Restless Spirits - John F. Kennedy Universities Libraries

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Restless Spirits:
Museums and the California Native American Graves Protection and
Repatriation Act Dilemma
by
Maria Cristina Gonzales-Moreno
June 15, 2007
Submitted in Partial Fulfillment
Of the Requirements for the Degree of
Master of Arts
in
Museum Studies
in the
School of Education and Liberal Arts
at
John F. Kennedy University
Approved:
__________________________________
Department Chair
_____________________
Date
Acknowledgements
While attending school, I became indebted to many individuals
whom I would like to acknowledge.
First and foremost, I most graciously acknowledge my mom and
my aunt (and their husbands) for caring for my son while I was at school.
This degree would not be possible without their support and the support of
all of my family, including my Dad, aunts, uncles and cousins. I am truly
blessed with a great family.
Secondly, I would like to acknowledge my best friend Nikki who
would stay up late on the phone with me to make sure I made it home. I
am grateful to have such a friend. There were others who would call to
check on me too, it was really a long drive, seven hours to be exact. On
the topic of driving, I would like to acknowledge my Uncle Santos who
made sure my car was working so that I could drive back and forth to
school.
Third, I would like to acknowledge the Tulare Historical Museum
for allowing me to constantly change my schedule to attend school, in
addition to everything else in between. Thank you for your understanding.
Further acknowledgement goes to: Owens Valley Career
Development Center for all their moral and financial support; Paulette
Hennum, for the encouragement and wonderful opportunities she
provided; my interviewees for their unique insight and time; the Librarians
at JFK, Fresno State and UC Berkeley-Native American Studies, for their
time and efforts, which were not in vain. Last but not least, I would like to
acknowledge Marjorie, for believing in me and always giving me that
extra time and push.
And finally, sincere appreciation for everyone who supported me
and believed in me, even when I doubted myself—thank you for helping
me see the light at the end of the tunnel.
i
This thesis is dedicated to my son
Brandon Khutsi-Yowlits McDarment
Drawing by Edwin Moreno, my husband.
ii
Table Of Contents
Executive Summary
1
Methodology
6
Limitations of Methodology
9
Literature Review
10
Findings
33
Conclusions and Recommendations
52
Product Description
62
Product: Workshop Guidelines for Cal-NAGPRA
64
Glossary of Terms
68
Bibliography
70
Appendix A
Native American Graves Protection and
Repatriation Act Law
Appendix B
Repatriation Act Regulations–Future
Applicability
Appendix C
California-Native American Graves
Protection and Repatriation Law
Appendix D
Federal Register, Part IV, Department of the
Interior, Bureau of Indian Affairs, “Indian Entities
Recognized and Eligible To Receive Services
From the United States Bureau of Indian Affairs;
Notice, July 12, 2002
Appendix E
Bureau of Indian Affairs, Branch of Federal
Acknowledgement, List of Petitioners by
State as of February 3, 2006
Appendix F
California Public Resource Code Section
5097-5097.993, Native American Historic
Resource Protection Act, Archaeological,
Paleontological, and Historical Sites, Native
American Historical, Cultural, and Sacred Sites.
Appendix G
Provenience of Culturally Unidentifiable
Native American Human Remains in the
National NAGPRA Database—Map
Appendix H
Template of Notice of Inventory Completion
Appendix I
Template of Notice of Intent to Repatriate
Appendix J
National NAGPRA, NAGPRA Section 3:
Plan of Action Checklist
Executive Summary
The Native American Graves Protection and Repatriation Act
(NAGPRA), was signed into federal law by then-president George H.W.
Bush in 1990. NAGPRA is a law that states federally recognized tribes1 ,
culturally affiliated with human remains, funerary entities2 , associated
funerary entities and entities of cultural patrimony in possession of a
federally funded institution, can file a claim for repatriation. California
NAGPRA (also known as Cal-NAGPRA), approved by then-Governor
Gray Davis in 2001, resembles NAGPRA with one critical difference. It
expands the scope of cultural affiliation to encompass non-federally
recognized tribes3 . Cal-NAGPRA also assesses penalties and enforcement
for non-compliance up to $20,000 per violation4 and any institution, such
as museums, public schools, and agencies that receive state funding would
be obligated to comply with Cal-NAGPRA. These laws are the result of a
changing attitude towards Native American burials in California in the
latter part of the 20th century.
1
Federally recognized tribes are defined as tribes that have had an existing governmentto-government relationship with the United States government. For more information, see
Glossary of Terms.
2
The word “entities” or “entity” is substituted for “objects” and “items”.
3
Tribes that do not yet have a recognized government-to-government relationship but
have continuously existed. For more information, see Glossary of Terms.
4
Current non-compliance with federal NAGPRA results in civil penalties that are
determined by the Secretary of the Interior.
1
Despite its goods intentions, California NAGPRA is a law that was
passed with no allocation of funding for its implementation. The law
however will eventually be implemented and museums in California will
face new challenges, the most significant being the inclusion of nonrecognized tribes in repatriation efforts.
The purpose of this study is to familiarize the museum community
with the California Native American Graves Protection and Repatriation
Act of 2001.5 Upon implementation, museums in California will be asked
to adhere to new guidelines in dealing with non-recognized California
Indian tribes and affiliated human remains that museums may be holding
in their collections. This law is especially important because California
has the largest number of culturally unidentifiable Native American
remains in the NAGPRA database.6 Additional study on the current
options for non-recognized tribes and museums is needed to facilitate
repatriation, identify tribal communities and establish communication.
The major goal of my research was to understand the implications
of Cal-NAGPRA, in regards to the museum community. Federal
NAGPRA required federally-funded museums to compile summaries of
human remains in their possession, indicating which federally recognized
5
6
For complete law information, see Appendix A.
For details, see Appendix G.
2
tribe the remains were ancestors of. Cal-NAGPRA expands that process. 7
Museums in California, which receive state funding will be required to
either review their existing inventories or compile new lists to reflect both
recognized and non-recognized tribes in California.
Another goal of Cal-NAGPRA is to encourage consultation
between museums and native people in their area. A successful
repatriation involves communication, a shared understanding and respect
for each party involved. The Cal-NAGPRA Oversight Commission,
composed of 10 members who are appointed by various agencies and the
Governor, would establish guidelines to determine which tribes would
require consultation by a museum, just as NAGPRA mandated
consultation for federally recognized tribes. Museums that have complied
with NAGPRA should be familiar with conducting consultation and will
be encouraged to maintain communication with tribal representatives.
A third goal of my project is to bring awareness of the current
options both museums and non-recognized tribes have regarding
repatriation. The fact that Cal-NAGPRA has passed but has not yet been
implemented poses several obstacles. There are currently three options for
non-recognized tribes for repatriation, which include obtaining the
assistance of another tribe that is federally recognized, appealing to the
7
For complete law information, see Appendix B.
3
federal NAGPRA Review Committee, or initiating a lawsuit on the
possessing museum. Again, these options are not only time consuming,
but a discriminating barrier for non-recognized tribes to bring their
ancestors home.
Finally, I hope to inspire the museum community to respond to
NAGPRA and Cal-NAGPRA as an ethical choice rather then legal
compliance. A museum, as defined by the American Heritage Dictionary,
is a building, place, or institution devoted to the acquisition, conservation,
study, exhibition, and educational interpretation of objects having
scientific, historical, or artistic value. I believe strongly that California
Indian remains, as are the remains of every other culture in the state, are
not scientific experiments nor should a museum impose ownership of
remains. Other definitions to consider are: Cemetery, as defined by the
American Heritage Dictionary, is a place for burying the dead. MerriamWebster defines Mausoleum as a large tomb; especially: a usually stone
building with places for entombment of the dead above ground. I believe
that by holding human remains that were dug up without consent of family
members or respect of cultural traditions, museums are operating more
like cemeteries than as institutions that educate for the public good.
4
My thesis begins by introducing the topic of Cal-NAGPRA
along with basic issues and pertinent information. The next major section
is a literature review that covers the history of repatriation in California,
NAGPRA issues affecting museums and non-recognized tribes and the
fate of Cal-NAGPRA, and what it would mean to the state if the law were
funded. The next chapter reports on first-hand information gained by
interviews, conference attendance and my internship experience. I then
conclude with observations and recommendations to the field. The final
element of this thesis is a workshop guideline for Cal-NAGPRA. I chose
this guideline as a product for my master’s project because I believe the
Cal-NAGPRA law will be implemented and museums will need
information regarding compliance, interpretation, and consultation.
5
Methodology
For this masters project I conducted a thorough literature review on
Native American history in the United States and specifically California,
museum history and legal documents. I engaged in four in-person and
phone interviews with individuals who have a vested interest in CalNAGPRA. I also met with three individuals with expertise in NAGPRA.
The interviews were documented with written notes.
I interviewed the following individuals in regards to Cal-NAGPRA:
Larry Myers
Executive Secretary, Native American Heritage Commission
Member, California NAGPRA Oversight Commission
Sacramento, California
Paulette Hennum
NAGPRA Coordinator, California Department of Parks and
Recreation, State Parks
Sacramento California
Lalo Franco
Director, Cultural Department, Santa Rosa Rancheria
Lemoore, California
Dr. John Pryor
Professor of Archaeology, California State University Fresno
Fresno, California
I also met the following individuals:
Dr. Sherry Hutt
Manager, National NAGPRA Program
Washington, D.C.
6
Dr. Steven M. Karr
Curator, Southwest Museum of the American Indian
Los Angeles, California
Jim Enote
Executive Director, A:shiwi A:wan Museum and Heritage Center
Zuni, New Mexico
In addition to these interviews, I attended three conferences:
“Tribal Archives, Libraries, and Museums” conference
May 24-27, 2005
Phoenix, Arizona
Shared Interpretations of California History
January 14-15, 2006
San Manuel Community Center
San Bernardino, California
Museums and Native American Knowledge’s Symposium
October 28-29, 2006
Arizona State University
Tempe, Arizona.
I used a basic set of questions as my interview instrument as well
as additional open-ended questions tailored to the person with whom I
spoke for more in-depth information. I chose this method to fully
understand each person’s position on Cal-NAGPRA as well as gain ideas
for my thesis writing strategy:
1. If applicable, what was your role in the passage of Cal-NAGPRA?
2. If Cal-NAGPRA were allocated funding, how do you think the
(museum/tribal/archaeology/etc.) community would respond?
3. Do you believe Cal-NAGPRA compliments or hinders NAGPRA?
7
4. Would you change the Cal-NAGPRA law? If so, what would you
change? What would you not change?
5. What do you believe museums and California tribes need to know
about Cal-NAGPRA?
6. How would you prepare your museum/what would you
recommend to a museum to implement this law?
During my internship with State Parks, California Department of Parks
and Recreation, I had the opportunity to participate in a repatriation to a
tribe. Staff and I generated inventory reports and matched it with the
Federal Register notices indicating specific numbers of entities, which
then had to be physically counted. We each were assigned lists of items to
locate. Once an item was located, it was removed and placed in a
designated area. From the time the original claim was filed to the actual
repatriation, was a span of over two years.
8
Limitations of Methodology
There are “38 states which have enacted reburial or repatriation
laws”8 in addition to federal NAGPRA which all states must adhere to.
This thesis topic is limited to the Cal-NAGPRA law, which specifically
applies to the State of California. California is a very unique in that it is
home to the largest number of tribes in the United States. Because of the
vast number of tribes both recognized and non-recognized, I may not have
identified all California tribes or shared each of their concerns and
involvement with NAGPRA. In researching Cal-NAGPRA, I found that
because the law has not yet been implemented, there were limited
resources available documenting the law’s repercussions, compliance,
success and failure. I also found many contradictory dates in the literature.
The issue of toxic residue, both chemical and spiritual
contamination of entities is mentioned often in repatriations. These types
of remains, which have been contaminated or “infected,” cannot be
reburied and are beyond my scope of research.
Time constraints also limited the number of interviews I could
conduct. There are very few experts and individuals who are familiar with
repatriation laws. Also, the law has recently changed and has the potential
keep changing over time.
8
Update of Compilation of State Repatriation, reburial and Grave Protection Laws (July
1997). http://www.arrowheads.com/burials.htm.
9
Literature Review
The California Native American Graves Protection and
Repatriation Act (California NAGPRA or Cal-NAGPRA), adopted by
then Governor Gray Davis in 2001,9 establishes a state version of the
federal Native American Graves Protection and Repatriation Act
(NAGPRA) of 1990. NAGPRA10 is a law, which allows federally
recognized tribes to file claims for repatriation of human remains, funerary
objects and objects of cultural patrimony, such as ceremonial regalia and
headdresses from mandated federally funded museums and institutions. In
contrast, Cal-NAGPRA expands the possibility of claims to encompass
non-federally recognized tribes11 . Cal-NAGPRA also assesses penalties
and enforcement for non-compliance up to $20,000 per violation12 and
institutions, such as museums, public schools, and agencies that receive
state funding would thus be obligated to comply with Cal-NAGPRA.
Despite its good intentions, California NAGPRA is a law that was passed
with no allocation of funding for its implementation. The law will
eventually be implemented, and museums in California will face new
9
For complete law information, see Appendix A.
For complete law information, see Appendix B.
11
Non-federally recognized tribes are defined as “any Indian aggregation within the
continental United States that the Secretary of Interior does not acknowledge to be an
Indian Tribe.” Code of Federal Regulations, Title 25 Indians, Part 83 § 83.1 Definitions.
For information, see Glossary of Terms.
12
Current non-compliance with federal NAGPRA results in civil penalties that are
determined by the Secretary of the Interior.
10
10
challenges, the most significant being the inclusion of non-recognized
tribes in repatriation efforts.
In order for museums to understand the significance of the CalNAGPRA law, it is necessary to review the history of federal and state
laws directly impacting California Indians, the events that led to the
passage of NAGPRA, and finally the urgency for California to mandate a
state version of NAGPRA.
Federal and State laws impacting California Indians
American laws have indeed failed to accord equal
protection. Moreover, the resulting disparate racial
treatment has caused painful human rights violations in
tribal communities.
-Walter Echo-Hawk and Jack F. Trope 13
The native people of California have continuously been subjected
to genocidal laws since California was a territory of Spain. From a
treacherous missionary system under the Mexican government to a
relentless American settlement, the near demise of the California Indian
began materializing with the discovery of gold in the mid-1800s. With the
absence of legal rights including American citizenship and the right to
protect their selves, families, tribes, land, way of life and ancestors, the
California Indians seemed powerless. Following the influx of immigrant
13
Walter R. Echo-Hawk and Jack F. Trope, The Native American Graves Protection and
Repatriation Act Background and Legislative History,” in Repatriation Reader: Who
Owns American Indian Remains?, ed. Devon A. Mihesuah, (University of Nebraska
Press, 2000), 124.
11
squatters seeking gold and other riches from the land came disease,
starvation and sickness to the state’s native population. Oppression and
racism against California Indians was common, accepted and even
encouraged. The delegates at the California Constitutional Convention in
1849 debated on whether to acknowledge Indian people and grant them
the right to vote. The majority of delegates chose not allow Indians the
right to vote, because they did not consider Indian people to be citizens
and certainly did not see them worthy of being able to participate in
government or the democratic process. As Kimberley Johnston-Dodds
writes in Early California Laws and Policies Related to California
Indians, “The California legislature never passed legislation that allowed
California Indians to vote”14 and it was not until the Citizenship Act of
1924, which recognized Indian people as citizens that they were granted
this right to participate in the political process. To further negate
California Indians, in April of 1850, An Act for the Government and
Protection of Indians was “the first of a series which provided for the
indenture or apprenticeship of Indians of all ages to any white citizen for
long periods of time,”15 and is an example of laws that were passed that
compromised the existence of Indian people. The Act hindered the transfer
14
Kimberly Johnston-Dodds, Early California Laws and Policies Related to California
Indians. (California Research Bureau, 2002), 3.
15
Robert F. Heizer and Alan J. Almquist, The Other Californians (Berkeley: University
of California Press, 1971), 39-40.
12
of culture and tradition among family members by mandating a separation
between generations from their family. Shortly thereafter, California’s first
State Governor Peter Burnett initiated military “expeditions against the
Indians” in various counties and tribal areas throughout the state to
exterminate the California Indians. Approximately 17 expeditions
occurring from 1854 to 1859 resulted in the deaths of hundreds of Indian
people.16 Governor Burnett, pushed for heavy taxation against Foreign
Miners resulting in the Foreign Miners Tax of 1850 as well as attempted
to include a bill to ban Black people from California. In the midst of unfair
laws and expeditions, the federal government authorized Indian
Commissioners to travel to California in an attempt to negotiate and
arrange treaties with the native people. The treaties would have provided
set boundaries for land, food, clothing, burial areas and hunting, but the
early California lawmakers saw value in the land for white citizens and
decided to oppose the ratification of the 18 treaties to the federal
government.17 The federal government then declined to ratify the treaties
and filed them under secrecy. The treaties were uncovered in 1906 and
discussed in Congress, but never ratified. Today these 18 treaties can be
found in a safe at the National Archives in Washington D.C., bearing no
16
Kimberly Johnston-Dodds, Early California Laws and Policies Related to California
Indians (California Research Bureau), 18-19.
17
For complete treaty law information, see Appendix C.
13
power, but evidence of a broken promise that was once made to protect
and assist many California Tribes.
Ultimately, California Indians were viewed as a race that was soon
to be extinct. Scientists and practitioners of a new academic field called
“Anthropology” rushed to the western United States to collect native made
goods, including skeletal remains in an attempt to study and document
what they believed was a vanishing civilization. Aided by the passage of
the Federal Antiquities Act (1906) which allowed excavation on federal
lands for the benefit of public institutions like museums throughout the
United States, morbidly curious collectors (sometimes called pothunters),
archaeological and anthropological scientists exhumed native graves and
dispersing their findings to laboratories, museums and universities. The
Antiquities Act of 1906 was well-meaning in scholarly circles, in that it
attempted to regulate wanton looting of federal sites for profit, but was
deeply insensitive to Native American culture and traditions,
“emphasizing a value preference for preservation and study of the objects
rather than for repatriation and “reinterment.”18
Even Indian people who had cooperated with authorities and
scholars did not merit a decent and humane burial. A famous such story is
that of Ishi, a man who was believed to be the last of his tribe, the Yahi in
18
H. Marcus Price III, Disputing the Dead: U.S. Law on Aboriginal Remains and Grave
Goods (University of Missouri Press, 1991), 25.
14
northern California. A sheriff found him and turned him over to the
University of California anthropologists Thomas T. Waterman and Alfred
Kroeber who later took Ishi to live in the basement of the university’s
anthropology museum, then located in San Francisco. Ishi demonstrated
crafts and life skills and created objects such as hunting knives and baskets
for the museum. Yet, the contribution Ishi made to enlighten scientists
regarding the life of a decimated tribe was not enough for them. Once Ishi
divulged the information about his people, he was ultimately treated in an
undignified way. When Ishi died of Tuberculosis (TB) in 1915, he was
cremated and “his ashes stored at a cemetery south of San Francisco”
instead of being buried in his homeland as he so fervently desired.19 It was
not until 1997 when members of four Maidu Tribes in Northern
California, relatives of the Yahi Tribe, formed a committee to campaign
for the return of Ishi’s remains for reburial near his tribal homelands.20 Yet
it was somehow documented that his brain was removed from his body
prior to cremation and its location was unknown. A huge effort was
mounted to locate Ishi’s brain. In 1998, anthropologist Orin Stan of Duke
University conducted research and located Ishi’s brain in storage at the
Smithsonian Institution. Repatriation was then swiftly conducted.
19
Bruce Bower, “Ishi’s Long Road Home,” Science News 157:2 (January 8, 2000), 2425.
20
Ibid.
15
Apparently, his brain had been shipped to the Smithsonian for scientific
research, yet the research, such as measurements was never done. Despite
Ishi’s contribution to science while he was alive, in the end he was still a
specimen. Thus it is no surprise that, as stated by San Jose History
Museum education director Marilyn Guida, “for many indigenous peoples,
museums represent the domination and theft of their cultures.”21
“Treatment of Native dead in the United States,” according to
authors Roger C. and Walter R. Echo-Hawk, “is related to two factors that
have long plagued Native Americans: religious insensitivity and racial
discrimination.”22 I believe these are two crucial factors that have
contributed to the disrespect of ancestral remains throughout history.
Because Indian people were not fully recognized as citizens, nor provided
any rights that protected them, obviously their dead were not provided
rights either. Looters in search for items to sell or trade did not
discriminate between tribes, grave looting affected federally recognized
tribes and non-recognized tribes. No tribe was immune from desecration,
“Virtually every Indian tribe or Native group in the country has been
21
Marilyn Guida, “Museums and California Indians: Contemporary Issues.” American
Indian Culture and Research Journal 21:3 (1997): 168.
22
Roger C. and Walter R. Echo-Hawk, Battlefields and Burial Grounds: The Indian
Struggle to Protect Ancestral Graves in the United States (Lerner Publication Company,
1994), 73.
16
affected by non-Indian grave looting.”23 For decades, Indian people did
attempt to bring attention to the robbing of Indian graves, but, as Andrew
Gulliford observed in his article in the Public Historian “Bones of
Contention: The Repatriation of Native American Human Remains,”
“Indians’ protests remained scattered and ineffective throughout the first
half of the twentieth century and the years of forced Americanization,
urban resettlement of Indians, and tribal termination.”24 Lack of political
clout and financial support also contributed to futile progress.
Beginning in the 1930s, several statutes or acts passed to
strengthen preservation, but they did not include repatriation that directly
or indirectly affected California Indians. These statutes or acts included
the Historic Sites Act of 1935, National Historic Preservation Act of 1966,
Department of Transportation Act of 1966, Administrative Procedures Act
of 1966, National Environmental Policy Act of 1969, Surface Mining
Control and Reclamation Act of 1977. Native American activism led to
the passage of the American Indian Religious Freedom Act (1978), one of
the first laws to “specifically consider Indian cultural values,”25 although
23
Walter R. Echo-Hawk and Jack F. Trope, “The Native American Graves Protection
and Repatriation Act Background and Legislative History,” in Repatriation Reader: Who
Press, 2000), 125.
24
Andrew Gulliford, “Bones of Contention: The Repatriation of Native American Human
Remains.” The Public Historian, 18:4 (Fall 1996), 128.
25
Ibid, 29.
17
museums were not necessarily required to protect Indian cultural and
religious beliefs. Furthermore, in 1979 the Archaeological Resources
Protection Act was passed, preserving archaeological resources and was
interpreted to “prevent repatriation and reburial of prehistoric aboriginal
remains and grave goods because it requires recovered objects to be
preserved by a suitable institution”26
The Native American Graves Protection and Repatriation Act
Anger at the mistreatment of Native Americans from 1492 onward
built slowly and finally exploded in the 1960’s Native American civil
rights movement, or Red Power movement. In cities across the United
States, contingents of Native people were formed to call attention to
certain problems such as broken treaties, poverty, lack of access to health
care and the loss of Native lands, but the protests were disjointed. Native
people lacked a national movement, until the takeover of Alcatraz Island
in San Francisco Bay. The Alcatraz prison had been closed in 1964 and in
1969 several Native American men “landed on the island and claimed it
under the 1868 Sioux treaty”27 that entitled Sioux Indians to claim unused
surplus federal land. Within two weeks, over a two hundred Indian people
landed at Alcatraz and took on the name “Indians of All Tribes.” They
26
27
Ibid, 30.
Vine Deloria, Jr., God is Red: A Native View of Religion, (Fulcrum Publishing, 1994),
9.
18
would occupy Alcatraz for over a year, and during that time brought
attention to the struggles of Native people. Ironically, the occupiers of
Alcatraz nor the press acknowledged or even asked permission to claim
Alcatraz from the Ohlone, who were the original inhabitants of the San
Francisco Bay Area. During the Red Power movement, the leading
organization was the American Indian Movement (AIM), founded in
1968, with the focus of renewal of spirituality and traditions among Indian
people. Several Native organizations formed after the founding of AIM
that addressed issues that would become historic legislation ranging from
Indian education to religious freedom.
It was also during this time that in 1971, Iowa’s Department of
Transportation accidentally uncovered a cemetery during a building
project. The remains of all the individuals in the cemetery were relocated
and reintered, except for the remains of an unnamed Indian woman.
Rather than rebury the woman’s remains along with the others, Iowa’s
state archeologist confiscated the nameless Indian woman’s remains, in
the name of science. This time the community did not sit still. A Sioux
woman named Maria Pearson, likely inspired by the American Indian
Movement and other civil rights movements, rallied support for the
reburial of the woman’s remains. Public outcry pressured the state of
Iowa, and in 1976 “Iowa became the first state to implement a reburial law
19
for Native American remains found in unmarked graves.”28 Although
Iowa did confront the issue of Native remains with an acceptable law for
reburial, it still allowed archeologists to investigate the remains, and
consultation with Native people was not required. Nonetheless, Iowa was
the first state to initiate reburial or “reintering” of remains in 1976
followed by Hawaii (1988) and Kansas (1989). These States only allowed
for the reburial of remains by an appointed individual or organization of
the State and the remains were still subject to scientific research, not
repatriation to the appropriate tribe.
In the west, California presided as a model beginning in 1971
when an archaeological task force bill to preserve historical resources
called for Native American representation. The bill “…represented the
first occasion in California law where Indians were given a role in
protecting their own cultural heritage resources”29 The following year, the
California Assembly would pass Bill 4239 establishing the Native
American Heritage Commission, who would be responsible with
protecting sacred sites and inventory sacred site locations. Over time, the
Commission was bestowed further duties and responsibilities. By 1976,
28
Steven Vincent, “Grave Injustice: Federal Laws about Burial Remains put Politics
before Science.” Reason, (July 2004).
29
Daniel G. Foster and John Betts, “History of the CDF Archaeology Program 19702004.” 14.
20
California “enact[ed] one of the most sweeping and severe Unmarked
Burial laws in the nation,”30
Influenced by these and several other cases, as well as from prior
defeated attempts in history, was a reburial movement in the late 1970’s
called American Indians Against Desecration (AIAD), which “formed
with the intention of influencing legislation to bring about the return and
reburial of Native American remains.”31 The organization originated
during a meeting of the International Indian Treaty Council, an
organization established during an American Indian Movement meeting in
Standing Rock, South Dakota in 1974.
The Zuni tribe has been successful with repatriation since 1977;
the most noted repatriation prior to NAGPRA was the Ahayu:da also
known as the Twin Gods or War Gods. There were several Ahayu:da that
had been looted from Zuni shrines and distributed throughout the United
States. The removal of these Ahayu:da from the shrines was having a
detrimental effect on the Zuni Tribe and repatriation was imperative.
Documentation regarding the Ahayu:da being related to religious Zuni
shrines has existed in historical context for decades; therefore the Zunis
had the preponderance of evidence to support their repatriation
30
H. Marcus Price III, Disputing the Dead: U.S. Law on Aboriginal Remains and Grave
Goods (University of Missouri Press, 1991), 50.
31
Terry Straus and Grant Arndt, ed., Native Chicago, Section Two: Heritage and History
(Chicago: McNaughton and Gunn, Inc., 1998), 209.
21
solicitations. The Zunis “phrased their initial requests for the return of the
Ahayu:da primarily in humanistic rather then legal terms”32 in an effort to
speak to the museum communities regarding the religious importance of
Ahayu:da to the Zuni people. Zuni religious leaders first encountered
Sotheby’s, who was to auction an Ahayu:da that had been a part of Andy
Warhol’s private collection. Interestingly, “When representatives of
Warhol’s estate heard about the war god’s background, they immediately
volunteered to return it.”33 The Zuni Tribe also pursued the repatriation of
more Ahayu:da as well as other items of cultural patrimony and Human
Remains from The Denver Art Museum, the Smithsonian Institution,
among others. Although some repatriations took longer then others, the
Zuni remained vigilant both before and after the passage of NAGPRA.
The Zuni Tribe was very successful in their tactics and in consultation
with various institutions, which helped facilitate the repatriation of
culturally significant items.
Another persistent tribe was the Pawnee of Oklahoma. In the late
1980’s the discovery of over 1,000 Pawnee remains at the Nebraska State
Historical Society (NSHS) led the tribe to “journey[ed] to Nebraska many
times to explain their spiritual concerns and request permission to bury the
32
T.J Ferguson, Roger Anyon, and Edmund J. Ladd, “Repatriation at the Pueblo of Zuni:
Diverse Solutions to Complex Problems,” in Repatriation Reader: Who Owns American
Indian Remains?, ed. Devon A. Mihesuah, (University of Nebraska Press, 2000), 241.
33
Susan Mulcahy, “Warhol and the war god.” http://www.Salon.com, February 22, 2007.
22
bones of their ancestors.”34 But they were met with deaf ears. Not only did
the NSHS completely disregard the Pawnee’s request but the Society also
affirmed its ownership over the remains on behalf of the scientific
community. The Society went so far as to block the tribe’s access to the
records showing how the society had obtained the remains. Eventually the
Nebraska attorney general was involved and issued orders requiring the
society to allow the tribe to research the remains.35 The society
vehemently opposed researching the records, being that the society had no
legal authority over the remains and acquired them illegally. After much
controversy, in 1988 the society agreed to repatriate only the human
remains. The Pawnee people then solicited the assistance of the Nebraska
State Legislature and in 1989; Nebraska Legislative Bill 340 became the
first law in the United States “to protect Indian graves and to require all
museums in the state… to honor tribal requests for the return of their
dead.”36 The following year prior to the passage of NAGPRA, Arizona
followed in Nebraska’s steps to protect and return for internment, the
remains of Native people. The Pawnee people were also made aware that
the Smithsonian Institution held the remains of over 18,000 ancestors and
thousands of remains of other tribes as well. As Terry Straus and Grant
34
Ibid, 60.
Ibid.
36
Ibid, 65.
35
23
Arndt tell us, “This catalyzed a national effort by Indian organizations to
obtain proper repatriations laws.”37 The first national effort was the
National Museum of the American Indian Act in 1989, which created not
only a National Museum of the American Indian (NMAI) within the
Smithsonian Institution on the Washington D.C. mall, but also addressed
the issue of human remains in the Smithsonian collections. The NMAI Act
required that the Smithsonian conduct consultation with Native Tribes,
inventory and identify the tribes associated with all human remains and
funerary objects in their collections, notify Tribes of inventory items, and
accept claims for repatriation from Tribes. The NMAI Act was a product
of a combined effort among Smithsonian Institution executives and Native
leaders.
On November 16, 1990 former President George Bush Sr., signed
into law the Native American Graves Protection and Repatriation Act.
Passage of the law relied on the extensive communication between the
Native American community, archeologists, and museums, to reach a
compromise on several historically inequitable issues. NAGPRA would
encompass several mandates that all federally funded agencies,
institutions, universities and museums must abide. As James D. Nason,
37
Terry Straus and Grant Arndt, ed., Native Chicago, Section Two: Heritage and History
(Chicago: McNaughton and Gunn, Inc., 1998), 209.
24
who is Comanche and Professor of Archaeology at University of
Washington, wrote:
This is in many respects the single most important piece of
national cultural property legislation ever adopted by the
United States because it recognizes the special relationship
of patrimonial, sacred, and funerary objects and remains to
a particular set of communities and adopts mandatory
requirements for notification as well as procedures for
repatriation and protection of human remains and key
categories of cultural property. 38
The first requirement of NAGPRA was to complete a
summary of all human remains, funerary objects, unassociated
funerary objects, sacred objects and objects of cultural patrimony,
including the identification of geographical and cultural affiliation.
Federally recognized Native American tribes and Native Hawaiian
organizations were then notified of summaries within the first five
years of the passage of NAGPRA. At that point, tribes were then
aware which museums held the remains of their ancestors, along
with other funerary or culturally significant entities.
The second requirement was to complete an inventory of
all human remains and associated funerary objects in the
possession or control of the holding agency, institution, university
or museum. This particular requirement also compelled the
38
James D. Nason, “Native American Intellectual Property Rights: Issues in the Control
of Esoteric Knowledge” in Borrowed Power ed. Bruce Ziff and Pratima V. Rao, (Rutgers
University Press, 1997), 241.
25
museum community to conduct consultation with Native American
Tribes thereby initiating dialogue, and addressing the longstanding
failure of the United States Government, and other institutions, to
understand and respect the spiritual and cultural beliefs and
practices of Native people.”39 NAGPRA promoted the
communication between museums and Native people, giving each
the power to rectify the past for the advancement of the future,
“implementing NAGPRA represents an important form of
accountability to all Americans in carrying out the mission to care
for the touchstones of our human heritage, and it means cultivating
mutual respect with important constituencies.”40
The inventory would be sent to the NAGPRA office at the
National Park Service, to then be posted to the “Federal Register”
as a “Notice of Inventory Completion,” identifying the inventory
and culturally affiliated federally recognized tribe(s), (see
Appendix 3). Once federally recognized Tribes confirmed cultural
affiliation of human remains, funerary objects, unassociated
funerary objects, sacred objects and objects of cultural patrimony,
39
Owns American Indian Remains? ed. Devon A. Mihesuah, (University of Nebraska
Press, 2000), 151.
40
Roger Echo-Hawk, Keepers of Culture, (Denver Art Museum, 2002), 176.
26
a claim would be filed on behalf of the tribe to the holding
museum. The museum would then receive the claim and file a
Federal Register Notice with the same agency. The notice would
be reviewed and posted as a “Notice of Intent to Repatriate”
indicating the specific Tribe claiming the objects. If no-other
culturally affiliated tribes do not dispute the repatriation, the
objects will then be repatriated after 30 days of the Notice to the
claiming Tribe. Within the 30 days, usually arrangements are made
between the holding facility and the Tribe to transfer the objects.
At the end of 30 days, the objects become the property of the Tribe
and the Tribe alone decides their fate. According to Walter R.
Echo-Hawk and Jack F. Trope, “NAGPRA is, first and foremost,
human rights legislation.”41 For over 500 years, Native Americans
had not had the support of the federal government to repatriate the
remains of their ancestors. NAGPRA will never expire nor is there
deadline for Natives to file claims for repatriation.
Although in 1970’s California emerged as the leading state to
secure Native rights for human remains, it failed to pass one of the first
repatriation laws. As Nebraska and Arizona began to initiate their own
41
Press, 2000), 139.
27
repatriation laws, former California Governor George Deukmejian vetoed
a repatriation bill stating that “it is difficult to link prehistoric finds to
living people, and they expressed fear that valuable collections holding
clues to the past would be needlessly destroyed.” Heavily opposed was the
University of California, Berkeley. This is not surprising since the Los
Angeles Times reports that, “Berkeley campus contains the third-largest
collection of Indian bones in the country.”42 Despite Berkeley’s opposition
to repatriation, sympathies across the bay at Stanford University went in
quite the opposite direction. In July of 1989 Stanford University
voluntarily agreed to repatriate an estimated 550 remains to the OhloneCostanoan tribe, noted as “a growing national movement, both in and out
of anthropology, to address the concerns of American Indians about the
proper handling of their ancestors remains.”43 Opponents claimed that,
“they say they fear the action could damage the prospects for future
research by setting a precedent that would force other institutions to give
back ancestral remains,” further stating that “the proper owner of these
remains is the scientific community.”44 Dispositions such as these
42
Leslie Berger, “Governor sides with school in bone debate anthropology: decision on
Indian remains is victory for University of California. Native Americans contend they are
better able to link the bones with descendents,” Los Angeles Times, September 27, 1990.
43
Chris Raymond, “Some Scholars Upset by Stanford’s Decision to Return American
Indian Remains for Re-Burial by Tribe,” The Chronicle of Higher Education, July 5,
1989.
44
Ibid.
28
complicated the repatriation process and further dampened the spirit of the
NAGPRA law as a whole. Scientists from universities and museums
around the nation began to reevaluate their human remains collections and
withhold information. Their actions prompted a demand from the Native
community to comply with the law.
The California Native American Graves Protection and
Repatriation Act
Ten years after the passage of NAGPRA, and a failed attempt to
introduce a State law assuring the compliance of repatriation, Native
people began to realize that “institutions have been slow to reveal their
holdings to Indians as they try to match bones to tribes, and federal
officials have been slow to do something about the data that have been
turned in.”45 The demand to comply has been an honest struggle for both
museums and national NAGPRA due to insufficient financial funding and
staffing devoted to NAGPRA. Staff was overwhelmed with repatriation
claims and clarifications, resulting in serious delays in repatriations. The
California Indian people began to notice and felt that museums and
universities were not complying with the law. Therefore, in 2000 Barona
Indian Reservation in California hosted an Assembly Select Committee on
Native American Repatriation hearing. “The hearing was to determine
45
Michelle Locke, “Ishi comes home, but most other Native remains stay on shelves.”
Berkeley Daily Planet, August 26, 2000.
29
whether the 1990 federal law regarding return of American Indian remains
held in California universities and museums was being effectively carried
out in the state.”46 Since NAGPRA had been in enacted ten years prior,
“state tribes complained that institutions were dragging their heels in
complying with the federal law. Though a few university and museum
officials opposed repatriation, most institutions said they supported it but
lacked resources to properly catalogue and distribute the remains.”47
Discussed at the hearing were ideas, solutions and proposals, which
included the possibility of a State law that would hold museums and
universities accountable for complying with the federal law. Also
discussed was the right for non-recognized tribes to file claims for
repatriation, a novel idea to a series of historical problems non-recognized
tribes have had in California. The discussions evolved into what would
later be called Assembly Bill 978, which provided accountability in the
form of an assessed civil penalty not to exceed $20,000 per violation and
included non-recognized tribes to be eligible for repatriation. Former
Assemblyman now Senator Darrell Steinberg, “chair of the Select
Committee on Repatriation, initially got involved in this issue during the
46
Jim Adams, “California Assembly committee holds repatriation hearings at Barona.”
Indian Country Today, August 9, 2000.
47
James May, “New California repatriation law includes enforcement teeth,” Indian
Country Today, October 31, 2001.
30
controversy over the return of Ishi’s brain.”48 Being no stranger to
repatriation, Steinberg formulated the bill that would somewhat mirror
federal NAGPRA with the exception of an assessed civil penalty, the
inclusion of non-recognized tribes being eligible to file claims for
repatriation and the establishment of a Repatriation Oversight
Commission. The Repatriation Oversight Commission would function as
both mediator and attest which non-recognized California Tribes would be
eligible for repatriation. All agencies, museums and institutions that
receive state funding would be mandated to comply with Cal-NAGPRA,
similarly federally funded entities that must comply with federal
NAGPRA. For clarification, Federal NAGPRA has a Review Committee,
a federally appointed committee of tribal leaders, museum professionals,
and scientific experts, which “monitor and review the implementation of
the inventory and identification process and repatriation activities.” CalNAGPRA has a Repatriation Oversight Commission, a Governor and
State appointed commission of tribal leaders, museum professionals, and
University professors, who mediate disputes, make recommendations and
administer civil penalties among other duties. Cal-NAGPRA further
required a joint discussion between museum professionals, universities,
archaeologists, and California Indian leaders before it successfully passed
48
Diane Hatch-Avis, “AB 978: California’s New Repatriation Law.” Society for
California Archaeology Newsletter 35:3 (2001): 21.
31
the Assembly and the Senate and was signed into law by former Governor
Gray Davis in 2001. However, the Cal-NAGPRA law was never
appropriated funding and thus has not been implemented to this day.
32
Findings
California NAGPRA (Cal-NAGPRA) resembles NAGPRA with
two critical differences. It expands the scope of cultural affiliation to
encompass non-federally recognized tribes and assesses penalties for noncompliance up to $20,000 per violation. Any institution, such as museums,
public schools, and agencies that receive state funding, would be obligated
to comply with Cal-NAGPRA.
Since the 1960’s, laws have been enacted to protect the human
rights of Native people in California and throughout the United States.
Attention to these laws since-then has been communicated through
conferences, open dialogue meetings and mandated consultations
involving Native people and non-Native people attempting to reach an
understanding. Occasionally, there were protests and demonstrations that
reflected disagreements or awareness brought to particular laws. However
the need for communication in the past 17 years has not diminished today.
Several conferences I attended set the stage and helped me to
identify the preliminary problems with both NAGPRA and Cal-NAGPRA.
During my internship at California State Parks, Department of Parks &
Recreation, Division of Archeology, History, and Museums, I was able to
participate in tours of agency held collections, as well as assist with the
33
preparations for repatriation to a Tribe. I also conducted several interviews
with stakeholders to deepen my awareness of Cal-NAGPRA.
The first conference I attended was the “Tribal Archives, Libraries,
and Museums” conference held May 24-27, 2005 in Phoenix, Arizona.
The conference attracted many Native people from throughout the United
States and Canada to address current issues of archives, libraries and
museums from a tribal perspective. One of the key sessions I participated
in was a NAGPRA update by Dr. Sherry Hutt, National NAGPRA
Program Manager. Dr. Hutt is a retired judge, consultant, and professor
who has published countless articles regarding NAGPRA and Cultural
property. Her informational session was well attended and provided an
overview of NAGPRA, which touched on grant and training opportunities
for Tribes. At the close of the session, I had the opportunity to speak with
Dr. Hutt regarding non-recognized tribes and their struggle for repatriation
of their ancestors remains through a federal law that does not apply to
them. She noted that non-federally recognized tribes do have several
options for repatriation, which include approaching the NAGPRA Review
Committee which reviews claims by a non-recognized tribe on a case by
case basis, or the option of a non-recognized tribe working with a
neighboring federally recognized tribe that could file a claim on a non-
34
recognized tribes behalf.49 She spoke favorably of these options, however
I believe there are barriers to these approaches. Some non-recognized
tribes cannot financially support the transactions involved in bringing a
claim to the Review Committee, nor do some recognized tribes have a
relationship with their neighboring tribes.50 Also, in terms of discussions,
some NAGPRA holding museums and institutions do not consider
repatriation options to a non-recognized tribe although museums and
institutions have the ability “in the spirit of the law” to repatriate.
I was determined to investigate any cases involving repatriation to
a non-recognized tribe in California through NAGPRA. I located one case,
in 1995, the U.S. Army, Fort Hunter-Liggett, California, which
“recommended disposition to the Salinan Indian Tribal Council, a nonfederally recognized Indian group.”51 There is currently a second case
involving the Ohlone Tribe, a non-recognized tribe in the San Francisco
Bay Area. The case involves the disposition of culturally unidentifiable
human remains in the possession of the Alameda County Coroner and is
still under consideration by the NAGPRA Review Committee and the
49
These options are also expressed in “Repatriation Options Explored,” by Jim Largo,
Indian Country Today, May 29, 2006.
50
Based on various motivations, some recognized tribes would abstain from assisting a
non-recognized tribe because non-recognized tribes can be viewed as a threat. There are
also tribal politics, as well as a lack of unwillingness to collaborate.
51
Summary of Requests for Recommendations Regarding the Disposition of Culturally
Unidentifiable Human Remains (1994-2006), National Park Service.
35
State of California as of November 2006. The NAGPRA Review
Committee has the ability to recommended repatriation to a nonrecognized tribe, but again, the dispute would have to come before the
Committee. The Committee has been very successful in voicing
recommendations and has functioned as efficiently as possible in
interpreting the law. However, in reviewing further Review Committee
minutes, the NAGPRA law was clearly biased towards federally
recognized tribes and most minutes reveal the frustrations of museums in
complying with NAGPRA. Since NAGPRA’s inception, the issues that
have generated frustrations are the definition of “Indian Tribe,” the
disposition of culturally unidentifiable and unclaimed human remains,
non-recognized tribes, and Civil Penalties among others. If Cal-NAGPRA
were a functioning law, it would address these issues and compliment
NAGPRA rather than disenfranchise many of California’s tribes and leave
a clear path for museums to follow in complying. With California’s unique
history of being home to dozens of non-recognized tribes, NAGPRA is
weak and classifies a majority of non-recognized tribal human remains as
“culturally unidentifiable.” Culturally unidentifiable relates to remains that
cannot be culturally affiliated with a present-day ‘federally recognized’
Native American Group. Furthermore, Culturally unidentifiable also
includes remains that are considered “ancient remains” or remains that are
36
too old to be considered Native American according to archeologists, and
remains that are likely to be Native American but lack provenance or
knowledge of original burial location. Because of my own experience as a
California Indian, I am convinced that any non-recognized tribe in
California can identify the remains of their ancestors based on where the
remains were originally removed and where they were found. As Carole
Goldberg recounts in California Indian Participation in Repatriation, “A
Native American group does not need to be acknowledged or recognized
by the federal government to be a tribe. Federal recognition is merely an
affirmative act by the federal government to acknowledge its trust
responsibilities.”52 Dr. Hutt believes there are options for museums and
non-recognized tribes, but perhaps not in California and not through
NAGPRA.
The second conference I attended was “Shared Interpretations of
California History” held January 14-15, 2006 at the San Manuel
Community Center in San Bernardino, California. The San Manuel Band
of Mission Indians hosted the event on the reservation. The conference
focus was on “the weighing of evidence by federal and state institutions
when determining cultural affiliation for the purposes of NAGPRA and
52
Diana Drake Wilson, “Acknowledging the Repatriation of Claims of Unacknowledged
California Tribes,” American Indian Culture and Research Journal 19:4 (1997): 183.
37
other cultural resources laws.” The attendees came from different tribes in
California as well as state agencies, resulting in animated discussion of a
wide spectrum of ideas, suggestions, and problems with repatriation. The
most noteworthy discussions involved DNA testing as a scientific
response to determining California Indian descendancy, NAGPRA success
stories, flaws of the law when dealing with culturally unidentifiable
remains, and the lack of implementation of Cal-NAGPRA. The first panel
was “Evidence & Affiliation,” which included a representative of the
California Department of Parks & Recreation Committee on Repatriation,
the Cultural Resources Specialist/NAGPRA Coordinator for Santa Rosa
Rancheria, and a Professor and avid researcher of California Indian
language, culture, history and art. The discussion surrounded the issues of
cultural affiliation between a shared group or tribe that historically links
an identifiable earlier group (or tribe) to a present day tribe. NAGPRA law
conveys that museums must determine cultural affiliation for its applicable
collections. Cultural affiliation of objects to a present day tribe is based on
summary and inventory reports from museums. When museums identify
which tribe is culturally affiliated with objects, only then can a tribe file
claims for repatriation. Significant discussion relayed the importance of
collaborative efforts between museums and tribes to distinguish cultural
affiliation of collections. The second panel was “Consultation,” which
38
included representatives from the Native American Heritage Commission,
the Tongva Tribe, and an Anthropology Consultant. Discussed was the
importance of consultation with Native people in regards to laws such as
NAGPRA, SB18 and historic burials. A discussion arose which involved a
highly publicized construction project called Playa Vista in Southern
California. The Playa Vista development unearthed several hundred
remains of a non-recognized tribe, which led to the passage of Assembly
Bill 2641 involving the discovery of multiple Native remains. Playa Vista
was the hot topic for the panel and the attendees because it received wide
media coverage as well as sympathy and support from the public and the
Governor.
The third conference I attended was “Museums and Native
American Knowledge’s Symposium” held October 28-29, 2006 at Arizona
State University in Tempe, Arizona. The symposium concentrated on
tribal museum consultation models, interpretation and collaborations.
During a session break I had the opportunity of meeting Mr. Jim Enote,
Executive Director of the A:shiwi A:wan Museum and Heritage Center in
Zuni, New Mexico. We discussed the needs of tribal museums and
communities, which eventually led me to inquire about the topic of
NAGPRA. Mr. Enote believes that objects and human remains in
39
museums are disturbed. The disturbance includes spiritual disturbance
and physical contamination. It's questionable whether his tribe would
want to repatriate contaminated objects or human remains. Mr. Enote says,
“There are complex sets of issues and questions facing our leaders when it
comes to deciding how to deal with repatriation because more and more
private collectors and museums are considering returning objects for
moral or financial reasons. But where are we going to put these items?
Should they be reburied? Should they be preserved and if so isn't that a
foreign and unnatural process for our tribe? Once objects are buried and
sent on their path, no matter what that path may be, are we intervening in
the path by repatriating? Should items be repatriated so that future
generations can see what our lives were like long ago? Or should we
simply make the extra effort to teach what life was like long ago?” Mr.
Enote states that obviously he alone nor the museum staff can make these
decisions, “this discussion could take years to resolve.” In the meantime
Mr. Enote and his staff are studying how well electronic or digital
collections of Zuni objects may suffice as a replacement for dealing with
the actual objects. Our conversation introduced an important concept I had
not previously considered to be related to human remains. In the past,
some collectors and archaeologists treated basketry, regalia, feathers, etc.
with various substances to preserve objects from being deteriorated by
40
pests. The solution was later deemed toxic. Through NAGPRA, remains
as well as other items repatriated may contain toxic residue, which make
reburial or integration into tribal collections risky for fear of spreading
contamination. From my understanding, the unearthing of human remains
disturbs the site where they were laid to rest. The spiritual contamination
of the remains relate to the unceremonious removal, transportation and
storage of the remains, and the toxic contamination of the remains the
tribe would have to confront.
During my internship with the California Department of Parks and
Recreation, State Parks, I assisted with preparing objects and remains for
repatriation to a California Tribe. I have chosen to respect the tribe who
was involved in the repatriation and not disclose names, locations, and
other personal information. The preparation process was physically and
mentally challenging. Located behind security doors is a large NAGPRA
facility filled with hundreds of boxes labeled with trinomial markings and
plastic slit coverings. The heavier and odd shaped items were not in boxes
but in a central location separated by platform pallets. Smaller and
numerous items were in trays. Staff and I began the repatriation process by
gathering NAGPRA reports generated from databases indicating location
and accession numbers of items to be repatriated. The report results had to
41
match with the Federal Register notices indicating specific numbers of
items, which then had to be physically accounted. We each were assigned
lists of items to locate. Once an item was located, it was removed and
placed in a designated area. These items were the belongings that were
buried with people hundreds of years ago, and the human remains are the
people who are still alive, spiritually. Repatriation is a process by which
the people and their belongings journey home. This particular repatriation
process that took two years in claims, notices and paperwork yet spanned
hundreds of years for these ancestors to finally rest. The day before actual
repatriation, there were very few items that could not be located, and
several extra that were included but not indicated in the repatriation. There
was also controversy surrounding a specific set of remains and from my
understanding, the remains in question were considered “ancient remains”
that were not deemed to be affiliated with a modern day tribe according to
another department within the agency. The appropriate staff person chose
to act “in the spirit of the law” and repatriated the ancient remains despite
resistance from others. I believe that the staff person’s act is to be
commended.
During the course of my internship with State Parks, I also assisted
and participated with tours of a storage facility and a NAGPRA holding
facility. As in the above example, I have chosen to respect the tribal
42
members who visited the facility and not disclose names, locations, and
other personal information. On one particular tour of both facilities by a
California Tribe, I experienced first hand interactions between the Tribal
people and the agency’s collection, which included a vast number of
baskets, a canoe, and ancestral remains. A few of the Tribal members
easily identified the features of the baskets. Basket design usually signifies
its tribe, area animals, and sometimes its maker. The material a basket was
made from shows what was available in a particular area where the basket
was made. The function of a basket is based on its shape, and range in
uses from storage, transportation and cooking, to carrying infants and
fishing. Basket after basket, its secrets were told to those who knew less.
Unfortunately staff was not prepared to take notes of the vital information.
We then visited the canoe, which was made by one of the visitor’s
relatives. The beautifully dug out canoe was said to have held many
stories of its journeys. The descendant of the canoe maker said that canoes
such as the one in the collection are still made and the traditional
knowledge of how to make it exist, yet the material is sometimes difficult
locate. The final stop was the NAGPRA facility. Upon entering the
facility, staff identified which containers held the remains of the visiting
Tribe’s ancestors. As staff and Tribal members conversed, a woman
picked up one of the containers and asked staff if she could take it back
43
home. There was a moment of silence. Staff then immediately stated that
claims must be filed, and procedures had to be followed before the tribe
could take the remains home. Files were then presented to the visitors,
indicating which items the tribes could claim. Shortly thereafter the tour
concluded.
Interviews
The first interview I conducted was on January 10, 2007 with Mr.
Larry Myers, Executive Secretary for the Native American Heritage
Commission and California NAGPRA Oversight Commission member.
Mr. Myers believes that Cal-NAGPRA, once funded, would experience
the same problems as federal NAGPRA, such as insufficient number of
staff, overwhelming mediation claims, and ensuring compliance. The
greatest concern Mr. Myers shared was the lack of attention to
understanding that in cases where both federal and state laws address the
same issue, federal law preempts state law. In the event Cal-NAGPRA
was implemented, federal NAGPRA would take precedence, resulting in
conflicting information, compliances and fines. Mr. Myers has been at the
forefront of pre-NAGPRA since the inception of the Native American
Heritage Commission (NAHC) through Assembly Bill 4239 in 1976,
which designated the NAHC as “the primary government agency
responsible for identifying and cataloging Native American cultural
44
resources,” such as sacred sites. In 1982, the responsibilities of the NAHC
encompassed the identification of a Most Likely Descendant (MLD)
database to be utilized when Native human remains were inadvertently
discovered. The NAHC has extensive relationships with all tribes as well
as experience in working with the public at large in relation to any Native
American issues in California. I believe that during the passage of CalNAGPRA the likely choice for defining California Tribes would have
been through the NAHC, but instead the government chose to create
another level of bureaucracy, the Oversight Commission, to mediate
claims and define who constitutes a California Indian Tribe. Mr. Myers
was appointed to the Cal-NAGPRA Oversight Commission by thenGovernor Gray Davis and has held that position since 2001. As a member
of both the NAHC and the Oversight Commission, Mr. Myers feels that
Cal-NAGPRA is a law, which should be implemented and has used his
position to bring attention to the unimplemented law.
The second interview I conducted was on January 24, 2007 with
Ms. Paulette Hennum, Museum Curator II/NAGPRA Coordinator for the
California Department of Parks and Recreation. In our discussion, Ms.
Hennum relayed legal and ethical issues museums face when dealing with
NAGPRA. Museums must comply with NAGPRA, by submitting required
documentation; museums are fulfilling their legal obligations to the law.
45
However, museums must respond to NAGPRA as an ethical decision to
return items to tribes. Historically, museums and other institutions did not
voluntarily return such items as human remains, and therefore a law had to
be put in place to allow repatriation. Ms. Hennum stated that one of the
biggest issues of NAGPRA is that “NAGPRA defines who can legally file
a claim, museums need to push the barrier.” She believes that the ethical
and legal aspects of repatriation should be considered “in the spirit of the
law.”
On March 6, 2007, I had a chance to speak with Dr. Steven Karr,
Curator, Southwest Museum of the American Indian & Autry National
Center in Los Angeles at lunch following a tour of a storage facility. Dr.
Karr and an associate were visiting a basket facility for an upcoming
exhibition at the Southwest Museum. In his experience, he believes that
consultation is the best practice to establish communication with tribes and
develop relationships that would promote the understanding of museums
collections when presented to the public. In fact, the associate that
accompanied him during the tour was a Native person from Northern
California who assisted Dr. Karr in evaluating potential baskets to be used
for the upcoming exhibition. In my opinion, Dr. Karr exemplified the
results of NAGPRA, which was to establish dialogue between museums
46
and Native people, except Dr. Karr took it a step further and has involved
Native people in his work at the museum.
The fourth interview I conducted was on March 7, 2007 with Mr.
Lalo Franco, Cultural Resources Specialist/NAGPRA Coordinator for
Santa Rosa Rancheria and member of the Wukchumni Tribe, a nonrecognized tribe in the Central Valley of California. In our discussion, Mr.
Franco had several recommendations regarding NAGPRA advisory boards
for various museums and institutions. An example of advisory boards
cited by Mr. Franco was the University of California Office of the
President-University Advisory Group on Cultural Affiliation and
Repatriation of Human Remains and Cultural Items (also known as
“UCOP NAGPRA Advisory Group” or UCOP) which is “composed of
one University faculty member delegated principal responsibility for
compliance with this policy from each of those campuses that house
collections covered by NAGPRA, and two Native American members to
be selected by the President or designee from among nominees submitted
by each campus.” The committee usually consults, reviews claims from
Tribes and confirms cultural affiliation for repatriation. Advisory groups
also determine who will be a member of their board, which may or may
not require a Native person. On the positive side, the Advisory Group does
have two Native American board positions, currently one seat is filled and
47
the other is vacant. Yet, how these members were selected to serve on the
committee is unclear. The definition and requirements for the term Native
American is not clearly defined in UCOP policy and procedures, which
raises several questions such as, whether or not the member is a California
Indian person and is the Native American member a recognized, elected or
appointed member of the California Indian community. Mr. Franco shares
the same concerns as Ms. Hennum in that NAGPRA and Cal-NAGPRA
have various definitions for “Indian.” Mr. Franco expressed that the major
problems with NAGPRA is the issue of “culturally unidentifiable”
remains. In our discussion regarding the state of the law, there will be
legislation in the future concerning solutions for culturally unidentifiable
remains. Another major issue Mr. Franco raised was that he feels
California Indian people are still dealing with historically unchanged
mentalities. There are still many archaeologists that maintain the belief
that Native American remains are still specimens to be studied, researched
and used as educational tools in the classroom. The struggle for
repatriation in California will remain a challenge for as long as Native
remains are held captive by museums.
On May 17, 2007 I conducted a final interview with Dr. John
Pryor, Professor of Archeology at California State University, Fresno.
While speaking with Dr. Pryor, several key issues arose. First, Dr. Pryor
48
told me that in the archeology field, culturally unidentifiable remains that
have no known provenance are useless to science and have no value. In a
case where DNA is extracted from the remains or a non-invasive analysis
of remains is conducted, scientific conclusions could be drawn indicating
race and origin, which also poses several problems, including who
controls the past and dictates through scientific methodologies—what and
who people are. Take the much publicized case of Kennewick Man. His
origins were heavily debated. Several experts analyzed the remains and
concluded that he was of European decent or perhaps South Asian decent,
but the Umatilla tribe of Oregon believed he was an ancestor of their tribe
and thus should be reburied and not removed for scientific research. A
court ruling determined that there was no cultural link between the
remains and the Umatilla tribe. In my opinion, I believe the tribe was
denied repatriation because the remains of Kennewick Man were
considered ancient and of scientific value. Native Americans prior to
8,000 years ago were not really considered Native American; the belief
among certain scientific communities is that the new world was not yet
‘settled’ by Native people. Dr. Pryor believes the ruling on Kennewick
Man took the archeology field three steps back in regards to the advances
in communication in recent times between Native people and
archeologists. The ruling was a blow to Native people, and revealed a
49
critical flaw in NAGPRA that prompted an amendment defining “Native
American” which is still under consideration in the Senate Indian Affairs
committee.53 The second key issue Dr. Pryor raised was that culturally
unidentifiable remains pose a problem if they are affiliated with a nonrecognized tribe. If a non-recognized tribe were to file a claim for
repatriation either through NAGPRA or Cal-NAGPRA, the tribe lacks a
secured land base, which places the remains in danger of inadvertently
being resurfaced or re-found. The third issue and most critical observation
during our interview was Dr. Pryor’s emphasis on the importance of
partnerships between archeologists and Native American tribes. The
adversity of archaeology forefathers was not productive, nor respectful
and the field has since changed to include cultural sensitivity. Dr. Pryor
believes that Native American storytelling and oral traditions lend to
important scholarship and that both natives and archeologists could benefit
in a mutual friendship. Dr. Pryor, an avid promoter of cultural sensitivity
in archeology, feels that collaboration brings different perspectives into
the field and adds a richer understanding and deeper sense of compassion
in archeology.
53
The amendment to NAGPRA is part of a larger bill called the “Native American
Omnibus Act of 2005,” (Senate Bill 536 of the 109th Congress), which attempts to make
technical corrections to various laws involving Native Americans.
50
The findings I gathered through conferences, first-hand
experiences and interviews solidified the idea that, in the words of Diana
Drake Wilson. “It would be hard to find a situation in which the benefits
of NAGPRA are more unfairly denied to Indian people than they are in
California.”54 Furthermore, challenges by the Native communities have
held museums accountable for being the caretakers of Native collections,
the holders of remains, and the interpreters Native history that has not
always been accurate.
54
Diana Drake Wilson, “California Indian Participation in Repatriation: Working Toward
Recognition.” American Indian Culture and Research Journal 21:3 (1997): 191.
51
Conclusions and Recommendations
Museums and tribal communities are both struggling to implement
NAGPRA, based on their interpretation of the law and intent of the “spirit
of the law.” NAGPRA passed over 17 years ago, yet some of the issues
that led to the passage of NAGPRA remain unresolved. As Marie C.
Malero points out in A Legal Primer on Managing Museum Collections,
“We see that the law is a clumsy tool to resolve conflicts based on cultural
difference” yet “NAGPRA does not give wholesale answers to disputes.
Instead, it sets forth rules, definitions, and procedures that are to be used in
resolving problems relating to Native American human remains and
cultural materials.”55 NAGPRA is still a young law with a few flaws. With
time it will be improved, considering the shift in ideology from denying to
respecting Native American rights has only occurred within the last 30
years.
I believe great strides have been made by museums to understand
and comply with the law, yet the law itself has several lingering issues that
impact the further implementation of NAGPRA. These issues include
various undetermined regulations of the law, external problems affecting
NAGPRA, and offer solutions to these problems.
55
Marie C. Malaro, A Legal Primer on Managing Museum Collections (Smithsonian
Books, 1998), 114.
52
The first issue is the problem of culturally unidentifiable remains.
The disposition of culturally unidentifiable remains by museums, under
NAGPRA has yet to be promulgated. Since the fourth meeting of the
Review Committee, culturally unidentifiable remains have consistently
been an unsolved matter affecting every state, particularly California who
has the highest amount of culturally unidentified remains in the United
States.56 Tribes and museums are at a loss as to how to deal with these
remains. As mentioned in the findings section of my thesis, culturally
unidentifiable remains relate to remains that cannot be culturally affiliated
with a present-day ‘federally recognized’ Native American Group.
Furthermore, culturally unidentifiable also includes remains that are
considered “ancient remains” or remains that are too old to be considered
Native American according to archeologists, and remains that are likely to
be Native American but lack provenance or knowledge of original burial
location. Not surprisingly, culturally unidentifiable remains for the most
part are associated with non-recognized tribes. Thus NAGPRA only
applies on a case-by-case basis. In the case of ancient remains, as
mentioned in the findings section, Kennewick Man was unearthed in
Washington State in 1996 and his remains were believed to be well over
9,000 years old. Massive debate ensued around the decision whether he
56
For complete listing of culturally unidentifiable remains in each state, see Appendix F.
53
was Native American or not. Scientists argued that by observational
analysis of his remains that he is culturally unassociated with a present day
native tribe due to the question that Native existence may not have been
possible 9,000 years ago and therefore Kennewick Man was not native but
perhaps European or Asian. Clearly, the issues of unidentifiable human
remains and culturally unassociated human remains are still unclear.
I recommend a clarification of the definition of Native American
remains. NAGPRA should be amended include the Native American
Omnibus Act of 2005 (Senate Bill 536 of the 109th Congress), which
changes the definition of “Native American” from “‘Native American’
means of, or relating to, a tribe, people, or culture that is indigenous to the
United States” to “‘Native American’ means of, or relating to, a tribe,
people, or culture that is or was indigenous to any geographic area that is
now located within the boundaries of the United States,” become its own
bill and reintroduced to congress.
I also recommend that NAGPRA be amended to declare that
culturally unidentifiable remains that are culturally associated with a nonrecognized tribe come under the jurisdiction of individual States that have
the resource capacity or existing state NAGPRA laws to offer repatriation.
The amendment would absolve NAGPRA from the painstaking process of
handling claims by non-recognized tribes on a case-by-case basis and
54
empower states that have existing NAGPRA laws. Federal laws regarding
Native Americans have given jurisdiction to states in the past, such as
Public Law 83-280 signed in 1953, which transferred jurisdiction from the
federal government to certain States (including California), when issues of
crimes arise in Indian country.57
A second issue is the problem of who constitutes a California
Indian Tribe in regards to Cal-NAGPRA. The Cal-NAGPRA Repatriation
Oversight Commission was created in part to define a “California Indian
Tribe” which not only complicates the repatriation process for the very
people it was intended to help—non-recognized tribes, but adds another
level of bureaucracy. To abate the issue and establish uniformity with
other California Native laws that affect both federally and non-federally
recognized tribes, the law should define “Indian Tribe” as Civil Code
815.3 defines it, “a federally recognized California Native American tribe
or a non-federally recognized California Native American tribe.”58
California desperately lacks a consistent definition of a ‘California Tribe’
within its own State laws.
I recommend all State government and laws to explicitly include
Civil Code 815.3 as the explicit definition of “Indian Tribe,” with the
57
Indian Country is defined as a reservation or Rancheria and land allotments.
The definition is also utilized by Senate Bill 18 signed in 2005, which requires cities
and counties to consult with California Native American Tribes regarding general plans.
58
55
assistance of the Native American Heritage Commission (NAHC) for
mediation and reference for all Native communities both recognized and
non-recognized. I also recommend that Cal-NAGPRA be amended to
include in Article 2, section 8012.2(B)(vi), “Listed with the NAHC.”
A third issue involves the complexities of implementing such an
extensive law that calls for close collaboration between many parties, none
of whom have adequate resources. The implementation of NAGPRA by
the federal NAGPRA agency and museums both share similar problems,
such as the lack of adequate financial support to function and hire more
staff and the overwhelming amount of claims that must be reviewed and
confirmed. Tribes also share the burden in repatriation costs, such as
hiring staff to research the location of remains, and to obtain tribal
consensus regarding remains once they are repatriated, which could vary
from tribe to tribe. Also the issue of tensions between archeological
authority and Indian communities over the repatriation remains. These
tensions are exemplified in burdens of proof and the use of remains for
scientific purposes. As in the case of proof, museums must show the
burden of proof of legal ownership over items, and tribes must also prove
that they are in fact the descendents and rightful proprietors of items that
are claimed for repatriation. The issue would apply more so to items of
cultural patrimony rather then human remains. In the case of human
56
remains, some institutions claim that they are the rightful owner of
remains, and use them as scientific experiments and research. I do not
believe the concept that human remains are specimens, and if in fact they
are, scientists should use the remains of their own ancestors for such
experiments and research. As Chrisanne Beckner pointed out in 2006,
“The federal NAGPRA law was never meant to return all items to
American Indians. NAGPRA was really designed to compel agencies and
museums to open a discussion with American Indian groups and to take a
look at their collections and determine which items were affiliated with
which tribes.”59 As part of this open discussion, I believe that the museum
community should be required to establish a relationship with all tribes
and rise above the politics of tribal status. Furthermore, I believe it is the
moral and ethic duty of museums to respond to tribes in a deferential
manner.
I recommend “in the spirit of the NAGPRA law,” collaborative
efforts to repatriate ancestral remains and other items must remain the
focus of museums, archeologists and tribal communities. The law clearly
gives Tribes the right to know where the remains of their ancestors are
located and by process, have the remains repatriated. The law also
mandates consultation with federally funded agencies, institutions,
59
Chrisanne Beckner, “Point of no return.” Sacramento News and Review, March 2,
2006, News & Features section.
57
universities and museums, which create their own repatriation committees
to deal exclusively with NAGPRA.
I also recommend that Tribes take action against the committees
that do not provide at least one-third of the positions or seats exclusively
for Native Americans on committees that deal with NAGPRA. These
positions or seats must be available to Native people who are recognized,
elected or appointed by their local Native community. The action could be
in the form of a facilitated open dialogue meeting between individual
museum or institution NAGPRA committees and the local Tribal
community regarding the lack of Native American involvement and
approval. Further, Tribes could also restrict monetary support to
NAGPRA committee institutions or any of its subsidiaries, petition local
museums and NAGPRA advisory boards to grant local Tribes with
position on their respective board, launch press releases and media
attended demonstrations showing the committee’s unfairness, solicit
lawmakers to amend both NAGPRA and Cal-NAGPRA to include that all
advisory committees be required to include Native representation on all
NAGPRA related boards that deal exclusively with repatriation.
Finally, upon the funding of Cal-NAGPRA, my fourth
recommendation as advocated by Lalo Franco, is that the Oversight
Commission be encouraged to conduct workshops informing museums
58
regarding the Cal-NAGPRA law, its implications, requirements and
promote the “spirit of the law” which is to return ancestral remains and
other items to California Tribes. Workshop attendance would be required
for all museums that have Native collections. The workshop would also
establish a relationship and open dialogue between Native people and
museums, which was one of the original intents of the NAGPRA law. The
workshops would be conducted throughout the state at various locations.
The first three workshops would take place within the first year of CalNAGPRA implementation, and thereafter upon request or every year. The
first workshop would be informational and composed of introductions as
well as Cal-NAGPRA law overview, in an open forum setting. The
attendees would have the opportunity to ask questions of the Oversight
Commission and of each other. The goal of the first workshop is to
familiarize museums with the local native community. The second
workshop would be led and hosted by the local museums. The museums
are encouraged to bring information regarding their collections that
include items from the local native community and discuss the exhibitions
at local museums. Museums are also encouraged to discuss their
procedures in implementing Cal-NAGPRA. The goal of the second
workshop is to familiarize native people with the local museums. The third
workshop would be led and hosted by the local native community. Tribal
59
representatives would be encouraged to discuss the history of the area; any
more information the tribes would like to share would be at their
discretion. The goal of the third workshop would be to familiarize local
museum professionals of the native community. I believe the first three
workshops would be a starting platform to encourage open dialogue and to
further existing relationships between tribes and museums. The most
important goal of the workshops is preparing museums and tribes for
consultation, determining how museums will comply with the
implementation of Cal-NAGPRA and their interpretation of the law. After
the first three workshops, the Oversight Commission will oversee further
workshops regarding the implementation of Cal-NAGPRA on an as
needed basis and encourage attendees to utilize the mandated “website for
communications between tribes and museums and agencies.”
I firmly believe “in the spirit of NAGPRA” that we have reached a
momentous time of human understanding for each other. We are at the
beginning of journey we have never experienced. Only time can improve
the rights of everyone, replace past wrongs, and help us change for the
best as we move forward. One cannot ignore the relationship that any
people has to their ancestors, or the value of fundamental human rights,
and dignity, As James Riding In states:
60
When anyone denies us our fundamental human rights, we
cannot sit idly by and wait for America to reform itself. It
will never happen. We have a duty not only to ourselves
but also to our relatives, our unborn generations, and our
ancestors to act. Concerning repatriation, we had no choice
but to work for retrieval of our ancestral remains for proper
reburial and for legislation that provided penalties for those
who disrupted the graves of our relatives.60
60
James Riding In, “Repatriation: A Pawnee’s Perspective,” in Repatriation Reader:
Who Owns American Indian Remains?, ed. Devon A. Mihesuah, (University of Nebraska
Press, 2000), 109.
61
Product Description
In the process of researching this project in the span of several
months, I did not find any newly released information, with the exception
of a final ruling on the future applicability of NAGPRA.
The following three resources that would have been helpful in
completing my research:
A timeline of critical laws affecting only California Indians from
Mexican rule to the present is needed. Historically, there have been laws
affecting California Indians directly and indirectly and range in topic from
religion to vagrancy. The timeline would be color coded according to
subject heading and provide links to actual text of law and informational
links. I believe this type of resource would be important because the focus
would be California Indians, not Native Americans in general nor Native
American laws that affected all Native people. There are a variety of
timelines that exist on the internet, the best being Senator Barbara Boxer’s
California Indian Heritage website (http://boxer.senate.gov/nah/
timeline.cfm), however it does not include all federal and state laws that
affected California Indians.
A database of museums with NAGPRA objects pertaining to
California Indians is needed. The database should include all museums
with their contact information, the NAGPRA object(s) with listed cultural
62
affiliation (recognized and non-recognized tribes), site name, geographical
location, and historic territory. What is currently available is through the
National Park Service/National NAGPRA website which has several
databases that can be queried for the state of California, which include
Notices of Intent to Repatriate database (http://www.cr.nps.gov/nagpra/
fed_notices/nagpradir/index2.htm), Notice of Completion of Inventory
database (http://www.cr.nps.gov/nagpra/fed_notices/nagpradir/index.htm),
and Culturally Unidentifiable database (http://64.241.25.6/CUI/
index.cfm), however these are not detailed and contain partial information.
A list of all non-recognized tribes in California is needed, which
includes the tribes’ current status in the federal recognition process, if
applicable, and geographic location. Currently, a list exists with the
Bureau of Indian Affairs, under the Office of Federal Acknowledgement,
Assistant Secretary, Department of the Interior, which includes tribal
name, contact information, and current status in federal recognition
process.61 This list does not contain tribal information for tribes that have
not filed formal documentation for federal recognition. There is a partial
list of non-recognized tribes that the Native American Heritage
Commission maintains, but may not include all tribes. To my knowledge,
what does not exist is a comprehensive listing of all non-recognized tribes.
61
To review list, see Appendix E.
63
Product
WORKSHOP GUIDELINE
for
California NAGPRA
By Cristina Gonzales-Moreno
[email protected]
Purpose of Cal-NAGPRA workshops:
?? Provide museums, agencies, and tribes with overview of the law.
?? Assist museums, agencies and tribes in understanding, interpreting,
and complying with the law.
?? Familiarize museums and agencies with tribes in preparation for
consultation process.
Who does Cal-NAGPRA effect?
?? Any agency or museum that has possession or control over
collections of California Native American human remains,
associated funerary objects, and cultural items.
?? Federally recognized tribes.
?? Non-federally recognized tribes who; are indigenous to the
territory that is now known as the State of California; listed with
the Bureau of Indian Affairs Branch of Acknowledgement and
Research petitioner list; and is determined by the Repatriation
Oversight Commission to be a tribe eligible to file a claim for
repatriation.
Who should attend Cal-NAGPRA workshops?
?? Museum and agency staff, especially Collections Managers,
Curators, and Registrars.
?? Museum and agency NAGPRA coordinators.
?? Museum and agency attorneys.
?? Museum and agency archeologists and/or anthropologists.
?? Tribal leaders, elders, spiritual leaders, and interested members.
?? Tribal NAGPRA coordinators and Cultural Resources staff.
64
Cal-NAGPRA overview basics:
?? Any museum or agency receiving state funding must comply.
?? Museums and agencies must complete inventories and summaries
by a certain date.
?? Federally and non-federally recognized tribes may file a claim for
repatriation.
?? A Repatriation Oversight Commission will be established.
?? A civil penalty not to exceed $20,000 per violation will be assessed
in the case of non-compliance.
Museum and agency checklist:
?? Inventory: Any agency or museum that has possession or control
over collections of California Native American human remains and
associated funerary objects shall complete an inventory of all these
remains and associated funerary objects and, to the extent possible
based on all information possessed by the agency or museum, do
all of the following:
o Identify the geographical locations, state cultural affiliation,
and the circumstances surrounding their acquisition.
o List in the inventory the human remains and associated
funerary objects that are clearly identifiable as to state
cultural affiliation with California Indian tribes. These
items shall be listed first in order to expedite the
repatriation of these items.
o List the human remains and associated funerary objects that
are not clearly identifiable by cultural affiliation but that,
given the totality of circumstances surrounding their
acquisition and characteristics are determined by a
reasonable belief to be human remains and associated
funerary objects with a state cultural affiliation with one or
more California Indian tribes.
o Consult with California Indian tribes believed by the
agency or museum to be affiliated with the items, during
the compilation of the inventory as part of the
determination of affiliation. If the agency or museum
cannot determine which California Indian tribes are
believed to be affiliated with the items, then tribes that may
be affiliated with the items shall be consulted during the
compilation of the inventory.
65
?? Summary: Any agency or museum that has possession or control
over collections of California Native American unassociated
funerary objects, sacred objects, or objects of cultural patrimony
shall provide a written summary of the objects based upon
available information held by the agency or museum. The
summary shall describe the scope of the collection, kinds of
objects included, reference to geographical location, means and
period of acquisition, and state cultural affiliation, where readily
ascertainable. The summary shall be in lieu of an object-by-object
inventory. Each agency or museum, following preparation of a
summary pursuant to this subdivision, shall consult with California
Indian tribes and tribally authorized government officials and
traditional religious leaders.
?? Each agency and museum shall complete the inventories and
summaries required by _________________ (insert date), or
within one year of the date on which the commission issues the list
of California Indian tribes [authorized to file a claim for
repatriation].
?? Within 90 days of completing the inventory and summary
specified, the agency or museum shall provide a copy of the
inventory and summary to the commission. The commission shall,
in turn, publish notices of completion of summaries and
inventories on its Web site for 30 days, and make the inventory
and summary available to any requesting tribe or state affiliated
tribe.
?? Following completion of the initial inventories and summaries
specified, each agency or museum shall update its inventories and
summaries whenever the agency or museum receives possession or
control of human remains or cultural items that were not included
in the initial inventories and summaries.
Contact Information:
Cal-NAGPRA website
(website to be established)
Repatriation Oversight Commission
Commission Chairperson
(address, phone number, email address to be established)
66
Tribal Representatives/Contacts in your museum/agency area:
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
As a follow-up to workshop, the next meeting will be with:
______________________________ on ____________________
at ___________________________________________________.
67
Glossary of Terms
California NAGPRA: Also known as Cal-NAGPRA, California Native
American Graves Protection and Repatriation Act, Assembly Bill 978,
signed into law on October 12, 2001 by former Governor Gray Davis.
California NAGPRA Repatriation Oversight Commission: As defined by
Cal-NAGPRA an oversight commission established pursuant to CalNAGPRA. The Repatriation Oversight Commission has authority to order
repatriation, establish mediation procedures, impose penalties, and
determine tribal eligibility for repatriation among others.
Consultation: A process conducted in accordance with 43 CFR 10.5, 10.8
(a), and 10.9 (b), as defined as a time and place for meetings or
consultation to further consider the intentional excavation or inadvertent
discovery, the Federal agency’s proposed treatment of the human remains,
funerary objects, sacred objects, or objects of cultural patrimony that may
be excavated, and the proposed disposition of any intentionally excavated
or inadvertently discovered human remains, funerary objects, sacred
objects, or objects of cultural patrimony.
Cultural Affiliation: As defined by NAGPRA as a relationship of shared
group identity, which can be reasonably traced historically or
prehistorically between a present day Indian tribe or Native Hawaiian
organization and an identifiable earlier group.
Federally Recognized Tribe: Defined by Code of Federal Regulations,
Title 25 Indians, Part 83 § 83.1 Definitions, as “Indian tribe,” also referred
to as “tribe” means any Indian group within the continental United States
that the Secretary of Interior acknowledges to be an Indian tribe.
Indian tribe: As defined by NAGPRA as any tribe, band, nation, or other
organized group or community of Indians, including any Alaska Native
village, which is recognized as eligible for the special programs and
services provided by the United States to Indians because of their status as
Indians.
As defined by Cal-NAGPRA, as any tribe located in California to which
any of the following applies: (1) It meets the definition of Indian tribe
under the federal Native American Graves Protection and Repatriation
Act, (2) It is not recognized by the federal government, but is indigenous
68
to the territory that is now known as the State of California, and both of
the following apply: (A) It is listed in the Bureau of Indian Affairs Branch
of Acknowledgement and Research petitioner list pursuant to Section 82.1
of Title 25 of the Federal Code of Regulations. (B) It is determined by the
commission to be a tribe that is eligible to participate in the repatriation
process set forth in this chapter. The commission shall publish a document
that lists the California tribes meeting these criteria, as well as authorized
representatives to act on behalf of the tribe in the consultations required
under paragraph (4) of subdivision (a) of Section 8013 and in matters
pertaining to repatriation under this chapter.
As defined by California Civil Code 815.3, as A federally recognized
California Native American tribe or a non-federally recognized California
Native American tribe that is on the contact list maintained by the Native
American Heritage Commission to protect a California Native American
prehistoric, archaeological, cultural, spiritual, or ceremonial place.
NAGPRA: Native American Graves Protection and Repatriation Act,
Public Law 101-601, 25 U.S.C. § 3001 et seq. signed into law on
November 16, 1990 by former President George Bush
NAGPRA Repatriation Committee: As defined by National NAGPRA an
advisory committee established pursuant to NAGPRA. The Review
Committee is subject to the Federal Advisory Committee Act, and has
authority to monitor and review the implementation of the inventory and
identification process and repatriation activities under NAGPRA. The
National NAGPRA program provides staff support to the Review
Committee.
Non-recognized or Non-Federally Recognized Tribe: Defined by Code of
Federal Regulations, Title 25 Indians, Part 83 § 83.1 Definitions, as an
“Indian group” or “group” means any Indian aggregation within the
continental United States that the Secretary of Interior does not
acknowledge to be an Indian Tribe.
Repatriation: As defined by NAGPRA, as the transfer of physical custody
of and legal interest in Native American cultural items to lineal
descendants, culturally affiliated Indian tribes, and Native Hawaiian
organizations.
69
Bibliography
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Beckner, Chrisanne. “Point of no return.” Sacramento News and Review,
March 2, 2006, News & Features section.
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decision on Indian remains is victory for University of California.
Native Americans contend they are better able to link the bones with
descendents,” Los Angeles Times, September 27, 1990.
Bower, Bruce. “Ishi’s Long Road Home.” Science News, 157:2 (January
8, 2000): 24-25.
Crockrell, Cathy. “The 'soul-satisfying' work of repatriation.” UC Berkeley
News,November 3, 2005.
Curtius, Mary. “Indian remains are bones of contention at Berkeley.” Los
Angeles Times, April 27, 1998.
Deloria, Vine, Jr. God is Red: A Native View of Religion. Fulcrum
Publishing, 1994.
Echo-Hawk, Roger. Keepers of Culture. Denver Art Museum, 2002.
Echo-Hawk, Roger C. and Walter R., Battlefields and Burial Grounds:
The Indian Struggle to Protect Ancestral Graves in the United States.
Lerner Publishing Group, 1994.
Foster, Daniel G. and John Betts. “History of the CDF Archaeology
Program 1970-2004.”
Goldberg, Carole. “Acknowledging the Repatriation of Claims of
Unacknowledged California Tribes.” American Indian Culture and
Research Journal 19:4 (1997).
Guida, Marilyn. “Museums and California Indians: Contemporary Issues.”
American Indian Culture and Research Journal 21:3 (1997): 163-181.
70
Gulliford, Andrew. “Bones of Contention: The Repatriation of Native
American Human Remains.” The Public Historian, 18:4 (Fall
1996):119-143.
Gutsche Jr., Robert. “Museum collections shrink as Tribes reclaim
artifacts.” The Washington Post, March 9, 2006.
Hatch-Avis, Diane. “AB 978: California’s New Repatriation Law.”
Society for California Archaeology Newsletter 35:3 (2001): 1, 21-27.
Heizer, Robert F. and Alan J. Almquest. The Other Californians:
Prejudice and Discrimination under Spain, Mexico and the United
States to 1920.” University of California Press, Berkeley, 1971.
Johnston-Dodds, Kimberly. “Early California Laws and Policies Related
to California Indians.” California Research Bureau, Prepared at the
request of Senator John L. Burton, President pro Tempore, September
2002.
Largo, Jim. “Repatriation options explored.” Indian Country Today, May
29, 2006.
Lightfoot, Kent G. “Archaeology and Indians: Thawing an Icy
Relationship.” News from Native California, 19:1 (2005): 37-39.
Locke, Michelle. “Ishi comes home, but most other Native remains stay on
shelves.” Berkeley Daily Planet. August 26, 2000.
Malaro, Marie C., A Legal Primer on Managing Museum Collections.
Smithsonian Books, 1998.
May, James. “New California repatriation law includes enforcement
teeth.” Indian Country Today. October 31, 2001.
Mihesuah, Devon A, editor. Repatriation Reader, Who Owns American
Indian Remains? University of Nebraska Press, 2000.
Miller, John J. “Bones of Contention.” National Review, April 14, 2005.
Mulcahy, Susan. “Warhol and the war god.” http://www.Salon.com.
February 22, 2007.
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National Park Service, Summary of Requests for Recommendations
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Palmquist, Matt. “Poisoned Gods.” SF Weekely, September 4, 2002.
Price III, H. Marcus. Disputing the Dead, U.S. Laws on Aboriginal
Remains and GraveGoods. University of Missouri Press, 1991.
Raymond, Chris. “Some Scholars Upset by Stanford’s Decision to Return
American Indian Remains for Re-Burial by Tribe.” The Chronicle of
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McNaughton and Gunn, Inc., 1998.
Vincent, Steven. “Grave injustice: federal laws about burial remains put
politics before science.” Reason, July 2004.
Welsh, Elizabeth. “A New Era in Museum-Native American Relations.”
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Wilson, Diana Drake. “California Indian Participation in Repatriation:
Working Toward Recognition.” American Indian Culture and
Research Journal 21:3 (1997).
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Electronic Bibliography
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University of California. “University of California Policy and Procedures
72
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73
Appendix A
Native American Graves Protection and Repatriation Act Law
federal register
Monday
December 4, 1995
Part II
Department of the
Interior
Office of the Secretary
43 CFR Part 10
Repatriation Act Regulations; Final Rule
62133
62134
Federal Register / Vol. 60, No. 232 / Monday, December 4, 1995 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
43 CFR Part 10
RIN 1024–AC07
Native American Graves Protection
and Repatriation Act Regulations
Department of the Interior.
Final rule.
AGENCY:
ACTION:
SUMMARY: This final rule establishes
definitions and procedures for lineal
descendants, Indian tribes, Native
Hawaiian organizations, museums, and
Federal agencies to carry out the Native
American Graves Protection and
Repatriation Act of 1990. These
regulations develop a systematic process
for determining the rights of lineal
descendants, Indian tribes, and Native
Hawaiian organizations to certain
Native American human remains,
funerary objects, sacred objects, or
objects of cultural patrimony with
which they are affiliated.
EFFECTIVE DATE: This final rule will take
effect on January 3, 1996.
FOR FURTHER INFORMATION CONTACT: Dr.
Francis P. McManamon, Departmental
Consulting Archeologist, Archeological
Assistance Division, National Park
Service, Box 37127, Washington DC
20013–7127. Telephone: (202) 343–
4101. Fax: (202) 523–1547.
SUPPLEMENTARY INFORMATION:
Background
On November 16, 1990, President
George Bush signed into law the Native
Repatriation Act, hereafter referred to as
the Act. The Act addresses the rights of
lineal descendants, Indian tribes, and
Native Hawaiian organizations to
certain Native American human
remains, funerary objects, sacred
objects, or objects of cultural patrimony
with which they are affiliated. Section
13 of the Act requires the Secretary of
the Interior to publish regulations to
carry out provisions of the Act.
Preparation of the Rulemaking
The proposed rule (43 CFR Part 10)
for carrying out the Act was published
in the Federal Register on May 28, 1993
(58 FR 31122). Public comment was
invited for a 60-day period, ending on
July 27, 1993. Copies of the proposed
rule were sent to the chairs or chief
executive officers of all Indian tribes,
Alaska Native villages and corporations,
Native Hawaiian organizations, national
Indian organizations and advocacy
groups, national scientific and museum
organizations, and State and Federal
agency Historic Preservation Officers
and chief archeologists.
Eighty-two written comments were
received representing 89 specific
organizations and individuals. These
included thirteen Indian tribes, ten
Native American organizations, nine
museums, seven universities, three
national scientific and museum
organizations, eleven state agencies,
nineteen Federal agencies, nine other
organizations, and eight individuals.
Several letters represent more than one
organization. Comments addressed
nearly all sections and appendices of
the proposed rule. All comments were
fully considered when revising the
proposed rule for publication as a final
rulemaking.
Given the volume of comments, it is
impractical to respond in detail in the
preamble to every question raised or
suggestion offered. Some commenters
pointed out errors in spelling, syntax,
and minor technical matters. Those
errors were corrected and are not
mentioned further in the preamble. In
addition, many commenters made
similar suggestions or criticisms, or
repeated the same suggestion for
different sections of the proposed rule.
In the interest of reducing the length of
the text, comments that are similar in
nature are grouped and discussed in the
most relevant section in the preamble.
Some comments pointed out vague and
unclear language. Clarifying and
explanatory language was added to the
rule and preamble.
Changes in Response to Public
Comment
Section 10.1
This section outlines the purpose and
applicability of the regulations. Three
commenters recommended including
specific reference to the applicability of
the rule to provisions of the United
States Code regarding illegal trafficking.
Section 4 of the Act, which deals with
illegal trafficking in ‘‘Native American
Human Remains and Cultural Items,’’ is
incorporated directly into Chapter 53 of
title 18, United States Code, and does
not require implementing regulations.
For that reason, a section regarding
section 4 of the Act has not been
included in these regulations.
One commenter recommended
including language to guarantee ‘‘that
these collections will remain intact and
always be available to qualified
researchers...’’ Another commenter
recommended amending the regulations
to preclude the removal of prehistoric
skeletal and cultural materials from the
nation’s museums. The drafters consider
the proposed changes contrary to the
intent of the Act as reflected in statutory
language and legislative history.
additional language addressing Federal
trust responsibilities and tribal
sovereignty. These regulations are
consistent with the United States’ trust
responsibilities to Indian tribes.
Three commenters recommended
amending the rule to apply to territories
of the United States. The rule of
statutory construction stipulates that
Federal law applies to United States
territories only when specifically
indicated. No such reference is
indicated in either the statute or its
legislative history. It is inappropriate to
use regulations to extend applicability
to areas not defined in the Act.
Section 10.2
This section defines terms used
throughout the regulations. One
commenter recommended listing the
definitions alphabetically instead of
thematically under the present
categories of ‘‘participants,’’ ‘‘human
remains and cultural items,’’ ‘‘cultural
affiliation,’’ ‘‘location,’’ and
‘‘procedures.’’ A thematic organization
has been retained. However, the
subsections have been retitled and
reorganized. The new subsections are (a)
who must comply with these
regulations?; (b) who has standing to
make a claim under these regulations?;
(c) who is responsible for carrying out
these regulations?; (d) what objects are
covered by these regulations?; (e) what
is cultural affiliation?; (f) what types of
lands do the excavation and discovery
provisions of these regulations apply
to?; and (g) what procedures are
required by these regulations?
Subsection 10.2 (a) includes
definitions of those persons or
organizations who must comply with
these regulations.
One commenter asked for clarification
as to whether all Federal agencies as
defined in § 10.2 (a)(4) (renumbered as
§ 10.2 (a)(1)) must comply with
provisions of the Act. All Federal
agencies, except the Smithsonian
Institution, are responsible for
completing summaries and inventories
of collections in their control and with
ensuring compliance regarding
inadvertent discoveries and intentional
excavations conducted as part of
activities on Federal or tribal lands.
Three commenters and the Review
Committee authorized under section 8
of the Act requested clarification of the
exclusion of the Smithsonian Institution
as a Federal agency. Sections 2 (4) and
2 (8) of the Act specifically exclude the
Smithsonian Institution from having to
comply with the provisions of the Act.
The legislative history of the Act is
silent as to the reason for this exclusion.
The exclusion is likely to have been
based on prior passage of the National
Museum of the American Indian Act in
1989 that included provisions requiring
the repatriation of human remains from
all of the Smithsonian Institution’s
constituent museums.
Seven commenters requested
clarification of the definition of Federal
agency official in § 10.2 (a)(5)
(renumbered as § 10.2 (a)(2)). One
commenter recommended changing the
term to Federal land manager. The
definition included in the proposed rule
applies to both individuals with
authority for the management of Federal
lands and individuals with
responsibility for the management of
Federal collections that may contain
human remains, funerary objects, sacred
Since responsibility for the latter task
may fall to Federal agency officials who
do not manage land, the recommended
change has not been made. Four
commenters recommended changes in
the definition of Federal agency official
to reflect that a Federal agency may
have more than one delegated authority.
The definition was rewritten to reflect
this concern. One commenter
recommended stipulation of a specific
date by which each agency must
delegate individuals to perform the
duties relating to these regulations.
Such a deadline is unnecessary as all
Federal agencies have already named
their contacts. A listing of Federal
agency officials for each agency is
available from the Departmental
Consulting Archeologist.
Seven commenters requested
clarification of the definition of museum
in § 10.2 (a)(6) (renumbered § 10.2
(a)(3)). One commenter recommended
replacing the term ‘‘human remains or
cultural items’’ with ‘‘Native American
artifacts’’ to reflect the expanded
reporting of ‘‘collections that may
contain unassociated funerary objects,
sacred objects, or objects of cultural
patrimony’’ in the summaries required
in § 10.8. The specific focus of the Act
and the rule remains limited to Native
American human remains, funerary
objects, sacred objects, and objects of
cultural patrimony, and not the broader
category of Native American artifacts.
providing a definition of the term
‘‘possession of, or control over’’ in the
first sentence of the definition. One
commenter recommended requiring
museums take responsibility for all
in their possession that were originally
excavated intentionally or discovered
inadvertently by Federal agencies on
non-Federal lands. All museums or
Federal agencies with Native American
collections should consider carefully
whether they have possession or control
of human remains, funerary objects,
patrimony as defined in § 10.2 (a)(3)(i)
and (a)(3)(ii).
Eleven commenters recommended
changes to the definitions of possession
in § 10.2 (e)(5) (renumbered § 10.2
(a)(3)(i)) and control in § 10.2 (e)(6)
(renumbered § 10.2 (a)(3)(ii)). One
commenter recommended giving both
terms their ordinary and customary
meaning in the regulations. Two
commenters objected to use of ‘‘legal
interest’’ in both definitions on the
grounds that under common law,
museums and Federal agencies do not
have sufficient legal interest in human
remains to do anything with them. Two
commenters questioned including items
on loan to a museum in a summary or
inventory since the items are not the
property of the museum. One
commenter recommended deleting the
definition of control as it would require
Federal bureaucrats and museum
officials to make complicated legal
determinations. Examples designed to
clarify the uses of possession and
control have been added to these
sections to address the concerns
reflected in these comments. Two
commenters questioned whether
‘‘control’’ applied to museum
collections or to Federal lands. The term
applies to human remains, funerary
objects, sacred objects, or objects of
cultural patrimony in museum or
Federal agency collections or excavated
intentionally or discovered
inadvertently on Federal or tribal lands.
One commenter recommended that the
definition specifically address Federal
agency responsibilities for collections
from Federal lands being held by nongovernmental repositories. Federal
agencies are responsible for the
appropriate treatment and care of such
collections.
One commenter requested
clarification of the exclusion of
procurement contracts from ‘‘Federal
funds’’ in § 10.2 (a)(6) (renumbered
§ 10.2 (a)(3)(iii)). Procurement contracts
are not considered a form of Federalbased aid but are provided to a
contractor in exchange for a specific
service or product. One commenter
requested deletion of the last two
sentences of the definition that clarify
the applicability of the rule to museums
that are part of a larger entity that
62135
receives Federal funds, questioning if
the legislative history supports such an
interpretation. One commenter
supported the present definition of
institutions receiving Federal funds.
Application of Federal laws to
institutions that receive Federal funds is
common, being used with such recent
legislation as the Americans with
Disabilities Act. These laws typically
are interpreted to apply to organizations
that are part of larger entities that
receive Federal funds. Two commenters
recommended specifying the
applicability of the rule to museums
affiliated with certified local
governments and Indian tribal
museums. The rule applies to museums
that are part of certified local
governments. A tribal museum is
covered by the Act if the Indian tribe of
which it is part receives Federal funds
through any grant, loan, or contract
(other than a procurement contract).
Subsection 10.2(b) includes
organizations that have standing to
make a claim under these regulations.
Eight commenters recommended
changes in the definition of lineal
descendant in § 10.2 (a)(14)
(renumbered § 10.2 (b)(1)). Two
commenters identified the definition as
too restrictive. The drafters realize that
claims of lineal descent require a high
standard but feel that this standard is
consistent with the preference for
repatriation to lineal descendants
required by the Act. Another commenter
presented a statistical argument to
indicate that all members of Indian
tribes might be recognized as lineal
descendants of human remains over
1,000 year old. Regardless of the
statistical possibilities that someone
might be related to another, the
definition of lineal descent requires that
the human remains, funerary objects, or
sacred objects under consideration be
from a known individual. It is highly
unlikely that the identity of an
individual that lived 1,000 years ago is
known, or that it is possible to trace
descent directly and without
interruption from that known individual
to a living individual. One commenter
recommended replacing the ‘‘known
Native American individual’’ from
which lineal descent is traced with
‘‘known individual of a tribe.’’ The term
Indian tribe as used in these regulations
refers only to those contemporary tribes,
bands, nations, or other organized
Indian groups or communities that are
recognized as eligible for the special
programs and services provided by the
United States to Indians because of their
status as Indians. Requiring the known
individual to have been a member of the
62136
same Federally recognized Indian tribe
as their lineal descendant would limit
repatriation to only the most recent
human remains, funerary objects, or
sacred objects and is not supported by
the statutory language or legislative
history. One commenter recommended
deleting reference to use of the
‘‘traditional kinship system.’’ Reference
to traditional kinship systems is
designed to accommodate the different
systems that individual Indian tribes
use to reckon kinship. One commenter
recommended that the definition should
also allow more conventional means of
reckoning kinship. The definition has
been amended to include the common
law system of descendance as well as
the traditional kinship system of the
appropriate Indian tribe or Native
Hawaiian organization. One commenter
recommended defining an additional
class of ‘‘lineage members’’ or
‘‘kindred’’—individuals that are not
lineal descendants in the biological
sense of the term but are related by the
traditional kinship system—and then
giving these individuals a secondary
priority for making a claim after lineal
descendants but before culturally
affiliated Indian tribes. Determinations
of priority between blood descendants
and descendants by some other
traditional kinship system are more
properly resolved in specific situations
rather than through general regulations.
clarifying the definition of Indian tribe
in § 10.2 (a)(9) (renumbered § 10.2
(b)(2)) to ensure timely notification.
Seventeen commenters recommended
expanding the definition to include a
broader spectrum of Indian groups than
those recognized by the Bureau of
Indian Affairs (BIA). Several
commenters identified specific groups
they felt should have standing,
including: various bands or tribes in
California, Washington, and Ohio;
Native American organizations such as
the American Indian Movement; Native
American groups that ‘‘would be
eligible for recognition by the BIA if
they so chose to be’’; and ‘‘bands
recognized by other Federal agencies.’’
Section 12 of the Act makes it clear that
Congress based the Act upon the unique
relationship between the United States
government and Indian tribes. That
section goes on to state that the Act
should not be construed to establish a
precedent with respect to any other
individual or organization. The
statutory definition of Indian tribe,
which specifies that such tribes must be
‘‘recognized as eligible for the special
programs and services provided by the
United States to Indians because of their
status as Indians,’’ precludes extending
applicability of the Act to Indian tribes
that have been terminated, that are
current applicants for recognition, or
have only State or local jurisdiction
legal status.
As was explained in the preamble of
the proposed regulations, the definition
of Indian tribe used in the Act was
drawn explicitly from an earlier version
of the bill (H.R. 5237, 101th Congress,
2nd Sess. sec. 2 (7), (July 10, 1990))
using a specific statutory reference. The
final language of the Act is verbatim
from the American Indian Self
Determination and Education Act (25
U.S.C. 450b). The earlier statute has
been carried out since 1976 by the BIA
to apply to a specific list of eligible
Indian tribes which has been published
in the Federal Register.
Four commenters found this
interpretation unduly narrow and
recommended interpreting the statutory
definition to apply to Indian tribes that
are recognized as eligible for benefits for
the special programs and services
provided by ‘‘any’’ agency of the United
States to Indians because of their status
as Indians. The Review Committee
concurred with this recommendation.
Based on the above recommendations,
the definition of Indian tribe included
in the regulations was amended by
deleting all text describing the process
for obtaining recognition from the BIA.
In place of this text, the final regulations
include a statement identifying the
Secretary as responsible for creating and
distributing a list of Indian tribes for the
purpose of carrying out the Act. This list
is currently available from the
Departmental Consulting Archeologist
and will be updated periodically.
deleting the reference to Alaska Native
corporations in the definition of Indian
tribe. The American Indian Self
Determination and Education Act, the
source for the definition of Indian tribe
in the Act, explicitly applies to Alaska
Native corporations and, as such,
supports their inclusion under the Act.
Alaska Native corporations are generally
considered to have standing under these
regulations if they are recognized as
eligible for a self-determination contract
under 25 U.S.C. 450b.
Two commenters recommended
deleting the final line of the definition
of Indian tribe in which Native
Hawaiian organizations are subsumed
for purposes of the regulations. The
Review Committee concurred with this
recommendation. The final sentence has
been deleted and the applicability of the
regulations to Native Hawaiian
organizations has been specified where
appropriate throughout the text. The
term Indian tribe official defined in
§ 10.2 (b)(4) has not been changed,
though the drafters wish to stress the
term’s applicability to the
representatives of both Indian tribes and
Native Hawaiian organizations.
changes to the definition of Native
Hawaiian organization in § 10.2 (a)(11)
(renumbered § 10.2 (b)(3)). One
commenter recommended specifying
that such organizations should have a
primary and stated purpose of the
‘‘preservation of Hawaiian history,’’ and
have expertise in Native Hawaiian
‘‘cultural’’ affairs. Two commenters
recommended requiring a Native
Hawaiian organization verify that more
than 50% of its membership is Native
Hawaiian. The statutory definition of
Native Hawaiian organization in section
2 (11) of the Act precludes expansion of
the criteria for identifying Native
Hawaiian organizations. An earlier
version of the bill (S. 1980, 101st Cong.
2nd sess. section 3 (6)(c), (September 10,
1990)) that eventually became the Act
included a provision requiring Native
Hawaiian organization to have ‘‘a
membership of which a majority are
Native Hawaiian.’’ This provision was
not included in the Act. The legislative
history confirms that Congress
considered the additional criterion and
decided not to include it in the Act.
rewriting the definition of Native
Hawaiian in § 10.2 (a)(10) (renumbered
§ 10.2 (b)(3)) to include Pacific
Islanders. The statutory definition of
Native Hawaiian in section 2 (10) of the
Act precludes expansion of this
definition to include Pacific Islanders
who are not descendants of the
aboriginal people who, prior to 1778,
occupied and exercised sovereignty in
the area that now constitutes the State
of Hawaii.
changes to the definition of Indian tribe
official in § 10.2 (a)(12) (renumbered
§ 10.2 (b)(4)). One commenter
recommended specifying that Indian
tribe official means the tribal chair or
officially designated individual. One
commenter recommended allowing
designation by the governing body of an
Indian tribe ‘‘or as otherwise provided
by tribal code, policy, or procedure.’’
One commenter recommended that the
designated person need not be a
member of that Indian tribe. The
definition of Indian tribe official was
amended to identify the principal leader
or the individual officially designated or
otherwise provided by tribal code,
policy or established procedure. This
person need not necessarily be a
member of the particular Indian tribe.
Subsection 10.2 (c) includes
organizations that are responsible for
carrying out these regulations.
clarification of the role of the
defined in Section 10.2 (a)(3)
(renumbered § 10.2 (c)(3)). The
was delegated by the Secretary of the
Interior with responsibilities for drafting
regulations, providing staff support to
the Review Committee, administering
grants, and providing technical aid
under the Act.
Subsection 10.2 (d) includes
definitions of the objects covered by
these regulations.
One commenter recommended that
the definition of Native American in
§ 10.2 (a)(8) (renumbered § 10.2 (d))
specifically include Native Hawaiians.
The definition already includes Native
Hawaiians. To clarify the applicability
of the rule, the definition of Native
American was rewritten to specifically
include tribes, people, or cultures
indigenous to the United States,
‘‘including Alaska and Hawaii.’’ The
drafters point out that ‘‘Native
American’’ is used in the Act and in
these rules only to refer to particular
and not to any living individual or
group of individuals.
Thirteen commenters recommended
changes to the definition of human
remains in § 10.2 (b)(1) (renumbered
§ 10.2 (d)(1)). One commenter
recommended expanding the definition
to include all human remains, not just
those of Native Americans. The Act is
designed specifically to address the
disposition or repatriation of Native
cultural patrimony and not to cover all
human remains. Three commenters
recommended excluding disarticulated
and unassociated human remains, such
as isolated teeth and finger bones, from
repatriation. Two commenters
recommended amending the definition
to include only those human remains
‘‘associated with the body at the time of
death,’’ to eliminate such things as
extracted or lost teeth, cut finger nails,
coprolites, blood residues, and tissue
samples taken by coroners. One
commenter recommending deleting the
exemplary clause—‘‘including but not
limited to bones, teeth, hair, ashes, or
mummified or otherwise soft tissue’’—
as being overly limiting. The Act makes
no distinction between fully-articulated
burials and isolated bones and teeth.
Additional text has been added
excluding ‘‘naturally shed’’ human
remains from consideration under the
Act. This exclusion does not include
any human remains for which there is
evidence of purposeful disposal or
deposition. The exemplary clause has
been deleted. One commenter requested
clarification as to whether the
regulations would apply to blood sold
or given to a blood bank by an
individual of Native American ancestry.
The blood bank would not be subject to
repatriation having been freely given.
One commenter supported considering
human remains that had been
incorporated into a sacred object or
object of cultural patrimony be
considered as part of that cultural item
for the purpose of determining cultural
affiliation. Two commenters
recommended excluding human
remains incorporated into cultural items
from repatriation since, as one said, they
were ‘‘objectified by their original
makers and owners, not the institutions
that might house them now.’’ One
commenter requested clarification
regarding the status of human remains
that were not freely given but that have
been incorporated into objects that are
not cultural items as defined in these
regulations. The legislative history is
silent on this issue. Determination of the
proper disposition of such human
remains must necessarily be made on a
case-by-case basis. One commenter
recommended deleting reference to
human remains that have been
incorporated into a funerary object,
sacred object, or object of cultural
patrimony, in that any change in the
character of the human remains,
including the definition, would only
further their dishonor. Three
commenters asked for clarification in
how to determine whether human
remains incorporated into a funerary
object, sacred object, or object of
cultural patrimony were freely given.
The provision regarding determination
of the cultural affiliation of human
remains that had been incorporated into
a funerary object, sacred object, or object
of cultural patrimony was
recommended by the Review Committee
to preclude the destruction of items that
might be culturally affiliated with one
Indian tribe that incorporate human
remains culturally affiliated with
another Indian tribe.
changing the definition of cultural items
in § 10.2 (b)(2). One commenter
recommended broadening the definition
to include any and all objects deemed
to have cultural significance by an
Indian tribe. Cultural items are defined
in the Act to include human remains,
62137
funerary objects, sacred objects, and
objects of cultural patrimony. The term
was redefined in the proposed
regulations to include funerary objects,
sacred objects, and objects of cultural
patrimony, and not human remains to
address the objections some individuals
had expressed over referring to human
remains as ‘‘cultural items.’’ Two
commenters recommended retaining the
statutory definition. The term has been
changed to read ‘‘human remains,
funerary object, sacred object, or object
of cultural patrimony’’ throughout the
rule to ensure clarity. The definition of
‘‘cultural item’’ has been deleted
throughout the text.
combining the definitions of associated
funerary object in § 10.2 (b)(3) and
unassociated funerary object in § 10.2
(b)(4) into a single definition of funerary
object. The two definitions have been
combined in § 10.2 (d)(2).
Ten commenters recommended
changes to the definition of associated
funerary object in § 10.2 (b)(3) and
(b)(4) (combined and renumbered § 10.2
(d)(2)). One commenter recommended
rewriting both definitions to make a
distinction between objects associated
with individual human remains and
objects for which a funerary context is
suspected, but association with
individual human remains is not
possible. Another commenter objected
to what he considered an overly
rigorous standard of proof. The statutory
language makes it clear that only those
objects that are associated with
individual human remains are
considered funerary objects. The
distinction between associated and
unassociated funerary objects is based
on whether the individual human
remains are in the possession or control
of a museum or Federal agency. One
word ‘‘intentionally’’ in § 10.2 (b)(3)(i)
and § 10.2 (b)(4) since the term does not
occur in the statutory language. The
term is included to emphasize the
intentional nature of death rites or
ceremonies. Items that inadvertently
came into proximity or contact with
human remains are not considered
funerary objects. One commenter
questioned whether any objects
inadvertently on Federal or tribal land
after November 16, 1990, would fit these
definitions, since it requires the objects
be in the possession or control of a
Federal agency, and section 3 of the Act
seems to preclude Federal ownership of
such objects. Possession of funerary
objects excavated intentionally or
discovered inadvertently on Federal or
62138
tribal land is sufficient to apply the
provisions of the statute to such
intentional excavations or inadvertent
discoveries.
deletion of the clause ‘‘or near’’ from
§ 10.2 (b)(3) (renumbered § 10.2 (d)(2)),
indicating that it would require
museums to enter into debates about the
proximity of objects to human remains.
The clause was included to
accommodate variations in Native
American death rites or ceremonies.
Some Indian tribes, particularly those
from the northern plains, have
ceremonies in which objects are placed
near, but not with, the human remains
at the time of death or later. The drafters
consider these funerary objects.
clarifying § 10.2 (b)(3)(i) (renumbered
§ 10.2 (d)(2)(i)) by specifying that
funerary objects are ‘‘associated’’ even
when another institution has possession
or control of the human remains. The
drafters consider the statutory
definition, which is repeated in the rule,
to support this interpretation without
any additional modification. One
commenter recommended clarifying
§ 10.2 (a)(3)(ii) [renumbered § 10.2
(d)(2)(i)] by specifying that items made
exclusively for burial purposes are
considered as associated funerary
objects even if there are no associated
human remains. Items made exclusively
for burial purposes are considered
associated funerary objects even if there
are no associated human remains. Four
commenters recommended deleting the
final sentence of the definition of
(b)(4) [renumbered § 10.2 (d)(2)],
objecting to the requirement that such
human remains were removed from a
‘‘specific’’ burial site. Another
commenter recommended deleting
reference to the ‘‘preponderance of the
evidence’’ in the same sentence, because
it implies an adversarial context which
is inappropriate for the process of
identifying unassociated funerary
objects. In both of these instances, the
text of the regulations reflects exactly
the statutory text and has not been
modified. The final sentence of this
section was drawn from an explanation
of the definition in House Report 101–
877 (1990: page 2) and is taken to
represent Congressional intent. Another
‘‘reasonably believed to have been’’
from § 10.2 (b)(2)(ii). The phrase has
been deleted.
One commentor recommended
clarifying the definition of unassociated
funerary objects in § 10.2 (b)(4) to
exempt items exhibited intentionally
with individual human remains but
subsequently returned or distributed to
living descendants or other individuals.
The recommended language has been
added to § 10.2 (d)(2)(ii).
Ten commenters recommended
changes to the definition of sacred
objects in § 10.2 (b)(5) (renumbered
§ 10.2 (d)(3)). One commenter
to include any and all objects deemed
to have sacred significance by Indian
tribes and not just those objects needed
by traditional Native American religious
leaders for the practice of traditional
Native American religions by their
present-day adherents. Another
commenter recommended broadening
the definition to include specific objects
or geological features identified by
traditional Native American
practitioners as endowed with
sacredness due to the object’s past role
in traditional Native American religious
ceremony or on the basis of similar
objects having contemporaneous
religious significance or function in the
continued observance or renewal or a
ceremony. The statutory language and
legislative history indicate that this
definition was written carefully and
precisely. Expanding the definition to
include the types of items identified
above in the comments runs counter to
Congressional intent.
Four commenters recommended
changes in the definition of traditional
religious leader in § 10.2 (a)(13)
(renumbered § 10.2 (d)(3)). Two
commenters recommended replacing
the phrase allowing such leaders to be
recognized ‘‘by members of that Indian
tribe’’ with ‘‘that Indian tribe.’’ The
drafters realize that allowing members
of an Indian tribe or Native Hawaiian
organization to recognize traditional
religious leaders may result in
conflicting claims. However, such issues
are best resolved by the members of the
Indian tribe or Native Hawaiian
organization themselves. One
commenter recommended replacing the
word ‘‘or’’ at the end of § 10.2(a)(13)(i)
with ‘‘and.’’ The two criteria listed are
intended as alternative methods for
identifying traditional religious leaders
and not as cumulative criteria. Another
commenter recommended specifying
that an individual’s leadership role
must be based on ‘‘traditional’’ religious
practices. The drafters consider whether
or not an individual’s leadership in a
religion is based upon traditional
practice an inappropriate concern for
Federal regulations.
deleting the word ‘‘current’’ from the
first line of the definition of sacred
object since the term was not included
in the statutory text. The term was
deleted. One commenter objected to
‘‘use’’ being the measure to decide
whether an object should be repatriated,
suggesting instead right of possession as
the relevant standard. The necessity of
an object for use by present day
adherents of a traditional Native
American religion is critical in
identifying a sacred object, while
determination of right of possession is
necessary to determine whether the
sacred object must be repatriated to the
organization or may be retained by the
museum or Federal agency.
deleting the second sentence of the
definition of sacred object which he
considers to depart in major ways from
the statutory definition. The second
sentence of the definition was drawn
from the Senate Select Committee
Report (S.R. 101–473: p. 7) and helps
clarify the precise, limited use of this
category intended by Congress.
including clarification in the definition
that: 1) sacred objects can not be
associated with human remains, as they
would then be funerary objects, and 2)
only in rare circumstances can
prehistoric items be sacred objects.
While this usually may be so, blanket
exclusion of any funerary object from
also being a sacred object is not
considered appropriate in that the
categories are not mutually exclusive.
Similarly, identification of sacred
objects from prehistoric contexts must
be made on a case-by-case basis.
One commenter agreed with the
inclusion of sacred objects that have
continued observance or renewal of a
traditional Native American religious
ceremony or ritual. Another commenter
recommended deleting reference to
‘‘renewal’’ in the second sentence,
stating that the issue was debated
during the legislative process and final
statutory language does not include
reference to renewal of a traditional
Native American religious ceremony.
Language specifying the inclusion of
objects that function in the continued
observance or renewal of a traditional
Native American religious ceremony as
sacred objects was drawn from the
Senate Select Committee Report (S.R.
101–473: p. 7) and is thought to reflect
Three commenters requested
clarification as to who is responsible for
making the determination that a
particular item fits the definition of
sacred object. In all cases, the museum
or Federal agency official has the initial
responsibility for deciding whether an
object in its possession or control fits
the definition of sacred object. However,
if an Indian tribe or Native Hawaiian
organization does not agree with this
decision, it has recourse to challenge
directly the decision of the museum or
Federal agency. The Indian tribe or
Native Hawaiian organization may seek
the involvement of the Review
Committee if it is unsuccessful in its
direct appeal to the museum or Federal
agency.
Six commenters recommended
changes to the definition of objects of
cultural patrimony in § 10.2 (b)(6)
(renumbered § 10.2 (d)(4)]) One
word ‘‘cultural’’ from the term ‘‘cultural
items’’ in the first sentence, in that the
current phrasing is circular. The word
has been deleted. One commenter
cautioned that the definition does not
recognize that internal disagreements
may occur within an Indian tribe or
Native Hawaiian organization about the
importance of an object of cultural
patrimony. Another commenter
to include those objects of ongoing
historical, traditional, or cultural
importance central to any sub-group of
an Indian tribe, such as a band, clan,
lineage, ceremonial society, or other
subdivisions. Claims for human
by such sub-groups must be made
through an Indian tribe or Native
Hawaiian organization.
clarification of the example of the Zuni
War Gods that appear to be both objects
of cultural patrimony and sacred
objects. An object can fit both categories
depending upon the nature of the
traditional religion and the system of
property rights used by a particular
organization. Zuni War Gods present
such a case. In other cases, sacred
objects may have been owned privately
and, thus, are not considered objects of
cultural patrimony. One commenter
requested clarification as to who is
responsible for making the
determination that a particular item fits
the definition of object of cultural
patrimony. In all cases, the museum or
Federal agency official has the initial
responsibility for deciding whether an
object in its possession or control fits
the definition of object of cultural
patrimony. However, if an Indian tribe
or Native Hawaiian organization does
not agree with this decision, it has
recourse to challenge directly the
decision with the museum or Federal
agency.
Section 10.2 (e) includes the
definition of cultural affiliation. One
reference to Native Hawaiian
organizations as they are included
under the definition of Indian tribe in
§ 10.2 (b)(2). The text has been changed
to read ‘‘Indian tribe or Native Hawaiian
organization’’ throughout the
regulations. One commenter requested
inclusion of a short characterization of
the threshold criteria applicable to
determining cultural affiliation. A
second sentence clarifying this
threshold has been added to the
definition. Three commenters requested
additional clarification of the definition
of cultural affiliation. Procedures for
determining cultural affiliation are
included in § 10.14 (c).
Section 10.2 (f) includes definitions of
the types of lands that the excavation
and discovery provisions of these
regulations apply.
Six commenters asked for clarification
regarding the applicability of statutory
provisions for intentional excavation or
inadvertent discovery of human
to private lands. Unlike provisions of
the National Historic Preservation Act
(NHPA) that are applicable to Federal
undertakings regardless of who owns
the land on which the project is being
conducted, the intentional excavation
and inadvertent discovery provisions of
these regulations apply only to Federal
and tribal lands.
Five commenters recommended
changes to the definition of Federal
lands in § 10.2 (d)(1) (renumbered § 10.2
(f)(1)). One commenter recommended
deleting the definition of ‘‘control’’ as it
will require Federal bureaucrats to make
complicated legal determinations as to
what is ‘‘a sufficient legal interest to
permit it to apply these regulations
without abrogating the rights of a
person.’’ Another commenter
recognized the need for a definition of
Federal ‘‘control,’’ but suggested that the
present definition fails to clarify the
issue. Another commenter requested
clarification whether Federal control,
and thus the intentional excavation and
inadvertent discovery provisions of
these regulations, extends to the
Wetlands Reserve Program or to the
Forest Legacy Program. One commenter
requested clarification of the
applicability of Federal control to real
property instruments such as easements,
rights-of-way, and rights-of-entry for
performance of specific activities. One
commenter requested clarification of the
applicability of Federal control to
private lands through issuance of a
Federal permit, license, or funding. One
commenter recommended including the
existence of a long term lease by a
62139
Federal agency or an interest under
which the land owner has authorized
the United States to undertake
intentional excavation or other land
disturbance as under Federal control. As
indicated above, the intentional
excavation and inadvertent discovery
provisions of the Act apply only to
Federal and tribal lands. Whether
Federal control of programs such as
those mentioned above is sufficient to
apply these regulations to the lands
covered by the program depends on the
circumstances of the Federal agency
authority and on the nature of state and
local jurisdiction. Such determinations
must necessarily be made on a case-bycase basis. Generally, however, a
Federal agency will only have sufficient
legal interest to ‘‘control’’ lands it does
not own when it has some other form
of property interest in the land such as
a lease or easement. The fact that a
Federal permit is required to undertake
and activity on non-Federal land
generally is not sufficient legal interest
in and of itself to ‘‘control’’ the land
within the meaning of these regulations
and the Act. In situations when two or
more Federal agencies share regulatory
or management jurisdiction over Federal
land, the Federal agency with primary
management authority will generally
have control for purposes of
implementing the Act.
Nineteen commenters recommended
changes to the definition of tribal lands
in § 10.2 (c)(2) (renumbered § 10.2
(f)(2)). One commenter recommended
broadening the exclusion of privately
owned lands within the exterior
boundaries of an Indian reservation to
encompass state and Federal land
holdings. Thirteen commenters objected
to the exclusion of privately owned
lands within the exterior boundaries of
an Indian reservation and recommended
returning to the statutory language. The
proposed exclusion was intended to
rectify a contradiction between the
statutory definition of tribal lands in
section 2 (15) of the Act and the
guarantee in section 2 (13) of the Act
that no taking of property without
compensation within the meaning of the
Fifth Amendment of the United States
Constitution is intended. The drafters
concur with the majority of commenters
that the blanket exclusion of private
lands within the exterior boundaries of
an Indian reservation from the
intentional excavation and inadvertent
discovery provisions of the regulations
is overly broad. The exclusion was
deleted and a new subsection added at
§ 10.2 (f)(2)(iv) stating that the
regulations will not apply to tribal lands
to the extent that any particular action
62140
authorized or required will result in a
taking of property without just
compensation within the meaning of the
Fifth Amendment to the United States
Constitution.
broadening the definition of tribal lands
to apply to allotments held in trust for
Indian tribes or individuals, regardless
of whether the allotments are inside or
outside the boundaries of an Indian
reservation. This suggestion is
inconsistent with the Act’s definition of
tribal lands. One commenter stated that
the reference to 18 U.S.C. 1151 in § 10.2
(d)(2)(ii) (renumbered § 10.2 (f)(2)(ii))
does not clarify the nature of dependent
Indian community. Dependent Indian
communities, as defined in 18 U.S.C.
1151 (b), include those Indian
communities under Federal protection
that were neither ‘‘reserved’’ formally,
nor designated specifically as a
reservation. Cohen, in The Field of
Indian Law (1982:38) concludes that ‘‘it
is apparent that Indian reservations and
dependent Indian communities are not
two distinct definitions of place but
rather definitions which largely overlap.
All Indian reservations are also
dependent Indian communities unless
they are uninhabited.’’ In addition to
Indian reservations, dependent Indian
communities also include patented
parcels of land and rights-of-way within
residential Indian communities under
Federal protection. One commenter
recommend joining § 10.2 (d)(2)(i), (ii),
and (iii) (renumbered § 10.2 (f)(2)(i), (ii),
and (iii)) with ‘‘or’’ at the end of the first
two lines. This change has been made.
Nine commenters recommended
changes to the definition of aboriginal
lands in § 10.2 (c)(3). Four commenters
challenged use of Indian Claims
Commission judgements to determine
aboriginal territories. One commenter
recommended using Native American
origin stories and anthropological
evidence instead. A second commenter
recommended that the limits of
aboriginal territory must come directly
from the Indian tribe itself. A third
commenter recommended expanding
the definition to include all ceded lands
and all lands traditionally used by an
Indian tribe, regardless of whether there
may have been overlapping usage by
neighboring Indian tribes. The Indian
Claims Commission was established in
1949 specifically to adjudicate tribal
land claims against the United States.
Over 200 cases were settled between
1949 and 1978 when the Commission
was terminated. Since 1978, Indian land
claims have been adjudicated by the
United States Court of Claims. The
Commission and the Court have
considered a wide range of information,
including oral history and
anthropological evidence, in reaching
their decisions. Section 3 (a)(1)(C) of the
Act specifically gives Indian tribes the
right to claim human remains, funerary
cultural patrimony excavated
inadvertently on Federal land that is
recognized by a final judgement of the
Indian Claims Commission or United
States Court of Claims as part of their
aboriginal land. The drafters consider
the final judgements of the Indian
Claims Commission a valuable tool for
identifying area occupied aboriginally
by a present-day Indian tribe. Other
sources of information regarding
aboriginal occupation should also be
consulted. The definition has been
deleted from the rule.
One commenter questioned whether
provisions of the Act regarding
intentional excavation or inadvertent
discovery of human remains, funerary
cultural patrimony apply to all
aboriginal lands, or just to that portion
of an Indian tribe’s aboriginal territory
that is now in Federal ownership or
control. These regulations apply to
claims for human remains, funerary
inadvertently on Federal lands. One
commenter requested reference
information for final judgements by the
Court of Claims. One commenter stated
that the map of aboriginal lands
included with the final report of the
Indian Claims Commission is out of
print, out of date, and difficult to use as
neither counties nor detailed geographic
indicators are provided. The United
States Geological Survey has recently
republished the 1978 map. Efforts are
underway to update the map to include
land claims settled since 1978. One
commenter inquired about the status of
Indian tribes that have filed a land claim
for a particular area, but for which a
court judgement or ruling from the court
has been made. An Indian tribe’s status
to make a claim under the Act based
upon aboriginal occupation of an area is
recognized when a favorable court
judgement or ruling has been made.
However, this situation will only affect
the disposition of human remains,
objects of cultural patrimony excavated
inadvertently on Federal land where no
lineal descendants or culturally
affiliated Indian tribe has made a claim.
Subsection 10.2 (g) includes
definitions of procedures required to
carry out these regulations. Two
commenters asked for clarification of
the difference between the items
included on the summary in § 10.2 (e)(1)
(renumbered § 10.2 (g)(1)) and the items
on the inventory in § 10.2 (e)(2)
(renumbered § 10.2 (g)(2)). Summaries
are written general descriptions of
collections or portions of collections
that may contain unassociated funerary
cultural patrimony. Inventories are
item-by-item descriptions of human
remains and associated funerary objects.
The distinction between the documents
reflects not only their subject matter, but
also their detail (brief overview vs. itemby-item list), and place within the
process. Summaries represent an initial
exchange of information prior to
consultation while inventories are
documents completed in consultation
with Indian tribe officials and
representing a decision by the museum
official or Federal agency official about
the cultural affiliation of human
remains and associated funerary objects.
including a definition of ‘‘repatriation’’
in the regulations. The rules of statutory
construction require interpreting
undefined terms according to their
common meaning. Repatriation means
the return of someone or something to
its nation of origin.
inclusion of a definition for
‘‘appropriate care and treatment’’ of
The appropriateness of particular types
of care and treatment will necessarily
depend on the nature of the particular
under consideration and the concerns of
any lineal descendants or affiliated
Indian tribes or Native Hawaiian
organizations.
changes to the definition of intentional
excavation in 10.2 (e)(3) (renumbered
§ 10.2 (g)(3)). One commenter
recommended deleting the word
‘‘planned’’ from the definition to
embrace all kinds of archeological
removal, whether planned or
occasioned by an encounter with human
during construction or land use. One
commenter recommended expanding
the definition to include intentional
excavations on private lands. One
commenter recommended replacing the
definition with ‘‘means intentional
removal for the purposes of discovery,
study, or removal of such items’’ from
section 3 (c) of the statute. These
changes are unnecessary or
inappropriate and were not made.
changes to the definition of inadvertent
discovery in 10.2 (e)(4) (renumbered
§ 10.2 (g)(4)). One commenter
recommended replacing ‘‘inadvertent’’
with ‘‘accidental, unintended,
unpredictable, or unexpected in spite of
all precaution,’’ to avoid any
presumption that such discoveries were
made without forethought or through
negligence. Another commenter
recommended expanding the definition
to include inadvertent discoveries on
private lands. These changes are
unnecessary or not appropriate and
were not made.
Section 10.3
This section carries out section 3 (c)
of the Act regarding the custody of
that are excavated intentionally from
Federal or tribal lands after November
16, 1990. One commenter recommended
stating explicitly that the section applies
only to Native American human
remains and not to non-Native
American human remains such as
mountain men or early settler burials.
The language has not been changed as
all provisions of these regulations apply
only to Native American human
remains, funerary objects, sacred objects
or objects of cultural patrimony. One
commenter requested reviewing use of
the term ‘‘intentional excavation’’
throughout the section to ensure
consistency with the statutory language.
Section 3 (c) of the Act applies to the
‘‘intentional removal from or excavation
of Native American [human remains
and] cultural items from Federal or
tribal lands for the purposes of
discovery, study, or removal.’’ This
definition includes scientific
archeological excavations for
independent research, public
interpretation, or as part of planned
removal of human remains during landdisturbing activities such as
construction projects.
One commenter recommended the
regulations focus on ‘‘more protection of
archeological sites ... for research by the
scientific community.’’ The Act
certainly has as one goal improved
protection of in situ archeological sites.
However, this protection is afforded not
simply to allow for more scientific
study. Rather, the intent is to preserve
and protect Native American graves,
allowing for their scientific examination
only as necessary and appropriate.
Two commenters requested
clarification of the clause ‘‘if otherwise
required’’ regarding the necessity for
obtaining a permit issued pursuant to
the Archeological Resources Protection
Act (ARPA) in § 10.3 (b)(1). The clause
has been deleted. The Review
Committee recommended additional
clarification in § 10.3 (b)(1) regarding
issuance of ARPA permits on private
holdings within the exterior boundaries
of Indian reservations and on lands
administered for the benefit of Native
Hawaiians pursuant to the Hawaiian
Homes Commission Act. Language
regarding issuance of permits on these
lands has been included.
requiring the consent of culturally
affiliated Indian tribes and Native
Hawaiian organizations for intentional
excavations on both Federal and tribal
lands. Another commenter
recommended requiring the consent of
traditional religious leaders for
intentional excavations on both Federal
and tribal lands. These changes have not
been made. Section 3 (c)(2) of the Act
authorizes excavation or removal of
only after consultation with or, in the
case of tribal lands, consent of the
Hawaiian organization. One commenter
recommended that § 10.3 (b)(4) not be
‘‘the only requisite for intentional
excavation.’’ The requirements of § 10.3
(b)(1) through (4) must all be met before
conducting an intentional excavation.
changing the title of § 10.3 (c) from
‘‘Procedures’’ to ‘‘Disturbances during
authorized land use.’’ The procedures
outlined in this subsection apply to
intentional removal or excavation of
from Federal or tribal land and not
disturbance during authorized land use,
which is dealt with under § 10.4
regarding inadvertent discovery of
on Federal or tribal lands. One
commenter suggested that § 10.3 (c)(1)
confuses the issue of who — ‘‘any
person’’ or the Federal official — is
responsible for complying with the
provisions of the regulations regarding
intentional excavations, and
recommended deleting the section. Two
commenters requested clarification of
an ‘‘activity’’ as referred to in the first
sentence of § 10.3 (c)(1). The subsection
has been deleted and subsequent
subsections renumbered.
One commenter requested clearly
defining ‘‘responsible Federal agency.’’
The Federal agency with the
responsibility for issuing approvals or
permits on actions within their
62141
designated Federal lands is the
responsible Federal agency under the
Act. In situations when two or more
Federal agencies share regulatory or
management jurisdiction of Federal
land, the Federal agency with primary
management authority will have control
for purposes of carrying out these
regulations unless otherwise agreed.
requiring any person who proposes to
undertake an activity on Federal or
tribal lands that may result in the
intentional excavation of human
to notify all affected parties, including
culturally affiliated Indian tribes and
Native Hawaiian organizations. The
Federal agency official — and not a
person proposing to undertake an
activity on Federal lands — is
responsible for the management of lands
under his or her control and is the
appropriate person to notify Indian
tribes and Native Hawaiian
organizations of intentional excavations.
The Federal agency official, once
notified by a person of such an activity,
is required to take reasonable steps to
determine whether the planned activity
may result in the intentional excavation
patrimony. Prior to issuing any
approvals or permits, the Federal agency
official must notify in writing the Indian
tribe or Native Hawaiian organizations
that are likely to be affiliated with any
excavated items. A person proposing to
undertake an activity on tribal lands
should contact the appropriate tribal
official directly.
requiring the Federal official identified
in the first sentence of § 10.3 (c)(2)
(renumbered § 10.3 (c)(1)) to meet the
Secretary’s standards for persons
conducting ethnohistoric research.
There currently are no Secretary’s
standards for ethnohistoric research.
Each agency is responsible for ensuring
that their employees are qualified to
conduct the work required of them. One
commenter recommended clarifying the
‘‘reasonable steps’’ required of Federal
officials to explicitly include
completion of Stage I surveys for of all
planned ground-disturbing activities as
required under section 106 of the
NHPA. The type of steps taken by a
Federal agency official are expected of
vary from case-to-case and have not
been specified in these regulations.
requiring Federal officials to take
reasonable steps regarding planned
activities ‘‘or Federal actions.’’ The
recommended language has not been
62142
added as it might be interpreted to refer
to Federal actions on non-Federal lands.
Provisions of the Act regarding
intentional excavations and inadvertent
discoveries apply only to activities
occurring on Federal and tribal lands.
the responsible Federal agency official
need be notified regarding planned
activities for which there is no
indication that disturbance of human
is likely. These regulations do not
require notification of the responsible
Federal agency official regarding
planned activities for which intentional
excavation or removal of human
is not anticipated. Human remains,
objects of cultural patrimony discovered
inadvertently during such an activity
would require cessation of activity for
thirty (30) days while the Federal
official consults with affiliated Indian
organizations.
the phrase ‘‘otherwise required by law’’
in the second sentence of § 10.3 (c)(2)
(renumbered § 10.3 (c)(1)) referred to
‘‘approvals or permits’’ or to
‘‘activities.’’ The sentence has been
rewritten as ‘‘required approvals or
permits for activities.’’ One commenter
recommended including language
requiring Federal agency officials to
notify both Indian tribe officials and
traditional religious leaders and
obtaining that written approval from the
traditional leaders prior to issuance of
required approvals or permits. The Act
requires Federal agency officials to
consult with Indian tribes and Native
Hawaiian organizations regarding the
disposition of human remains, funerary
inadvertently on Federal or tribal lands.
Consultation with traditional religious
leaders is required regarding the
identification of cultural items in
museum or Federal agency collections.
The consent of traditional religious
leaders prior to the issuance of
approvals or permits is not required by
the Act. One commenter recommended
inclusion of provisions requiring a
minimum of at least ten days advance
warning of any proposed meeting in the
Federal agency official’s notification to
culturally affiliated Indian tribes or
Native Hawaiian organizations. The
recommended requirement could
needlessly delay consultation between
Federal and tribal officials. Federal
officials should include adequate
advance notice of upcoming meetings,
but the necessary time will vary
according to the situation and existing
relationship between the Federal agency
and the Indian tribes or Native
Hawaiian organizations. The text has
not been changed.
One commenter questioned the
necessity of distinguishing in the third
sentence of § 10.3 (c)(2) (renumbered
§ 10.3 (c)(1)) between culturally
affiliated Indian tribes and those Indian
tribes that aboriginally occupied an
area. The priority order for evaluating
claims of human remains, funerary
inadvertently on Federal or tribal lands,
provided in Section 3 of Act, includes
Indian tribes that are recognized as
aboriginally occupying the area in
which the objects were identified. The
regulatory language ensures that those
Indian tribes that aboriginally occupied
an area are notified of planned activities
that may result in the intentional
excavation of human remains, funerary
cultural patrimony. Another commenter
recommended including staterecognized intertribal councils in the
notification process. Section 12 of the
Act makes clear the special relationship
between the Federal government and
Indian tribes. Federal officials are thus
directed to consult directly with Indian
tribes. Indian tribes may however,
delegate their consultation
responsibilities to other organizations,
including state inter-tribal councils. One
commenter recommended following
written notification by telephone
contact if there is no response in 15
days. Language to that effect has been
inserted as the second to last line of the
section. One commenter recommended
that, after consultation, Federal officials
are required to complete a written plan
of action as described in § 10.5 (e) and
to execute the actions called for in the
plan of action. The recommended text
has been inserted as § 10.3 (c)(2) and all
subsequent subsections renumbered.
Two commenters objected to § 10.3
(c)(3) on the grounds that by exhorting
Federal agencies to coordinate activities
required by these regulations with the
compliance procedures for section 106
of the NHPA, the regulations give the
impression that human remains,
objects of cultural patrimony would be
eligible for the National Register of
Historic Places. Four other commenters
recommended the subsection either be
left as is, or edited to require such
coordination to ensure consistency
between and among Federal agencies.
excluding such ‘‘secondary agencies as
the State Historic Preservation Officers’’
from the consultation process. The
subsection is intended to remind
Federal agencies of similarities between
the two consultation processes while
providing the necessary latitude for
designing effective and situationspecific procedures. The text has not
been changed.
Two commenters objected to
identification in § 10.3 (c)(4) of the
Indian tribe as being responsible for
compliance with provisions of the Act
regarding intentional excavations on
their lands. Section 3 (a)(2)(A) of the Act
makes it clear that Indian tribes have
preference regarding custody of human
inadvertently on their tribal lands
second only to lineal descendants. The
regulatory text is consistent with
Federal recognition of an Indian tribe’s
sovereignty regarding administration of
their lands and has not been changed.
Another commenter requested
clarification of whether the intentional
excavation provisions apply to lands
exchanged by Indian tribes. In general,
the provisions regarding intentional
excavations and inadvertent discoveries
apply to Federal lands and those lands
currently held in trust by the United
States for an Indian tribe. Lands outside
the exterior boundary of an Indian
reservation that are held in trust by the
United States for an Indian tribe do not
meet the statutory definition of tribal
lands. These lands are under Federal
control, and the provisions for
discovery on Federal lands apply. The
provisions of these regulations do not
apply to lands owned by an Indian tribe
that have not been accepted into trust by
the United States. Another commenter
requested clarification regarding which
Federal agency would have primary
responsibility for compliance with the
discovery provisions of these
regulations for proposed or existing coal
mining operations on tribal lands. Any
person who proposes to undertake an
activity on tribal lands that may result
in the intentional excavation of human
must immediately notify in writing the
responsible Indian tribe official. The
tribal official then decides what, if any,
steps to take. One commenter
recommended including a deadline for
Indian tribe response to notification of
an activity planned for tribal lands. A
deadline for Indian tribal response
regarding proposed intentional
excavations on tribal land is not
considered appropriate as section 3
(c)(2) of the Act makes it clear that any
intentional excavation or removal of
on tribal land requires the consent of the
Hawaiian organization. Another
commenter recommended clarifying
that the Indian tribe should take
appropriate steps to make certain that
the ‘‘treatment and disposition’’ of
be carried out. The recommended
language has been included.
Section 10.4
This section carries out section 3 (d)
of the Act regarding the custody of
that are discovered inadvertently on
Federal or tribal lands after November
16, 1990. One commenter requested
replacement of the word ‘‘inadvertent’’
in the section title with ‘‘unintended.’’
Section 3 (d) of the Act addresses the
as part of approved work projects as
well as other, unintentional discoveries
on Federal or tribal lands. The statutory
term covers both meanings adequately
and has been retained in the title and
throughout the text.
One commenter felt the entire section
needed to be more specific. One
commenter recommended editing the
general statement in § 10.4 (a) to state
explicitly that the provisions apply only
to ‘‘Native American’’ human remains,
objects of cultural patrimony. The
definition of human remains, funerary
cultural patrimony in § 10.2 (d) make it
clear that these regulations only apply
to Native American human remains,
objects of cultural patrimony.
clarification in the regulations regarding
treatment of disarticulated and
unassociated human remains. Section
10.4 of the Act covers the treatment and
disposition of such human remains
under ‘‘Inadvertent Discoveries.’’
revising the first sentence of § 10.4 (b)
to require the person making an
inadvertent discovery, and not just
anyone that knows of an inadvertent
discovery, to notify the responsible
Federal official. The phrase has been
revised to more closely reflect the
statutory language. Another commenter
recommended that the notification of
the responsible Federal official be
immediate, via telephone or fax, to
ensure that the activity is ceased as soon
as possible. The text has been modified
to require immediate telephone
notification of the inadvertent discovery
with written confirmation following.
inclusion of language in this subsection
restating that determination of lineal
descent or cultural affiliation usually
require physical anthropological study,
laboratory analysis, radiocarbon dating,
and other study to make a legally
defendable statement. The criteria for
determining lineal descent and cultural
affiliation, which may include these
kinds of examinations, are contained in
§ 10.14, and apply throughout these
regulations; they have not been repeated
in this section. Another commenter
recommended requiring professional
investigation sufficient to complete an
accurate identification of the nature of
the inadvertent discovery prior to
notifying the responsible Federal agency
official or Indian tribe official to ensure
that the procedures are not carried out
unnecessarily. The drafters consider
requiring the complete professional
identification of inadvertently
discovered human remains, funerary
cultural patrimony prior to notification
of the responsible Federal or Indian
tribe officials inconsistent with the
statutory language and the legislative
history. One commenter requested
clarification of the responsibilities of the
person making an inadvertent discovery
for notifying other agencies, such as the
local police, coroner, and the State
Historic Preservation Officer.
Requirements for notification of local or
state officials vary by jurisdiction and
have not been addressed in this rule.
Subsection 10.4 (f) of these regulations
suggests Federal land managers
coordinate their responsibilities under
this section with their emergency
discovery responsibilities under section
106 of the NHPA which includes
notification of the State Historic
Preservation Officer. One commenter
recommended modifying the text to
require Federal agency employees
working on tribal lands to immediately
notify their supervisor, who in turn will
notify the Indian tribe official. Section
3 (d)(1) of the Act requires notification
of Indian tribe officials regarding
inadvertent discoveries on tribal lands.
Federal agency officials conducting
activities on tribal lands should ensure
62143
that their employees are familiar with
the notification procedures of these
regulations. One commenter
recommended expanding this
subsection to include provisions to
ensure that a Federal agency documents
and acts on reported inadvertent
discoveries. Federal agency officials are
required to comply with the provisions
of these regulations.
applying the cessation of activity
following inadvertent discovery of
on Federal or tribal lands in § 10.4 (c)
only to burials in areas that will not be
disturbed and in emergency discovery
situations. This suggestion runs counter
to the statutory requirements and the
regulatory language has not been
changed. Two commenters requested
clarification of the phrases ‘‘in the area
of the discovery’’ and a ‘‘reasonable
effort’’ regarding protection of human
following inadvertent discovery. The
terms have not been precisely defined in
recognition of the variability of site
locations and types. In general, the
terms are interpreted in a fashion that
adequately protects the human remains,
objects of cultural patrimony from
additional damage.
One commenter recommended editing
and renumbering § 10.4 (a), (e), and (f)
to more accurately reflect the
distinctions between procedures on
Federal lands and those for tribal lands.
The text of § 10.4 (d) has been
renumbered § 10.4 (d)(1) and § 10.4 (e)
has been renumbered as § 10.4 (d)(2).
including additional text in § 10.4 (d)(1)
(renumbered section 10.4 (d)(1)(i))
directing Federal agencies to establish a
process for certifying the receipt of
inadvertent discovery notifications and
training personnel responsible for such
certifications by a specific date.
Certification procedures for the receipt
of notifications — such as those
resulting from inadvertent discoveries
— are already in place with all land
management Federal agencies and need
only be modified to the specifics of
these regulations. One commenter
recommended including additional
examples of steps to secure and protect
inadvertently discovered human
— such as fencing, 24–hour surveillance
in populated areas — in § 10.4 (d)(2)
(renumbered section 10.4 (d)(1)(i)).
Specific steps to secure and protect
62144
will vary from site-to-site and have not
been specified in this rule.
Seven commenters recommended
extending the one (1) day deadline for
notification of affiliated Indian tribes by
Federal agency officials in § 10.4 (d)(3),
with suggestions ranging anywhere from
three to ten days. The one (1) day
deadline was designed to ensure that
Federal agency officials and Indian tribe
officials maximize the amount of time
available for consultation regarding the
treatment and disposition of
The Act requires that the thirty (30)-day
cessation of the activity begins with the
Federal agency official certifying receipt
of notification from the inadvertent
discoverer of the human remains,
objects of cultural patrimony. As a
result, any additional time provided the
Federal agency official to contact the
appropriate Indian tribe official is time
taken away from the consultation
process. In recognition of the inherent
notification difficulties, the drafters
have modified the initial notification
requirements to require the person
making the inadvertent discovery to
provide immediate telephone
notification with written confirmation
to the Federal official. Certification of
the notification by the Federal official
and the required notification of the
Indian tribe official occurs upon receipt
of the written confirmation, thus
providing the Federal agency official
with some additional time between the
telephone call and receipt of the written
notice to identify the appropriate Indian
tribe officials. The one (1) day
notification deadline has been extended
to three (3) working days. One
commenter requested clarification for
the phrase ‘‘Indian tribe or tribes known
or likely to be affiliated.’’ It should be
noted that this initial contact is
designed to notify those Indian tribes or
Native Hawaiian organizations that are
‘‘likely’’ to be affiliated with the
Federal agencies are encouraged to
compile a listing of the appropriate
organizations and their officials as soon
as possible to facilitate rapid
notification when an inadvertent
discovery is made. Determination of the
specific affiliation of the inadvertently
cultural patrimony can be made during
the thirty (30) day cessation of activity.
Two commenters requested clarification
of the phrase ‘‘if known’’ in § 10.4 (d)(3)
(renumbered § 10.4 (d)(1)(iii)) regarding
the required notification of Indian tribes
which aboriginally occupied the area in
which human remains, funerary objects,
patrimony have been discovered
inadvertently. Information regarding the
aboriginal lands of Indian tribes is
readily available to Federal agency
officials from the results of Indian Land
Claims Commission and Court of Claims
decisions. ‘‘If known’’ has been deleted.
suspending the initiation of
consultation required in § 10.4 (d)(4)
(renumbered § 10.4(d)(1)(ii)) for up to
thirty (30) days in cases of illegal
excavation or violation of Federal law,
specifically in cases where confidential
criminal investigation are being
conducted. As the likely custodians of
illegally excavated human remains,
objects of cultural patrimony pursuant
to section 3 of the Act, the appropriate
organization should be notified of the
inadvertently discovery and consulted
as part of any ongoing investigation. The
responsibility to pursue ARPA
investigations does not devolve from the
land manager’s law enforcement agency
merely because consultation is required
under this Act. If an ARPA investigation
is under way, the law enforcement
agents involved should immediately
notify their superiors and other Federal
agency officials involved in NAGPRA
consultation if any aspect of NAGPRA
consultation is likely to interfere with
the investigation.
changing the length of the required
cessation of activities in § 10.4 (e)
(renumbered § 10.4 (d)(2)). Four
commenters recommended reducing the
period — to fifteen (15) days, seven (7)
days, or deleted entirely — while two
commenters recommended extending
the period until the affiliated Indian
tribe or Native Hawaiian organization
consents to continuation of the project.
The thirty (30) day period for cessation
of activities in the area of an inadvertent
discovery is stipulated in section 5 (d)
of the Act and has not been changed.
clarification of the stipulation that
activity may resume after thirty (30)
days, ‘‘if the resumption of the activity
is otherwise lawful.’’ The phrase is used
to acknowledge that provisions of other
statutes, such as section 106 of the
NHPA, may also apply to a particular
inadvertent discovery and the
resumption of activities in the area of
the inadvertent discovery must comply
with other legal requirements as well as
those of these regulations.
Four commenters requested
clarification of the procedures following
the thirty (30)-day cessation of activity.
After consulting with the affiliated
organization during the thirty day (30)
cessation of activity, the Federal agency
official must make a decision regarding
the treatment, excavation, and
disposition of any inadvertently
cultural patrimony. The options may
include preservation in situ or
excavation of the human remains,
objects of cultural patrimony. This
decision must be informed by the
consultation process, but obviously will
take into account other considerations
as well. One commenter requested
clarification regarding the responsibility
for costs incurred during the required
work cessation. Responsibility for costs
incurred during the required work
cessation will depend upon the nature
of the contract drawn between the
Federal agency and the appropriate
contractor. One commenter
recommended additional language
indicating that resumption of an activity
in the area of inadvertent discovery can
occur only after the human remains,
objects of cultural patrimony have been
removed or treated. Determining the
cultural patrimony discovered
inadvertently on Federal and tribe land
can only occur after consultation with
Hawaiian organizations. The drafters
consider it premature to stipulate the
outcomes.
accompanying the written, binding
agreement between the Federal agency
and the affiliated Indian tribes or Native
Hawaiian organizations in the second
sentence of § 10.4 (e) (renumbered 10.4
(d)(2)) by a letter from the appropriate
Indian tribe official expressing
agreement with a proposed course of
action. The nature of agreements
between Federal agencies and Indian
organizations will depend upon the
specific situation and have not been
defined precisely in these regulations.
clarifying the phrase ‘‘necessary
parties.’’ The phrase has been replaced
with ‘‘Federal agency and the affiliated
organizations.’’ One commenter
inquired whether a memorandum of
agreement signed and executed under
the NHPA prior to any inadvertent
discovery would take priority standing.
Such an agreement might apply if the
agreement specifies the plan for the
removal, treatment, and disposition of
the human remains, funerary objects,
patrimony; the agreement is considered
binding by both the Federal agency and
the affiliated Indian tribes or Native
Hawaiian organizations; and, the
agreement is consistent with the
requirements of the Act and these
regulations.
One commenter identified § 10.4 (f)
(renumbered section 10.4 (e)) as an
‘‘absurd attempt to fob off the Federal
agency’s responsibilities onto the
tribes.’’ Requiring a Federal agency to
act as intermediary between the person
inadvertently discovering human
and the Indian tribe on whose land the
have been discovered inadvertently is
counter to the goal of the statute, as
expressed in the legislative history, of
facilitating direct dialogue. One
commenter recommended inclusion in
this subsection of a listing of those
actions required of Indian tribe officials
under the Act. The subsection has been
amended to include the recommended
text. One commenter recommended
inclusion of a specified deadline for an
Indian tribe to respond following
notification of the inadvertent discovery
patrimony. The drafters consider it
inappropriate to impose a deadline for
Indian tribe response following
notification. One commenter
recommended inclusion of a section
regarding the resumption of activity on
tribal lands. The recommended section
has been included as § 10.4 (e)(2).
One commenter identified § 10.4 (g)
(renumbered § 10.4 (f)) as serving only
to confuse requirements and procedures
stemming from distinct laws with
distinct purposes and recommended
deleting the subsection. Other
commenters identified § 10.4 (g) as
being most welcome, but recommended
omitting the specific regulatory citations
in light of current efforts to amend
regulations for the NHPA. The citations
have been retained to facilitate crossreferencing. One commenter
recommended clarifying the subsection
to indicate that the inadvertent
cultural patrimony does not necessarily
require an agreement under section 106
of the NHPA. Not all human remains,
objects of cultural patrimony are
deemed eligible for the National
Register of Historic Places and thus do
not fall within the purview of the
NHPA. Their inadvertent discovery
would thus not require such an
agreement. Two commenters
recommended including specific
language to outline the relationship
between provisions of the Act and those
of ARPA, NHPA, and the American
Indian Religious Freedom Act (AIRFA).
The details of how Federal agencies
coordinate their responsibilities under
the various statutes will depend on their
procedures and specific situations; the
text has not been modified. However,
section 110 (a)(2)(E)(iii) of the NHPA
requires Federal agencies to provide for
the disposition of Native American
objects, and objects of cultural
patrimony in a manner consistent with
the Act. Further, section 112 (b)(3) and
(b)(4) require the Secretary of the
Interior to publish guidelines to
encourage private owners as well as
Federal, state, and tribal governments to
protect Native American human
objects, and object of cultural
patrimony.
including language at § 10.4 (g)
requiring all authorizations to carry out
land use activities on Federal lands or
tribal lands, including all leases and
permits, to include a requirement for the
holder of the authorization to notify the
appropriate Federal or tribal official
immediately upon the discovery of
The language is included in the text.
Section 10.5
This section establishes requirements
for consultation as part of the
cultural patrimony on Federal lands.
One commenter objected to the
implication in the first sentence of the
section that consultation is necessarily
‘‘part of’’ the intentional excavation or
inadvertent discovery process. The Act
requires consultation as part of
discovery situations. The language has
been retained. One commenter
recommended replacing the phrase
‘‘Federal lands’’ with ‘‘land in the
United States, its territories, or
possessions.’’ Provisions of section 3 of
62145
the Act are clearly limited to Federal
and tribal lands. The language has been
retained. One commenter recommended
that ‘‘a minimum set of standards be
identified for the scientific study of
human remains and associated grave
goods.’’ Section 5 (a)(2) of the Act
precludes using the Act as an
authorization for the initiation of new
scientific studies of human remains and
associated funerary objects. The
recommended language has not been
included.
revising the first sentence of § 10.5 (a) to
coordinate contact with traditional
religious leaders through the
appropriate Indian tribe. The most
appropriate method for contacting
traditional religious leaders will vary
between Indian tribes. The language has
been retained to provide this necessary
flexibility. Another commenter
recommended clarifying that
consultation must be conducted without
regard to state boundaries. The
widespread relocation of Indian tribes
during the eighteenth and nineteenth
centuries means that consultation may
often require contact with Indian tribes
that are no long resident in the area of
the intentional excavation or
inadvertent discovery. Lineal
descendants and affiliated Indian tribes
and Native Hawaiian organizations must
be contacted and consulted with
regardless of where they are living
presently.
inserting ‘‘the’’ before ‘‘human remains’’
in § 10.5 (a)(1) to make it clear that the
consulting parties may vary from caseto-case. The text has been changed. One
commenter recommended changing the
‘‘and’’ between § 10.5 (a)(1) and (a)(2) to
‘‘or.’’ The original text has been retained
to emphasize the necessity of consulting
with Indian tribes that are or are likely
to be culturally affiliated with the
as well as the Indian tribe on whose
aboriginal lands the human remains,
objects of cultural patrimony have been
located or are expected to be found and
the Indian tribe or Native Hawaiian
organization have a demonstrated
cultural relationship with the human
One commenter recommended deleting
§ 10.5 (a)(2) in that it assumes a
relationship between prehistoric
archeological sites and historic use of an
area. Section 3 of the Act makes it clear
that Indian tribes on whose aboriginal
lands human remains, funerary objects,
62146
patrimony have been or are likely to be
located need not be culturally affiliated
with those human remains, funerary
cultural patrimony to be considered
their legitimate custodian. One
commenter recommended substituting
‘‘excavation’’ for ‘‘activity’’ in § 10.5
(a)(2). The term ‘‘activity’’ in this
sentence refers to ‘‘an activity on
Federal or tribal lands that may result in
the excavation of human remains or
cultural items’’ as defined in § 10.3 (c).
The text has been modified to
incorporate this clarification.
deleting ‘‘likely’’ cultural affiliation in
the first sentence of § 10.5 (b) since the
term is not defined in either the Act or
these regulations. The term has been
deleted. One commenter recommended
replacing the term ‘‘objects’’ in the same
sentence with ‘‘human remains,
objects of cultural patrimony.’’ The term
has been replaced. One commenter
recommended deleting the phrase
‘‘other Indian tribes that may have a
relationship...’’ in the second sentence.
The existing phrase is drawn from
section 3 (a)(2)(C)(2) of the Act and has
been retained. One commenter
recommended provisions that require
the notice include information regarding
the proposed time and place for
meetings and the Federal agency’s
proposed treatment and disposition of
the intentionally excavated or
The suggested language has been
included in the text. One commenter
recommended revising the last sentence
of § 10.5 (b) to require traditional
religious leaders be consulted and their
recommendations followed. The
requested revision runs counter to the
requirements of the Act and has not
been included in the text.
Two commenters requested further
clarification of the type of activities that
constitute consultation. Additional text
has been added throughout § 10.5 to
clarify the consultation process.
inclusion of additional language in
§ 10.5 (c) requiring Federal agencies to
provide in writing information
regarding the nature and general
location of any inadvertent discovery or
proposed activity. The recommended
text has been added. One commenter
recommended rewriting § 10.5 (c)(2) to
indicate that additional documentation
will be supplied if it has been used to
identify the cultural affiliation of human
The proposed language has been
included in the text.
amending § 10.5 (d) to indicate that
failure to respond to the Federal
agency’s request for information could
be taken to signify an Indian tribe’s
voluntary withdrawal from standing
under these sections. Indian tribes or
Native Hawaiian organizations that have
been duly notified of an intentional
excavation or inadvertent discovery are
not required to respond to the Federal
agency’s request for information. One
commenter recommended including
language to insure that information
provided to Federal agency officials
will, at the request of the Indian tribe or
Native Hawaiian organization, be held
in confidence. The Act provides no
specific exemptions from provisions for
the Freedom of Information Act for
culturally sensitive information.
However, Federal agency officials may,
at the request of an Indian tribe or
Native Hawaiian organization official,
take such steps as are considered
necessary pursuant to otherwise
applicable law to ensure that
information of a particularly sensitive
nature is not made available to the
general public. One commenter
recommended changing ‘‘collections’’ in
§ 10.5 (d)(3) to ‘‘human remains,
objects of cultural patrimony.’’ The
recommended change has been made.
Two commenters identified § 10.5 (d)(5)
as being too broad and unlikely to give
useful guidance and recommended
deleting the subsection. Although not
determinant, information about the
kinds of cultural items that the Indian
considers as funerary objects, sacred
is important and useful for Federal
agency officials to make decisions
required of them under these
regulations. The subsection has been
retained.
One commenter recommended tying
the requirements in § 10.5 (e) explicitly
to the coordinated preparation of
individual environmental and cultural
resource management plans for projects,
facilities, and land units. Integration of
the requirements of these regulations
with those of other statutes and policies
has been left to the discretion of each
affected Federal agency. One commenter
considered § 10.5 (e) fine as it stands.
One commenter recommended requiring
the completion of a written plan of
action as a result of consultation. The
text has been rewritten to make it clear
that completion of a written plan of
action, approved and signed by the
Federal agency official, is required. One
commenter recommended requiring the
approval and signature of the written
plan of action by the affiliated Indian
tribe officials. While the approval and
signature of Indian tribe officials and
other parties is desirable, the
concurrence of these officials to the
written plan of action is not required.
One commenter recommended the
written plan of action include in situ
preservation to offset what the
commenter perceived as a bias toward
‘‘excavation, analysis and recordation of
imbedded materials,’’ and too narrow a
definition of custodial interest in
imbedded materials. One commenter
requested clarification of the term
‘‘treatment’’ as used in § 10.5 (e)(3) and
(e)(7). The term is used throughout these
regulations according to its common
meaning, that is, a specific manner of
dealing with human remains, funerary
cultural patrimony. The specifics of
treatment must be considered as part of
the consultation process. Two
commenters recommended including in
situ preservation specifically as a
treatment option in § 10.5 (e)(3).
Preservation of human remains,
objects of cultural patrimony in place
should be considered whenever
possible. Because case-by-case examples
have not been provided, the option has
not been added to the regulatory text.
including language under § 10.5 (e)(4) to
indicate that archeological recording
must comply with certain standards.
Any archeological activity conducted on
Federal or tribal lands, including the
intentional excavation or removal of
objects, or objects of cultural patrimony,
must meet the standards provided by
ARPA. One commenter recommended
requiring radiocarbon dating as part of
the archeological reporting. Determining
the necessity of radiocarbon or other
types of analysis must be on a case-bycase basis. One commenter
recommended deleting § 10.5 (e)(5)
since analysis should only be permitted
in the rare circumstance where the
cultural affiliation of human remains,
objects of cultural patrimony is not
clear. The subsection has been retained
to ensure that analysis is discussed
thoroughly during the consultation
process. One commenter recommended
specifying the steps to be followed to
contact traditional religious leaders
should under § 10.5 (e)(6). The Act does
not require consultation between
Federal agency officials and traditional
religious leaders regarding the
cultural patrimony. Identification of
traditional religious leaders and the
recommended steps in contacting them
is left to the discretion of Indian tribe
officials. Three commenters
recommended specification of a
deadline for completion of the written
plan of action. Written plans of action
should generally be completed during
the thirty (30) day consultation period
following an inadvertent discovery or
prior to issuance of an ARPA permit for
intentional excavations.
changing the title of § 10.5 (f) from
‘‘Programmatic agreements’’ to
‘‘Comprehensive agreements’’ to avoid
confusion between agreements
developed regarding the treatment and
inadvertently on Federal lands and
programmatic agreements developed
pursuant to provisions of the NHPA.
The term ‘‘programmatic agreements’’
has been changed in the title and
throughout the subsection to
‘‘comprehensive agreements.’’ Two
commenters identified such agreements
as ‘‘an awkward means of
accomplishing the intent of the law,’’
and recommended deleting the
subsection. Comprehensive agreements
are intended to provide Federal agency
officials and Indian tribe officials with
an efficient means of ensuring
intentionally excavated and
receive the appropriate treatment and
disposition. The subsection has been
retained. One commenter objected to the
reference to ‘‘specific’’ human remains,
objects of cultural patrimony referenced
in the first section of § 10.5 (f) on the
grounds that such agreements should
define proactively the procedures and
criteria for the treatment and disposition
of any human remains, funerary objects,
patrimony excavated intentionally or
discovered inadvertently. The term has
been deleted from the text. One
commenter recommended that
comprehensive agreements address not
only Federal agency land management
activities, but Federal agency regulatory
responsibilities as well. These
regulations address Federal agency
responsibilities under the Act. While
Federal agency responsibilities under
other statutory, regulatory, and policy
mandates need to be considered in
preparation of such documents, the
inclusion of such requirements in these
rules is not appropriate. One commenter
recommended including language
requiring the consent of traditional
religious leaders to any comprehensive
agreements in the text. The Act does not
require consultation between Federal
agency officials and traditional religious
leaders regarding the treatment or
inadvertently on Federal lands. One
commenter recommended modifying
the last sentence of the subsection to
indicate that the ‘‘signed’’
comprehensive agreement should be
considered proof of consultation. The
text has been edited as recommended.
requiring Indian tribe officials to consult
with and make recommendations
following the advice of traditional
religious leaders. The Act does not
require consultation between Indian
tribe officials and traditional religious
leaders regarding the intentional
excavation or inadvertent discovery of
Consultation with traditional religious
leaders is left to the discretion of Indian
tribe officials.
Section 10.6
This section carries out section 3 (a)
of the Act, subject to the limitations in
§ 10.15, regarding custody of human
inadvertently on Federal or tribal lands
after November 16, 1990. One
commentor objected to the terms ‘‘legal
interest in’’ and ‘‘ownership’’ as applied
to human remains, funerary objects, and
objects of cultural patrimony; and
recommended replacing the terms with
‘‘custodial responsibility.’’ The terms
have been changed to ‘‘custody’’
throughout the text. This change,
however, is only editorial and does not
alter the requirements of the Act. One
reference to the limitations in § 10.15
from this section. Limitations on the
custodial criteria presented in section 3
(a) of the Act are drawn from section 7
(b), (c), and (e) of the Act. Both § 10.15
and the cross-reference in this section
have been retained. One commenter
recommended setting limits in this
section on just how temporally and
culturally far afield claims of custody
can be extended reasonably.
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Applicability of the custody criteria in
this section is dependant on the facts of
each case and will vary. The type of
limits recommended by the commenter
are considered inappropriate to such a
case-by-case evaluation process. One
language in this section to identify the
party responsible for substantiating
claims. Lineal descendants or Indian
tribes or Native Hawaiian organizations
must provide information to
substantiate their claims as outlined in
§ 10.10 (a) and (b).
concluding the search for the custodian
tribal lands with the first legitimate
claimant identified under § 10.6 (a) that
declines to make and substantiate a
claim. One commenter recommended
limiting custody of human remains,
objects of cultural patrimony found on
tribal lands to those human remains,
objects of cultural patrimony dating
after establishment of the reservation.
reversing the order of the custody
criteria in § 10.6 (a)(2)(i) and (a)(2)(ii) so
that culturally affiliated Indian tribes or
Native Hawaiian organizations are given
preference over tribal land owners.
Another commenter recommended
giving culturally affiliated Indian tribes
preference over tribal land owners in
claims for sacred objects or objects of
cultural patrimony found on tribal
lands. One commenter recommended
deleting the custody criteria in § 10.6
(a)(2)(ii) and (a)(2)(iii) and instead have
found on Federal lands revert to the
United States. One commenter
recommended including language under
§ 10.6 (a)(2)(iii)(A) that would restrict
any Indian tribe making a claim based
upon its aboriginal occupation of
Federal land from any action that would
irreparably damage the interests of
another Indian tribe who might have a
superior claim. The custody criteria in
§ 10.6 (a) are taken virtually verbatim
from section 3 (a) of the Act. All of the
above recommendations run counter to
those ownership criteria established by
the Act and have not been included in
the text.
clarification in § 10.6 (b) of how the
custody criteria effect Federal
responsibilities under NHPA and ARPA.
To the extent that any conflicts among
those laws may exist, it is a general rule
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of statutory construction that newer and
more specific legislation takes
precedence over older or more general
laws. The custody of human remains,
is as specified in § 10.6 (a).
One commenter stated that the
obvious purpose of § 10.6 (c) is to create
disputes between Indian tribes or
between Native Hawaiian organizations
regarding the custody of human
inadvertently on Federal lands, and
recommended deleting the subsection.
inclusion of language in this subsection
indicating that an identified individual,
Indian tribe, or Native Hawaiian
organization custodian has decisionmaking authority regarding the
treatment and disposition of human
inadvertently on Federal lands.
Individual, Indian tribe, or Native
Hawaiian custodians of human remains,
objects of cultural patrimony gain
complete decision-making authority
regarding the treatment and disposition
patrimony upon the transfer of those
from the Federal agency. One
word ‘‘traditional’’ from the second
sentence of § 10.6 (c). Another
commenter recommended adding the
phrase ‘‘of the specific Indian tribe in
each instance’’ at the end of the same
sentence for clarification. The
recommended language has been added
to the text. Two commenters requested
clarification of the purpose and nature
of the public notices required in the
third sentence of § 10.6 (c). Three
commenters recommended the
publication of notices regarding the
inadvertently on Federal lands in the
tribal or local newspapers of those
Indian tribes that have standing to make
a claim under § 10.6 (a), as well as in a
newspaper of general circulation in the
area in which the human remains,
objects of cultural patrimony were
inadvertently. Another commenter
recommended requiring publication of
the notices within seven (7) days of
determination of which Indian tribe or
Native Hawaiian organization has
custodial rights. Another commenter
objected to the public notice
requirement in that it might offend the
sensibilities of those Indian tribes or
Native Hawaiian organizations
involved. This subsection outlines
procedures to ensure due process in the
transfer of human remains, funerary
inadvertently on Federal lands to their
proper individual, Indian tribe, or
Native Hawaiian organization
custodian. Notices need only provide
information adequate to allow
potentially interested lineal
descendants, Indian tribes, or Native
Hawaiian organizations to determine
their interest in claiming custody under
these regulations. The requirements
regarding publication of public notices
have been rewritten for clarity and
include provisions for publication in
local and tribal newspapers of general
circulation in the areas in which
culturally affiliated Indian tribes or
Native Hawaiian organizations now
reside.
Section 10.7
This section has been reserved for
procedures for the disposition of
unclaimed human remains, funerary
inadvertently on Federal lands or tribal
lands after November 16, 1990. One
commenter recommended developing
this section with input from Indian
organizations. Section 3 (b) of the Act
requires that regulations regarding the
disposition of unclaimed human
inadvertently on Federal or tribe lands
be published by the Secretary in
consultation with the Review
Committee, and representatives of
Indian tribes, Native Hawaiian
organizations, museums and the
scientific community.
Section 10.8
This section carries out Section 6 of
the Act related to conducting summaries
of collections in the possession or
control of museums that receive Federal
funding or Federal agencies which may
patrimony. Four commenters objected to
use of the phrase ‘‘collections that may
include...’’ in § 10.8 (a) and throughout
the section as overstepping the statutory
authorization and giving the mistaken
impression that these regulations apply
to entire collections and not to specific
unassociated funerary objects, sacred
patrimony. The statutory language is
unclear whether summaries should
include only those unassociated
objects of culturally affiliated with a
particular Indian tribe or Native
Hawaiian organization, or the entire
collection which may include these
cultural items. The legislative history
and statutory language does make it
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. Consultation between a
museum or Federal agency and an
organization is not required until after
completion of the summary.
Identification of specific sacred objects
or objects of cultural patrimony must be
done in consultation with Indian tribe
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
patrimony would require a museum or
Federal agency to complete an item-byitem listing first. The drafters opted for
the more general approach to
completing summaries of collections
that may include unassociated funerary
cultural patrimony rather than the
itemized list required for the inventories
in hopes of enhancing the dialogue
between museums, Federal agencies,
Indian tribes, and Native Hawaiian
organizations required under the Act.
One commenter requested clarification
of the deadlines and funding
responsibility of this section. Section
10.8 (c) of these regulations clearly
states that summaries under this section
are to be sent to affiliated or likely
affiliated tribes by November 16, 1993.
Funding responsibilities lie with the
museums and Federal agencies
maintaining such collections. Grants to
aid museums, Indian tribes, and Native
Hawaiian organizations in carrying out
the Act are authorized in section 10 of
the Act.
Three commenters questioned use of
the term ‘‘undertakings’’ in the last
sentence of § 10.8 (a). One commenter
(67–3) recommended defining the term
as used in section 106 of NHPA. Two
commenters recommended changing the
term to ‘‘activities’’ or ‘‘actions’’ to make
it clear that provisions of the Act do not
necessarily apply to Federal
‘‘undertakings’’ conducted on private
land. The term has been changed to
‘‘actions’’ to clarify that Federal
agencies may not be responsible for
ensuring that requirements of this
section are met for all collections
obtained as part of section 106
‘‘undertakings’’ on non-Federal land.
including language in § 10.8 (a) to
require Federal agencies to consult with
non-Federal institutions prior to
initiating consultation with Indian
that are culturally affiliated with human
from Federal lands but currently in the
possession of the non-Federal
institution. Another commenter
recommended including specific
language to stress that non-Federal
institutions do not have authorization to
unilaterally dispose of human remains,
Federal lands. Requirements regarding
the relationship between Federal
agencies and non-Federal institutions
are not specified in the Act. ARPA and
NHPA assign responsibility for long
term care and curation of collections
from Federal land and actions to the
Federal agency that manages the land or
undertakes the action.
including language in § 10.8 (b)
specifying that summaries should
include information readily available
from museum records as to whether an
object is an unassociated funerary
cultural patrimony, as well as an
assessment of the general reliability of
the records. Information regarding
individual unassociated funerary
cultural patrimony is more
appropriately shared during the
consultation process. The regulatory
text has not been changed.
including some provision for extension
of the November 16, 1993 deadline for
completion of the summaries in § 10.8
(c). While provisions for extensions to
the November 16, 1995 deadline for
completion of inventories of human
remains and associated funerary objects
are included in section 5 (c) of the Act,
no such provisions for extension of the
summary deadlines are included in
either the statutory language or in the
legislative history. Provisions for
extensions to the summary deadlines
have not been included in these
regulations.
changes regarding the identification of
consulting parties in § 10.8 (d)(1). Two
commenters recommended deleting
§ 10.8 (d)(1)(i) requiring consultation
with lineal descendants, since section 7
(a)(3) of the Act only requires
consultation with lineal descendants to
determine the place and manner of
delivery of human remains, funerary
cultural patrimony being repatriated.
The subsection requiring consultation
with lineal descendants has been
deleted. Two commenters
recommended that identification of
traditional religious leaders in § 10.8
(d)(1)(ii) be made by ‘‘members of’’
Indian tribes and Native Hawaiian
organizations to be consistent with the
definition of that term. The phrase has
been edited to conform with the
definition of in § 10.2 (a)(13). One
§ 10.8 (d)(1)(ii)(A) and (a)(ii)(B)
requiring consultation with Indian
tribes from whose tribal or aboriginal
lands unassociated funerary objects,
patrimony were recovered since section
7 (a)(2) of the Act specifies that only
lineal descendants and culturally
Hawaiian organizations have standing to
make a claim. Another commenter
recommended including language in the
rule indicating a presumption that the
Indian tribe from whose tribal lands
patrimony were recovered is the
custodian. The requirements in § 10.8
(d)(1)(ii)(A) and (d)(1)(ii)(B) are
included to ensure that all Indian tribes
and Native Hawaiian organizations that
are potentially culturally affiliated with
particular unassociated funerary objects,
patrimony are included in the
consultation process. Whether an Indian
tribe from whose tribal or aboriginal
lands a particular unassociated funerary
object, sacred object, or objects of
cultural patrimony originated is
culturally affiliated with that object
must be determined on an item-by-item
basis. Two commenters recommended
deleting the phrase ‘‘or likely to be’’ in
§ 10.8 (d)(1)(iii). This subsection defines
the class of consulting parties from
which the culturally affiliated Indian
will be identified. The phrase is used to
62149
indicate that the identification of
consulting parties should be inclusive to
ensure all Indian tribes and Native
Hawaiian organizations that are, or are
likely to be culturally affiliated with the
are included in the consultation
process.
revising the requirement to initiate
consultation no later than the
completion of the summary process in
§ 10.8 (d)(2) to indicate consultation
must follow completion of the
summary. Another commenter
recommended revising the subsection to
require the initiation of consultation as
early as possible. Another commenter
recommended requiring museums and
Federal agencies to provide Indian
organizations with a ‘‘notice of
summary’’ indicating that their
collections were under review. The
Review Committee recommended
revising the subsection to indicate that
consultation should result in telephone
or face-to-face dialogue. The drafters
intend the summary to serve as an
initial invitation from the museum or
Federal agency to the Indian tribe or
Native Hawaiian organization to engage
in consultation regarding the
identification of unassociated funerary
cultural patrimony in their collection.
All museums and Federal agencies are
required to complete their summaries by
November 16, 1993. Language has been
added to the subsection indicating that
consultation may be initiated with a
letter, but should be followed up by
telephone or face-to-face dialogue with
the appropriate Indian tribe official.
The Review Committee recommended
requiring museums and Federal
agencies to provide copies of their
summaries to the Departmental
Consulting Archeologist in § 10.8 (d)(3).
The Departmental Consulting
Archeologist provides staff support to
the Review Committee, which in turn is
required, under section 8 (c)(2) of the
Act, to monitor the summary and
inventory processes to ensure a fair,
objective consideration and assessment
of all available relevant information and
evidence. The recommended language
has been included. One commenter
requested clarification regarding the
requirement in the second sentence of
§ 10.8 (d)(3) that museums and Federal
agencies, upon request, provide Indian
organizations with access to records,
catalogues, relevant studies, or other
pertinent data. The regulatory language
is drawn from section 6 (b)(2) of the Act.
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Museums or Federal agencies may not
limit Indian tribal access to information
needed to determine the geographic
origin, cultural affiliation, and basic
facts surrounding acquisition and
accession of object covered by the
summary. Museums or Federal agencies
are under no obligation to pay the travel
or other expenses of visiting Indian tribe
representatives or traditional religious
leaders.
inclusion of time limits for Indian tribe
and Native Hawaiian organization
responses to museum and Federal
agency requests for information outlined
in § 10.8 (d)(4). No time limits for Indian
tribe and Native Hawaiian organization
response are included in the statutory
language or the legislative history and
none have been included in this
subsection. Indian tribes and Native
Hawaiian organizations are under no
requirement to respond to museum or
Federal agency requests for information.
One commenter recommended revising
the request for information under § 10.8
(d)(4)(i) to include the name and
address of one or more traditional
religious leaders. Requirements to
request the name and address of
traditional religious leaders have
already been included under § 10.8
(d)(4)(iii). One commenter objected to
the implication in § 10.8 (d)(4)(ii) that,
prior to consultation, a museum or
Federal agency official could identify a
sacred object in their collection to
request the name and address of the
lineal descendants of its previous
custodian. Documentation may be
sufficient to indicate that a particular
item in a museum of Federal agency’s
collection might fit the definition of
sacred object. The museum or Federal
agency should use this information to
advance the consultation process by
requesting the name and address of any
lineal descendants of its previous
custodian. One commenter
recommended that the requests for
information also include a description
of the Indian tribe’s traditional kinship
system under § 10.8 (d)(4)(ii)(A).
Information regarding an Indian tribe’s
traditional kinship system is only
necessary when an individual is
claiming an unassociated funerary
object or sacred object, and is more
appropriately requested at that time.
amending § 10.8 (d)(4)(iii) to require
consultation and agreement with the
recommendations of traditional
religious leaders. The recommended
requirement is not appropriate since the
statutory language does not require
organizations to provide information
regarding traditional religious leaders.
One commenter recommended limiting
the request for information to
recommendations on how the
consultation process should be
conducted and that § 10.8 (d)(4)(i),
(4)(ii), (4)(iii), and (4)(v) be deleted. The
drafters recognize that the identification
of lineal descendants, funerary objects,
patrimony may require Indian tribes and
divulge sensitive information.
Requesting the information at the
beginning of consultation, however,
may lead to a more open and effective
consultation process. Indian tribe
officials are under no obligation to
respond to these inquires.
One commenter, fearing widespread
misapplication of these regulations,
recommended requiring museums and
Federal agency officials to document
certain information and use that
information to identify unassociated
funerary objects, sacred objects, objects
of cultural patrimony, lineal
descendants, and culturally affiliated
organizations. The recommended text
has been included as § 10.8 (a) and the
subsequent section renumbered.
Submission of this information to the
Departmental Consulting Archeologist is
not required by these regulations. The
Review Committee, pursuant to section
8 (f), may request access to this
information.
clarification for requiring notification
prior to repatriation of unassociated
objects of cultural patrimony in § 10.8
(e) (renumbered as § 10.8 (f)). The
notification required in section 5 (d) of
the Act ensures due process regarding
the repatriation of human remains and
associated funerary objects. Provisions
of this subsection extend the
notification procedures to ensure due
process in the repatriation of
patrimony. The Review Committee
recommended reducing the specificity
of the requirement of an object-by-object
listing of unassociated funerary objects,
patrimony to be repatriated. The
regulatory text has been revised to
require a description of any
patrimony to be repatriated in sufficient
detail so as to allow others to determine
if they are interested in the claim.
Section 10.8 (e) of these regulations
requires that museums and Federal
agencies consider the same types of
information as are required in § 10.9 (c)
in evaluating requests for repatriation.
including text establishing a deadline
for responses to the required
notification. A minimum waiting period
of thirty (30) days following publication
of the notice of intent to repatriate in the
Federal Register is established in
§ 10.10 (a)(3). Any claim received by a
museum or Federal agency prior to
actual repatriation, however, should be
given full consideration. One
commenter recommended requiring
museum officials to consult with the
appropriate Federal agency officials
prior to issuance of notices by the
museum regarding unassociated
objects of cultural patrimony that were
inadvertently on Federal lands. Notices
regarding the repatriation of
that were excavated from Federal lands
can only be issued by the appropriate
Federal agency or by an institution
specifically authorized to issue such
notices by the appropriate Federal
agency. One commenter recommended
including language in this subsection
informing Indian tribes and Native
Hawaiian organizations of their right by
law to request access to museum or
Federal agency records as they relate to
the review of their claim. The
recommended language is included in
§ 10.8 (d)(3). The Review Committee
recommended inclusion of text in this
subsection to reiterate the requirement
in § 10.10 (a)(3) that repatriation not
occur until at least thirty (30) days after
publication of a notice of intent to
repatriate in the Federal Register. The
proposed language has been included.
Section 10.9
This section presents procedures for
carrying out section 5 of the Act related
to conducting inventories of human
in the collections of Federal agencies or
museums receiving Federal funds.
Fifteen commenters recommended
changes to the inventory procedures in
§ 10.9. One commenter requested
clarification of the deadlines and
funding responsibility of this section.
Section 10.9 (f) states that inventories
under this section are to be completed
not later than November 16, 1995.
Funding responsibilities lie with the
museums and Federal agencies
maintaining such collections. Three
commenters requested funding aid to
comply with the Act. Although section
10 of the Act authorizes funding in
terms of grants to aid museums, Indian
tribes, and Native Hawaiian
organizations in carrying out the Act,
funds were first appropriated during FY
1994.
clarification regarding the term
‘‘geographical affiliation’’ in the first
sentence of § 10.9 (a). The term has been
changed to ‘‘geographical origin’’ to
reflect usage in section 5 (b)(2) of the
Act. Two commenters recommended
deleting the term ‘‘undertakings’’ from
the last sentence of § 10.9 (a) because of
its long history as a legal term of art
under section 106 of the NHPA. The
term has been changed to ‘‘actions’’ to
avoid any confusion.
inclusion of language in § 10.9 (b)
stressing that Federal agency officials
are responsible for carrying out
consultation regarding human remains
and associated funerary objects that
were excavated or removed from
Federal lands and that are currently in
a non-Federal repository. One
commenter suggested inclusion of
language allowing shared responsibility
between a Federal agency and curating
institution. Federal agency officials are
responsible for carrying out the Act
regarding all human remains, funerary
inadvertently on Federal lands,
regardless of the type of institution that
currently is in possession of those
Section 10.9 (a) emphasizes this
responsibility of Federal agencies. Two
commenters recommended including a
stipulation in § 10.9 (b) allowing a
museum or Federal agency to declare
that, due to unresponsiveness, no
further contact with an Indian tribe or
Native Hawaiian organization will be
pursued. The drafters consider the
recommended language
counterproductive to achieving the type
of effective consultation envisioned by
the Act. Museums and Federal agencies
are required to complete inventories of
human remains and associated funerary
objects in their collections by November
16, 1995. If no response is forthcoming
after repeated attempts to contact Indian
tribe officials by telephone, fax, and
mail, the museum or Federal agency
official may be required to complete the
inventory without consultation to meet
the statutory deadline. The drafters
suggest museum and Federal agency
officials document attempts to contact
Indian tribe officials to demonstrate
good faith compliance with these
regulations and the Act.
rewriting the requirements regarding
consultation with lineal descendants in
§ 10.9 (b)(1)(i) to coordinate these
activities through designated Indian
tribe officials. The statute gives lineal
descendants priority over culturally
affiliated Indian tribes or Native
Hawaiian organizations for the
repatriation of human remains, funerary
cultural patrimony. Establishing a
system in which contact with lineal
descendants is coordinated through
organizations would be detrimental to
the rights of lineal descendants,
particularly those that are not members
of an Indian tribe or Native Hawaiian
organization. One commenter
recommended amending § 10.9 (b)(1)(i)
to make it clear that museum and
Federal agency officials must consult
with lineal descendants of individuals
whose remains and associated funerary
objects are, in the opinion of the
responsible Federal agency official or
museum official, likely to be subject to
the inventory provisions of these
regulations. The drafters consider the
current language to describe adequately
the responsibilities of Federal agency
officials or museum officials regarding
consultation with lineal descendants.
rewording the first sentence of § 10.9
(b)(1)(ii) to make it clear that
consultation must be with Indian tribe
officials. This change has been made.
changing the second part of the sentence
to indicate that traditional religious
leaders must be recognized by members
of the Indian tribe. The text has been
changed to conform with the definition
of in § 10.2 (a)(13). One commenter
recommended inserting the word ‘‘the’’
prior to each usage of ‘‘human remains’’
throughout § 10.9 (b)(1)(ii)(A), (B), and
(C) to make it clear that the procedures
refer to specific human remains and not
human remains in general. The
restructuring the consultation process in
§ 10.9 (b)(2) to allow museums and
Federal agencies to make a tentative
determination of cultural affiliation and
then allow comment on the
determination by interested groups.
Section 5 (b)(1)(A) of the Act requires
that inventories be completed in
consultation with Indian tribe and
Native Hawaiian organization officials
and traditional religious leaders. The
notification procedures in § 10.9 (e) are
designed to ensure that all interested
parties have the opportunity to
participate in the consultation process.
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requiring consultation at the earliest
possible moment in the inventory
process. Language reflecting the latter
recommendation has been included in
the text.
revising § 10.9 (b)(3)(iv) to state that if
any additional documentation was used
to identify cultural affiliation, this
documentation must be made available
on request. Language ensuring Indian
tribes and Native Hawaiian organization
access to relevant documentation is
included in § 10.9 (e).
deleting the word ‘‘reasonably’’ from
§ 10.9 (b)(4)(v) on the grounds that it is
unreasonable for the United States to
request an Indian tribe or Native
Hawaiian organization to be reasonable
in its beliefs regarding objects used for
burial purposes. Reasonableness in this
context refers to an accepted legal
standard and has been retained in the
regulatory text.
information requirements in § 10.9 (c) as
exceeding requirements of the Act.
amending the requirements to ensure
that completion of the inventory would
not be delayed. The information
requirements in § 10.9 (c) were drawn
from section 5 (a)(2) of the Act. One
text in § 10.9 (c) specifying the types of
information that can not be requested.
The Act does not identify any types of
information that can not be requested.
The drafters consider inclusion of such
a requirement to be detrimental to the
development of productive dialogues
between museums, Federal agencies,
Indian tribes, and Native Hawaiian
organizations. One commenter
recommended reorganizing the
information requirements for clarity.
Sections 10.9 (c)(1) through (c)(8) have
been reorganized and renumbered. One
commenter recommended changing
§ 10.9 (c)(7) to require either a
description or photographic
documentation of the human remains,
objects of cultural patrimony, and not
both. The drafters consider description
of the human remains, funerary objects,
patrimony to be necessary in all cases,
with photographic documentation
considered appropriate in some
circumstances. The types of information
required in § 10.9 (c) have not been
changed. The drafters feel that careful,
detailed consideration of all human
is critical to carry out the statutory
requirements. Basic descriptive
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information is necessary to ensure
accountability and that the human
conform to the statutory definitions.
Detailed information from Federal
agency or museum records and other
sources are essential in reaching
determinations of lineal descent or
cultural affiliation as part of the
inventory procedures.
consolidating the two listings described
in § 10.9 (d)(1) and (d)(2) into one list.
Separation of the two lists reflects the
different purposes intended in the § 10.9
(e) inventory process. The listing of
culturally affiliated human remains and
associated funerary objects is sent
directly to Indian tribes and Native
Hawaiian organizations, with a copy to
the Departmental Consulting
Archeologist. The listing of culturally
unidentifiable human remains and
associated funerary objects is sent only
to the Departmental Consulting
Archeologist. One commenter objected
to use of the term ‘‘clearly’’ regarding
the determination of cultural affiliation
in § 10.9 (d)(1) as being contrary to
Congressional intent and recommended
deleting it from the regulatory text. The
term was drawn from section 5 (d)(1)(B)
of the Act and reflects Congressional
intent. Another commenter
recommended keeping the list of those
objects that are clearly identifiable as to
tribal origin separate from those human
are determined by reasonable belief to
be cultural affiliated with the same
organization. Since both categories of
objects are considered to be culturally
affiliated with the Indian tribe or Native
Hawaiian organization, and are thus
available for repatriation by that Indian
tribe or Native Hawaiian organization,
there is no practical reason to separate
the lists.
clarifying throughout this subsection
that museum or Federal agency officials
may need to send the same inventory to
multiple Indian tribes or Native
Hawaiian organizations. The text has
been modified to reflect this concern.
replacing the word ‘‘shall’’ in the
second sentence of § 10.9 (e)(4) with
‘‘should.’’ The Secretary has delegated
authority to carry out some provisions
of the Act to the Departmental
Consulting Archeologist. These
responsibilities include providing staff
support to the Review Committee. The
Review Committee is required under
section 8 (c)(2) of the Act to monitor the
inventory and identification process.
Submission of inventories in electronic
format is intended to facilitate the
monitoring process. However, in
recognition that some museums may
have difficulty meeting the electronic
format requirement, the drafters have
changed the word ‘‘shall’’ in the second
sentence to ‘‘should.’’ One commenter
recommended also allowing Federal
agencies to use alternative methods for
submission of notices to the
Departmental Consulting Archeologist.
The phrase ‘‘and Federal agencies’’ has
been inserted after ‘‘museums’’ in the
text. The Review Committee
recommended inclusion of language in
this subsection requiring museums and
Federal agencies to retain possession of
culturally unidentifiable human
remains pending promulgation of
§ 10.11 of these regulations. The
recommended language has been
included.
requiring listings of culturally
unidentifiable human remains described
in § 10.9 (e)(6) be sent to all Indian
organizations as well as to the
Section 8 (c)(5) of the Act gives the
Review Committee responsibility for
recommending specific action for
developing a process for disposition of
remains. Section 10.11 of these
regulations has been reserved for that
purpose. The drafters consider it
premature at this time to establish such
procedures.
Two commenters requested extending
the November 16, 1995 deadline for
completion of inventories in § 10.9 (f).
The deadline for completion of
inventories is specified in section 5
(b)(1)(B) of the Act and would require
Congressional action to change. One
language in this subsection to indicate
that the requirement to repatriate may
be suspended during the preparation of
the inventories. The drafters consider
such a suspension of the requirement to
repatriate counter to statutory language
and legislative history. Two commenters
recommended including language in
this subsection to allow Federal
agencies to apply for extensions of time
to complete their inventories. Section 5
(c) of the Act specified that any museum
which has made a good faith effort but
which has been unable to complete an
inventory may appeal to the Secretary
for an extension of the time
requirements. No provisions are
provided in the Act for Federal agencies
to apply for extension. One commenter
recommended including language in
this subsection limiting the number and
length of extensions granted to a
museum to complete its inventories.
The Secretary will determine the
number and length of extensions on a
case-by-case basis. One commenter
recommended requiring museums to
apply for an extension in the second
sentence of § 10.9 (f). While a museum
may chose not to apply for an extension,
it is likely that failure to do so would
be taken into account by the Secretary
in determining if the museum had failed
to comply with the requirements of the
Act. One commenter requested
clarification regarding a situation in
which a museum fails to complete an
inventory of human remains and
associated funerary objects from Federal
lands. Federal agencies are responsible
for completion of summaries and
inventories of all human remains,
Federal lands regardless of the type of
institution in which they are currently
curated. One commenter recommended
incorporation of personnel
qualifications in this subsection for
individuals involved in the completion
of the inventory plan. Museums are
expected in make sure that all of their
personnel are qualified to undertake the
tasks expected of them.
Section 10.10
Thirty-three commenters
recommended changes to the section on
repatriation. One commenter
recommended rewriting § 10.10 (a)(1)
and § 10.10 (b)(1) to emphasis that all of
the criteria for repatriation must be met.
The initial sentence of each section has
been rewritten to state ‘‘If all the
following criteria are met...’’ In addition,
the word ‘‘and’’ has been added at the
end of all but the final roman
numeralled subsections in these two
sections. Another commenter requested
clarification of the term ‘‘expeditiously’’
which is used in both sections. The rule
of statutory construction generally holds
that undefined terms are interpreted in
their common meaning.
inclusion of language in § 10.10 (a)(1)(ii)
and (b)(1)(ii) allowing several Indian
to make joint claims for human remains,
drafters feel the current language allows
for joint claims. Another commenter
recommended amending § 10.10
(a)(1)(ii) and § 10.10 (b)(1)(ii) to clarify
that the cultural affiliation of human
can be established independently of the
summary and inventory processes by
presentation of a preponderance of the
evidence by a requesting Indian tribe or
Native Hawaiian organization.
Additional text has been inserted under
§ 10.10 (a)(1)(ii)(B) and § 10.10
(b)(1)(ii)(B) to clarify this issue. Another
commenter requested inserting the
phrase ‘‘culturally affiliated’’ before
‘‘Indian tribe’’ in § 10.10 (a)(1)(iii), The
recommended text has been included.
deleting the phrase ‘‘which, if standing
alone before the introduction of
evidence to the contrary’’ from § 10.10
(a)(1)(iii). This phrase is taken directly
from section 7 (c) of the Act regarding
the standard of repatriation for
patrimony; and has been retained in the
regulations.
rewriting § 10.10 (a)(1)(iv) to make clear
that a Federal agency or museum must
present evidence to overcome the
inference of tribal custody and prove its
right of possession to unassociated
existing text is drawn from section 7 (c)
of the Act and is interpreted to provide
Federal agencies with some discretion
as to whether information regarding
right of possession must be used to
challenge a request for repatriation.
deleting § 10.10 (a)(1)(v) and § 10.10
(b)(1)(iii), referring to specific
repatriation exemptions, to avoid
confusion and havoc with Indian tribes.
The specific exemptions to repatriation
referred to in these subsections come
from section 7 (b) and (e) of the Act.
changes to § 10.10 (a)(2) regarding right
of possession. One commenter
requested clarification of how right of
possession might be demonstrated for
prehistoric human remains, funerary
cultural patrimony. The right of
possession basis for retaining cultural
items in an existing collection does not
apply to human remains or associated
funerary objects, only to unassociated
objects of cultural patrimony. A right of
possession for prehistoric cultural items
fitting these categories might be written
authorization from a competent
authority to excavate, remove, and
curate such items from a particular area
or site. Another commenter
recommended locating the definition of
right of possession would more
appropriately with the other definitions
in § 10.2. The concept of right of
possession has limited applicability in
these regulations to unassociated
explanation of right of possession is
retained at this place in the regulations
because it is only used for this specific
aspect of the Act.
changes to § 10.10 (a)(3) and § 10.10
(b)(2) regarding notification. Two
commenters requested clarification of
whether the ninety (90) days during
which repatriation must take place
begins from the day a request for
repatriation is received or from the day
the responsible museum of Federal
agency official makes a positive
determination that the criteria for
repatriation apply. The first sentence of
this section has been redrafted to clarify
that the ninety (90) day period begins
with the receipt of a written request for
repatriation from a culturally affiliated
organization. Another commenter stated
that ninety (90) days may not be
sufficient to determine to validity of
each request. Section 7 of the Act
requires that repatriation must be done
‘‘expeditiously’’ and implies in section
7 (b) a ninety (90) day time frame for
such actions. Text has been added to
provide for a longer period if mutually
agreed upon. It is noted that
determination of the validity of a claim
should not be difficult since this period
only applies to requests from Indian
organizations that have been determined
to be culturally affiliated with specific
Five commenters recommended
changes to § 10.10 (b) regarding the
repatriation of human remains and
associated funerary objects. One
commenter identified the criteria for
repatriating human remains and
associated funerary objects as being very
confusing and recommended rewriting
them for comprehension by lay people.
reiterating the applicability of ‘‘right of
possession’’ to human remains and
associated funerary objects recognized
in the last sentence of section 2 (13) of
the Act in this section of the regulations.
American law generally recognizes that
human remains can not be ‘‘owned.’’
This interpretation is consistent with
the second sentence of section 2 (13) of
the Act that specifically refers to
patrimony, and with section 7 (a)(1) and
(a)(2) of the Act in which no right of
possession to human remains or
associated funerary objects is inferred.
One commenter strongly objected to the
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requirement in § 10.10 (b)(2) that
repatriation not occur until at least
thirty days after publication of a notice
of inventory completion in the Federal
Register, referring to section 11 (1)(A) of
the Act that states that nothing in the
Act shall be construed to limit the
authority of any museum or Federal
agency to return or repatriate.
Publication of the notice in the Federal
Register was recognized in section 5
(d)(3) of the Act as necessary to ensure
Constitutional due process
requirements. Delaying a repatriation for
thirty (30) days following publication of
the notice provides any other legitimate
claimant with an opportunity to come
forward with a claim. This requirement
in no way limits any organization’s
authority to repatriate. Section 11 (2) of
the Act states that nothing in the Act
shall be construed to delay action on
repatriation requests ‘‘that are pending
on the date of enactment of this Act,’’
and makes it clear that Congress
anticipated there might be some
subsequent delays of repatriation
initiated after November 16, 1990, due
to the statutory provisions. One
commenter asked whether a second
Federal Register notice is required to
document a claim following publication
of a Notice of Inventory Completion.
Requests for repatriation made after
completion of the inventory and
publication of the Notice of Inventory
Completion in the Federal Register do
not require publication of a second
notice, unless it is determined as a
result of a competing claim or otherwise
that a different Indian tribe or Native
Hawaiian organization than the one
identified in the original notice is the
proper recipient. In such instances, a
second Federal Register notice is
required prior to repatriation. In
situations where more than one Indian
was listed in the original notice, the
museum or Federal agency official
should consult with each of the listed
organizations prior to repatriating to any
one of them.
deleting § 10.10 (c)(1) regarding the
exception to the repatriation
requirements for studies of human
of major benefit to the United States.
This exemption is drawn from section 7
of the Act. One commenter identified
the phrase ‘‘commenced prior to receipt
of a request’’ in this subsection as not
being included in the statutory language
and recommended deleting it. The
phrase has been deleted. Six
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commenters recommended clarifying
the concept of ‘‘major benefit’’ in the
exemption for completion of a specific
scientific study in § 10.10 (c)(1). Such
determinations necessarily will have to
be made on a case-by-case basis. One
commenter recommended that the
deadline after completion of a study by
which human remains, funerary objects,
patrimony must be repatriated be left to
the discretion of the parties involved.
The requirement that human remains,
objects of cultural patrimony be
repatriated no later than ninety days
(90) after completion of the study is
drawn from the statutory language.
replacing the phrase ‘‘proper recipient’’
in the first sentence of § 10.10 (c)(2)
with ‘‘most appropriate recipient.’’ The
including language in this subsection
agencies to comply with multiple party
claims. The language in these
regulations does not preclude claims for
repatriation made by groups of lineal
descendants or groups of Indian tribes
or Native Hawaiian organizations.
Museum and Federal agency officials
are responsible for assessing the merits
of each claim received.
deleting the ‘‘takings exemption’’ in
§ 10.10 (c)(3) since it requires complex
legal analysis that would unduly burden
museum and Federal agency officials
and is contrary to the provisions of the
Act regarding the determination of
custody of human remains, funerary
cultural patrimony. The language in this
subsection was drawn from section 2
(13) of the Act. Six commenters
requested additional clarification of the
subsection. Additional language has
been included in the text. One
commenter objected to the
‘‘globalization’’ of the constitutional test
of a Fifth Amendment taking in this
subsection to include human remains
and associated funerary objects, stating
that such an interpretation is not
supported by the statutory language and
recommending that the drafters refrain
from attempting to redress in regulation
what the commenter considers a facially
unconstitutional element of the Act. The
regulation has not been changed in
response to this comment. The Act does
not indicate an express intention to
effectuate a legislative or regulatory
taking. It is possible, though not likely,
that human remains may be subject to
Fifth Amendment concerns, e.g., where
the human remains have been
incorporated into another object. The
same commenter recommended
including text to exempt museums from
the threat of civil penalties in situations
where the museum invokes its authority
to refuse to repatriate human remains
and associated funerary objects based on
‘‘otherwise applicable property law.’’ A
determination that repatriation of
constitutes a taking of property without
just compensation within the meaning
of the Fifth Amendment of the United
States Constitution must be made by a
court of competent jurisdiction and can
not be ‘‘invoked’’ by a museum or
Federal agency. Assessment of civil
penalties by the Secretary will
necessarily be made on a case-by-case
basis and, as such, the recommended
exemption is not considered
appropriate. However, the drafters
consider it unlikely that the Secretary
would assess civil penalties while a
takings issue is being considered by a
court of competent jurisdiction.
deleting the reference in § 10.10 (c)(4) to
other repatriation limitations in § 10.15.
Section 10.15 includes limitation and
remedies applying to both the
inadvertently on Federal land or tribal
lands and to the repatriation of human
in the possession or control of museums
or Federal agencies.
clarification regarding procedures
related to the transfer of custody of
to lineal descendants or Indian tribes in
§ 10.10 (d). Museum and Federal agency
officials are responsible for making
decisions regarding place and manner of
repatriation. However, prior to making
such decisions, they must first consult
with the requesting lineal descendants
or culturally affiliated Indian tribes.
including additional text requiring
museum and Federal agency officials to
inform recipients of repatriations of any
known treatments, such as application
of pesticides, preservatives, or other
substances, that might represent a
potential hazard to the human remains,
objects of cultural patrimony or the
persons handling them. The
recommended text has been included as
§ 10.10 (e) and subsequent subsections
renumbered.
including language in § 10.10 (e)
(renumbered as § 10.10 (f)) advising
museum and Federal agency officials
that, upon the request of Indian tribe
officials, they take steps to ensure that
general public. The recommended text
has been included in the rule.
Documentation of some cultural items,
particularly sacred objects and objects of
cultural patrimony, is expected to
require Indian tribe officials and
traditional religious leaders to divulge
some information considered sensitive
to the Indian tribe or Native Hawaiian
organization. There is currently no
exemption available to protect such
sensitive information from disclosure
under the Freedom of Information Act.
Museum or Federal officials may wish
to ensure that sensitive information
does not become part of the public
record by not writing such information
down in the first place.
Two commenters identified
‘‘unidentified human remains,’’ referred
to in § 10.10 (f) (renumbered as § 10.10
(g)) as a category not supported by the
statutory language, and recommended
deleting the term. Section 8 (c)(5) of the
Act required the Review Committee to
compile an inventory and make
recommendations regarding specific
actions for developing a process for
disposition of ‘‘culturally unidentifiable
human remains.’’ Section 10.10 (g) has
been amended to reflect that statutory
language.
One commenter requested that § 10.10
reference the requirements of the
Migratory Bird Treaty Act, the Bald and
Golden Eagle Act, the Endangered
Species Act and the Marine Mammal
Act. While it is not appropriate to
include the requirements of these acts in
the regulations, museums, Federal
agencies, and Indian tribes should be
aware that additional statutes and
regulations may affect the transport and
possession of repatriated objects. For
additional information, contact, the U.S.
Fish and Wildlife Service, Division of
Law Enforcement, PO Box 3247,
Arlington VA 22203–3247.
Section 10.11
procedures related to the disposition of
remains in museum or Federal agency
collections. One commenter questioned
the authority under which the Federal
government can determine the final
disposition of human remains for which
no cultural affiliation can reasonably be
established. Another commenter
recommended changing the title of this
section to read ‘‘culturally and
geographically unidentifiable’’ to ensure
that a ‘‘simple-minded or hostile
reading of the rules’’ would not result in
assignment of many human remains to
the catch-all category. One commenter
requested clarification for procedures
concerning ‘‘affected remains of . . .
biologically extinct peoples’’. Section 8
(c)(5) and (c)(7) of the Act gives the
Review Committee the responsibilities
of recommending specific actions for
developing a process for disposition of
‘‘culturally unidentifiable human
remains’’ and consulting with the
Secretary in the development of
regulations to carry out the statute.
Section 13 of the Act charges the
Secretary with promulgating regulations
to carry out the statute. One commenter
recommended interring all culturally
unidentifiable human remains in a tribal
or intertribal cemetery. One commenter
recommended sending inventories of all
remains to all Indian tribes and Native
Hawaiian organizations. One
commenter requested that this section
be published promptly. Another
commenter recommended seeking
Indian tribal input in developing this
section to ensure that ‘‘the dominant
society [not dictate] the proposed
language to protect their own interests.’’
A draft of this section is being
developed currently and will submitted
to the Review Committee for discussion
and recommendations prior to
publication as proposed regulation for
public comment in the Federal Register.
Section 10.12
procedures related to the assessment of
civil penalties by the Secretary against
any museum that fails to comply with
the requirements of the statute. One
commenter requested prompt
publication of this section. A draft of
this section is currently being developed
and will submitted to the Review
Committee for discussion prior to
publication for public comment in the
Federal Register.
Section 10.13
procedures related to the future
applicability of the statute. One
commenter recommended that the
section should include continuing
responsibilities for museums and
Federal agencies to update summaries
and inventories of human remains,
objects of cultural patrimony to reflect
new accessions, first time receipt of
Federal funds, and the recognition of
new Indian tribes and Native Hawaiian
organizations. One commenter
requested clarification on the subject of
future accessions. One commenter
stressed that tribal input, comment and
recommendations are imperative in
formulating this section. A draft of this
section is currently being developed and
will be submitted to the Review
Committee for discussion prior to
publication for public comment in the
Federal Register. One commenter
proposed inclusion of a ten year time
limit during which Indian tribes must
make claims for repatriation. Time
limits for claims were discussed by
Congress when the bill was being
considered but were not included in the
Act. Inclusion of such time limits in the
regulations would contradict
Section 10.14
Eighteen commenters recommended
changes to the section on lineal descent
and cultural affiliation. Two
commenters recommended further
identification in § 10.14 (a) of the parties
responsible for completing the required
activities. On Federal lands, Federal
agency officials are responsible for
determining which modern Indian
organizations may have valid claims
upon human remains, funerary objects,
patrimony that are excavated
inadvertently on lands they manage. For
existing collections, the museum or
Federal agency official is responsible for
assembling, describing, evaluating
and making determinations regarding
their cultural affiliation and disposition.
It is the responsibility of lineal
descendants, Indian tribes or Native
Hawaiian organizations that disagree
with determinations of cultural
affiliation made by a Federal agency or
museum official to develop and present
information to challenge that
determination.
changing all references to Indian tribe in
this section to ‘‘Indian tribe or tribes’’ to
reflect the fact that Indian tribes may
bring joint claims for certain items. The
drafters consider the current language to
support the possibility of joint claims.
One commenter identified the criteria
for determining lineal descendants in
§ 10.14 (b) as being overly restrictive
and recommended broadening them to
allow for both individual and Indian
tribe and Native Hawaiian organization
claims. One commenter requested
including a procedure ‘‘for independent
verification of claimed descent.’’
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Criteria for determining lineal descent
have been narrowly defined to reflect
the priority given these claims under
section 3 and section 7 of the Act. One
commenter requested that the section
include procedures for independent
verification of any claims of lineal
descent based upon traditional kinship
systems. Museum or Federal agency
officials are responsible for evaluating
claims of lineal descent.
Three commenters identified criteria
for determining cultural affiliation
under § 10.14 (c)(1), (2) and (3) as
placing an undue and unrealistic
burden of proof on Indian tribes and
Native Hawaiian organizations, and
recommended fewer requirements. The
three criteria — existence of an
identifiable present-day Indian tribe or
Native Hawaiian organization, evidence
of the existence of an identifiable earlier
group, and evidence of a shared group
identity that can be reasonably traced
between the present-day Indian tribe or
Native Hawaiian organization and the
earlier group—are the components of
the statutory definition of cultural
affiliation at section 2 (2) of the Act.
They have been retained in the
regulations.
rewording § 10.14 (c)(2) for clarification.
The second sentence of § 10.14 (c)(2)
has been rewritten to read: ‘‘Evidence to
support this requirement may include,
but is not necessarily limited to: . . .’’
rewording § 10.14 (c)(2)(ii) to emphasize
the desirability of demonstrating
linkages between claimants and
archeological remains. One commenter
questioned whether it is possible to
make biological distinctions between
earlier groups as suggested in § 10.14
(c)(2)(iii). Cultural affiliation between
particular human remains, funerary
cultural patrimony and particular
organizations must be determined on a
case-by-case basis.
regarding human remains or cultural
objects found within the traditional
(aboriginal) territory of an Indian tribe
as being culturally affiliated with that
Indian tribe, regardless of the antiquity
of the human remains, funerary objects,
patrimony. The statutory provisions
related to intentional excavation and
on Federal or tribal lands (section 3 of
the Act) includes provisions for the
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cultural patrimony to the Indian tribe
that is recognized as aboriginally
occupying the area in which the human
remains or objects were recovered, if
upon notice, such tribe states a claim for
such human remains or items. No such
criteria are included in the statutory
sections regarding repatriation of human
in museum or Federal agency
collections.
inclusion of language from House
Report 101–877 (page 5) clarifying that
determinations of cultural affiliation
should be based on an overall
evaluation of the totality of the
circumstances and evidence and should
not be precluded solely because of some
gaps in the record. Language from the
House Report has been included as
§ 10.14 (d), and the subsequent sections
relettered.
One commenter noted that the types
of evidence listed in § 10.14 (e) were
originally derived from section 7 (a)(4)
of the Act—which deals exclusively
with the determination of cultural
affiliation — and recommends that
lineal descent should be established
through normally accepted methods of
evidence. Section 7 (a) of the Act, of
which section 7 (a)(4) is a subpart, deals
with both determinations of lineal
descent and cultural affiliation. It is the
opinion of the drafters that each of the
types of evidence listed could
potentially be used to support a claim
of lineal descent and should be
available for use by potential claimants.
One commenter objected to oral
tradition and folklore being allowed as
evidence in § 10.14 (d), particularly for
those areas, such as central,
southwestern, southern, and coastal
Texas, ‘‘where the aboriginal inhabitants
have no biological descendants.’’ One
commenter recommended including a
statement that physical anthropological/
biological, archeological, and other
‘‘hard’’ scientific evidence will have the
greatest bearing in determining the
cultural affiliation of prehistoric
materials, scaled with weight increasing
as distance in time increases. One
commenter recommended inclusion of a
statement regarding ‘‘standards of
evidence.’’ The applicability and
strength of particular types of evidence
must be determined on a case-by-case
basis. It would be inappropriate to place
stipulations on the applicability of
various types of evidence in regulation.
changing the last sentence of § 10.14 (e)
to require that cultural affiliation be
established with scientific certainty to
avoid any misuse of the Act. A standard
of scientific certainty is not consistent
with Congressional intent. The
statement of evidence in this subsection
is drawn from section 7 (a)(4) of the Act.
Two other commenters questioned
whether this subsection might give the
impression that scientific research is of
no value in determining cultural
affiliation. Section 7 (a)(4) identifies
scientific information related to
numerous fields as having relevance to
the determination of cultural affiliation.
stipulating that no repatriation will
occur until the analysis is completed.
Section 5 (a) specifies that the
geographic and cultural affiliation of
objects be determined ‘‘to the extent
possible based on information possessed
by the museum of Federal agency.’’ No
new scientific research is required.
Delaying repatriation until new
scientific research is completed
contradicts the intent of Congress unless
that scientific research is considered to
be of major benefit to the United States.
Section 10.15
Eleven commenters recommended
changes to the section on repatriation
limitations and remedies. One
commenter stated the section was not
consistent with the statute and
recommended deleting it in its entirety.
Two commenters identified § 10.15
(a)(1) as being unduly harsh to Indian
organizations, and recommended
deleting it. Section 10.15 (a)(1) ensures
that any claim received prior to the
disposition or repatriation of human
must be considered by the museum or
Federal agency. Claims made after
disposition or repatriation have
occurred are properly the responsibility
of the receiving lineal descendant,
Indian tribe, or Native Hawaiian
organization. The subsection has been
retained as it is important for the
protection of museums and Federal
agencies that comply with the Act and
regulations. One commenter
recommended adding another
subsection under the title ‘‘Multiple
Claimants’’ to address such situations.
specifying that a time period for
competing parties to reach agreement on
the appropriate disposition or
repatriation of human remains, funerary
cultural patrimony. No time period has
been established because it appears to
be contrary to Congressional intent. One
commenter recommended inclusion of a
statement specifying who decides the
cultural patrimony that cannot be
shown to be culturally affiliated to a
present-day Indian tribe or Native
Hawaiian organization. Section 10.11 of
the regulations has been reserved for
procedures related to the disposition of
remains.
completing § 10.15 (b), reserved for
‘‘Failure to claim where no repatriation
or disposition has occurred,’’ as quickly
as possible. Another commenter
questioned whether the statutory
language supports the inclusion of
unclaimed cultural items as well as
human remains. Section 3 (b) of the Act
addresses the disposition of ‘‘unclaimed
human remains and objects’’ and
requires the Secretary to publish
regulations to carry out their disposition
in consultation with the Review
Committee, Native American groups,
and representatives of museums and the
scientific community.
One commenter asked for clarification
regarding whether the denial of a
request for repatriation implied in
§ 10.15 (c) would have the effect of
stopping the ‘‘90-day clock’’ for
expedient repatriation. Museum and
Federal agency officials are required to
make a decision regarding claims for the
disposition or repatriation of human
within ninety (90) days of receipt of that
claim. Once that decision is made, the
museum or Federal agency official has
carried out their responsibility. Another
commenter recommended that this
subsection state specifically that
museums and Federal agencies must
repatriate within ninety (90)-days of
receipt of a written request. Section
10.10 (a)(3) and (b)(2) specify that
museums and Federal agencies must
repatriate human remains, funerary
cultural patrimony in their collections
within ninety (90) days of receipt of a
written request for repatriation that
satisfies the requirements of § 10.10
(a)(1) and (b)(1), respectively, provided
that the repatriation may not occur until
at least thirty (30) days after publication
of the appropriate notice in the Federal
Register.
Section 10.16
changes to the section on the Review
Committee. One commenter
recommended deletion of the term
‘‘culturally unidentifiable human
remains’’ on the grounds that there is no
such category recognized under the Act.
Section 8 (b)(5) of the Act requires the
Review Committee to compile an
inventory of culturally unidentifiable
human remains and recommend
specific actions for developing a process
for disposition of such human remains.
specifying the criteria to be used by the
Review Committee in resolving
disputes. One commenter requested
clarification as to the ‘‘arbitrator’’ for
disputes arising from the Act. The
Review Committee has established its
own guidelines for facilitating the
resolution of disputes that include both
procedures and criteria. Copies of these
procedures are available from the
Department of the Interior through the
Departmental Consulting Archeologist,
Archeological Assistance Division,
National Park Service.
Section 10.17
changes to the section on dispute
resolution. One commenter
recommended strengthening the section
to provide a realistic and definitive
forum for resolving problems. Another
criteria to be used by the Review
Committee in resolving disputes. A
third commenter recommended that
appropriate time frames should be
established for Review Committee
comments concerning disputes. The
Review Committee has established its
own guidelines for facilitating the
resolution of disputes that include both
procedures and criteria. Copies of these
procedures are available from the
Department of the Interior through the
Archeological Assistance Division,
National Park Service.
Appendix A
changes to the sample summary. Two
commenters recommended narrowing
the focus of the summary from
collections held by a museum which
may contain unassociated funerary
cultural patrimony to a summary of
those specific objects. This proposed
text was not changed for reasons
previously presented in the discussion
of section 10.8.
enumeration of sites and objects in the
seventh paragraph of the sample
summary as being both impractical and
impossible. The enumeration of sites
and objects in the sample summary are
identified clearly as approximations.
Further, provision of this type of
information to Indian tribes and Native
Hawaiian organizations is consistent
with the requirements of section 6 of the
Act as clarified in section 10.8 of these
regulations.
apparently broad access to museum
records given Indian tribes in the final
paragraph. The sentence in question
closely paraphrases section 6 (b)(2) of
the Act and has not been changed.
Appendix B
This appendix was reserved for a
sample inventory of human remains and
associated funerary objects. One
commenter stressed the importance of
developing this section as quickly as
possible. A sample inventory of human
currently has been developed in
consultation with the Review
Committee and distributed to Indian
tribes, Native Hawaiian organizations,
museums, and Federal agencies. This
reserved appendix has been deleted
from the rule.
Appendix C
The notice of inventory completion in
this appendix has been updated with a
more recent version and retitled as
Appendix B.
Appendix D
deleting this section that had been
reserved for a sample memorandum of
understanding dealing with repatriation
patrimony in Federal collections from
the regulations. Guidance regarding
such memoranda of understanding will
be developed and distributed by the
Appendix E
deleting this section that had been
reserved for a sample memorandum of
understanding dealing with intentional
excavation on Federal or tribal lands
from the regulations. Guidance
regarding such memoranda of
understanding will be developed and
distributed by the Department of the
Interior.
Authorship These proposed
regulations were prepared by Dr.
Francis P. McManamon (Departmental
Consulting Archeologist, National Park
Service), Dr. C. Timothy McKeown
(NAGPRA Program Leader, National
Park Service), and Mr. Lars Hanslin
(Senior Attorney, Office of the
Solicitor), in consultation with the
Repatriation Review Committee as
directed by section 8 (c)(7) of the Act.
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Compliance with the Paperwork
Reduction Act
The collections of information
contained in this rule have been
approved by the Office of Management
and Budget as required by 44 U.S.C.
3501 et seq (OMB control number 10240144). Public reporting burden for this
collection of information is expected to
average 100 hours for the exchange of
summary/inventory information
between a museum or Federal agency
and an Indian tribe or Native Hawaiian
organization and six hours per response
for the notification to the Secretary,
including time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collected information.
Two commenters questioned use of an
average amount of time to characterize
the expected burden. While the amount
of time required to complete the
reporting requirements of these
regulations will vary between
institutions depending on the size and
nature of their collections and the
comprehensiveness of their
documentation, review of summaries,
inventories, and notices received by the
confirms the accuracy of the previous
estimates. Send comments regarding
this burden estimate or any other
aspects of this collection of information,
including suggestions for reducing the
burden, to Information Collection
Officer, National Park Service, Box
37127, Washington D.C. 20013 and to
the Office of Management and Budget,
Paperwork Reduction Project,
Washington DC 20503.
Compliance with Other Laws
This rule has been reviewed under
Executive Order 12866. The final rule
implements provisions of the Native
Repatriation Act of 1990 and addresses
the rights of lineal descendants, Indian
organizations to Native American
patrimony. The final rule requires that
any museum receiving Federal funds
prepare summaries and conduct
inventories. These requirements are
within professionally accepted
standards for museum record keeping
consistent with the purposes of such
institutions or organizations. Grants
have been awarded during FY 1994 and
FY 1995 to assist museums in these
tasks. Federal agencies will incur costs
in two ways: (1) Preparing the
summaries and conducting the
62158
inventories; and (2) conducting
consultation prior to planned
excavations and following inadvertent
discoveries on Federal or tribal lands.
The Congressional Budget Office
estimated costs for summary and
inventory activities at between $5 and
$30 million over a five year period.
Many of the actions required of Federal
agencies under item (2) are
recommended or required by previous
legislation—such as the National
Historic Preservation Act and the
Archaeological Resources Protection
Act—and costs for these activities are
not expected to increase appreciably,
particularly if the Federal agencies are
able to coordinate their consultation and
review activities as encouraged by these
regulations and other guidance
documents.
The Department of the Interior
certifies that this document does not
have a significant economic effect on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.).
The Department of the Interior has
determined that these final regulations
meet the applicable standards provided
in sections 2(a) and 2(b) of Executive
Order 12778.
The Department of the Interior has
determined that these final regulations
will not have a significant effect on the
quality of the human environment
under the National Environmental
Policy Act (42 U.S.C. 4321–4347). In
addition, the Department of the Interior
has determined that these final
regulations are categorically excluded
from the procedural requirements of the
National Environmental Policy Act by
Departmental regulations in 516 DM 2.
As such, neither an Environmental
Assessment nor an Environmental
Impact statement has been prepared.
List of Subjects in 43 CFR Part 10
Administrative practice and
procedure, Graves, Hawaiian Natives,
Historic preservation, Indians—Claims,
Indians—lands, Museums, Public lands,
Reporting and record keeping
requirements.
For the reasons set out in the
preamble, 43 CFR Subtitle A is amended
by adding Part 10 to read as follows:
PART 10—NATIVE AMERICAN
GRAVES PROTECTION AND
REPATRIATION REGULATIONS
Subpart A—Introduction
Sec.
10.1 Purpose and applicability.
10.2 Definitions
Subpart B—Human Remains, Funerary
Objects, Sacred Objects, or Objects of
Cultural Patrimony from Federal or Tribal
Lands
10.3 Intentional archeological excavations.
10.4 Inadvertent discoveries.
10.5 Consultation.
10.6 Custody.
10.7 Disposition of unclaimed human
remains, funerary objects, sacred objects,
or objects of cultural patrimony.
[Reserved]
Subpart C—Human Remains, Funerary
Objects, Sacred Objects, or Objects of
Cultural Patrimony in Museums and Federal
Collections
10.8 Summaries.
10.9 Inventories.
10.10 Repatriation.
10.11 Disposition of culturally
unidentifiable human remains.
[Reserved]
10.12 Civil penalties. [Reserved]
10.13 Future applicability. [Reserved]
and the continental United States, but
not to territories of the United States.
(3) Throughout these regulations are
decision points which determine their
applicability in particularly
circumstances, e.g., a decision as to
whether a museum ‘‘controls’’ human
remains and cultural objects within the
meaning of the regulations, or, a
decision as to whether an object is a
‘‘human remain,’’ ‘‘funerary object,’’
‘‘sacred object,’’ or ‘‘object of cultural
patrimony’’ within the meaning of the
regulations. Any final determination
making the Act or these regulations
inapplicable is subject to review
pursuant to section 15 of the Act.
§ 10.2
Definitions.
In addition to the term Act, which
means the Native American Graves
Protection and Repatriation Act as
described above, definitions used in
these regulations are grouped in seven
Subpart D—General
classes: Parties required to comply with
10.14 Lineal descent and cultural
these regulations; Parties with standing
affiliation.
to make claims under these regulations;
10.15 Repatriation limitations and
Parties responsible for implementing
remedies.
these regulations; Objects covered by
10.16 Review committee.
these regulations; Cultural affiliation;
10.17 Dispute resolution.
Types of land covered by these
Appendix-A to Part 10—Sample summary.
regulations; and Procedures required by
Appendix-B to Part 10—Sample notice of
these regulations.
inventory completion.
(a) Who must comply with these
regulations? (1) Federal agency means
Authority: 25 U.S.C. 3001 et seq.
any department, agency, or
instrumentality of the United States.
Subpart A—Introduction
Such term does not include the
§ 10.1 Purpose and applicability.
Smithsonian Institution as specified in
section 2 (4) of the Act.
(a) Purpose. These regulations carry
(2) Federal agency official means any
out provisions of the Native American
individual authorized by delegation of
Graves Protection and Repatriation Act
authority within a Federal agency to
of 1990 (Pub.L. 101–601; 25 U.S.C.
perform the duties relating to these
3001–3013;104 Stat. 3048–3058). These
regulations develop a systematic process regulations.
(3) Museum means any institution or
for determining the rights of lineal
State or local government agency
descendants and Indian tribes and
(including any institution of higher
learning) that has possession of, or
certain Native American human
control over, human remains, funerary
objects, or objects of cultural patrimony objects, sacred objects, or objects of
cultural patrimony and receives Federal
with which they are affiliated.
(b) Applicability. (1) These regulations funds.
(i) The term ‘‘possession’’ means
pertain to the identification and
having physical custody of human
appropriate disposition of human
objects, or objects of cultural patrimony objects, or objects of cultural patrimony
with a sufficient legal interest to
that are:
(i) In Federal possession or control; or lawfully treat the objects as part of its
(ii) In the possession or control of any collection for purposes of these
regulations. Generally, a museum or
institution or State or local government
Federal agency would not be considered
receiving Federal funds; or
to have possession of human remains,
(iii) Excavated intentionally or
objects of cultural patrimony on loan
tribal lands.
(2) These regulations apply to human
from another individual, museum, or
Federal agency.
(ii) The term ‘‘control’’ means having
which are indigenous to Alaska, Hawaii, a legal interest in human remains,
objects of cultural patrimony sufficient
to lawfully permit the museum or
Federal agency to treat the objects as
part of its collection for purposes of
these regulations whether or not the
objects or objects of cultural patrimony
are in the physical custody of the
museum or Federal agency. Generally, a
museum or Federal agency that has
loaned human remains, funerary
cultural patrimony to another
individual, museum, or Federal agency
is considered to retain control of those
for purposes of these regulations.
(iii) The phrase ‘‘receives Federal
funds’’ means the receipt of funds by a
museum after November 16, 1990, from
a Federal agency through any grant,
loan, contract (other than a procurement
contract), or other arrangement by
which a Federal agency makes or made
available to a museum aid in the form
of funds. Federal funds provided for any
purpose that are received by a larger
entity of which the museum is a part are
considered Federal funds for the
purposes of these regulations. For
example, if a museum is a part of a State
or local government or a private
university and the State or local
government or private university
receives Federal funds for any purpose,
the museum is considered to receive
Federal funds for the purpose of these
regulations.
(4) Museum official means the
individual within a museum designated
as being responsible for matters relating
to these regulations.
(5) Person means an individual,
partnership, corporation, trust,
institution, association, or any other
private entity, or, any official, employee,
agent, department, or instrumentality of
the United States, or of any Indian tribe
or Native Hawaiian organization, or of
any State or political subdivision
thereof that discovers human remains,
funerary objects, sacred objects or
objects of cultural patrimony on Federal
or tribal lands after November 16, 1990.
(b) Who has standing to make a claim
under these regulations?
(1) Lineal descendant means an
individual tracing his or her ancestry
directly and without interruption by
means of the traditional kinship system
of the appropriate Indian tribe or Native
Hawaiian organization or by the
common law system of descendance to
a known Native American individual
whose remains, funerary objects, or
sacred objects are being claimed under
these regulations.
(2) Indian tribe means any tribe, band,
nation, or other organized Indian group
or community of Indians, including any
Alaska Native village or corporation as
defined in or established by the Alaska
Native Claims Settlement Act (43 U.S.C.
1601 et seq.), which is recognized as
eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians. The Secretary will distribute a
list of Indian tribes for the purposes of
carrying out this statute through the
(3)(i) Native Hawaiian organization
means any organization that:
(A) Serves and represents the interests
of Native Hawaiians;
(B) Has as a primary and stated
purpose the provision of services to
Native Hawaiians; and
(C) Has expertise in Native Hawaiian
affairs.
(ii)The term Native Hawaiian means
any individual who is a descendant of
the aboriginal people who, prior to
1778, occupied and exercised
sovereignty in the area that now
constitutes the State of Hawaii. Such
organizations must include the Office of
Hawaiian Affairs and Hui Mālama I Nā
Kūpuna ’O Hawai’i Nei.
(4) Indian tribe official means the
principal leader of an Indian tribe or
Native Hawaiian organization or the
individual officially designated by the
governing body of an Indian tribe or
Native Hawaiian organization or as
otherwise provided by tribal code,
policy, or established procedure as
responsible for matters relating to these
regulations.
(c) Who is responsible for carrying out
these regulations?
(1) Secretary means the Secretary of
the Interior.
(2) Review Committee means the
advisory committee established
pursuant to section 8 of the Act.
(3) Departmental Consulting
Archeologist means the official of the
Department of the Interior designated by
the Secretary as responsible for the
administration of matters relating to
these regulations. Communications to
the Departmental Consulting
Archeologist should be addressed to:
National Park Service,
PO Box 37127
Washington, DC 20013–7127.
(d) What objects are covered by these
regulations? The Act covers four types
of Native American objects. The term
Native American means of, or relating
to, a tribe, people, or culture indigenous
to the United States, including Alaska
and Hawaii:
62159
(1) Human remains means the
physical remains of a human body of a
person of Native American ancestry.
The term does not include remains or
portions of remains that may reasonably
be determined to have been freely given
or naturally shed by the individual from
whose body they were obtained, such as
hair made into ropes or nets. For the
purposes of determining cultural
affiliation, human remains incorporated
into a funerary object, sacred object, or
object of cultural patrimony, as defined
below, must be considered as part of
that item.
(2) Funerary objects means items that,
as part of the death rite or ceremony of
a culture, are reasonably believed to
have been placed intentionally at the
time of death or later with or near
individual human remains. Funerary
objects must be identified by a
preponderance of the evidence as
having been removed from a specific
burial site of an individual affiliated
with a particular Indian tribe or Native
Hawaiian organization or as being
related to specific individuals or
families or to known human remains.
The term burial site means any natural
or prepared physical location, whether
originally below, on, or above the
surface of the earth, into which as part
of the death rite or ceremony of a
culture, individual human remains were
deposited, and includes rock cairns or
pyres which do not fall within the
ordinary definition of grave site. For
purposes of completing the summary
requirements in § 10.8 and the inventory
requirements of § 10.9:
(i) Associated funerary objects means
those funerary objects for which the
human remains with which they were
placed intentionally are also in the
possession or control of a museum or
Federal agency. Associated funerary
objects also means those funerary
objects that were made exclusively for
burial purposes or to contain human
remains.
(ii) Unassociated funerary objects
means those funerary objects for which
the human remains with which they
were placed intentionally are not in the
possession or control of a museum or
Federal agency. Objects that were
displayed with individual human
remains as part of a death rite or
ceremony of a culture and subsequently
returned or distributed according to
traditional custom to living descendants
or other individuals are not considered
unassociated funerary objects.
(3) Sacred objects means items that
are specific ceremonial objects needed
by traditional Native American religious
leaders for the practice of traditional
Native American religions by their
62160
present-day adherents. While many
items, from ancient pottery sherds to
arrowheads, might be imbued with
sacredness in the eyes of an individual,
these regulations are specifically limited
to objects that were devoted to a
traditional Native American religious
ceremony or ritual and which have
continued observance or renewal of
such ceremony. The term traditional
religious leader means a person who is
recognized by members of an Indian
as:
(i) Being responsible for performing
cultural duties relating to the
ceremonial or religious traditions of that
organization, or
(ii) Exercising a leadership role in an
organization based on the tribe or
organization’s cultural, ceremonial, or
religious practices.
(4) Objects of cultural patrimony
means items having ongoing historical,
traditional, or cultural importance
central to the Indian tribe or Native
Hawaiian organization itself, rather than
property owned by an individual tribal
or organization member. These objects
are of such central importance that they
may not be alienated, appropriated, or
conveyed by any individual tribal or
organization member. Such objects must
have been considered inalienable by the
culturally affiliated Indian tribe or
Native Hawaiian organization at the
time the object was separated from the
group. Objects of cultural patrimony
include items such as Zuni War Gods,
the Confederacy Wampum Belts of the
Iroquois, and other objects of similar
character and significance to the Indian
tribe or Native Hawaiian organization as
a whole.
(e) What is cultural affiliation?
Cultural affiliation means that there is a
relationship of shared group identity
which can reasonably be traced
historically or prehistorically between
members of a present-day Indian tribe or
Native Hawaiian organization and an
identifiable earlier group. Cultural
affiliation is established when the
preponderance of the evidence — based
on geographical, kinship, biological,
archeological, linguistic, folklore, oral
tradition, historical evidence, or other
information or expert opinion —
reasonably leads to such a conclusion.
(f) What types of lands to the
excavation and discovery provisions of
these regulations apply to?
(1) Federal lands means any land
other than tribal lands that are
controlled or owned by the United
States Government, including lands
selected by but not yet conveyed to
Alaska Native Corporations and groups
organized pursuant to the Alaska Native
Claims Settlement Act (43 U.S.C. 1601
et seq.). United States ‘‘control,’’ as used
in this definition, refers to those lands
not owned by the United States but in
which the United States has a legal
interest sufficient to permit it to apply
these regulations without abrogating the
otherwise existing legal rights of a
person.
(2) Tribal lands means all lands
which:
(i) Are within the exterior boundaries
of any Indian reservation including, but
not limited to, allotments held in trust
or subject to a restriction on alienation
by the United States; or
(ii) Comprise dependent Indian
communities as recognized pursuant to
18 U.S.C. 1151; or
(iii) Are administered for the benefit
of Native Hawaiians pursuant to the
Hawaiian Homes Commission Act of
1920 and section 4 of the Hawaiian
Statehood Admission Act (Pub.L. 86–3;
73 Stat. 6).
(iv) Actions authorized or required
under these regulations will not apply
to tribal lands to the extent that any
action would result in a taking of
property without compensation within
the meaning of the Fifth Amendment of
the United States Constitution.
(g) What procedures are required by
these regulations?
(1) Summary means the written
description of collections that may
patrimony required by § 10.8 of these
regulations.
(2) Inventory means the item-by-item
description of human remains and
associated funerary objects.
(3) Intentional excavation means the
planned archeological removal of
found under or on the surface of Federal
or tribal lands pursuant to section 3 (c)
of the Act.
(4) Inadvertent discovery means the
unanticipated encounter or detection of
found under or on the surface of Federal
or tribal lands pursuant to section 3 (d)
of the Act.
Subpart B—Human Remains, funerary
cultural patrimony from Federal or
Tribal Lands
§ 10.3 Intentional archeological
excavations.
(a) General. This section carries out
section 3 (c) of the Act regarding the
cultural patrimony that are excavated
intentionally from Federal or tribal
lands after November 16, 1990.
(b) Specific Requirements. These
regulations permit the intentional
excavation of human remains, funerary
cultural patrimony from Federal or
tribal lands only if:
(1) The objects are excavated or
removed following the requirements of
the Archaeological Resources Protection
Act (ARPA) (16 U.S.C. 470aa et seq.)
and its implementing regulations.
Regarding private lands within the
exterior boundaries of any Indian
reservation, the Bureau of Indian Affairs
(BIA) will serve as the issuing agency
for any permits required under the Act.
For BIA procedures for obtaining such
permits, see 25 CFR part 262 or contact
the Deputy Commissioner of Indian
Affairs, Department of the Interior,
Washington, DC 20240. Regarding lands
administered for the benefit of Native
Hawaiians pursuant to the Hawaiian
Homes Commission Act, 1920, and
section 4 of Pub. L. 86–3, the
Department of Hawaiian Home Lands
will serve as the issuing agency for any
permits required under the Act, with the
Hawaii State Historic Preservation
Division of the Department of Land and
Natural Resources acting in an advisory
capacity for such issuance. Procedures
and requirements for issuing permits
will be consistent with those required
by the ARPA and its implementing
regulations;
(2) The objects are excavated after
consultation with or, in the case of tribal
lands, consent of, the appropriate Indian
pursuant to § 10.5;
(3) The disposition of the objects is
consistent with their custody as
described in § 10.6; and
(4) Proof of the consultation or
consent is shown to the Federal agency
official or other agency official
responsible for the issuance of the
required permit.
(c) Procedures. (1) The Federal agency
official must take reasonable steps to
determine whether a planned activity
may result in the excavation of human
from Federal lands. Prior to issuing any
approvals or permits for activities, the
Federal agency official must notify in
writing the Indian tribes or Native
Hawaiian organizations that are likely to
be culturally affiliated with any human
that may be excavated. The Federal
agency official must also notify any
present-day Indian tribe which
aboriginally occupied the area of the
planned activity and any other Indian
that the Federal agency official
reasonably believes are likely to have a
cultural relationship to the human
that are expected to be found. The
notice must be in writing and describe
the planned activity, its general
location, the basis upon which it was
determined that human remains,
objects of cultural patrimony may be
excavated, and, the basis for
determining likely custody pursuant to
§ 10.6. The notice must also propose a
time and place for meetings or
consultations to further consider the
activity, the Federal agency’s proposed
treatment of any human remains,
objects of cultural patrimony that may
be excavated, and the proposed
disposition of any excavated human
Written notification should be followed
up by telephone contact if there is no
response in 15 days. Consultation must
be conducted pursuant to § 10.5.
(2) Following consultation, the
Federal agency official must complete a
written plan of action (described in
§ 10.5(e)) and execute the actions called
for in it.
(3) If the planned activity is also
subject to review under section 106 of
the National Historic Preservation Act
(16 U.S.C. 470 et seq.), the Federal
agency official should coordinate
consultation and any subsequent
agreement for compliance conducted
under that Act with the requirements of
§ 10.3 (c)(2) and § 10.5. Compliance
with these regulations does not relieve
Federal agency officials of requirements
to comply with section 106 of the
National Historic Preservation Act (16
U.S.C. 470 et seq.).
(4) If an Indian tribe or Native
Hawaiian organization receives notice of
a planned activity or otherwise becomes
aware of a planned activity that may
result in the excavation of human
on tribal lands, the Indian tribe or
Native Hawaiian organization may take
appropriate steps to:
(i) Ensure that the human remains,
objects of cultural patrimony are
excavated or removed following § 10.3
(b), and
(ii) make certain that the disposition
of any human remains, funerary objects,
discovered inadvertently as a result of
the planned activity are carried out
following § 10.6.
§ 10.4
Inadvertent discoveries.
section 3 (d) of the Act regarding the
cultural patrimony that are discovered
after November 16, 1990.
(b) Discovery. Any person who knows
or has reason to know that he or she has
discovered inadvertently human
on Federal or tribal lands after
November 16, 1990, must provide
immediate telephone notification of the
inadvertent discovery, with written
confirmation, to the responsible Federal
agency official with respect to Federal
lands, and, with respect to tribal lands,
to the responsible Indian tribe official.
The requirements of these regulations
regarding inadvertent discoveries apply
whether or not an inadvertent discovery
is duly reported. If written confirmation
is provided by certified mail, the return
receipt constitutes evidence of the
receipt of the written notification by the
Federal agency official or Indian tribe
official.
(c) Ceasing activity. If the inadvertent
discovery occurred in connection with
an on-going activity on Federal or tribal
lands, the person, in addition to
providing the notice described above,
must stop the activity in the area of the
inadvertent discovery and make a
reasonable effort to protect the human
discovered inadvertently.
(d) Federal lands. (1) As soon as
possible, but no later than three (3)
working days after receipt of the written
confirmation of notification with respect
to Federal lands described in § 10.4 (b),
the responsible Federal agency official
must:
(i) Certify receipt of the notification;
(ii) Take immediate steps, if
necessary, to further secure and protect
including, as appropriate, stabilization
or covering;
(iii) Notify by telephone, with written
confirmation, the Indian tribes or Native
Hawaiian organizations likely to be
culturally affiliated with the
62161
the Indian tribe or Native Hawaiian
organization which aboriginally
occupied the area, and any other Indian
that is reasonably known to have a
cultural relationship to the human
This notification must include pertinent
information as to kinds of human
discovered inadvertently, their
condition, and the circumstances of
their inadvertent discovery;
(iv) Initiate consultation on the
inadvertent discovery pursuant to
§ 10.5;
(v) If the human remains, funerary
cultural patrimony must be excavated or
removed, follow the requirements and
procedures in § 10.3 (b) of these
regulations; and
(vi) Ensure that disposition of all
is carried out following § 10.6.
(2) Resumption of activity. The
activity that resulted in the inadvertent
discovery may resume thirty (30) days
after certification by the notified Federal
agency of receipt of the written
confirmation of notification of
inadvertent discovery if the resumption
of the activity is otherwise lawful. The
activity may also resume, if otherwise
lawful, at any time that a written,
binding agreement is executed between
the Federal agency and the affiliated
organizations that adopt a recovery plan
for the excavation or removal of the
following § 10.3 (b)(1) of these
regulations. The disposition of all
must be following § 10.6.
(e) Tribal lands. (1) As soon as
possible, but no later than three (3)
working days after receipt of the written
confirmation of notification with respect
to Tribal lands described in § 10.4 (b),
the responsible Indian tribe official may:
(i) Certify receipt of the notification;
(ii) Take immediate steps, if
necessary, to further secure and protect
including, as appropriate, stabilization
or covering;
(iii) If the human remains, funerary
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cultural patrimony must be excavated or
removed, follow the requirements and
procedures in § 10.3 (b) of these
regulations; and
(iv) Ensure that disposition of all
is carried out following § 10.6.
(2) Resumption of Activity. The
activity that resulted in the inadvertent
discovery may resume if otherwise
lawful after thirty (30) days of the
certification of the receipt of notification
by the Indian tribe or Native Hawaiian
organization.
(f) Federal agency officials. Federal
agency officials should coordinate their
responsibilities under this section with
their emergency discovery
responsibilities under section 106 of the
National Historical Preservation Act (16
U.S.C. 470 (f) et seq.), 36 CFR 800.11 or
section 3 (a) of the Archeological and
Historic Preservation Act (16 U.S.C. 469
(a-c)). Compliance with these
regulations does not relieve Federal
agency officials of the requirement to
comply with section 106 of the National
Historical Preservation Act (16 U.S.C.
470 (f) et seq.), 36 CFR 800.11 or section
3 (a) of the Archeological and Historic
Preservation Act (16 U.S.C. 469 (a-c)).
(g) Notification requirement in
authorizations. All Federal
authorizations to carry out land use
activities on Federal lands or tribal
lands, including all leases and permits,
must include a requirement for the
holder of the authorization to notify the
appropriate Federal or tribal official
immediately upon the discovery of
pursuant to § 10.4 (b) of these
regulations.
§ 10.5
Consultation.
Consultation as part of the intentional
on Federal lands must be conducted in
accordance with the following
requirements.
(a) Consulting parties. Federal agency
officials must consult with known lineal
descendants and Indian tribe officials:
(1) from Indian tribes on whose
aboriginal lands the planned activity
will occur or where the inadvertent
discovery has been made; and
(2) from Indian tribes and Native
likely to be, culturally affiliated with the
objects, or objects of cultural patrimony;
and
(3) from Indian tribes and Native
Hawaiian organizations that have a
demonstrated cultural relationship with
patrimony.
(b) Initiation of consultation. (1) Upon
receiving notice of, or otherwise
becoming aware of, an inadvertent
discovery or planned activity that has
resulted or may result in the intentional
on Federal lands, the responsible
Federal agency official must, as part of
the procedures described in § 10.3 and
§ 10.4, take appropriate steps to identify
the lineal descendant, Indian tribe, or
Native Hawaiian organization entitled to
custody of the human remains, funerary
cultural patrimony pursuant to § 10.6
and § 10.14. The Federal agency official
shall notify in writing:
(i) any known lineal descendants of
the individual whose remains, funerary
cultural patrimony have been or are
likely to be excavated intentionally or
discovered inadvertently; and
(ii) the Indian tribes or Native
Hawaiian organizations that are likely to
be culturally affiliated with the human
that have been or are likely to be
inadvertently; and
(iii) the Indian tribes which
aboriginally occupied the area in which
patrimony have been or are likely to be
inadvertently; and
(iv) the Indian tribes or Native
Hawaiian organizations that have a
demonstrated cultural relationship with
patrimony that have been or are likely
to be excavated intentionally or
discovered inadvertently.
(2) The notice must propose a time
and place for meetings or consultation
to further consider the intentional
excavation or inadvertent discovery, the
Federal agency’s proposed treatment of
patrimony that may be excavated, and
the proposed disposition of any
intentionally excavated or inadvertently
cultural patrimony.
(3) The consultation must seek to
identify traditional religious leaders
who should also be consulted and seek
to identify, where applicable, lineal
descendants and Indian tribes or Native
Hawaiian organizations affiliated with
patrimony.
(c) Provision of information. During
the consultation process, as appropriate,
the Federal agency official must provide
the following information in writing to
the lineal descendants and the officials
of Indian tribes or Native Hawaiian
organizations that are or are likely to be
affiliated with the human remains,
inadvertently on Federal lands:
(1) A list of all lineal descendants and
organizations that are being, or have
been, consulted regarding the particular
(2) An indication that additional
documentation used to identify
affiliation will be supplied upon
request.
(d) Requests for information. During
the consultation process, Federal agency
officials must request, as appropriate,
the following information from Indian
that are, or are likely to be, affiliated
pursuant to § 10.6 (a) with intentionally
excavated or inadvertently discovered
objects, or objects of cultural patrimony:
(1) Name and address of the Indian
tribe official to act as representative in
consultations related to particular
(2) Names and appropriate methods to
contact lineal descendants who should
be contacted to participate in the
consultation process;
(3) Recommendations on how the
conducted; and
(4) Kinds of cultural items that the
organization considers likely to be
(e) Written plan of action. Following
consultation, the Federal agency official
must prepare, approve, and sign a
written plan of action. A copy of this
plan of action must be provided to the
lineal descendants, Indian tribes and
Native Hawaiian organizations
involved. Lineal descendants and
Indian tribe official(s) may sign the
written plan of action as appropriate. At
a minimum, the plan of action must
comply with § 10.3 (b)(1) and document
the following:
(1) The kinds of objects to be
considered as cultural items as defined
in § 10.2 (b);
(2) The specific information used to
determine custody pursuant to § 10.6;
(3) The planned treatment, care, and
handling of human remains, funerary
cultural patrimony recovered;
(4) The planned archeological
recording of the human remains,
objects of cultural patrimony recovered;
(5) The kinds of analysis planned for
each kind of object;
(6) Any steps to be followed to contact
Indian tribe officials at the time of
discovery of specific human remains,
objects of cultural patrimony;
(7) The kind of traditional treatment,
if any, to be afforded the human
by members of the Indian tribe or Native
Hawaiian organization;
(8) The nature of reports to be
prepared; and
(9) The disposition of human remains,
objects of cultural patrimony following
§ 10.6.
(f) Comprehensive agreements.
Whenever possible, Federal agencies
should enter into comprehensive
agreements with Indian tribes or Native
Hawaiian organizations that are
affiliated with specific human remains,
objects of cultural patrimony and have
claimed, or are likely to claim, those
inadvertently on Federal lands. These
agreements should address all Federal
agency land management activities that
could result in the intentional
Consultation should lead to the
establishment of a process for effectively
carrying out the requirements of these
regulations regarding standard
consultation procedures, the
determination of custody consistent
with procedures in this section and
§ 10.6, and the treatment and
cultural patrimony. The signed
agreements, or the correspondence
related to the effort to reach agreements,
must constitute proof of consultation as
required by these regulations.
(g) Traditional religious leaders. The
Federal agency official must be
cognizant that Indian tribe officials may
need to confer with traditional religious
leaders prior to making
recommendations. Indian tribe officials
are under no obligation to reveal the
identity of traditional religious leaders.
§ 10.6
Custody.
(a) Priority of custody. This section
carries out section 3 (a) of the Act,
subject to the limitations of § 10.15,
regarding the custody of human
after November 16, 1990. For the
purposes of this section, custody means
ownership or control of human remains,
inadvertently in Federal or tribal lands
after November 16, 1990. Custody of
these human remains, funerary objects,
patrimony is, with priority given in the
order listed:
(1) In the case of human remains and
associated funerary objects, in the lineal
descendant of the deceased individual
as determined pursuant to § 10.14 (b);
(2) In cases where a lineal descendant
cannot be ascertained or no claim is
made, and with respect to unassociated
objects of cultural patrimony:
(i) In the Indian tribe on whose tribal
land the human remains, funerary
cultural patrimony were discovered
inadvertently;
(ii) In the Indian tribe or Native
Hawaiian organization that has the
closest cultural affiliation with the
as determined pursuant to § 10.14 (c); or
(iii) In circumstances in which the
cultural affiliation of the human
cannot be ascertained and the objects
were discovered inadvertently on
Federal land that is recognized by a
final judgment of the Indian Claims
Commission or the United States Court
of Claims as the aboriginal land of an
Indian tribe:
(A) In the Indian tribe aboriginally
occupying the Federal land on which
patrimony were discovered
inadvertently, or
(B) If it can be shown by a
preponderance of the evidence that a
different Indian tribe or Native
Hawaiian organization has a stronger
62163
cultural relationship with the human
in the Indian tribe or Native Hawaiian
organization that has the strongest
demonstrated relationship with the
objects.
(b) Custody of human remains,
objects of cultural patrimony and other
provisions of the Act apply to all
intentional excavations and inadvertent
discoveries made after November 16,
1990, including those made before the
effective date of these regulations.
(c) Final notice, claims and
disposition with respect to Federal
lands. Upon determination of the lineal
descendant, Indian tribe, or Native
Hawaiian organization that under these
regulations appears to be entitled to
custody of particular human remains,
inadvertently on Federal lands, the
responsible Federal agency official
must, subject to the notice required
herein and the limitations of § 10.15,
transfer custody of the objects to the
lineal descendant, Indian tribe, or
Native Hawaiian organization following
appropriate procedures, which must
respect traditional customs and
practices of the affiliated Indian tribes
or Native Hawaiian organizations in
each instance. Prior to any such
disposition by a Federal agency official,
the Federal agency official must publish
general notices of the proposed
disposition in a newspaper of general
circulation in the area in which the
were excavated intentionally or
discovered inadvertently and, if
applicable, in a newspaper of general
circulation in the area(s) in which
Hawaiian organizations members now
reside. The notice must provide
information as to the nature and
affiliation of the human remains,
objects of cultural patrimony and solicit
further claims to custody. The notice
must be published at least two (2) times
at least a week apart, and the transfer
must not take place until at least thirty
(30) days after the publication of the
second notice to allow time for any
additional claimants to come forward. If
additional claimants do come forward
and the Federal agency official cannot
clearly determine which claimant is
entitled to custody, the Federal agency
must not transfer custody of the objects
until such time as the proper recipient
is determined pursuant to these
62164
regulations. The Federal agency official
must send a copy of the notice and
information on when and in what
newspaper(s) the notice was published
to the Departmental Consulting
Archeologist.
§ 10.7 Disposition of unclaimed human
remains, funerary objects, sacred objects,
or objects of cultural patrimony. [Reserved]
Subpart C—Human remains, funerary
cultural patrimony in museums and
Federal collections
§ 10.8
Summaries.
section 6 of the Act. Under section 6 of
the Act, each museum or Federal agency
that has possession or control over
collections which may contain
must complete a summary of these
collections based upon available
information held by the museum or
Federal agency. The purpose of the
summary is to provide information
about the collections to lineal
descendants and culturally affiliated
organizations that may wish to request
repatriation of such objects. The
summary serves in lieu of an object-byobject inventory of these collections,
although, if an inventory is available, it
may be substituted. Federal agencies are
responsible for ensuring that these
requirements are met for all collections
from their lands or generated by their
actions whether the collections are held
by the Federal agency or by a nonFederal institution.
(b) Contents of summaries. For each
collection or portion of a collection, the
summary must include: an estimate of
the number of objects in the collection
or portion of the collection; a
description of the kinds of objects
included; reference to the means,
date(s), and location(s) in which the
collection or portion of the collection
was acquired, where readily
ascertainable; and information relevant
to identifying lineal descendants, if
available, and cultural affiliation.
(c) Completion. Summaries must be
completed not later than November 16,
1993.
(d) Consultation. (1) Consulting
parties. Museum and Federal agency
officials must consult with Indian tribe
officials and traditional religious
leaders:
(A) From whose tribal lands
originated;
(B) That are, or are likely to be,
culturally affiliated with unassociated
objects of cultural patrimony; and
(C) From whose aboriginal lands
originated.
(2) Initiation of consultation. Museum
and Federal agency officials must begin
summary consultation no later than the
completion of the summary process.
Consultation may be initiated with a
telephone or face-to-face dialogue with
the appropriate Indian tribe official.
(3) Provision of information. During
summary consultation, museum and
Federal agency officials must provide
copies of the summary to lineal
descendants, when known, and to
officials and traditional religious leaders
representing Indian tribes or Native
cultural items. A copy of the summary
must also be provided to the
Upon request by lineal descendants or
Indian tribe officials, museum and
lineal descendants, Indian tribe officials
and traditional religious leaders with
access to records, catalogues, relevant
studies, or other pertinent data for the
limited purposes of determining the
geographic origin, cultural affiliation,
and basic facts surrounding acquisition
and accession of objects covered by the
summary. Access to this information
may be requested at any time and must
be provided in a reasonable must be
provided access to such materials.
(4) Requests for information. During
the summary consultation, museum and
Federal agency officials must request, as
appropriate, the following information
from Indian tribes and Native Hawaiian
organizations that are, or are likely to
be, culturally affiliated with their
collections:
(i) Name and address of the Indian
objects;
(ii) Recommendations on how the
conducted, including:
(A) Names and appropriate methods
to contact any lineal descendants, if
known, of individuals whose
unassociated funerary objects or sacred
objects are included in the summary;
(B) Names and appropriate methods
to contact any traditional religious
leaders that the Indian tribe or Native
Hawaiian organization thinks should be
consulted regarding the collections; and
(iii) Kinds of cultural items that the
organization considers to be sacred
objects or objects of cultural patrimony.
(e) Museum and Federal agency
officials must document the following
information regarding unassociated
objects of cultural patrimony in their
collections and must use this
documentation in determining the
individuals, Indian tribes, and Native
Hawaiian organizations with which they
are affiliated:
(1) Accession and catalogue entries;
(2) Information related to the
acquisition of unassociated funerary
cultural patrimony, including:
(i) the name of the person or
organization from whom the object was
obtained, if known;
(ii) The date of acquisition,
(iii) The place each object was
acquired, i.e., name or number of site,
county, state, and Federal agency
administrative unit, if applicable; and
(iv) The means of acquisition, i.e., gift,
purchase, or excavation;
(3) A description of each unassociated
funerary object, sacred object, or object
of cultural patrimony, including
dimensions, materials, and
photographic documentation, if
appropriate, and the antiquity of such
objects, if known;
(4) A summary of the evidence used
to determine the cultural affiliation of
the unassociated funerary objects,
patrimony pursuant to § 10.14 of these
regulations.
(f) Notification. Repatriation of
to lineal descendants, culturally
affiliated Indian tribes, or Native
Hawaiian organizations as determined
pursuant to § 10.10 (a), must not
proceed prior to submission of a notice
of intent to repatriate to the
and publication of the notice of intent
to repatriate in the Federal Register.
The notice of intent to repatriate must
describe the unassociated funerary
cultural patrimony being claimed in
sufficient detail so as to enable other
individuals, Indian tribes or Native
Hawaiian organizations to determine
their interest in the claimed objects. It
must include information that identifies
each claimed unassociated funerary
cultural patrimony and the
circumstances surrounding its
acquisition, and describes the objects
that are clearly identifiable as to cultural
affiliation. It must also describe the
objects that are not clearly identifiable
as being culturally affiliated with a
particular Indian tribe or Native
Hawaiian organization, but which, given
the totality of circumstances
surrounding acquisition of the objects,
are likely to be culturally affiliated with
a particular Indian tribe or Native
Hawaiian organization. The
must publish the notice of intent to
repatriate in the Federal Register.
Repatriation may not occur until at least
thirty (30) days after publication of the
notice of intent to repatriate in the
Federal Register.
§ 10.9
Inventories.
section 5 of the Act. Under section 5 of
the Act, each museum or Federal agency
that has possession or control over
holdings or collections of human
must compile an inventory of such
objects, and, to the fullest extent
possible based on information possessed
by the museum or Federal agency, must
identify the geographical and cultural
affiliation of each item. The purpose of
the inventory is to facilitate repatriation
by providing clear descriptions of
objects and establishing the cultural
affiliation between these objects and
present-day Indian tribes and Native
Hawaiian organizations. Museums and
Federal agencies are encouraged to
produce inventories first on those
portions of their collections for which
information is readily available or about
which Indian tribes or Native Hawaiian
organizations have expressed special
interest. Early focus on these parts of
collections will result in determinations
that may serve as models for other
inventories. Federal agencies must
ensure that these requirements are met
for all collections from their lands or
generated by their actions whether the
collections are held by the Federal
agency or by a non-Federal institution.
(b) Consultation—(1) Consulting
parties. Museum and Federal agency
officials must consult with:
(i) Lineal descendants of individuals
whose remains and associated funerary
objects are likely to be subject to the
inventory provisions of these
regulations; and
(ii) Indian tribe officials and
traditional religious leaders:
(A) From whose tribal lands the
objects originated;
(B) That are, or are likely to be,
culturally affiliated with human
remains and associated funerary objects;
and
(C) From whose aboriginal lands the
objects originated.
(2) Initiation of consultation. Museum
and Federal agency officials must begin
inventory consultation as early as
possible, no later in the inventory
process than the time at which
investigation into the cultural affiliation
of human remains and associated
funerary objects is being conducted.
Consultation may be initiated with a
telephone or face-to-face dialogue.
(3) Provision of information. During
inventory consultation, museums and
the following information in writing to
lineal descendants, when known, and to
officials and traditional religious leaders
representing Indian tribes or Native
objects.
(i) A list of all Indian tribes and
Native Hawaiian organizations that are,
or have been, consulted regarding the
particular human remains and
associated funerary objects;
(ii) A general description of the
conduct of the inventory;
(iii) The projected time frame for
conducting the inventory; and
(iv) An indication that additional
documentation used to identify cultural
affiliation will be supplied upon
request.
(4) Requests for information. During
the inventory consultation, museum and
Federal agency officials must request, as
appropriate, the following information
from Indian tribes and Native Hawaiian
organizations that are, or are likely to
be, culturally affiliated with their
collections:
(i) Name and address of the Indian
objects;
(ii) Recommendations on how the
conducted, including:
(A) Names and appropriate methods
to contact any lineal descendants of
individuals whose remains and
associated funerary objects are or are
likely to be included in the inventory;
and
(B) Names and appropriate methods
to contact traditional religious leaders
who should be consulted regarding the
objects.
(iii) Kinds of cultural objects that the
62165
organization reasonably believes to have
been made exclusively for burial
purposes or to contain human remains
of their ancestors.
(c) Required information. The
following documentation must be
included, if available, for all inventories
completed by museum or Federal
agency officials:
(1) Accession and catalogue entries,
including the accession/catalogue
entries of human remains with which
funerary objects were associated;
(2) Information related to the
acquisition of each object, including:
(i) the name of the person or
organization from whom the object was
obtained, if known;
(ii) The date of acquisition,
(iii) The place each object was
acquired, i.e., name or number of site,
county, state, and Federal agency
administrative unit, if applicable; and
(iv) The means of acquisition, i.e., gift,
purchase, or excavation;
(3) A description of each set of human
remains or associated funerary object,
including dimensions, materials, and, if
appropriate, photographic
documentation, and the antiquity of
such human remains or associated
funerary objects, if known;
(4) A summary of the evidence,
including the results of consultation,
used to determine the cultural affiliation
of the human remains and associated
funerary objects pursuant to § 10.14 of
these regulations.
(d) Documents. Two separate
documents comprise the inventory:
(1) A listing of all human remains and
associated funerary objects that are
identified as being culturally affiliated
with one or more present-day Indian
tribes or Native Hawaiian organizations.
The list must indicate for each item or
set of items whether cultural affiliation
is clearly determined or likely based
upon the preponderance of the
evidence; and
(2) A listing of all culturally
associated funerary objects for which no
culturally affiliated present-day Indian
can be determined.
(e) Notification. (1) If the inventory
results in the identification or likely
identification of the cultural affiliation
of any particular human remains or
associated funerary objects with one or
more Indian tribes or Native Hawaiian
organizations, the museum or Federal
agency, not later than six (6) months
after completion of the inventory, must
send such Indian tribes or Native
Hawaiian organizations the inventory of
culturally affiliated human remains,
including all information required
62166
under § 10.9 (c), and a notice of
inventory completion that summarizes
the results of the inventory.
(2) The notice of inventory
completion must summarize the
contents of the inventory in sufficient
detail so as to enable the recipients to
determine their interest in claiming the
inventoried items. It must identify each
particular set of human remains or each
associated funerary object and the
circumstances surrounding its
acquisition, describe the human remains
or associated funerary objects that are
clearly identifiable as to cultural
affiliation, and describe the human
that are not clearly identifiable as being
culturally affiliated with an Indian tribe
or Native Hawaiian organization, but
which, given the totality of
circumstances surrounding acquisition
of the human remains or associated
objects, are identified as likely to be
culturally affiliated with a particular
organization.
(3) If the inventory results in a
determination that the human remains
are of an identifiable individual, the
museum or Federal agency official must
convey this information to the lineal
descendant of the deceased individual,
if known, and to the Indian tribe or
Native Hawaiian organization of which
the deceased individual was culturally
affiliated.
(4) The notice of inventory
completion and a copy of the inventory
must also be sent to the Departmental
Consulting Archeologist. These
submissions should be sent in both
printed hard copy and electronic
formats. Information on the proper
format for electronic submission and
suggested alternatives for museums and
Federal agencies unable to meet these
requirements are available from the
(5) Upon request by an Indian tribe or
Native Hawaiian organization that has
received or should have received a
notice of inventory completion and a
copy of the inventory as described
above, a museum or Federal agency
must supply additional available
documentation to supplement the
information provided with the notice.
For these purposes, the term
documentation means a summary of
existing museum or Federal agency
records including inventories or
catalogues, relevant studies, or other
pertinent data for the limited purpose of
determining the geographical origin,
cultural affiliation, and basic facts
surrounding the acquisition and
accession of human remains and
associated funerary objects.
(6) If the museum or Federal agency
official determines that the museum or
Federal agency has possession of or
control over human remains that cannot
be identified as affiliated with a
particular individual, Indian tribes or
Native Hawaiian organizations, the
museum or Federal agency must
provide the Department Consulting
Archeologist notice of this result and a
copy of the list of culturally
associated funerary objects. The
must make this information available to
members of the Review Committee.
Section 10.11 of these regulations will
set forth procedures for disposition of
remains of Native American origin.
Museums or Federal agencies must
retain possession of such human
remains pending promulgation of
§ 10.11 unless legally required to do
otherwise, or recommended to do
otherwise by the Secretary.
Recommendations regarding the
disposition of culturally unidentifiable
human remains may be requested prior
to final promulgation of § 10.11.
(7) The Departmental Consulting
Archeologist must publish notices of
inventory completion received from
museums and Federal agencies in the
Federal Register.
(f) Completion. Inventories must be
completed not later than November 16,
1995. Any museum that has made a
good faith effort to complete its
inventory, but which will be unable to
complete the process by this deadline,
may request an extension of the time
requirements from the Secretary. An
indication of good faith efforts must
include, but not necessarily be limited
to, the initiation of active consultation
and documentation regarding the
collections and the development of a
written plan to carry out the inventory
process. Minimum components of an
inventory plan are: a definition of the
steps required; the position titles of the
persons responsible for each step; a
schedule for carrying out the plan; and
a proposal to obtain the requisite
funding.
§ 10.10
Repatriation.
(a) Unassociated funerary objects,
patrimony—(1) Criteria. Upon the
request of a lineal descendant, Indian
tribe, or Native Hawaiian organization,
a museum or Federal agency must
expeditiously repatriate unassociated
objects of cultural patrimony if all the
following criteria are met:
(i) The object meets the definitions
established in § 10.2 (b) (4), (5) or (6);
and
(ii) The cultural affiliation of the
object is established:
(A) through the summary,
consultation, and notification
procedures in § 10.14 of these
regulations; or
(B) by presentation of a
preponderance of the evidence by a
requesting Indian tribe or Native
Hawaiian organization pursuant to
section 7(c) of the Act; and
(iii) The known lineal descendant or
Native Hawaiian organization presents
evidence which, if standing alone before
the introduction of evidence to the
contrary, would support a finding that
the museum or Federal agency does not
have a right of possession to the objects
as defined in § 10.10 (a)(2); and
(iv) The agency or museum is unable
to present evidence to the contrary
proving that it does have a right of
possession as defined below; and
(v) None of the specific exceptions
listed in § 10.10 (c) apply.
(2) Right of possession. For purposes
of this section, ‘‘right of possession’’
means possession obtained with the
voluntary consent of an individual or
group that had authority of alienation.
The original acquisition of a Native
American unassociated funerary object,
sacred object, or object of cultural
patrimony from an Indian tribe or
Native Hawaiian organization with the
voluntary consent of an individual or
group with authority to alienate such
object is deemed to give right of
possession to that object.
(3) Notification. Repatriation must
take place within ninety (90) days of
receipt of a written request for
repatriation that satisfies the
requirements of § 10.10 (a)(1) from a
Native Hawaiian organization, provided
of the notice of intent to repatriate in the
Federal Register as described in § 10.8.
(b) Human remains and associated
funerary objects—(1) Criteria. Upon the
request of a lineal descendant, Indian
tribe, or Native Hawaiian organization,
a museum and Federal agency must
expeditiously repatriate human remains
and associated funerary objects if all of
the following criteria are met:
(i) The human remains or associated
funerary object meets the definitions
established in § 10.2 (b)(1) or (b)(3); and
(ii) The affiliation of the deceased
individual to known lineal descendant,
present day Indian tribe, or Native
Hawaiian organization:
(A) has been reasonably traced
through the procedures outlined in
§ 10.9 and § 10.14 of these regulations;
or
(B) has been shown by a
preponderance of the evidence
presented by a requesting Indian tribe or
Native Hawaiian organization pursuant
to section 7(c) of the Act; and
(iii) None of the specific exceptions
listed in § 10.10 (c) apply.
(2) Notification. Repatriation must
take place within ninety (90) days of
receipt of a written request for
repatriation that satisfies the
requirements of § 10.10 (b)(1) from the
Native Hawaiian organization, provided
of the notice of inventory completion in
the Federal Register as described in
§ 10.9.
(c) Exceptions. These requirements for
repatriation do not apply to:
(1) Circumstances where human
are indispensable to the completion of
a specific scientific study, the outcome
of which is of major benefit to the
United States. Human remains, funerary
cultural patrimony in such
circumstances must be returned no later
than ninety (90) days after completion
of the study; or
(2) Circumstances where there are
multiple requests for repatriation of
and the museum or Federal agency, after
complying with these regulations,
cannot determine by a preponderance of
the evidence which requesting party is
the most appropriate claimant. In such
circumstances, the museum or Federal
agency may retain the human remains,
objects of cultural patrimony until such
time as the requesting parties mutually
agree upon the appropriate recipient or
the dispute is otherwise resolved
pursuant to these regulations or as
ordered by a court of competent
jurisdiction; or
(3) Circumstances where a court of
competent jurisdiction has determined
that the repatriation of the human
in the possession or control of a
museum would result in a taking of
property without just compensation
within the meaning of the Fifth
Amendment of the United States
Constitution, in which event the
custody of the objects must be as
provided under otherwise applicable
law. Nothing in these regulations must
prevent a museum or Federal agency,
where otherwise so authorized, or a
lineal descendant, Indian tribe, or
Native Hawaiian organization, from
expressly relinquishing title to, right of
possession of, or control over any
(4) Circumstances where the
repatriation is not consistent with other
repatriation limitations identified in
§ 10.15 of these regulations.
(d) Place and manner of repatriation.
The repatriation of human remains,
objects of cultural patrimony must be
accomplished by the museum or Federal
agency in consultation with the
requesting lineal descendants, or
Native Hawaiian organization, as
appropriate, to determine the place and
manner of the repatriation.
(e) The museum official or Federal
agency official must inform the
recipients of repatriations of any
presently known treatment of the
with pesticides, preservatives, or other
substances that represent a potential
hazard to the objects or to persons
handling the objects.
(f) Record of repatriation. (1)
Museums and Federal agencies must
adopt internal procedures adequate to
permanently document the content and
recipients of all repatriations.
(2) The museum official or Federal
agency official, at the request of the
Indian tribe official, may take such steps
as are considered necessary pursuant to
otherwise applicable law, to ensure that
general public.
(g) Culturally unidentifiable human
remains. If the cultural affiliation of
human remains cannot be established
pursuant to these regulations, the
human remains must be considered
culturally unidentifiable. Museum and
Federal agency officials must report the
inventory information regarding such
human remains in their holdings to the
who will transmit this information to
the Review Committee. The Review
Committee is responsible for compiling
an inventory of culturally unidentifiable
human remains in the possession or
control of each museum and Federal
agency, and, for recommending to the
Secretary specific actions for disposition
of such human remains.
62167
§ 10.11 Disposition of culturally
unidentifiable human remains. [Reserved]
§ 10.12
Civil penalties. [Reserved]
§ 10.13
Future applicability. [Reserved]
Subpart D—General
§ 10.14 Lineal descent and cultural
affiliation.
(a) General. This section identifies
procedures for determining lineal
descent and cultural affiliation between
present-day individuals and Indian
and human remains, funerary objects,
patrimony in museum or Federal agency
collections or excavated intentionally or
discovered inadvertently from Federal
lands. They may also be used by Indian
organizations with respect to tribal
lands.
(b) Criteria for determining lineal
descent. A lineal descendant is an
individual tracing his or her ancestry
directly and without interruption by
means of the traditional kinship system
of the appropriate Indian tribe or Native
Hawaiian organization or by the
common law system of descendence to
a known Native American individual
whose remains, funerary objects, or
sacred objects are being requested under
these regulations. This standard requires
that the earlier person be identified as
an individual whose descendants can be
traced.
(c) Criteria for determining cultural
affiliation. Cultural affiliation means a
relationship of shared group identity
that may be reasonably traced
historically or prehistorically between a
Hawaiian organization and an
identifiable earlier group. All of the
following requirements must be met to
determine cultural affiliation between a
Hawaiian organization and the human
of an earlier group:
(1) Existence of an identifiable
Hawaiian organization with standing
under these regulations and the Act; and
(2) Evidence of the existence of an
identifiable earlier group. Support for
this requirement may include, but is not
necessarily limited to evidence
sufficient to:
(i) Establish the identity and cultural
characteristics of the earlier group,
(ii) Document distinct patterns of
material culture manufacture and
distribution methods for the earlier
group, or
62168
(iii) Establish the existence of the
earlier group as a biologically distinct
population; and
(3) Evidence of the existence of a
shared group identity that can be
reasonably traced between the presentday Indian tribe or Native Hawaiian
organization and the earlier group.
Evidence to support this requirement
must establish that a present-day Indian
has been identified from prehistoric or
historic times to the present as
descending from the earlier group.
(d) A finding of cultural affiliation
should be based upon an overall
evaluation of the totality of the
circumstances and evidence pertaining
to the connection between the claimant
and the material being claimed and
should not be precluded solely because
of some gaps in the record.
(e) Evidence. Evidence of a kin or
cultural affiliation between a presentday individual, Indian tribe, or Native
Hawaiian organization and human
must be established by using the
following types of evidence:
Geographical, kinship, biological,
archeological, anthropological,
linguistic, folklore, oral tradition,
historical, or other relevant information
or expert opinion.
(f) Standard of proof. Lineal descent
of a present-day individual from an
earlier individual and cultural
affiliation of a present-day Indian tribe
or Native Hawaiian organization to
must be established by a preponderance
of the evidence. Claimants do not have
to establish cultural affiliation with
scientific certainty.
§ 10.15 Repatriation limitations and
remedies.
(a) Failure to claim prior to
repatriation. (1) Any person who fails to
make a timely claim prior to the
repatriation or transfer of human
is deemed to have irrevocably waived
any right to claim such items pursuant
to these regulations or the Act. For these
purposes, a ‘‘timely claim’’ means the
filing of a written claim with a
responsible museum or Federal agency
official prior to the time the particular
at issue are duly repatriated or disposed
of to a claimant by a museum or Federal
agency pursuant to these regulations.
(2) If there is more than one (1)
claimant, the human remains, funerary
object, sacred object, or objects of
cultural patrimony may be held by the
or person having custody thereof
pending resolution of the claim. Any
person who has custody of such human
and does not claim entitlement to them
must place the objects in the custody of
the responsible museum or Federal
agency for retention until the question
of custody is resolved.
(b) Failure to claim where no
repatriation or disposition has occurred.
[Reserved]
(c) Exhaustion of remedies. No person
is considered to have exhausted his or
her administrative remedies with
respect to the repatriation or disposition
patrimony subject to subpart B of these
regulations, or, with respect to Federal
lands, subpart C of these regulations,
until such time as the person has filed
a written claim for repatriation or
disposition of the objects with the
and the claim has been duly denied
following these regulations.
(d) Savings provisions. Nothing in
these regulations can be construed to:
(1) Limit the authority of any museum
or Federal agency to:
(i) Return or repatriate human
to Indian tribes, Native Hawaiian
organizations, or individuals; and
(ii) Enter into any other agreement
with the consent of the culturally
affiliated Indian tribe or Native
Hawaiian organization as to the
disposition of, or control over, human
(2) Delay actions on repatriation
requests that were pending on
November 16, 1990;
(3) Deny or otherwise affect access to
court;
(4) Limit any procedural or
substantive right which may otherwise
be secured to individuals or Indian
tribes or Native Hawaiian organizations;
or
(5) Limit the application of any State
or Federal law pertaining to theft of
stolen property.
§ 10.16
Review committee.
(a) General. The Review Committee
will advise Congress and the Secretary
on matters relating to these regulations
and the Act, including, but not limited
to, monitoring the performance of
museums and Federal agencies in
carrying out their responsibilities,
facilitating and making
recommendations on the resolution of
disputes as described further in § 10.17,
and compiling a record of culturally
unidentifiable human remains that are
in the possession or control of museums
and Federal agencies and
recommending actions for their
disposition.
(b) Recommendations. Any
recommendation, finding, report, or
other action of the Review Committee is
advisory only and not binding on any
person. Any records and findings made
by the Review Committee may be
admissible as evidence in actions
brought by persons alleging a violation
of the Act.
§ 10.17
Dispute resolution.
(a) Formal and informal resolutions.
Any person who wishes to contest
actions taken by museums, Federal
agencies, Indian tribes, or Native
Hawaiian organizations with respect to
the repatriation and disposition of
is encouraged to do so through informal
negotiations to achieve a fair resolution
of the matter. The Review Committee
may aid in this regard as described
below. In addition, the United States
District Courts have jurisdiction over
any action brought that alleges a
violation of the Act.
(b) Review Committee Role. The
Review Committee may facilitate the
informal resolution of disputes relating
to these regulations among interested
parties that are not resolved by good
faith negotiations. Review Committee
actions may include convening
meetings between parties to disputes,
making advisory findings as to
contested facts, and making
recommendations to the disputing
parties or to the Secretary as to the
proper resolution of disputes consistent
with these regulations and the Act.
Appendix A to Part 10—Sample
Summary
The following is a generic sample and
should be used as a guideline for preparation
of summaries tailoring the information to the
specific circumstances of each case.
Before November 17, 1993
Chairman or Other Authorized Official
organization
Street
State
Dear Sir/Madame Chair:
I write to inform you of collections held by
our museum which may contain
unassociated funerary objects, sacred objects,
or objects of cultural patrimony that are, or
are likely to be, culturally affiliated with your
Indian tribe or Native Hawaiian organization.
This notification is required by section 6 of
the Native American Graves Protection and
Repatriation Act.
Our ethnographic collection includes
approximately 200 items specifically
identified as being manufactured or used by
members of your Indian tribe or Native
Hawaiian organization. These items represent
various categories of material culture,
including sea and land hunting, fishing,
tools, household equipment, clothing, travel
and transportation, personal adornment,
smoking, toys, and figurines. The collection
includes thirteen objects identified in our
records as ‘‘medicine bags.’’
Approximately half of these items were
collected by John Doe during his expedition
to your reservation in 1903 and accessioned
by the museum that same year (see Major
Museum Publication, no. 65 (1965).
Another 50 of these items were collected
by Jane Roe during her expeditions to your
reservation between 1950–1960 and
accessioned by the museum in 1970 (see
Major Museum: no. 75 (1975). Accession
information indicates that several of these
items were collected from members of the
Able and Baker families.
For the remaining approximately 50 items,
which were obtained from various collectors
between 1930 and 1980, additional collection
information is not readily available.
In addition to the above mentioned items,
the museum has approximately 50
ethnographic items obtained from the estate
of a private collector and identified as being
collected from the ‘‘northwest portion of the
State.’’
Our archeological collection includes
approximately 1,500 items recovered from
ten archeological sites on your reservation
and another 5,000 items from fifteen sites
within the area recognized by the Indian
Claims Commission as being part of your
Indian tribe’s aboriginal territory.
Please feel free to contact Fred Poe at (012)
345–6789 regarding the identification and
potential repatriation of unassociated
funerary objects, sacred objects, or objects of
cultural patrimony in this collection that are,
or are likely to be, culturally affiliated with
your Indian tribe or Native Hawaiian
organization. You are invited to review our
records, catalogues, relevant studies or other
pertinent data for the purpose of determining
the geographic origin, cultural affiliation, and
basic facts surrounding acquisition and
accession of these items. We look forward to
working together with you.
Sincerely,
Museum Official
Major Museum
Appendix B to Part 10—Sample Notice
of Inventory Completion
The following is an example of a Notice of
Inventory Completion published in the
Federal Register.
National Park Service
Notice of Inventory Completion for Native
American Human Remains and Associated
Funerary Objects from Hancock County, ME,
in the Control of the National Park Service.
AGENCY: National Park Service, Interior.
ACTION: Notice.
Notice is hereby given following provisions
of the Native American Graves Protection
and Repatriation Act, 25 U.S.C. 3003(d), of
completion of the inventory of human
remains and associated funerary objects from
a site in Hancock County, ME, that are
presently in the control of the National Park
Service.
A detailed inventory and assessment of
these human remains has been made by
National Park Service curatorial staff,
contracted specialists in physical
anthropology and prehistoric archeology, and
representatives of the Penobscot Nation,
Aroostook Band of Micmac, Houlton Band of
Maliseet, and the Passamaquoddy Nation,
identified collectively hereafter as the
Wabanaki Tribes of Maine.
The partial remains of at least seven
individuals (including five adults, one
subadult, and one child) were recovered in
1977 from a single grave at the Fernald Point
Site (ME Site 43–24), a prehistoric shell
midden on Mount Desert Island, within the
boundary of Acadia National Park. A bone
harpoon head, a modified beaver tooth, and
several animal and fish bone fragments were
found associated with the eight individuals.
Radiocarbon assays indicate the burial site
dates between 1035–1155 AD. The human
remains and associated funerary objects have
been catalogued as ACAD–5747, 5749, 5750,
5751, 5752, 5783, 5784. The partial remains
of an eighth individual (an elderly male) was
also recovered in 1977 from a second grave
at the Fernald Point Site. No associated
funerary objects were recovered with this
individual. Radiocarbon assays indicate the
second burial site dates between 480–680
AD. The human remains have been
catalogued as ACAD–5748. The human
remains and associated funerary objects of all
nine individuals are currently in the
possession of the University of Maine, Orono,
ME.
Inventory of the human remains and
associated funerary objects and review of the
accompanying documentation indicates that
no known individuals were identifiable. A
representative of the Wabanaki Tribes of
62169
Maine has identified the Acadia National
Park area as a historic gathering place for his
people and stated his belief that there exists
a relationship of shared group identity
between these individuals and the Wabanaki
Tribes of Maine. The Prehistoric
Subcommittee of the Maine State Historic
Preservation Office’s Archaeological
Advisory Committee has found it reasonable
to trace a shared group identity from the Late
Prehistoric Period (1000–1500 AD)
inhabitants of Maine as an undivided whole
to the four modern Indian tribes known
collectively as the Wabanaki Tribes of Maine
on the basis of geographic proximity;
survivals of stone, ceramic and perishable
material culture skills; and probable
linguistic continuity across the Late
Prehistoric/Contact Period boundary. In a
1979 article, Dr. David Sanger, the
archeologist who conducted the 1977
excavations at the Fernald Point Site and
uncovered the abovementioned burials,
recognizes a relationship between Maine
sites dating to the Ceramic Period (2,000
B.P.–1600 A.D.) and present-day Algonkian
speakers generally known as Abenakis,
including the Micmac, Maliseet,
Passamaquoddy, Penboscot, Kennebec, and
Pennacook groups.
Based on the above mentioned
information, officials of the National Park
Service have determined that, pursuant to 25
U.S.C. 3001 (2), there is a relationship of
shared group identity which can be
reasonably traced between these human
remains and associated funerary objects and
the Wabanaki Tribes of Maine.
This notice has been sent to officials of the
Wabanaki Tribes of Maine. Representatives of
any other Indian tribe which believes itself
to be culturally affiliated with these human
should contact Len Bobinchock, Acting
Superintendent, Acadia National Park, P.O.
Box 177, Bar Harbor, ME 04609, telephone:
(207) 288–0374, before August 31, 1994.
Repatriation of these human remains and
associated funerary objects to the Wabanaki
Tribes of Maine may begin after that date if
no additional claimants come forward.
Dated: July 21, 1994
Francis P. McManamon,
Chief, Archeological Assistance Division.
[Published: August 1, 1994]
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 95–29418 Filed 12–1–95; 8:45 am]
BILLING CODE 4310–70–F
Appendix B
Native American Graves Protection and Repatriation Act Regulations–
Future Applicability
13184
Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of this final
rule in the Federal Register. This final
rule is not a ‘‘major rule’’ as defined by
5 U.S.C. 804(2).
Environmental protection,
Administrative practice and procedure,
Agricultural commodities, Pesticides
and pests, Reporting and recordkeeping
requirements.
Dated: March 5, 2007.
Lois Rossi,
Director, Registration Division, Office of
Pesticide Programs.
Therefore, 40 CFR chapter I is
amended as follows:
■
PART 180—[AMENDED]
1. The authority citation for part 180
continues to read as follows:
■
Authority: 21 U.S.C. 321(q), 346a and 371.
2. Section 180.439 is amended by
alphabetically adding commodities to
the table in paragraph (a) to read as
follows:
■
§ 180.439 Thifensulfuron methyl;
Tolerances for residues.
(a) * * *
Commodity
Parts per million
*
*
*
Rice, grain ......................
Rice, straw ......................
Sorghum, grain, forage. ..
Sorghum, grain, grain .....
Sorghum, grain, stover ...
*
*
*
*
*
*
*
*
*
0.05
0.05
0.05
0.05
0.05
*
*
*
[FR Doc. E7–4762 Filed 3–20–07; 8:45 am]
BILLING CODE 6560–50–S
43 CFR Part 10
cprice-sewell on PROD1PC66 with RULES
RIN 1024–AC84
Native American Graves Protection
and Repatriation Act Regulations—
Future Applicability
Final rule.
AGENCY:
ACTION:
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15:10 Mar 20, 2007
Jkt 211001
SUMMARY: This final rule relates to one
section of the regulations implementing
the Native American Graves Protection
and Repatriation Act of 1990 (‘‘the
Act’’). This section outlines procedures
for the future applicability of the Act to
museums and Federal agencies.
DATES: Effective Date: This rule is
effective April 20, 2007.
ADDRESSES: Mail inquires to Dr. Sherry
Hutt, Manager, National NAGPRA
Program, National Park Service, 1849 C
Street, NW. (2253), Washington, DC
20240–0001. Telephone: (202) 354–
1479. Fax: (202) 371–5197.
FOR FURTHER INFORMATION CONTACT: Jerry
Case, Regulations Program Manager,
National Park Service, 1849 C Street,
NW., Room 7241, Washington, DC
20240. Phone: (202) 208–4206. E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On November 16, 1990, the Native
Repatriation Act (25 U.S.C. 3001 et seq.)
was signed into law. The Act addresses
the rights of lineal descendants, Indian
organizations to certain Native
cultural patrimony with which they are
affiliated. Section 13 of the Act requires
the Secretary of the Interior to
promulgate regulations to carry out
provisions of the Act.
Final regulations implementing the
Act were published in the Federal
Register on December 4, 1995, (60 FR
62138), and codified as 43 CFR part 10.
Five sections were reserved in the final
regulations with the intention that they
would be published in the future. One
of the five reserved sections, designated
§ 10.13, was set aside to clarify the
applicability of the Act to museums and
Federal agencies following the statutory
deadlines for completion of summaries
and inventories.
The Act requires museums and
Federal agencies, as defined by the Act,
to provide summaries of their
collections to any Indian tribe or Native
Hawaiian organization that is, or is
collection by November 16, 1993. The
Act also requires museums and Federal
agencies to prepare, in consultation
with culturally affiliated Indian tribes
and Native Hawaiian organizations,
inventories of human remains and
associated funerary objects by
November 16, 1995. The Act also
requires museums and Federal agencies
to submit notices for publication in the
Federal Register prior to repatriation.
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
Four types of situations are
anticipated where a museum or Federal
agency may fall under the jurisdiction of
the Act after the statutory deadlines: (1)
The museum or Federal agency receives
new collections; (2) a previously
unrecognized Indian group is
recognized as an Indian tribe; (3) an
institution in possession or control of
Native American human remains,
objects of cultural patrimony receives
Federal funds for the first time; and (4)
the museum or Federal agency revises a
decision previously published in the
Federal Register. In each case, this final
rule establishes deadlines for the
required summaries, inventories, or
notices.
This final rule provides museums and
Federal agencies with a uniform set of
procedures to ensure that lineal
descendants, Indian tribes, and Native
Hawaiian organizations know of the
existence and location of cultural items
with which they are affiliated and
which they may be able to repatriate.
These procedures facilitate the existing
repatriation provisions of the Act, and
are essential to the continued
effectiveness of the Act.
Preparation of the Rulemaking
The proposed rule to clarify future
applicability of the Act was published
in the Federal Register on October 20,
2004 (69 FR 61613). Public comment
was invited for a 90-day period, ending
on January 18, 2005. The proposed rule
was also posted on the National
NAGPRA Program Web site. The Native
Repatriation Review Committee
commented on the proposed rule at its
November 2, 2004 teleconference. In
addition, ten written comments were
received during the comment period,
representing three museums; three
national scientific or museum
organizations; two Federal agencies; one
national Native American organization;
and one non-Federally recognized
Native American group. Comments
addressed all sections of the proposed
rule. All comments were fully
considered when revising the proposed
rule as a final rulemaking.
Changes in Response to Public
Comment
Subsection 10.13(a)
This subsection outlines the purpose
of the proposed rule to clarify the
Federal agencies after expiration of the
statutory deadlines for completion of
summaries and inventories.
E:\FR\FM\21MRR1.SGM
21MRR1
Comment 1: Six commenters
questioned whether the Department of
the Interior has authority to promulgate
regulations establishing new deadlines
for completion of summaries and
inventories after those specified in the
Act.
Our Response: Three conditions must
be satisfied before the Secretary can be
said to have sufficient authority to
extend the reporting requirements of the
Act beyond that expressly provided: (1)
The cultural items affected by the rule’s
new reporting requirements must be
subject to repatriation or disposition
under the existing terms of the Act; (2)
Congress must have delegated to the
Secretary the authority to create
regulations to implement the terms of
the Act; and (3) the regulations crafted
by the Secretary must constitute a
legitimate and lawful exercise of the
implementation authority delegated by
Congress.
The scope of cultural items subject to
repatriation under Section 7 of Act is
best discerned from the language of the
statute itself. Section 7 addresses the
‘‘repatriation of Native American human
remains and objects possessed or
controlled by Federal agencies and
museums.’’ The only limitations of
Section 7 are by item type (Native
American human remains and objects),
party (Federal agencies and museums),
and the party’s interest in the cultural
item (possessed or controlled). Section 7
establishes procedures by which all
cultural items in the possession or
control of Federal agencies and
museums can be repatriated upon
demand. Subsections (a)(1) and (a)(2)
provide conditions for the repatriation
of cultural items listed in the
inventories and summaries completed
according to Sections 5 and 6 of the Act,
respectively, to known lineal
descendants or culturally affiliated
organization. Subsections (a)(4) and
(a)(5) provide conditions for the
repatriation of cultural items not listed
in such inventories or summaries.
Subsection (c) provides additional
standards for repatriating unassociated
objects of cultural patrimony separate
and apart from the standards in
subsection (a). When added together,
these individual provisions in Section 7
establish procedures by which all
cultural items in the possession or
control of Federal agencies and
museums can be repatriated upon
demand. Thus, the scope of items
subject to repatriation under Section 7
extends to all NAGPRA-defined
‘‘cultural items’’ that are ‘‘possessed or
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15:10 Mar 20, 2007
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controlled by Federal agencies and
museums.’’
There are three Congressional grants
of authority that give the Secretary the
power to issue regulations to implement
the Act. Section 13 of the Act
specifically directs the Secretary to
promulgate regulations to carry out the
Act. In addition, 25 U.S.C. 2 and 9 give
the President and his subordinates a
broad, general authority to issue
regulations necessary to manage Indian
affairs and implement legislation related
to Indians. These three grants of
legislative authority lead us to conclude
that Congress has given the Secretary
sufficient power to promulgate
regulations to implement the various
provisions of the Act, including the
provisions governing the repatriation of
cultural items in Section 7.
The Supreme Court established the
test for assessing the propriety of an
exercise of rulemaking authority in
Chevron v. NRDC, 467 U.S. 837 (1984).
‘‘The power of an administrative agency
to administer a congressionally created
* * * program necessarily requires the
formulation of policy and the making of
rules to fill any gap left, implicitly or
explicitly, by Congress. If Congress has
explicitly left a gap for the agency to fill,
there is an express delegation of
authority to the agency to elucidate a
specific provision of the statute by
regulation. Such legislative regulations
are given controlling weight unless they
are arbitrary, capricious, or manifestly
contrary to the statute. Sometimes the
legislative delegation to an agency on a
particular question is implicit rather
than explicit. In such a case, a court
may not substitute its own construction
of a statutory provision for a reasonable
interpretation made by the
administrator of an agency.’’ Chevron v.
NRDC, 467 U.S. 837, 843.
The Act does not clearly indicate how
museums that become subject to the
Section 7 requirements after the
expiration of the statutory reporting
requirements are to disseminate
information about cultural items in their
possession or control to potential
repatriation claimants. The Act also
does not set clear procedures for Indian
to learn of cultural items for which they
have a right to repatriate under Section
7. This rule facilitates the repatriation
process, a core function of the Act, by
agencies to prepare and disseminate
information regarding their newly
acquired or newly regulated collections.
It addresses a gap left in the statute
regarding how the Section 7 repatriation
process is to be implemented once the
statutory reporting requirements end.
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13185
Congress expressly delegated to the
Secretary, through Section 13 of Act,
and through 25 U.S.C. 2 and 9, the
authority to fill such gaps. Without the
dissemination of information about the
collections held by Federal agencies and
museums as envisioned by the proposed
rule, the repatriation of cultural items
under Section 7 would be frustrated.
Without such information, lineal
descendants and Indian tribes may not
otherwise learn about the existence or
location of cultural items to which they
have rights under the statute.
Furthermore, the process provided in
this rule is consistent with the
Secretary’s longstanding interpretation
that additional procedures were
necessary for implementing the
summary and inventory provisions after
the statutory deadlines. The present
section was initially proposed as a
reserved section on May 28, 1993, (58
FR 31127), and finalized as a reserved
section on December 4, 1995, (60 FR
62115). In its December 21, 2004 Chief’s
Directive, the Fish and Wildlife Service
directed its officers to comply with
Section 7’s repatriation process for all
cultural items ‘‘that are seized or in the
possession of Service officers as a result
of Service investigations.’’ The National
Park Service, as well, has issued letters
stating that a museum ‘‘does have an
obligation to update its summaries and
inventories to reflect newly acquired
collections and newly recognized Indian
tribes,’’ and that cultural items that
came into a museum’s possession after
January 1, 2000, are subject to the Act
[Letter from Francis P. McManamon,
Departmental Consulting Archaeologist,
National Park Service, to Michael Sims,
Middle Tennessee Support Group,
American Indian Movement (Jul. 31,
1997) (emphasis in original)]. These
administrative statements demonstrate
the Department’s understanding that the
Section 7 repatriation process applies,
without limitation, to all cultural items
within the possession or control of a
Federal agency or museum. We
conclude that facilitating the
repatriation process by administratively
requiring the dissemination of
information about cultural items subject
to repatriation is neither arbitrary,
capricious, nor manifestly contrary to
the Act, but instead constitutes a
reasoned approach to implementing the
Section 7 of the Act. As such, we find
that this rule constitutes a proper
exercise of the Secretary’s delegated
rulemaking authority.
Comment 2: One commenter thought
the proposed deadline for summaries
and inventories were reasonable as long
as the Act’s recognition of good faith
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13186
effort when those deadlines cannot be
met continues to apply.
Our Response: The Act explicitly
authorizes the Secretary of the Interior
to extend the inventory time
requirement for any museum which has
made a good faith effort but has been
unable to complete the inventory
process [25 U.S.C. 3003(c)]. The
statutory provisions are reiterated in
§ 10.9 of the regulations, which were
incorporated by reference in the
proposed future applicability rule.
However, additional text has been
added to § 10.13(b)(1)(ii) and (c)(1)(ii) to
explicitly state that inventory
extensions are available to museums
that have made a good faith effort but
have been unable to complete the
inventory process.
Comment 3: The drafters noted that
the consultation requirements in
§ 10.13(b)(i), (b)(ii), (d)(i), and (d)(ii) of
the proposed rule were limited to
‘‘culturally affiliated’’ Indian tribes and
Native Hawaiian organizations while
the consultation requirements in
§ 10.8(c) and 10.9(b) applies to a broader
group of Indian tribes and Native
Hawaiian organizations.
Our Response: Section 10.8(c) and
10.9(b) require museums and Federal
agencies to consult with Indian tribe
officials and traditional religious
leaders: (1) From whose tribal lands
cultural items originated; (2) that are, or
are likely to be, culturally affiliated with
cultural items; and (3) from whose
aboriginal lands cultural items
originated. The drafters intend the same
consultation standards to apply to
consultation situations covered in this
rule. The text has been revised to
require consultation with ‘‘affiliated’’
organizations, to include the range
specified in § 10.8(c) and 10.9(b).
Subsection 10.13(b)
This subsection establishes deadlines
for completing summaries and
inventories of collections received after
expiration of the statutory deadlines.
Comment 4: One commenter
requested clarification as to whether the
term ‘‘collection’’ can refer to a single
human remain, funerary object, sacred
object, or object of cultural patrimony.
Our Response: The summary and
inventory requirements of the Act apply
to ‘‘holdings or collections’’ of Native
cultural patrimony [25 U.S.C. 3003(a)
and 3004(a)]. The phrase ‘‘holding or’’
has been added before ‘‘collection’’
throughout the section to clarify that the
summary and inventory requirements of
the Act apply to both single and
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multiple human remains, funerary
cultural patrimony.
recommended exempting a museum or
Federal agency from completing a
summary or inventory of a newly
acquired collection if that collection had
been previously reported in a summary
or inventory by another museum or
Federal agency.
Our Response: The drafters do not
intend to require museums or Federal
agencies to complete a summary or
inventory of a holding or collection if it
had been previously reported in a
summary or inventory by another
museum or Federal agency. However,
the receiving museum or Federal agency
does have an obligation to notify lineal
descendants and culturally affiliated
Indian tribes identified in the earlier
summary or inventory of the change in
possession and control of the holding or
collection. Text has been added to
clarify that a museum or Federal agency
may rely upon a previously prepared
summary or inventory. The receiving
museum or Federal agency must
provide a copy of the previously
prepared summary or inventory to all
Hawaiian organizations, along with
notification that the museum or Federal
agency has assumed possession and
control of the holding or collection.
recommended defining ‘‘substantive
change.’’
Our Response: The term ‘‘substantive
change,’’ along with the example in the
following sentence, has been replaced
with text indicating that publication of
a notice in the Federal Register is not
required if there is no change in the
number or cultural affiliation of the
cultural items listed in the previous
notice.
recommended allowing a museum or
Federal agency to proceed with
repatriation of newly found fragments
from previously repatriated cultural
items regardless of whether the previous
repatriation occurred prior to or after
establishment of the Act.
Our Response: The Act may not be
construed to delay actions on
repatriation requests that were pending
on November 16, 1990 [25 U.S.C. 3009
(2)]. Newly found fragments from
cultural items that were repatriated
prior to November 16, 1990 may be
repatriated to the same party without
publication of a notice in the Federal
Register. Newly found fragments from
cultural items that were repatriated after
November 16, 1990 may not be
repatriated without publication of a
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notice in the Federal Register, unless
the newly found fragments do not result
in a change in the number or cultural
affiliation of the cultural items listed in
the previous notice.
recommended that the regulation clarify
that there is no obligation to revisit
collections that had been previously
repatriated in good faith.
Our Response: The only obligation to
revisit previously repatriated holdings
or collections would be to determine if
the newly found fragments will result in
a change in the number or cultural
a previously published notice. While
such a review may reveal discrepancies
in the original summary or inventory,
Section 7 (f) of the Act states that any
museum that repatriates cultural items
in good faith is not liable for claims by
an aggrieved party or for claims of
breach of fiduciary duty, public trust, or
violations of state law that are
inconsistent with provisions of the Act.
Subsection 10.13(c)
inventories when a previously nonFederally recognized Indian group is
acknowledged as an Indian tribe by the
Secretary.
recommended that museums and
Federal agencies should be required to
provide summaries and inventories to
newly recognized Indian tribes ‘‘as soon
as practicable.’’
Our Response: Specific deadlines are
necessary to ensure that summaries and
inventories are completed
expeditiously. The recommended
change has not been made.
Comment 10: Seven commenters
recommended that the National Park
Service ensure that information
regarding the acknowledgment of new
Indian tribes is made available to
museums and Federal agencies.
Our Response: The Secretary is
required to publish a list of Indian
Entities Recognized and Eligible to
Receive Services from the United States
in the Federal Register on or before
January 30 of each year [Pub. L. 103–
454, 108 Stat. 4791]. The purpose of the
list is to assist various departments and
agencies of the United States in
determining the eligibility of certain
groups to receive Federal services. Since
1990, six tribal entities have been newly
acknowledged as eligible for funding
and services by virtue of their status as
Indian tribes. These are the Jena Band
of Choctaws, Huron Potawatomi Inc.,
and Samish Indian Tribe (listed on
November 13, 1996); Snoqualmie Indian
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Tribe and Match-e-be-nash-she-wish
Band of Pottawatomi Indians of
Michigan (listed on March 13, 2000);
and Cowlitz Tribe of Indians (listed on
July 12, 2002). In order to facilitate
consultation with newly acknowledged
Indian tribes, the National Park Service
will identify newly acknowledged
Indian tribes on the National NAGPRA
Program Web site—http://
www.cr.nps.gov/nagpra/—and will
include contact and other relevant
information as it comes available for
each Indian tribe on the National
Consultation Database.
recommended that the Department of
the Interior provide specific notice that
a new Indian tribe has been
acknowledged to each museum and
Federal agency and have the deadlines
run from that notification.
Our Response: The summary and
inventory provisions of the Act apply to
Federal agencies and institutions that
receive Federal funds that have
possession or control of Native
American cultural items. There is no
centralized information source to
identify all institutions that receive
Federal funds nor of all institutions that
have possession or control of Native
American cultural items. Providing
specific notification that a new Indian
tribe has been acknowledges is thus
impractical. The National Park Service
will ensure that information regarding
new Indian tribes is readily available
through the National NAGPRA Program
Web site.
recommended that the rule require
museums and Federal agencies to
provide summaries and inventories to
all non-Federally recognized Indian
groups currently involved in the Federal
acknowledgement process.
Our Response: Nothing in the Act or
regulations precludes museums and
Federal agencies from consulting with
or providing information to nonFederally recognized Indian groups.
Disposition of human remains and
associated funerary objects to nonFederally recognized Indian groups is
currently facilitated by the Native
Repatriation Review Committee and a
recommendation from the Secretary.
Requiring the disposition of cultural
items to a non-Federally recognized
Indian group would appear to be
beyond the Secretary’s authority under
the Act.
Subsection 10.13(d)
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inventories by any institution that
receives Federal funds for the first time.
recommended that the National Park
Service provide notification of the
summary and inventory requirements to
all institutions that receive Federal
funds for the first time.
Our Response: There is no centralized
information source to identify all
institutions that receive Federal funds.
Subsection 10.13(e)
This subsection establishes
requirements for amending previously
published Federal Register notices
when a museum or Federal agency
revises its identification of cultural
items or determination of cultural
affiliation.
Comments 14: One commenter
identified the requirements as
reasonable, but questioned that perhaps
such requirements are already covered
by existing regulations.
Our Response: As currently written,
§ 10.8 does not establish a deadline for
a museum or Federal agency to
complete a summary if it acquires new
holdings or collections, or a new Indian
tribe is recognized, or it receives Federal
funds for the first time. Similarly, § 10.9
does not establish a deadline for a
museum or Federal agency to complete
an inventory if it acquires new holdings
or collections, or a new Indian tribe is
recognized, or it receives Federal funds
for the first time. Without the
information provided in summaries and
inventories, an Indian tribe and Native
Hawaiian organization has no way to
have its right to repatriate under Section
7 of the Act. While many museums and
Federal agencies have continued to
update their summaries and inventories
to accommodate new collections and
newly recognized Indian tribes, the
absence of regulations leaves them
without clear guidance on how and
when to provide summaries and
inventories to possible claimants. The
absence of regulations is likely to result
in museums and Federal agencies
accumulating a growing number of
culture items that could otherwise
rightfully be repatriated by lineal
descendants or culturally affiliated
organizations.
Other Issues
recommended revising references in
other sections of the rule to the
to whom the Secretary had previously
delegated some responsibilities under
the Act, to the Manager, National
NAGPRA Program.
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13187
Our Response: These duties were
reassigned to the Manager, National
NAGPRA Program by means of a
technical amendment. September 30,
2005, (70 FR 57177).
questioned the legal citation for the
right of possession as used in the
discussion of Executive Order 12630 in
the preamble.
Our Response: The commenter
accurately points out that 25 U.S.C.
3005 (c) specifically addresses the
standard of repatriation for unassociated
objects of cultural patrimony. Reference
to that section has been removed from
the preamble to the rule. However,
nothing in the Act requires museums to
repatriate human remains, funerary
cultural patrimony for which they can
prove right of possession
questioned the public reporting burden
estimated in the preamble.
Our Response: The commenter failed
to provide evidence showing that the
estimated public reporting burden of an
average of 20 hours for the exchange of
summary/inventory information
between a museum and an Indian tribe
and six hours per response for the
notification to the Secretary of the
Interior, including time for reviewing
sources, gathering and maintaining data
needed and completing and reviewing
the collected information is not
reasonable.
questioned whether time limits should
be set for repatriation.
Our Response: This issue will be
considered in a future rulemaking for
the currently reserved section at 10.15
(b) regarding failure to claim where no
repatriation or disposition has occurred.
Compliance With Other Laws
Regulatory Planning and Review
(Executive Order 12866)
This document is not a significant
rule and has not been reviewed by the
Office of Management and Budget under
Executive Order 12866.
(1) This rule will not have an effect of
$100 million or more on the economy.
It will not adversely affect in a material
way the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
or tribal governments or communities.
(2) This rule will not create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency. Actions taken under
this rule will not interfere with other
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13188
agencies or local government plans,
policies or controls. This rule is an
agency specific rule.
(3) This rule does not alter the
budgetary effects or entitlements, grants,
user fees, or loan programs, or the rights
or obligations of their recipients. This
rule will have no effects on
entitlements, grants, user fees, or loan
programs or the rights or obligations of
their recipients. No grants or other
forms of monetary supplements are
involved.
(4) This rule does not raise novel legal
or policy issues.
Regulatory Flexibility Act
This rule will not have a significant
economic effect on a substantial number
of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
In accordance with Executive Order
12612, the rule does not have sufficient
federalism implications to warrant the
preparation of a Federalism Assessment.
A Federalism Assessment is not
required.
Civil Justice Reform (Executive Order
12988)
12988, the Office of the Solicitor has
determined that this rule does not
unduly burden the judicial system and
does not meet the requirements of
sections 3(a) and 3(b) of the order.
Paperwork Reduction Act
This rule does not impose an
unfunded mandate on State, local, or
tribal governments or the private sector
of more than $100 million per year. The
rule does not have a significant or
unique effect on State, local or tribal
governments, or the private sector. A
statement containing the information
required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not
required.
The collection of information
contained in this rule has been
submitted to the Office of Management
and Budget for approval as required by
44 U.S.C. 3501 et seq. The collection of
this information will not be required
until it has been approved by the Office
of Management and Budget. Public
reporting burden for this collection of
information is expected to average 20
hours for the exchange of summary/
inventory information between a
museum and an Indian tribe and six
hours per response for the notification
to the Secretary of the Interior,
including time for reviewing
sources, gathering and maintaining the
data needed, and completing and
reviewing the collected information.
Send comments regarding this burden
estimate or any other aspects of this
collection of information, including
suggestions for reducing the burden, to
Information Collection Officer, Attn:
Docket No. 1024–AC84, National Park
Service, Department of Interior
Building, 1849 C Street, NW., Room
3317, Washington, DC 20240, and the
Office of Management and Budget,
Office of Information and Regulatory
Affairs, Attention: Desk Officer for the
Department of the Interior, Washington,
DC 20503.
Takings (Executive Order 12630)
National Environmental Policy Act
12630, the rule does not have significant
takings implications. A takings
implication assessment is not required,
since the rule does not compel the
repatriation of Native American cultural
items, nor does it affect any item not
already subject to repatriation under
NAGPRA. Further, museums are only
required to repatriate human remains,
objects of cultural patrimony for which
they cannot prove right of possession
[25 U.S.C. 3001(13) and 3005(c)].
This rule does not constitute a major
Federal action significantly affecting the
quality of the human environment and
can be Categorically Excluded under
NPS exclusion 3.4A(8) ‘‘Modifications
or revisions to existing regulations, or
the promulgation of new regulations for
NPS-administered areas, provided the
modifications, revisions, or new
regulations do not:
(a) Increase public use to the extent of
compromising the nature and character
of the area or cause physical damage to
it.
Small Business Regulatory Enforcement
Fairness Act (SBREFA)
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
This final rule:
a. Does not have an annual effect on
the economy of $100 million or more.
b. Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State, or
local government agencies, or
geographic regions.
c. Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
Unfunded Mandates Reform Act
Federalism (Executive Order 12612)
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(b) Introduce non-compatible uses
that might compromise the nature and
characteristics of the area or cause
physical damage to it.
(c) Conflict with adjacent ownerships
or land uses.
(d) Cause a nuisance to adjacent
owners or occupants.’’
Government-to-Government
Relationship With Tribes
The rule clarifies the circumstances in
which museums and Federal agencies
are required to provide summaries and
inventories thereby increasing notice
and opportunity for Indian tribes to
repatriate cultural items. As required by
Executive Order 13175, the drafters
consulted with representatives of Indian
tribal governments prior to and during
the development of the proposed rule as
part of multiple, duly-noticed public
meetings held by the Native American
Graves Protection and Repatriation
Review Committee. No Indian tribes
raised concerns regarding the proposed
rule during the comment period.
Clarity of Rule
Executive Order 12866 requires each
agency to write regulations that are easy
to understand. We invite comments on
how to make this rule easier to
understand, including answers to
questions such as the following—(1) Are
the requirements in the rule clearly
stated? (2) Does the rule contain
technical language or jargon that
interferes with its clarity? (3) Does the
format of the rule (grouping and order
of sections, use of headings,
paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to
understand if it were divided into more
(but shorter) sections? (A ‘‘section’’
appears in bold type and is preceded by
the symbol ‘‘§ ’’ and a numbered
heading; for example, § 10.13 Future
Applicability.) (5) Is the description of
the rule in the SUPPLEMENTARY
INFORMATION section of the preamble
helpful in understanding the proposed
rule? What else could we do to make the
rule easier to understand?
Send a copy of any comments that
concern how we could make this rule
easier to understand to: Office of
Regulatory Affairs, Department of the
Interior, Room 7229, 1849 C Street,
NW., Washington, DC 20240. You may
also e-mail the comments to:
[email protected].
Drafting Information
This final rule was prepared by Dr. C.
Timothy McKeown in consultation with
the Native American Graves Protection
and Repatriation Review Committee as
directed by Section 8(c)(7) of the Act.
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Administrative practice and
procedure, Graves, Hawaiian Natives,
Historic preservation, Indians—claims,
Museums, Reporting and recordkeeping
requirements, Repatriation.
■ In consideration of the foregoing, 43
CFR Subtitle A is amended as follows.
PART 10—NATIVE AMERICAN
GRAVES PROTECTION AND
REPATRIATION REGULATIONS
1. The authority for part 10 continues
to read as follows:
■
Authority: 25 U.S.C. 3001 et seq.
■
2. Add § 10.13 to read as follows:
§ 10.13
Future applicability.
(a) General. This section sets forth the
Federal agencies after expiration of the
statutory deadlines for completion of
summaries and inventories.
(b) New holdings or collections.
(1) Any museum or Federal agency
that, after completion of the summaries
and inventories as required by §§ 10.8
and 10.9, receives a new holding or
collection or locates a previously
unreported current holding or collection
that may include human remains,
funerary objects, sacred objects or
objects of cultural patrimony, must:
(i) Within 6 months of receiving a
new holding or collection or locating a
previously unreported current holding
or collection, or within 6 months of the
effective date of this rule, whichever is
later, provide a summary of the holding
or collection as required by § 10.8 to any
organization that is, or is likely to be,
affiliated with the collection; and
(ii) Within 2 years of receiving a new
holding or collection or locating a
previously unreported current holding
or collection, or within 2 years of the
effective date of this rule, whichever is
later, prepare, in consultation with any
affiliated Indian tribe or Native
Hawaiian organization, an inventory as
required by § 10.9 of these regulations.
Any museum that has made a good faith
effort to complete its inventory, but
which will be unable to complete the
process by this deadline, may request an
extension of the time requirements
under § 10.9(f).
(2) Additional pieces or fragments of
previously repatriated human remains,
funerary objects, sacred objects and
objects of cultural patrimony may be
returned to the appropriate Indian tribe
or Native Hawaiian organization
without publication of a notice in the
Federal Register, as otherwise required
under §§ 10.8(f) and 10.9(e), if they do
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15:10 Mar 20, 2007
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not change the number or cultural
the previous notice.
(3) A museum or Federal agency that
receives a new holding or collection for
which a summary or inventory was
previously prepared, as required by
§§ 10.8 or 10.9, may rely upon the
previously prepared documents. The
receiving museum or Federal agency
must provide a copy of the previously
prepared summary or inventory to all
Hawaiian organizations, along with
notification that the receiving museum
or Federal agency has assumed
possession and control of the holding or
collection.
(c) New Indian tribes.
that has possession or control of human
that are, or are likely to be, culturally
affiliated with a newly Federally
recognized Native American tribe, must:
(i) Within 6 months of the publication
in the Federal Register of the Native
American group’s placement on the list
of Indian Entities Recognized and
Eligible to Receive Services from the
United States Bureau of Indian Affairs,
or within 6 months of the effective date
of this rule, whichever is later, provide
a summary of the collection as required
by § 10.8 to that Indian tribe; and
(ii) Within 2 years of the publication
in the Federal Register of the Native
American group’s placement on the list
of Indian Entities Recognized and
Eligible to Receive Services from the
United States Bureau of Indian Affairs,
or within 2 years of the effective date of
this rule, whichever is later, prepare, in
consultation with the newly recognized
culturally affiliated Indian tribe an
inventory as required by § 10.9. Any
museum that has made a good faith
effort to complete its inventory, but
which will be unable to complete the
process by this deadline, may request an
extension of the time requirements
under § 10.9(f).
(2) The list of Indian Entities
Recognized and Eligible to Receive
Services from the United States Bureau
of Indian Affairs is published in the
Federal Register as required by
provisions of the Federally Recognized
Indian Tribe List Act of 1994 [Pub. L.
103–454, 108 Stat. 4791].
(d) New Federal funds. Any museum
that has possession or control of human
and receives Federal funds for the first
time after expiration of the statutory
deadlines for completion of summaries
and inventories must:
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13189
(1) Within 3 years of the date of
receipt of Federal funds, or within 3
years of the effective date of this rule,
whichever is later, provide a summary
of the collection as required by § 10.8 to
any Indian tribe or Native Hawaiian
organization that is, or is likely to be,
culturally affiliated with the collections;
and
(2) Within 5 years of the date of
receipt of Federal funds, or within 5
years of the effective date of this rule,
whichever is later, prepare, in
consultation with any affiliated Indian
tribe or Native Hawaiian organization,
an inventory as required by § 10.9.
(e) Amendment of previous decision.
that has previously published a notice
in the Federal Register regarding the
intent to repatriate unassociated
objects of cultural patrimony under
§ 10.8(f), or the completion of an
inventory of Native American human
as required by § 10.9(e), must publish an
amendment to that notice if, based on
subsequent information, the museum or
Federal agency revises its decision in a
way that changes the number or cultural
affiliation of the cultural items listed.
(2) Repatriation may not occur until at
least 30 days after publication of the
amended notice in the Federal Register.
(f) All actions taken as required by
this section must also comply with all
other relevant sections of 43 CFR 10.
Dated: March 6, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. E7–5113 Filed 3–20–07; 8:45 am]
BILLING CODE 4312–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 76
[MB Docket No. 05–311; FCC 06–180]
Implementation of Section 621(a)(1) of
the Cable Communications Policy Act
of 1984 as amended by the Cable
Television Consumer Protection and
Competition Act of 1992
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
SUMMARY: In this document, the
Commission adopts rules and provides
guidance to implement section 621(a)(1)
of the Communications Act. The
Commission solicited and reviewed
comments on this section and found
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21MRR1
Appendix C
California-Native American Graves Protection and Repatriation Law
Assembly Bill No. 978
CHAPTER 818
An act to add Chapter 5 (commencing with Section 8010) to Part 2 of
Division 7 of the Health and Safety Code, relating to human remains.
[Approved by Governor October 12, 2001. Filed
with Secretary of State October 13, 2001.]
LEGISLATIVE COUNSEL’S DIGEST
AB 978, Steinberg. Native American graves protection and
repatriation.
Existing law contains provisions regarding the regulation of human
remains disposal and burials.
This bill, the California Native American Graves Protection and
Repatriation Act of 2001, would require all state agencies and museums
that receive state funding and that have possession or control over
collections of human remains or cultural items, as defined, to complete
an inventory and summary of these remains and items on or before
January 1, 2003, with certain exceptions, would provide a process for the
identification and repatriation of these items to the appropriate tribes,
and would authorize the imposition of civil penalties for failure to
comply with the requirements of this bill. The bill would also establish
the Repatriation Oversight Commission, composed of 10 members,
with specified duties relating to the repatriation process.
The people of the State of California do enact as follows:
SECTION 1. Chapter 5 (commencing with Section 8010) is added
to Part 2 of Division 7 of the Health and Safety Code, to read:
CHAPTER 5.
CALIFORNIA NATIVE AMERICAN GRAVES PROTECTION AND
REPATRIATION
Article 1.
General Provisions
8010. This chapter shall be known, and may be cited as the
California Native American Graves Protection and Repatriation Act of
2001.
8011. It is the intent of the Legislature to do all of the following:
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(a) Provide a seamless and consistent state policy to ensure that all
California Indian human remains and cultural items be treated with
dignity and respect.
(b) Apply the state’s repatriation policy consistently with the
provisions of the Native American Graves Protection and Repatriation
Act (25 U.S.C. Sec. 3001 et seq.), which was enacted in 1990.
(c) Facilitate the implementation of the provisions of the federal
Native American Graves Protection and Repatriation Act with respect
to publicly funded agencies and museums in California.
(d) Encourage voluntary disclosure and return of remains and cultural
items by an agency or museum.
(e) Provide a mechanism whereby lineal descendants and culturally
affiliated California Indian tribes that file repatriation claims for human
remains and cultural items under the Native American Graves Protection
and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) or under this chapter
with California state agencies and museums may request assistance from
the commission in ensuring that state agencies and museums are
responding to those claims in a timely manner and in facilitating the
resolution of disputes regarding those claims.
(f) Provide a mechanism whereby California tribes that are not
federally recognized may file claims with agencies and museums for
repatriation of human remains and cultural items.
Article 2.
State Cultural Affiliation and Repatriation
8012. As used in this chapter, terms shall have the same meaning as
in the federal Native American Graves Protection and Repatriation Act
(25 U.S.C. Sec. 3001 et seq.), as interpreted by federal regulations,
except that the following terms shall have the following meaning:
(a) ‘‘Agency’’ means any division, department, bureau, commission,
board, council, city, county, city and county, district, or other political
subdivision of the state, but does not include any school district.
(b) ‘‘Burial site’’ means, except for cemeteries and graveyards
protected under existing state law, any natural or prepared physical
location, whether originally below, on, or above the surface of the earth,
into which human remains were intentionally deposited as a part of the
death rites or ceremonies of a culture.
(c) ‘‘Commission’’ means the Repatriation Oversight Commission
established pursuant to Article 3 (commencing with Section 8025).
(d) ‘‘Cultural items’’ shall have the same meaning as defined by
Section 3001 of Title 25 of the United States Code, except that it shall
mean only those items that originated in California.
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(e) ‘‘Control’’ means having ownership of human remains and
cultural items sufficient to lawfully permit a museum or agency to treat
the object as part of its collection for purposes of this chapter, whether
or not the human remains and cultural items are in the physical custody
of the museum or agency. Items on loan to a museum or agency from
another person, museum, or agency shall be deemed to be in the control
of the lender, and not the borrowing museum or agency.
(f) ‘‘State cultural affiliation’’ means that there is a relationship of
shared group identity that can reasonably be traced historically or
prehistorically between members of a present-day California Indian
Tribe, as defined in subdivision (i), and an identifiable earlier tribe or
group. Cultural affiliation is established when the preponderance of the
evidence, based on geography, kinship, biology, archaeology,
linguistics, folklore, oral tradition, historical evidence, or other
information or expert opinion, reasonably leads to such a conclusion.
(g) ‘‘Inventory’’ means an itemized list that summarizes the
collection of human remains and associated funerary objects in the
possession or control of an agency or museum. This itemized list may
be the inventory list required under the federal Native American Graves
Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
(h) ‘‘Summary’’ means a document that summarizes the collection of
unassociated funerary objects, sacred objects, or objects of cultural
patrimony in the possession or control of an agency or museum. This
document may be the summary prepared under the federal Native
American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001
et seq.).
(i) ‘‘Museum’’ means an entity, including a higher educational
institution, excluding school districts, that receives state funds.
(j) ‘‘California Indian tribe’’ means any tribe located in California to
which any of the following applies:
(1) It meets the definition of Indian tribe under the federal Native
et seq.).
(2) It is not recognized by the federal government, but is indigenous
to the territory that is now known as the State of California, and both of
the following apply:
(A) It is listed in the Bureau of Indian Affairs Branch of
Acknowledgement and Research petitioner list pursuant to Section 82.1
of Title 25 of the Federal Code of Regulations.
(B) It is determined by the commission to be a tribe that is eligible to
participate in the repatriation process set forth in this chapter. The
commission shall publish a document that lists the California tribes
meeting these criteria, as well as authorized representatives to act on
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behalf of the tribe in the consultations required under paragraph (4) of
subdivision (a) of Section 8013 and in matters pertaining to repatriation
under this chapter. Criteria that shall guide the commission in making
the determination of eligibility shall include, but not be limited to, the
following:
(i) A continuous identity as an autonomous and separate tribal
government.
(ii) Holding itself out as a tribe.
(iii) The tribe as a whole has demonstrated aboriginal ties to the
territory now known as the State of California and its members can
demonstrate lineal descent from the identifiable earlier groups that
inhabited a particular tribal territory.
(iv) Recognition by the Indian community and non-Indian entities as
a tribe.
(v) Demonstrated membership criteria.
(k) ‘‘Possession’’ means having physical custody of human remains
and cultural items with a sufficient legal interest to lawfully treat the
human remains and cultural items as part of a collection. The term does
not include human remains and cultural items on loan to an agency or
museum.
(l) ‘‘Preponderance of the evidence’’ means that the party’s evidence
on a fact indicates that it is more likely than not that the fact is true.
8013. (a) Any agency or museum that has possession or control
over collections of California Native American human remains and
associated funerary objects shall complete an inventory of all these
remains and associated funerary objects and, to the extent possible based
on all information possessed by the agency or museum, do all of the
following:
(1) Identify the geographical location, state cultural affiliation, and
the circumstances surrounding their acquisition.
(2) List in the inventory the human remains and associated funerary
objects that are clearly identifiable as to state cultural affiliation with
California Indian tribes. These items shall be listed first in order to
expedite the repatriation of these items.
(3) List the human remains and associated funerary objects that are
not clearly identifiable by cultural affiliation but that, given the totality
of circumstances surrounding their acquisition and characteristics are
determined by a reasonable belief to be human remains and associated
funerary objects with a state cultural affiliation with one or more
California Indian tribes. Consult with California Indian tribes believed
by the agency or museum to be affiliated with the items, during the
compilation of the inventory as part of the determination of affiliation.
If the agency or museum cannot determine which California Indian
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tribes are believed to be affiliated with the items, then tribes that may be
affiliated with the items shall be consulted during the compilation of the
inventory.
(b) Any agency or museum that has possession or control over
collections of California Indian unassociated funerary objects, sacred
objects, or objects of cultural patrimony shall provide a written summary
of the objects based upon available information held by the agency or
museum. The summary shall describe the scope of the collection, kinds
of objects included, reference to geographical location, means and
period of acquisition, and state cultural affiliation, where readily
ascertainable. The summary shall be in lieu of an object-by-object
inventory. Each agency or museum, following preparation of a summary
pursuant to this subdivision, shall consult with California Indian tribes
and tribally authorized government officials and traditional religious
leaders.
(c) Each agency or museum shall complete the inventories and
summaries required by subdivisions (a) and (b) by January 1, 2003, or
within one year of the date on which the commission issues the list of
California Indian tribes provided for under paragraph (2) of subdivision
(i) of Section 8012, whichever is later. To the extent that this section
requires the inventory and summary to include items not required to be
included in the inventory and summary under the federal Native
et seq.), the agency or museum shall supplement its inventory and
summary under this section to include those additional items.
(d) Upon request of a California Indian tribe, a museum or agency
shall supply additional available documentation to supplement the
information required by subdivisions (a) and (b). For purposes of this
paragraph, ‘‘documentation’’ means a summary of existing museum or
agency records, including inventories or catalogs, relevant studies, or
other pertinent data for the limited purpose of determining the
geographical origin, cultural affiliation, and basic facts surrounding the
acquisition and accession of California Native American human remains
and cultural items subject to this section. This section shall not be
construed to authorize the completion or initiation of any scientific study
of human remains or cultural items.
(e) Within 90 days of completing the inventory and summary
specified in subdivisions (a) and (b), the agency or museum shall provide
a copy of the inventory and summary to the commission. The
commission shall, in turn, publish notices of completion of summaries
and inventories on its Web site for 30 days, and make the inventory and
summary available to any requesting tribe or state affiliated tribe.
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(f) The inventory and summary specified in subdivisions (a) and (b)
shall be completed by all agencies and museums that have possession or
control of Native American human remains or cultural items, regardless
of whether the agency or museum is also subject to the requirements of
the federal Native American Graves Protection and Repatriation Act (25
U.S.C. Sec. 3001 et seq.). Any inventory or summary, or any portion of
an inventory or summary, that has been created to meet the requirements
of the Native American Graves Protection and Repatriation Act (25
U.S.C. Sec. 3001 et seq.) may be used to meet the requirements of this
chapter, if appropriate.
(g) Any agency or museum that has completed inventories and
summaries on or before January 1, 2002, as required by the federal
Native American Graves Protection and Repatriation Act (25 U.S.C.
Sec. 3001 et seq.) shall be deemed to be in compliance with this section
provided that the agency or museum does both of the following:
(1) Provide a copy of the inventories and summaries to the
commission by July 1, 2002, or within 30 days of the date on which the
commission is formed, whichever is later.
(2) Prepare supplementary inventories and summaries as necessary to
comply with subdivisions (a) and (b) for those portions of their
collections that originate from California and that have not been
determined to be culturally affiliated with federally recognized tribes
which, in the case of inventories, are those portions of the collections of
an agency or museum that have been identified on their inventories
under the federal Native American Graves Protection and Repatriation
Act (25 U.S.C. Sec. 3001 et seq.) as ‘‘culturally unidentifiable,’’ by
January 1, 2003, or within one year of the date on which the commission
issues the list of California Indian tribes provided for under paragraph
(2) of subdivision (j) of Section 8012, whichever is later.
(h) If the agency or museum determines that it does not have in its
possession or control any human remains or cultural items, the agency
or museum shall, in lieu of an inventory or summary, state that finding
in a letter to the commission at the commission’s request.
(i) Following completion of the initial inventories and summaries
specified in subdivisions (a) and (b), each agency or museum shall
update its inventories and summaries whenever the agency or museum
receives possession or control of human remains or cultural items that
were not included in the initial inventories and summaries. Upon
completion, the agency or museum shall provide a copy of its updated
inventories and summaries to the commission. Nothing in this section
shall be construed to mean that a museum or agency may delay
repatriation of items in the initial inventory until the updating of all
inventories and summaries is completed.
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8014. A tribe claiming state cultural affiliation and requesting the
return of human remains and cultural items listed in the inventory or
summary of an agency or museum or that requests the return of human
remains and cultural items that are not listed in the inventory but are
believed to be in the possession or control of the agency or museum in
the state shall do both of the following:
(a) File a written request for the human remains and cultural items
with the commission and the agency or museum believed to have
possession or control.
(b) Provide evidence that would establish that items claimed are
cultural items and are culturally affiliated with the California Indian tribe
making the claim. Evidence of cultural affiliation need not be provided
in cases where cultural affiliation is reasonably established by the
inventory or summary.
8015. (a) Upon receiving a written request for repatriation of an
item on the inventory, the commission shall forward a copy of the request
to the agency or museum in possession of the item, if the criteria
specified in subdivision (b) of Section 8016 have been met. At this time,
the commission shall also publish the request for repatriation on its Web
site for 30 days. If there are no other requests for a particular item and
there is not unresolved objection pursuant to subdivision (c) of Section
8016 within 90 days of the date of distribution and publication of the
inventory or summary and completion of any federal Native American
Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.)
repatriation process related to the item, the agency or museum in
possession of the item shall repatriate the requested item to the
requesting party. This repatriation shall occur within 30 days after the
last day of the 90-day period, or on a date agreed upon by all parties.
(b) Nothing in this section shall be construed to prohibit any
requesting party, a tribe, an agency, or a museum from coordinating
directly with each other on repatriation, or to prohibit the repatriation at
any time of any undisputed items to the requesting party prior to
completion of any requirements set forth in this chapter. The
commission shall receive, for their records, copies of all repatriation
agreements and shall have the power to enforce these agreements.
8016. (a) If there is more than one request for repatriation for the
same item, or there is a dispute between the requesting party and the
agency or museum, or if a dispute arises in relation to the repatriation
process, the commission shall notify the affected parties of this fact and
the cultural affiliation of the item in question shall be determined in
accordance with this section.
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(b) Any agency or museum receiving a repatriation request pursuant
to subdivision (a) shall repatriate human remains and cultural items if all
of the following criteria have been met:
(1) The requested human remains or cultural items meet the
definitions of human remains or cultural items that are subject to
inventory requirements under subdivision (a) of Section 8013.
(2) The state cultural affiliation of the human remains or cultural
items is established as required under subdivision (f) of Section 8012.
(3) The agency or museum is unable to present evidence that, if
standing alone before the introduction of evidence to the contrary, would
support a finding that the agency or museum has a right of possession
to the requested cultural items.
(4) None of the exemptions listed in Section 10.10(c) of Title 43 of
the Federal Code of Regulations apply.
(5) All other applicable requirements of regulations adopted under
the federal Native American Graves Protection and Repatriation Act (25
U.S.C. Sec. 3001 et seq.), contained in Part 10 of Title 43 of the Code
of Federal Regulations, have been met.
(c) Within 30 days after notice has been provided by the commission,
the museum or agency shall have the right to file with the commission
any objection to the requested repatriation, based on its good faith belief
that the requested human remains or cultural items are not culturally
affiliated with the requesting California tribe or are not subject to
repatriation under this chapter.
(d) The disputing parties shall submit documentation describing the
nature of the dispute, in accordance with standard mediation practices
and the commission’s procedures, to the commission, which shall, in
turn, forward the documentation to the opposing party or parties. The
disputing parties shall meet within 30 days of the date of the mailing of
the documentation with the goal of settling the dispute.
(e) If, after meeting pursuant to subdivision (b), the parties are unable
to settle the dispute, the commission, or a certified mediator designated
by the commission in accordance with subdivision (b) of Section 8026,
shall mediate the dispute.
(f) Each disputing party shall submit complaints and supporting
evidence to the commission or designated mediator and the other
opposing parties detailing their positions on the disputed issues in
accordance with standard mediation practices and the commission’s
mediation procedures. Each party shall have 20 days from the date the
complaint and supporting evidence were mailed to respond to the
complaints. All responses shall be submitted to the opposing party or
parties and the commission or designated mediator.
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(g) The commission or designated mediator shall review all
complaints, responses, and supporting evidence submitted. Within 20
days after the date of submission of responses, the commission or
designated mediator shall hold a mediation session and render a decision
within seven days of the date of the mediation session.
(h) When the disposition of any items are disputed, the party in
possession of the items shall retain possession until the mediation
process is completed. No transfer of items shall occur until the dispute
is resolved.
(i) Tribal oral histories, documentations, and testimonies shall not be
afforded less evidentiary weight than other relevant categories of
evidence on account of being in those categories.
(j) If the parties are unable to resolve a dispute through mediation, the
dispute shall be resolved by the commission. The determination of the
commission shall be deemed to constitute a final administrative remedy.
Any party to the dispute seeking a review of the determination of the
commission is entitled to file an action in the superior court seeking an
independent judgement on the record as to whether the commission’s
decision is supported by a preponderance of the evidence. The
independent review shall not constitute a de novo review of a decision
by the commission, but shall be limited to a review of the evidence on
the record. Petitions for review shall be filed with the court not later than
30 days after the final decision of the commission.
8017. If there is a committee or group of tribes authorized by their
respective tribal governments to accept repatriation of items originating
from their region and culturally affiliated with those tribal governments,
then the items may be repatriated to those groups.
8018. An agency or museum that repatriates human remains and
cultural items in good faith pursuant to this chapter is not liable for
claims by an aggrieved party or for claims of breach of a fiduciary duty
or the public trust or of violation of state law that are inconsistent with
this chapter. No action shall be brought on behalf of the state or any other
entity or person for damages or for injunctive relief for a claim of
improper disposition of human remains or cultural items if the agency
or museum has complied with the provisions of this chapter.
8019. Nothing in this section shall be construed to prohibit the
governing body of a California Indian tribe or group authorized by
Section 8017 from expressly relinquishing control over any human
remains or control or title to any cultural item.
8020. Notwithstanding any other provision of law, and upon the
request of any party or an intervenor, the commission or designated
mediator may close part of a mediation session to the public if the
commission or designated mediator finds that information required at
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the mediation session may include identification of the specific location
of a burial site, human remains and cultural items or that information
necessary for a determination regarding repatriation may compromise or
interfere with any religious practice or custom.
8021. The filing of an appeal by either party automatically stays an
order of the commission or a designated mediator on repatriation of
human remains and cultural items.
Article 3.
Repatriation Oversight Commission
8025. (a) There is hereby established the Repatriation Oversight
Commission composed of 10 members as follows:
(1) Two voting members appointed by the Governor from
nominations made by federally recognized California tribes within the
state. One member each shall represent the central and southern areas of
the state.
(2) Two voting members appointed by the Speaker of the Assembly
from nominations made by federally recognized California tribes within
the state. One member each shall represent the northern and southern
areas of the state.
(3) Two voting members appointed by the Senate Committee on
Rules from nominations made by federally recognized California tribes
within the state. One member each shall represent the northern and
central areas of the state.
(4) One voting member appointed by the Governor from nominations
submitted by state agencies or state-funded universities and colleges.
submitted by the University of California.
submitted by the California Association of Museums.
(7) One voting member of a nonfederally recognized tribe appointed
by the Governor from nominations submitted by the Native American
Heritage Commission.
(b) The executive secretary of the commission shall be appointed by
the Governor and shall be an ex officio nonvoting member of the
commission.
8026. The commission shall meet when necessary, and at least
quarterly shall perform the duties specified in this section including, but
not limited to, the following:
(a) Order the repatriation of human remains and cultural items in
accordance with this chapter.
(b) Establish mediation procedures and, upon application of the
parties involved, mediate disputes between California tribes and
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museums and agencies relating to the disposition of human remains and
cultural items. The commission shall have the power of subpoena for
purposes of discovery and may impose civil penalties against any agency
or museum that intentionally or willfully fails to comply with the
provisions of this chapter. Members of the commission shall receive
training in mediation for purposes of this subdivision. The commission
may delegate its responsibility to mediate disputes to a certified
mediator.
(c) Administer the budget of the commission.
(d) Establish and maintain a website for communication between
tribes and museums and agencies.
(e) Upon the request of California tribes or museums and agencies,
analyze and make decisions regarding providing financial assistance to
aid in specific repatriation activities.
(f) Accept grants or donations, real or in-kind, to carry out the
purposes of this chapter.
(g) By making recommendations to the Legislature, assist California
tribes in obtaining the dedication of appropriate state lands for the
purposes of reinterment of human remains and cultural items.
(h) Request and utilize the advice and services of all federal, state, and
local agencies as necessary in carrying out the purposes of this chapter.
(i) Prepare and submit to the Legislature an annual report detailing
commission activities, disbursement of funds, and dispute resolutions
relating to the repatriation activities under this chapter.
(j) Refer any known noncompliance with the federal Native
et seq.) to the United States Attorney General and the Secretary of the
Interior.
(k) Impose administrative civil penalties against any agency or
museum that is determined by the commission to have violated any
provision of this chapter.
(l) Establish those rules and regulations the commission determines
to be necessary for the administration of this chapter.
8027. (a) Members of the commission shall not receive a salary but
shall be entitled to reimbursement for actual expenses incurred in the
performance of their duties.
(b) The chairperson of the commission shall be elected by the
members.
8028. (a) The term of any member of the commission shall be for
three years, and each member shall serve no more than two consecutive
terms. Staggered terms shall be established by the drawing of lots at the
first meeting of the commission so that a simple majority of the members
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shall initially serve a three-year term, and the remainder initially a
two-year term.
(b) If a vacancy occurs, a replacement shall be named by the same
constituency as the constituency that was represented by the member
whose membership is being replaced. Replacements shall serve only for
the remainder of the vacant member’s term.
Article 4.
Penalties and Enforcement Procedures
8029. (a) Any agency or museum that fails to comply with the
requirements of this chapter may be assessed a civil penalty by the
commission, not to exceed twenty thousand dollars ($20,000) for each
violation, pursuant to regulations adopted by the commission. A penalty
assessed under this section shall be determined on the record after the
opportunity for a hearing.
(b) In assessing a penalty under this section, the commission shall
consider the following factors, in addition to any other relevant factors,
in determining the amount of the penalty:
(1) The archaeological, historical, or commercial value of the item
involved.
(2) The cultural and spiritual significance of the item involved.
(3) The damages suffered, both economic and noneconomic, by the
aggrieved party.
(4) The number of violations that have occurred.
(c) If any agency or museum fails to pay a civil penalty pursuant to
a final order issued by the commission and the time for judicial review
has passed or the party subject to the civil penalty has appealed the
penalty or after a final judgment has been rendered on appeal of the order,
the Attorney General shall act on behalf of the commission to institute
a civil action in an appropriate court to collect the penalty.
(d) An agency or museum shall not be subject to civil penalties for
actions taken in good faith to comply with the federal Native American
Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).
8030. The provisions of this chapter are severable. If any provision
of this chapter or its application is held invalid, that invalidity shall not
affect other provisions or applications that can be given effect without
the invalid provision or application.
O
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Appendix D
Federal Register, Part IV, Department of the Interior, Bureau of Indian
Affairs, “Indian Entities Recognized and Eligible To Receive Services
From the United States Bureau of Indian Affairs; Notice, July 12, 2002
Friday,
November 25, 2005
Part II
Department of the
Interior
Bureau of Indian Affairs
Indian Entities Recognized and Eligible to
Receive Services from the United States
Bureau of Indian Affairs; Notice
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71194
Federal Register / Vol. 70, No. 226 / Friday, November 25, 2005 / Notices
Bureau of Indian Affairs
Indian Entities Recognized and Eligible
To Receive Services From the United
States Bureau of Indian Affairs
Bureau of Indian Affairs,
Interior.
ACTION: Notice.
AGENCY:
SUMMARY: This notice publishes the
current list of 561 tribal entities
recognized and eligible for funding and
services from the Bureau of Indian
Affairs by virtue of their status as Indian
tribes. The list is updated from the
notice published on December 5, 2003
(68 FR 68180).
FOR FURTHER INFORMATION CONTACT:
Daisy West, Bureau of Indian Affairs,
Division of Tribal Government Services,
Mail Stop 320–SIB, 1951 Constitution
Avenue, NW., Washington, DC 20240.
Telephone number: (202) 513–7641.
SUPPLEMENTARY INFORMATION: This
notice is published pursuant to Section
104 of the Act of November 2, 1994
(Pub. L. 103–454; 108 Stat. 4791, 4792),
and in exercise of authority delegated to
the Assistant Secretary—Indian Affairs
under 25 U.S.C. 2 and 9 and 209 DM 8.
Published below is a list of federally
acknowledged tribes in the contiguous
48 states and in Alaska.
The Delaware Tribe of Indians,
Oklahoma, was removed from the list in
response to a final judgment and order
sought by the Cherokee Nation of
Oklahoma in the United States District
Court for the Northern District of
Oklahoma in Cherokee Nation of
Oklahoma v. Norton, et al., Case No.
98–CV–903–TCK–FHM on remand from
the Tenth Circuit Court of Appeals in
Cherokee Nation of Oklahoma v.
Norton, 389 F.3d 1074 (10th Cir. 2004),
as amended, 2005 U.S. App. LEXIS 2773
(10th Cir. Feb. 16, 2005).
The list does not include any
additional new tribes. The updates are
limited to several tribal name changes.
To aid in identifying tribal name
changes, the tribe’s former name is
included with the new tribal name. We
will continue to list the tribe’s former
name for several years before dropping
the former name from the list. We have
also made several corrections. To aid in
identifying corrections, the tribe’s
previously listed name is included with
the tribal name.
The listed entities are acknowledged
to have the immunities and privileges
available to other federally
acknowledged Indian tribes by virtue of
their government-to-government
relationship with the United States as
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well as the responsibilities, powers,
limitations and obligations of such
tribes. We have continued the practice
of listing the Alaska Native entities
separately solely for the purpose of
facilitating identification of them and
reference to them given the large
number of complex Native names.
Dated: November 14, 2005.
Michael D. Olsen,
Acting Principal Deputy Assistant Secretary—
Indian Affairs.
Indian Tribal Entities Within the
Contiguous 48 States Recognized and
Eligible To Receive Services From the
United States Bureau of Indian Affairs
Absentee-Shawnee Tribe of Indians of
Oklahoma
Agua Caliente Band of Cahuilla Indians
of the Agua Caliente Indian
Reservation, California
Ak Chin Indian Community of the
Maricopa (Ak Chin) Indian
Reservation, Arizona
Alabama-Coushatta Tribes of Texas
Alabama-Quassarte Tribal Town,
Oklahoma
Alturas Indian Rancheria, California
Apache Tribe of Oklahoma
Arapahoe Tribe of the Wind River
Reservation, Wyoming
Aroostook Band of Micmac Indians of
Maine
Assiniboine and Sioux Tribes of the Fort
Peck Indian Reservation, Montana
Augustine Band of Cahuilla Mission
Indians of the Augustine Reservation,
California
Bad River Band of the Lake Superior
Tribe of Chippewa Indians of the Bad
River Reservation, Wisconsin
Bay Mills Indian Community, Michigan
Bear River Band of the Rohnerville
Rancheria, California
Berry Creek Rancheria of Maidu Indians
of California
Big Lagoon Rancheria, California
Big Pine Band of Owens Valley Paiute
Shoshone Indians of the Big Pine
Big Sandy Rancheria of Mono Indians of
California
Big Valley Band of Pomo Indians of the
Big Valley Rancheria, California
Blackfeet Tribe of the Blackfeet Indian
Reservation of Montana
Blue Lake Rancheria, California
Bridgeport Paiute Indian Colony of
California
Buena Vista Rancheria of Me-Wuk
Indians of California
Burns Paiute Tribe of the Burns Paiute
Indian Colony of Oregon
Cabazon Band of Mission Indians,
California (previously listed as the
Cabazon Band of Cahuilla Mission
Indians of the Cabazon Reservation)
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Cachil DeHe Band of Wintun Indians of
the Colusa Indian Community of the
Colusa Rancheria, California
Caddo Nation of Oklahoma (formerly
the Caddo Indian Tribe of Oklahoma)
Cahuilla Band of Mission Indians of the
Cahuilla Reservation, California
Cahto Indian Tribe of the Laytonville
California Valley Miwok Tribe,
California (formerly the Sheep Ranch
Rancheria of Me-Wuk Indians of
California)
Campo Band of Diegueno Mission
Indians of the Campo Indian
Capitan Grande Band of Diegueno
Mission Indians of California:
Barona Group of Capitan Grande Band
of Mission Indians of the Barona
Viejas (Baron Long) Group of Capitan
Grande Band of Mission Indians of
the Viejas Reservation, California
Catawba Indian Nation (aka Catawba
Tribe of South Carolina)
Cayuga Nation of New York
Cedarville Rancheria, California
Chemehuevi Indian Tribe of the
Chemehuevi Reservation, California
Cher-Ae Heights Indian Community of
the Trinidad Rancheria, California
Cherokee Nation, Oklahoma
Cheyenne-Arapaho Tribes of Oklahoma
Cheyenne River Sioux Tribe of the
Cheyenne River Reservation, South
Dakota
Chickasaw Nation, Oklahoma
Chicken Ranch Rancheria of Me-Wuk
Chippewa-Cree Indians of the Rocky
Boy’s Reservation, Montana
Chitimacha Tribe of Louisiana
Choctaw Nation of Oklahoma
Citizen Potawatomi Nation, Oklahoma
Cloverdale Rancheria of Pomo Indians
of California
Cocopah Tribe of Arizona
Coeur D’Alene Tribe of the Coeur
D’Alene Reservation, Idaho
Cold Springs Rancheria of Mono Indians
of California
Colorado River Indian Tribes of the
Colorado River Indian Reservation,
Arizona and California
Comanche Nation, Oklahoma
Confederated Salish & Kootenai Tribes
of the Flathead Reservation, Montana
Confederated Tribes of the Chehalis
Reservation, Washington
Confederated Tribes of the Colville
Confederated Tribes of the Coos, Lower
Umpqua and Siuslaw Indians of
Oregon
Confederated Tribes of the Goshute
Reservation, Nevada and Utah
Confederated Tribes of the Grand Ronde
Community of Oregon
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Confederated Tribes of the Siletz
Reservation, Oregon
Confederated Tribes of the Umatilla
Reservation, Oregon
Confederated Tribes of the Warm
Springs Reservation of Oregon
Confederated Tribes and Bands of the
Yakama Nation, Washington
Coquille Tribe of Oregon
Cortina Indian Rancheria of Wintun
Coushatta Tribe of Louisiana
Cow Creek Band of Umpqua Indians of
Oregon
Cowlitz Indian Tribe, Washington
Coyote Valley Band of Pomo Indians of
California
Crow Tribe of Montana
Crow Creek Sioux Tribe of the Crow
Creek Reservation, South Dakota
Death Valley Timbi-Sha Shoshone Band
of California
Delaware Nation, Oklahoma
Dry Creek Rancheria of Pomo Indians of
California
Duckwater Shoshone Tribe of the
Duckwater Reservation, Nevada
Eastern Band of Cherokee Indians of
North Carolina
Eastern Shawnee Tribe of Oklahoma
Elem Indian Colony of Pomo Indians of
the Sulphur Bank Rancheria,
California
Elk Valley Rancheria, California
Ely Shoshone Tribe of Nevada
Enterprise Rancheria of Maidu Indians
of California
Ewiiaapaayp Band of Kumeyaay
Indians, California (formerly the
Cuyapaipe Community of Diegueno
Mission Indians of the Cuyapaipe
Reservation)
Federated Indians of Graton Rancheria,
California (formerly the Graton
Rancheria)
Flandreau Santee Sioux Tribe of South
Dakota
Forest County Potawatomi Community,
Wisconsin
Fort Belknap Indian Community of the
Fort Belknap Reservation of Montana
Fort Bidwell Indian Community of the
Fort Bidwell Reservation of California
Fort Independence Indian Community
of Paiute Indians of the Fort
Independence Reservation, California
Fort McDermitt Paiute and Shoshone
Tribes of the Fort McDermitt Indian
Reservation, Nevada and Oregon
Fort McDowell Yavapai Nation, Arizona
Fort Mojave Indian Tribe of Arizona,
California & Nevada
Fort Sill Apache Tribe of Oklahoma
Gila River Indian Community of the Gila
River Indian Reservation, Arizona
Grand Traverse Band of Ottawa and
Chippewa Indians, Michigan
Greenville Rancheria of Maidu Indians
of California
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Grindstone Indian Rancheria of WintunWailaki Indians of California
Guidiville Rancheria of California
Habematolel Pomo of Upper Lake,
California (formerly the Upper Lake
Band of Pomo Indians of Upper Lake
Rancheria of California)
Hannahville Indian Community,
Michigan
Havasupai Tribe of the Havasupai
Ho-Chunk Nation of Wisconsin
Hoh Indian Tribe of the Hoh Indian
Hoopa Valley Tribe, California
Hopi Tribe of Arizona
Hopland Band of Pomo Indians of the
Hopland Rancheria, California
Houlton Band of Maliseet Indians of
Maine
Hualapai Indian Tribe of the Hualapai
Indian Reservation, Arizona
Huron Potawatomi, Inc., Michigan
Inaja Band of Diegueno Mission Indians
of the Inaja and Cosmit Reservation,
California
Ione Band of Miwok Indians of
California
Iowa Tribe of Kansas and Nebraska
Iowa Tribe of Oklahoma
Jackson Rancheria of Me-Wuk Indians of
California
Jamestown S’Klallam Tribe of
Washington
Jamul Indian Village of California
Jena Band of Choctaw Indians,
Louisiana
Jicarilla Apache Nation, New Mexico
Kaibab Band of Paiute Indians of the
Kaibab Indian Reservation, Arizona
Kalispel Indian Community of the
Kalispel Reservation, Washington
Karuk Tribe of California
Kashia Band of Pomo Indians of the
Stewarts Point Rancheria, California
Kaw Nation, Oklahoma
Keweenaw Bay Indian Community,
Michigan
Kialegee Tribal Town, Oklahoma
Kickapoo Tribe of Indians of the
Kickapoo Reservation in Kansas
Kickapoo Tribe of Oklahoma
Kickapoo Traditional Tribe of Texas
Kiowa Indian Tribe of Oklahoma
Klamath Tribes, Oregon (formerly the
Klamath Indian Tribe of Oregon)
Kootenai Tribe of Idaho
La Jolla Band of Luiseno Mission
Indians of the La Jolla Reservation,
California
La Posta Band of Diegueno Mission
Indians of the La Posta Indian
Lac Courte Oreilles Band of Lake
Superior Chippewa Indians of
Wisconsin
Lac du Flambeau Band of Lake Superior
Chippewa Indians of the Lac du
Flambeau Reservation of Wisconsin
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71195
Lac Vieux Desert Band of Lake Superior
Chippewa Indians, Michigan
Las Vegas Tribe of Paiute Indians of the
Las Vegas Indian Colony, Nevada
Little River Band of Ottawa Indians,
Michigan
Little Traverse Bay Bands of Odawa
Indians, Michigan
Lower Lake Rancheria, California
Los Coyotes Band of Cahuilla & Cupeno
Indians of the Los Coyotes
Reservation, California (formerly the
Los Coyotes Band of Cahuilla Mission
Indians of the Los Coyotes
Reservation)
Lovelock Paiute Tribe of the Lovelock
Indian Colony, Nevada
Lower Brule Sioux Tribe of the Lower
Brule Reservation, South Dakota
Lower Elwha Tribal Community of the
Lower Elwha Reservation,
Washington
Lower Sioux Indian Community in the
State of Minnesota
Lummi Tribe of the Lummi Reservation,
Washington
Lytton Rancheria of California
Makah Indian Tribe of the Makah Indian
Manchester Band of Pomo Indians of the
Manchester-Point Arena Rancheria,
California
Manzanita Band of Diegueno Mission
Indians of the Manzanita Reservation,
California
Mashantucket Pequot Tribe of
Connecticut
Match-e-be-nash-she-wish Band of
Pottawatomi Indians of Michigan
Mechoopda Indian Tribe of Chico
Menominee Indian Tribe of Wisconsin
Mesa Grande Band of Diegueno Mission
Indians of the Mesa Grande
Mescalero Apache Tribe of the
Mescalero Reservation, New Mexico
Miami Tribe of Oklahoma
Miccosukee Tribe of Indians of Florida
Middletown Rancheria of Pomo Indians
of California
Minnesota Chippewa Tribe, Minnesota
(Six component reservations:
Bois Forte Band (Nett Lake); Fond du
Lac Band; Grand Portage Band;
Leech Lake Band; Mille Lacs Band;
White Earth Band)
Mississippi Band of Choctaw Indians,
Mississippi
Moapa Band of Paiute Indians of the
Moapa River Indian Reservation,
Nevada
Modoc Tribe of Oklahoma
Mohegan Indian Tribe of Connecticut
Mooretown Rancheria of Maidu Indians
of California
Morongo Band of Cahuilla Mission
Indians of the Morongo Reservation,
California
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71196
Muckleshoot Indian Tribe of the
Muckleshoot Reservation, Washington
Muscogee (Creek) Nation, Oklahoma
Narragansett Indian Tribe of Rhode
Island
Navajo Nation, Arizona, New Mexico &
Utah
Nez Perce Tribe of Idaho
Nisqually Indian Tribe of the Nisqually
Nooksack Indian Tribe of Washington
Northern Cheyenne Tribe of the
Northern Cheyenne Indian
Reservation, Montana
Northfork Rancheria of Mono Indians of
California
Northwestern Band of Shoshoni Nation
of Utah (Washakie)
Oglala Sioux Tribe of the Pine Ridge
Reservation, South Dakota
Omaha Tribe of Nebraska
Oneida Nation of New York
Oneida Tribe of Indians of Wisconsin
Onondaga Nation of New York
Osage Tribe, Oklahoma
Ottawa Tribe of Oklahoma
Otoe-Missouria Tribe of Indians,
Oklahoma
Paiute Indian Tribe of Utah (Cedar City
Band of Paiutes, Kanosh Band of
Paiutes, Koosharem Band of Paiutes,
Indian Peaks Band of Paiutes, and
Shivwits Band of Paiutes)
Paiute-Shoshone Indians of the Bishop
Community of the Bishop Colony,
California
Paiute-Shoshone Tribe of the Fallon
Reservation and Colony, Nevada
Paiute-Shoshone Indians of the Lone
Pine Community of the Lone Pine
Pala Band of Luiseno Mission Indians of
the Pala Reservation, California
Pascua Yaqui Tribe of Arizona
Paskenta Band of Nomlaki Indians of
California
Passamaquoddy Tribe of Maine
Pauma Band of Luiseno Mission Indians
of the Pauma & Yuima Reservation,
California
Pawnee Nation of Oklahoma
Pechanga Band of Luiseno Mission
Indians of the Pechanga Reservation,
California
Penobscot Tribe of Maine
Peoria Tribe of Indians of Oklahoma
Picayune Rancheria of Chukchansi
Pinoleville Rancheria of Pomo Indians
of California
Pit River Tribe, California (includes XL
Ranch, Big Bend, Likely, Lookout,
Montgomery Creek and Roaring Creek
Rancherias)
Poarch Band of Creek Indians of
Alabama
Pokagon Band of Potawatomi Indians,
Michigan and Indiana
Ponca Tribe of Indians of Oklahoma
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13:24 Nov 23, 2005
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Ponca Tribe of Nebraska
Port Gamble Indian Community of the
Port Gamble Reservation, Washington
Potter Valley Tribe, California (formerly
the Potter Valley Rancheria of Pomo
Indians of California)
Prairie Band of Potawatomi Nation,
Kansas
Prairie Island Indian Community in the
State of Minnesota
Pueblo of Acoma, New Mexico
Pueblo of Cochiti, New Mexico
Pueblo of Jemez, New Mexico
Pueblo of Isleta, New Mexico
Pueblo of Laguna, New Mexico
Pueblo of Nambe, New Mexico
Pueblo of Picuris, New Mexico
Pueblo of Pojoaque, New Mexico
Pueblo of San Felipe, New Mexico
Pueblo of San Juan, New Mexico
Pueblo of San Ildefonso, New Mexico
Pueblo of Sandia, New Mexico
Pueblo of Santa Ana, New Mexico
Pueblo of Santa Clara, New Mexico
Pueblo of Santo Domingo, New Mexico
Pueblo of Taos, New Mexico
Pueblo of Tesuque, New Mexico
Pueblo of Zia, New Mexico
Puyallup Tribe of the Puyallup
Pyramid Lake Paiute Tribe of the
Pyramid Lake Reservation, Nevada
Quapaw Tribe of Indians, Oklahoma
Quartz Valley Indian Community of the
Quartz Valley Reservation of
California
Quechan Tribe of the Fort Yuma Indian
Reservation, California & Arizona
Quileute Tribe of the Quileute
Quinault Tribe of the Quinault
Ramona Band or Village of Cahuilla
Mission Indians of California
Red Cliff Band of Lake Superior
Chippewa Indians of Wisconsin
Red Lake Band of Chippewa Indians,
Minnesota
Redding Rancheria, California
Redwood Valley Rancheria of Pomo
Reno-Sparks Indian Colony, Nevada
Resighini Rancheria, California
Rincon Band of Luiseno Mission
Indians of the Rincon Reservation,
California
Robinson Rancheria of Pomo Indians of
California
Rosebud Sioux Tribe of the Rosebud
Indian Reservation, South Dakota
Round Valley Indian Tribes of the
Round Valley Reservation, California
Rumsey Indian Rancheria of Wintun
Sac & Fox Tribe of the Mississippi in
Iowa
Sac & Fox Nation of Missouri in Kansas
and Nebraska
Sac & Fox Nation, Oklahoma
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Saginaw Chippewa Indian Tribe of
Michigan
St. Croix Chippewa Indians of
Wisconsin
St. Regis Band of Mohawk Indians of
New York
Salt River Pima-Maricopa Indian
Community of the Salt River
Samish Indian Tribe, Washington
San Carlos Apache Tribe of the San
Carlos Reservation, Arizona
San Juan Southern Paiute Tribe of
Arizona
San Manual Band of Serrano Mission
Indians of the San Manual
San Pasqual Band of Diegueno Mission
Santa Rosa Indian Community of the
Santa Rosa Rancheria, California
Santa Rosa Band of Cahuilla Mission
Indians of the Santa Rosa Reservation,
California
Santa Ynez Band of Chumash Mission
Indians of the Santa Ynez
Santa Ysabel Band of Diegueno Mission
Indians of the Santa Ysabel
Santee Sioux Nation, Nebraska
(formerly the Santee Sioux Tribe of
the Santee Reservation of Nebraska)
Sauk-Suiattle Indian Tribe of
Washington
Sault Ste. Marie Tribe of Chippewa
Indians of Michigan
Scotts Valley Band of Pomo Indians of
California
Seminole Nation of Oklahoma
Seminole Tribe of Florida, Dania, Big
Cypress, Brighton, Hollywood &
Tampa Reservations
Seneca Nation of New York
Seneca-Cayuga Tribe of Oklahoma
Shakopee Mdewakanton Sioux
Community of Minnesota
Shawnee Tribe, Oklahoma
Sherwood Valley Rancheria of Pomo
Shingle Springs Band of Miwok Indians,
Shingle Springs Rancheria (Verona
Tract), California
Shoalwater Bay Tribe of the Shoalwater
Bay Indian Reservation, Washington
Shoshone Tribe of the Wind River
Reservation, Wyoming
Shoshone-Bannock Tribes of the Fort
Hall Reservation of Idaho
Shoshone-Paiute Tribes of the Duck
Valley Reservation, Nevada
Sisseton-Wahpeton Oyate of the Lake
Traverse Reservation, South Dakota
(formerly the Sisseton-Wahpeton
Sioux Tribe of the Lake Traverse
Reservation)
Skokomish Indian Tribe of the
Skokomish Reservation, Washington
Skull Valley Band of Goshute Indians of
Utah
E:\FR\FM\25NON2.SGM
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Smith River Rancheria, California
Snoqualmie Tribe, Washington
Soboba Band of Luiseno Indians,
California
Sokaogon Chippewa Community,
Wisconsin
Southern Ute Indian Tribe of the
Southern Ute Reservation, Colorado
Spirit Lake Tribe, North Dakota
Spokane Tribe of the Spokane
Squaxin Island Tribe of the Squaxin
Island Reservation, Washington
Standing Rock Sioux Tribe of North &
South Dakota
Stockbridge Munsee Community,
Wisconsin
Stillaguamish Tribe of Washington
Summit Lake Paiute Tribe of Nevada
Suquamish Indian Tribe of the Port
Madison Reservation, Washington
Susanville Indian Rancheria, California
Swinomish Indians of the Swinomish
Sycuan Band of the Kumeyaay Nation
(formerly the Sycuan Band of
Diegueno Mission Indians of
California)
Table Mountain Rancheria of California
Te-Moak Tribe of Western Shoshone
Indians of Nevada (Four constituent
bands: Battle Mountain Band; Elko
Band; South Fork Band and Wells
Band)
Thlopthlocco Tribal Town, Oklahoma
Three Affiliated Tribes of the Fort
Berthold Reservation, North Dakota
Tohono O’odham Nation of Arizona
Tonawanda Band of Seneca Indians of
New York
Tonkawa Tribe of Indians of Oklahoma
Tonto Apache Tribe of Arizona
Torres Martinez Desert Cahuilla Indians,
California (formerly the TorresMartinez Band of Cahuilla Mission
Indians of California)
Tule River Indian Tribe of the Tule
River Reservation, California
Tulalip Tribes of the Tulalip
Tunica-Biloxi Indian Tribe of Louisiana
Tuolumne Band of Me-Wuk Indians of
the Tuolumne Rancheria of California
Turtle Mountain Band of Chippewa
Indians of North Dakota
Tuscarora Nation of New York
Twenty-Nine Palms Band of Mission
United Auburn Indian Community of
the Auburn Rancheria of California
United Keetoowah Band of Cherokee
Indians in Oklahoma
Upper Sioux Community, Minnesota
Upper Skagit Indian Tribe of
Washington
Ute Indian Tribe of the Uintah & Ouray
Reservation, Utah
Ute Mountain Tribe of the Ute Mountain
Reservation, Colorado, New Mexico &
Utah
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Utu Utu Gwaitu Paiute Tribe of the
Benton Paiute Reservation, California
Walker River Paiute Tribe of the Walker
River Reservation, Nevada
Wampanoag Tribe of Gay Head
(Aquinnah) of Massachusetts
Washoe Tribe of Nevada & California
(Carson Colony, Dresslerville Colony,
Woodfords Community, Stewart
Community, & Washoe Ranches)
White Mountain Apache Tribe of the
Fort Apache Reservation, Arizona
Wichita and Affiliated Tribes (Wichita,
Keechi, Waco & Tawakonie),
Oklahoma
Winnebago Tribe of Nebraska
Winnemucca Indian Colony of Nevada
Wiyot Tribe, California (formerly the
Table Bluff Reservation—Wiyot Tribe)
Wyandotte Nation, Oklahoma (formerly
the Wyandotte Tribe of Oklahoma)
Yankton Sioux Tribe of South Dakota
Yavapai-Apache Nation of the Camp
Verde Indian Reservation, Arizona
Yavapai-Prescott Tribe of the Yavapai
Yerington Paiute Tribe of the Yerington
Colony & Campbell Ranch, Nevada
Yomba Shoshone Tribe of the Yomba
Reservation, Nevada
Ysleta Del Sur Pueblo of Texas
Yurok Tribe of the Yurok Reservation,
California
Zuni Tribe of the Zuni Reservation, New
Mexico
Native Entities Within the State of
Alaska Recognized and Eligible To
Receive Services From the United
States Bureau of Indian Affairs
Native Village of Afognak (formerly the
Village of Afognak)
Agdaagux Tribe of King Cove
Native Village of Akhiok
Akiachak Native Community
Akiak Native Community
Native Village of Akutan
Village of Alakanuk
Alatna Village
Native Village of Aleknagik
Algaaciq Native Village (St. Mary’s)
Allakaket Village
Native Village of Ambler
Village of Anaktuvuk Pass
Yupiit of Andreafski
Angoon Community Association
Village of Aniak
Anvik Village
Arctic Village (See Native Village of
Venetie Tribal Government)
Asa’carsarmiut Tribe (formerly the
Native Village of Mountain Village)
Native Village of Atka
Village of Atmautluak
Atqasuk Village (Atkasook)
Native Village of Barrow Inupiat
Traditional Government
Beaver Village
Native Village of Belkofski
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Village of Bill Moore’s Slough
Birch Creek Tribe
Native Village of Brevig Mission
Native Village of Buckland
Native Village of Cantwell
Native Village of Chanega (aka Chenega)
Chalkyitsik Village
Cheesh-Na Tribe (formerly the Native
Village of Chistochina)
Village of Chefornak
Chevak Native Village
Chickaloon Native Village
Native Village of Chignik
Native Village of Chignik Lagoon
Chignik Lake Village
Chilkat Indian Village (Klukwan)
Chilkoot Indian Association (Haines)
Chinik Eskimo Community (Golovin)
Native Village of Chitina
Native Village of Chuathbaluk (Russian
Mission, Kuskokwim)
Chuloonawick Native Village
Circle Native Community
Village of Clarks Point
Native Village of Council
Craig Community Association
Village of Crooked Creek
Curyung Tribal Council (formerly the
Native Village of Dillingham)
Native Village of Deering
Native Village of Diomede (aka Inalik)
Village of Dot Lake
Douglas Indian Association
Native Village of Eagle
Native Village of Eek
Egegik Village
Eklutna Native Village
Native Village of Ekuk
Ekwok Village
Native Village of Elim
Emmonak Village
Evansville Village (aka Bettles Field)
Native Village of Eyak (Cordova)
Native Village of False Pass
Native Village of Fort Yukon
Native Village of Gakona
Galena Village (aka Louden Village)
Native Village of Gambell
Native Village of Georgetown
Native Village of Goodnews Bay
Organized Village of Grayling (aka
Holikachuk)
Gulkana Village
Native Village of Hamilton
Healy Lake Village
Holy Cross Village
Hoonah Indian Association
Native Village of Hooper Bay
Hughes Village
Huslia Village
Hydaburg Cooperative Association
Igiugig Village
Village of Iliamna
Inupiat Community of the Arctic Slope
Iqurmuit Traditional Council (formerly
the Native Village of Russian Mission)
Ivanoff Bay Village
Kaguyak Village
Organized Village of Kake
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Kaktovik Village (aka Barter Island)
Village of Kalskag
Village of Kaltag
Native Village of Kanatak
Native Village of Karluk
Organized Village of Kasaan
Kasigluk Traditional Elders Council
(formerly the Native Village of
Kasigluk)
Kenaitze Indian Tribe
Ketchikan Indian Corporation
Native Village of Kiana
King Island Native Community
King Salmon Tribe
Native Village of Kipnuk
Native Village of Kivalina
Klawock Cooperative Association
Native Village of Kluti Kaah (aka Copper
Center)
Knik Tribe
Native Village of Kobuk
Kokhanok Village
Native Village of Kongiganak
Village of Kotlik
Native Village of Kotzebue
Native Village of Koyuk
Koyukuk Native Village
Organized Village of Kwethluk
Native Village of Kwigillingok
Native Village of Kwinhagak (aka
Quinhagak)
Native Village of Larsen Bay
Levelock Village
Lesnoi Village (aka Woody Island)
Lime Village
Village of Lower Kalskag
Manley Hot Springs Village
Manokotak Village
Native Village of Marshall (aka Fortuna
Ledge)
Native Village of Mary’s Igloo
McGrath Native Village
Native Village of Mekoryuk
Mentasta Traditional Council
Metlakatla Indian Community, Annette
Island Reserve
Native Village of Minto
Naknek Native Village
Native Village of Nanwalek (aka English
Bay)
Native Village of Napaimute
Native Village of Napakiak
Native Village of Napaskiak
Native Village of Nelson Lagoon
Nenana Native Association
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New Koliganek Village Council
(formerly the Koliganek Village)
New Stuyahok Village
Newhalen Village
Newtok Village
Native Village of Nightmute
Nikolai Village
Native Village of Nikolski
Ninilchik Village
Native Village of Noatak
Nome Eskimo Community
Nondalton Village
Noorvik Native Community
Northway Village
Native Village of Nuiqsut (aka Nooiksut)
Nulato Village
Nunakauyarmiut Tribe (formerly the
Native Village of Toksook Bay)
Native Village of Nunapitchuk
Village of Ohogamiut
Village of Old Harbor
Orutsararmuit Native Village (aka
Bethel)
Oscarville Traditional Village
Native Village of Ouzinkie
Native Village of Paimiut
Pauloff Harbor Village
Pedro Bay Village
Native Village of Perryville
Petersburg Indian Association
Native Village of Pilot Point
Pilot Station Traditional Village
Native Village of Pitka’s Point
Platinum Traditional Village
Native Village of Point Hope
Native Village of Point Lay
Native Village of Port Graham
Native Village of Port Heiden
Native Village of Port Lions
Portage Creek Village (aka Ohgsenakale)
Pribilof Islands Aleut Communities of
St. Paul & St. George Islands
Qagan Tayagungin Tribe of Sand Point
Village
Qawalangin Tribe of Unalaska
Rampart Village
Village of Red Devil
Native Village of Ruby
Saint George Island (See Pribilof Islands
Aleut Communities of St. Paul & St.
George Islands)
Native Village of Saint Michael
Saint Paul Island (See Pribilof Islands
Aleut Communities of St. Paul & St.
George Islands)
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Village of Salamatoff
Native Village of Savoonga
Organized Village of Saxman
Native Village of Scammon Bay
Native Village of Selawik
Seldovia Village Tribe
Shageluk Native Village
Native Village of Shaktoolik
Native Village of Sheldon’s Point
Native Village of Shishmaref
Native Village of Shungnak
Sitka Tribe of Alaska
Skagway Village
Village of Sleetmute
Village of Solomon
South Naknek Village
Stebbins Community Association
Native Village of Stevens
Village of Stony River
Sun’aq Tribe of Kodiak (formerly the
Shoonaq’ Tribe of Kodiak)
Takotna Village
Native Village of Tanacross
Native Village of Tanana
Native Village of Tatitlek
Native Village of Tazlina
Telida Village
Native Village of Teller
Native Village of Tetlin
Central Council of the Tlingit & Haida
Indian Tribes
Traditional Village of Togiak
Tuluksak Native Community
Native Village of Tuntutuliak
Native Village of Tununak
Twin Hills Village
Native Village of Tyonek
Ugashik Village
Umkumiute Native Village
Native Village of Unalakleet
Native Village of Unga
Village of Venetie (See Native Village of
Venetie Tribal Government)
Native Village of Venetie Tribal
Government (Arctic Village and
Village of Venetie)
Village of Wainwright
Native Village of Wales
Native Village of White Mountain
Wrangell Cooperative Association
Yakutat Tlingit Tribe
[FR Doc. 05–23268 Filed 11–23–05; 8:45 am]
BILLING CODE 4310–4J–P
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Appendix E
Bureau of Indian Affairs, Branch of Federal Acknowledgement, List of
Petitioners by State as of February 3, 2006
Appendix F
California Public Resource Code Section 5097-5097.993, Native
American Historic Resource Protection Act, Archaeological,
Paleontological, and Historical Sites, Native American Historical,
Cultural, and Sacred Sites
NATIVE AMERICAN HISTORIC RESOURCE PROTECTION ACT
ARCHAEOLOGICAL, PALEONTOLOGICAL, AND HISTORICAL SITES
NATIVE AMERICAN HISTORICAL, CULTURAL, AND SACRED SITES
PUBLIC RESOURCES CODE
SECTION 5097-5097.993
5097.
As used in this chapter, "state lands" means lands
owned by, or under the jurisdiction of, the state or
any state agency. It does not include lands owned
by, or under the jurisdiction of a city, county, or
district, or fire trails under the jurisdiction of
the Division of Forestry in the Department of
Conservation.
5097.1.
Prior to the commencement of construction of any
major public works project on any state lands, the
state agency proposing to construct the project, or
on whose behalf the project is to be constructed, may
submit to the State Department of Parks and
Recreation general plans sufficient to indicate the
nature of the project, its location, and the
excavations which will be undertaken in connection
with the project.
5097.2.
Upon receipt of plans for a proposed construction
project upon state lands, the department may conduct
an archaeological site survey on the affected state
lands in order to determine whether the lands may
contain any historic or prehistoric ruins, burial
grounds, archaeological or vertebrate paleontological
sites, including fossilized footprints, inscriptions
made by human agency, rock art, or any other
archaeological, paleontological or historical
feature. The department shall submit to the state
agency, by or on whose behalf the project is to be
constructed, its recommendations concerning the
preservation, photographing, recording, or excavation
Native American Historic Resource Protection Act
California Public Resources Code 5097-5097.993
pg. 1
for, any archaeological, paleontological, or
historical features which may be located upon the
lands.
5097.3.
The state agency, by or on whose behalf public works
are to be constructed on state lands, may undertake
such surveys, excavations, or other operations on the
state lands as it determines to be necessary to
preserve or record any archaeological,
paleontological, or historical features, including
rock art, which may be located on the lands, after
receiving the recommendations of the department, or
the state agency may contract with the department to
undertake those operations. The department may carry
out the operations.
5097.4.
No archaelogical program conducted by the Department
of Parks and Recreation shall impair, impede or delay
any state construction project.
5097.5.
(a) No person shall knowingly and willfully excavate
upon, or remove, destroy, injure, or deface, any
historic or prehistoric ruins, burial grounds,
archaeological or vertebrate paleontological site,
including fossilized footprints, inscriptions made by
human agency, rock art, or any other archaeological,
paleontological or historical feature, situated on
public lands, except with the express permission of
the public agency having jurisdiction over the lands.
Violation of this section is a misdemeanor.
(b) As used in this section, "public lands" means lands
owned by, or under the jurisdiction of, the state, or
any city, county, district, authority, or public
corporation, or any agency thereof.
5097.6.
Expenditures to carry out the purposes of this
chapter shall be made only pursuant to legislative
appropriation for these purposes or by contract with
other state agencies.
pg. 2
5097.9.
No public agency, and no private party using or
occupying public property, or operating on public
property, under a public license, permit, grant,
lease, or contract made on or after July 1, 1977,
shall in any manner whatsoever interfere with the
free expression or exercise of Native American
religion as provided in the United States
Constitution and the California Constitution; nor
shall any such agency or party cause severe or
irreparable damage to any Native American sanctified
cemetery, place of worship, religious or ceremonial
site, or sacred shrine located on public property,
except on a clear and convincing showing that the
public interest and necessity so require. The
provisions of this chapter shall be enforced by the
commission, pursuant to Sections 5097.94 and 5097.97.
The provisions of this chapter shall not be construed
to limit the requirements of the Environmental
Quality Act of 1970, Division 13 (commencing with
Section 21000).
The public property of all cities, counties, and city
and county located within the limits of the city,
county, and city and county, except for all parklands
in excess of 100 acres, shall be exempt from the
provisions of this chapter. Nothing in this section
shall, however, nullify protections for Indian
cemeteries under other statutes.
5097.91.
There is in state government a Native American
Heritage Commission, consisting of nine members
appointed by the Governor with the advice and consent
of the Senate.
5097.92.
At least five of the nine members shall be elders,
traditional people, or spiritual leaders of
California Native American tribes, nominated by
Native American organizations, tribes, or groups
within the state. The executive secretary of the
commission shall be appointed by the Governor.
pg. 3
5097.93.
The members of the commission shall serve without
compensation but shall be reimbursed their actual and
necessary expenses.
5097.94.
The commission shall have the following powers and
duties:
(a) To identify and catalog places of
special religious or social significance to Native
Americans, and known graves and cemeteries of Native
Americans on private lands. The identification and
cataloguing of known graves and cemeteries shall be
completed on or before January 1, 1984. The
commission shall notify landowners on whose property
such graves and cemeteries are determined to exist,
and shall identify the Native American group most
likely descended from those Native Americans who may
be interred on the property.
(b) To make recommendations relative to Native American
sacred places that are located on private lands, are
inaccessible to Native Americans, and have cultural
significance to Native Americans for acquisition by
the state or other public agencies for the purpose of
facilitating or assuring access thereto by Native
Americans.
(c) To make recommendations to the Legislature relative
to procedures which will voluntarily encourage
private property owners to preserve and protect
sacred places in a natural state and to allow
appropriate access to Native American religionists
for ceremonial or spiritual activities.
(d) To appoint necessary clerical staff.
(e) To accept grants or donations, real or in kind, to
carry out the purposes of this chapter.
(f) To make recommendations to the Director of Parks and
Recreation and the California Arts Council relative
to the California State Indian Museum and other
Indian matters touched upon by department programs.
(g) To bring an action to prevent severe and irreparable
damage to, or assure appropriate access for Native
Americans to, a Native American sanctified cemetery,
place of worship, religious or ceremonial site, or
sacred shrine located on public property, pursuant to
Section 5097.97. If the court finds that severe and
pg. 4
irreparable damage will occur or that appropriate
access will be denied, and appropriate mitigation
measures are not available, it shall issue an
injunction, unless it finds, on clear and convincing
evidence, that the public interest and necessity
require otherwise. The Attorney General shall
represent the commission and the state in litigation
concerning affairs of the commission, unless the
Attorney General has determined to represent the
agency against whom the commission's action is
directed, in which case the commission shall be
authorized to employ other counsel. In any action to
enforce the provisions of this subdivision the
commission shall introduce evidence showing that such
cemetery, place, site, or shrine has been
historically regarded as a sacred or sanctified place
by Native American people and represents a place of
unique historical and cultural significance to an
Indian tribe or community.
(h) To request and utilize the advice and service of all
federal, state, local, and regional agencies.
(i) To assist Native Americans in obtaining appropriate
access to sacred places that are located on public
lands for ceremonial or spiritual activities.
(j) To assist state agencies in any negotiations with
agencies of the federal government for the protection
of Native American sacred places that are located on
federal lands.
(k) To mediate, upon application of either of the
parties, disputes arising between landowners and
known descendents relating to the treatment and
disposition of Native American human burials,
skeletal remains, and items associated with Native
American burials.
The agreements shall provide
protection to Native American human burials and
skeletal remains from vandalism and inadvertent
destruction and provide for sensitive treatment and
disposition of Native American burials, skeletal
remains, and associated grave goods consistent with
the planned use of, or the approved project on, the
land.
(l) To assist interested landowners in developing
agreements with appropriate Native American groups
for treating or disposing, with appropriate dignity,
pg. 5
of the human remains and any items associated with
Native American burials.
5097.95.
Each state and local agency shall cooperate with the
commission in carrying out its duties under this
chapter. Such cooperation shall include, but is not
limited to, transmitting copies, at the commission's
expense, of appropriate sections of all environmental
impact reports relating to property identified by the
commission as of special religious significance to
Native Americans or which is reasonably foreseeable
as such property.
5097.96.
The commission may prepare an inventory of Native
American sacred places that are located on public
lands and shall review the current administrative and
statutory protections accorded to such places. The
commission shall submit a report to the Legislature
no later than January 1, 1979, in which the
commission shall report its findings as a result of
these efforts and shall recommend such actions as the
commission deems necessary to preserve these sacred
places and to protect the free exercise of the Native
American religions.
5097.97.
In the event that any Native American organization,
tribe, group, or individual advises the commission
that a proposed action by a public agency may cause
severe or irreparable damage to a Native American
sanctified cemetery, place of worship, religious or
ceremonial site, or sacred shrine located on public
property, or may bar appropriate access thereto by
Native Americans, the commission shall conduct an
investigation as to the effect of the proposed
action. Where the commission finds, after a public
hearing, that the proposed action would result in
such damage or interference, the commission may
recommend mitigation measures for consideration by
the public agency proposing to take such action. If
the public agency fails to accept the mitigation
measures, and if the commission finds that the
proposed action would do severe and irreparable
damage to a Native American sanctified cemetery,
pg. 6
place of worship, religious or ceremonial site, or
sacred shrine located on public property, the
commission may ask the Attorney General to take
appropriate legal action pursuant to subdivision (g)
of Section 5097.94.
5097.98.
(a) Whenever the commission receives notification of a
discovery of Native American human remains from a
county coroner pursuant to subdivision (c) of Section
7050.5 of the Health and Safety Code, it shall
immediately notify those persons it believes to be
most likely descended from the deceased Native
American. The decendents may, with the permission of
the owner of the land, or his or her authorized
representative, inspect the site of the discovery of
the Native American remains and may recommend to the
owner or the person responsible for the excavation
work means for treating or disposing, with
appropriate dignity, the human remains and any
associated grave goods. The descendents shall
complete their inspection and make their
recommendation within 24 hours of their notification
by the Native American Heritage Commission. The
recommendation may include the scientific removal and
nondestructive analysis of human remains and items
associated with Native American burials.
(b) Whenever the commission is unable to identify a
descendent, or the descendent identified fails to
make a recommendation, or the landowner or his or her
authorized representative rejects the recommendation
of the descendent and the mediation provided for in
subdivision (k) of Section 5097.94 fails to provide
measures acceptable to the landowner, the landowner
or his or her authorized representative shall reinter
the human remains and items associated with Native
American burials with appropriate dignity on the
property in a location not subject to further
subsurface disturbance.
(c) Notwithstanding the provisions of Section 5097.9, the
provisions of this section, including those actions
taken by the landowner or his or her authorized
representative to implement this section and any
action taken to implement an agreement developed
pg. 7
pursuant to subdivision (l) of Section 5097.94, shall
be exempt from the requirements of the California
Environmental Quality Act (Division 13 (commencing
with Section 21000)).
(d) Notwithstanding the provisions of Section 30244, the
provisions of this section, including those actions
taken by the landowner or his or her authorized
representative to implement this section, and any
action taken to implement an agreement developed
pursuant to subdivision (l) of Section 5097.94 shall
be exempt from the requirements of the California
Coastal Act of 1976 (Division 20 (commencing with
Section 30000)).
5097.99.
(a) No person shall obtain or possess any Native
American artifacts or human remains which are taken
from a Native American grave or cairn on or after
January 1, 1984, except as otherwise provided by law
or in accordance with an agreement reached pursuant
to subdivision (l) of Section 5097.94 or pursuant to
Section 5097.98.
(b) Any person who knowingly or willfully obtains or
possesses any Native American artifacts or human
remains which are taken from a Native American grave
or cairn after January 1, 1988, except as otherwise
provided by law or in accordance with an agreement
reached pursuant to subdivision (l) of Section
5097.94 or pursuant to Section 5097.98, is guilty of
a felony which is punishable by imprisonment in the
state prison.
(c) Any person who removes, without authority of law, any
Native American artifacts or human remains from a
Native American grave or cairn with an intent to sell
or dissect or with malice or wantonness is guilty of
a felony which is punishable by imprisonment in the
state prison.
5097.991.
It is the policy of the state that Native American
remains and associated grave artifacts shall be
repatriated.
pg. 8
5097.993. (a) (1) A person who unlawfully and maliciously
excavates upon, removes, destroys, injures, or
defaces a Native American historic, cultural, or
sacred site, that is listed or may be eligible for
listing in the California Register of Historic
Resources pursuant to Section 5024.1, including any
historic or prehistoric ruins, any burial ground, any
archaeological or historic site, any inscriptions
made by Native Americans at such a site, any
archaeological or historic Native American rock art,
or any archaeological or historic feature of a Native
American historic, cultural, or sacred site, is
guilty of a misdemeanor if the act was committed with
specific intent to vandalize, deface, destroy, steal,
convert, possess, collect, or sell a Native American
historic, cultural, or sacred artifact, art object,
inscription, or feature, or site, and the act was
committed as follows:
(A) On public land.
(B) On private land, by a person, other than the
landowner, as described in subdivision (b).
(2) A violation of this section is punishable by
imprisonment in the county jail for up to one year,
by a fine not to exceed ten thousand dollars
($10,000), or by both that fine and imprisonment.
(b) This section does not apply to any of the following:
(1) An act taken in accordance with, or pursuant to, an
agreement entered into pursuant to subdivision (l) of
Section 5097.94.
(2) An action taken pursuant to Section 5097.98.
(3) An act taken in accordance with the California
Environmental Quality Act (Division 13 (commencing
with Section 21000)).
(4) An act taken in accordance with the National
Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321
et seq.).
(5) An act authorized under the Z'berg-Nejedly Forest
Practice Act of 1973 (Chapter 8 (commencing with
Section 4511) of Part 2 of Division 4).
(6) An action taken with respect to a conservation
easement in accordance with Chapter 4 (commencing
pg. 9
with Section 815) of Division 2 of the Civil Code, or
any similar nonperpetual enforceable restriction that
has as its purpose the conservation, maintenance, or
provision of physical access of Native Americans to
one or more Native American historic, cultural, or
sacred sites, or pursuant to a contractual agreement
for that purpose to which most likely descendents of
historic Native American inhabitants are signatories.
(7) An otherwise lawful act undertaken by the owner, or
an employee or authorized agent of the owner acting
at the direction of the owner, of land on which
artifacts, sites, or other Native American resources
covered by this section are found, including, but not
limited to, farming, ranching, forestry,
improvements, investigations into the characteristics
of the property conducted in a manner that minimizes
adverse impacts unnecessary to that purpose, and the
sale, lease, exchange, or financing of real property.
(8) Research conducted under the auspices of an
accredited postsecondary educational institution or
other legitimate research institution on public land
in accordance with applicable permitting requirements
or on private land in accordance with otherwise
applicable law. 5097.994.
(a) A person who violates subdivision (a) of Section
5097.993 is subject to a civil penalty not to exceed
fifty thousand dollars ($50,000) per violation.
(b) A civil penalty may be imposed for each separate
violation of subdivision (a) in addition to any other
civil penalty imposed for a separate violation of any
other provision of law.
(c) In determining the amount of a civil penalty imposed
pursuant to this section, the court shall take into
account the extent of the damage to the resource. In
making the determination of damage, the court may
consider the commercial or archaeological value of
the resource involved and the cost to restore and
repair the resource.
(d) A civil action may be brought pursuant to this
section by the district attorney, the city attorney,
or the Attorney General, or by the Attorney General
upon a complaint by the Native American Heritage
Commission.
pg. 10
(e) (1) All moneys collected from civil penalties imposed
pursuant to this section as a result of an
enforcement action brought by a city or county shall
be distributed to the city or county treasurer of the
city or county that brought the action. These moneys
shall be first utilized to repair or restore the
damaged site, and the remaining moneys shall be
available to that city or county to offset costs
incurred in enforcing this chapter.
(2) All moneys collected from civil penalties imposed
pursuant to this section as a result of an
enforcement action brought by the Attorney General
shall be first distributed to, and utilized by, the
Native American Heritage Commission to repair or
restore the damaged site, and the remaining moneys
shall be available to the Attorney General to offset
costs incurred in enforcing this chapter.
pg. 11
Appendix G
Provenience of Culturally Unidentifiable Native American Human
Remains in the National NAGPRA Database—Map
7/19/2006
Provenience of Culturally Unidentifiable Native American
Human Remains in the National NAGPRA Database **
43
405
70
100
175
1,249
136
1,893
11,467
390
10,456
2,159
911
760
13,547
2,502
2,441
2,118
765
1,542
1,113
580
2,394
1,171
144
379
2,538
180
21
4,165
4
146 203
6
1,199 712
152
5,195
1,230
11,150
2,395
387
1,185
783
8,027
3,419
Total
118,442
1,453
437
6,877
Unknown
2
7,666
>5,000
>1,000
<1,000
** Numbers include 5,238 human remains that have been described in published Notices of Inventory Completion.
Appendix H
Template of Notice of Inventory Completion
Notice of Inventory Completion: [Controlling Institution, City, State (if
different from Possessing Institution)] and [Possessing Institution, City, State]
ACTION: Notice.
---------------------------------------------------------------------------------------------Notice is here given in accordance with the Native American Graves Protection and
Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of
[human remains and associated funerary objects] (choose appropriate
categories) in the [possession/control] of [Museum/Federal agency, City, State].
The human remains [and/or associated funerary objects] were removed from
[succinct description of localities involved – county/counties and state(s)].
This notice is published as part of the National Park Service’s administrative
responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this
notice are the sole responsibility of the museum, institution, or Federal agency that
has control of the Native American human remains [and associated funerary
objects]. The National Park Service is not responsible for the determinations in this
notice.
A detailed assessment of the human remains was made by [Museum/Federal
agency] professional staff in consultation with representatives of [alphabetize list
of the consulted Indian tribes or Native Hawaiian organizations as per the
Federal Register: http://www.cr.nps.gov/nagpra/MANDATES/BIA_List.pdf].
In [date(s) of removal], human remains representing a minimum of [number]
individuals were removed from [name of site] in [County, State]. (Include
information regarding the circumstances surrounding the removal and all
subsequent transfers until the item came into the museum/Federal agency’s
possession.) No known individuals were identified (unless there is a named
individual). The [number] associated funerary objects are [types of object -- i.e.,
pottery, tools, beads, cradleboards, jewelry, etc.] or No associated funerary objects
are present.
[Paragraph here should give dates and additional circumstances known about the
human remains, or any known earlier group/phase and how/why these individuals
have been determined to be Native American. The lines of evidence for present-day
cultural affiliation with the earlier identifiable group (especially if precontact)
should be presented -- i.e., any historical records, continuity of occupation,
continuity of ethnographic materials (pottery, basketry, etc.). Tribal evidence of
cultural affiliation should also be presented -- i.e., oral history/tradition, manner of
interment, known/named village/camp, etc].
[Repeat the above two paragraphs in notices covering more than one accession or
site.]
Officials of the [Museum/Federal agency] have determined that, pursuant to 25
U.S.C. 3001 (9-10), the human remains described above represent the physical
remains of [total number in notice] individuals of Native American ancestry. (omit
the following sentence if not applicable) Officials of the [Museum/Federal
agency] also have determined that, pursuant to 25 U.S.C. 3001 (3)(A), the [total
number in notice] objects described above are reasonably believed to have been
placed with or near individual human remains at the time of death or later as part of
the death rite or ceremony.) Lastly, officials of the [Museum/Federal agency]
have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of
shared group identity that can be reasonably traced between the Native American
human remains and associated funerary objects and the [culturally affiliated
tribe(s) – listed alphabetically].
Representatives of any other Indian tribe that believes itself to be culturally affiliated
with the [human remains and/or associated funerary objects] should contact
[responsible official], [Museum/Federal agency, Street, City, State, Zip],
telephone (XXX) XXX-XXXX, before [insert date 30 days following publication in
the Federal Register] (Federal Register calculates this date). Repatriation of the
[human remains and/or associated funerary objects] to the [culturally
affiliated tribe(s) – listed alphabetically] may proceed after that date if no
additional claimants come forward.
[Museum/Federal agency] is responsible for notifying [consulted tribes – listed
alphabetically] that this notice has been published.
Appendix I
Template of Notice of Intent to Repatriate
Notice of Intent to Repatriate a Cultural Item(s): [Controlling Institution,
City, State (if different from Possessing Institution)] and [Possessing Institution,
City, State]
ACTION: Notice.
-----------------------------------------------------------------------------------------------Notice is here given in accordance with the Native American Graves Protection and
Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate (a) cultural
item(s) in the possession of the [Museum/Federal agency, City, State] that meets
the definition of “[(NAGPRA category(ies) under which items are being claimed:)
unassociated funerary objects; sacred objects; or objects of cultural
patrimony]” under 25 U.S.C. 3001.
This notice is published as part of the National Park Service’s administrative
responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this
notice are the sole responsibility of the museum, institution, or Federal agency that
has control of the cultural items. The National Park Service is not responsible for
the determinations in this notice.
A paragraph should give a brief and general description (including number) of the
object(s) and should set out the dates and circumstances of acquisition of the
object(s).
An additional paragraph should outline the lines of evidence for cultural affiliation,
and evidence from consultation with the tribe(s) to support definition/s of these
cultural items as defined under NAGPRA.
Select the following section appropriate for the category/ies of cultural items listed
in the notice:
(For Unassociated Funerary Objects):
U.S.C. 3001 (3)(B), the [total number] cultural item(s) described above are
reasonably believed to have been placed with or near individual human remains at the
time of death or later as part of the death rite or ceremony and are believed, by a
preponderance of the evidence, to have been removed from a specific burial site of
an Native American individual.
(For Sacred Objects):
U.S.C. 3001 (3)(C), the [total number] cultural item(s) described above are
specific ceremonial objects needed by traditional Native American religious leaders
for the practice of traditional Native American religions by their present-day
adherents.
(For Objects of Cultural Patrimony):
U.S.C. 3001 (3)(D), the [total number] cultural item(s) described above have
ongoing historical, traditional, or cultural importance central to the Native American
group or culture itself, rather than property owned by an individual.
The notice should close with the following three paragraphs:
Officials of the [Museum/Federal agency] also have determined that, pursuant to
25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be
reasonably traced between the [type of objects] and the [culturally affiliated
tribe(s) listed alphabetically].
Representatives of any other Indian tribe that believes itself to be culturally affiliated
with the [category of objects] should contact [responsible official],
[Museum/Federal agency, Street, City, State, Zip], telephone (XXX) XXXXXXX, before [insert date 30 days following publication in the Federal Register]
(Federal Register calculates this date). Repatriation of the [category of objects] to
the [culturally affiliated tribe(s)] may proceed after that date if no additional
claimants come forward.
[Museum/Federal agency] is responsible for notifying [consulted tribes – listed
alphabetically] that this notice has been published.
Appendix J
National NAGPRA, NAGPRA Section 3: Plan of Action Checklist
U.S. Department of the Interior
National NAGPRA
NAGPRA Section 3: Plan of Action Checklist
The written plan of action is an integral part of the consultation process mandated by 43 CFR 10.5 whenever there is activity
affecting or likely to affect Native American cultural items on Federal or tribal lands. The plan of action must document
compliance with ARPA, especially 43 CFR 7.7 – 7.9, regarding requirements for permits on Indian lands.
Information on the kinds of objects that are considered to be –
Funerary objects
Sacred objects
Objects of cultural patrimony
Specific information used to determine custody/ownership under 43 CFR 10.6
Planned treatment, care, and handling of –
Human remains
Funerary objects
Sacred objects
The planned archeological recording of –
Human remains
Funerary objects
Sacred objects
The kinds of analysis planned for –
Human remains
Funerary objects
Sacred objects
Steps to be followed to contact Indian tribe officials at the time of excavation or inadvertent
discovery of specific –
Human remains
Funerary objects
Sacred objects
The kind of traditional treatment, if any, to be used for –
Human remains
Funerary objects
Sacred objects
The nature of reports to be prepared
The planned disposition of human remains, funerary objects, sacred objects, and objects of cultural
patrimony following 43 CFR 10.6 [NOTE: a Notice of Intended Disposition is still required prior to
disposition.]
The plan of action complies with 43 CFR 10.3 (b)(1) and follows the requirements of ARPA.
The plan of action is signed by the Federal agency official.
A copy of the plan of action is provided to the consulting lineal descendants, Indian tribes, and
Native Hawaiian organizations.

Restless Spirits - John F. Kennedy Universities Libraries

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