriation could not occur until a scientific
analysis was completed. The Department responded stating:

Section 5 (a) specifies that the geographic and cultural
affiliation of human remains and associated funerary objects be
determined `to the extent possible based on information possessed by
the museum of Federal agency.' No new scientific research is
required. Delaying repatriation until new scientific research is
completed contradicts the intent of Congress unless that scientific
research is considered to be of major benefit to the United States
(60 FR 62156).

The 2007 Proposed Rule, Disposition of Culturally Unidentifiable
Human Remains, added that scientific studies are not required to the
paragraph on documentation of human remains at Sec. 10.9. The 2007
Proposed Rule added text to explain (1) any documentation provided is a
public record and (2) a request for documentation cannot be construed
as authorizing a new scientific study or other means of acquiring
information. These additions were drawn directly from the Review
Committee's recommendations on culturally unidentifiable human remains
(discussed below).
In the 2010 Final Rule, Disposition of Culturally Unidentifiable
Human Remains, the Department responded to three comments on scientific
study specifically. Under General Comments, Comment 3 summarized
comments opining that ``Congress intended to allow study of ancient,
unaffiliated remains.'' The Department responded that ``The Act does
not draw a distinction between `ancient' and more recent remains'' and
then reiterated that scientific studies are not required (75 FR 12380).
Under Section 10.9 Other General Comments, Comment 57 summarized
comments that ``requested a clear and explicit explanation of how the
proposed rule takes into account the potential interests of the public
in scientific research and education.'' The Department responded that
scientific studies are not required (75 FR 12387).
In the 2010 Final Rule, under Section 10.9(e)(5) Additional
Documentation, Comment 46 summarized 20 comments regarding the addition
in the proposed regulations that scientific studies are not required.
Some comments stated the language would ``create a seemingly impossible
conundrum, would severely hinder the scientific study of ancient
remains, and are `an obvious attempt to end-run Congressional intent
and a Federal court ruling in the long-fought Kennewick Man case.' ''
One comment requested language be added to clarify that scientific
studies are not prohibited, and another comment requested language be
added to allow scientific studies if the consulting parties agree. The
largest number of comments requested language stating that human
remains must be treated with respect and ``should not be subject to any
further scientific research or used for teaching purposes.'' In
response to these comments, the Department simply stated that the
language came directly from the Act and reflected Congressional intent
(2010 Final Rule at 12386). Since 2010, both provisions on scientific
study have been codified in the regulations.
While the existing regulations include both provisions on
scientific study, the existing regulations do not provide any
mechanisms for ensuring that scientific studies are not required or for
administering the delay for scientific study. In the 2021 draft
revisions of the regulations prepared for Tribal consultation, the
Department introduced a procedure, through the Secretary, to administer
the delay for scientific study but did not include any reference that
scientific studies are not required. We received a significant number
of comments regarding both scientific study provisions during Tribal
consultation and from the Review Committee. As a result of this input,
the proposed regulations included in the duty of care requirement a
limitation on ``access to or research on'' human remains or cultural
items which would provide for implementation as well as enforcement
that scientific studies are not required. The proposed regulations also
provided procedures to administer the delay for scientific study by
both requesting and receiving concurrence of the Secretary as a stay of
the repatriation timeline under Sec. Sec. 10.9 and 10.10.
In preparing these final regulations, we looked at not only the
comments we received on the proposed regulations but also to the
legislative and regulatory history discussed above and to input from
the Review Committee on these issues. As noted above, the addition to
the regulations in 2007 that scientific studies are not required was
based on a Review Committee recommendation. Notably, the Review
Committee's recommendation was not to include the statutory language,
but to clarify that scientific studies must be agreed to by all parties
through consultation. In its 2000 final recommendations on culturally
unidentifiable human remains, the Review Committee recommended:

Documentation must occur within the context of the consultation
process. Additional study is not prohibited if the parties (Federal
agencies, museums, lineal descendants, Indian [T]ribes, and Native
Hawaiian organizations) in consultation agree that such study is
appropriate (65 FR 36463, June 8, 2000).

Between July 2021 and June 2022, the Review Committee reviewed and
discussed the draft regulatory text and, in its final recommendations,
developed its own duty of care requirement:

Duty of care. Through meaningful consultation with [T]ribes and
Native Hawaiian organizations, Federal agencies, museums,
universities, and repositories shall provide standards of care based
upon the free, prior, and informed consent of [T]ribes and Native
Hawaiian organizations for human remains and cultural items. Museums
and Federal agencies have an obligation to adhere to a standard of
reasonable care while performing any act that would foreseeably harm
any cultural item in their possession or control. This duty includes
taking affirmative steps to verify the location and condition of all
cultural items in the control of the museum or Federal agency, and
consulting with any lineal descendants and any culturally or
geographically affiliated Indian [T]ribes or Native Hawaiian
organizations to determine the standard of care they consider
reasonable (NPS-2002-0004-0003, attachment page 2).

As noted in the document, one Review Committee member objected to
the requirement of ``consent'' by Indian Tribes or NHOs to the
standards of curatorial treatment for Native American human remains and
other cultural items. The Review Committee member stated ``[s]uch a
unilaterally-imposed requirement might not be appropriate or
reasonable, and in some circumstances might violate existing binding
administrative agreements, legal obligations, and/or professional
standards of the curating organization'' (NPS-2022-0004-0003,
attachment page 2, footnote 1).
In preparing the proposed regulations, we adopted the Review
Committee's recommendation to include consultation, collaboration, and
consent but, in response to the objecting comment, caveated the
requirement with ``to the maximum extent possible.'' The proposed
regulations did not include the Review Committee's suggested language
of ``free, prior, and informed consent'' and the last sentence

[[Page 86465]]

of the Review Committee's recommendation was incorporated directly into
Subpart C. In preparing these final regulations, we revisited the
Review Committee's recommendations and found we were able to
incorporate the concept of ``free, prior, and informed consent'' by
clarifying the provisions in Sec. 10.1 pertaining to duty of care.
Paragraph (d)(1) requires consultation, paragraph (d)(2) requires
collaboration, and paragraph (d)(3) requires consent. We agree with the
Review Committee member and some of the comments on the proposed
regulations that curatorial standards and other requirements may limit
a museum or Federal agency's ability to incorporate or accommodate
requests from lineal descendants, Indian Tribes, or NHOs, and, as
discussed in Comment 14, museums and Federal agencies must make a
reasonable and good-faith effort to do so. We have limited the
requirement to obtain consent only to the exhibition of, access to, or
research on human remains and cultural items.
As the purpose of the Act and these regulations is the disposition
or repatriation of human remains or cultural items, we find it
appropriate that museums and Federal agencies must obtain consent from
lineal descendants, Indian Tribes, or NHOs before conducting activities
that might physically or spiritually harm human remains or cultural
items. For purposes of the duty of care paragraph, the lineal
descendants, Indian Tribes, or NHOs are those identified as consulting
parties under Sec. Sec. 10.4(b)(1), 10.9(b)(1), and 10.10(b)(1):
Consulting parties are any lineal descendant and any Indian Tribe or
NHO with potential cultural affiliation. If a museum or Federal agency
cannot identify any consulting parties for specific human remains or
cultural items, the duty of care requirement still applies. Until
consulting parties are identified, the museum or Federal agency may not
be required to consult under paragraph (d)(1) or collaborate under
paragraph (d)(2) of Sec. 10.1. Until consulting parties are
identified, the museum or Federal agency must not allow any exhibition
of, access to, or research on human remains or cultural items as doing
so may be subject to a failure to comply with the requirements of these
regulations. If a museum or Federal agency wished to conduct a specific
scientific study of human remains or cultural items, it could do so by
following the requirements for a stay of repatriation under Sec. Sec.
10.9 or 10.10. After following the requirements of these regulations,
nothing would preclude a museum or Federal agency from exhibiting,
allowing access to, or conducting research on collections that are not
subject to the Act or, after disposition or repatriation, reaching an
agreement with the requesting lineal descendant, Indian Tribe, or NHO.
16. Comment: We received four comments requesting the regulations
include in Sec. 10.10 the related statutory language from 25 U.S.C.
3003(b)(2) on ``scientific study.'' Another comment questioned if
``scientific study'' as used in Sec. Sec. 10.9 and 10.10 equated to a
single study that records paleopathology on an individual or a long-
term archaeological project at a site that includes many sub-projects
that study different bioarcheological and physical anthropological
topics.
DOI Response: We incorporated the statutory language on
``scientific study'' into paragraph (d)(3) by adding two sentences to
clarify that the term ``research'' as used here equates to the term
``scientific study'' in the Act and to emphasize that ``research'' of
any kind is not required by the Act or these regulations. We have
defined ``research'' to mean any study, analysis, examination, or other
means of acquiring or preserving information. ``Research'' includes any
activity to generate new or additional information beyond the
information that is already available, for example, osteological
analysis of human remains, physical inspection or review of
collections, examination or segregation of comingled material (such as
soil or faunal remains), or rehousing of collections. ``Research'' is
not required to identify the number of individuals or cultural items or
to determine cultural affiliation.
For example, if a museum wished to physically examine its
collection to identify the number of individuals or associated funerary
objects, the museum must first obtain consent from lineal descendants,
Indian Tribes, or NHOs. Until that consent is obtained, the museum must
rely on the information available (previous inventories, catalog cards,
accession records, etc.) to identify consulting parties, conduct
consultation, update the inventory, and submit a notice of inventory
completion.
If a Federal agency wished to examine an unprocessed collection of
archaeological material excavated from Federal land after 1990 to
identify if any human remains or cultural items were present, it could
do so until human remains or cultural items were identified. At that
time, any further examination or inspection of the collection would
require obtaining consent from a lineal descendant, Indian Tribe or
NHO. Until that consent is obtained, the Federal agency must rely on
the information available (excavation location, field notes, etc.) to
identify consulting parties, conduct consultation, and complete the
disposition of the human remains or cultural items.
17. Comment: We received five comments, including those by the
Review Committee, objecting to the inclusion of unassociated funerary
objects, sacred objects, or objects of cultural patrimony in the delay
for scientific study because it is inconsistent with the Act and
adverse to Tribal interests. These comments requested that the stay of
repatriation in Sec. 10.9 for ``scientific study'' be deleted in its
entirety (see NPS-2022-0004-0096; NPS-2022-0004-0143; NPS-2022-0004-
0151; NPS-2022-0004-0177; and NPS-2022-0004-0183).
DOI Response: We believe these comments conflated the two statutory
provisions for ``scientific study'' we outlined in response to Comment
16 (``scientific studies are not required'' and ``delay for scientific
study''). We agree that the Act limits the provision that scientific
studies are not required to only human remains and associated funerary
objects (25 U.S.C. 3003(b)(2)). Similar language does not appear in the
Act for unassociated funerary objects, sacred objects, and cultural
patrimony (25 U.S.C. 3004(b)(2)).
We do not agree, however, that extending the provision that
scientific studies are not required or the corresponding paragraph at
(d)(3) to unassociated funerary objects, sacred objects, or objects of
cultural patrimony is adverse to Tribal interests. Rather, we feel this
extension accomplishes the request made by many individuals, Indian
Tribes, and Native American organizations to prohibit all ``research''
on human remains as well as any cultural item (see NPS-2022-0004-0107;
NPS-2022-0004-0138; NPS-2022-0004-0158; NPS-2022-0004-0161; and NPS-
2022-0004-0187). Therefore, paragraph (d)(3) on duty of care that
requires consent for exhibition, access, or research applies to human
remains, associated funerary objects, unassociated funerary objects,
sacred objects, and objects of cultural patrimony.
We understand that the delay for scientific study in both
Sec. Sec. 10.9 and 10.10 is adverse to Tribal interests and may seem
to allow or authorize scientific studies. As one comment stated
clearly:

Finally, please note our previous statement that we are
categorically opposed to any

[[Page 86466]]

scientific study of our ancestors, their burial property or any item
of our sacred or cultural patrimony and we specifically request that
any language allowing any type of scientific study of any NAGPRA-
related item be stricken from this rulemaking for the reasons
submitted by our Nation, above (NPS-2022-0004-0123).

We cannot remove reference to ``scientific study'' or research from
these regulations. The delay for scientific study applies to all
``Native American cultural items,'' which are defined in the Act as
human remains, associated funerary objects, unassociated funerary
objects, sacred objects, and objects of cultural patrimony (25 U.S.C.
3005(b)). As any elimination or restriction of 25 U.S.C. 3005(b) would
require an act of Congress, we cannot remove the reference to
``scientific study'' entirely or make the requested change to remove
Sec. 10.9(i)(3). We have, however, strengthened the requirements under
duty of care in this final rule to ensure better implementation and
enforcement that scientific studies are not required.
18. Comment: We received three comments requesting clarification of
Sec. 10.1(e) Delivery of written documents. One comment requested an
editorial change to the text and the other two comments requested an
explanation of proof of receipt. One comment stated that tracking the
sending and receipt of written documents was a considerable burden on
all parties and would require a significant outlay of resources (NPS-
2022-0004-0135).
DOI Response: We have made the requested editorial change to
paragraph (e)(1) and added ``one of the following'' to ``must be sent
by.'' Regarding ``proof of receipt'' for email, many email systems
include an option to request a read receipt automatically. While these
systems may not constitute legal proof, use of such systems is
sufficient for the purposes of these regulations. If an email system
does not provide this option, other software or services can provide
proof of receipt for little to no cost. However, we do not expect or
require additional software or services to meet this requirement. The
minimum requirement to satisfy ``proof of receipt'' would be to request
that the recipient acknowledge receipt of the email. If no
acknowledgment is received, the sender may follow up with a phone call
to ensure the email was received. A call log or note to the file would
be sufficient ``proof of receipt.''
19. Comment: We received four comments suggesting changes to Sec.
10.1(f) Deadlines and timelines. One comment noted that Tribal holidays
may not coincide with Federal holidays and should be included. Another
comment requested this paragraph clarify that the Federal Register
calculates calendar days. One comment questioned how the Manager,
National NAGPRA Program, will meet the notice publication deadline if
there is a lapse in appropriations. One comment specifically questioned
the use of business days in relation to the requirements under Sec.
10.5 and stated that under the Act, ``days'' means calendar days. By
using business days, the total maximum work stoppage under Sec. 10.5
could increase to some 95 calendar days. In enacting the 30-day stop-
work period, Congress said ``days,'' which is commonly understood as
calendar days. Similarly, Rule 6(a) of the Federal Rules of Civil
Procedure provides that, in computing any time period specified in the
Rules, in any local rule or court order, or in any statute that does
not specify a method of computing time, when a period is stated in days
or a longer unit of time, every day is counted, including intermediate
Saturdays, Sundays, and legal holidays. Furthermore, the comment
states, except for using three ``working days'' for the ministerial
certification of receipt of a notice of discovery, the Department has
always used calendar days as the metric for calculating a period in the
existing regulations stated in days or a longer unit.
DOI Response: We agree that in the Act, days means calendar days.
We appreciate the comment on Tribal holidays, but given the great
variation in those dates, we cannot accommodate the request to include
or observe Tribal holidays. The purpose of this paragraph is to provide
clear instruction on how to calculate dates for the deadlines and
timelines in these regulations. Earlier drafts of these regulations
used calendar days. We received requests during consultation in 2021 to
use business days and to account for a lapse in appropriations. We
noted this change would lengthen most deadlines in the regulations but
accepted the suggested change in the proposed regulations. We have
revised paragraph (f)(1) in Sec. 10.1 to calendar days and included an
exception for when a deadline falls on a Saturday, Sunday, or Federal
holiday, including a lapse in appropriations.
20. Comment: We received seven comments suggesting changes to Sec.
10.1(g) Failure to make a claim or a request. Five comments requested
we delete this paragraph because the Act does not provide the Secretary
with the authority to include this waiver of rights language in the
regulations. These comments state that an Indian Tribe or NHO must
never lose its rights to claim disposition or request repatriation of
human remains or cultural items. One comment requested clarification
and guidance on the application of this paragraph to the time between
sending a repatriation statement and completing physical transfer of
human remains or cultural items. One comment requested the regulations
require clear and concise written proof of compliance with the notice
and consultation requirements prior to any waiver of a right to make a
claim or a request.
DOI Response: The Secretary's authority for promulgating these
regulations is discussed extensively in the 2010 Final Rule (75 FR
12379) and the 2022 Proposed Rule (87 FR 63207). The purpose of a
disposition or repatriation statement is to provide clear and concise
written proof that the requirements of the Act have been fulfilled (25
U.S.C. 3002(a) and 3005(a)). With the disposition or repatriation
statement, the museum or Federal agency divests itself of any interest
in the human remains or cultural items.
We cannot remove this paragraph without jeopardizing the entire
disposition or repatriation processes provided by the Act and these
regulations. This paragraph has been included in these regulations
since the 1993 Proposed Rule (58 FR 31132) and ensures that any claim
for disposition or request for repatriation must be considered by a
museum or Federal agency prior to disposition, repatriation, transfer,
or reinterment of human remains or cultural items. Once disposition,
repatriation, transfer, or reinterment occurs, a museum or Federal
agency cannot accept a claim or request from another party as the
museum or Federal agency no longer has any rights to or interest in the
human remains or cultural item. This paragraph provides protection for
lineal descendants, Indian Tribes, and NHOs as well as for museums and
Federal agencies that once a disposition or repatriation statement is
sent, it is not subject to future appeal or challenge.
21. Comment: We received four comments suggesting changes to Sec.
10.1(h) Judicial jurisdiction. Three comments requested we include the
role of the U.S. Court of Federal Claims in resolving specific matters.
One comment asked if this paragraph restricted the role of Tribal
courts in any related legal actions.
DOI Response: 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.
Regarding the U.S. Court of Federal Claims, we disagree with the

[[Page 86467]]

suggested change. This paragraph reflects the statutory description of
judicial jurisdiction for violations of the Act (25 U.S.C. 3013). It is
not intended to address judicial jurisdiction for potential
constitutional violations, such as the possibility of a Fifth Amendment
taking as described in the Act's definition for ``right of possession''
(25 U.S.C. 3001(13)). It is unnecessary for these regulations to
address the Court of Federal Claims' jurisdiction over Fifth Amendment
takings claims, which is well-established and not specific to this Act.
Regarding collection of civil penalties, this is already included in
Sec. 10.11, specifically in paragraph (m)(2) of these regulations.
22. Comment: We received 19 comments suggesting changes to Sec.
10.1(i) Final agency action. Four comments requested clarification as
to how to interpret final agency action and confirming that disposition
or repatriation determinations are final agency actions. Four comments
considered the categories of final agency action to be too narrow as
written and recommended adding language to clarify and including
examples of determinations that would make this part inapplicable, such
as determinations regarding plans of action, excavations, Federal land
ownership, and possession or control. On the other hand, one comment
described how those categories of final agency action impermissibly
broaden the concept. Six comments urged the Department to approve all
museum determinations under these regulations or compel museum action,
and that such approval or failure to compel should be defined as final
agency action. Four comments recommended that the Assistant Secretary's
decision not to assess a civil penalty be considered reviewable as
final agency action.
DOI Response: The Act does not grant the Secretary authority to
approve or compel museum determinations, other than by assessing civil
penalties for failures to comply. Regarding civil penalties, we have
not made changes that would make decisions to assess civil penalties
reviewable as final agency action because, first, the Act makes this
decision permissive, not required, and second, such decisions are
comparable to those in a criminal context (United States v. Halper, 490
U.S. 435 (1989)) and generally considered unreviewable under the
Administrative Procedure Act in order to preserve prosecutorial
discretion (Heckler v. Cheney, 470 U.S. 821 (1985)). While we
appreciate the remaining recommendations, we believe that the concerns
underlying each are already addressed by the language as it appeared in
the proposed regulations. First, the inclusion of any final
determination making the Act or this part inapplicable is intentionally
broad and inclusive enough to capture the examples and other regulatory
actions described in the comments. Second, at the same time, because
this determination must be final, because it is on its own terms
limited to situations where the information available to the Federal
agency has informed the determination that the Act or this part is
inapplicable, and because the determination in question is specific to
the application of this Act or this part, the category is sufficiently
limited in scope so as to ensure consistency with the Administrative
Procedure Act. The Department does not consider this language in these
regulations to redefine final agency action, but only to clarify its
existing application across the entirety of the Act and this part.
In addition, we have added a paragraph (k) to this section on
severability. While this rule is intended to create systematic
processes for implementing the Act, if a court holds any provision of
one part of this rule invalid, it should not impact the other parts of
the rule. For example, a decision holding a portion of Subpart B
invalid should not impact Subpart C, since they are two separate
processes for two different situations. Similarly, a decision holding
part of the inventory process invalid should not impact the summary or
repatriation processes. Any decision finding any provisions in this
rule to be invalid would not impact the remaining provisions, which
would remain in force. The intent of this rule is to streamline the
processes and increase deference to lineal descendants, Indian Tribes,
and NHOs as a whole, but the rule is not an interdependent whole--other
provisions of the rule would implement that intent even if a court
declared certain provisions invalid.

C. Section 10.2 Definitions for This Part

23. Comment: We received four comments requesting we add new
definitions. Three comments requested we define ``deference.'' One
comment requested we define ``simple itemized list,'' ``lot,'' and
``specific area'' for funerary objects.
DOI Response: We have not defined ``deference'' in these
regulations. As used in these regulations, this term is intended to
ensure meaningful consideration of Native American traditional
knowledge of lineal descendants, Indian Tribes, and NHOs throughout the
systematic processes for disposition and repatriation. The term should
be understood to have a standard, dictionary definition: ``respect and
esteem due a superior or an elder; also affected or ingratiating regard
for another's wishes'' (Merriam-Webster definition of ``deference''
<a href="https://www.merriam-webster.com/dictionary/deference">https://www.merriam-webster.com/dictionary/deference</a>, accessed 12/1/
2023). The requirement for deference is not intended to remove the
decision-making responsibility of a museum or Federal agency under the
Act or these regulations but is intended to require that a museum or
Federal agency recognize that lineal descendants, Indian Tribes, and
NHOs are the primary experts on their cultural heritage. We believe the
application of deference in these regulations is clear, and we have
reinforced its application through changes to paragraphs in Sec.
10.1(a) Purpose and (d) Duty of care and in the definition of
``consultation'' below.
We do not believe it is necessary to define ``simple itemized
list,'' ``lot,'' or ``specific area.'' Each of these terms should be
understood to have a standard, dictionary definition, and when a museum
or Federal agency is trying to apply them, we note that consultation
with lineal descendants, Indian Tribes, or NHOs should inform that
decision.
24. Comment: We received six comments supporting the definitions in
the proposed regulations. These comments appreciated that the
definition of ``cultural item'' (and the definitions of specific kinds
of cultural items) included language that recognizes lineal
descendants, Indian Tribes, and NHOs are the primary experts on their
own cultural heritage. One comment requested these definitions be
further strengthened by requiring museums and Federal agencies defer to
the determination of the lineal descendant, Indian Tribe, or NHO.
Similar comments were repeated in each of the definitions of specific
kinds of cultural items.
DOI Response: We have retained the language in the definition of
``cultural item,'' ``funerary object,'' ``sacred object,'' and ``object
of cultural patrimony.'' We have not added a requirement for deference
to the determinations of lineal descendants, Indian Tribes, or NHOs as
it would be inconsistent with the Act. Museums and Federal agencies are
responsible for making determinations under the Act and these
regulations, but must do so after consulting with lineal descendants,
Indian Tribes, and NHOs. We have changed the order of the sentences to

[[Page 86468]]

reflect the importance of Native American traditional knowledge (which
includes customs and traditions) in these definitions. Furthermore, we
have strengthened the application of these definitions through changes
to paragraphs in Sec. 10.1(a) Purpose and (d) Duty of care and in the
definition of ``consultation'' below.
25. Comment: We received 21 comments on the proposed definitions of
``acknowledged aboriginal land'' and ``adjudicated aboriginal land.''
Of that total, 13 comments suggested changes to the definitions while
eight comments supported both definitions as proposed.
DOI Response: Due to the changes to the definition of ``cultural
affiliation,'' we are not finalizing the proposed definitions of
aboriginal land in this rule. We believe the changes to cultural
affiliation address the concerns expressed by the comments and ensure
consultation on and consideration of information about aboriginal
occupation in determining cultural affiliation. We have replaced
``adjudicated aboriginal land'' in the regulatory text with the
elements of the definition.
26. Comment: We received 21 comments on the definition of
``affiliation.'' Of that total, 14 comments suggested changes to the
definition while seven comments supported it. One comment questioned if
the Secretary has the authority to alter a definition in the statute
and opposed the generalized and simplistic meaning of ``affiliation.''
The other comments requested that the definition of ``affiliation'' be
used to define ``cultural affiliation.''
DOI Response: We agree with the suggestion to add ``cultural''
before affiliation in this definition. We have clarified this
definition by incorporating the Congressional intent of this definition
``to ensure that the claimant has a reasonable connection with the
materials'' (H. Rpt. 101-877, at 14, and S. Rpt. 101-473, at 6). The
additional language found in the definition in the Act (traced through
time and identifiable earlier group) has been incorporated into the
procedure for determining cultural affiliation and the related changes
explained in our responses under Sec. 10.3. We included in the
definition of cultural affiliation the two ways cultural affiliation
may be identified (clearly or reasonably), taken from the language in
the Act (25 U.S.C. 3003(d)(2)).
27. Comment: We received two comments suggesting changes to the
definition of ``ahupua`a.''
DOI Response: We agree with the comments and have made the
suggested changes. We appreciate the feedback that the definition of
ahupua`a includes extra contextual information that is already
incorporated in Sec. 10.3. We also note that priority for cultural
affiliation is not given to an NHO based on the NHO's location or
cultural practice at the time of their claim or request but rather
priority for cultural affiliation is based on the NHO's relationship to
the earlier occupants of the ahupua-a from where the human remains or
cultural items were removed or in which they are discovered.
28. Comment: We received three comments suggesting changes to the
definition of ``appropriate official.'' One comment suggested that the
appropriate official be trained on the time requirements of that job.
The other comments wanted the Department to provide a contact list of
appropriate officials.
DOI Response: The responsible Indian Tribe, NHO, DHHL, or Federal
agency is responsible for the training the appropriate official. The
National NAGPRA Program maintains contact information on its website at
<a href="https://grantsdev.cr.nps.gov/NagpraPublic/Home/Contact">https://grantsdev.cr.nps.gov/NagpraPublic/Home/Contact</a> (accessed 12/1/
2023). We encourage Indian Tribes, NHOs, Federal agencies, and museums
to provide or update contact information on a regular basis. We also
point out that the Advisory Council on Historic Preservation keeps an
updated list of Federal Preservation Officers for each Federal agency
at <a href="https://www.achp.gov/protecting-historic-properties/fpo-list">https://www.achp.gov/protecting-historic-properties/fpo-list</a>
(accessed 12/1/2023). The National Park Service and the Bureau of
Indian Affairs maintain contact information on Tribal Historic
Preservation Offices at <a href="https://grantsdev.cr.nps.gov/THPO_Review/index.cfm">https://grantsdev.cr.nps.gov/THPO_Review/index.cfm</a> (accessed 12/1/2023) and Tribal Leaders at <a href="https://www.bia.gov/bia/ois/tribal-leaders-directory/">https://www.bia.gov/bia/ois/tribal-leaders-directory/</a> (accessed 12/1/2023).
29. Comment: We received 10 comments suggesting changes to the
definitions of ``ARPA Indian land'' and ``ARPA public land.'' Most of
the comments said that the definitions are inconsistent with the Act
and would unduly narrow the application of the Act and these
regulations. One comment noted that the definition of ``ARPA Indian
land'' includes the term ``individual Indian.'' The comment stated that
the latter term was undefined in the proposed regulations and suggested
that it be replaced with the defined term ``lineal descendant.''
DOI Response: We have not changed these definitions. These
definitions do not change the application of NAGPRA. NAGPRA applies to
its fullest extent on ``Federal land'' or ``Tribal land,'' as defined
in both the statute and these regulations. Rather, the terms ``ARPA
Indian land'' and ``ARPA public land'' define which excavations under
NAGPRA require a permit issued under ARPA and which do not.
Specifically, NAGPRA requires that human remains or cultural items may
only be excavated or removed from Federal or Tribal land if, among
other requirements, ``such items are excavated or removed pursuant to a
permit issued under [ARPA] which shall be consistent with [NAGPRA].''
25 U.S.C. 3002(c)(1). Since both NAGPRA and ARPA are intended to
protect important cultural resources, they must be construed together.
Further, ``issued under ARPA'' is an adjectival phrase modifying
``permit.'' Thus, it is not ARPA that ``shall be consistent with
NAGPRA,'' but rather the ARPA permit that must be consistent with
NAGPRA. This is supported by the NAGPRA legislative history. The Senate
Indian Affairs Committee specifically noted that it ``[intended] the
notice and permit provisions of this section to be fully consistent
with the provisions of [ARPA]'' (S. Rpt. 101-473, at 7). Likewise, the
House Committee on Interior and Insular Affairs, in discussing the
stopping of work for an inadvertent discovery, noted that, ``[a]lthough
a specific time limit was not added here, the Committee does intend to
protect the remains and objects found and does not intend to weaken any
provisions of other laws, such as [ARPA], regarding similar
situations.'' Like the Senate Committee, the House Committee also
stated that, ``[s]ubsection (c) provides that items covered by this Act
can be excavated from Federal or [T]ribal land if proof exists that a
permit has been acquired under Section 4 of the [ARPA]'' (H. Rpt. 101-
877, at 15 and 17).
Therefore, the provisions of ARPA, including the scope of public
land and Indian land, are not affected by NAGPRA. So, the terms ``ARPA
Indian land'' and ``ARPA public land'' are defined in these regulations
using the exact same definitions of ``Indian land'' and ``public land''
in ARPA, including use of the term ``individual Indian,'' which is used
in ARPA to denote land that is owned by an individual Indian, who may
or may not be a ``lineal descendant'' as defined in NAGPRA. The
protection of the scope of both statutes is reflected in these
regulations by the requirement that ARPA permits are issued for NAGPRA
excavations just as they are for ARPA excavations, keeping the full
protections of each statute in place, as Congress intended.

[[Page 86469]]

30. Comment: We received 39 comments on the definition of
``consultation.'' Of that total, two comments objected to the
definition because ``to the maximum extent possible'' was a vague and
troubling standard. These two comments also objected to the use of
consensus and requested it be removed or made a recommendation rather
than a requirement because, as one comment stated, ``it is not within
the ability of museums to seek consensus or mediate potential
disagreements among sovereign nations during the consultation process''
(NPS-2022-0004-0136). In addition, one comment didn't object to the
definition but requested clarification as to whether ``seek consensus''
would mean museums and Federal agencies must ensure responses are
received from all parties invited to consult.
On the other hand, nine comments supported the definition as
proposed while 27 comments supported the definition but suggested
changes to strengthen it. Most of these comments suggested changing
``seek consensus'' to ``achieve'' or ``strive for'' consensus,
replacing ``incorporating'' with ``deferring to,'' replacing ``to the
maximum extent possible'' with ``as the Indian Tribe or Native Hawaiian
organization understands them,'' or removing ``to the maximum extent
possible.'' A few comments suggested adding that consultation is
between equal parties or that it must be conducted in good faith. A few
comments suggested including a requirement for museum or Federal agency
decision-makers to be present at consultation, for consultation to be
continual, or to add ``transparent'' and ``formal'' to the definition.
One comment renewed a request to use the definition of consultation in
36 CFR part 800.
DOI Response: Consultation is a critical, central, and continual
part of the systematic processes for disposition or repatriation
provided by the Act and these regulations. However, neither the Act nor
the existing regulations define consultation. Earlier drafts of these
regulations drew directly on Congressional report language that
``consultation'' under NAGPRA means ``the open discussion and joint
deliberations with respect to potential issues, changes, or actions by
all interested parties'' (H. Rpt. 101-877, at 16). Specific to the
inventory, Congress emphasized the need for ``cooperative exchange of
information between Indian [T]ribes or Native Hawaiian organizations
and museums regarding objects in museum collections'' (S. Rpt. 101-473,
at 8). In the proposed regulations, we added specific types of
information that are exchanged during consultation (identifications,
recommendations, and Native American traditional knowledge). We also
drew language from other definitions for consultation found in 36 CFR
part 800, Executive Order 13175, and draft guidance and language that
became the November 2022 White House memorandum on Uniform Standards
for Tribal Consultation.
In response to comments that objected to the proposed definition,
we have removed ``to the maximum extent possible'' and clarified the
goal of consultation is to strive for consensus, agreement, or mutually
agreeable alternatives. We did not and do not intend for ``consensus''
to imply museums or Federal agencies are required to mediate potential
or even actual disagreements among lineal descendants, Indian Tribes,
or NHOs. Likewise, ``consensus'' does not require a museum or Federal
agency receive a response from every invited consulting party before it
can proceed. The consultation record should include efforts to invite
consulting parties. When consultation does not result in consensus,
agreement, or mutually agreeable alternatives, the consultation record
must describe the concurrence, disagreement, or nonresponse of the
consulting parties.
In response to comments that requested strengthening the definition
for consultation, we have revised the second half of the sentence to
better reflect the goals of consultation. We have added ``good faith''
to the definition to ensure honest and fair consideration of all points
of view and removed it from each of the regulatory steps on
consultation. We have expanded the definition to clearly identify the
goals of consultation, drawing on other sources suggested by the
comments. ``Seek, discuss, and consider the views of all parties''
comes from language in 36 CFR part 800.16. Although we received several
comments requesting we change ``seek'' to ``achieve,'' we have used
``strive for'' which was suggested by some comments and is found in the
November 2022 White House memorandum on Uniform Standards for Tribal
Consultation. We feel this change better reflects the goal of
consultation and is stronger than ``seek consensus'' but still reflects
consensus may not be achieved. We have also added to the goal of
consensus ``agreement'' and ``mutually acceptable alternatives.''
Although we received several comments requesting we add deference to
this definition, we have instead added that consultation enables
consideration of the kinds of information that can be provided by
lineal descendants, Indian Tribes, and NHOs. This replaces the more
limited list of information in the proposed regulations, and we expect
it will provide a more robust and clearer record of information shared
by lineal descendants, Indian Tribes, and NHOs during consultation.
In response to all the comments and as noted elsewhere, when
consultation does not result in consensus, agreement, or mutually
agreeable alternatives, the consultation record must describe the
concurrence, disagreement, or nonresponse of the consulting parties.
Although a few comments suggested we require in the definition that
decision makers attend consultations, we have not included this in
these regulations. We believe this requirement may not fit every
situation and might end up delaying or eliminating the efficiencies of
these regulations. Rather, we note that when consultation does not
result in consensus, agreement, or mutually acceptable alternatives,
consulting parties may wish to involve decision makers from all parties
to see if a resolution can be found.
Lastly, we note that consultation as defined here is different than
consultation defined in other contexts, especially consultation between
a Federal agency and an Indian Tribe or NHO. For purposes of
disposition or repatriation, Federal agencies are required to comply
with this definition of consultation as well as any applicable policy
on government-to-government/sovereign consultation that would apply in
all contexts. For purposes of repatriation, we cannot require museums
to conduct the same level of consultation that would be required for a
Federal agency. We feel this definition of consultation provides
requirements that can be met by both museums and Federal agencies,
fills in a missing piece of the Act and the existing regulations, and
ensures consultation remains a critical, central, and continual part of
the systematic processes for disposition or repatriation.
31. Comment: We received 20 comments on the definition of
``cultural item.'' Of that total, 16 comments suggested changes to the
definition while four comments supported it. Four comments stated that
changing the definition of cultural item to exclude human remains
exceeded the Secretary's authority. One comment objected to the
definition without further request for changes. One comment suggested a
grammatical change. One comment suggested

[[Page 86470]]

cultural item be broadened to include documents and records (including
photographs) associated with human remains or cultural items to ensure
repatriation of those documents and records. Six comments requested the
definition of cultural items be expanded to require Tribal
consultation. The comments pointed out that the definitions in the Act
``depend in part on [T]ribal use and cultural significance. 25 U.S.C.
3001(3). Courts have clarified that Indian Tribes play a role in
determining whether items possess the requisite cultural significance
to meet NAGPRA's definitions, especially regarding `cultural
patrimony.' See United States v. Tidwell, 191 F.3d 976, 981 (9th Cir.
1999); United States v. Corrow, 119 F.3d 796, 805 (10th Cir. 1997).''
(see NPS-2022-0004-0119 for one of the six comments). Three comments
objected to the definition as proposed because the required deference
to Indian Tribes and NHOs in the regulations and the definitions of
cultural items had the potential to create conflict between types of
information or among Indian Tribes or NHOs.
DOI Response: As we stated in the proposed regulations, use of the
phrase ``human remains or cultural items'' is responsive to requests of
Indian Tribes and NHOs. The existing regulations do not define
``cultural items'' but still use the term to include human remains.
This change from ``cultural items'' to ``human remains or cultural
items'' is only editorial and does not have any impact on the
applicability or scope of these regulations. This editorial change is
within the Secretary's authority, as the Department asserted in the
1993 Proposed Rule (58 FR 31122).
We have not made the requested grammatical change (from singular to
plural) as it is unnecessary in regulatory definitions. Throughout
these final regulations, a singular term includes and applies to
several persons, parties, or things. We cannot expand the definition to
include documents and records (including photographs) as that would be
inconsistent with the Act. We note that requesting documents and
records (which could include photographs) is already provided for in
Sec. Sec. 10.9(c)(4) and 10.10(c)(4). Under the Act and these
regulations, lineal descendants, Indian Tribes, and NHOs have a right
to request records, catalogues, relevant studies, or other pertinent
data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and
Federal agencies are required to share that information (25 U.S.C.
3005(d)). As required by the Act, additional information is only
provided upon request of an Indian Tribe or NHO, and we cannot require
documents and records be provided by including these in the definition
of cultural items. We advise lineal descendants, Indian Tribes, and
NHOs to make their requests as broad as possible to ensure all
information about cultural items, including digital data, is provided.
Regarding the request to strengthen the definition, we are unable
to change ``according to'' to ``as determined by'' as it would be
inconsistent with the Act. Museums and Federal agencies are responsible
for making determinations under the Act and these regulations, but must
do so after consulting with lineal descendants, Indian Tribes, and
NHOs. We have changed the order of the sentence to reflect the
importance of Native American traditional knowledge (which includes
customs and traditions) in this definition.
We disagree that the definition is over-broad, a reversal of
Congressional intent, or contrary to explicit statements in the
Congressional record. Deference to Native American traditional
knowledge is necessary to ensure the rights of lineal descendants,
Indian Tribes, and NHOs the Act recognizes. The addition of ``according
to Native American traditional knowledge'' in this definition is to
ensure meaningful consideration of this information during
consultation.
We believe this addition to the various definitions of cultural
items will lead to more informed decision-making and help to avoid the
lengthy and costly delays in disposition or repatriation. In crafting
the definitions of cultural items, Congress clearly intended that the
definitions ``will vary according to the [T]ribe, village, or Native
Hawaiian community'' (S. Rpt. 101-473, at 4). Consultation, which is
required throughout the Act prior to any determination, is how an
Indian Tribe or NHO shares the information needed to identify a
cultural item.
32. Comment: We received 14 comments on the definition of
``custody.'' Of that total, nine comments suggested changes to the
definition while five comments supported it. Eight comments recommended
deleting this definition and replacing it with the concept of
possession in the definition of ``possession or control.'' One comment
recommended replacing the term ``sufficient interest'' with the term
``legal authority.''
DOI Response: We have not made changes to this definition. We
cannot replace this definition with an expanded definition for
``possession or control,'' as discussed in the response to comments on
that definition (see comment 49). Custody without ``possession or
control'' is a distinct concept from ``possession or control'' itself.
This distinct concept requires definition to implement certain
requirements, including a duty of care and certain reporting
requirements. Further, we did not replace the term ``sufficient
interest,'' which is a threshold determination that museums and Federal
agencies must make. Changing this phrase would presume application of
the Act before that determination has been made. As discussed in more
detail in the response to comments for the definition of ``possession
or control,'' whether a museum or Federal agency has a sufficient
interest in an object or item to establish ``possession or control'' is
a legal determination that must be made on a case-by-case basis.
33. Comment: We received two comments requesting changes to the
definition of ``discovery.'' One comment raised a concern that removal
of human remains or cultural items from Federal or Tribal lands is
either excavation or theft, not a discovery. One comment questioned why
the word ``inadvertent'' is no longer used with the word ``discovery.''
DOI Response: We understand the concern but cannot make the
requested change to eliminate ``removing'' from the definition of
discovery and still ensure that human remains or cultural items are
protected on Federal or Indian lands under these regulations. As one
comment notes, an intentional removal without a written authorization
for an excavation could violate other Federal laws, depending on the
circumstances. These regulations do not replace or supplant the other
protections available on Federal or Tribal lands. Rather this
definition and these regulations provide a process for the disposition
of those human remains or cultural items that may be discovered.
The definition of discovery includes both inadvertent and
intentional discovery of human remains or cultural items. This ensures
that any human remains or cultural items are subject to these
regulations, regardless of how they were discovered.
34. Comment: We received seven comments requesting clarification of
the definition of ``Federal lands.'' Four comments did not consider the
definition to be sufficiently clear or instructive to Federal agencies.
One comment noted that the definition should include lands leased by
the Federal government. One comment noted that the definition could
impact museum collections under Subpart C. One comment noted that the
definition should include language to provide for

[[Page 86471]]

the protection and disposition of Native American children buried at
Indian boarding schools on lands not owned or controlled by the Federal
Government, but where the Indian boarding school was operated by or for
the U.S. Government.
DOI Response: We have not made these changes. Whether a Federal
agency's control of the lands on which it conducts it programs or
activities is sufficient to apply these regulations depends on the
circumstances and scope of that 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. In some circumstances, the definition may include
lands leased by the Federal agency, depending on the nature of that
lease, the Federal agency's statutory authority, and other case-by-case
circumstances. The Department cannot instruct Federal agencies any
further on their own circumstances or statutory authorities, and
recommends Federal agencies consult with their legal counsel in making
such determinations. The definition is not applied to museum
collections in Subpart C.
Regarding lands on which Native American children were buried at
Indian boarding schools, we cannot amend the regulatory definition of
``Federal lands'' as requested. Congress specifically and explicitly
defined Federal lands based on control or ownership, 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 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); United Keetoowah Band
of Cherokee Indians Of Okla. v. United States HUD, 567 F. 3d 1235, 1243
(10th Cir. Okla. 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'')). However, the Department does encourage the
custodians of records from boarding schools not on Federal or Tribal
lands, and the current owners of those boarding schools and cemeteries,
to fully consult with lineal descendants, Indian Tribes, and NHOs on
identification, disinterment, and repatriation of Native American
children. The Department stands ready to assist lineal descendants,
Indian Tribes, and NHOs to the fullest extent of its authority.
35. Comment: We received two comments suggesting changes to the
definition of Federal agency to include the Smithsonian Institution.
DOI Response: We cannot make this change. The Act expressly
excludes the Smithsonian Institution from the definition of Federal
agency.
36. Comment: We received 22 comments on the definition of
``funerary object.'' Of that total, 8 comments supported the definition
in the proposed regulations while 14 comments requested changes to it.
Two comments objected to the definition as being too expansive by
replacing ``preponderance of the evidence'' in the existing regulations
with ``according to'' which the comments believed would create
ambiguity and confusion in applying the definition. On the other hand,
two comments suggested changing ``according to'' to be ``as determined
by'' to further strengthen the deference to lineal descendants, Indian
Tribes, and NHOs on identification of funerary objects. One comment
suggested integrating the definition of funerary object in to two
separate definitions for associated and unassociated funerary objects.
This same comment raised concerns about the example provided in the
proposed regulations. One comment expressed frustration with the use of
acronyms for funerary objects which the comment stated are offensive
and dismissive.
Six comments provided an extensive argument and requested removing
the temporal limitation on human remains related to associated funerary
object (``are, or were after November 16, 1990'') (see NPS-2022-0004-
0119 for one of the six comments). One comment requested clarification
of and emphasis on the location of human remains for unassociated
funerary objects. One comment objected to the statement that a burial
site could ever be ``no longer extant.''
DOI Response: We reemphasize that the proposed revisions to the
existing regulations, specifically the removal of ``preponderance of
the evidence'' from the definition of funerary object, is to align the
definitions in the regulations with those in the Act. The existing
regulations limit the definition of a funerary object by including the
statutory language intended to apply only to unassociated funerary
objects. In 1995, the Department accepted the suggestion to combine the
definitions of associated funerary objects and unassociated funerary
object into a single definition of funerary object and in doing so,
attached the statutory language for unassociated funerary object to all
funerary objects. In 1995, the Department asserted:

The statutory language makes it clear that only those objects
that are associated with individual human remains are considered
funerary objects. The distinction between associated and
unassociated funerary objects is based on whether the individual
human remains are in the possession or control of a museum or
Federal agency. (60 FR 62137).

The Department reiterated and clarified this statement in the 2022
Proposed Rule, ``. . . 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'' (87 FR 63211). The intent
of revising this definition is to clarify long-standing confusion over
the distinction between associated and unassociated funerary objects
and align the definitions with those in the Act. We have retained the
single defintion for funerary object and the two related definitions of
associated or unassociated funerary object as we believe it clarifies
the definitions.
It is important to note ``individual human remains'' as used in the
Act means the human remains of an individual or individuals. We have
removed ``individual'' from the definition of funerary object to
simplify and clairfy the definition. The Act does not require a
funerary object be identified to a specific individual. Rather, a group
of individuals may be related to a single funerary object and the
object may be a funerary object without identifying specifically with
which individual the object was placed.
We have retained the phrase ``with or near'' as we believe it
approporiately expands the definition of what may be a funerary object.
As noted in the 1995 Final Rule, ``[t]he clause was included to
accommodate variations in Native American death rites or ceremonies''
(60 FR 62138). We have retained the requirement for the object to be
``intentionally'' placed. As noted in the 1995 Final Rule, ``[t]he term
is included to emphasize the intentional nature of death rites or
ceremonies. Items that indadvertently came into proximity or contact
with human remains are not considered funerary objects'' (60 FR 62137).
For funerary objects, broad categorical identifications, including
everything from a burial site or specific area, may meet the definition
of a

[[Page 86472]]

funerary object depending on the information available and the results
of consultation. As noted in the example in the 2022 Proposed Rule, it
may be reasonable to believe an object was placed intentionally in a
location because of the human remains even if the object was placed
there many centuries after the human remains (87 FR 63211). As one
comment suggested, this may result in the funerary object having a
different cultural affiliation than the human remains. We have revised
the definition of funeary object to ensure, as in the Act, that
cultural affiliation is not a required element to meet the definition
of a funerary object.
Table 3 compares the definition of ``funerary object'' from the
Act, the existing regulations, and this final rule and indicates the
changes to the definition in the Act by underline (additions),
strikethrough (removals), and moved text (brackets).
[GRAPHIC] [TIFF OMITTED] TR13DE23.000

Regarding the request to strengthen the definition, we are unable
to change ``according to'' to ``as determined by'' as it would be
inconsistent with the Act. Museums and Federal agencies are responsible
for making determinations under the Act and these regulations, but must
do so after consulting with lineal descendants, Indian Tribes, and
NHOs. We have changed the order of the sentence to reflect the
importance of Native American traditional knowledge (which includes
customs and traditions) in this definition.
We disagree that the definition is over-broad, a reversal of
Congressional intent, or contrary to explicit statements in the
Congressional record. Deference to Native American traditional
knowledge is necessary to ensure the rights of lineal descendants,
Indian Tribes, and NHOs the Act recognizes. The addition of ``according
to Native American traditional knowledge'' in this definition is to
ensure meaningful consideration of this information during
consultation.
We believe this addition to the various definitions of cultural
items will lead to more informed decision-making and help to avoid the
lengthy and costly delays in disposition or repatriation. In crafting
the definitions of cultural items, Congress clearly intended that the
definitions ``will vary according to the [T]ribe, village, or Native
Hawaiian community'' (S. Rpt. 101-473, at 4). Consultation, which is
required throughout the Act prior to any determination, is how an
Indian Tribe or NHO shares the information needed to identify a
cultural item.
In response to the extensive comments on the definition of
``associated funerary object,'' we appreciate and share the concern
regarding the inappropriate and inaccurate misreading of NAGPRA. We
clearly and affirmatively state that the Act and these regulations
apply to any museum or Federal agency that has possession or control of
Native American human remains or cultural items. Identification of
where or when the human remains or cultural items were removed may
impact which entity has possession or control, but where or when the
human remains or cultural items were removed does not impact the
identification of human remains or cultural items for purposes of these
definitions.
We have revised the definition as requested to remove the date and
avoid possible misunderstanding. The Act requires that for a funerary
object to be an associated funerary object, the related human remains
must be ``presently'' in the possession or control of a museum or
Federal agency, but the Act does not require the human remains to be in
the possession or control of the same museum or Federal agency as the
associated funerary object. The 1995 Final Rule clarified that when
another museum or Federal agency has possession or control of the
related human remains, the related funerary objects are still
``associated funerary objects'' (60 FR 62138). By using ``presently''
in the Act, Congress intended to distinguish associated funerary
objects from unassociated funerary objects based on the location of the
related human remains. Where human remains and funerary objects were
removed from a burial site and when the location of those human remains
is known, the funerary objects are associated funeary objects. Even if
the human remains were removed with the funerary objects and the human
remains are properly repatriated and reburied, the associated funerary
objects do not lose their status as associated funerary objects.
Associated funeary objects are still associated to the human remains as
long as the location of the human remains is known.
Regarding the other comments, we reiterate that when the location
of human remains related to a funerary object is unknown, the funerary
objects are unassociated funerary objects but are still funeray objects
subject to the Act and these regulations. Additional information about
unassociated funerary objects is necessary to satisfy the

[[Page 86473]]

definition and meet the criteria for disposition or repatriation of the
unassociated funerary objects. For example, an object that was
intentionally placed with or near human remains and is connected to a
death rite or ceremony of a Native American culture meets the
definition of a funerary object. If the location of the related human
remains is unknown, the funerary object meets the definition of
unassociated funerary object. If cultural affiliation of the
unassociated funerary object is reasonably identified by the
geographical location where the unassociated funerary object was
removed, the unassociated funerary object may satisfy the criteria for
repatriation, provided the museum or Federal agency cannot prove it has
a right of possession to the unassociated funerary object.
We understand the comment that in some Native American traditions a
burial site never ceases to exist, we have retained the option for an
unassociated funerary object to be identified when in a specific area,
such as a flood plain or a shore line, the burial site is no longer
extant. Lastly, we appreciate and will strive to no longer use acronyms
for associated funerary objects or unassociated funerary objects that
may be offensive. We encourage all parties to discuss appropriate
terminology during consultation to recognize and reflect the
significance of human remains and cultural items to lineal descendants,
Indian Tribes, and NHOs.
37. Comment: We received two comments on the definition of
``holding or collection,'' both supporting the definition as proposed.
DOI Response: These regulations retain this definition to assist
all parties with identifying the application of the Act and these
regulations.
38. Comment: We received 37 comments requesting changes to the
definition of ``human remains.'' One comment objected to considering
human remains incorporated into a cultural item as the cultural item
and not human remains. One comment requested adding that soil
associated with burials and likely containing human remains be
accounted for in this definition. Two comments requested we remove the
sentence on comingled material (such as soil or faunal remains) being
treated as human remains while one comment supported it.
One comment letter stated in five separate comments that animal
remains should be included in the definition of human remains or
cultural items and a Review Committee comment agreed. These comments
requested animal burials be included separately and distinctly from
cultural items because these animals are imbued with the same spirit as
human remains and, therefore, require the same treatment under the Act
and these regulations. An additional comment suggested the Department
look at incorporating protections for ceremonial animal interments.
Of the total number of comments, 13 comments requested we expand
the definition of human remains to include casts, 3-D scans, and all
other digital data. Some of these comments also suggested expanding the
definition to include any information or samples taken from an
individual, including pictures, biological samples, isotope readings,
soft tissue, and any other biological remnants. Some of these comments
requested we add that any data collected directly relating to a Native
American individual should also be considered human remains. A few of
these comments requested that we require museums and Federal agencies
to provide references to all casts of human remains, any replicas from
3-D scans, and all other digital data produced from human remains or
cultural items and require consultation on the proper treatment of
those references. The comments also requested we add that ``No such
casts, replicas, or digital data scanned from Native American human
remains, funerary objects, sacred objects or cultural patrimony shall
be offered for sale or exchange without the free, prior, and informed
consent of the culturally affiliated Indian Tribe or Native Hawaiian
organization. Failure to comply shall be deemed a violation of
NAGPRA.'' Separately, one comment suggested the definition of human
remains be broadened to include documents and records associated with
human remains or cultural items to ensure repatriation of those
documents and records.
In addition, 12 comments requested we delete from the definition
the sentence that excludes from the definition any human remains or
portions of human remains that are determined to have been freely given
or naturally shed.
DOI Response: We understand there is a wide variety of opinions on
how human remains that are incorporated into a cultural item might be
identified. The Department sought input on this issue in the 1993
Proposed Rule and retained the language in the 1995 Final Rule as it
was ``recommended by the Review Committee to preclude the destruction
of items that might be culturally affiliated with one Indian Tribe that
incorporated human remains culturally affiliated with another Indian
Tribe.'' The 1995 Final Rule also noted that ``[d]etermination of the
proper disposition of such human remains must necessarily be made on a
case-by-case basis'' (60 FR 62137). In the 2022 Proposed Rule, we
included these two ways human remains may be incorporated into an
object or item to ensure, as Congress intended, that human remains of
any ancestry be treated with respect, and any Native American human
remains must be made available for disposition or repatriation. We
decline to make the requested change.
Regarding an admixture of comingled materials, 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). Museums and Federal agencies
are required to identify these comingled materials in its itemized list
and during consultation should evaluate if the entire admixture can be
treated as human remains. If 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, which may include
additional handling, with consent of the lineal descendant, Indian
Tribe, or NHO, to separate the human remains from other materials. We
are aware that comingled materials are a significant issue for many
Indian Tribes, NHOs, museums, and Federal agencies. The intent of this
addition to the definition is to ensure these kinds of collections are
included on an itemized list and made available to lineal descendants,
Indian Tribes, and NHOs during consultation and for repatriation.
The term ``human remains'' appears in the definition section of the
Act even though it is an undefined term. We have defined ``human''
using the commonly understood meaning of the word, i.e., a member of
the species homo sapiens. For this reason, we cannot make the requested
change to include animal burials as a separate and distinct category of
human remains as that would be inconsistent with the Act. We note, too,
that purposefully buried remains that do not include human remains are
not included in the definition of human remains. Other kinds of burials
and remains that are not human remains should be carefully considered,
through consultation, as cultural items. For example, animal burials
that are not related to the burial of human remains and, therefore, are
not funerary objects, may be needed by traditional Native American
religious leaders for the practice of traditional religions and may be
sacred objects.

[[Page 86474]]

We cannot expand the definition of human remains to include casts,
3-D scans, or other digital data, documents, or records as that would
be inconsistent with the Act. We note that the right to request
documents and records, which could include casts, 3-D scans,
photographs, digital data, or other information, is already provided
for in Sec. Sec. 10.9(c)(4) and 10.10(c)(4). Under the Act and these
regulations, lineal descendants, Indian Tribes, and NHOs have a right
to request records, catalogues, relevant studies, or other pertinent
data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and
Federal agencies are required to share that information (25 U.S.C.
3005(d)). We advise lineal descendants, Indian Tribes, and NHOs to make
their requests as broad as possible to ensure all information about
human remains, including digital data, is provided. In addition, we
cannot make the requested addition to prohibit the sale or exchange of
casts, replicas, or digital data of human remains as that would be
inconsistent with the Act.
We have always interpreted biological samples (including DNA), soft
tissue, and any other biological remnants to be within the definition
of human remains and subject to the Act and these regulations. The
definition of human remains is purposefully broad to ensure that ANY
physical remains of the body of a Native American individual are
included (with the one exception discussed below). In the 1993 Proposed
Rule, the Department included an example clause in the definition of
human remains as ``including, but not limited to bones, teeth, hair,
ashes, or mummified or otherwise preserved soft tissues of a person of
Native American ancestry'' (58 FR 31126). In the 1995 Final Rule, the
Department considered comments requesting the definition of human
remains exclude isolated teeth, finger bones, cut finger nails,
coprolites, blood residues, and tissue samples taken by coroners. In
response, the Department stated:

The Act makes no distinction between fully-articulated [sic]
burials and isolated bones and teeth. Additional text has been added
excluding ``naturally shed'' human remains from consideration under
the Act. This exclusion does not include any human remains for which
there is evidence of purposeful disposal or deposition. The
exemplary clause has been deleted (60 FR 62137).

Identification of human remains for the purposes of the Act and
these regulations requires a case-by-case assessment, in consultation
with lineal descendants, Indian Tribes, and NHOs. Recent examples have
demonstrated that the example clause from the 1993 Proposed Rule is
beneficial in identifying human remains subject to the Act and these
regulations, especially when it comes to hair samples taken from living
individuals, coprolites, blood residues, tissue samples, and DNA
extractions. The definition of human remains is intentionally broad and
contains only one exception (discussed below). The definition does not
include a requirement for the human remains to be from an archeological
context, of a certain age, or from a deceased person. The definition
does not exclude human anatomical collections used by medical schools
for training or teaching collections. Again, the definition of human
remains is purposefully broad to ensure that ANY physical remains of
the body of a Native American individual are included (with the one
exception discussed below).
We appreciate the comments requesting removal of the sentence that
excludes human remains that were freely given or naturally shed. We
agree with the comments of the Review Committee that state:
``[a]llowing museums and Federal agencies to predetermine if such
remains were freely given or naturally shed and not report them in
their inventories deprives Indian [T]ribes and Native Hawaiian
organizations with necessary information'' (see NPS-2022-0004-0096).
However, we disagree that a museum or Federal agency should be required
to complete an inventory for human remains that were obtained with full
knowledge and consent of the individual or next of kin. In the 1995
Final Rule, one comment requested clarification if human remains
included blood sold or given to a blood bank by a Native American
individual (60 FR 62137). In the 2010 Final Rule, two comments
recommended excluding human anatomical collections used by medical
schools for training from the definition of human remains. In response,
the Department stated, ``[t]hough not excluded from the inventory
provisions, medical schools that receive Federal funds would not be
required to repatriate Native American human remains obtained with the
voluntary consent of an individual or group that had authority of
alienation'' (75 FR 12393).
We have revised the sentence in the definition to require a higher
standard of information for human remains that are excluded from the
Act and these regulations. We agree with the Review Committee that a
museum or Federal agency must be able to prove the original acquisition
of Native American human remains was obtained with the full knowledge
and consent of the individual, next of kin, or the official governing
body of the appropriate Indian Tribe or NHO (see ``right of
possession'' 25 U.S.C. 3001(13)). In the Act, Congress acknowledged
that a right of possession is qualified with respect to human remains
and associated funerary objects. Congress did not provide for a museum
or Federal agency to assert a right of possession to human remains and
associated funerary objects identified in an inventory. 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 follows the common law by
distinguishing between the quasi-property attributes of Native American
human remains and associated funerary objects and the property
attributes of Native American unassociated funerary objects, sacred
objects, or objects of cultural patrimony.
In line with applicable common law in the United States, Congress
stated that the original acquisition of Native American human remains
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. Therefore, these regulations cannot require a
museum or Federal agency to complete an inventory or repatriate Native
American human remains where the museum or Federal agency can show it
has a right of possession.
For example, when any individual, regardless of ancestry, dies,
local or State law dictates certain actions by law enforcement, medical
examiners, and other local or State officials. Local or State law
generally requires consent by the next of kin prior to any other action
by the local or State authorities. When the deceased individual is
Native American and when no next of kin is ascertainable, the local or
State authorities may be required to treat the individual as human
remains under the Act and these regulations, unless the local or State
authorities obtain the full knowledge and consent of the official
governing body of the appropriate Indian Tribe or NHO. Coroners,
medical examiners, and other local or State agencies should consider
their requirements under the Act and these

[[Page 86475]]

regulations for any Native American human remains.
The Department interprets ``full knowledge and consent''
considering the history of Indian country and recognizes that ``full
knowledge and consent'' does not include ``consent'' given under duress
or because 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.
39. Comment: We received 24 comments suggesting changes to the
definition of ``Indian Tribe.'' Several of the comments relied on the
decision which held, based on the definition of ``group'' in the 1992
regulations at 25 CFR part 83, an Indian group without Federal
recognition was an ``Indian Tribe'' for purposes of NAGPRA (Abenaki
Nation of Mississquoi v. Hughes, 805 F. Supp. 234 (D.Vt., 1992), aff'd
per curiam, 900 F.2d 729 (2nd Cir. 1993)). Some comments also disagreed
with the addition of a reference to the List Act in this definition,
arguing that the definition of Indian Tribe under NAGPRA is different
than the standard for inclusion on the list published under the List
Act. Many of those comments requested we reiterate the statutory
definition verbatim. A few comments adamantly opposed any changes to
the definition of Indian Tribe beyond federally recognized Indian
Tribes.
DOI Response: NAGPRA defines ``Indian [T]ribe'' as ``any [T]ribe,
band, nation, or other organized group or community of Indians,
including any Alaska Native village (as defined in, or established
pursuant to, the Alaska Native Claims Settlement Act [43 U.S.C. 1601 et
seq.]), which is recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians'' (25 U.S.C. 3001(7) (emphasis added)). This
definition was based on the definition in the Indian Self-Determination
and Education Assistance Act (ISDEAA), which defines ``Indian [T]ribe''
as ``any Indian [T]ribe, band, nation, or other organized group or
community, including any Alaska Native village or regional or village
corporation as defined in or established pursuant to the Alaska Native
Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.], which is
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians''
(25 U.S.C. 5304(e) (emphasis added)). Finally, the List Act requires
that the Secretary ``publish in the Federal Register a list of all
Indian [T]ribes which the Secretary recognizes to be eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians'' (25 U.S.C. 5131(a) (emphasis
added)).
The Supreme Court of the United States recently ruled that the
ISDEAA definition referred only to federally recognized Tribes and
Alaska Native Corporations (Yellen v. Confederated Tribes of the
Chehalis Reservation, 141 S. Ct. 2434 (2021)). The only difference
between the ISDEAA definition and the NAGPRA definition is Congress's
intentional deletion of Alaska Native Corporations (see Statement of
Representative Bill Richardson, 136 Cong. Rec. 36815). Therefore, under
the Supreme Court's reasoning on ISDEAA, the NAGPRA definition only
applies to federally recognized Indian Tribes. Because Congress also
used the same language ``eligible for the special programs and
services'' in both NAGPRA and the List Act, the list of federally
recognized Tribes is the list of Indian Tribes for the purposes of
NAGPRA.
The Abenaki decision is not persuasive. First, the decision not
only precedes the List Act, but also solely relies on a definition that
no longer appears in the 25 CFR part 83 regulations. Second, the
decision focuses on that definition while ignoring the rest of the
NAGPRA definition concerning recognition of eligibility for services.
Finally, it is a Tribal-specific analysis that has not been followed by
any other court. In contrast, the list of federally recognized Tribes
under the List Act is based on the current recognition regulations in
part 83, which are specifically designed ``for the Department to use to
determine whether a petitioner is an Indian [T]ribe eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians.'' 25 CFR 83.2. The plain language
congruence of the ISDEAA definition, the NAGPRA definition, and the
purpose and foundation of the list under the List Act, as confirmed by
the Yellen decision, are more persuasive than the Abenaki case, and
fully support the definition in these regulations. The definition in
these regulations has not been changed. The Department believes it is
important to codify this definition and clarify any continuing
misinterpretation or misunderstanding.
Throughout these final regulations, the term ``Indian Tribe'' 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 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.
40. Comment: We received three comments on the definition of
``inventory.'' Of that total, two comments suggested changes to the
definition while one comment supported it as proposed. The supportive
comment felt the revision was an excellent clarification and would
streamline the inventory and overcome a barrier to repatriation. One
comment adamantly opposed revision of the existing regulatory
definition, specifically the removal of an ``item-by-item description''
requirement. One comment asked if the definition meant that (1) an
inventory is not complete unless it is informed by consultation and (2)
an initial itemized list could not be submitted to National NAGPRA if
consultation had not occurred.
DOI Response: We decline to make changes to the definition. Our
intent is to clarify and simplify what an inventory must include both
in the definition and in the Sec. 10.10. We are aware that the
existing regulatory definition and related text have been a barrier to
expeditious repatriation. On the other hand, we know that a lack of
transparency and accuracy in inventories is also a barrier to
repatriation.
The Act defines an inventory as ``a simple itemized list that
summarizes the information called for by this section'' (25 U.S.C.
3003(e)). The information called for in an inventory is information to
identify (1) ``each Native American human remains or associated
funerary objects and the circumstances surrounding its acquisition''
(25 U.S.C. 3003(d)(2)(A)); and (2) ``the geographical and cultural
affiliation of such item[s]'' (25 U.S.C. 3003(a)). An inventory only
pertains to human remains and associated funerary objects (25 U.S.C.
3003(a)). The inventory is also defined by what is not an inventory;
namely, a summary, which is ``in lieu of an object-by-object
inventory'' (25 U.S.C. 3004(b)(1)(A)) and pertains to ``unassociated
funerary objects, sacred objects, or objects of cultural patrimony''
(25 U.S.C. 3004(a)).
The existing regulations provide a short definition for an
inventory: ``the item-by-item description of human remains and
associated funerary

[[Page 86476]]

objects,'' but also provide a more detailed list of what an inventory
must include in Sec. 10.9. As noted in the 1995 Final Rule, the
difference between a summary and an inventory ``reflects not only their
subject matter, but also their detail (brief overview vs. item-by-item
list), and place within the process. Summaries represent an initial
exchange of information prior to consultation while inventories are
documents completed in consultation with Indian [T]ribe officials and
representing a decision by the museum official or Federal agency
official about the cultural affiliation of human remains and associated
funerary objects'' (60 FR 62140).
We are keenly aware of the preference of many, if not most, Indian
Tribes and NHOs to have all human remains and associated funerary
objects identified in order to repatriate them together. In reviewing
the comments, the goal of both the supporting comment and the opposed
comment is the same: allow lineal descendants, Indian Tribes, and NHOs
to dictate the level of documentation or collections review required
for an inventory. We agree, and changes to Sec. 10.1(d) Duty of care
are specifically meant to achieve this goal. The final regulations
require a museum or Federal agency to obtain free, prior, and informed
consent prior to any exhibition of, access to, or research on human
remains or cultural items.
In response to the questions asked, an inventory is not complete
until a museum or Federal agency initiates consultation with lineal
descendants, Indian Tribes, and NHOs and consults with any consulting
party that wishes to do so. Only completed inventories that contain the
names of consulting parties or those invited to consult should be
submitted to the National NAGPRA Program. If there is no response to
the invitation to consult, the museum or Federal agency must still
complete or update the inventory by the required deadlines.
41. Comment: We received eight comments on the definition of
``lineal descendant.'' Of that total, four comments suggested changes
to the definition while four comments supported it as proposed. One
comment stated common-law system of descent is not clear and the
regulations should revert to the existing language. One comment
requested a grammatical change and one comment asked what ``known
individual'' means. One comment requested clarification if a museum or
Federal agency must confirm the identity of a lineal descendant with an
Indian Tribe with cultural affiliation or if the presence of a lineal
descendant meant consultation with an Indian Tribe was not required.
DOI Response: The existing regulations refer to the ``common law
system of descendance'' and ``known Native American individual'' in the
definition for lineal descendant. The regulatory text adds ``This
standard requires that the earlier person be identified as an
individual whose descendants can be traced.'' The common law system of
descent means the customary practice of tracing ancestry to a person's
parents, grandparents, great-grandparents, and so on. It does not
indicate any kind of precedent is set by previous repatriations. There
is a requirement for the deceased individual to be known, but that does
not mean a named individual is the only way a person could be known.
Rather, it indicates that the deceased individual must be identified in
some way to trace ancestry between that individual and the living
individual. We have removed the limiting gendered language from the
definition as requested by one comment.
Both the existing regulations and this final rule require museums
and Federal agencies to initiate consultation with both lineal
descendants and Indian Tribes or NHOs with potential cultural
affiliation and to provide the names of all identified consulting
parties. The existing regulations require a museum or Federal agency
convey information to both a lineal descendant, if known, and to the
Indian Tribe or NHO with cultural affiliation, when the inventory
results in a determination that the human remains are of an
identifiable individual. In the proposed regulations and this final
rule, this requirement is a part of the information shared and
requested during the consultation process. We cannot require a museum
or Federal agency to verify the identity of a lineal descendant with an
Indian Tribe or NHO. The statute gives lineal descendants priority over
Indian Tribes or NHOs. Establishing a system in which verification of
lineal descendants is through Indian [T]ribes or NHOs could be
detrimental to the rights of lineal descendants, particularly those
that are not members of an Indian [T]ribe or NHO. Given the diversity
of ways in which a lineal descendant may be traced, we cannot require
certain types of documentation or evidence needed to establish lineal
descent. Museums and Federal agencies must determine if a request from
a lineal descendant provides sufficient information and respond to the
request accordingly.
Throughout these final regulations, the term ``lineal descendant''
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 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.
42. Comment: We received one comment suggesting a review of the
involvement of non-profits in museum funding and a change to the
definition of ``museum'' that would replace ``institution of higher
learning'' with ``all educational institutions.''
DOI Response: The requested review is outside of the scope of this
regulatory action. We have not made the requested change because this
part of the definition comes directly from the Act, which is already
sufficiently inclusive of all educational institutions that have
possession or control of human remains or cultural items and receive
Federal funds.
43. Comment: We received four comments suggesting changes to the
definition of ``Native American.'' Two comments expressed concern over
the inclusion in this definition of Indian groups without Federal
recognition. One comment requested we require consultation with Indian
Tribes or NHOs prior to any determination that human remains or
cultural items are Native American. One comment expressed concern that,
as written, this definition might exclude cross-border indigenous
peoples or cultures who are indigenous to the United States but also to
Canada, Mexico, or Russia.
DOI Response: We do not intend to include Indian groups without
Federal recognition in the definition of Tribe (as noted elsewhere in
the definition of Indian Tribe). In determining whether human remains
or cultural items are Native American, we cannot require consultation
prior to compiling a summary of cultural items or an itemized list of
human remains and associated funerary objects under Subpart C, but we
can and do require consultation prior to any determination of cultural
affiliation or decision on a request for repatriation. When compiling a
summary of cultural items or an itemized list of human remains and
associated funerary objects, a museum or Federal agency should

[[Page 86477]]

include any potential Native American human remains or cultural items
to allow for further consultation.
The Act limits the definition of Native American to the United
States, and we cannot remove that geographical descriptor. We believe
the added definitions for ``people'' and ``culture'' includes those who
are indigenous to locations near present day geographical borders. Any
pre-contact Tribe, people, or culture would be included in this
definition. Native Hawaiians are included in this definition as a
``people,'' to clarify an ambiguity left by Congress.
44. Comment: We received 12 comments on the definition of ``Native
American traditional knowledge.'' Of that total, six comments suggested
changes to the definition while six comments supported it. Two comments
opposed the definition, and both requested it be revised or removed
because it was unclear and complex, and one comment felt it would lead
to poor decision-making or other pitfalls. One of these comments was
concerned that this definition, along with the required deference,
would give equal or greater weight to this type of information than to
scientific and historical information and, when identifying cultural
items, Native American traditional knowledge might be used as the only
type of information instead of scientific or historical evidence. One
comment was neutral and asked how the term changed the current cultural
affiliation process. Three comments supported the definition as
proposed but suggested changes to strengthen it. One comment requested
we add language to the variety of information listed while another
comment requested we include a reference to Sec. 10.3. One comment
provided an extensive discussion and specific changes to the definition
to include Indian Tribes, expert opinion, and confidentiality.
DOI Response: We disagree that the definition is unclear, vague, or
overly broad or that this definition is novel or unique to these
regulations. The concept of ``Native American traditional knowledge''
has been used broadly among Federal agencies in the context of land
management and the use of natural or cultural resources, although the
specific terms used might vary. More recently, the White House Council
on Environmental Quality and the Office of Science and Technology
Policy released government-wide guidance and an implementation
memorandum for Federal agencies on recognizing and including Indigenous
knowledge in Federal research, policy, and decision making (<a href="https://www.whitehouse.gov/ceq/news-updates/2022/12/01/white-house-releases-first-of-a-kind-indigenous-knowledge-guidance-for-federal-agencies/">https://www.whitehouse.gov/ceq/news-updates/2022/12/01/white-house-releases-first-of-a-kind-indigenous-knowledge-guidance-for-federal-agencies/</a>,
accessed 12/1/2023). Most certainly, this is not a new concept to
lineal descendants, Indian Tribes, or NHOs and any difficulty
understanding this definition could be resolved through adequate
consultation. We believe this term will lead to more informed decision-
making and help to avoid the lengthy and sometimes costly delays in
disposition or repatriation. Under the Act and these regulations, all
information available is equally relevant to determining cultural
affiliation, and our intent in defining this type of information is to
ensure that Native American traditional knowledge is considered
alongside scientific and historical information. In response to the
question asked, this is not different than decision-making for cultural
affiliation under the existing regulations or the Act itself. Although
it may not have been identified as such, Congress intended for Native
American traditional knowledge to be considered when determining
cultural affiliation or identifying cultural items. The definitions of
funerary objects, sacred objects, and objects of cultural patrimony all
rely on information that may only be available to or shared by lineal
descendants, Indian Tribes, or NHOs. Consultation, which is required
throughout the Act prior to any determination, is how an Indian Tribe
or NHO shares the information needed to identify a cultural item. In
cases where there is no other information, Native American traditional
knowledge alone may identify a cultural item.
In response to the other comments, we have added linguistics to the
variety of named information, but stress that this list is not
exhaustive. We have added a final sentence to reiterate the statement
in Sec. 10.3 that Native American traditional knowledge is expert
opinion. We have added Indian Tribes, the Native Hawaiian Community,
and confidentiality to the definition, although in slightly different
places than was suggested.
45. Comment: We received 11 comments suggesting changes to the
definition of ``Native Hawaiian organization.'' Most of the comments
requested revisions to paragraph (3)(i) identifying some NHOs. One
comment expressed concern that changes to this definition would result
in a broad range of NHOs who meet the criteria and impact the Native
Hawaiian objects that are subject to the regulations.
DOI Response: The definition reflects the language in the Act,
which is binding unless stricken, modified, or contravened by other
Federal law. The definition in the Act may be modified if it is no
longer relevant when certain referenced terms, conditions, or entities
cease to exist. The Act includes the Office of Hawaiian Affairs as a
``Native Hawaiian organization,'' and the definition in these
regulations remains unchanged. Other concerns about NHOs are addressed
by the definition as well as the prioritization of cultural affiliation
under Sec. 10.3. The omission of Hui Malama I Na Kupuna O
Hawai[revaps]i Nei from the definition of a ``Native Hawaiian
organization'' is due to the group's dissolution rather than any
judgment as to its or any successors' status as NHOs. The incorporation
of ``Native Hawaiian'' into the definition of a ``Native Hawaiian
organization,'' and the use of the term ``indigenous people'' rather
than ``aboriginal people,'' clarifies what constitutes an NHO and their
relevance to these regulations (2022 Proposed Rule, 87 FR 63213).
This definition and these regulations are consistent with the
government-to-sovereign relationship between the United States
government and the Native Hawaiian Community. If the Native Hawaiian
Community decides to change its relationship with the United States
government to that of a government-to-government relationship, the
Department may review and update the current policy and procedures.
Throughout these final regulations, the term ``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
cultural affiliation may submit a claim for disposition or a request
for repatriation. 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 should be
considered a single claim or request and not competing claims or
requests.
46. Comment: We received six comments suggesting changes to the
definition of ``object of cultural patrimony.'' One comment requested
we remove from the definition the provision that the object must have
been considered inalienable by the group at the time the object was
separated from the group as it seems unnecessary. One comment
questioned the use of ``Native American group'' in the definition. One
comment suggested changing ``according to'' to be ``as determined by''
to further strengthen the deference to lineal descendants, Indian
Tribes, and

[[Page 86478]]

NHOs on identification of objects of cultural patrimony. One comment
requested an expansion of this definition to include intellectual
property like songs, recordings, and photos as well as digital files.
Another comment asked if this definition included documents and photos
and, if not, then how the regulations support the return of such
objects. One comment objected to the definition as over-broad, a
reversal of Congressional intent, and contrary to explicit statements
in the Congressional record at the time of the Act's passage.
DOI Response: We do not have the discretion to revise the
definition as suggested by these first two comments as both are a part
of the definition in the Act. The term ``group'' or ``sub-group'' used
in this definition and elsewhere in these regulations should be
understood to have a standard, dictionary definition: ``a number of
individuals assembled together or having some unifying relations

[…truncated; see source link]

View on FederalRegister.gov →Plain-text source

Indexed from Federal Register on December 13, 2023.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.