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

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

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

RIN 1024-AE19

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

AGENCY:

Office of the Secretary, Interior.

ACTION:

Proposed rule.

SUMMARY:

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

DATES:

Comments on the proposed rule must be received by 11:59 p.m. EDT on January 17, 2023.

Federal Advisory Committee Act Meetings:

The Native American Graves Protection and Repatriation Review Committee (Review Committee) will meet virtually during the comment period. The National Park Service will announce the exact dates and times of the Review Committee meetings in the

Federal Register

, once scheduled. These meetings will be open to the public and there will be time for public comment.

Tribal Consultation Sessions:

The Department of the Interior will conduct consultation sessions with Indian Tribes virtually during the comment period. The Department of the Interior will announce the exact meeting dates and times of the consultation sessions, once scheduled, on

https://www.doi.gov/priorities/tribal-consultation/upcoming-tribal-consultations

and by letter to Tribal leaders.

Native Hawaiian Consultation Sessions:

The Department of the Interior will conduct consultation sessions with the Native Hawaiian Community virtually during the comment period. The Department of the Interior's Office of Native Hawaiian Relations will invite the Native Hawaiian Community to participate and provide the exact meeting dates and times of the consultation sessions, once scheduled.

Public Listening Sessions:

The Department of the Interior will host virtual listening sessions during the comment period. The National Park Service will announce the exact dates and times of the listening sessions, once scheduled, on

https://www.nps.gov/orgs/1335/events.htm.

These meetings will be open to the public.

Information Collection Requirements:

If you wish to comment on the information collection requirements in this proposed rule, please note that the Office of Management and Budget (OMB) is required to decide concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this proposed rule in the

Federal Register

. Therefore, comments should be submitted to OMB by December 19, 2022.

ADDRESSES:

You may submit written comments, identified by the Regulation Identifier Number (RIN) 1024-AE19, by any one of the following methods:

•

Federal eRulemaking Portal: https://www.regulations.gov.

Follow the instructions for submitting comments.

•

Mail to:

National NAGPRA Program, National Park Service, 1849 C Street NW, Mail Stop 7360, Washington DC 20240. Attn: Melanie O'Brien, Manager NAGPRA Rule Comments.

Instructions:

All submissions received must include the words “National Park Service” or “NPS” and the RIN (1024-AE19) for this rulemaking. Comments received may be posted without change to

https://www.regulations.gov,

including any personal information provided. Written comments will not be accepted by fax, email, or in any way other than those specified above. The NPS will not accept bulk comments in any format (hard copy or electronic) submitted on behalf of others.

Oral Comments:

Register for opportunities to make oral comments at:

https://www.nps.gov/orgs/1335/events.htm.

The consultation sessions listed above are for federally recognized Indian Tribes and for representatives of the Native Hawaiian Community. All oral comments by other members of the public must be made during specified sessions of the Review Committee meetings or public listening sessions. Oral comments will be recorded and submitted for the record and oral commenters should include a written copy of their statement prior to the public meeting. Time for oral comments may be limited.

Information Collection Requirements:

Written comments and suggestions on the information collection requirements should be submitted by the date specified above in

DATES

to

https://www.reginfo.gov/public/do/PRAMain.

Find this particular information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function. Please provide a copy of your comments to the NPS Information Collection Clearance Officer (ADIR-ICCO), 12201 Sunrise Valley Drive, Reston, VA 20191. Please include “1024-AE19” in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT:

Melanie O'Brien, National NAGPRA Program, National Park Service, (202) 354-2201,

melanie_o'brien@nps.gov.

Questions regarding the NPS's information collection request may be submitted to Phadrea Ponds, NPS Information Collection Clearance Officer,

phadrea_ponds@nps.gov.

Please include “1024-AE19” in the subject line of your email request.

SUPPLEMENTARY INFORMATION:

I. Background

II. Previous Federal Actions

III. Development of the Proposed Rule

A. Cultural Affiliation

B. Consultation

C. Discovery on Federal or Tribal Lands

D. Comprehensive Agreements

E. Control

F. Funerary Objects

G. Stay of Repatriation for Scientific Study

H. Summaries

I. Acknowledged and Adjudicated Aboriginal Land

J. Federal Lands and Boarding Schools

IV. Overview of Major Proposed Changes

V. Section-by-Section Summary of Proposed Changes

A. Authority

B. Section 10.1 Introduction

C. Section 10.2 Definitions for This Part

D. Section 10.3 Cultural and Geographical Affiliation

E. Section 10.4 General

F. Section 10.5 Discovery

G. Section 10.6 Excavation

H. Section 10.7 Disposition

I. Section 10.8 General

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

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

L. Section 10.11 Civil Penalties

M. Section 10.12 Review Committee

VI. Public Engagement and Request for Comments

VII. Compliance With Other Laws, Executive Orders and Department Policy

I. Background

The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA or Act) (25 U.S.C. 3001

et seq.

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

II. Previous Federal Actions

The Secretary of the Interior (Secretary) is responsible for implementation of the Act, including the issuance of regulations implementing and interpreting its provisions (25 U.S.C. 3011). The regulations are codified at 43 CFR part 10. The Department of the Interior (Department) published the initial rule to implement NAGPRA in 1995 at 60 FR 62134 (December 4, 1995). Subsequently, the Department published additional rules concerning:

• Civil penalties, at 68 FR 16354 (April 3, 2003);

• Future applicability, at 72 FR 13184 (March 21, 2007);

• Culturally unidentifiable human remains, at 75 FR 12378 (March 15, 2010);

• Technical amendments, at 78 FR 27078 (May 9, 2013);

• The definition of “Indian tribe,” at 79 FR 33482 (June 11, 2014); and

• Disposition of unclaimed cultural items, at 80 FR 68465 (November 5, 2015).

The Department also publishes annual adjustments to civil penalties for inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

III. Development of the Proposed Rule

As part of the Department's regulatory review in accordance with the Regulatory Flexibility Act and E.O. 13563, the Department regularly seeks public input on how we may best achieve regulatory ends. Over the past 12 years, parties affected by the definitions and procedures established in 43 CFR part 10 have commented, in various forums, that some of the regulatory provisions should be amended to improve implementation of the Act.

The following paragraphs detail the degree of consultation, coordination, and collaboration in this review, and the nature of public comments that the Department received from lineal descendants, Indian Tribes, NHOs, Federal agencies, museums, national museum and scientific organizations, Indian Tribal historic preservation organizations, the Review Committee, and interested members of the public.

From March to July of 2011, the Department consulted with Indian Tribes, NHOs, the Review Committee, Federal agencies, and the public on full revisions to the regulations implementing the Act. This effort resulted from the Department's publication of a final rule for the disposition of culturally unidentifiable human remains in March of 2010 (75 FR 12378) which solicited comments on the final rule. Many of those comments requested broader changes to the entire regulatory process. In April 2012 (77 FR 12378), the Department published a proposed rule to revise the regulations for accuracy and consistency based on some of those comments. Additional comments on that proposed rule requested changes that went beyond the scope of accuracy and consistency.

Since 2012, the Department has heard repeatedly from Indian Tribes, NHOs, museums, and Federal agencies on the implementation of the Act through the regulations. From 2012 to 2019 at 21 meetings of the Review Committee, public commenters have highlighted concerns with the regulations or challenges in implementing its procedures. The Review Committee has heard frequently that the regulations themselves pose barriers to successful and expedient repatriation.

As a result of previous consultation, public comment, and input from the Review Committee, the Department developed a draft text of regulatory revisions and on July 8, 2021, provided Indian Tribes and NHOs with an invitation to consult on the draft text. Along with the draft text, the Department provided a summary of the 2011 consultation with Indian Tribes and NHOs and how the draft text was responsive to that input. The Department hosted consultation sessions with Indian Tribes on August 9, 13, and 16, 2021, and with NHOs on August 17, 2021. In addition, the Department accepted written input until September 30, 2021. In total, we received 71 individual comment letters, which when combined with oral comments from consultation sessions, yielded over 700 specific comments on sections of the draft text.

The Department reviewed each comment provided during consultation and in writing and, wherever possible, adjusted the proposed regulations to address them. In a separate document, the Department has provided a summary of each comment and specific detailed responses. An overview of the major comments received is provided here, and specific adjustments made to the proposed regulations in response to comments are noted throughout Part V. Section-by-Section Summary of Proposed Changes.

A. Cultural Affiliation

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

In response, the Department proposes to define a new term, “affiliation,” in the proposed regulations and to combine the process for identifying

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

See Part V. Section-by-Section Summary of Proposed Changes, C. Section 10.2 Definitions for this part and D. Section 10.3 Cultural and Geographical affiliation.

B. Consultation

We received a total of 115 comments on the term “consultation” and the related regulatory provisions. Nearly all comments appreciated the definition, but some comments suggested aligning it with definitions found in 36 CFR part 800, Executive Order 13175, or the U.N. Declaration on the Rights of Indigenous Peoples. Some comments requested the definition make clear consultation is more than a procedural step and that consultation must be a meaningful, responsive, and accountable process. Several comments questioned the requirement for Indian Tribes and NHOs to make written requests to consult.

In response, the Department proposes to define “consultation” to seek consensus and to require a record of consultation that explains, if applicable, why consensus or agreement could not be achieved. The requirement for a written request to consult (which can include email) is necessary to establish a required timeline for responding to a request.

See Part V. Section-by-Section Summary of Proposed Changes, C. Section 10.2 Definitions for this part, Plan of Action in E. Section 10.4 General, and Require that Consultation Seek Consensus, in J. Section 10.9 Repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony and K. Section 10.10 Repatriation of human remains and associated funerary objects.

C. Discovery on Federal or Tribal Lands

We received more than 100 comments on the draft text for discoveries on Federal or Tribal lands. Most of the comments were directed at two issues—(1) notification or consultation with Indian Tribes or NHOs when a discovery occurs, and (2) the timelines for action by the appropriate official after a discovery. The comments recommended that the requirements of the existing regulations at § 10.4 be reinstated, specifically, immediate telephone notification and written confirmation by the person who makes the discovery. Many comments expressed concern over the draft text paragraph on evaluating the potential for an excavation.

In response, the Department proposes to require written documentation (which can include email but not text messages) of a discovery within 24 hours. The Department proposes additional timelines in this section to ensure adequate time for consultation, a plan of action, and securing, protecting, monitoring, or, if required, excavation of the discovery.

See Part V. Section-by-Section Summary of Proposed Changes, F. Section 10.5 Discovery.

D. Comprehensive Agreements

We received 66 comments on the draft text on comprehensive agreements. The majority of comments requested plans of action be reinstated, and many comments remarked on the utility of a plan of action in responding to discoveries or excavations and promoting consultation and coordination between land managers and Indian Tribes. A few comments requested changes to provide for immediate reburial of human remains or cultural items without any procedural requirements that might delay a reburial. A few comments requested tribal preference be incorporated into both the plan of action and comprehensive agreements.

In response, the Department proposes to move the requirement for a plan of action in the existing regulations at § 10.5 to the beginning of the subpart, and provide the requirements, in three separate steps, for a required plan of action before a planned activity, including an excavation, or after a discovery.

See Part V. Section-by-Section Summary of Proposed Changes, E. Section 10.4 General and references in F. Section 10.5 Discovery and G. Section 10.6 Excavation.

E. Control

We received a total of 68 comments on the term “control” as defined in the draft text. Many comments requested it be replaced with the statutory term “possession or control.” Other comments requested removing the use of “legal interest” from the definition, as the Act does not recognize a museum or Federal agency has a lawful interest in human remains or cultural items other than the “right of possession.” A few comments suggested museums and Federal agencies should be jointly and severally liable for compliance with NAGPRA's inventory, summary, and repatriation obligations. The same comments requested the removal of the new term “custody.”

In response, the Department proposes to define the term as “possession or control” as used in the Act. Further, the Department has added clarifications to address how the Act did not intend for this term to confer any legal rights upon a Federal agency or museum, but instead act as an element of applicability of the Act's repatriation provisions. The Department also proposes other regulatory revisions to require Federal agencies and museums to share information and increase efforts to complete inventories, summaries, and repatriation of human remains and cultural items under loan or repository agreements to other entities.

See Part V. Section-by-Section Summary of Proposed Changes, C. Section 10.2 Definitions for this part, and I. Section 10.8 General.

F. Funerary Object

We received 64 comments on the definitions of “funerary object,” “associated funerary object,” and “unassociated funerary object.” Many comments requested revisions to require consultation and include the authority of Indian Tribes and NHOs in the definition.

In response, the Department proposes to clarify long-standing confusion over the distinction between associated and unassociated funerary objects. For both associated and unassociated funerary objects, broad categorical identifications, including everything from a burial site or specific area, may meet these definitions depending on the information available and the results of consultation.

See Part V. Section-by-Section Summary of Proposed Changes, C. Section 10.2 Definitions for this part.

G. Stay of Repatriation for a Scientific Study

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

remains and associated funerary objects, and not to unassociated funerary objects, sacred objects, and objects of cultural patrimony. Other comments suggested the provisions of the Act were intended to be limited to studies ongoing when the Act was passed in 1990. Other comments suggested clarifying changes.

In response, the Department has clarified some of the provisions, but has retained the provisions applying to both human remains and cultural items as in the Act (25 U.S.C. 3005(b)). The recommendation that this provision apply retroactively runs counter to the prospective applicability of the Act and would conflict with the Act.

See Part V. Section-by-Section Summary of Proposed Changes, J. Section 10.9 Repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony, and K. Section 10.10 Repatriation of human remains and associated funerary objects.

H. Summaries

We received 54 comments on the provision in the draft text requiring that museums and Federal agencies prepare and submit a summary of unassociated funerary objects, sacred objects, and objects of cultural patrimony in its holding or collection. Comments pointed out that the summary is prepared before consultation and that Indian Tribes and NHOs are the best parties to determine whether any item in a holding or collection fits a NAGPRA category. Museums and Federal agencies could potentially use the draft text requirement to evade preparing a summary, claiming that they do not have such objects when they might.

In response, the Department proposes to retain language from the existing regulations in both the opening paragraph to the section and in the paragraph on completing a summary.

See Part V. Section-by-Section Summary of Proposed Changes, J. Section 10.9 Repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony.

I. Acknowledged and Adjudicated Aboriginal Land

We received 51 comments on the new terms to replace “aboriginal land” and “aboriginal occupation.” Several comments appreciated the new definition of “acknowledged aboriginal land” and some comments recommended that “acknowledged aboriginal land” be used not just in Subpart C of the regulations, but also in Subpart B, either combined with the definition of “adjudicated aboriginal land,” or instead of that definition. Some comments suggested further clarifying language, including addition of other sources or changes to the listed sources. For “acknowledged aboriginal land,” many comments suggested changing the first source, “treaty sent by the President to the United States Senate for ratification,” to an earlier stage in the treaty-making process, while another comment suggested that it be deleted, since only a ratified treaty is final and authoritative.

In response, the Department proposes to add definitions of “adjudicated aboriginal land” and “acknowledged aboriginal land” to distinguish the criteria for a determination of “aboriginal land” under Subpart B and the Act (25 U.S.C. 3002(a)), on the one hand, and under Subpart C on the other. The Department proposes to include intertribal treaties, diplomatic agreements, and bilateral accords between and among Indian Tribes. In the Act, Congress defined “the aboriginal land of some Indian tribe” as “Federal land that is recognized by a final judgement of the Indian Claims Commission or the United States Court of Claims,” and we have used that to define “adjudicated aboriginal land.” The Department can neither add to this definition nor ignore it, so the comments requesting a change to the application or definition of adjudicated aboriginal land cannot be adopted.

See Part V. Section-by-Section Summary of Proposed Changes, C. Section 10.2 Definitions for this part.

J. Federal Lands and Boarding Schools

We received 39 comments on the definition for “Federal lands.” Several comments requested the addition of specific language to provide for protection and disposition of Native American children buried at Indian boarding schools, especially in circumstances where the land is not or was not owned or controlled by the U.S. Government, but the Indian boarding school was operated by or for the U.S. Government. Some comments asserted that the intentional excavation provisions of NAGPRA (25 U.S.C. 3002(c)) could be used to authorize the disinterment of Native children from these cemeteries on Federal or Tribal lands, and suggested that, for this purpose, the Department expand the statutory definition of “Federal lands” in the regulations to include any former Indian boarding school where any amount of Federal funding, government certifications, or permissions were granted, regardless of the current ownership of land.

In response, as discussed in the Secretarial Memorandum establishing the Federal Indian Boarding School Initiative, the Department is committed to “address[ing] the intergenerational impact of Indian Boarding Schools to shed light on the traumas of the past.” The Memorandum identifies the NAGPRA process as a possible method for repatriation of some Native American children. While NAGPRA does not require a Federal agency to engage in an intentional excavation of possible burial sites, (

Geronimo

v.

Obama,

725 F. Supp. 2d 182, 187, n. 4 (D.D.C. 2010)), we agree with the comments that the intentional excavation provisions of NAGPRA apply to the human remains and cultural items disinterred from cemeteries on Federal or Tribal lands. Congress did not make any distinction in the Act between excavations from cemeteries and excavations from other burial sites on Federal or Tribal lands. In fact, the definition of “burial site” in the Act (25 U.S.C. 3001(1)) explicitly refers to both a “natural or prepared physical location.” Furthermore, we agree with some comments that the excavation provisions of NAGPRA do not conflict with the opinion of the United States Court of Appeals for the Third Circuit in

Thorpe

v.

Borough of Thorpe,

770 F.3d 255 (3d Cir. 2014), where the Court ruled that the repatriation provisions of NAGPRA (25 U.S.C. 3005) did not apply to a proposed disinterment and repatriation of human remains. The human remains at issue in that case, while Native American, were not located on Federal or Tribal lands, so the excavation provisions were not at issue, and were therefore not addressed by the Court of Appeals. Thus, on Federal or Tribal lands, any excavation must comply with the Act, including the requirements for consultation with (or consent from) the appropriate Indian Tribe or NHO (25 U.S.C. 3002(c)) and the order of priority for disposition of human remains (25 U.S.C. 3002(a)).

Unfortunately, the Department cannot, however, amend the regulatory definition of “Federal lands” as the comments requested. Congress specifically and explicitly defined Federal lands based on ownership or control, not on receipt of Federal funds (as it did in the definition of a “museum”). Thus, “[w]e have here an instance where the Congress, presumably after due consideration, has indicated by plain language a preference to pursue its stated goals . . . . In such case, neither [a] court nor the agency is

free to ignore the plain meaning of the statute and to substitute its policy judgment for that of Congress.”

Alabama Power Co.

v.

United States EPA,

40 F.3d 450, 456 (D.C. Cir. 1994). See also,

United Keetoowah Band of Cherokee Indians of Okla.

v.

United States HUD,

567 F.3d 1235, 1243 (10th Cir. 2009) (same);

Chevron U.S.A.

v.

Natural Resources Defense Council,

467 U.S. 837, 842-43 (1984) (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress”). The Department does, however, encourage the custodians of records from boarding schools, whether on Federal or Tribal lands or not, and the current owners of those boarding schools and cemeteries, to fully consult with Indian Tribes and NHOs on identification, disinterment, and repatriation of Native American children. The Department stands ready to assist Indian Tribes and NHOs in that process to the fullest extent of its authority.

Beginning in July 2021, the Department requested direct input from the Review Committee on the draft regulatory text prepared for consultation. The Review Committee held 14 meetings with over 50 hours of meeting time devoted to discussion of and development of written recommendations on the draft regulatory text. The Review Committee submitted a written recommendations to the Secretary of the Interior on March 14, 2022, and June 7, 2022. The Department reviewed these written recommendations, along with the minutes and transcripts from the related public meetings, in preparing the proposed regulations. The major comments received related to the Introductory section (see proposed 10.1) and the inventory update requirements in Subpart C—Repatriation of human remains or cultural items by museums or Federal agencies (see proposed 10.10(d) and (e)). Additional recommendations by individual members of the Review Committee were also submitted. The Department, wherever possible, adjusted the proposed regulations to address the Review Committee recommendations.

IV. Overview of Major Proposed Changes

The proposed revisions to these regulations would streamline requirements, clarify timelines and terms, reduce ambiguity, and improve efficiency in the systematic process for the disposition and repatriation of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony under the Act. The revisions being proposed today are intended to make the regulations more user-friendly and would:

• Reduce the number of sections and remove duplicative language. Existing requirements are condensed into a clear, easy to follow, step-by-step process.

• Correct inaccuracies and ambiguities in the existing regulations by using consistent language and clearly defined terms.

• Create a consistent writing style with clear, concise headings that describe each specific regulatory step.

• Clarify when actions are required by lineal descendants, Indian Tribes, Native Hawaiian organizations, museums, and Federal agencies by using specific timelines and deadlines.

• Provide clear instructions to Indian Tribes, NHOs, museums, and Federal agencies for establishing cultural and geographical affiliation and resolving competing claims or requests.

The proposed changes in Subpart B—Protection of Human Remains or Cultural Items on Federal or Tribal Lands would:

• Replace the requirement for Federal agencies to publish two notices in a newspaper of general circulation for human remains or cultural items removed from Federal lands with a requirement for Federal agencies to submit one notice to the Manager, National NAGPRA Program, for publication in the

Federal Register

.

• Require certain actions be taken by Indian Tribes, NHOs, and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) for discoveries or excavations on Tribal lands, including responding to a discovery, certifying that an activity may resume, authorizing an excavation, and documenting in writing the disposition of human remains or cultural items.

• Require Federal agencies and DHHL on Federal lands in the United States and Tribal lands in Hawai`i to develop a plan of action or comprehensive agreement, in consultation with lineal descendants, Indian Tribes, and NHOs, that includes instructions for protecting, stabilizing, or covering human remains or cultural items in situ, if appropriate.

• Clarify that the jurisdiction of a Federal agency to issue a permit under Section 4 of the Archaeological Resources Protection Act (ARPA) for an excavation is no broader than it is under ARPA.

The proposed changes in Subpart C—Museum or Federal Agency Holdings or Collections would:

• Remove the term “culturally unidentifiable” (

i.e.,

when cultural affiliation cannot be determined for human remains) and integrate the concept of repatriation through geographic origin into the overall affiliation and inventory process.

• Require repatriation of associated funerary objects together with human remains to an Indian Tribe or NHO with cultural or geographical affiliation.

• Require updated inventories for human remains and associated funerary objects previously included in an inventory but not published in a notice of inventory completion. For the updated inventory, the proposed regulations would require a museum or Federal agency to initiate consultation, consult with requesting parties, and determine if there is a known lineal descendant or a connection between the human remains and associated funerary objects and Indian Tribes or NHOs with cultural or geographical affiliation.

• Require museums and Federal agencies to submit a notice of inventory completion within 6 months of completing or updating an inventory of human remains and associated funerary objects with a known lineal descendant or a connection to an Indian Tribe or NHO with cultural or geographical affiliation.

• Require museums and Federal agencies to send repatriation statements to the National NAGPRA Program. In the existing regulations, museums and Federal agencies are not required to report on any actions that occur after the publication of a notice. The proposed regulations would require both Federal agencies and museums to provide the Manager, National NAGPRA Program, with a copy of the written statement completing the repatriation, as recommended by the Government Accountability Office in a 2010 report on the implementation of the Act.

• Require museums to submit a statement describing holdings or collections in its custody to the responsible Federal agency, if known, and to the Manager, National NAGPRA Program. If a museum cannot identify a person, institution, state or local agency, or Federal agency that likely has possession or control of the holding or collection, it must submit a statement to the Manager, National NAGPRA Program. In the existing regulations, museums have no requirement to report on Federal holdings or collections. The proposed changes would align with the Department's response to the Government Accountability Office's 2010 report on the implementation of the Act.

V. Section-by-Section Summary of Proposed Changes

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

Table 1—Summary of Proposed Changes

Existing 43

CFR

section

Proposed 43

CFR section

Summary of proposed changes

10.1

10.15

10.1

• Adds paragraphs on Accountability, Duty of care, Delivery of written documents, and Deadlines and timelines.

• Informs parties of the result in failing to claim or request human remains or cultural items prior to disposition or repatriation.

• Clarifies final agency action in a specific paragraph.

10.2

10.2

• Revises definitions for consistency and to reduce ambiguities.

• Adds new terms to clarify requirements.

• Removes obsolete terms.

10.14

10.3

• Implements Congressional intent by defining “affiliation” as a connection between human remains or cultural items and an Indian Tribe or NHO. Affiliation is established by identifying cultural or geographical affiliation.

• Adds new paragraphs to assist when there are multiple Indian Tribes or NHOs with affiliation.

10.2

10.3

10.4

10.5

10.4

• Provides a general overview to the responsibilities of Indian Tribes, NHOs, Federal agencies, and DHHL under the Act.

• Outlines the requirements in three steps for a plan of action, developed in consultation with Indian Tribes and NHOs.

• Consolidates compliance options for land management activities that might result in a discovery or excavation of human remains or cultural items.

10.4

10.5

• Reduces and streamlines requirements for discoveries.

• Provides a clear, documented process and timeline for resuming activities after a discovery.

10.3

10.5

10.6

• Removes duplicative language and simplifies the excavation requirements.

• Clarifies and limits when a permit under Section 4 of ARPA is required.

10.6

10.7

10.7

• Adds process for disposition to a lineal descendant and clarifies requirements for disposition on Tribal lands.

• Requires publication of notices in the

Federal Register

(rather than in newspapers) to improve the effectiveness of the notification and reduce burden on Indian Tribes and NHOs.

N/A

10.8

• Provides a general overview to the responsibilities of museums and Federal agencies for holdings and collections subject to the Act.

• Requires museums to submit statements on holdings or collections in their custody but not in their possession or control one year after the effective date of the final rule.

10.8

10.9

10.10

10.11

10.13

10.9

10.10

• Clarifies when and what actions are required for repatriation of human remains or cultural items in a simple step-by-step process.

• Updates the deadlines for completing summaries and inventories to the effective date of the final rule.

• Integrates the timelines into the step-by-step process for any new holdings or collections, newly recognized Indian Tribes, new museums, or amendments to previous decisions.

• Establishes timelines, deadlines, and instructions for responding to requests for human remains or cultural items and completing repatriations.

10.11

10.10

• Requires updated inventories two years after the effective date of the final rule and notices of inventory completion six months after updating or completing an inventory.

• Eliminates “culturally unidentifiable” when cultural affiliation cannot be determined.

• Requires repatriation of associated funerary objects with human remains that have a cultural or geographical affiliation.

10.12

10.11

• Removes the limited definition of a failure to comply.

• Replaces the dual hearing process with a single hearing process to contest the failure to comply or the penalty assessment.

10.16

10.17

10.12

• Consolidates and clarifies the responsibilities of and procedures for the Review Committee.

• Clarifies requirements and the process for informal dispute resolution through informal negotiations and request before the Review Committee.

A. Authority

NAGPRA, 25 U.S.C. 3001

et seq.,

is the primary authority for the issuance of regulations implementing and interpreting the Act's provisions. The authority section continues to cite 25 U.S.C. 9 which authorizes the Secretary to make such regulations as he or she may think fit for carrying into effect the various provisions of any act relating to Indian affairs. Because the Act is Indian law (

Yankton Sioux Tribe

v.

United States Army Corps of Engineers,

83 F. Supp 2d 1047, 1056 (D.S.D. 2000)), the Secretary may promulgate any regulations needed to implement it under the broad authority to supervise and manage Indian affairs given by Congress (

United States

v.

Eberhardt,

789 F.2d 1354, 1360 (9th Cir. 1986)). Although 43 CFR part 10 previously cited one provision of the Archaeological Resources Protection Act (ARPA, 16 U.S.C. 470dd(2)) as an authority, the Department has determined that reliance on ARPA as authority for these regulations is unnecessary.

B. Section 10.1 Introduction

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

consultation with Indian Tribes and NHOs, the Department proposes the purpose paragraph (see proposed § 10.1(a)) recognize and ensure deference to the rights of lineal descendants, Indian Tribes, and NHOs, as provided under the Act. The Department is specifically seeking input during public comment on the proposed purpose paragraph.

In the applicability paragraph (see proposed § 10.1(b)), the Department proposes a revision to clarify that these regulations pertain to Native American human remains or cultural items and require certain actions for their protection in the event of a discovery or excavation on Federal or Tribal lands after November 16, 1990, and for their repatriation if in the possession or control of a museum or Federal agency. The Act does not provide express authority for applying the discovery and excavation provisions to land that does not meet the definition of Federal or Tribal lands (25 U.S.C. 3002). However, depending on other relevant state or local laws, human remains or cultural items discovered or excavated from private or state lands may be subject to the repatriation provisions under Subpart C.

To further clarify the applicability of these regulations, the Department proposes to remove the existing paragraph § 10.1(b)(2) to correct the misconception that human remains or cultural items must, themselves, be indigenous to Alaska, Hawai`i, and the continental United States. Under the Act, “indigenous” relates to the definition of “Native American.” Human remains or cultural items are “Native American” based on a relationship to a tribe, people, or culture that is indigenous to the United States.

In response to consultation with Indian Tribes and NHOs, the Department proposes new regulatory provisions to address accountability by museums and Federal agencies and to require a duty of care for human remains and cultural items (see proposed § 10.1(c) and (d), respectively). The paragraph on duty of care was drawn from language in the existing regulations at § 10.7(2) and (3) which includes a requirement for Federal agencies to consider and respect the traditions of potential claimants (

i.e.,

Indian Tribes and NHOs) including, but not limited to, traditions regarding housing, maintenance, and preservation,

to the maximum extent feasible

(emphasis added). During consultation, many Indian Tribes and NHOs requested that “to the maximum extent feasible” be incorporated into the duty of care requirement. The Department proposes to use the phrase “to the maximum extent possible” in the duty of care requirement for both museums and Federal agencies. In addition, this phrase is used to describe implementation of a plan of action under Subpart B and in the definition of consultation and the related regulatory steps in both Subpart B and C. The Department intends this phrase, “to the maximum extent possible,” to mean museums and Federal agencies will make a reasonable effort to:

• seek consensus during consultation,

• provide appropriate treatment, care, or handling of human remains or cultural items, and

• incorporate identifications, recommendations, and Native American traditional knowledge (see definition below) in making determinations.

Proposed § 10.1(e) would: (1) consolidate and clarify those requirements governing the delivery of written documents that are currently dispersed throughout the existing regulations; and (2) provide for delivery of written documents by email with proof of receipt, and explicitly exclude delivery of written documents by text message or social media message.

Proposed § 10.1(f) would describe how deadlines and timelines for written documents are calculated based on business days,

i.e.,

Monday through Friday, and that documents are deeded timely based on the sent date.

The Department also proposes to relocate to this Introduction section existing regulatory provisions regarding (1) failure to make a claim or a request (see proposed § 10.1(g)), (2) judicial jurisdiction (see proposed § 10.1(h)), and (3) final agency action (see proposed § 10.1(i)). Regarding final agency action, “a final determination making the Act or this part inapplicable” is intended to be construed broadly across the regulatory process, including some circumstances where a Federal agency's failure to comply with a regulatory requirement or deadline may demonstrate its determination that either the Act or this part is inapplicable. Regarding judicial jurisdiction (25 U.S.C. 3009(3)) nothing in the Act or these regulations is intended to abrogate any concurrent Tribal jurisdiction that may exist with respect to alleged violations of similar Tribal laws on Tribal lands.

Table 2 shows how the Department proposes to reorganize the existing regulatory requirements.

Table 2—Cross-Reference of Existing Provisions to Proposed § 10.1

Existing 43 CFR section

Proposed 43 CFR section

10.1(a)

Purpose

10.1(a)

Purpose.

10.1(b)

Applicability

10.1(b)

Applicability.

New

10.1(c)

Accountability.

10.7(b)

(2) Care for and manage . . .

10.1(d)

Duty of care.

New

10.1(e)

Delivery of written documents.

10.1(f)

Deadlines and timelines.

10.15(a)

Failure to claim prior to repatriation

(1) Any person who fails to make a timely claim . . .

10.1(g)

Failure to make a claim or a request.

10.11(e)

10.17(a)

Disputes

Formal and informal resolutions

10.1(h)

Judicial jurisdiction.

10.15(c)

Exhaustion of remedies

10.1(i)

Final agency action.

10.1(c)

The information collection requirements . . .

10.1(j)

Information collection.

10.15(a)

Failure to claim prior to repatriation

Removed.

(2) If there is more than one

(1) claimant. . . .

10.15(d)

Savings provisions

Removed in part.

C. Section 10.2 Definitions for This Part

This section of the proposed rule defines terms used throughout this part. The Department proposes to reorganize defined terms in alphabetical order and remove the paragraph designations in the existing regulations at § 10.2 in conformance with the

Federal Register

Document Drafting Handbook.

The Department does not propose any substantive changes to the following 10 definitions: Act, discovery (replaces “inadvertent discovery”), excavation (replaces “intentional excavation”), Federal agency, Manager, National NAGPRA Program, museum, person, Review Committee, Secretary, and summary. The Department proposes to remove the following seven definitions that are no longer used in the proposed regulations: burial site, cultural affiliation (see affiliation), culturally unidentifiable, Federal agency official, Indian Tribe official, museum official, and Native Hawaiian (see Native Hawaiian organization).

Table 3 shows how the Department proposes to add, replace, or revise terms for consistency, to reduce ambiguities, and to clarify requirements throughout this part. Except as noted in the table, all terms are explained in the immediate section below.

Table 3—Changes to Existing Terms in Proposed § 10.2

Change

Defined term

New terms

acknowledged aboriginal land.

adjudicated aboriginal land.

affiliation.

ahupua`a.

appropriate official *.

ARPA *.

ARPA Indian lands *.

ARPA Public lands *.

consultation.

cultural item.

custody.

holding or collection.

Indian Tribe (previously reserved).

Native American traditional knowledge.

`ohana.

right of possession.

Tribal lands of an NHO.

United States.

Replace terms

“disposition” and “repatriation” replace “disposition”.

“possession or control” replaces “possession” and “control”.

Revise existing terms

Federal lands.

funerary object.

human remains.

inventory.

lineal descendant.

Native American.

Native Hawaiian organization.

object of cultural patrimony.

receives Federal funds.

sacred object.

traditional religious leader.

Tribal lands.

unclaimed cultural item.

* See proposed § 10.4 and § 10.6 and related preamble section.

1. “Acknowledged Aboriginal Land” and “Adjudicated Aboriginal Land”

The Department proposes to add two new terms to replace “aboriginal lands” and “aboriginal occupation,” which are not defined but are used in the existing regulations §§ 10.6 and 10.11. The new terms, “acknowledged aboriginal land” and “adjudicated aboriginal land,” would contain the same requirements for “aboriginal lands” and “aboriginal occupation,” found in the existing regulations at §§ 10.6(a)(2)(iii)(A) and 10.11(b)(2)(ii) and (c)(1)(ii), but the new definitions would distinguish and clarify how to apply the terms.

For “acknowledged aboriginal land,” the definition would elaborate on which treaties may be used to identify aboriginal land and would add other Federal, foreign, or intertribal government documents to the list of acceptable sources. Some examples of other Federal documents that provide information on aboriginal occupation by an Indian Tribe are “Report to the President by the Indian Peace Commission, 1868,” “Annual Reports of the Commissioner on Indian Affairs,” and “Alaska Natives and the Land” (by the Federal Field Committee for Development Planning in Alaska, October 1968). A source for identifying intertribal treaties, diplomatic agreements, and bilateral accords is David H. DeJong's book “American Indian Treaties,” which identifies 63 intertribal treaties, dating between 1666 and 1903. The Department has intentionally declined to require that intertribal treaties, diplomatic agreements, or bilateral accords be in writing in recognition of traditional forms of documentation, such as two-row wampum belts.

For “adjudicated aboriginal land,” the definition is drawn from the Act (25 U.S.C. 3002(a)(2)(C)) and clarified, based on Sections 15 and 22 of the Indian Claims Commission Act of 1946 (Pub. L. 79-726, 60 Stat. 1049), that a final judgment also includes a judgment concerning a settlement (compromise of claim) if that judgment or settlement either explicitly recognizes certain land

as the aboriginal land of an Indian Tribe or adopts findings of fact that do so.

2. “Affiliation”

The Department proposes a new term, “affiliation,” and to remove the existing definitions of “cultural affiliation” and “culturally unidentifiable.” This change reflects Congressional intent and focus on affiliation for the sole purpose of disposition or repatriation. In defining affiliation, Congress “intended to ensure that the claimant has a reasonable connection with the materials” (H. Rep. 101-877, at 14, and S. Rep. 101-473, at 6). Identifying “cultural affiliation” has been a significant barrier to disposition and repatriation under the Act, despite the clear intent of Congress that it be used for no other purpose than to ensure a reasonable connection between the human remains and cultural items and an Indian Tribe or NHO. Defining “affiliation” in these regulations without the qualifier of “cultural” better aligns with Congressional intent, and addresses concerns raised during consultation with Indian Tribes and NHOs about implementing the term “geographical affiliation” separately from cultural affiliation. In response to consultation with Indian Tribes and NHOs, we have combined cultural and geographical affiliation into this definition and the section on affiliation. The definition of “cultural affiliation” from the Act and the existing regulations, the lines of information, and the use of geographic relationships consistent with the existing regulation are all incorporated into the regulatory process by which “affiliation” is established in the proposed text at § 10.3.

3. “Ahupua`a”

The Department proposes to add a new term, “ahupua`a,” to use when determining the Native Hawaiian organization with the closest affiliation to human remains or cultural items. While the term serves a geographic purpose, identifying a traditional land division, an ahupua`a may also be associated with various traditional and customary practices in addition to habitation and provides important cultural connections between its earlier occupants or traditional users and Native Hawaiian organizations. Traditionally, the occupants of an ahupua`a are its primary stewards.

4. “Consultation”

The Department proposes to add a new term, “consultation,” using language provided by Congress (H. Rep. 101-877, at 16). In response to consultation with Indian Tribes and NHOs, the Department proposes to require that consultation seek consensus and incorporate identifications, recommendations, and Native American traditional knowledge, to the maximum extent possible.

5. “Cultural Item”

In response to consultation with Indian Tribes and NHOs, the Department proposes to add a new term, “cultural item,” and specifically exclude human remains from that definition. Although Congress included human remains in defining cultural items (25 U.S.C. 3001(3)), the Department proposes throughout these regulations to use the phrase “human remains or cultural items” rather than “cultural items.” This edit is responsive to requests from some Indian Tribes and NHOs who oppose any language that identifies people as items since this can be seen as objectifying and dehumanizing. This edit does not have any impact on the applicability or scope of these regulations.

In response to consultation with Indian Tribes and NHOs, the Department proposes to add to the definition of cultural items (and to subsequent specific definitions of cultural items) that identification of cultural items is according to a lineal descendant, Indian Tribe, or NHO based on customs, traditions, or Native American traditional knowledge. In the Act, the identification of cultural items is dependent upon consultation with lineal descendants, Indian Tribes, and NHOs. By adding this phrase to the definition of cultural items, the Department seeks to emphasize that consultation, which is required throughout the proposed regulation, is how a lineal descendant, Indian Tribe, or NHO shares the information needed to identify a cultural item.

The Act was enacted for the benefit of Indians, therefore the canons of construction for Indian law applies. The Act and these regulations “are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit” (

Yankton Sioux Tribe

v.

United States Army Corps of Engineers,

83 F. Supp 2d 1047, 1056 (D.S.D. 2000)). Consistent with this principle, the Department proposes to require deference to lineal descendants, Indian Tribes, and NHOs throughout the regulations, but specifically for identification of cultural items. Legislative intent on the definition of cultural item, generally, and to each definition specifically, is clear. “The Committee has made every effort to incorporate the comments and address the concerns of members of the scientific and museum communities with regard to the substantive definitions set forth in the Act, while at the same time recognizing that there are over 200 tribes and 200 Alaska Native villages and Native Hawaiian communities, each with distinct cultures and traditional and religious practices that are unique to each community. Accordingly, the definitions of sacred objects, funerary objects, and items of cultural patrimony will vary according to the tribe, village, or Native Hawaiian community.” (Senate Rpt. 101-473, page 4).

6. “Custody”

The Department proposes to add a new term, “custody,” that would indicate an obligation for human remains or cultural items that is less than “possession or control.” See discussion of “possession or control” below. This newly defined term does not have the same meaning as the general meaning given to the same word used throughout the existing regulations, especially at § 10.6.

7. “Disposition”

The Department proposes to replace the term “disposition” in the existing regulations at § 10.2(g)(5) with two separate terms: “disposition” and “repatriation.” In the proposed revision, “disposition” applies only to Subpart B. The proposed revision to “disposition” would denote that an Indian Tribe, NHO, Federal agency, or DHHL acknowledges and recognizes that a lineal descendant, Indian Tribe, or NHO has control or ownership of human remains or cultural items removed from Federal or Tribal lands. Although the phrase, control or ownership, is not defined in the Act or the proposed regulations, it is used to refer to the rights of lineal descendants, Indian Tribes, and NHOs in Native American human remains or cultural items as acknowledged and recognized by the Act. The phrase, control or ownership, is used to differentiate “disposition” and “repatriation” from terms used in other sections of the Act, such as the “right of possession,” which a museum or Federal agency may use to assert its lawful control or ownership, or “possession or control,” which is an element of applicability under the Act that itself does not determine control or ownership or a right of possession. In describing disposition, the Act uses the terms “ownership,” “control,” “right of control,” and “title to” (25 U.S.C. 3002). Of these terms, the phrase, control or ownership, is the most appropriate to apply to human remains as well as cultural items that may be subject to

disposition and describes the existing rights of lineal descendants, Indian Tribes, and NHOs more accurately. The phrase, control or ownership, is intended to indicate that, as in the Act, human remains or cultural items removed from Federal or Tribal lands belong, in the first instance, to lineal descendants, Indian Tribes, and NHOs and not to the Federal agency.

8. “Federal Land”

The Department proposes to revise the term “Federal land” to clarify the lands on which Federal programs or activities may be subject to the Act. As in the existing regulations, “Federal land” includes lands not just owned by the United States Government, but also lands under its control. (Note that the general term “control” as used in this discussion of Federal land is not the same as the defined term “possession or control” as used in the Act). Whether Federal control of the lands on which it conducts its programs or activities is sufficient to apply these regulations depends on the circumstances and scope of the Federal agency's authority, and on the nature of State and local jurisdiction. Because of the wide array of agency-specific authorities that can establish federally controlled lands, the Federal agency officials must make such determinations on a case-by-case basis and, in doing so, should consult with their legal counsel.

While Federal agency officials must ultimately make their own determinations as to the lands under the control of their agency, the drafters note that, in general, a Federal agency will only have sufficient legal interest to “control” lands it does not own when it has sufficient statutory jurisdiction with respect to those lands or other form of property interest in the land, such as a lease, easement, or other agreement with terms that have indicia of control.

See Yankton Sioux Tribe

v.

United States Army Corps of Eng'rs,

396 F. Supp 2d 1087 (D.S.D. 2005);

Crow Creek Sioux Tribe

v.

Brownlee,

331 F.3d 912 (D.C. Cir. 2003) (the Act still applied to lands transferred by the U.S. Army Corps of Engineers to South Dakota pursuant to the Water Resources Development Act due to a specific statutory provision applicable to those transferred lands). Where two or more Federal agencies share regulatory or management jurisdiction over federally owned or controlled lands, the Federal agency with primary management authority will generally have “control” for purposes of implementing these regulations.

On the other hand, the drafters note that Federal agency participation in a regulatory or supervisory capacity does not necessarily rise to the level of Federal “control.”

See, e.g., Castro Romero

v.

Becken,

256 F.3d 349 (5th Cir. 2001) (claims for violations of the Act with regard to human remains found on municipal land could not be upheld, even though a Federal agency was involved in the project in a supervisory role);

Western Mohegan Tribe and Nation of New York

v.

New York,

100 F. Supp. 2d 122, (N.D.N.Y. 2000),

aff'd in part, vacated in part on other grounds

246 F.3d 230 (2nd Cir. 2001) (“Plaintiffs' broad reading of the statute is inconsistent with the Act's plain meaning and its legislative history where the language ‘Federal lands' denotes a level of dominion commonly associated with ownership, not funding pursuant to statutory obligations or regulatory permits.”). For example, the fact that a Federal permit is required to undertake an activity on non-Federal land generally is not sufficient legal interest in and of itself to “control” the land within the meaning of the Act and this proposed rule.

Indian lands outside reservation boundaries that are held in trust by the United States Government or are held by an Indian landowner subject to restrictions on alienation imposed by the United States Government, such as allotments, are subject to Federal control and are treated as Federal lands under these regulations. The control of the United States Government over Indian land is the same whether it is in trust or restricted status and whether it is within the exterior boundaries of a reservation or not.

United States

v.

Ramsey,

271 U.S. 467, 471-72 (1926). See also

Cohen's Handbook of Federal Indian Law

§ 16.03[1], at 1071 (Nell Jessup Newton ed., 2012). Since Congress's control is virtually the same for trust allotments and off-reservation allotted lands with Federal restraints on encumbrance and alienation (restricted fee allotments), then Federal control of such lands as a matter of law meets the

Western Mohegan

standard noted above. The treatment of off-reservation Indian land as “Federal land” for purposes of the Act is consistent with the current practice of the Bureau of Indian Affairs.

9. “Funerary Object”

The Department proposes to revise the term “funerary object” and align it with the definitions in the Act for “associated funerary object” and “unassociated funerary object.” The portion of the statutory definition that is the same between the two terms has been used to define “funerary object.” As defined in the Act, the only difference between the definition for associated and unassociated funerary objects is the location of the related human remains. A single object may be a funerary object if the object is identified as having been placed with or near human remains. Therefore, determining if the funerary object is associated or unassociated does not require identifying the specific individual with which the object was placed, but rather, only requires identifying the location of the related human remains.

For example, an authorized excavation in 1940 removed a Native American object from what was thought to be a village site dating between 2000 BCE to 500 CE. The object dates to the late pre-contact period, likely between 1500-1580 CE, based on materials and form. Fragmentary human remains were identified during the excavation and noted in field notes, but no human remains were removed. Based on information available including the results of consultation, it is reasonable to believe the object was placed intentionally in this location because of the human remains, but it is also reasonable to believe the object was placed there many centuries after the human remains. Nevertheless, the object meets the definition of a funerary object since it was intentionally placed near human remains.

The funerary object does not, however, meet the definition of an associated funerary object. Human remains were identified, but no human remains were removed during the excavation. In the information available, there is no record of human remains being removed from the site at any other time. Through consultation with Indian Tribes, the funerary object was not identified as being the kind of object made exclusively for burial purposes or to contain human remains.

When a funerary object is not an associated funerary object, it may be an unassociated funerary object if it meets one or more of the criteria in the definition (see proposed § 10.2 Funerary object (2)). The funerary object is not related to specific individuals or families (see proposed § 10.2 Funerary object (2)(ii)). The funerary object was not removed from a specific burial site or an area known to be a burial site (see proposed § 10.2 Funerary object (2)(iii) and (iv)). However, the funerary object is related to known human remains (identified in the field notes), but those human remains were not removed from the site (see proposed § 10.2 Funerary object (2)(i)). Therefore, the funerary object meets the definition of an unassociated funerary object.

In response to consultation with Indian Tribes and NHOs, the Department proposes to add to the definition of funerary object (and to all specific definitions of cultural items) that identification of a funerary object is according to a lineal descendant, Indian Tribe, or NHO based on customs, traditions, or Native American traditional knowledge. In the Act, the identification of a funerary object is dependent upon consultation with lineal descendants, Indian Tribes, and NHOs. By adding this phrase to the definition of a funerary object, the Department seeks to emphasize that consultation, which is required throughout the proposed regulation, is how a lineal descendant, Indian Tribe, or NHO shares the information needed to identify a funerary object.

10. “Holding or Collection”

The Department proposes to add a new term “holding or collection” which is not defined in the Act. The proposed definition is drawn from dictionary definitions as well as the International Council of Museums' 2007 definition. Merriam-Webster Dictionary defines “collection” as “something collected; especially: an accumulation of objects gathered for study, comparison, or exhibition . . .” and defines “holding” as “any property that is owned or possessed . . .” The International Council of Museums' 2007 definition of a museum is an institution “which acquires, conserves, researches, communicates and exhibits . . . for the purposes of education, study, and enjoyment.” Additional purposes in this definition are taken from Unit 34 of “Museum Basics” (1993) by Timothy Ambrose, which lists different types of museum collections. In response to consultation with Indian Tribes and NHOs, we have refrained from using offensive purposes listed in some of these sources such as “enjoyment” or “personal benefit.” While the proposed definition includes a wide variety of purposes, a holding or collection under this proposed rule would not be limited to only these purposes.

11. “Human Remains”

The Department proposes to revise the term “human remains” to clarify what is and what is not considered human remains for purposes of disposition and repatriation. The proposed revision is based on the explanation provided in the preamble to the 1995 final rule (60 FR 62137, December 4, 1995). The explanation noted that the Act makes no distinction between fully articulated burials and isolated bones and teeth. The preamble then stated that the final rule added language excluding “naturally shed” human remains from consideration under the Act. The preamble clarified that this exclusion does not include human remains for which there is evidence of purposeful disposal or deposition. The preamble then addressed a question asked by a commenter who sought clarification on the status of human remains that were not freely given but had been incorporated into objects that are not cultural items as defined in the regulations. The preamble explained that the legislative history does not address this question and therefore the proper disposition of such human remains must be determined on a case-by-case basis.

Consistent with the advice in 1995, identification of human remains must be made on a case-by-case basis. The Act requires identification of all human remains in a holding or collection, including human remains reasonably believed to be comingled with other material (such as soil or faunal remains). During consultation with lineal descendants, Indian Tribes, and NHOs, museums and Federal agencies should evaluate if an entire admixture can be treated as human remains. If such a request is made during consultation, but it is not possible to treat the admixture as human remains, the record of consultation should include the effort to identify a mutually agreeable alternative. The proposed definition provides two ways human remains may be incorporated into an object or item. For example, depending on the results of consultation, a scalp shirt with human remains or a flute made with human remains that is not a funerary object, a sacred object, or an object of cultural patrimony would be considered human remains and subject to disposition or repatriation under the Act and the proposed regulations. Human remains that are incorporated into a funerary object, sacred object, or object of cultural patrimony would not be treated as human remains, but as a cultural item and subject to disposition or repatriation under the Act and the proposed regulations.

12. “Indian Tribe”

The Department proposes to add a definition for the term “Indian Tribe,” currently reserved in the existing regulations at § 10.2(b)(2). The list of federally recognized Indian Tribes is the list of Indian Tribes for the purposes of NAGPRA. Throughout the proposed rule, the term is used in the singular form, but it is expected that multiple Indian Tribes may meet the criteria under this part for disposition or repatriation of the same human remains or cultural items. Any Indian Tribe with cultural or geographical affiliation may submit a claim for disposition or a request for repatriation. Two or more Indian Tribes may agree to joint disposition or joint repatriation of human remains or cultural items. Claims or requests for joint disposition or joint repatriation should be considered a single claim or request and not competing claims or requests.

13. “Inventory”

The Department proposes to revise the term “inventory” to accurately reflect the content as required by the Act. In response to consultation with Indian Tribes and NHOs, the Department is aware that the existing regulatory definition has been a barrier to expeditious repatriation as it requires an “item-by-item description.” In the Act, an inventory is defined as a “simple itemized list.” The proposed revision to the definition uses the exact language from the Act and includes the information required to be included in an inventory.

14. “Lineal Descendant”

The Department proposes to revise the definition and remove the criteria for determining lineal descent in the existing regulations at §§ 10.2(b)(2) and 10.14(b). The term “lineal descendant” is not defined in the Act. The revised definition would allow for disposition or repatriation of human remains and associated funerary objects to a “lineal descendant” in the following cases:

• The identity of a particular deceased individual is known, and a specific living person is known to be the direct descendant of the deceased individual. For example, the human remains are of the great-great-grandfather of the living great-great-granddaughter.

• The identity of each deceased individual in a group of human remains is not known, but a specific living person is known to be the direct descendant of all the deceased individuals in the group. For example, all that is known is that the human remains of multiple individuals are the great-great-grandfather, great-grandfather, father, and maternal uncle of a specific living person, who is the direct descendant of them all under a traditional system of descent.

Throughout the proposed rule, the term is used in the singular form, but it is expected that multiple lineal descendants may meet the criteria under this part for disposition or repatriation of the same human remains, funerary

objects, or sacred objects. Any lineal descendant may submit a claim for disposition or a request for repatriation for human remains, funerary objects, or sacred objects. Two or more lineal descendants may agree to joint disposition or joint repatriation of human remains, funerary objects, or sacred objects. Claims or requests for joint disposition or joint repatriation should be considered a single claim or request and not competing claims or requests.

15. “Museum”

The Department proposes a slight addition to the term “museum” to clarify that, consistent with the Act, the term does not include the Smithsonian Institution. Also consistent with the Act, the term “museum” includes State or local government agencies, including subdivisions of State or local government agencies. Consequently, any of the following examples may be a museum under the Act and the proposed regulations if they meet all the criteria of the definition: a county coroner's office, a city medical examiner's office, a State police department or local post, a city library, or a city water authority.

16. “Native American”

The Department proposes to revise and clarify the existing definition of “Native American.” The Act applies to human remains or cultural items that meet the definition of “Native American.” “Native American” human remains or cultural items are not only items of a tribe, people, or culture that is indigenous to the United States, but are also items that are related to such tribe, people, or culture. Because Congress did not define “tribe,” “people,” or “culture,” the proposed definition of the term “Native American” incorporates statutory and dictionary definitions to better clarify these terms.

17. “Native American Traditional Knowledge”

The Department proposes to add a new term, “Native American traditional knowledge,” for use in the definition of “consultation” and “cultural item” as well as definitions of specific kinds of cultural items. In response to consultation with Indian Tribes and NHOs, this definition is a variation on what was suggested by a specific Indian Tribe, but this term is rooted in the larger concept of indigenous ways of knowing. The proposed definition attempts to cover the wide variety of terminology related to this concept while remaining consistent with the disposition and repatriation process under the Act. The Department recognizes that there is different terminology used by and among Native American people that incorporates this concept. Additionally, the concept of traditional knowledge is recognized by a number of Federal agencies in the context of land management activities and the use of natural or cultural resources. In these contexts, it is often referred to as traditional ecological knowledge or TEK. It may also be referred to as indigenous knowledge or traditional cultural knowledge. For the limited purposes of these regulations, the term “Native American traditional knowledge” is inclusive of all these terms and may provide information needed to identify affiliation (either cultural or geographical), funerary objects, lineal descendants, objects of cultural patrimony, and sacred objects. We welcome additional input on the specifics in this definition as well as its use in the regulatory text.

18. “Native Hawaiian Organization”

The Department proposes to revise the term “Native Hawaiian organization” (NHO) by incorporating the definition of “Native Hawaiian” from the Act. While the Act uses the phrase “aboriginal people” to define Native Hawaiian, the proposed regulations use the phrase “indigenous people” to better relate to the definition of Native American and distinguish from the use of aboriginal elsewhere in the Act and regulations referring to land. The proposed definition would include those entities that the Secretary, through the Office of Native Hawaiian Relations, has identified on the most current Native Hawaiian Organization Notification List. The Department also proposes to include in the definition of NHO the Hawaiian Homes Commission Act (HHCA) Beneficiary Associations and Homestead Associations. Although the Act names Hui Malama I Na Kupuna O Hawai`i Nei as a Native Hawaiian organization, that group ceased to exist in 2015, so the proposed definition does not include it.

Throughout the proposed rule, “Native Hawaiian organization” is used in the singular form, but it is expected that multiple NHOs may meet the criteria under this part for disposition or repatriation of the same human remains or cultural items. Any NHO with affiliation may submit a claim for disposition or a request for repatriation under the proposed rule. Two or more NHOs may agree to joint disposition or joint repatriation of human remains or cultural items. Claims or requests for joint disposition or joint repatriation would be considered a single request and not competing claims or requests.

19. “Object of Cultural Patrimony”

The Department proposes to revise the definition of “object of cultural patrimony” to clarify what a Native American group or culture is for purposes of the definition. In response to consultation with Indian Tribes and NHOs and a specific suggestion from an Indian Tribe, the Department also proposes to add a sentence to recognize that a caretaker may have been entrusted with responsibility for an object and may have even conferred that responsibility on another caretaker, but the object can still be an object of cultural patrimony. In response to consultation with Indian Tribes and NHOs, the Department proposes to add to the definition (and to all specific definitions of cultural items) that identification of an object of cultural patrimony is according to an Indian Tribe or NHO based on customs, traditions, or Native American traditional knowledge. In the Act, the identification of an object of cultural patrimony is dependent upon consultation with lineal descendants, Indian Tribes, and NHOs. By adding this phrase to the definition of an object of cultural patrimony, the Department seeks to emphasize that consultation, which is required throughout the proposed regulation, is how an Indian Tribe or NHO shares the information needed to identify an object of cultural patrimony.

20. “ `Ohana”

To emphasize the importance of the familial or kinship relationship in Hawai`i, the Department proposes to add a new term “ `ohana,” used in the definition of “Native Hawaiian organization” and in determining the NHO with the closest affiliation.

21. “Possession or Control”

In response to consultation with Indian Tribes and NHOs, the Department proposes to replace the two separate terms in the existing regulations “possession” and “control” into one term, as used in the Act, “possession or control.” Congress used these two words as a single term throughout the Act except for “right of possession” (discussed later). The phrase “possession or control” as used in the Act connotes a singular interest in human remains or cultural items and utilizes the two elements of the phrase only to address the physical location of the human remains or cultural items. In the Act, having possession or control means a museum or Federal agency may

make decisions about human remains or cultural items without having to request permission from some other entity or person (an interest). This interest is present regardless of the physical location of the human remains or cultural items. For a similar example, a person has the same interest in property that is in the person's home as in property that same person keeps in an offsite storage unit. The person can make decisions about the property in the storage unit without having to request permission from the storage facility. Regardless of the physical location of the property, the person's interest in the property is the same whether it is in their home or in the custody of the storage facility.

The Department also proposes to define a separate term, “custody,” that would indicate an obligation that is less than “possession or control.” Whether a Federal agency or museum has a sufficient interest in human remains or cultural items to establish possession or control is a legal determination that must be made on a case-by-case basis. However, when a museum with custody of human remains or cultural items cannot identify any person, institution, State or local government agency, or Federal agency with possession or control, the museum should presume it has possession or control for purposes of repatriation under the Act. When a Federal agency cannot determine if human remains or cultural items came into its possession or control before or after November 16, 1990, or cannot identify the type of land the human remains or cultural items were removed from, the Federal agency should presume it has possession or control for purposes of repatriation under the Act. This determination alone does not create any legal rights or indicate that a museum or Federal agency has a “right of possession” to human remains or cultural items; it is merely a jurisdictional requirement for application of the Act to human remains or cultural items subject to repatriation by the appropriate museum or Federal agency.

The Department received several comments through consultation with Indian Tribes and NHOs requesting that it expand the scope of the term “possession or control” to include both those entities that have possession or control as defined in the existing regulations and those entities that merely have custody as defined in this proposed rule. In some cases, this request would make multiple entities concurrently responsible for fulfilling the Act's inventory, summary, and repatriation processes. The Department has declined to make this change as such an interpretation is inconsistent with the framework and legislative history of the Act. Congress provided no indication in the Act or its legislative history that such an expansive interpretation was its intent, and various features of the Act, including civil penalties, right of possession, and museum obligations, presume that a single museum or Federal agency would be responsible for compliance with the Act. However, the Department acknowledges the underlying intent of this request to ensure repatriation of all holdings or collections subject to the Act and has proposed other revisions that seek to address this issue by directing museums and Federal agencies to share greater information and increase efforts to complete inventories, summaries, and repatriation of human remains and cultural items in the custody of other entities.

22. “Receives Federal Funds”

The Department proposes to revise the term “receives Federal funds” to clarify that any recipient of Federal financial assistance would be deemed to receive Federal funds under this part. The definition is drawn from the interpretation of comparable terms from the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, as amended, implementing regulations, and OMB's Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR part 200). The “Receives Federal funds” requirement may be satisfied by direct or indirect receipt of funds from the Federal government. Satisfaction of the requirement through indirect funding is permissible and consistent with the Supreme Court's decision in

Grove City College

v.

Bell,

465 U.S. 555 (1982).

For example, an educational institution that accepts no direct Federal financial assistance is deemed to receive Federal financial assistance when it enrolls students who receive Federal grants that must be used for educational purposes (34 CFR part 106). A Tribal museum receives Federal funds for purposes of repatriation if the Indian Tribe of which the museum is a part receives Federal financial assistance. A county library receives Federal funds for purposes of repatriation if its State government or other agency provides a subaward to the library as part of a Federal grant or award. The term also underscores that the U.S. Government's payments that are compensatory, such as payments in lieu of taxes paid under the Payments in Lieu of Taxes Act, as amended (31 U.S.C. 6901

et seq.

) are not considered Federal financial assistance (and

see McMullen

v.

Wakulla County Board of County Commissioners,

650 Fed. Appx. 703 (11th Cir. 2016)).

23. “Repatriation”

The Department proposes to replace the term “disposition” in the existing regulations at § 10.2(g)(5) with two separate terms: “disposition” and “repatriation” used consistently throughout the regulations. In the proposed revision, “repatriation” applies only to Subpart C and has been incorporated into the title of that subpart. The proposed revision would denote that a museum or Federal agency acknowledges and recognizes that a lineal descendant, Indian Tribe, or NHO has control or ownership of human remains or cultural items in a holding or collection. Although the phrase, control or ownership, is not defined in the Act or the regulations, it is used to refer to the rights of lineal descendants, Indian Tribes, and NHOs in Native American human remains or cultural items acknowledged and recognized by the Act. The phrase, control or ownership, is used to differentiate “disposition” and “repatriation” from terms used in other sections of the Act, such as the “right of possession,” which a museum or Federal agency may use to assert its lawful control or ownership, or “possession or control,” which is an element of applicability under the Act that itself does not determine control or ownership or a right of possession. In describing repatriation, the Act uses the terms “return,” “owned,” and “owned or controlled” (25 U.S.C. 3005). Of these terms, the phrase, control or ownership, is the most appropriate to apply to human remains as well as cultural items that may be subject to repatriation and describes the existing rights of lineal descendants, Indian Tribes, and NHOs more accurately. The phrase, control or ownership, is intended to indicate that, as in the Act, human remains and cultural items in holdings or collections belong, in the first instance, to lineal descendants, Indian Tribes, and NHOs and not to the museum or Federal agency unless the museum or Federal agency is able to prove a “right of possession.” By using “right of possession” as a standard of repatriation, the Act establishes that museums and Federal agencies do not have a rightful legal interest in human remains or cultural items unless the museum or Federal agency can prove an authoritative transfer of that “right of possession.”

24. “Right of Possession”

The Department proposes a new defined term “right of possession” by

moving the text from the existing regulations at § 10.10(a)(2). The Act recognizes a “right of possession” to cultural items; however, Congress acknowledged that this right is qualified with respect to human remains and associated funerary objects. The Act utilizes the concept of right of possession first as a defense against criminal sanctions for the sale, purchase, use, or transport for profit of human remains (18 U.S.C. 1170); and again, where museums and Federal agencies are permitted to assert a right of possession to unassociated funerary objects, sacred objects, and objects of cultural patrimony with evidence (25 U.S.C. 3005).

Congress did not provide a process for a museum or Federal agency to assert a right of possession to human remains and associated funerary objects. This approach is consistent with Congress' intent to distinguish human remains and associated funerary objects from cultural items as quasi-property. Applicable common law in the United States generally accepts that human remains and associated burial items cannot be “owned” in the same manner as conventional property. The Act (25 U.S.C. 3001 (13)) follows the common law by distinguishing between the property attributes of Native American unassociated funerary objects, sacred objects, or objects of cultural patrimony, and the quasi-property attributes of Native American human remains and associated funerary objects.

Congress acknowledged that the right of possession to unassociated funerary objects, sacred objects, or object of cultural patrimony, as defined in the Act, may be subject to a Fifth Amendment takings analysis, and that these objects may potentially be considered property. A right of possession for prehistoric cultural items fitting these categories might be shown through a written authorization from a competent authority to excavate, remove, and curate such items from a particular area or site. Although Congress also determined that the original acquisition of Native American human remains and associated funerary objects which were exhumed, removed, or otherwise obtained with full knowledge and consent of the next of kin or the official governing body of the appropriate Indian Tribe or NHO is deemed to give right of possession to those human remains and associated funerary objects, Congress chose not to make that right of possession to human remains and associated funerary objects subject to a Fifth amendment takings analysis. Congress was clear that it did not intend to categorize human remains and associated funerary objects as property under the Act, as had been its approach for unassociated funerary objects, sacred objects, or object of cultural patrimony. Thus, a Fifth Amendment taking does not result from the repatriation of human remains and associated funerary objects.

In the proposed revision, the Department interprets “voluntary consent” and “full knowledge and consent” considering the history of Indian country and recognizes that “voluntary consent” and “full knowledge and consent” does not include “consent” given under duress or as a result of bribery, blackmail, fraud, misrepresentation, or duplicity on the part of the recipient. As such, consent in this definition must be shown to have been fully free, prior, and informed consent.

25. “Sacred Object”

In response to consultation with Indian Tribes and NHOs, the Department proposes to revise that a sacred object is, in the words of the Act, “needed” for a traditional Native American religious practice. Such practice could include the need to ritually inter the object. The Department proposes to add to the definition of sacred object (and to all specific definitions of cultural items) that identification of a sacred object is according to a lineal descendant, Indian Tribe, or NHO based on customs, traditions, or Native American traditional knowledge. In the Act, the identification of a sacred object is dependent upon consultation with lineal descendants, Indian Tribes, and NHOs. By adding this phrase to the definition of a sacred object, the Department seeks to emphasize that consultation, which is required throughout the proposed regulation, is how a lineal descendant, Indian Tribe, or NHO shares the information needed to identify a sacred object.

26. “Traditional Religious Leader”

The Department proposes to revise the term “traditional religious leader” in response to consultation with Indian Tribes and NHOs. The term is not defined in the Act and the proposed revisions are intended to clarify and simplify the definition. The proposed revisions intend to place the authority for identifying a traditional religious leader in the hands of an Indian Tribe or NHO. There is no requirement for an Indian Tribe or NHO to disclose information about the cultural, ceremonial, or religious practices or cultural duties or leadership role used to identify a traditional religious leader.

27. “Tribal Lands”

The Department proposes to revise the term “Tribal lands” by removing the provision in the existing regulations related to a taking of property without compensation within the meaning of the Fifth Amendment of the United States Constitution (25 U.S.C. 3001(13)). Comments to the 1995 final rule sought clarification regarding the application of NAGPRA to privately owned lands within the exterior boundaries of an Indian reservation. To address any potential conflict, the final rule codified language stating that the regulations will not apply to Tribal lands to the extent that any particular action authorized or required will result in such a taking of property. A review of the legislative history for the Act shows this concept does not apply to the statute as enacted and therefore is removed from the definition of Tribal lands.

28. “Tribal Lands of an NHO”

The Department proposes to add a new term “Tribal lands of an NHO” to more accurately describe a subset of Tribal lands in Hawai'i so it can be applied in the regulatory process in Subpart B. In the Act, priority for disposition of human remains or cultural items from Tribal lands is in the Indian Tribe or NHO on whose Tribal lands the human remains or cultural items were removed. While the Tribal lands of an Indian Tribe is clearly identified by the definition of Tribal lands, the application of this priority on Tribal lands in Hawai'i is not clear from the definition of Tribal lands alone. This definition provides for an NHO to take on responsibility for the provisions of the Act from the State of Hawai'i DHHL. When an NHO has a lease or license from DHHL pursuant to the Hawaiian Homes Commission Act (HHCA), that NHO can elect to take on any of the responsibilities under Subpart B of the proposed regulations on its Tribal lands (see proposed §§ 10.5(c), 10.6(a), and 10.7(c)).

29. “Unclaimed Cultural Items”

The Department proposes to revise the term “unclaimed cultural items” for clarity. The proposed revision retains the same central requirement of the existing definition but removes the more regulatory process part of the existing regulation to the regulatory text (see proposed § 10.7(e)).

30. “United States”

The Department proposes to add a new term “United States” to provide a geographical descriptor throughout this part.

D. Section 10.3 Cultural and Geographical Affiliation

This section of the proposed rule would improve the organizational structure of the existing regulations and better align the requirements with Congressional intent. The Department proposes to relocate existing regulatory provisions at § 10.14 to Subpart A-General.

The proposed revisions would remove the criteria for determining lineal descent in the existing regulations at § 10.14(b), as it is repetitive of the definition for lineal descendant and not necessary. In conjunction with the defined term “affiliation,” the proposed revisions reflect the intent of Congress that for purposes of disposition or repatriation, all that is required is a reasonable connection between human remains or cultural items and an Indian Tribe or NHO (H. Rep. 101-877, at 14, and S. Rep. 101-473, at 6). The proposed revisions identify two kinds of affiliation for purposes of disposition or repatriation: cultural or geographical.

1. Cultural Affiliation

For cultural affiliation, the proposed revisions clarify the existing requirements by moving “cultural affiliation” to this section to include not only what it is, but also how it is established and what it does not require. The proposed revisions simplify the information and criteria needed to identify cultural affiliation by removing extraneous or duplicative language that has often been a barrier to repatriation. The proposed revisions also clearly explain that more than one Indian Tribe or NHO may have a cultural affiliation to human remains or cultural items.

For example, assume that the only information available for individual human remains shows that the human remains were removed from a particular site and that the human remains have a date range spanning 1,000 years. Indian Tribe A has a relationship of shared group identity to an earlier group who occupied the site at some point during that 1,000-year span. Similarly, Indian Tribe B has a shared group identity with a different earlier group that also occupied the site at different point during that 1,000-year span. Even though Indian Tribe A and Indian Tribe B do not themselves have a relationship of shared group identity, both Indian Tribe A and Indian Tribe B have a cultural affiliation with the human remains from that site.

In response to consultation with Indian Tribes and NHOs, the Department emphasizes that “a preponderance of the evidence” is a similar standard to a “reasonableness” requirement, both of which are common legal concepts. In both standards, a “more likely than not” assessment is required, such that the reasonableness requirement for tracing cultural affiliation is satisfied by a preponderance of the evidence establishing cultural affiliation. Congressional report language states cultural affiliation “shall be established by a simple preponderance of the evidence,” and that phrase is used in the proposed revisions.

2. Geographical Affiliation

For geographical affiliation, the proposed revisions draw on language in the Act requiring the identification of “the geographical and cultural affiliation” (25 U.S.C. 3003(a)) and include the information and criteria needed to establish geographical affiliation. The proposed revisions clarify, as under the existing regulations at § 10.11, “geographical affiliation” is identified by tracing a relationship between an Indian Tribe or NHO and a geographic area connected to the human remains or cultural items. While cultural affiliation requires a simple preponderance of the evidence given the information available, geographical affiliation only requires that the information be available. The proposed revisions also clearly explain that more than one Indian Tribe or NHO may have a geographical affiliation to human remains or cultural items.

For example, assume that the geographic area connected to human remains and associated funerary objects is the Tribal lands of Indian Tribe L, the adjudicated aboriginal land of Indian Tribe N, and the acknowledged aboriginal land of Indian Tribes M, N, O, and P. All the Indian Tribes (L, M, N, O, and P) have a geographical affiliation with the human remains. Any information beyond the geographic area, for example when the human remains or cultural items were removed or types of associated funerary objects, may provide information sufficient to identify a more specific cultural affiliation to one or more of the Indian Tribes but must not be used to limit the geographical affiliation to all the Indian Tribes.

The proposed revision states (in response to consultation with Indian Tribes and NHOs) that the information used to identify geographical affiliation may provide information sufficient to also establish cultural affiliation. Because geographical information is one line of information that may be used for cultural affiliation, that information alone may be sufficient to establish cultural affiliation as well as geographical affiliation.

3. Multiple Affiliations and Closest Affiliations

The proposed revisions provide clear instructions to Indian Tribes, NHOs, museums, and Federal agencies for making and considering single claims or requests and for resolving competing claims or requests by identifying the Indian Tribe or NHO with the closest affiliation (see proposed § 10.3(c) and (d)). The proposed revisions clearly explain that two or more Indian Tribes or Native Hawaiian organization may submit a claim for disposition or a request for repatriation and may claim joint disposition or request joint repatriation of human remains or cultural items. Joint claims or requests are considered a single claim or request and not competing claims or requests.

In rare cases when there are competing claims or requests, museums and Federal agencies must identify the “closest cultural affiliation” (25 U.S.C. 3002(a)(2)(B)) and the “most appropriate claimant” (25 U.S.C. 3005 (e)). The Act provides no process for making these identifications, but in the inventory and notification provisions of the Act (25 U.S.C. 3003(d)(2)(B) and (C)), there is a distinction made between two types of cultural affiliation: clearly identifiable as to tribal origin and not clearly identifiable as being culturally affiliated but determined by a reasonable belief. The Department proposes to use this language to inform how a museum or Federal agency might resolve competing claims for disposition or requests for repatriation. The standard for establishing cultural affiliation in the first instance is always a preponderance of the evidence, but when multiple Indian Tribes or NHOs meet that standard and have submitted competing claims or requests, these paragraphs provide a priority order to differentiate between culturally affiliated Indian Tribes. In resolving competing claims or requests, a museum or Federal agency may identify one or more Indian Tribes or NHOs with the closest affiliation.

Table 4 shows how the Department proposes to reorganize the existing regulatory requirements regarding cultural or geographical affiliation.

Table 4—Cross-Reference of Existing Provisions to Proposed § 10.3

Existing 43 CFR section

Proposed 43 CFR section

10.14(c)

Criteria for determining cultural affiliation

Cultural affiliation. (1) Information. (2) Criteria. (3) Multiple cultural affiliations.

10.14(f)

Standard of proof

10.3(a)

10.14(d)

A finding of cultural affiliation . . .

10.14(e)

Evidence

10.11(c)

Disposition of culturally unidentifiable human remains and associated funerary objects

10.3(b)

Geographical affiliation. (1) Information. (2) Criteria. (3) Multiple geographical affiliations.

New

10.3(c)

Multiple affiliations.

New

10.3(d)

Closest affiliation.

10.14(a)

General

Removed.

10.14(b)

Criteria for determining lineal descent

10.2

Lineal descendant means.

E. Section 10.4 General

This section of the proposed rule would provide a general overview to Subpart B and clarify the responsibilities of Indian Tribes, NHOs, Federal agencies, and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) for human remains or cultural items on Federal or Tribal lands. This section would consolidate general information in the existing regulations at §§ 10.3, 10.4, and 10.5. The Department proposes to revise the title of Subpart B (in response to consultation with Indian Tribes and NHOs) to better reflect the intent of Congress for this section of the Act (25 U.S.C. 3002).

1. Appropriate Official

The Department proposes to employ a new term, “appropriate official,” to denote the person or persons responsible for completing the regulatory requirements related to a discovery, excavation, and disposition of human remains or cultural items on Federal or Tribal lands. The revision would improve consistency with the Act by requiring certain actions be taken by the appropriate official for an Indian Tribe, NHO, Federal agency, and DHHL concerning discoveries, excavations, and disposition on Federal or Tribal lands.

2. Plan of Action

On all Federal lands in the United States or on some Tribal lands in Hawai`i, the Department proposes (in response to consultation with Indian Tribes and NHOs) to move the existing regulatory requirement for a plan of action to the beginning of the subpart. In the existing regulations, § 10.5(e) requires Federal agency officials to prepare, approve, and sign a written plan of action after consultation and before a planned activity that may result in the excavation of human remains or cultural items. The proposed revisions would require a plan of action before for any planned activity that may result in the discovery or excavation of human remains or cultural items as well as after a discovery of human remains or cultural items and before authorizing an excavation that may result in the discovery or excavation of human remains or cultural items. The Department proposes to simplify the plan of action in three separate steps (see proposed § 10.4(b)): (1) Step 1—Initiate consultation; (2) Step 2—Consult with requesting parties; and (3) Step 3—Approve and sign the plan of action. Consulting parties listed in § 10.4(b)(1) would not be considered the same as consulting parties under other applicable law, specifically under 36 CFR part 800. The Department proposes to use specific terms to clarify the distinction between a consulting party (as defined in § 10.4(b)(1)(i)) and a requesting party (any consulting party that submits a written request to consult).

In response to consultation with Indian Tribes and NHOs, the Department proposes to require that consultation seek consensus, to the maximum extent possible, on the content of the plan of action. In addition, a record of consultation must include the effort made to seek consensus or describe efforts to identify a mutually agreeable alternative. The consultation record must note the concurrence, disagreement, or nonresponse of the requesting parties to the plan of action. These requirements are used throughout the proposed regulations whenever consultation with requesting parties is required. The Department proposes to remove some of the existing requirements for a plan of action that are not necessary and overly intrusive. Depending on the results of consultation, any of these elements may be included in a plan of action but are no longer the minimum requirement for a plan of action. Specifically, the Department proposes to remove the following items from a plan of action in the existing regulations at § 10.5(e):

(1) The kinds of objects considered as cultural items;

(2) The specific information used to determine disposition;

(4) The planned archaeological recording;

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

(8) The nature of reports to be prepared.

The Department proposes to include in a plan of action the preference of requesting parties for stabilizing and covering human remains or cultural items in situ, protecting and relocating human remains or cultural items, if removed, or providing appropriate treatment, care, or handling of human remains or cultural items. For example, under the proposed regulations, a plan of action might indicate that requesting parties prefer protection of human remains or cultural items in situ, but when that is not possible, the plan of action may require that the appropriate official protect and relocate the human remains or cultural items by burying them in a nearby location. Once disposition under § 10.7 is complete (including any required notice publication and claim), the claimants may determine the care, custody, or physical transfer of the human remains or cultural items, including deciding to leave the human remains or cultural items buried in the nearby location.

In response to consultation with Indian Tribes and NHOs and based the experience of Federal agencies with these requirements since 1990, the Department is aware of a preference by some Indian Tribes for allowing natural exposure or erosion of human remains or cultural items to continue, without covering or removing human remains or cultural items. In those cases, a plan of action may indicate that requesting parties prefer the appropriate official take no action upon the discovery of human remains or cultural items that

are naturally exposed. The plan of action should also indicate what the appropriate official will do if the human remains or cultural items cannot be left in place. If disposition under § 10.7 is required because the human remains or cultural items could not be left in place, the claimants (after notice publication and claim, if required) may determine the care, custody, or physical transfer of the human remains or cultural items, including returning them to a safe location to continue a natural process.

3. Comprehensive Agreement

The Department proposes to retain the option for Federal agencies or DHHL to enter into a comprehensive agreement for all land managing activities on Federal or Tribal lands under its responsibility. The proposed regulations would require a comprehensive agreement be consented to by a majority of requesting parties and include, at minimum, the information required in a plan of action.

Table 5 shows how the Department proposes to reorganize the existing regulatory requirements on Federal or Tribal lands after November 16, 1990.

Table 5—Cross-Reference of Existing Provisions to Proposed § 10.4

Existing 43 CFR section

Proposed 43 CFR section

10.3(c)

Procedures

(1) . . . determine whether a planned activity may result . . .

10.4

To ensure compliance with the Act, any permit, license, lease . . .

10.4(g)

Notification requirement in authorizations.

New

10.4(a)

Appropriate official.

10.5(b)

10.5(a)

10.5(c)

Initiation of consultation

Consulting parties

Provision of information

10.4(b)

Plan of action.

(1) Step 1: Initiate consultation

10.5(d)

Requests for information

(2) Step 2: Consult with requesting parties.

10.5(e)

Written plan of action

(3) Step 3: Approve and sign the plan of action.

10.5(f)

Comprehensive agreements

10.4(c)

Comprehensive agreement.

10.3(c)

Procedures

(3) planned activity subject to NHPA

10.4(d)

Federal agency coordination with other laws.

10.4(f)

Federal agency officials.

10.5(g)

Traditional religious leaders

Removed. See §§ 10.2 and 10.4(b)(2).

F. Section 10.5 Discovery

This section of the proposed rule would implement the requirements of the Act regarding a discovery of human remains or cultural items on Federal or Tribal lands after November 16, 1990 (

25 U.S.C. 3002(d)). This section would include and clarify the requirements in the existing regulations at § 10.4(b) through (e) regarding discoveries.

1. Reporting and Documentation Requirements Upon Discovery

The proposed language in § 10.5(a) and (b) would prescribe specific reporting and documentation procedures that any person who knows or has reason to know of a discovery must take upon discovery of human remains or cultural items. Specifically, the proposed language would:

• Establish reporting timeframes (immediately with written documentation in 24 hours), requirements to secure and protect the discovery, and documentation requirements to include the location and contents of the discovery.

• Provide clear instructions for reporting the discovery in Table 1 to § 10.5, which identifies the appropriate official and the additional point of contact who must be informed of a discovery, based on the location of the discovery.

2. Timeframes To Respond to Discovery

The Department also proposes to require the appropriate official respond to any discovery on Federal or Tribal lands and keep the existing regulations' timeline of three days. On Tribal lands, the existing regulations only recommend actions by an appropriate official by using the verb “may” in the existing regulation at § 10.4(e). The Department proposes to change this to “require,” on Tribal lands in Alaska and the continental United States, that the appropriate official for an Indian Tribe respond to a discovery and certify that an activity may resume (see proposed § 10.5(c) and (e)), with an option to delegate this responsibility to the Bureau of Indian Affairs or another Federal agency. On Tribal lands of an NHO, the NHO may accept responsibility for discoveries on its Tribal lands; otherwise DHHL is responsible for discoveries on Tribal lands in Hawai`i. Table 6 shows the name of each requirement and a shortened version of the deadline in the proposed revisions.

Table 6—Discovery

Requirement

Deadline (no later than)

Report a discovery

24 hours after a discovery.

Cease any nearby activity

Immediately.

Respond to a discovery

3 days after a report of a discovery.

Approve and sign a plan of action

30 days after a report of a discovery.

Certify an activity may resume

35 days after a report of a discovery.

Resume an activity

30 days after certification.

3. Plan of Action

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

the Act does not require consultation on a discovery, the Department proposes to require the appropriate official, in consultation with Indian Tribes or NHOs, prepare, approve, and sign a plan of action within 30 days of a discovery. The Department hopes that by requiring a plan of action after a discovery, Federal agencies and DHHL will be encouraged to engage in consultation earlier and develop a plan of action prior to a discovery. The requirement for a plan of action is waived if, prior to the discovery, the appropriate official approved and signed a comprehensive agreement or plan of action, or if an NHO agreed to be responsible for discoveries on its Tribal lands.

4. Certification and Resumption of Activity

The Department proposes to provide additional time for the appropriate official to certify an activity related to a discovery may resume. In the existing regulations at § 10.4(d) and (e), the appropriate official on Federal or Tribal lands must certify receipt of a notification of a discovery within three days and the activity related to the discovery may resume 30 days later. The existing regulations do not allow for any additional time and do not provide a mechanism for the appropriate official to prevent an activity from resuming 33 days after a discovery.

The Department proposes to build in an additional 35 days, if needed, for consultation with Indian Tribes and NHOs, evaluation of the discovery, and to carry out a plan of action (see proposed § 10.5(e)). The Department is specifically seeking input during public comment on this timeline. The Act requires that an activity may resume 30 days after the appropriate official certifies that notification of a discovery was received (25 U.S.C. 3002(d)(1), last sentence). The legislative history clearly indicates that reporting a discovery is not meant to be an impediment to resuming a lawful activity on Federal or Tribal lands. However, the Department proposes to allow an additional 35 days in the timeline by separating the requirements for responding to a discovery within 3 days from the requirements for certifying that an activity may resume within 30 days. This would allow a maximum of 65 business days (35 business days to certify and 30 business days later resume the activity) after a discovery on Federal or Tribal lands before an activity could resume. If the appropriate official determines an earlier date for resuming the activity is acceptable, there is no restriction against certifying the activity may resume within less than 65 days. The proposed change would allow the appropriate official more time, if needed, to consult with Indian Tribes and NHOs, evaluate the potential need for an excavation, and carry out the steps in a plan of action.

Table 7 shows how the Department proposes to reorganize the existing regulatory requirements regarding a discovery.

Table 7—Cross-Reference of Existing Provisions to Proposed § 10.5

(1) Existing 43 CFR section

(1) Proposed 43 CFR section

10.4(b)

Discovery

10.5(a)

Report any discovery.

10.4(c)

Ceasing activity

10.5(b)

Cease any nearby activity.

10.4(d)

10.4(e)

(1) As soon as possible, but no later than three (3) working days . .

10.5(c)

Respond to a discovery.

10.4(d)

(1) (iv) Initiate consultation

10.5(d)

Approve and sign a plan of action.

10.4(d)

10.4(e)

(2) Resumption of activity

10.5(e)

Certify that an activity may resume.

10.4(a)

General

Removed.

G. Section 10.6 Excavation

This section of the proposed rule would implement the requirements of the Act regarding excavation of human remains or cultural items on Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(c)). This section would include and clarify the requirements in the existing regulations at § 10.3(b) and (c) regarding excavations.

1. Jurisdiction to Issue ARPA Permit

The Department proposes to revise the existing regulations to clarify the jurisdiction of a Federal agency to issue a permit under Section 4 of the Archaeological Resources Protection Act (ARPA) for an excavation. This proposed change, based on the legislative history of NAGPRA, would address requests from Federal agencies and DHHL to correct the scope of jurisdiction in the existing regulations at § 10.3(b)(1), which requires the Bureau of Indian Affairs to take certain actions on private lands for which they do not have jurisdictional authority. The Department proposes that an excavation on Federal or Tribal lands would only require a permit under the ARPA (16 U.S.C. 470cc) if the excavation would occur on “Indian lands” or “public lands” under ARPA (referred to and defined as “ARPA Indian lands” and “ARPA public lands”), subject to the exemptions in the ARPA Uniform Regulations. ARPA's definition of “Indian lands” and “public lands” is narrower than “Tribal lands” and “Federal lands” under NAGPRA, which is why the Department proposes to include the ARPA definitions in these proposed regulations. The legislative history of NAGPRA makes clear that Congress intended to protect human remains and cultural items by requiring ARPA permits be issued for NAGPRA excavations when a permit is also required under ARPA.

2. Requirement for Consent to Excavation

Consistent with the Act, the proposed language in § 10.6(a) would require, on Tribal lands, an Indian Tribe or NHO to consent in writing to an excavation. On Tribal lands in Alaska and the continental United States, an Indian Tribe may delegate this responsibility to the Bureau of Indian Affairs or another Federal agency. On Tribal lands of an NHO, the NHO may accept responsibility for excavations on its Tribal lands; otherwise DHHL is responsible for excavations on Tribal lands in Hawai`i.

3. Requirement for Plan of Action Prior To Authorizing Excavation

On all Federal lands in the United States or on Tribal lands in Hawai`i, the Department proposes (in response to consultation with Indian Tribes and NHOs) to revise the notification and consultation requirements for excavations under existing § 10.3(c)(1)

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

Table 8 shows how the Department proposes to reorganize the existing regulatory requirements regarding excavation and consultation.

Table 8—Cross-Reference of Existing Provisions to Proposed § 10.6

(1) Existing 43 CFR section

(1) Proposed 43 CFR section

10.3(b)

Specific Requirements. (1) . . . following the requirements of ARPA . . .

10.6

A permit under Section 4 of ARPA is required when . . .

10.3(b)

(2) . . . in the case of tribal lands, consent of, the appropriate . . .

(4) Proof of the consultation or consent is shown . . .

10.6(a)

On Tribal lands.

10.3(c)

Procedures.

(4) . . . on tribal lands, the Indian tribe or NHO may . . .

10.3(c)

Procedures

(1) . . . the Federal agency official must notify in writing . . .

(2) . . . must complete a written plan of action . . .

10.6(b)

On Federal lands in the United States or on Tribal lands in Hawai`i.

10.3(a)

General

Removed.

10.3(b)

(3) The disposition of the objects . . .

Removed.

H. Section 10.7 Disposition

This section of the proposed rule would implement the requirements of the Act regarding the disposition of human remains or cultural items removed from Federal or Tribal lands after November 16, 1990 (25 U.S.C. 3002(a) and (b)). This section would include and clarify the requirements in the existing regulations at §§ 10.6 and 10.7 regarding dispositions.

1. Consistent Use of the Term “Disposition”

The Department proposes to replace the term “disposition” in the existing regulations with two separate terms: “disposition” and “repatriation.” In the proposed revision, “disposition” applies consistently throughout but only to Subpart B. In the existing regulations, “disposition” and the undefined word custody are used interchangeably at times while “disposition” is also used as a catch-all term for any transfer of human remains or cultural items under the regulations. The Act uses the terms “ownership,” “right of control of the disposition,” and “disposition of and control over” in describing this process (25 U.S.C. 3002). In the proposed revision, “disposition” is the title of this section and means the appropriate official acknowledges and recognizes a lineal descendant, Indian Tribe, or Native Hawaiian organization has control or ownership of human remains or cultural items removed from Federal or Tribal lands.

2. Timeline for Disposition

In response to consultation with Indian Tribes and NHOs, the Department proposes to require that disposition occur as soon as possible, but no later than one year, after the discovery or excavation of human remains or cultural items on Federal or Tribal lands. In the existing regulations, there is no deadline for disposition, and the Department is aware of many instances where human remains or cultural items have not completed the regulatory process for years or even decades after discovery or excavation. This timeline will ensure that, on all Federal lands in the United States or on Tribal lands in Hawai`i, when disposition cannot be completed within one year, the Federal agency or DHHL reports the human remains or cultural items to the Manager, National NAGPRA Program.

The Department proposes to clarify the requisite steps for disposition by establishing a step-by-step process with corresponding deadlines. Table 9 shows the name of each step and a shortened version of the deadline in the proposed revisions.

Table 9—Step-by-Step Process for Disposition

Step number and name

Deadline (no later than)

Step 1—Inform consulting parties

6 months after a discovery or excavation.

Step 2—Submit a notice of intended disposition

6 months after Step 1.

Step 3—Receive and consider a claim for disposition

Any time after notice publication.

Step 4—Respond to a claim for disposition

30 days after Step 3.

Step 5—Disposition of the human remains or cultural items

90 days after Step 4.

3. Priority for Disposition

The Department proposes to simplify and clarify information contained in the existing regulations at § 10.6(a). The proposed revisions are consistent with the Act and the existing regulations in establishing the priority for disposition (see proposed § 10.7(a)), which can be simplified to be:

(1) Lineal descendants,

(2) Tribal lands Indian Tribe or NHO,

(3) Indian Tribe or NHO with clear cultural affiliation,

(4) Indian Tribe or NHO with reasonably identified cultural affiliation,

(5)(i) Adjudicated aboriginal land Indian Tribe, and

(5)(ii) Indian Tribe with a stronger cultural relationship than (5)(i).

4. Align Disposition to a Lineal Descendant or on Tribal Lands to the Act

The Department proposes to remove the requirement in the existing regulations at § 10.6(c) for publishing notices or requiring claims for disposition to a lineal descendant. The existing regulations do not provide any requirements for disposition of human remains or cultural items from Tribal lands. The Department proposes to require written documentation for disposition to a lineal descendant or on Tribal lands to better align with the Act (25 U.S.C. 3002(a)(1) and (2)(A); note the lack of a requirement for a notice or claim). On Tribal lands in Alaska and the continental United States, an Indian Tribe may delegate its responsibilities for disposition to the Bureau of Indian Affairs or another Federal agency. On Tribal lands of an NHO, the NHO may accept responsibility for dispositions on its Tribal lands; otherwise DHHL is responsible for dispositions on Tribal lands in Hawai`i.

5. Revise Requirements for Notices and Claims for Disposition

The Department proposes to revise language in the existing regulations at § 10.6(c) describing the requirements for Federal agencies to publish notices, receive claims, and complete dispositions in one paragraph with long, complex sentences. On all Federal lands in the United States and on Tribal lands in Hawai`i, the proposed revisions would provide five clearly written steps to complete the disposition of human remains or cultural items and establish deadlines and timelines.

The Department proposes to change the notice publication requirement in the existing regulations at § 10.6(c) that requires two publications of a notice in local area newspapers at least one week apart. This requirement has become increasingly burdensome given the general changes in newspaper publications since 1995. The Department proposes to require only one publication in the

Federal Register

by the Manager, National NAGPRA Program.

The Department proposes a new requirement for completing dispositions by sending claimants and the Manager, National NAGPRA Program, a written disposition statement. In the case of joint claims for disposition, the disposition statement would identify and be sent to all claimants. In the case of competing claims for disposition, the proposed revisions give guidance and timelines for identifying the most appropriate claimant and completing the disposition. The Act requires that the Federal agency apply the priority order and determine the “closest cultural affiliation” based on the evidence before it (25 U.S.C. 3002(a)(2)(B)) and does not provide for a stay of disposition to acquire further evidence or information.

6. Unclaimed Human Remains or Cultural Items

The Department proposes to move the existing section at § 10.7 to be a paragraph under the larger disposition section and modify the existing timeline. On all Federal lands in the United States or on Tribal lands in Hawai`i, when disposition cannot be completed within one year of a discovery, excavation, or notice of intended disposition, the proposed revisions require that the Federal agency or DHHL must report the human remains or cultural items to the Manager, National NAGPRA Program. These provisions would apply to any human remains or cultural items that were discovered or excavated on Federal lands in the United States or on Tribal lands in Hawai`i after November 16, 1990, even if it has been more than one year since the discovery, excavation, or notice of intended disposition. Federal agencies and DHHL should submit a list of all unclaimed human remains or cultural items removed from Federal or Tribal lands. As in the existing regulations at § 10.7(c) through (e), the proposed revisions would provide a process whereby a Federal agency or DHHL may transfer or reinter unclaimed human remains or cultural items, after it publishes a notice of proposed transfer or reinterment.

The Department proposes to clarify the requisite steps for unclaimed human remains or cultural items by establishing a step-by-step process with corresponding deadlines. Table 10 shows the name of each step and a shortened version of the deadline in the proposed revisions.

Table 10—Step-by-Step Process for Unclaimed Human Remains or Cultural Items

Step number and name

Deadline (no later than)

Step 1—Submit a list of unclaimed cultural items

1 year after effective date, update by Dec 31 each year.

Step 2—Agree to transfer or decide to reinter human remains or cultural items

Any time after Step 1.

Step 3—Submit a notice of proposed transfer or reinterment

30 days after Step 2.

Step 4—Transfer or reinter the human remains or cultural items

90 days after Step 3.

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

Table 11—Cross-Reference of Existing Provisions to Proposed § 10.7

(1) Existing 43 CFR section

Proposed 43 CFR section

10.6(a)

Priority of custody

10.7(a)

Priority for disposition.

New

10.7(b)

To a lineal descendant.

10.15(d)

Savings provisions

(3) After the disposition statement is sent . . .

New

10.7(c)

On Tribal lands.

10.15(d)

Savings provisions

(4) After the disposition statement

10.10(c)

(3) . . . from expressly relinquishing title to . .

10.6(c)

Final notice, claims and disposition with respect to Federal lands

10.7(d)

On Federal lands in the United States or on Tribal lands in Hawai`i.

(1) Step 1: Inform consulting parties.

(2) Step 2: Submit a notice of intended disposition.

(3) Step 3: Receive and consider a claim for disposition.

(4) Step 4: Respond to a claim for disposition.

(5) Step 5: Disposition of the human remains or cultural items.

10.15(d)

Savings provisions

(5)(iii) After the disposition statement . . .

10.10(c)

(3) . . .from expressly relinquishing title to . . .

10.7

Disposition of unclaimed . . .

10.7(e)

Unclaimed human remains or cultural items . . .

10.7(b)

(1) Submit a list of items . . .

(1) Step 1: Submit a list of unclaimed human remains or cultural items.

10.7(c)

. . . upon request, transfer . . .

(2) Step 2: Agree to transfer or decide to reinter human remains or cultural items.

(3) Step 3: Submit a notice of proposed transfer or reinterment.

(4) Step 4: Transfer or reinter the human remains or cultural items.

(4)(ii) After transfer or reinterment occurs . . .

10.7(d)

. . . reinter . . .

10.7(e)

(2) Publish a notice of the proposed transfer or reinterment . . .

New

10.15(d)

Savings provisions.

10.10(c)

(3) . . . from expressly relinquishing title to . . .

10.6(b)

Custody of human remains . . .

Removed.

10.7(b)

(2) Care for and manage . . .

(3) To the maximum extent feasible . . .

10.1(d)

Duty of care.

10.7(a)

This section carries out . . .

Removed.

10.7(e)

(1) Submit the list required . . .

(3) Send to the Manager, National NAGPRA Program . . .

I. Section 10.8 General

This section of the proposed rule would provide a general overview to Subpart C and clarify the requirements for museums and Federal agency with possession or control of holdings or collections. The section would consolidate general information in the existing regulations at §§ 10.8(a), 10.9(a), 10.11(e), and 10.17(a). The Department proposes to revise the title of Subpart C (in response to consultation with Indian Tribes and NHOs) to better reflect the intent of Congress for these sections of the Act (25 U.S.C. 3003-3005).

1. Clarify Who Has Responsibility for Holdings or Collections

The Department proposes to clarify, regardless of the physical location of a holding or collection, who is responsible for carrying out the requirements of the Act. The proposed revisions would provide both museums and Federal agencies with instructions on determining possession or control of holdings or collections. As discussed in the definition section, whether a museum or Federal agency has possession or control is a legal determination that must be made on a case-by-case basis. However, when a museum with custody of human remains or cultural items cannot identify any person, institution, State or local government agency, or Federal agency with possession or control, the museum should presume it has possession or control for purposes of Subpart C. When a Federal agency cannot determine if human remains or cultural items came into its possession or control before or after November 16, 1990, or cannot identify the type of land the human remains or cultural items were removed from, the Federal agency should presume it has possession or control for purposes of Subpart C.

2. Museums With Custody of a Federal Agency Holding or Collection

The Department proposes two new requirements aimed at locating Federal collections in non-Federal museums (see proposed § 10.8(c)). Specifically, the proposed language would require that:

• A museum must submit a statement describing Federal holdings or collections in its custody to the responsible Federal agency and to the Manager, National NAGPRA Program, no later than one year after the effective date of the final rule; and

• Within 120 days of receiving such a statement, the Federal agency must acknowledge its possession or control of a holding or collection, acknowledge that it does not have possession or control of a holding or collection, or acknowledge it has joint possession or control with the museum.

These new requirements are a direct response to requests from Federal agencies and Indian Tribes who struggle to locate Federal collections in non-Federal museums. In 2010, the Government Accountability Office commented on this issue in its report on Federal agency compliance with the Act. Addressing this issue, the Department's detailed response to the Government Accountability Office's

report stated, “These instances illustrate the importance of repositories notifying agencies upon discovery of Federal collections in their possession.” This requirement is consistent with the conditions for repositories holding Federal collections under 36 CFR part 79, its referenced Federal property management authorities, and the Secretary's authority to prescribe regulations relating to Indian affairs under 25 U.S.C 9 (

United States

v.

Eberhardt,

780 F.2d 1354, 1360 (9th Cir.1986)).

If a museum has custody of a holding or collection from multiple agencies or is unsure which Federal agency has possession or control of the holding or collection, the museum must send information on the holding or collection to any Federal agency that might have an interest and to the Manager, National NAGPRA Program. If a museum is unsure of who the appropriate point of contact is for a Federal agency, the Department recommends contacting the Federal Preservation Officer to assist in identifying the appropriate agency contact. The Advisory Council on Historic Preservation keeps an updated list at

https://www.achp.gov/protecting-historic-properties/fpo-list.

In responding to such statement, a Federal agency need not perform exhaustive research to determine whether it has possession or control of the collection, but it must merely assess the museum's statement on possession or control based on the information available to the Federal agency.

3. Museums With Custody of Other Holdings or Collections

The Department proposes a new requirement for museums with custody of holdings or collections for which the museum cannot identify who has possession or control. The museum would be required to submit a statement describing holdings or collections in its custody for which it cannot identify any person, institution, State or local government agency, or Federal agency with possession or control. The statement would be sent to the Manager, National NAGPRA Program, no later than one year after the effective date of the final rule. This new requirement is a direct response to requests from Indian Tribes who struggle to determine their rights to holdings or collections in the custody, but not in the possession or control, of a museum. The Manager, National NAGPRA Program, would share this information with appropriate parties to determine possession and control and proceed with the inventory, summary, and repatriation processes.

Table 12 shows how the Department proposes to reorganize and add to the existing regulatory requirements for museum or Federal agency holdings or collections.

Table 12—Cross-Reference of Existing Provisions to Proposed § 10.8

(1) Existing 43 CFR section

(1) Proposed 43 CFR section

10.8(a)

General

10.8(a)

Museum holding or collection.

10.9(a)

10.8(b)

Federal agency holding or collection

New

10.8(c)

Museums with custody of a Federal agency holding or collection.

10.8(d)

Museums with custody of other holdings or collections.

10.11(e)

Disputes

10.8(e)

Contesting actions on repatriation.

10.17(a)

Formal and informal resolutions

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

This section of the proposed rule would implement the requirements of the Act regarding summaries of holdings or collections to facilitate the repatriation of unassociated funerary objects, sacred objects, or objects of cultural patrimony (25 U.S.C. 3004 and 3005). In response to consultation with Indian Tribes and NHOs, the Department proposes to retain the existing requirement that a museum or Federal agency prepare a summary for any holding or collection that may contain unassociated funerary objects, sacred objects, or objects of cultural patrimony. NAGPRA requires “Each Federal agency or museum which has possession or control over holdings or collections of Native American unassociated funerary objects, sacred objects, or objects of cultural patrimony shall provide a written summary of such objects based upon available information held by such agency or museum” (25 U.S.C. 3004(a)). The statutory language is unclear whether summaries should include only the unassociated funerary objects, sacred objects, or objects of cultural patrimony, or the entire collection which may include these cultural items. The Act was enacted for the benefit of Indians and therefore the canon of construction applies that statutes “are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit” (

Yankton Sioux Tribe

v.

United States Army Corps of Engineers,

83 F. Supp 2d 1047, 1056 (D.S.D. 2000)). The legislative history and statutory language are clear that the summary is intended as an initial step in bringing an Indian Tribe and Native Hawaiian organization into consultation with a museum or Federal agency. As Indian Tribes and NHOs noted during consultation, identification of specific sacred objects or objects of cultural patrimony must be done in consultation with Indian Tribe or NHO representatives and traditional religious leaders since few, if any, museums or Federal agencies have the necessary personnel to make such identifications. Further, identification of specific unassociated funerary objects, sacred objects, and objects of cultural patrimony would require a museum or Federal agency to complete an item-by item listing first. That would be directly contrary to Congress's admonition that a summary should not be an object-by-object listing (25 U.S.C. 3004(b)(1)(A)).

The Department proposes to consolidate the requirements for repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony into a seven-step process in a single section. These same requirements are currently spread out among the existing regulations at §§ 10.8, 10.10, and 10.13. In addition, the Department proposes to add more detailed instructions for evaluating multiple requests for repatriation and resolving stays of repatriation than currently in the existing regulations at § 10.10(c).

1. Establish a Step-by-Step Process for Repatriation

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

Table 13—Step-by-Step Process for Repatriation

Step number and name

Deadline (no later than)

Step 1—Complete a summary . . .

6 months for a new collection.

Step 2—Initiate consultation

30 days after Step 1.

Step 3—Consult with requesting parties

10 days after a request, propose a timeline for consultation.

Step 4—Receive and consider a request for repatriation

Any time after a summary is complete.

Step 5—Respond to a request for repatriation

60 days after Step 4.

Step 6—Submit a notice of intended repatriation

30 days after Step 5.

Step 7—Repatriation of the unassociated funerary object, sacred object, or objects of cultural patrimony

90 days after notice publication.

The intent of these proposed revisions is to correct inaccuracies and ambiguities in the existing regulations by using a clear, easy to follow, step-by-step process, and ensure a timely resolution of any requests for repatriation. For example, the proposed revisions would clarify, consistent with the Act, that invitations to consult follow the completion of a summary. In the existing regulations at § 10.8(d)(2), consultation is initiated “no later than the completion of the summary process.”

The proposed revisions would also directly address a required step that lacks explanation or deadlines in the existing regulations. The Department proposes in Step 5 to require a museum or Federal agency to respond no later than 60 days after receiving a request for repatriation. The Department also proposes four specific options for the response, summarized as follows:

(1) Accept the request and agree to the repatriation.

(2) Reject the request, explain why, and ask for more information.

(3) Assert and prove a right of possession and refuse repatriation.

(4) Determine the most appropriate requestor among competing requests.

2. Update Deadlines, Establish New Timelines, and Clarify Procedures

To update deadlines for completing a summary, the proposed revisions integrate all the deadlines for completing a summary in the first paragraph (see proposed § 10.9(a), Table 1 to § 10.9). The proposed revisions would identify the past required deadlines for completing a summary (

i.e.,

November 16, 1993). The Act does not clearly indicate when museums or Federal agencies must complete a summary after the statutory deadline for reporting had passed. The existing regulations at § 10.13 provide these requirements for newly acquired or newly regulated holdings or collections beginning in 2007. The proposed revisions use the same deadlines as the existing regulations.

To establish new timelines, the proposed revisions would require in Step 2 a written request to consult. This new requirement for a written request to consult (which can include email) is necessary to then require a museum or Federal agency to respond to the request within 10 days. In this same subparagraph, the proposed revisions require requests to consult be submitted prior to a notice publication. This requirement ensures the repatriation process moves forward by certain deadlines in later steps. After publication of a notice, any party, even if they have not requested to consult, can make a request for repatriation as a competing claim (see proposed § 10.9(f)(4)).

To clarify procedures, the proposed revisions would require in Step 4 that any party wishing to make a request for repatriation must do so in writing. In the existing regulations at §§ 10.8 and 10.10, there are references to making requests for repatriation, but not until the very end of the process under notification in the existing regulations at § 10.10(a)(3) is it clear that such a request must be in writing. The Department is specifically seeking input during public comment on the deadlines for responding to a request for repatriation and sending a repatriation statement.

3. Require That Consultation Seek Consensus

In response to consultation with Indian Tribes and NHOs, the Department proposes to require that consultation seek consensus, to the maximum extent possible. In addition, a record of consultation must include the effort made to seek consensus or describe efforts to identify a mutually agreeable alternative. For any determination considered during the consultation process, the consultation record must note the concurrence, disagreement, or nonresponse of the requesting parties. These requirements are used throughout the proposed regulations whenever consultation with requesting parties is required.

4. Protect Sensitive Information and Disclose Hazardous Substances

The Department proposes to remove the existing regulations at § 10.8(d)(4)(iii) because it requires Indian Tribes and NHOs to provide information about funerary objects, sacred objects, or objects of cultural patrimony. This kind of information is often very sensitive and providing it in writing or in the absence of qualified persons within the Indian Tribe or NHO might be inappropriate. The proposed language would still provide for an exchange of information about the types of objects that might be unassociated funerary objects, sacred objects, or objects of cultural patrimony, but would do so in a way to allow for sensitive information to be protected.

In the existing regulations at § 10.10(e), museums and Federal agencies must inform Indian Tribes and NHOs about any potentially hazardous substances used to treat any of the objects only after repatriation has occurred. The proposed revisions would require a museum or Federal agency to disclose information about the presence of any potentially hazardous substances first in the summary (see proposed § 10.9(a)(1)(v)) and second in the notice of intended repatriation (see proposed § 10.9(f)(1)(vi)).

5. Clarify Requirements for Notices

The proposed revisions clearly outline informational requirements for a

Federal Register

notice and do so with greater detail than the existing

regulations at § 10.8(f). To protect potentially sensitive information, the only location information that would be required is the county and State where the unassociated funerary object, sacred object, or object of cultural patrimony were removed, if known. Other informational requirements of a

Federal Register

notice would include: (1) the identification of the cultural item specifically as an unassociated funerary object, a sacred object, an object of cultural patrimony, or both a sacred object and an object of cultural patrimony; (2) the requestor, with no requirement that other lineal descendants or Indian Tribes or NHOs with cultural affiliation be listed in the notice; and (3) a brief abstract of the information showing the requestor is a lineal descendant or an Indian Tribe or NHO with cultural affiliation.

In enumerating the unassociated funerary objects, sacred objects, or objects of cultural patrimony in a notice, museums and Federal agencies would be encouraged to count in a way that reduces the chances of having to issue a correction notice. For example, identifying 3 lots of shell beads means that no matter the exact number of beads present, the count would stand, whereas identifying exactly 1,960 shell beads in a notice would mean that if additional (or fewer) beads were located before repatriation occurs, a correction notice would be required because the number of objects would have changed.

6. Written Repatriation Statement

The Department proposes to require a new document to complete the repatriation of an unassociated funerary object, sacred object, or object of cultural patrimony to a requestor. A written repatriation statement would be sent to and would identify all requestors in the case of joint requests. In accordance with the recommendation by the Government Accountability Office in a 2010 report on the implementation of the Act, a copy of the repatriation statement would also be sent to the Manager, National NAGPRA Program. Table 14 shows how the Department proposes to reorganize the existing regulatory requirements for repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony.

Table 14—Cross-Reference of Existing Provisions to Proposed § 10.9

Existing 43 CFR section

Proposed 43 CFR section

10.8(b)

Contents of summaries

10.9(a)

Step 1: Complete a summary of . . .

10.8(e)

Using summaries to determine affiliation

(1) A summary must include . . .

10.10(e)

. . . inform recipients of repatriation . . . treatment with potentially hazardous substances

(1)(v) The presence of any potentially hazardous substances . . .

10.13(b)

New holdings or collections

(2) After [effective date of final rule], . . . must submit a summary . . .

10.13(d)

New Federal funds

10.8(c)

Completion

(3) Prior to [effective date of final rule], . . . must have submitted a summary . . .

10.13(b)

(3) Previously prepared summary or inventory.

(4) After [effective date of final rule], . . . acquires possession or control of a holding or collection that contains . . .

10.8(d)

Consultation

(1) Consulting parties

10.9(b)

Step 2: Initiate consultation.

(1) Consulting parties are . . .

(2) Initiation of consultation

(2) An invitation to consult must . . .

New

(3) Any consulting party . . . must . . .

(4) . . . identifies a new consulting party . . .

10.13(c)

New Indian Tribes

(4)(ii) . . . after the addition of a Tribal entity to the list of federally recognized Indian Tribes . . .

10.8(d)

(4) Requests for information

10.9(c)

Step 3: Consult with requesting parties

(1) . . . a museum or Federal agency must ask for the following information . . .

New

(2) The consultation process must . . .

(3) The museum or Federal agency must prepare a record of consultation . . .

10.8(d)

(3) Provision of information

(4) . . . A museum or Federal agency must provide access to the additional information . . .

New

10.9(d)

Step 4: Receive and consider a request for repatriation.

(1) A request for repatriation . . . must be received . . .

(2) Requests from two or more . . .

10.10(a)

(1) Criteria

(3) A request for repatriation must satisfy . . .

New

10.9(e)

Step 5: Respond to a request for repatriation.

10.8(f)

Notification

10.9(f)

Step 6: Submit a notice of intended repatriation

10.10(e)

. . . treatment with potentially hazardous substances

(1)(vi) . . . the presence of any potentially hazardous

10.13(b)

(2) Additional pieces or fragments.

(3) If the number or identity . . . changes . . .

10.13(e)

Amendment of previous decision

10.10(a)

10.10(d)

(3) Notification

Place and manner of repatriation.

10.9(g)

Step 7: Repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony.

10.10(f)

Record of repatriation

10.15(d)

Savings provisions

10.10(c)

(2) Circumstances where there are multiple requests for repatriation

10.9(h)

Evaluating competing requests for repatriation.

10.10(c)

Exceptions

10.9(i)

Stay of repatriation.

10.8(d)

(4)(iii) Kinds of cultural items

Removed.

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

This section of the proposed rule would implement the requirements of the Act regarding inventories of holdings or collections to facilitate the repatriation of human remains and associated funerary objects (25 U.S.C. 3003 and 3005). The Department proposes to consolidate the requirements for repatriation of human remains and associated funerary objects into an eight-step process in a single section. These same requirements are currently spread out among the existing regulations at §§ 10.9, 10.10, 10.11, and 10.13. In addition, the Department proposes to add more detailed instructions for evaluating multiple requests for repatriation and resolving stays of repatriation than currently in the existing provisions at § 10.10(c).

1. Eliminate “Culturally Unidentifiable”

On March 15, 2010, the Department issued a final rule with request for comment that codified procedures for the disposition of culturally unidentifiable Native American human remains in the possession or control of museums or Federal agencies (75 FR 12378, March 15, 2010). These procedures require museums and Federal agencies to consult with, and transfer control of, culturally unidentifiable human remains to the Indian Tribes and NHOs from whose Tribal lands or from whose aboriginal lands the human remains were removed.

Comments on the March 15, 2010, final rule raised concerns that the financial burden on museums of consultation and disposition of culturally unidentifiable human remains would be “tremendous,” “onerous,” “overwhelming,” “ruinous,” or “significant.” However, since the Act became law in 1990, museums and Federal agencies have accounted for over 84,000 Native American human remains in notices, including over 21,000 culturally unidentifiable human remains, with no indication that a single museum has suffered overwhelming or ruinous consequences from compliance with the Act. Every year since 1994, Congress has provided approximately $2 million dollars in grant funds for consultation and repatriation activities to assist in compliance with the Act.

Comments for the March 15, 2010, final rule also raised questions about what types of relationships were required for disposition of culturally unidentifiable human remains. Using a geographic relationship between an Indian Tribe or NHO and human remains and associated funerary objects for the purpose of repatriation aligns with the Act's requirements for museums and Federal agencies to “identify the geographical and cultural affiliation of such items” and with the general intent of repatriation under the Act. As noted in the response to comments for the March 15, 2010, final rule, the disposition of human remains, funerary objects, sacred objects, and objects of cultural patrimony to Indian Tribes and NHOs based on criteria other than cultural affiliation was clearly anticipated by Congress.

Section 3002(a)(2) of the Act which was used as the model for the March 15, 2010, final rule specifically authorizes disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony removed from Federal or Tribal lands after November 16, 1990 to the Indian Tribe or NHO on whose Tribal lands the human remains or cultural items were removed, to the Indian Tribe or NHO with cultural affiliation to the human remains or cultural items, or to the Indian Tribe having aboriginally occupied the Federal land where the human remains or cultural items were removed. Significantly, under the Act, ownership or control of human remains or cultural items based on Tribal lands origin is given a higher priority than cultural affiliation. Consistent with the terms of the Act, the 2010 rule codified a process for disposition of culturally unidentifiable human remains to the Indian Tribe or NHO from whose Tribal lands, at the time of excavation or removal, or from whose aboriginal land the human remains were removed. In addition to the Act, the implementing regulations rely on the specific recommendations from the Review Committee for disposition of culturally unidentifiable human remains and additional information gleaned from culturally unidentifiable inventories. The existing regulations are consistent with the Department's determination that it was reasonable and appropriate for the disposition of culturally unidentifiable human remains to be based on geographical information given that the designation of “culturally unidentifiable” is often due to a lack of information occasioned by some collection practices rather than a lack of geographical information.

To streamline the existing regulations at § 10.11 regarding disposition of human remains and associated funerary objects currently referred to as culturally unidentifiable, the Department proposes to incorporate the concepts underlying the existing regulations more logically into the overall inventory and repatriation process. As a result, the Department also proposes to generally remove the term “culturally unidentifiable” as the streamlining of these concepts would make this term no longer serve a useful regulatory purpose. Further, this proposed change is intended to more accurately reflect the geographically focused analysis required for an inventory of human remains and associated funerary objects. As discussed above, the proposed revisions identify two kinds of affiliation for purposes of repatriation: cultural or geographical. As discussed in more detail below, the proposed revisions would require that an inventory of human remains and associated funerary objects include determinations of both cultural and geographical affiliation or an explanation why no affiliation could be identified.

2. Require Repatriation of Associated Funerary Objects

While the existing regulations at § 10.11 mandate the disposition of certain categories of culturally unidentifiable human remains by museums and Federal agencies upon receipt of a claim, the transfer of culturally unidentifiable associated funerary objects under the existing regulations is at the discretion of the museum or Federal agency. Following publicat

This text is long and has been trimmed here. Open the source document for the complete record.