Final Rule NAGPRA

Monday,
March 15, 2010

Part III

Department of the
Interior

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43 CFR Part 10
Native American Graves Protection and
Repatriation Act Regulations—Disposition
of Culturally Unidentifiable Human
Remains; Final Rule

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Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Rules and Regulations

DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
RIN 1024–AD68

Native American Graves Protection
and Repatriation Act Regulations—
Disposition of Culturally Unidentifiable
Human Remains
Office of the Secretary, Interior.
Final rule with request for
comments.
AGENCY:
ACTION:

SUMMARY: This final rule implements
the Native American Graves Protection
and Repatriation Act by adding
procedures for the disposition of
culturally unidentifiable Native
American human remains in the
possession or control of museums or
Federal agencies. This rule also amends
sections related to purpose and
applicability of the regulations,
definitions, inventories of human
remains and related funerary objects,
civil penalties, and limitations and
remedies.

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DATES: This rule is effective May 14,
2010. Comments must be received by
May 14, 2010.
ADDRESSES: You may submit comments
on this final rule, identified by the
number 1024–AD68, by any of the
following methods:
• Federal rulemaking portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail or hand delivery: Sherry Hutt,
Manager, National NAGPRA Program,
National Park Service, 1201 Eye Street,
NW., 8th Floor, Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT:
Sherry Hutt, Manager, National
NAGPRA Program, National Park
Service, 1201 Eye Street, NW., 8th
Floor, Washington, DC 20005,
Telephone: (202) 354–1479, Fax: (202)
371–5197.
SUPPLEMENTARY INFORMATION:

Background
The Native American Graves
Protection and Repatriation Act of 1990
(the Act) addresses the rights of lineal
descendants, Indian tribes, and Native
Hawaiian organizations to certain
Native American human remains,
funerary objects, sacred objects and
objects of cultural patrimony. Among
other things, the Act:
—Established the Native American
Graves Protection and Repatriation
Review Committee, composed of
representatives from museum and
scientific organizations and from

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Indian tribes and Native Hawaiian
organizations (the Review Committee)
to monitor and review inventory,
identification, and repatriation
activities.
—Required the Review Committee to
consult with the Secretary of the
Interior in developing regulations to
implement the Act.
—Charged the Review Committee with
compiling an inventory of culturally
unidentifiable human remains in
museums or Federal agencies and
recommending actions for disposition
of these remains.
In 1995, during initial development of
the regulations to implement the Act,
the Department decided to reserve
several sections for later development.
This decision ensured that development
of more complex provisions would not
delay implementation of the basic
regulations needed to guide compliance
with impending deadlines for inventory
submissions. We are implementing this
long-term publication plan as follows:
—We published the first rules to
implement the Act on December 4,
1995 (43 CFR part 10, 60 FR 62158).
—We published rules for assessing civil
penalties under the Act on April 3,
2003 (43 CFR 10.12, 68 FR 16354).
—We published rules for new
collections and continuing obligations
for compliance on March 21, 2007 (43
CFR 10.13, 72 FR 13189).
—We are publishing this rule today.
—We are developing additional rules to
cover disposition of unclaimed Native
American human remains and
cultural items from Federal and
Indian lands (future 43 CFR 10.7).
Publication of this rule furthers the
Department’s goal of publication in
phases.
On October 16, 2007, we published in
the Federal Register the proposed rule
to specify procedures for disposition of
culturally unidentifiable human
remains in the possession or control of
museums or Federal agencies. At that
time, we invited public comment for a
90-day period, ending on January 14,
2008, and posted the proposed rule on
the National NAGPRA Program Web
site.
During the comment period, we
received 138 written comments from 51
Indian tribes, 19 Indian organizations,
30 museums, 12 museum or scientific
organizations, 3 Federal entities, 15
members of the public, and the Review
Committee. The comments addressed all
sections of the proposed rule. We fully
considered all of these comments and
this final rule includes extensive
revisions that we have made response to
the concerns raised by commenters.

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As required by the Act, the Review
Committee sent comments to the
Secretary in 2000, 2003, and 2008.
During its January 2008 teleconference,
the Review Committee suggested that
the Department extend the comment
period for the proposed rule or reissue
a revised proposed rule for further
comment. After the close of the
comment period, we worked with the
Office of the Solicitor to prepare a draft
final rule and preamble responding to
comments. The following brief
chronology outlines the reviews that
have occurred since we developed the
rule:
—The Assistant Secretary—Fish and
Wildlife and Parks and the Assistant
Secretary—Indian Affairs reviewed
the draft final rule and considered the
recommendations of the Review
Committee.
—The Assistant Secretaries determined
that the draft final rule and preamble
were responsive to comments, and
that, given the lengthy comment
period, there was no need or basis to
extend the comment period or to
repropose the rule.
—The Department identified a
procedural problem with publication
of the final rule relating to the
Paperwork Reduction Act, which
resulted in additional delays totaling
6 months.
—With the change of administration,
the Department’s management
conducted additional review by the
Assistant Secretary—Fish and
Wildlife and Parks and the Assistant
Secretary—Indian Affairs.
As the preceding summary illustrates,
this final rule has undergone extensive
review in multiple administrations.
Each of these reviews was conducted
independently, and both the current and
previous administrations agreed that
this rule is appropriate for
implementation. In addition to the
opportunities for comment that we have
already offered, we are accepting
comments on this rule until May 14,
2010.
The current Assistant Secretary—Fish
and Wildlife and Parks and the current
Assistant Secretary—Indian Affairs have
determined that this final rule and
preamble are fully responsive to the
comments received on the proposed
rule and that the ten-year process of
developing the rule, as well as the
substantive provisions of the rule, fit
well with the Administration’s goals of
transparency in decision making and
open consultation with Indian tribes.
Comments to this rule covered myriad
issues that have arisen in the 20 years
since NAGPRA became law. Although

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many of the comments went beyond the
scope of this rulemaking, the preamble
to this rule provides detailed responses
to each of the comments.
In brief, this rule pertains to those
human remains, in collections,
determined by museums and Federal
agencies to be Native American, but for
whom no relationship of shared group
identity can be reasonably traced,
historically or prehistorically, between a
present day Indian tribe or Native
Hawaiian organization and an
identifiable earlier group. These
individuals are listed on inventories as
culturally unidentifiable Native
American human remains. The rule
requires consultation on the culturally
unidentifiable human remains by the
museum or Federal agency with Indian
tribes and Native Hawaiian
organizations whose tribal lands or
aboriginal occupancy areas are in the
area where the remains were removed.
If cultural affiliation still cannot be
determined and repatriation achieved,
then the Indian tribe or Native Hawaiian
organization may request disposition of
the remains. The museum or Federal
agency would then publish a notice and
transfer control to the tribe, without first
being required to appear before the
Review Committee to seek a
recommendation for disposition
approval from the Secretary of the
Interior. Disposition requests, which do
not meet the parameters of the rule,
would still require approval from the
Secretary, who may request a
recommendation from the Review
Committee.
Therefore, the Department is issuing
this final rule to be effective May 14,
2010.
Summary of Comments
The proposed rule to specify
procedures for the disposition of
culturally unidentifiable human
remains in the possession or control of
museums or Federal agencies was
published in the Federal Register on
October 16, 2007 (72 FR 58582). Public
comment was invited for a 90-day
period, ending on January 14, 2008. The
proposed rule was also posted on the
National NAGPRA Program Web site.
The Review Committee commented on
the proposed rule at its January 8, 2008
public teleconference. In addition, 138
written comments were received during
the comment period, representing 51
Indian tribes, 19 Indian organizations,
30 museums, 12 museum or scientific
organizations, 3 Federal entities, 15
members of the public, and the Review
Committee. Comments addressed all
sections of the proposed rule. All
comments were fully considered when

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revising the proposed rule as a final
rulemaking.
General Comments
Authority
Comment 1: Fifteen commenters
stated that the Department of the
Interior does not have the authority to
promulgate regulations governing the
disposition of culturally unidentifiable
human remains and associated funerary
objects and that Congressional action is
necessary to effect the disposition of
such remains and objects. Eleven
commenters stated that the Department
of the Interior does have authority to
promulgate such regulations.
Our Response: In section 13 of the Act
(25 U.S.C. 3011), Congress explicitly
authorized the Secretary of the Interior
to promulgate regulations implementing
the Act. As an initial matter,
consideration of all Native American
human remains and associated funerary
objects, including those that are
culturally unidentifiable, is within the
scope of the statute. Section 5 of the Act
(25 U.S.C. 3003) requires Federal
agencies and museums that have
possession or control over holdings or
collections of Native American human
remains and associated funerary objects
to compile an inventory of such items
and, to the extent possible based on
information possessed by each museum
or Federal agency, identify the
geographical and cultural affiliation of
such items. Congress anticipated that
not all items could be geographically or
culturally affiliated and, in section 8 of
the Act (25 U.S.C. 3006), assigned the
role of recommending specific actions
for developing a process for the
disposition of culturally unidentifiable
human remains to the Review
Committee. Congress intended that the
Review Committee be an advisory
committee which makes
recommendations to the Secretary
(Senate Report 101–473 at 13). An
earlier version of the bill that preceded
the final version of NAGPRA directed
the Review Committee to provide its
recommendations regarding the
disposition of culturally unidentifiable
human remains to the Secretary and to
the Congress (H.R. 5237, Section (7)(d),
July 10, 1990). However, the provision
regarding Congress was ultimately
stricken from the version of the bill that
was signed into law. The sequence of
changes in a statute prior to enactment
provides strong evidence of the meaning
of the enacted statute (INS v. CardozaFonseca, 480 U.S. 421 (1987)). It would
thus appear that while Congress may
have considered limiting the Secretary’s
authority to promulgate regulations

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regarding the disposition of culturally
unidentifiable human remains, this
restriction was ultimately rejected. This
regulation, promulgated in the exercise
of Congress’ delegated authority,
implements many of the Review
Committee’s recommendations and
effectuates the goals of the Act. Even if
Congress may not have expressly
delegated authority or responsibility to
implement a particular provision of the
Act or fill a particular gap in the law,
it can still be apparent from an agency’s
generally conferred authority and other
statutory directives that Congress would
expect the agency to be able to speak
with the force of law when the agency
addresses ambiguities in the statute or
fills a gap in the enacted law (United
States v. Mead, 533 U.S. 218 (2001)).
Comment 2: Five commenters
consider the rule to be contrary to the
plain language of the Act and against
the original intent of Congress.
Our Response: Typically, the
Congress expects the Federal agency
charged with the implementation of a
statute to establish the specific process
by which the statute’s objectives are to
be achieved. By regulation, the
Department directed each museum and
Federal agency to complete ‘‘a listing of
all culturally unidentifiable human
remains and associated funerary objects
for which no culturally affiliated
present-day Indian tribe or Native
Hawaiian organization can be
determined’’ (43 CFR 10.9(d)(2)), and,
after considering the Review
Committee’s recommendations, the
Secretary proposed these regulations to
address the Congressional silence with
respect to procedures for disposition of
the culturally unidentifiable human
remains and associated funerary objects.
Under Chevron v. Natural Resources
Defense Council (467 U.S. 837 (1984)),
if a statute is silent or ambiguous with
respect to a particular issue, then
deference is accorded to the agency’s
interpretation of the provisions of the
Act so long as the agency’s
interpretation is not arbitrary,
capricious, or manifestly contrary to the
statute. As discussed above, the
promulgation of regulations for the
disposition of culturally unidentifiable
human remains and associated funerary
objects is consistent with the plain
language and intent of the Act.
Culturally unidentifiable human
remains and associated funerary objects
were previously addressed in the
regulations promulgated by the
Department in December 1995 (60 FR
62134). 43 CFR 10.9(e)(6) requires
Federal agencies and museums to
provide a list of culturally
unidentifiable human remains and

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associated funerary objects to the
Department and to retain possession of
such items pending promulgation of this
rule unless legally required to do
otherwise or the Secretary recommends
otherwise. Promulgation of this rule
provides for additional treatment and
ultimate disposition of culturally
unidentifiable human remains and
associated funerary objects, and fills the
regulatory gap contemplated by the
current regulations.
Comment 3: Two commenters stated
that Congress intended to allow study of
ancient, unaffiliated remains.
Our Response: The Act does not draw
a distinction between ‘‘ancient’’ and
more recent remains. The Act covers
historic or prehistoric ‘‘Native
American’’ human remains. ‘‘Native
American’’ means of, or relating to, a
tribe, people, or culture that is
indigenous to the United States’’ (25
U.S.C. 3001(9)). The statute states that
the Act shall not be construed to be an
authorization for the initiation of new
scientific studies of Native American
human remains and associated funerary
objects or other means of acquiring or
preserving additional scientific
information from such remains and
objects (25 U.S.C. 3003(b)(2)).
Comment 4: One commenter
indicated that the proposed rule
bypasses the language of the Act as the
Review Committee is given the role of
making recommendations regarding
culturally unidentifiable remains.
Our Response: In section 8(c)(5) of the
Act (25 U.S.C. 3006(c)(5)), Congress
assigned the Review Committee the role
of recommending specific actions for
developing a process for disposition of
culturally unidentifiable human
remains. Congress also authorized the
Review Committee to consult with the
Secretary in the development of
regulations to carry out the Act. The
Secretary has interpreted the intent of
Congress in this section as authorizing
the Secretary to promulgate regulations
governing the disposition of culturally
unidentifiable human remains after
considering the Review Committee’s
recommendations on these matters. This
interpretation is reflected in the
Department of the Interior’s regulations
at § 10.9(6) which states, ‘‘Section 10.11
of these regulations will set forth
procedures for disposition of culturally
unidentifiable human remains of Native
American origin. Museums or Federal
Agencies must retain possession of such
human remains pending promulgation
of § 10.11 unless legally required to do
otherwise, or recommended to do
otherwise by the Secretary.
Recommendations regarding the
disposition of culturally unidentifiable

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human remains may be requested prior
to final promulgation of § 10.11.’’ Prior
to the completion of § 10.11, the
Secretary has referred such individual
requests to the Review Committee, as
authorized under section 8(c)(8) of the
Act (25 U.S.C. 3006(c)(8)) (‘‘performing
such other related functions as the
Secretary may assign to the committee’’)
and has requested the Review
Committee’s advice before making
recommendations on the disposition of
human remains.
Constitutionality
Comment 5: One commenter was
concerned that compliance with the
proposed rule could place a museum in
violation of unspecified state statutes.
Our Response: NAGPRA is Federal
law, and, as such, under the Supremacy
Clause of the Constitution (Art. VI, cl. 2;
Lorillard Tobacco Co. v. Reilly, 533 US
525 (2001)) preempts any state law on
the same subject matter. This is
especially true in the field of Federal
Indian law, where the United States has
plenary and exclusive power (U.S.
Constitution, Art. I, Sec. 8, cl. 3;
Worcester v. Georgia, 31 US 515, 6 Pet
515 (1832)). Moreover, in section 7(f) of
the Act (25 U.S.C. 3005(f)), Congress
specifically provided that ‘‘[a]ny
museum which repatriates any item in
good faith pursuant to this chapter shall
not be 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 the
provisions of this chapter.’’
Comment 6: Two commenters alleged
that the proposed regulations would
violate the Establishment Clause of the
First Amendment to the Constitution,
focusing on a sentence in the preamble
to the proposed regulations which
suggests that the voluntary repatriation
by a museum or Federal agency of
funerary objects associated with
culturally unidentifiable human
remains would be consistent with
‘‘customary religious and spiritual
beliefs.’’ The commenters stated that this
suggestion demonstrated
unconstitutional special treatment for
the ‘‘creationist viewpoint’’ of many
Indian people and that such beliefs are
not evidence of a cultural relationship
or cultural affiliation under the Act.
Our Response: The commenters have
misconstrued and misapplied the
sentence in the preamble. First, the use
of religious or spiritual beliefs is not
being invoked to determine whether a
specific group of human remains is
Native American. The rule allows a
museum or Federal agency to
voluntarily repatriate associated
funerary objects with human remains

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(which it has already determined to be
Native American). Considerations of a
religious or spiritual belief system are
not used to determine the origin of the
human remains and are not relevant to
such a voluntary determination by the
museum or Federal agency. Further,
‘‘funerary objects’’ are defined by both
the NAGPRA statute and current
regulations as ‘‘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’’ (43 CFR 10.2(d)(2)). This
definition is taken from the definition of
‘‘associated funerary objects’’ in the Act
(25 U.S.C. 3001(3)(A)). The statement
referred to by commenters in the
preamble to the proposed rule is a
recognition that ‘‘the death rite or
ceremony of a culture’’ is an inherently
spiritual or religious act, whether the
belief system involved is traditionally
Indian or Christian (also broadly
represented in Indian country), or
another belief system. Such a
recognition in the context of a voluntary
action by a museum or Federal agency
(to which the commenters did not
object) does not constitute support of a
particular religious point of view or
excessive entanglement with religion in
the context of the Establishment Clause
(Walz v. Tax Commission of the City of
New York, 397 U.S. 664 (1970)).
Comment 7: Three commenters stated
that the proposed rule, if finalized,
would constitute a ‘‘taking’’ by the
United States of the property of
museums in violation of the Fifth
Amendment to the United States
Constitution.
Our Response: To determine whether
a governmental procedure has deprived
a party of its rights without due process,
the first inquiry must be whether that
party has protected property or liberty
interests (American Manufacturing
Mutual Insurance Co. v. Sullivan, 526
U.S. 40, 59 (1999), and Federal Lands
Legal Consortium v. United States, 195
F.3d 1190 (10th Cir. 1999)). Under the
common law, however, human remains
are not ‘‘property’’ (See, e.g., 2 William
Blackstone, Commentaries, 429). Thus, a
museum would not have a property
interest in culturally unidentifiable
human remains that could be ‘‘taken,’’
unless the museum has received the
right to possess the remains from a
person or entity with authority to confer
that right on the museum. The next of
kin of the deceased (25 U.S.C. 3001(13))
(see Whaley v. Tuscola, 58 F.3d 1111,
1117 (6th Cir. 1995); Brotherton v.
Cleveland, 923 F.2d 477, 482 (6th Cir.
1991)) and the official governing body of
the appropriate Indian tribe or Native
Hawaiian organization (25 U.S.C.

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3001(13) and (3002(e)) are the only
parties who possess such a property
right for purposes of the Fifth
Amendment. If a museum could prove,
therefore, that the human remains were
‘‘excavated, exhumed, or otherwise
obtained with full knowledge and
consent of the next of kin or the official
governing body of the appropriate
culturally affiliated Indian tribe or
Native Hawaiian organization’’ (25
U.S.C. 3001(13)), or were remains for
which ‘‘the governing body of an Indian
tribe or Native Hawaiian organization
[has] expressly relinquished control’’ (25
U.S.C. 3002(e)), it may have a property
right that could be protected. That is the
purpose of the definition of right of
possession under the Act (25 U.S.C.
3001(13)), and, to the extent that a
museum can prove a right of possession
for culturally unidentifiable human
remains, that right is protected by
§ 10.11(c)(1) of the regulations as well as
the Constitution.
Comment 8: Two commenters
asserted that the proposed rule, if
finalized, would violate the Equal
Protection clause of the Fourteenth
Amendment to the United States
Constitution. One of these commenters
noted that the requirement in
§ 10.11(b)(2) to consult with ‘‘all Indian
tribes and Native Hawaiian
organizations’’ with certain connections
to land (which, in the commenter’s
view, would include Indian groups that
are not federally-recognized) would
violate the Act’s insulation from equal
protection challenges based on the
government-to-government relationship
between the United States and federallyrecognized Indian tribes. The other
commenter asserted that the proposed
rule illegally favored one ‘‘cultural
lineage’’ over others.
Our Response: The first commenter’s
concern raises an issue common to
many of the comments on the proposed
rule. When agencies publish proposed
and final rules in the Federal Register
that are amending existing regulations,
the agency is only required to publish
the portion of the regulations that would
change. Unless the agency states
otherwise, all portions of existing
regulations that are not proposed for
change in the notice of proposed
rulemaking remain the same, and still
apply. Thus, when this proposed rule
refers to ‘‘Indian tribes,’’ the drafters are
using the existing definition of that
term, which is not proposed for
changes. That definition, at § 10.2(b)(2),
only refers to federally-recognized
Indian tribes. The drafters of the
proposed rule have been very careful to
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groups are included in a provision of
the rule in order to maintain a clear
distinction. The only mandatory
consultation or disposition in the rule,
consistent with the Act, is to Indian
tribes (i.e., federally-recognized) or
Native Hawaiian organizations. This
preference in both the regulations and
the statute is based not on ‘‘cultural
lineage’’ but on the plenary power of
Congress to ‘‘regulate commerce * * *
with the Indian Tribes’’ (U.S.
Constitution Art. I, Sec. 8, cl. 3), and the
unique government-to-government
relationship between the United States
and Indian tribes (Morton v. Mancari,
417 U.S. 535, 551–52 (1974)).
Statutory Amendment
Comment 9: Three commenters
recommended that Congress consider
amending the statute. Two commenters
recommended expanding who has a
right to claim cultural items under the
Act from lineal descendants, Indian
tribes, and Native Hawaiian
organizations to also include state
recognized Indian groups, Indian groups
currently seeking Federal
acknowledgement, and indigenous
groups located beyond the boundaries of
the United States. One commenter
recommended amending the statute to
apply to collections held by the
Smithsonian Institution. One
commenter recommended that the
composition of the Review Committee
be changed to ensure a ratio of no less
than two Native American members for
each non-Native American member.
Our Response: Statutory amendments
are the exclusive purview of the
Congress.
Compliance With Other Statutes and
Policies
Comment 10: The preamble of the
proposed rule states that the rule does
not impose an unfunded mandate on
State, local, or tribal governments or the
private sector of more than $100 million
per year. Fifteen commenters projected
that the financial burden of consultation
and disposition on museums will be
‘‘tremendous,’’ ‘‘onerous,’’ ‘‘impossible,’’
‘‘overwhelming,’’ ‘‘ruinous,’’ or
‘‘significant.’’ Two commenters
predicted that the rule will result in
costly litigation. Seven commenters
estimated that the cost of implementing
the proposed rule will exceed $100
million per year. One commenter
recalled that some museums raised
similar financial concerns prior to
passage of the Act in 1990, but noted
that the claims have never been
substantiated in fact. Two commenters
recommended that the Department of

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the Interior provide detailed cost
estimates.
Our Response: Costs to comply with
this rule will be seen in the costs of
consultation and decision-making.
Museums and Federal agencies are only
required to consult upon receipt of a
claim from an Indian tribe or Native
Hawaiian organization. In the last five
years, there have been approximately 14
requests per year for Review Committee
consideration of claims for disposition
of culturally unidentifiable Native
American human remains. Although
there are numerous human remains
subject to this rule, it is reasonable to
assume that tribes will make requests at
a constant rate, given the capacity of
tribes to do so. A single claim may
involve many human remains from one
site, requiring one notice. Absent a
claim, a museum or Federal agency may
also voluntarily offer to transfer control.
The costs of decision making include
exchange of information between
museums and tribes, and preparation of
a notice by a museum. Using current
rates of compensation for museum
clerical, curator and executive staffs,
there is a weighted cost average for their
efforts of $30.00 an hour. Assuming
approximately 100 hours of information
exchange and six hours to prepare a
notice, the cost per claim is less than
$5,000 on average and the annual cost
of all claims in a year, subject to this
rule, is less than $100,000. Since there
are no deadlines for claims or for
offering to transfer control, the required
consultations will likely extend over
multiple year periods, thus reducing the
total cost of consultation in any
particular year. Since 1994, Congress
has provided grant funds for
consultation and repatriation activities
of approximately $2 million dollars per
year to account for NAGPRA
compliance, including this rule. Since
NAGPRA became law in 1990, there
have been almost 40,000 Native
American human remains accounted for
in notices and no indication that a
single museum has suffered
overwhelming or ruinous consequences
from compliance with the law.
There are also cost savings in the
reduction of inventory maintenance
costs and elimination of the pre-rule
need to present matters at Review
Committee meetings, which may
involve travel costs. Under current
regulations, museums and Federal
agencies must retain possession of
culturally unidentifiable human
remains, with all of the attendant
curatorial costs estimated in the
millions of dollars per year (S. Terry
Childs and Karolyn Kinsey, Costs for
Curating Archeological Collections: A

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Study of Repository Fees in 2002 and
1997/1998. National Park Service
(2003)). Museums and Federal agencies
that wish to effect the disposition of
culturally unidentifiable human
remains under current regulations must
either request a recommendation from
the Secretary of the Interior, which
involves preparation of materials and
presentations before the Review
Committee, or request involvement in
proceedings before a United States
District Court.
Comment 11: One commenter
requested that the Department of the
Interior consider the rule significant
under Executive Order 12866 on the
grounds that it raises novel legal or
policy issues.
Our Response: The Office of
Management and Budget has
determined that this rule is significant
under EO 12866.
Comment 12: One commenter stated
that Federal agencies should be required
to conduct review under the National
Environmental Policy Act (NEPA) (42
U.S.C. 4321, et seq.), for each
disposition of culturally unidentifiable
human remains, with or without
associated funerary objects, under the
final rule.
Our Response: NAGPRA does not
exempt Federal agencies from the
requirements of any other statutes that
may be applicable, such as NEPA. The
appropriate level of NEPA review
required would depend on the NEPA
procedures of the agency proposing the
disposition.
Relationships to Other Sections of These
Regulations
Comment 13: One commenter
requested clarification as to whether the
proposed rule applies to culturally
unidentifiable human remains and
associated funerary objects excavated or
removed from Federal or tribal lands
after November 16, 1990.
Our Response: Neither the proposed
rule nor this final rule apply to
culturally unidentifiable human
remains and associated funerary objects
excavated or removed from Federal or
tribal lands after November 16, 1990.
This final rule applies to human
remains in museum and Federal agency
collections for which no lineal
descendant or culturally affiliated
Indian tribe or Native Hawaiian
organization has been identified. For
museums, these human remains may
have been acquired either before or after
1990 when the statute was enacted. For
Federal agencies, disposition of human
remains, funerary objects, sacred
objects, or objects of cultural patrimony
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November 16, 1990 is effected pursuant
to section 3 of the Act (25 U.S.C. 3002),
and §§ 10.3–10.7 of the existing
regulations. Culturally unidentifiable
human remains acquired by a Federal
agency after November 16, 1990 from
other than Federal or tribal lands would
be covered by the provisions of this
rule.
Comment 14: One commenter
recommended that the terms
‘‘unclaimed’’ and ‘‘culturally
unidentifiable’’ be clearly distinguished.
Our Response: There may be some
confusion between the terms ‘‘culturally
unidentifiable’’ and ‘‘unclaimed.’’ As
specified in section 8(c)(5) of the Act (25
U.S.C. 3006(c)(5) and these regulations,
‘‘culturally unidentifiable’’ refers to
Native American human remains and
associated funerary objects in museum
or Federal agency collections for which
no lineal descendant or culturally
affiliated Indian tribe or Native
Hawaiian organization has been
determined. ‘‘Unclaimed’’ only refers to
Native American human remains,
funerary objects, sacred objects, or
objects of cultural patrimony excavated
or discovered on Federal or tribal lands
after November 16, 1990 and not
claimed under section 3(a) of the Act
(25 U.S.C. 3002(a)). A proposed rule
regarding the disposition of unclaimed
cultural items is currently under
development (43 CFR 10.7).
Comment 15: One commenter
recommended that unclaimed human
remains which can reasonably be
associated with a recognized tribe
should be returned to that Indian tribe.
Our Response: Unclaimed remains are
governed under section 3(a) of the Act
(25 U.S.C. 3002(a). A separate proposed
rule regarding the disposition of
unclaimed cultural items is currently
under development (43 CFR 10.7).
Please see Comment 14 for a related
response.
Development Process
Comment 16: Ten commenters
recommended adopting the Review
Committee’s 2000 recommendations in
lieu of the proposed rule. Three
commenters recommended adopting the
Review Committee’s 2002
recommendations in lieu of the
proposed rule. Five commenters
recommended taking the Review
Committee’s 2000 and 2002
recommendations into account in
revising the proposed rule. Three
commenters rejected the Review
Committee’s 2000 recommendations.
Our Response: There appears to be
some confusion regarding the Review
Committee’s involvement in the
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regulations. Sections 8(c)(5) and (c)(7) of
the Act (25 U.S.C. 3006(c)(5) and (c)(7)),
authorize the Review Committee to
recommend specific actions for
developing a process for the disposition
of culturally unidentifiable human
remains and consulting with the
Secretary of the Interior in the
development of regulations to carry out
the Act. After circulating three drafts for
public comment and considering
specific case-by-case requests, the
Review Committee developed its final
recommendations regarding the
disposition of culturally unidentifiable
human remains in May 2000. These
recommendations were reported in
detail in the preamble to the 2007
proposed rule. The Review Committee
also considered drafts of the proposed
rule at its May 31–June 2, 2002 and
November 8–9, 2002 meetings. Meeting
minutes are available at: http://
www.nps.gov/history/nagpra/REVIEW/
meetings/MINUTES.HTM.
At its November 8–9, 2002 meeting,
the Review Committee specifically
compared the draft regulatory text with
the text of its 2000 recommendations
and recommended several changes,
most of which, though purely advisory,
were reflected in the 2007 proposed
rule. The drafters gave full
consideration to the Review
Committee’s final recommendations
regarding the disposition of culturally
unidentifiable human remains (2000) as
well as to the Review Committee’s
review of drafts of the proposed rule on
May 31–June 2, 2002 and November 8–
9, 2002, and the actual proposed rule on
January 8, 2008.
Comment 17: Fourteen commenters
made general or specific
recommendations regarding the
establishment or composition of
‘‘regional consortia.’’
Our Response: The concept of
‘‘regional consortia’’ was proposed in the
Review Committee’s 2000 final
recommendations regarding the
disposition of culturally unidentifiable
human remains (65 FR 36462).
According to the Review Committee,
such regional consortia would consist of
Federal agencies, museums, Indian
tribes, and Native Hawaiian
organizations within a given geographic
area that would consult together and
propose a framework and schedule for
the disposition of culturally
unidentifiable human remains. The
drafters recognize the establishment of
such regional consortia as a potentially
useful step in arriving at generally
applicable disposition agreements.
However, the establishment or
composition of such consortia are
clearly matters to be determined by

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those who elect to be participants in a
consortium. As a result, the concept was
not addressed in the proposed rule.
Indian tribes may choose to participate
in such regional consortia, but it is not
required.
Administration
Comment 18: One commenter
recommended that the National Park
Service establish a permanent office to
focus specifically on the disposition of
the culturally unidentifiable human
remains and associated funerary objects.
One commenter recommended that the
National Park Service establish training
for museums and Federal agencies on
how to determine cultural affiliation.
Our Response: The National NAGPRA
Program will continue to provide
technical assistance and training to
museums, Federal agencies, lineal
descendants, Indian tribes, and Native
Hawaiian organizations regarding the
disposition of culturally unidentifiable
human remains and associated funerary
objects, as well as other aspects of the
Act.
Comment 19: Seventeen commenters
recommended providing additional
funds to museums and Indian tribes to
assist in the disposition of culturally
unidentifiable human remains.
Our Response: All activities required
under the proposed rule are eligible for
Federal grants authorized under section
10 of the Act. The Review Committee
has asked Congress to consider the
appropriation of additional funding.
Comment 20: One commenter
recommended that Federal funds be
appropriated to assist Indian tribes with
the protection of Indian cemeteries,
historic sites, and artifacts during or
after an emergency.
Our Response: The scope of grants
authorized under section 10 of the Act
(25 U.S.C. 3008) is limited to assisting
museums in conducting the required
inventories and identification and to
assisting Indian tribes and Native
Hawaiian organizations in the
repatriation of human remains, funerary
objects, sacred objects, or objects of
cultural patrimony (25 U.S.C. 3008).
Funds for the protection of Indian
cemeteries, historical sites, and artifacts
are available through other Federal
programs.
Comment 21: One commenter
recommended that the rule address the
need to expand existing tribal and
family cemeteries.
Our Response: The Act addresses the
protection of current Native American
burial sites on Federal or tribal lands
that are inadvertently discovered or
intentionally excavated and the
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or Federal agency collections or
holdings. The Act does not address the
creation of new burial sites or the
expansion of existing sites.
Comment 22: One commenter
recommended that forensic audits of all
Federal agency inventories be
conducted by the General Accounting
Office to ensure that this requirement of
the Act has been fulfilled.
Our Response: The Review Committee
has asked Congress to have the
Government Accountability Office
review Federal compliance with the
Act.
Comment 23: One commenter
recommends that State governments be
given the authority to supervise and
issue directives to the federallyrecognized Indian tribes in returning
Native American human remains back
to Mother Earth.
Our Response: Authorizing State
governments to direct the actions of
federally-recognized Indian tribes is
beyond the Secretary’s jurisdiction and
inconsistent with both the plenary
power of Congress to ‘‘regulate
commerce * * * with the Indian
Tribes’’ (U.S. Constitution Art. I, Sec. 8,
cl. 3), and the unique government-togovernment relationship between the
United States and Indian tribes (Morton
v. Mancari, 417 U.S. 535, 551–52
(1974)).
Section 10.1(b)(3) Final Determinations
Section 10.1(b)(3) describes decision
points throughout the regulations which
constitute ‘‘final determinations.’’ The
proposed rule added one sentence to
provide clarification to Federal agencies
as to when a determination constitutes
‘‘final agency action’’ as used in the
Administrative Procedure Act (5 U.S.C.
704).
Comment 24: Eight commenters
generally supported this proposed
revision with some modification. One
commenter recommended revising the
section to stipulate that failure to
affirmatively respond to a request
within a specified time period would be
considered a denial of the request for
purposes of judicial review, unless the
museum or agency extends the time
period in writing for good cause and
specifies a specific and reasonable
timetable. Five commenters
recommended clarifying that ‘‘an agency
denial of such a request is final when
the lineal descendant, Indian tribe or
Native Hawaiian organization has
exhausted any required administrative
appeals within the agency. Neither the
fact that the Review Committee may
review the matter nor the fact that an
agency denial is subject to
reconsideration upon submission of

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new information affects its status as
final agency action under the
Administrative Procedure Act. After a
final agency denial, a lineal descendant,
Indian tribe or Native Hawaiian
organization may make a new request
for repatriation or disposition of human
remains, funerary objects, sacred
objects, or objects of cultural patrimony
under the Act on the basis of the
findings or recommendations of the
Review Committee or new information.’’
Our Response: Congress did not
provide that requests would be deemed
denied based on a failure to respond.
The drafters agree that the language
suggested by the five commenters is
consistent with case law, but consider
that the proposed revision adequately
addresses when a determination
constitutes a final agency action as used
in the Administrative Procedure Act (5
U.S.C. 704). The drafters have also
added the text previously proposed in
§ 10.1(b)(3) into § 10.15(c) to reiterate
that the final denial of a request of a
lineal descendant, Indian tribe, or
Native Hawaiian organization for the
repatriation or disposition of human
remains, funerary objects, sacred
objects, or objects of cultural patrimony
constitutes final agency action under the
Administrative Procedure Act.
Section 10.2(e)(1) Definition of Cultural
Affiliation
Section 10.2(e)(1) revises the
definition of ‘‘cultural affiliation’’ to
include ‘‘anthropological’’ evidence. The
term, which is specifically included in
section 7(a)(4) of the Act (25 U.S.C.
3005(a)(7)), was inadvertently omitted
from the previous regulatory text. Two
commenters agreed with the proposed
revision of the definition of ‘‘cultural
affiliation.’’
Comment 25: One commenter
recommended including the phrase
‘‘cultural or geographic relationship’’
within the list of evidence relevant to
determining cultural affiliation in the
second sentence of § 10.2(e)(1).
Our Response: Both geographical and
anthropological (cultural) evidence are
already specifically identified as
relevant to determining cultural
affiliation (25 U.S.C. 3005(a)(4)).
Comment 26: One commenter
recommended that human remains
should not be returned without clear,
indisputable physical (archeological)
linkage to a present-day Indian tribe or
Native Hawaiian organization.
Our Response: Archeological
evidence is one of several types of
relevant information or expert opinion
that must be considered in determining
whether cultural affiliation can be
established (25 U.S.C. 3005(a)(4)).

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Culturally affiliation must be
‘‘reasonably traced’’ (25 U.S.C. 3001(2)).
Requiring an ‘‘indisputable linkage’’
would be inconsistent with the Act.
Comment 27: One commenter
recommended including language in
§ 10.2(e)(1) stipulating that ambiguities
in determining cultural affiliation must
be resolved in the favor of Indian tribes.
Our Response: The Act was enacted
for the benefit of Indians, therefore the
canon of construction applies that
statutes ‘‘are to be construed liberally in
favor of the Indians, with ambiguous
provisions interpreted to their benefit’’
(Yankton Sioux Tribe v. United States
Army Corps of Engineers, 83 F. Supp 2d
1047, 1056 (D.S.D. 2000)). These
regulations are subject to the same
canon of construction. ‘‘The trust
relationship and its application to all
Federal agencies that may deal with
Indians necessarily requires the
application of a similar canon of
construction to the interpretation of
Federal regulations’’ (HRI, Inc. v. EPA,
198 F.3d 1224, 1245 (10th Cir. 2000)).
This principle of Indian law is so wellestablished, however, that the drafters
consider additional regulatory text
unnecessary.
Comment 28: One commenter
questioned whether the proposed
change would impact the American
Indian Religious Freedom Act.
Our Response: The proposed change
revised the regulatory definition of
cultural affiliation to reflect the
statutory text and has no implications
related to the American Indian Religious
Freedom Act.
Section 10.2(e)(2) Definition of
Culturally Unidentifiable
Section 10.2(e)(2) defines the term
‘‘culturally unidentifiable.’’
Comment 29: One commenter
objected to the term ‘‘unidentifiable’’
given the likelihood that in many cases,
cultural affiliation can be determined
through additional consultation with
Indian tribes. The commenter stated that
the term thus places a false sense that
there is no existing Native American
group legitimately related to prehistoric
human beings. Another commenter felt
the term limits tribal sovereign rights
and misappropriates the Federal trust
responsibility to American Indians.
Three commenters recommended
including separate definitions of
‘‘unidentifiable’’ and ‘‘unidentified.’’
Our Response: Section 8 of the Act
(25 U.S.C. 3006) directs the Review
Committee to compile an inventory of
‘‘culturally unidentifiable’’ human
remains. The drafters recognize that
additional considerations (e.g.,
consultation and disposition as required

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by this rule) may result in the
determination of cultural affiliation for
some of these human remains.
Provisions to carry out the repatriation
of human remains and associated
funerary objects previously determined
to be culturally unidentifiable are
included at §§ 10.11(b)(6), 10.9(e) and
10.10(b) of the existing regulations, as
amended by this rule.
Comment 30: One commenter
recommended specifying in the
definition of ‘‘culturally unidentifiable’’
that such identifications are made
through the inventory process.
Our Response: The phrase ‘‘ * * *
through the inventory process’’ has been
added to the end of this definition.
Comment 31: Three commenters
recommended deleting the phrase ‘‘and
associated funerary objects’’ from the
definition of culturally unidentifiable.
Our Response: While disposition of
funerary objects associated with
culturally unidentifiable human
remains is voluntary, § 10.9(d)(2) of
these regulations requires museums and
Federal agencies to prepare an inventory
of both human remains and associated
funerary objects that cannot be
identified as affiliated with a particular
individual, Indian tribe, or Native
Hawaiian organization. The phrase ‘‘and
associated funerary objects’’ has been
retained.
Comment 32: One commenter
recommended redefining ‘‘culturally
unidentifiable’’ to refer ‘‘to human
remains for which a relationship of
shared group identity cannot be
reasonably traced historically or
prehistorically between members of
present-day Indian tribe or Native
Hawaiian organization and an
identifiable earlier group.’’
Our Response: The drafters consider
the recommended text less clear than
the proposed rule text because it omits
reference to associated funerary objects,
lineal descendants, and museum and
Federal agency collections, all necessary
elements of this definition.
Comment 33: One commenter
recommended including reference in
the definition of ‘‘culturally
unidentifiable’’ at § 10.2(e)(2) that claims
could be made for these human remains
based on tribal land, aboriginal land, or
cultural relationship.
Our Response: The basis for
disposition of culturally unidentifiable
human remains are set forth at
§ 10.11(c)(1) of this rule.
Comment 34: One commenter was
concerned that the proposed definition
of ‘‘culturally unidentifiable’’ at
§ 10.2(e)(2) would require museum staff
to make judgment calls without
adequate professional expertise.

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Our Response: Current regulations
require museum and Federal agency
officials to ‘‘prepare a listing of all
culturally unidentifiable human
remains and associated funerary objects
for which no culturally affiliated
present-day Indian tribe or Native
Hawaiian organization can be
determined’’ (43 CFR 10.9(e)(6)).
Completion of this listing was required
by November 16, 1995, or a later date
specifically determined by the Secretary
on a case-by-case basis. Museum and
Federal agency officials may wish to
retain outside professional expertise to
assist in these determinations, but are
not required to do so. Museum and
Federal agency officials are required to
consult with representatives of Indian
tribes and Native Hawaiian officials.
Section 10.2(g) Definition of
Disposition
Section 10.2(g)(5) provides a
definition of disposition and identifies
procedures to effectuate this process in
various situations.
Comment 35: One commenter
recommended deleting the phrase ‘‘with
or without associated funerary objects’’
from § 10.2(g)(iii).
Our Response: While disposition of
funerary objects associated with
culturally unidentifiable human
remains is voluntary, the Secretary
recommends that museums and Federal
agencies engage in such transfers
whenever Federal or State law would
not otherwise preclude them. The
phrase has been retained.
Comment 36: Four commenters
recommended revisions to the
definition of ‘‘disposition’’ at § 10.2(g)(5)
to provide museums and Federal
agencies with the option of retaining
possession and control of culturally
unidentifiable human remains. One
commenter recommended inserting the
phrase ‘‘or other mutually acceptable
alternative’’ after ‘‘transfer or control.’’
Our Response: Section 8(c)(5) of the
Act (25 U.S.C. 3006(c)(5)) directs the
Review Committee to recommend
specific actions for developing a process
for disposition of culturally
unidentifiable human remains. In its
2000 recommendations, the Review
Committee specified three types of
appropriate disposition solutions,
including transfer of control based on
the recovery of the human remains from
a particular Indian tribe or Native
Hawaiian organization’s tribal land or
aboriginal land or on a relationship of
shared group identity between the
human remains and an Indian group
which is not federally-recognized (65 FR
36463, June 8, 2000). The governing
body of an Indian tribe or Native

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Hawaiian organization is free to
relinquish control of human remains or
negotiate ‘‘other mutually acceptable
alternatives’’ (25 U.S.C. 3002(e)).
Comment 37: Five commenters
recommended reviewing the term
‘‘control’’ as it relates to the term
‘‘repatriate,’’ and to consider language
that holds a museum or Federal agency
harmless if a right of possession comes
to light after disposition has been
effected.
Our Response: The term ‘‘control’’
means having a legal interest in human
remains, funerary objects, sacred
objects, or objects of cultural patrimony
sufficient to lawfully permit the
museum or Federal agency to treat the
objects as part of its collection for
purposes of these regulations whether or
not the human remains, funerary
objects, sacred objects or objects of
cultural patrimony are in the physical
custody of the museum or Federal
agency (43 CFR 10.2(a)(3)(ii)). The Act
and these regulations provide that any
museum which repatriates or effects the
disposition of Native American human
remains in good faith pursuant to the
Act and these regulations shall not be
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 these
provisions (25 U.S.C. 3005(f)).
Section 10.2 Other Definitions
Comment 38: One commenter
recommended defining ‘‘nonfederallyrecognized Indian group’’ in § 10.2.
Our Response: The Act requires a
museum or Federal agency to repatriate
Native American cultural items upon
receipt of a valid claim from a lineal
descendant, Indian tribe, or Native
Hawaiian organization. The latter three
terms are defined at § 10.2(b)(1), (b)(2),
and (b)(3), respectively. We have chosen
to clarify by using the term ‘‘not
federally-recognized’’ for any Indian
group that does not meet the definition
in § 10.2(b)(2).
Comment 39: Three commenters
indicated that the proposed rule is
inconsistent with the Ninth Circuit’s
opinion in United States v. Bonnichsen
(357 F.3d 962 (9th Cir. 2004)).
Our Response: The Court’s opinion in
Bonnichsen addressed whether the
remains of ‘‘Kennewick Man’’
constituted Native American remains
within the Act’s definition of that term.
The proposed rule does not affect the
definition of ‘‘Native American.’’ The
proposed rule only applies after a
determination is made, consistent with
applicable law, that the human remains
or associated funerary objects are Native
American.

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Comment 40: Seven commenters
recommended inserting the phrase
‘‘Native American’’ before each
occurrence of ‘‘human remains’’
throughout the regulations.
Our Response: Since the drafters did
not propose to modify the definition of
‘‘human remains’’ at § 10.2(d)(1), the
meaning of the term throughout these
regulations remains ‘‘the physical
remains of a human body of a person of
Native American ancestry.’’
Comment 41: One commenter
recommended including a definition of
‘‘preponderance of the evidence.’’
Our Response: Determinations within
the Act are based on standard rules of
civil procedure. Museums and Federal
agencies are initially required to
determine by a reasonable belief if
human remains and associated funerary
objects are culturally affiliated with an
Indian tribe or Native Hawaiian
organization (25 U.S.C. 3003(d)(2)).
Thereafter, human remains and
associated funerary objects must be
expeditiously repatriated where an
Indian tribe or Native Hawaiian
organization can demonstrate cultural
affiliation by the preponderance of the
evidence (25 U.S.C. 3005(a)(4)). The
preponderance of the evidence generally
means that a decision maker must be
persuaded that the evidence is sufficient
to make it more likely than not that the
fact the claimant seeks to prove is true.
Section 10.9(e)(2) Content of Notice of
Inventory Completion
Section 10.9(e)(2) details the contents
of notices of inventory completion.
Additional text was proposed at
§ 10.9(e)(2)(v) to clarify that such
notices must include information
regarding culturally unidentifiable
human remains, with or without
associated funerary objects, that may be
transferred under § 10.11.
Comment 42: One commenter
recommended deleting the phrase ‘‘with
or without associated funerary objects’’
from § 10.9(e)(2)(v).
Our Response: While disposition of
funerary objects associated with
culturally unidentifiable human
remains is voluntary, the Secretary
recommends that museums and Federal
agencies engage in such transfers
whenever Federal or State law would
not otherwise preclude such transfers.
The phrase has been retained.
Comment 43: One commenter
recommended replacing the phrase ‘‘that
may be transferred under § 10.11’’ at the
end of § 10.9(e)(2)(v) with ‘‘that are
subject to disposition under § 10.11.’’
Our Response: The recommended
change is consistent with the language
in section 8(c)(5) of the Act (25 U.S.C.

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3006(c)(5)) and § 10.2(g)(5)(iii) of these
regulations. The regulations have been
changed as suggested.
Comment 44: Two commenters
recommended that the listing of
culturally unidentifiable human
remains and associated funerary objects
specify whether they are: (1) Those for
which cultural affiliation could be
determined but that the appropriate
Indian group is not federally-recognized
as an Indian tribe; (2) those that
represent an identifiable earlier group,
but for which no present-day Indian
tribe has been identified by the museum
or Federal agency; and (3) those for
which the museum or Federal agency
believes that evidence is insufficient to
identify an earlier group. Another
commenter specifically recommended
that these categories should not be used.
Our Response: The suggested
categories of culturally unidentifiable
human remains are derived from the
Review Committee’s 2000
recommendations (65 FR 36463).
However, the Review Committee
recommendations did not make any
distinction regarding disposition of any
of the three categories. The three
categories were not used in the
proposed rule and no comments were
received recommending different
dispositions on that basis.
Comment 45: Two commenters
recommended that the inventory or
notice of inventory completion include
a ‘‘record of origin’’ or ‘‘basis of
reasoning’’ for determining that human
remains are Native American and
culturally unidentifiable.
Our Response: The contents of the
inventory (10.9(d)) and notice of
inventory completion (43 CFR 10.9(e))
apply only to human remains already
determined to be ‘‘Native American’’
under 43 CFR 10.2(d)(1) and the Act.
The inventory includes a summary of
the evidence used to determine cultural
affiliation. By definition in 43 CFR
10.2(e)(2), remains for which no lineal
descendant or culturally affiliated
Indian tribe or Native Hawaiian
organization has been identified through
the inventory process are considered
culturally unidentifiable and, thus, do
not require a further basis of reasoning
when included on the notice of
inventory completion as culturally
unidentifiable.
Section 10.9(e)(5) Additional
Documentation
Section 10.9(e)(5) directs museums or
Federal agencies to supply additional
available documentation upon the
request of an Indian tribe or Native
Hawaiian organization. Additional text
was proposed for inclusion in

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§ 10.9(e)(5)(ii) to clarify that such
documentation when supplied by a
Federal agency or to a Federal agency
shall be considered a public record
subject to disclosure except when
exempted under applicable law, such as
the Freedom of Information Act and the
Privacy Act. Further, as required by
section 5(b)(2) of the Act (25 U.S.C.
3003(b)(2)), neither a request for such
documentation nor any provisions of
the regulations shall be construed as
authorizing the initiation of new
scientific studies of such human
remains and associated funerary objects
or other means of acquiring or
preserving additional scientific
information from such remains and
objects.
Comment 46: Six commenters
recommended deleting § 10.9(e)(5)(A)
and (e)(5)(B) on the grounds that they
create a seemingly impossible
conundrum, would severely hinder the
scientific study of ancient remains, and
are ‘‘an obvious attempt to end-run
Congressional intent and a Federal court
ruling in the long-fought Kennewick
Man case.’’ One commenter
recommended including language
confirming that ‘‘studies or other means
of acquiring or preserving information
are not prohibited, but NAGPRA cannot
be used as the authorization for them’’
or ‘‘additional study may be authorized,
requested, or otherwise developed as
part of the consultation and affiliation
process.’’ One commenter recommended
adding a new paragraph to read as
follows: ‘‘In consultation with the tribes
identified in § 10.11(b)(2), the museum
or Federal agency may undertake
additional documentation of human
remains and associated funerary objects
prior to their transfer under § 10.11(c).
This documentation shall be completed
within two years of an offer to transfer
culturally unidentifiable human
remains unless the consulting tribes
agree that additional time (beyond two
years) is needed.’’ Eleven commenters
recommended including language
specifying that ‘‘culturally
unidentifiable human remains that have
not yet been repatriated should be
treated with great respect and should
not be subject to any further scientific
research or used for teaching purposes.’’
One commenter recommended that
museums and Federal agencies should
upgrade their testing to include total
DNA, not just patrilineal DNA.
Our Response: The language in this
section is drawn directly from the Act
and thus clearly represents
Congressional intent.
Comment 47: Fifteen commenters
generally supported this section. One
commenter requested clarification as to

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whether a museum or Federal agency is
required to provide additional
documentation upon request of an
Indian group that is not federallyrecognized.
Our Response: The Act stipulates that
a museum or Federal agency must
supply additional available
documentation upon request by an
Indian tribe or Native Hawaiian
organization (25 U.S.C. 3003(b)(2)). This
requirement does not apply to requests
from an Indian group that is not
federally-recognized.
A museum or Federal agency may be
required to supply such documentation
under other applicable law and is
encouraged to voluntarily do so if not
otherwise required.
Comment 48: Nine commenters
recommended including language that
this section is not meant to preclude the
withholding from the public of
information that is specifically
exempted from disclosure under
applicable law.
Our Response: The drafters have
added language to clarify that some
information may be exempt from
disclosure under applicable law, such as
the Freedom of Information Act (5
U.S.C. 552), Privacy Act (5 U.S.C. 552a),
Archaeological Resources Protection Act
(16 U.S.C. 470hh), and National Historic
Preservation Act (16 U.S.C. 470w–3),
and any other legal authority exempting
such information from public
disclosure.
Section 10.9(e)(6) Removing Retention
Requirement
Section 10.9(e)(6) is rewritten to
remove the last three sentences that
required a museum or Federal agency to
retain possession of culturally
unidentifiable human remains pending
promulgation of § 10.11.
Comment 49: Three commenters
recommended deleting the phrase ‘‘with
or without associated funerary objects’’
from § 10.9(e)(6).
Our Response: The phrase occurs
twice in this paragraph. The first
sentence refers to associated funerary
objects that are in the possession or
control of a museum or Federal agency.
The last sentence refers to items that are
subject to disposition under § 10.11. The
phrase ‘‘with or without associated
funerary objects’’ is used throughout the
regulations to indicate that disposition
of such items, though encouraged, is not
required. Usage of the term in the last
sentence of this section is thus
appropriate. The phrase ‘‘with or
without’’ has been replaced with ‘‘and’’
in the first sentence to make it clear that
associated funerary objects must be
included in the inventory of culturally

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unidentifiable human remains provided
to the Manager, National NAGPRA
Program.
Comment 50: One commenter
recommended revising the text in
§ 10.9(e)(6) to require a museum or
Federal agency to provide the listing of
culturally unidentifiable human
remains in its possession or control to
both the Manager, National NAGPRA
Program and the Departmental
Consulting Archeologist.
Our Response: A separate program to
administer some of the Secretary of the
Interior’s responsibilities to implement
the Act was established in 2000. The
Departmental Consulting Archeologist is
no longer responsible for those duties,
as reflected in a technical amendment to
the regulations published in the Federal
Register on September 30, 2005 (70 FR
57177).
Comment 51: One commenter
recommended that the inventory of
culturally unidentifiable human
remains provided to the Manager,
National NAGPRA Program and the
Review Committee pursuant to
§ 10.9(e)(6) also be made available to all
interested parties. One commenter
considered the Review Committee’s
publicly accessible database to provide
sufficient notice to all Indian tribes to
determine their interest in submitting a
claim.
Our Response: Current regulations
require museums and Federal agencies
to provide a listing of all culturally
unidentifiable human remains and
associated funerary objects to the
manager, National NAGPRA Program,
who will make this information
available to the Review Committee. The
Culturally Unidentifiable Native
American Human Remains Database is
publicly posted at http://64.241.25.6/
CUI/index.cfm. Although museums and
Federal agencies are required to consult
with Indian tribes and Native Hawaiian
organizations in preparing the list, the
Database is the primary means by which
lineal descendants, Indian tribes, and
Native Hawaiian organizations learn
that a museum or Federal agency has
determined particular human remains to
be culturally unidentifiable.
Comment 52: One commenter
recommended clarifying whether the
requirement at § 10.9(e)(2)(v) that
notices of inventory completion must
describe human remains, with or
without associated funerary objects, that
are culturally unidentifiable applies
only after promulgation of the final rule.
Our Response: Current regulations
require publication of a notice of
inventory completion prior to the
repatriation of culturally affiliated
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objects (43 CFR 10.9(e)(2)). The
Secretary has also required publication
of a notice of inventory completion
prior to the disposition of culturally
unidentifiable human remains, with or
without associated funerary objects. The
proposed text formalizes as regulation
the administrative notice requirement
for culturally unidentifiable human
remains, with or without associated
funerary objects. This rule will have no
effect on museums and Federal agencies
that previously published notices for
disposition of culturally unidentifiable
human remains, with or without
associated funerary objects, pursuant to
a recommendation from the Secretary.

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Section 10.9

Other General Comments

Comment 53: Two commenters stated
that the proposed rule puts museums in
the position of determining whether
human remains and associated funerary
objects are ‘‘Native American.’’
Our Response: Under the Act,
museums and Federal agencies already
have the role and responsibility of
determining what constitutes ‘‘Native
American’’ cultural items in their
possession or control. While the statute
contemplates consultation on this
determination and other topics related
to cultural items, the final
determination is the museum or Federal
agency’s alone. Challenges to such
determinations may be raised as
disputes before the Review Committee
or litigated in a U.S. District Court.
Comment 54: Two commenters
requested clarification as to who is
responsible for determining the
geographic or cultural affiliation of
Native American human remains and
associated funerary objects.
Our Response: The statute (25 U.S.C.
3003(a)) and current regulations (43 CFR
10.9(a)) are clear that each museum or
Federal agency that has possession or
control over holdings or collections of
human remains and associated funerary
objects must compile an inventory of
such objects, and, to the fullest extent
possible based on information possessed
by the museum or Federal agency, must
identify the geographical and cultural
affiliation of each item. While these
decisions must be made in consultation
with Indian tribes and Native Hawaiian
organizations, the museum or Federal
agency is responsible for identifying the
geographical and cultural affiliation of
each item.
Comment 55: One commenter
recommended that current inventories
of culturally unidentifiable human
remains be reevaluated in light of U.S.
v. Bonnichsen (357 F.3d 962 (9th Cir.
2004)).

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Our Response: The proposed rule
does not change the definition of
‘‘Native American’’ or ‘‘human remains.’’
To come within the scope of the Act, a
Federal agency or museum must make
a threshold determination that the
culturally unidentifiable remains or
funerary objects are Native American
before they may include culturally
unidentifiable human remains or
funerary objects with which they are
associated in the inventories that are
submitted to the Review Committee
pursuant to § 10.9(d)(2).
Comment 56: One commenter
recommended that the regulations
reaffirm that Federal agencies, like
museums, must comply with the
inventory, consultation, and repatriation
requirements of the Act.
Our Response: Like museums, Federal
agencies must comply with the
summary, inventory, consultation,
notice, and repatriation process of the
Act and the regulations.
Comment 57: Seven commenters
requested a clear and explicit
explanation of how the proposed rule
takes into account the potential interests
of the public in scientific research and
education.
Our Response: The issue of scientific
research is specifically addressed by
Congress. Section 5(b)(2) of the Act
states that ‘‘[Documentation] does not
mean, and this Act shall not be
construed to be an authorization for the
initiation of new scientific studies of
such remains and associated funerary
objects or other means of acquiring or
preserving additional scientific
information from such remains and
objects.’’ The rule repeats this language
at § 10.9(5)(ii).
Comment 58: Eight comments
recommended that Indian tribes and
Native Hawaiian organizations should
have the primary role in determining
whether human remains are ‘‘culturally
unidentifiable.’’
Our Response: Museum and Federal
agency officials, in consultation with
Indian tribes and Native Hawaiian
organizations, are required to determine
the cultural affiliation of all Native
American human remains and
associated funerary objects in their
possession or control (43 CFR 10.9).
Section 10.11 Disposition of Culturally
Unidentifiable Human Remains
This new section fulfills the
Secretary’s responsibility to promulgate
regulations under sections 8(c)(5) and
13 of the Act (25 U.S.C. 3006(c)(5) and
3011)) and 25 U.S.C. 9 regarding the
process for the disposition of culturally
unidentifiable human remains. The
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this section after full and careful
consideration of the Review
Committee’s recommendations and
other relevant legislation and policy.
Comment 59: Thirty-two commenters
generally supported this section.
Twenty-four commenters generally
opposed this section. One commenter
recommended retaining the term
‘‘disposition’’ in the title of this section.
Our Response: The term has been
retained.
Comment 60: One commenter
recommended removing any timelines
or deadlines from this section.
Our Response: The proposed rule
includes only two deadlines. Section
10.11(b)(1) requires that the museum or
Federal agency official initiate
consultation within ninety days of
receiving a request from an Indian tribe
or Native Hawaiian organization to
transfer control of culturally
unidentifiable human remains or, absent
such a request, before making any offer
to transfer control of culturally
unidentifiable human remains. Section
10.11(d)(2) requires the manager of the
National NAGPRA Program to update
and make accessible the Review
Committee’s inventory of culturally
unidentifiable human remains within 30
days of publishing a notice of inventory
completion for culturally unidentifiable
human remains. Both deadlines seem
reasonable and necessary for the
effective implementation of this section.
Comment 61: The preamble to the
proposed rule specifically requested
comments regarding the meaning of the
term ‘‘cultural relationship’’ which is
used in Section 3 of the Act (25 U.S.C.
3002) as a basis for the disposition of
Native American human remains,
funerary objects, sacred objects or
objects of cultural patrimony excavated
or removed from Federal or tribal land
after 1990 (25 U.S.C. 3002(a)(2)(C)(2)),
and was included in the proposed rule
as a basis for consultation (43 CFR
10.11(b)) and disposition (43 CFR
10.11(c)) of culturally unidentifiable
human remains. Only four commenters
offered specific recommendations on
how the term should be defined. One
proposed a definition that is
indistinguishable from that of cultural
affiliation—‘‘a relationship that exists
between federally-recognized tribes and
earlier Native American groups with
which those federally-recognized tribes
have a relationship of shared group
identity.’’
Our Response: As a matter of
regulatory drafting, different terms
should not be accorded the same
meaning when this can be avoided.
Comment 62: Three other commenters
recognized that from its context in

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section 3 of the Act the term ‘‘cultural
relationship’’ connotes a weaker
connection than ‘‘cultural affiliation,’’
but differed on how the former
connection should be proved. Two
commenters recommended that the
same types of evidence applicable to
showing cultural affiliation—
‘‘geographical, kinship, biological,
archeological, anthropological,
linguistic, folkloric, oral traditional,
historical, or other relevant information
or expert opinion’’ [25 U.S.C.
3005(a)(4)]—should also be used to
determine cultural relationship, but at
some standard less than the
preponderance of the evidence. Another
commenter specified additional
evidence that should be considered in
determining cultural relationship,
including habitation, tribal history,
migration and creation stories, and
evidence from tribal elders.
Our Response: The drafters note that
all of the specified types of evidence for
‘‘cultural relationship’’ are already
subsumed under the broader categories
identified in the Act for ‘‘cultural
affiliation.’’
Comment 63: Three commenters
generally supported using ‘‘cultural
relationship’’ as a basis for disposition of
culturally unidentifiable human
remains. Seven commenters
recommended that ‘‘cultural
relationship’’ be defined prior to
finalization of the rule. Four
commenters recommended finalizing
the rule with a section reserved to
define ‘‘cultural relationship’’ at a later
date. One commenter recommended
that the Review Committee be tasked
with developing a definition of ‘‘cultural
relationship.’’ Thirteen commenters
recommended not defining ‘‘cultural
relationship’’ by regulation, instead
allowing museums, Federal agencies,
Indian tribes, and Native Hawaiian
organizations to interpret the term on a
case-by-case basis. Nineteen
commenters recommended removing
‘‘cultural relationship’’ from the priority
structure entirely.
Our Response: The diversity of
opinion regarding the meaning of
‘‘cultural relationship’’ convinced the
drafters to remove it as a required
criterion for consultation and
disposition of culturally unidentifiable
human remains in § 10.11(b) and
§ 10.11(c).
Section 10.11(a) General Intent
Paragraph (a) states the general intent
of § 10.11.
Comment 64: One commenter
recommended it be made explicit that
the rule only applies to human remains
determined to be ‘‘Native American.’’

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Our Response: Section 10.11(a) has
been changed to read: ‘‘This section
implements section 8(c)(5) of the Act
(25 U.S.C. 3006(c)(5)) and applies to
human remains previously determined
to be Native American pursuant to
§ 10.9, but for which no lineal
descendant or culturally affiliated
Indian tribe or Native Hawaiian
organization has been identified.’’
Section 10.11(b) Consultation
Paragraph (b) establishes procedures
for consultation regarding the
disposition of culturally unidentifiable
human remains.
Comment 65: Six commenters
recommended making it very clear that
the appropriate disposition of culturally
unidentifiable human remains can only
occur within the framework of
consultation and collaboration.
Our Response: Section 10.11(b) is
intended to provide such a framework.
Comment 66: Six commenters were
concerned that the initial listing of
culturally unidentifiable human
remains and associated funerary objects
was completed without consultation.
Our Response: Inventory preparation
under § 10.9 required consultation with
lineal descendants and Indian tribal
officials and traditional religious leaders
(1) from whose tribal lands the human
remains and associated funerary objects
originated; (2) that are, or are likely to
be, culturally affiliated with human
remains and associated funerary objects;
and (3) from whose aboriginal lands the
human remains and associated funerary
objects originated. Failure to consult
with all of the above-referenced parties
constitutes a failure to comply with the
requirements of the Act and may result
in assessment of a civil penalty under
§ 10.12(b)(1)(vii). It is anticipated that
consultation as required in § 10.11(b)
will result in determinations that some
human remains and associated funerary
objects previously determined to be
culturally unidentifiable are actually
culturally affiliated with an Indian tribe
or Native Hawaiian organization.
Comment 67: Four commenters
considered the consultation
requirements at § 10.11(b) to be
impractical, burdensome, likely to cause
irreparable damage to the strong, highly
productive collaborative relationships
between Indians and the scientific
community, and likely to lead to rushed
decisions regarding disposition of
culturally unidentifiable human
remains. Six commenters recommended
including additional guidance on how
to conduct meaningful consultation.
One commenter requested clear
guidelines on exactly when a particular
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conclusion. Five commenters
recommended including a definition of
‘‘consultation’’ consistent with House
Report 101–877.
Our Response: Consultation is a
critical component of implementing this
section and the Act as a whole. The
committee report accompanying the Act
(House Report 101–877 (October 15,
1990)) defined consultation as ‘‘a
process involving the open discussion
and joint deliberations with respect to
potential issues, changes, or actions by
all interested parties.’’ Consultation is
not defined in the Act itself. These
regulations require museums and
Federal agencies to initiate consultation
within ninety days of receipt of a
request from an Indian tribe or Native
Hawaiian organization, or before any
offer to transfer control of culturally
unidentifiable human remains and
associated funerary objects. Required
consultation would generally conclude
once control of the culturally
unidentifiable human remains, with or
without associated funerary objects, has
been transferred to the Indian tribe or
Native Hawaiian organization.
Section 10.11(b)(1) When To Consult
Section 10.11(b)(1) identifies when
museums and Federal agencies must
initiate consultation regarding the
disposition of culturally unidentifiable
human remains and associated funerary
objects.
Comment 68: Two commenters
recommended that § 10.11(b)(1) provide
clear guidelines for the circumstances
under which a museum or Federal
agency must initiate consultation. One
commenter recommended that a
museum or Federal agency’s obligation
to initiate consultation be triggered only
by receipt of a claim. One commenter
asked whether a Federal agency should
invite consultation if no claim is
received from a federally-recognized
Indian tribe or Native Hawaiian
organization. One commenter
recommended that there be clear
guidelines on exactly when the
consultation process may conclude.
Our Response: This paragraph
requires a museum or Federal agency
official to initiate consultation regarding
the disposition of culturally
unidentifiable human remains and
associated funerary objects in two
separate instances. Consultation must be
initiated within ninety days of receipt of
a request from an Indian tribe or Native
Hawaiian organization to transfer
control. Absent such a request,
consultation must also be initiated
before the museum or Federal agency
makes any offer to transfer control.
Required consultation would generally

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conclude once the control and
possession of the culturally
unidentifiable human remains, with or
without associated funerary objects, has
been transferred to the Indian tribe or
Native Hawaiian organization.
Section 10.11(b)(2) Who To Consult
Section 10.11(b)(2) identifies who
must be consulted regarding the
disposition of culturally unidentifiable
human remains and associated funerary
objects.
Comment 69: Three commenters
recommended that consultation not be
required with all of the Indian tribes
and Native Hawaiian organizations
specified at § 10.11(b)(2), in part
because Indian tribes and Native
Hawaiian organizations will be
inundated with requests to consult.
Our Response: The drafters have
removed the requirement to consult
with Indian tribes and Native Hawaiian
organizations with a cultural
relationship to the region from which
the human remains and associated
funerary objects were removed (43 CFR
10.11(b)(2)(iii)). Museums and Federal
agencies were already required to
consult with Indian tribes and Native
Hawaiian organizations from whose
tribal lands or aboriginal lands the
human remains and associated funerary
objects were removed in preparing their
initial inventories (43 CFR 10.9(b)).
Comment 70: One commenter
recommended that the Department
compile a list of Native Hawaiian
organizations that should be consulted
regarding disposition of culturally
unidentifiable human remains.
Our Response: Contact information is
available for some Native Hawaiian
organizations from two sources within
the Department of the Interior. The
National Park Service, National
NAGPRA Program maintains the Native
American Consultation Database
(http://home.nps.gov/nacd/). The
Department of the Interior, Office of
Hawaiian Relations maintains the
Native Hawaiian Organization List
(http://www.doi.gov/ohr/). Other
sources should also be considered.
Comment 71: One commenter
considered inclusion of treaties, acts of
Congress, and Executive Orders at
§ 10.11(b)(2)(ii), along with final
determinations of the Indian Claims
Commission and the U.S. Court of
Claims to be a fair and equitable way of
identifying aboriginal lands. Three
commenters recommended deleting
treaties, acts of Congress, and Executive
Orders as a basis for determining
aboriginal lands. One commenter
considered the cited documents too
limiting, and recommended adding the

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‘‘testimony of experts.’’ One commenter
requested clarification as to who
determines whether or not a specific
tribe was the aboriginal occupant of an
area.
Our Response: While Section
3(a)(2)(C) of the Act (25 U.S.C.
3002(a)(2)(C)) identifies only a final
judgment of the Indian Claims
Commission or United States Court of
Claims as the basis for determining
aboriginal lands, the drafters intend to
include the full range of relevant and
authoritative governmental
determinations in this section to
provide additional evidence relating to
an Indian tribe or Native Hawaiian
Organization (or, possibly, an Indian
group that is not federally-recognized)
with the closest connection to the
culturally unidentifiable human
remains. These include final judgments
of the Indian Claims Commission and
the United States Court of Claims, as
well as treaties, Acts of Congress, or
Executive Orders. Treaties signed before
the establishment of the United States
between the various colonial
governments and Indian tribes may be
used to identify areas aboriginally
occupied by Indian tribes. Maps of the
territory ceded under United States
treaties were originally published in the
18th Annual Report of the Bureau of
American Ethnology to the Secretary of
the Smithsonian Institution, 1896–1897
(Government Printing Office, 1899) and
are available online at http://
memory.loc.gov/ammem/amlaw/lwssilc.html. Judgments of the Indian Claims
Commission are available at http://
digital.library.okstate.edu/icc/
index.html. The drafters note that
pursuant to provisions of the Indian
Claims Commission Act, compromises
(settlements) have the same effect of
final judgments of the Indian Claims
Commission ((605 Stat. 1060, 25 U.S.C.
70a et seq.).
Comment 72: Two commenters
recommended including a mechanism
at § 10.11(b)(2) requiring notification of
Indian groups that are not federallyrecognized or foreign based groups that
may have a shared group identity with
culturally unidentifiable human
remains.
Our Response: The Act and
regulations require museums and
Federal agencies to consult with lineal
descendants, Indian tribes, and Native
Hawaiian organizations. Museum and
Federal agencies may consult or provide
notification to foreign based groups or
Indian groups that are not federallyrecognized as well.
Comment 73: One commenter
considered the § 10.11(b)(2)(iii)
requirement to consult with Indian

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tribes and Native Hawaiian
organizations with a cultural
relationship to the region from which
culturally unidentifiable human
remains and associated funerary objects
were removed to be reasonable and
appropriate. Three commenters
recommended deleting the requirement.
Two commenters recommended
defining the term ‘‘region.’’ One
commenter recommended clarifying the
term ‘‘lacking geographic affiliation.’’
One commenter recommended
including provisions to incorporate
study results, particularly of the age of
the human remains, and the results of
consultation.
Our Response: The diversity of
opinion regarding the meaning of
‘‘cultural relationship’’ convinced the
drafters to remove it as a required
criteria for consultation regarding the
disposition of culturally unidentifiable
human remains in § 10.11(b)(2)(iii).
Comment 74: Five commenters
recommended that Indians must not be
viewed as simply one voice among
many, but as the primary voice in
determining the disposition of
culturally unidentifiable human
remains.
Our Response: These regulations
require museum and Federal agency
officials to make certain decisions
regarding the disposition of culturally
unidentifiable human remains. While
the regulations require that these
decisions are made in consultation with
Indian tribes and Native Hawaiian
organizations, the responsibility for
making the decision remains with the
museum or Federal agency official.
Indian tribes and Native Hawaiian
organizations assume sole responsibility
for disposition once the museum or
Federal agency transfers control of
culturally unidentifiable human
remains.
Comment 75: Two commenters
requested clarification as to whether the
requirements of § 10.11(b)(1) and (b)(2)
were independent of each other.
Our Response: The two sections are
related. Section 10.11(b)(1) specifies
when consultation must begin: either
within 90 days of receipt of a request to
transfer control or, absent such a
request, before any offer to transfer
control. Section 10.11(b)(2) specifies
who must be consulted in either
situation.
Section 10.11(b)(3) Information
Provided
Section 10.11(b)(3) outlines the
information that museum or Federal
agency officials must provide to all
consulted Indian tribes and Native
Hawaiian organizations.

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Comment 76: One commenter
recommended revising § 10.11(b)(3) to
clarify that the specified information
must be provided to all Indian tribes
and Native Hawaiian organizations with
which the museum or Federal agency is
consulting ‘‘or should have consulted.’’
Our Response: Refusing to provide the
specified information to one of the
Indian tribes identified in § 10.11(b)(2)
would constitute a failure to comply
under § 10.12(b)(vii).
Comment 77: Two commenters
suggested that § 10.11(b)(3) require
museums and Federal agencies to send
information as part of consultation to
Indian groups that are not federallyrecognized. Two commenters
questioned the legal basis for requiring
a museum or Federal agency to provide
a list of Indian groups that are not
federally-recognized that are known to
have a relationship of shared group
identity with the particular human
remains and associated funerary objects.
Our Response: In the two sections of
the Act that impose mandatory
priorities for control or disposition of
human remains (25 U.S.C. 3002 and
3005), Congress limited the recipients to
federally-recognized Indian tribes (in
addition to lineal descendants and
Native Hawaiian organizations) in
recognition of the government-togovernment relationship between such
tribes and the United States. In
expanding the possible recipients of
culturally unidentifiable human
remains, with or without associated
funerary objects, the Secretary followed
the lead of Congress both in assuring
that such cultural items went to the
Indian group that had the closest
cultural connection to the items, even if
that group is not federally-recognized,
and in maintaining the priority position
of the government-to-government
relationship, by not making such a
disposition mandatory. In keeping with
the voluntary nature of such
disposition, consultation with Indian
groups that are not federally-recognized
is at the discretion of the museum or
Federal agency.
Comment 78: One commenter
recommended that the Secretary
provide a list of Indian groups that are
not federally-recognized to facilitate the
consultation efforts of museums and
Federal agencies.
Our Response: Museums and Federal
agencies are not required to consult
with Indian groups that are not
federally-recognized. However, they
may wish to consult with Indian groups
that are not federally-recognized,
particularly if such groups are known to
have a relationship of shared group
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human remains and associated funerary
objects in the possession or control of
the museum or Federal agency. Section
10.11(b)(3)(ii) requires museums and
Federal agencies to provide consulted
Indian tribes and Native Hawaiian
organizations with a list of any Indian
groups that are not federally-recognized
and is known to have a relationship of
shared group identity with such human
remains and associated funerary objects
in order to facilitate consultation
regarding appropriate disposition. Thus,
the museum or Federal agency, and not
the Secretary, would possess the list of
such groups on a case by case basis.
Comment 79: One commenter
suggested that the Secretary require a
museum or Federal agency to state its
reasoning for consultation with an
Indian group that is not federallyrecognized.
Our Response: Because the
regulations do not require such
consultation, they do not require a
museum or Federal agency to provide
the basis for such consultation.
However, under § 10.11(b)(4)(iv), the
museum or Federal agency must request
the names and addresses of Indian
groups that are not federally-recognized
during consultation with relevant
Indian tribes or Native Hawaiian
organizations. An appropriate subject
for the consultation in the context of
such a request would be the reason why
the museum or Federal agency needs to
consult with those groups.
Comment 80: One commenter
suggested rewording § 10.11(b)(3)(ii) to
remove the passive voice and clarify
that the subject list is of the ‘‘Indian
groups that are not federally-recognized
that the museum or Federal agency
knows shares’’ a group identity with the
particular human remains and
associated funerary objects.
Our Response: The drafters agree that,
generally, any such knowledge would
be within the museum or Federal
agency, but prefer to leave the
requirement in the passive voice to
allow for other sources, such as the
general literature.
Comment 81: One commenter
requested clarification in
§ 10.11(b)(3)(ii) of what is a legitimate
Indian group that is not federallyrecognized and what makes such a
group ‘‘known.’’
Our Response: Consultation with
Indian groups that are not federallyrecognized is not required by the Act or
these regulations. Museums and Federal
agencies are required to provide
consulted Indian tribes and Native
Hawaiian organizations with a list of
any Indian groups that are not federallyrecognized that are known to have a

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relationship of shared group identity
with particular human remains and
associated funerary objects.
Determinations as to whether such a
relationship of shared group identity
exists may be done on a case-by-case
basis relying upon the types of evidence
outlined at § 10.14 of these regulations.
Section 10.11(b)(4) Information
Requested
Section 10.11(b)(4) outlines the
information that museum and Federal
agency officials must request from
consulted Indian tribes and Native
Hawaiian organizations.
Comment 82: One commenter was
concerned that § 10.11(b)(4)(iii) gives
Indian tribes and Native Hawaiian
organizations complete authority to
determine the criteria to be used in
identifying groups of human remains
and associated funerary objects for
consultation.
Our Response: Museum and Federal
agency officials are required to request
temporal and/or geographic criteria to
be used to identify groups of human
remains and associated funerary objects
for consultation. Additional criteria may
also be used to identify the focus of
consultation.
Comment 83: Two commenters were
concerned that § 10.11(b)(4)(v) gives
Indian tribes and Native Hawaiian
organizations authority to singlehandedly and unilaterally determine the
consultation schedule and process.
Our Response: Museum and Federal
agency officials are required to request
consultation schedules and process
preferences from Indian tribes and
Native Hawaiian organizations. The
consultation schedule and process that
is actually used will depend on other
factors as well.
Section 10.11(b)(5) Disposition
Proposals
Section 10.11(b)(5) directs museum
and Federal agency officials to seek to
develop a proposed disposition for
culturally unidentifiable human
remains and associated funerary objects
that is mutually agreeable to the parties
and consistent with this part.
Comment 84: Six commenters
recommended revising § 10.11(b)(5) to
require the museum or Federal agency
official to develop a proposed
disposition for culturally unidentifiable
human remains and associated funerary
objects that is mutually agreeable to the
parties specified in § 10.11(b)(2). One
commenter recommended that the
museum or Federal agency official
should consider proposed dispositions
developed by and mutually agreeable to
the parties specified in § 10.11(b)(2).

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One commenter recommended that this
paragraph address what would happen
if the parties do not agree on a proposed
disposition. One commenter
recommended that if no agreement is
reached, the museum or Federal agency
should be able to determine disposition
in good faith and be protected from
liability.
Our Response: This paragraph
strongly encourages museum and
Federal agency officials to seek to
develop proposed dispositions that are
mutually agreeable to the parties
specified in § 10.11(b)(2). It is
recognized that the interests of the
various parties may differ and that
obtaining a mutually agreeable proposal
is beyond the ability of any single party.
Comment 85: One commenter
recommended revising § 10.11(b)(5) to
clarify that disposition of funerary
objects associated with culturally
unidentifiable human remains is
advised but not required.
Our Response: Section 10.11(c)(5)
which has been renumbered as
§ 10.11(c)(4) clarifies that a museum or
Federal agency may transfer control of
funerary objects that are associated with
culturally unidentifiable human
remains and that the Secretary
recommends that museums and Federal
agencies engage in such transfers
whenever Federal or State law would
not otherwise preclude transfers.
Comment 86: One commenter
recommended revising § 10.11(b)(5) to
establish a basis for determining the
right of claim or strength of relationship
among the parties specified in
§ 10.11(b)(2).
Our Response: The priority of claim is
established by § 10.11(b)(2). A claim for
culturally unidentifiable human
remains made by an Indian tribe or
Native Hawaiian organization from
whose tribal land, at the time of the
excavation or removal, the human
remains were removed has a higher
priority than a claim made by an Indian
tribe that is recognized as aboriginally
occupying the area from which the
human remains were removed.
Comment 87: One commenter was
concerned that limiting agreement in
§ 10.11(b)(5) to only those parties
identified in § 10.11(b)(2) will vitiate the
careful consideration of evidence
required by the Act and leave the door
wide open to transfers of control to
groups with no significant relationship
to the human remains.
Our Response: Museum and Federal
agency officials are free to consult with
any party that may help inform the
development of a proposed disposition.
However, the parties identified in
§ 10.11(b)(2) must be consulted and the

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museum or Federal agency official
should, at a minimum seek to develop
a proposed disposition for culturally
unidentifiable human remains and
associated funerary objects that is
mutually agreeable to the parties.
Comment 88: One commenter
recommended revising § 10.11(b)(5) to
indicate that a museum or Federal
agency and involved Indian parties
should be free to reach any agreement
as to disposition that is permitted by all
applicable laws.
Our Response: Museum and Federal
agency officials may be bound by other
Federal, state, or local ordinances
regarding the disposition of culturally
unidentifiable human remains and
associated funerary objects in their
possession or control. Section
10.11(b)(5) stipulates that all such
agreements must be consistent with
these regulations at a minimum.
Section 10.11(b)(6) Determinations of
Lineal Descent or Cultural Affiliation
Section 10.11(b)(6) stipulates that the
notification and repatriation provisions
of §§ 10.9(e) and 10.10(b) apply if
human remains and associated funerary
objects previously determined to be
culturally unidentifiable are actually
culturally affiliated with an Indian tribe
or Native Hawaiian organization.
Comment 89: One commenter
recommended that the language in
§ 10.11(b)(6) be clarified to indicate that
the notification and repatriation
provisions would also apply if
consultation resulted in the
identification of a lineal descendant.
One commenter recommended
rephrasing the section for clarity.
Our Response: The text has been
revised with additional text indicating
that the notification and repatriation
provisions would apply if consultation
resulted in the identification of a lineal
descendant.
Comment 90: One commenter
objected to what he considered a
presumption in § 10.11(b)(6) that
skeletal materials that have not been
identified with a cultural group can
never be correctly identified.
Our Response: The drafters anticipate
that the consultation process will result
in decisions that human remains and
associated funerary objects previously
determined to be culturally
unidentifiable are actually culturally
affiliated with Indian tribes and Native
Hawaiian organizations. This
paragraphs makes it clear that the
notification and repatriation
requirements of § 10.9(e) and § 10.10(b)
apply when a determination of cultural
affiliation is made.

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Section 10.11(c)

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Disposition

Paragraph(c) establishes a priority
listing and procedures for the
disposition of culturally unidentifiable
human remains.
Comment 91: The preamble to the
proposed rule specifically requested
comments regarding the appropriateness
of using a priority structure in
determining the disposition of
culturally unidentifiable human
remains. The priority structure
proposed in § 10.11(c) was based on the
similar priority structure in section 3 of
the Act. Sixteen commenters generally
supported use of the proposed priority
structure. Nine commenters objected to
use of any priority structure based on
criteria other than lineal descent or
cultural affiliation.
Our Response: The Review Committee
is responsible for recommending
specific actions for developing a process
for disposition of culturally
unidentifiable human remains (25
U.S.C. 3006 (c)(5)). Since 1992, the
Review Committee has recommended
the disposition of specific culturally
unidentifiable human remains based on
their removal from the aboriginal land
of an Indian tribe, their shared group
identity with an Indian group that is not
federally-recognized, and reburial
pursuant to otherwise applicable state
burial law. The Review Committee’s
recommendations in these cases have
been reviewed by the Secretary of the
Interior and generally endorsed. Such
dispositions are clearly within the
Secretary’s authority under current
regulations. The proposed rule would
simply authorize museums and Federal
agencies to effect such dispositions to
Indian tribes and Native Hawaiian
organizations without direct reliance
upon the Secretary.
Comment 92: Three commenters
recommended that the ‘‘priority
structure’’ should not be the only factor
for determining the disposition of either
culturally affiliated or culturally
unidentifiable human remains, such as
agreements between Indian tribes
regarding disposition.
Our Response: Agreements between a
Federal agency or museum and
culturally affiliated Indian tribes or
Native Hawaiian organizations
regarding the disposition of, or control
over, Native American human remains,
funerary objects, sacred objects, or
objects of cultural patrimony are
specifically authorized by section
11(1)(B) of the Act (25 U.S.C.
3009(1)(B)). Agreements regarding the
return of culturally unidentifiable
human remains and associated funerary
objects to Indian tribes, Native Hawaiian

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organizations, or individuals are also
authorized by section 11(1)(A) of the
Act (25 U.S.C. 3009(1)(A)). The drafters
have added a new subsection at
§ 10.11(c)(2)(i) to facilitate such
voluntary dispositions.
Comment 93: One commenter urged
inclusion of guidelines clearly
specifying the level of effort that will be
required to determine if culturally
unidentifiable human remains fit the
proposed priority categories.
Our Response: Guidelines specifying
the level of effort necessary to determine
the applicability of these, or other
definitions within the regulations, are
already provided by the statute and
regulations. For instance,
determinations regarding the cultural
affiliation of human remains, or the lack
thereof, are to be made, to the extent
possible, based on information
possessed by a museum or Federal
agency (25 U.S.C. 3003(a)). New
scientific studies of such remains and
associated funerary objects, or other
means of acquiring or preserving
additional scientific information from
such remains and objects, are not
required by the statute (25 U.S.C.
3003(b)(2)).
Comment 94: One commenter urged
consideration of a single unified effort
to specifically identify and map tribal
and aboriginal lands.
Our Response: Maps of tribal land,
Indian Claims Commission decisions,
and treaty areas are currently posted at:
http://www.nps.gov/history/nagpra/.
Comment 95: Three commenters were
concerned that assigning disposition of
culturally unidentifiable human
remains to a particular culture group
might result in some skeletal remains
being transferred to a group to which
they do not belong, including some of
European, African, and Asian ancestry.
Our Response: All museums and
Federal agencies were required to
compile inventories of human remains
and associated funerary objects. Each
museum and Federal agency was
responsible for determining if the
human remains and associated funerary
objects were Native American in the
first instance. Human remains that were
not identified as Native American were
not to be included on the inventory.
Museums and Federal agencies that
wish to amend a previous decision may
do so pursuant to § 10.13(e).
Section 10.11(c)(1) Required Offers to
Transfer Control
Section 10.11(c)(1) requires a museum
or Federal agency to offer to transfer
control of culturally unidentifiable
human remains for which it cannot
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tribes or Native Hawaiian organizations
according to two priority categories.
Comment 96: One commenter
recommended that the ‘‘offer to transfer
control’’ referred to in § 10.11(c)(1) must
be developed in consultation with
Indian tribes and Native Hawaiian
organizations.
Our Response: Any offer to transfer
control must be developed in
consultation with the Indian tribes and
Native Hawaiian organizations
identified in § 10.11(b)(2).
Comment 97: Two commenters
recommended that museums and
Federal agencies should not be required
to initiate efforts to transfer control of
culturally unidentifiable human
remains absent a request from an Indian
tribe or Native Hawaiian organization
with the right to make such a claim.
Our Response: Under § 10.11(b)(1)(i),
a museum or Federal agency official
must initiate consultation regarding the
disposition of culturally unidentifiable
human remains and associated funerary
objects within 90 days of receipt of a
request from an Indian tribe or Native
Hawaiian organization to transfer
control of such items. Absent such a
request, the museum or Federal agency
official may voluntarily offer to transfer
control, in which case they must initiate
consultation prior to making such an
offer.
Comment 98: Nine commenters
supported the proposed provision in
§ 10.11(c)(1) requiring that a museum or
Federal agency offer to transfer
culturally unidentifiable human
remains to certain classes of Indian
tribes unless it can prove that it has the
right of possession to the remains.
Seven commenters generally opposed
the same provision, claiming that
museums and Federal agencies should
not have to prove that right to keep their
collections.
Our Response: The opportunity for a
museum or Federal agency to assert that
it has the right of possession to
culturally unidentifiable human
remains is consistent with the
provisions in § 10.15 of the regulations
concerning repatriation of culturally
affiliated human remains and the intent
of Congress to recognize such a right as
an exception to repatriation of human
remains under section 7 of the Act (25
U.S.C. 3003)). The Secretary believes
that it is appropriate to recognize that
right as an exception for these remains
as well.
Comment 99: One commenter
questioned the use of the term ‘‘right of
possession’’ with respect to human
remains, stating that one person cannot
own another person, alive or dead.

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Our Response: Although the use of
this term, as well as the term ‘‘culturally
unidentifiable’’ is sensitive, Congress
used both of these terms with specific
meanings and consequences in the Act,
so they must be used in the regulations
with respect to those same meanings
and consequences.
Comment 100: Eight commenters
stated that proving right of possession to
culturally unidentifiable human
remains would be ‘‘impossible’’ since
only a culturally affiliated Indian tribe
can grant consent.
Our Response: Under NAGPRA, ‘‘the
original acquisition of Native American
human remains and associated funerary
objects which were excavated,
exhumed, or otherwise obtained with
full knowledge and consent of the next
of kin or the official governing body of
the appropriate culturally affiliated
Indian tribe or Native Hawaiian
organization is deemed to give right of
possession to those remains’’ (25 U.S.C.
3001(13)). Further, ‘‘the governing body
of an Indian tribe or Native Hawaiian
organization [may] expressly relinquish
* * * control over any Native American
human remains’’ acquired pursuant to
the ownership provisions of the Act (25
U.S.C. 3002(e)). Thus, Congress has
defined the right of possession for these
cultural items, and the Secretary cannot
change that definition. The Secretary
does note, however, that the ‘‘full
knowledge and consent of the next of
kin’’ would bring freely donated organs
and other body parts within the right of
possession. Furthermore, the exception
listed at § 10.10(c)(3) applies to the
requirements of § 10.11(c)(1).
Comment 101: Four commenters
requested that the final rule be very
clear that the burden of proof for the
right of possession of culturally
unidentifiable human remains is on the
museum or Federal agency.
Our Response: The Secretary agrees
that the burden of proof is on the
museum or Federal agency, and that, as
the proposed and final rule states, if a
museum or Federal agency ‘‘is unable to
prove that it has right of possession’’, it
must offer to transfer the remains, with
or without associated funerary objects
(25 U.S.C. 3005(c)) upon receipt of a
request.
Comment 102: Three commenters
stated that a museum or Federal agency
should be presumed to have the legal
right of possession to its collection,
unless shown to be otherwise. The
commenters asserted that such a
presumption would be consistent with
the treatment of archaeological
resources as property of the United
States under the Archaeological
Resources Protection Act (ARPA) and

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with state laws relating to property
rights and private ownership of human
remains and artifacts taken from private
property. Culturally unidentifiable
human remains should be retained by
museums and Federal agencies in the
public trust.
Our Response: Congress specifically
chose to change the ownership
presumption in ARPA when it enacted
NAGPRA, as evidenced by the
requirement for a museum or Federal
agency to prove that it has the right of
possession to culturally affiliated
human remains under section 7 of
NAGPRA. With respect to state property
laws and presumptions of ownership,
NAGPRA is Federal law, and, as such,
under the Supremacy Clause of the
Constitution (Art. VI, cl. 2; Lorillard
Tobacco Co. v. Reilly, 533 US 525
(2001)) would preempt any state law on
the same subject matter. This is
especially true in Indian affairs, where
the United States has plenary and
exclusive power (Art. I, Sec. 8, cl. 3;
Worcester v. Georgia, 31 US 515, 6 Pet
515 (1832)).
Comment 103: Two commenters
recommended excluding human
anatomical collections used by medical
schools for training.
Our Response: Though not excluded
from the inventory provisions, medical
schools that receive Federal funds
would not be required to repatriate
Native American human remains
obtained with the voluntary consent of
an individual or group that had
authority of alienation.
Comment 104: Six commenters
supported the provision at
§ 10.11(c)(1)(i) requiring museums and
Federal agencies to offer to transfer
control of culturally unidentifiable
human remains to the Indian tribe or
Native Hawaiian organization from
whose tribal land, at the time of
excavation or removal, the human
remains were removed. One commenter
objected to the provision since it may
force a museum or Federal agency to
transfer human remains to an Indian
tribe or Native Hawaiian organization
with which they are not culturally
affiliated.
Our Response: Disposition of human
remains, funerary objects, sacred
objects, and objects of cultural
patrimony to Indian tribes based on
criteria other than cultural affiliation
was clearly anticipated by Congress.
Section 3(a)(2)(A) of the Act (25 U.S.C.
3002(a)(2)(A)), which was used as the
model for the proposed provision,
specifically authorizes disposition of
human remains, funerary objects, sacred
objects, or objects of cultural patrimony
excavated or discovered on tribal lands

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after November 16, 1990 to the Indian
tribe or Native Hawaiian organization in
control of that tribal land. Significantly,
under section 3 of the Act, ownership or
control based on tribal land is given a
higher priority order than cultural
affiliation. The drafters consider
disposition of culturally unidentifiable
human remains to the Indian tribe or
Native Hawaiian organization from
whose tribal land, at the time of
excavation or removal, the human
remains were removed, to be reasonable
and appropriate.
Comment 105: One commenter
recommended revising § 10.11(c)(1)(i) to
require an offer to transfer control of
culturally unidentifiable human
remains to the Indian tribe or Native
Hawaiian organization on whose tribal
land the remains were originally buried,
and not just to the Indian tribe or Native
Hawaiian organization from whose
tribal land the remains were excavated.
Our Response: The concept of tribal
land as used in these regulations applies
to all lands which are currently within
the exterior boundary of any Indian
reservation, comprise a dependent
Indian community, or are administered
for the benefit of Native Hawaiians
pursuant to the Hawaiian Homes
Commission Act (25 U.S.C. 3001 (15)).
Human remains that were buried on
tribal land which was subsequently
transferred to another party are likely to
be of relatively recent age, making it
very likely that a lineal descendant or
culturally affiliated Indian tribe or
Native Hawaiian organization can be
determined.
Comment 106: One commenter
requested clarification of what
constitutes ‘‘tribal lands’’ in Oklahoma.
Our Response: ‘‘Tribal lands’’ are
defined at § 10.2(f)(2) and include all
lands which (1) 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; (2)
comprise dependent Indian
communities; or (3) are administered for
the benefit of Native Hawaiians
pursuant to the Hawaiian Homes
Commission Act. Given the diversity of
Indian land ownership, the
determination of whether a particular
parcel or area is ‘‘tribal lands’’ for
purposes of this definition is made on
a case-by-case basis, consistent with
case law developed by the Supreme
Court and other Federal courts, for
example, Alaska v. Native Village of
Venetie Tribal Government, 522 U.S.
520 (1998). That determination is
especially difficult in certain parts of
the United States, such as Oklahoma
and California.

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Comment 107: Five commenters
supported the provision at
§ 10.11(c)(1)(ii) requiring museums and
Federal agencies to offer to transfer
control of culturally unidentifiable
human remains to the Indian tribe or
tribes from whose aboriginal land the
human remains were removed. Two
commenters opposed such returns that
are not based on cultural affiliation.
Our Response: Disposition of human
remains, funerary objects, sacred
objects, and objects of cultural
patrimony to Indian tribes based on
criteria other than cultural affiliation
was clearly anticipated by Congress.
Section 3(a)(2)(C) of the Act (25 U.S.C.
3002(a)(2)(C)), which was used as the
model for the proposed provision,
specifically authorizes disposition of
human remains, funerary objects, sacred
objects, or objects of cultural patrimony
excavated or discovered on aboriginal
lands after November 16, 1990 to the
Indian tribe that aboriginally occupied
the area in which the cultural items
were discovered. Consistent with the
terms of the statute, the drafters
consider disposition of culturally
unidentifiable human remains to the
Indian tribe or tribes that are recognized
as aboriginally occupying the area from
which the human remains were
recovered to be reasonable and
appropriate given that often the
designation of culturally unidentifiable
is due to a lack of information
occasioned by less than optimal
collection practices.
Comment 108: One commenter
recommended changing the phrase
‘‘Indian tribe or tribes that are
recognized * * *’’ in § 10.11(c)(1)(ii) to
‘‘Indian tribe that is recognized * * *’’
One commenter requested clarification
as to whether this provision would
apply to an Indian group that is not
federally-recognized.
Our Response: The drafters included
both the singular and plural forms of the
term ‘‘Indian tribe’’ to acknowledge that
many United States treaties were signed
by representatives of more than one
Indian tribe. Regardless, when
interpreting a statute words importing
the singular include and apply to
several persons, parties, or things (1
U.S.C. 1). When Federal agencies
publish proposed and final rules in the
Federal Register that amend existing
regulations, the agency only publishes
the portion of the regulations that would
change. Unless the Federal agency states
otherwise, all portions of existing
regulations that are not proposed for
change in the notice of proposed
rulemaking remain the same, and still
apply. Thus, when this final rule refers
to ‘‘Indian tribes’’, the drafters are using

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the existing definition of that term, for
which no change was proposed. That
definition, at § 10.2(b)(2), only refers to
federally-recognized Indian tribes. The
drafters of the final rule were very
careful to use the term ‘‘Indian group
that is not federally-recognized’’ when
those groups were included in a
provision to try to keep the distinction
clear.
Comment 109: One commenter
objected to authorizing the use of more
than a final judgment of the Indian
Claims Commission or United States
Court of Claims to determine aboriginal
land in § 10.11 (c)(1)(ii).
Our Response: While section 3
(a)(2)(C) of the Act (25 U.S.C. 3002
(a)(2)(C)) identifies only a final
judgment of the Indian Claims
Commission or United States Court of
Claims as the basis for determining
aboriginal lands, the drafters intend to
include the full range of relevant and
authoritative governmental
determinations in this section. To
provide additional evidence relating to
an Indian tribe or Native Hawaiian
Organization (or, possibly, an Indian
group that is not federally-recognized)
with the closest connection to the
culturally unidentifiable human
remains. These include final judgments
of the Indian Claims Commission and
the United States Court of Claims, as
well as treaties, Acts of Congress, or
Executive Orders. Treaties signed before
the establishment of the United States
between the various colonial
governments and Indian tribes may be
used to identify areas aboriginally
occupied by Indian tribes based on the
acknowledgement of the validity of
these treaties by the United States. Maps
of the territory ceded under United
States treaties were originally published
in the 18th Annual Report of the Bureau
of American Ethnology to the Secretary
of the Smithsonian Institution, 1896–
1897 (Government Printing Office, 1899)
and are available online at http://
memory.loc.gov/ammem/amlaw/lwssilc.html. Judgments of the Indian Claims
Commission are available at http://
digital.library.okstate.edu/icc/
index.html. The drafters note that
pursuant to provisions of the Indian
Claims Commission Act, settlements
have the same effect as final judgments
of the Indian Claims Commission (605
Stat. 1060, 25 U.S.C. 70a et seq.).
Comment 110: One commenter
recommended provisions be included to
resolve conflicts over dispositions based
on aboriginal lands pursuant to
§ 10.11(c)(1)(ii).
Our Response: Section 10.11(e)
addresses the resolution of disputes
regarding the disposition of culturally

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unidentifiable human remains and
associated funerary objects, including
disputes regarding identification of
aboriginal lands.
Comment 111: Three commenters
recommended that determinations of
aboriginal occupation should not be
limited to the sources outlined in
§ 10.11(c)(1)(ii), but should be defined at
the discretion of the Native
communities and/or based on the
‘‘testimony of experts.’’ One commenter
recommended including provisions
recognizing final judgments of other
Federal courts.
Our Response: The drafters intend to
include the full range of relevant and
authoritative governmental
determinations in this section. These
may include final judgments from
Federal Courts, including the United
States Court of Claims. Museum and
Federal agency officials may also
consider other information, such as
expert testimony, but are not required to
do so.
Comment 112: One commenter
generally supported the disposition of
culturally unidentifiable human
remains based on ‘‘cultural
relationship.’’ Eleven commenters raised
concerns about using ‘‘cultural
relationship’’ as the basis for disposition
of culturally unidentifiable human
remains.
Our Response: As noted in the
response to comment 63 above, the
diversity of opinion regarding the
meaning of ‘‘cultural relationship’’
convinced the drafters to remove it as a
required criterion for consultation and
disposition of culturally unidentifiable
human remains.
Comment 113: One commenter was
concerned that some museums might
urge Indian tribes and Native Hawaiian
organizations to accept human remains
to which they may not have any
ancestral connection in order to prevent
turning over such human remains to
groups with more attenuated ‘‘cultural
relationships.’’
Our Response: The drafters have
removed the term ‘‘cultural relationship’’
as a basis for disposition under
§ 10.11(c)(1). Consultation may result in
a determination that human remains
and associated funerary objects
previously determined to be culturally
unidentifiable are actually culturally
affiliated with an Indian tribe or Native
Hawaiian organization (43 CFR
10.11(b)(6)).
Comment 114: One commenter
recommended that an Indian tribe’s
decision regarding the disposition of
culturally unidentifiable human
remains should not be contingent upon

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the agreement of other lower priority
claimants.
Our Response: Under § 10.11(c)(1), a
request to transfer control of culturally
unidentifiable human remains from an
Indian tribe or Native Hawaiian
organization from whose tribal land, at
the time of excavation or removal, the
human remains were removed is given
priority and is not contingent upon any
agreement with another Indian tribe that
is recognized as aboriginally occupying
the area from which the human remains
were removed.
Comment 115: One commenter
considered the Review Committee’s
case-by-case consideration of requests
for disposition of culturally
unidentifiable human remains to be
working well and to be superior to the
proposed system.
Our Response: Under current
regulations (43 CFR 10.9(e)(6)),
museums must retain possession of
culturally unidentifiable human
remains unless legally required to do
otherwise or recommended to do
otherwise by the Secretary. For over a
decade, the Secretary has given full
consideration to the Review
Committee’s case-by-case deliberations
in deciding to make such a
recommendation. These regulations
were developed with this case-by-case
experience in mind, as well as after
careful consideration of the Review
Committee’s 2000 final
recommendations. Dispositions
involving Indian groups that are not
federally-recognized or reinterment
according to State or other law will still
require a recommendation from the
Secretary, who may request the Review
Committee’s advice.
Section 10.11(c)(2) Voluntary
Dispositions
Section 10.11(c)(3) (renumbered as
§ 10.11(c)(2)) establishes a process for
the voluntary disposition of culturally
unidentifiable human remains that are
not transferred under provisions of
§ 10.11(c)(1).
Comment 116: Four commenters
stated that the claims to culturally
unidentifiable human remains, with or
without associated funerary objects, by
a federally-recognized Indian tribe must
take priority over any other group.
Our Response: The Secretary agrees.
To ensure that the rights of federallyrecognized Indian tribes are protected, a
museum or Federal agency may only
transfer control of culturally
unidentifiable human remains, with or
without associated funerary objects, to
an Indian group that is not federallyrecognized after full consultation with
relevant federally-recognized Indian

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tribes, with no objection of any of those
tribes, and upon receiving a
recommendation from the Secretary.
Such Indian groups that are not
federally-recognized would be
identified through consultation with all
relevant federally-recognized Indian
tribes. The Secretary considers that
these provisions adequately respect and
protect the sovereignty and rights of
federally-recognized tribes.
Comment 117: Seven commenters
were concerned that any disposition to
Indian groups that are not federallyrecognized was voluntary and that the
proposed rule would not force a
museum or Federal agency to transfer
control of culturally unidentifiable
human remains, with or without
associated funerary objects, to an Indian
group that is not federally-recognized to
which the cultural items are clearly
culturally connected.
Our Response: In the two sections of
the Act that impose mandatory
priorities for control or disposition of
human remains (Sections 3 and 7),
Congress limited the recipients to
federally-recognized Indian tribes (in
addition to lineal descendants and
Native Hawaiian organizations) in
recognition of the government-togovernment relationship between such
tribes and the United States. In
expanding the universe of possible
recipients of culturally unidentifiable
human remains, with or without
associated funerary objects, the
Secretary followed the lead of Congress
both in assuring that such cultural items
went to the Indian group that had the
closest cultural connection to the items,
even if that group is not federallyrecognized, and in maintaining the
priority of the government-togovernment relationship, by not making
such a disposition mandatory to an
Indian group that is not federallyrecognized.
Comment 118: Eleven commenters
were concerned that the provision in
§ 10.11(c)(3) for voluntary disposition of
culturally unidentifiable human
remains, with or without associated
funerary objects, to an Indian group that
is not federally-recognized would put a
museum or Federal agency in the
position of determining whether a
particular entity is a ‘‘valid’’ Indian
group that is not federally-recognized,
which the commenters asserted that a
Federal agency or museum lacks the
authority to make. Some of the
commenters requested that the Secretary
define ‘‘an Indian group that is not
federally-recognized.’’
Our Response: Section 10.11(c)(3) has
been renumbered as § 10.11(c)(2). The
proposed and final rules do not require

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a museum or Federal agency to make
such a determination. Rather, during
consultation, the museum or Federal
agency supplies relevant federallyrecognized Indian tribes and Native
Hawaiian organizations with ‘‘a list of
any Indian groups that are not federallyrecognized that are known to have a
relationship of shared group identity
with the particular human remains and
associated funerary objects’’ (43 CFR
10.11(b)(3)(ii) (emphasis added), i.e.,
those groups that would be culturally
affiliated with the human remains and
associated funerary objects if the group
was recognized as eligible for the
special programs and services provided
by the United States to Indians because
of their status as Indians. Then, the
museum or Federal agency requests
from the federally-recognized Indian
tribe or Native Hawaiian organization
‘‘the names and addresses of other * * *
Indian groups that are not federallyrecognized that should be included in
the consultations.’’ (43 CFR
10.11(b)(4)(iv)). Thus, the museum or
Federal agency must only identify on its
own any Indian groups that are not
federally-recognized that the museum or
Federal agency knows have a
relationship of shared group identity
with the culturally unidentifiable
human remains and associated funerary
objects. The museum or Federal agency
can rely on the relevant federallyrecognized Indian tribe or Native
Hawaiian organization for identification
of any other relevant groups. A
definition of ‘‘Indian group that is not
federally-recognized’’ is not, therefore,
needed.
Comment 119: Two commenters
suggested that Indian groups that are not
federally-recognized should be required
to submit a claim for culturally
unidentifiable human remains, with or
without associated funerary objects,
through, or in association with, a
federally-recognized tribe.
Our Response: To ensure that the
rights of federally-recognized Indian
tribes are protected, a museum or
Federal agency may only transfer
control of culturally unidentifiable
human remains, with or without
associated funerary objects, to an Indian
group that is not federally-recognized
after full consultation with relevant
federally-recognized Indian tribes, with
no objection from any of those Indian
tribes following consultation, and upon
receiving a recommendation from the
Secretary. Such Indian groups that are
not federally-recognized would be
identified through consultation with all
relevant federally-recognized Indian
tribes. The Secretary considers that
these provisions adequately respect and

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protect the sovereignty and rights of
federally-recognized tribes. The
commenters’ suggestion might work in
some areas of the country, but would be
less effective in other areas, for example,
California and parts of the eastern
United States where the number of
Indian groups that are not federallyrecognized far exceeds the number of
federally-recognized Indian tribes.
Comment 120: One commenter was
concerned that the consultation with,
and possible transfer of control to,
Indian groups that are not federallyrecognized would be used by those
groups as leverage for Federal
recognition. Another commenter
considers requiring each museum and
Federal agency to prepare and distribute
a list of Indian groups that are not
federally-recognized inconsistent with
the Federal acknowledgement process.
Our Response: Congress specifically
stated in the Act that it ‘‘reflects the
unique relationship between the Federal
Government and Indian tribes and
Native Hawaiian organizations and
should not be construed to establish a
precedent with respect to any other
individual, organization or foreign
government,’’ (25 U.S.C. 3010), which
would include an Indian group that is
not federally-recognized. The preamble
to the proposed rule clearly stated, and
this preamble again emphasizes, that
‘‘the Secretary’s recommendation
regarding the disposition of culturally
unidentifiable human remains or
associated funerary objects to an Indian
group that is not federally-recognized
does not indicate Federal recognition of
the group’s status as an Indian tribe or
the existence of a government-togovernment relationship’’ (72 FR 58586).
Finally, the Federal acknowledgement
process addressed in 25 CFR part 83 is
detailed and rigorous, and it is highly
unlikely, especially given the
disclaimers from both Congress and the
Secretary, that consultation with, or
possible transfer of control to, an Indian
group that is not federally recognized
would satisfy any of the criteria
required in that process.
Comment 121: One commenter was
concerned that transfer of control of
culturally unidentifiable human
remains, with or without associated
funerary objects, to unaffiliated Indian
tribes or to Indian groups that are not
federally-recognized would preclude
future transfer of human remains to
affiliated tribes and thereby cause injury
to museums and Federal agencies.
Our Response: In section 7(f) of the
Act (25 U.S.C. 3005), Congress
specifically provided in that ‘‘[a]ny
museum which repatriates any item in
good faith pursuant to this chapter shall

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not be 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 the
provisions of this chapter.’’ To ensure
that the rights of federally-recognized
Indian tribes are protected, a museum or
Federal agency may only transfer
control of culturally unidentifiable
human remains, with or without
associated funerary objects, to an Indian
group that is not federally-recognized
after full consultation with relevant
federally-recognized Indian tribes, with
no objection of any of those tribes, and
upon receiving a recommendation from
the Secretary. Such Indian groups that
are not federally-recognized would be
identified through consultation with all
relevant federally-recognized Indian
tribes. The Secretary considers that
these provisions adequately respect and
protect the sovereignty and rights of
federally-recognized tribes.
Comment 122: One commenter
suggested that Indian groups that are not
federally-recognized, Indian regional
organizations, and Indian national
organizations should be able to make a
claim for culturally unidentifiable
human remains, with or without
associated funerary objects, when no
federally-recognized Indian tribe does
so.
Our Response: In the two sections of
NAGPRA that impose mandatory
priorities for control or disposition of
human remains (Sections 3 and 7),
Congress intentionally limited the
recipients to federally-recognized Indian
tribes (in addition to lineal descendants
and Native Hawaiian organizations) in
recognition of the government-togovernment relationship between such
tribes and the United States. In
expanding the universe of possible
recipients of culturally unidentifiable
human remains, with or without
associated funerary objects, the
Secretary followed the lead of Congress
in making sure that such cultural items
went to the Indian group that had the
closest cultural connection to the items,
even if that group is not federallyrecognized. In recognition of the
importance of that cultural connection,
and of tribal sovereignty, the Secretary
has not expanded the definition or the
scope of the parties that are eligible to
make claims to include regional and
national Indian organizations. The
ultimate disposition of culturally
unidentifiable human remains, with or
without associated funerary objects,
control of which is not transferred
under these regulations, is outside the
scope of these regulations and reserved
for § 10.15(b).

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Comment 123: Twelve commenters
generally supported the inclusion in the
proposed rule of the disposition of
culturally unidentifiable human
remains, with or without associated
funerary objects, to Indian groups that
are not federally-recognized. Thirteen
commenters generally opposed the
proposal to allow for disposition of
culturally unidentifiable human
remains, with or without associated
funerary objects, to Indian groups that
are not federally-recognized.
Our Response: As noted in the Review
Committee’s 2000 Recommendations,
and reflected in the preamble of the
proposed rule, one of the categories of
culturally unidentifiable human
remains is those remains ‘‘for which
cultural affiliation could be determined
except that the appropriate Indian
organization is not federally-recognized
as an Indian tribe’’ (65 FR 36462, 36463
(2000)). In attempting to find a solution
for the disposition of this category of
human remains, the Secretary
considered the overall intent of
Congress in section 7 of the Act (25
U.S.C. 3005) to return control of Native
American human remains in the
possession of museums and Federal
agencies to persons or entities with the
closest cultural connection to those
remains. While a mandate for return of
control to Indian groups that are not
federally-recognized would be contrary
to the terms of NAGPRA and to the
government-to-government relationship
between the United States and federallyrecognized Indian tribes, nothing in the
Act prohibits the voluntary transfer of
human remains, with or without
associated funerary objects, to
‘‘culturally affiliated’’ Indian groups that
are not federally-recognized, with
appropriate safeguards for the rights of
federally-recognized Indian tribes.
Comment 124: Seven commenters
were concerned that disposition of
culturally unidentifiable human
remains, with or without associated
funerary objects, to Indian groups that
are not federally-recognized would be
voluntary and recommended that any
such disposition should be (1)
addressed through regional tribal
consultation; and (2) brought before the
Review Committee.
Our Response: To ensure that the
rights of federally-recognized Indian
tribes are protected, a museum or
Federal agency may only transfer
control of culturally unidentifiable
human remains, with or without
associated funerary objects, to an Indian
group that is not federally-recognized
after full consultation with relevant
federally-recognized Indian tribes, with
no objection from any of those tribes,

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and upon receiving a recommendation
from the Secretary. Although, in respect
of tribal sovereignty and the
government-to-government relationship,
the Secretary cannot mandate that
museums and Federal agencies consult
only on a regional basis, tribes may
make arrangements for such
consultations. In the past, the Secretary
has referred requests for the disposition
of culturally unidentifiable human
remains to the Review Committee,
under section 8(c)(8) of the Act (25
U.S.C. 3006(c)(8)) (‘‘performing such
other related functions as the Secretary
may assign to the committee’’) and
requested the Review Committee’s
advice before making recommendations
on the disposition request. In
formulating his or her recommendation
concerning a disposition to an Indian
group that is not federally-recognized,
the Secretary will decide, on a case-bycase basis, whether the advice of the
Review Committee would be useful,
and, if so, will seek that advice.
Comment 125: Three commenters
objected to the proposed provision in
§ 10.11(c)(3)(ii) that provides authority
for voluntary reinterment under state
law of culturally unidentifiable human
remains, with or without associated
funerary objects, stating that such
reburial by non-tribal people would be
considered inappropriate by tribal
leaders and members.
Our Response: Section 10.11(c)(3)(ii)
has been renumbered as § 10.11(c)(ii)(B).
The Secretary notes that any such
reinterment would only occur after full
consultation with relevant federallyrecognized Indian tribes, with no
objection from any of those tribes, and
upon receiving a recommendation from
the Secretary under § 10.11(c)(3).
Comment 126: One commenter
suggested that the final rule should
include a disposition process that
involves consultation with regional
consortia and appropriate state agencies,
citing the California law providing for
repatriation to federally-recognized
Indian tribes and Indian groups that are
not federally-recognized (Health and
Safety Code 8010, et seq.). Another
commenter encouraged museums and
Federal agencies to work with state
officials since they are the most
responsive to local needs and issues.
Our Response: Although, in respect of
tribal sovereignty and the governmentto-government relationship, the
Secretary cannot mandate that museums
and Federal agencies consult on a
regional basis, tribes may make
arrangements for such consultations.
California, Iowa, New Mexico, and
several other states have put in place or
are considering state processes similar

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to NAGPRA. Federal agencies and
museums are encouraged to consult
with their appropriate state agencies,
especially if they propose to voluntarily
transfer control to an Indian group that
is not federally-recognized under
§ 10.11(c)(2)(ii)(A) or reinter culturally
unidentifiable human remains, with or
without associated funerary objects,
pursuant to state law under
§ 10.11(c)(2)(ii)(B).
Comment 127: One commenter stated
that, if culturally unidentifiable human
remains, with or without associated
funerary objects, are not claimed, the
remains should continue to be in the
care of the museum or Federal agency,
without precluding future repatriation.
Our Response: In such a situation, the
museum or Federal agency may, under
the final rule, transfer control of the
remains, with or without the funerary
objects, to an Indian group that is not
federally-recognized, reinter them under
state law, or enter into an agreement
with a federally-recognized Indian tribe
for other disposition. The ultimate
disposition of culturally unidentifiable
human remains, with or without
associated funerary objects, control of
which is not transferred under these
regulations, is outside the scope of these
regulations and reserved for Section
10.15(b).
Comment 128: One commenter
recommended clarification that once all
efforts to transfer control to an Indian
tribe, Native Hawaiian organization, or
an Indian group that is not federallyrecognized have been exhausted, the
museum or Federal agency should
reinter culturally unidentifiable human
remains at their place of discovery.
Our Response: Under
§ 10.11(c)(2)(ii)(B), museums and
Federal agencies may reinter culturally
unidentifiable human remains upon
receiving a recommendation from the
Secretary or authorized representative.
Section 10.11(c)(4) Secretary’s
Recommendation
Section 10.11(c)(4) (renumbered as
§ 10.11(c)(3)) stipulated that the
Secretary may make a recommendation
under § 10.11(c)(3) (renumbered as
§ 10.11(c)(2)) only with the written
consent of all Indian tribes and Native
Hawaiian organizations stipulated in
§ 10.11(c)(1).
Comment 129: Three commenters
supported the § 10.11(c)(4) language
requiring the written consent of all
Indian tribes and Native Hawaiian
organizations stipulated in
§§ 10.11(c)(1) and (c)(2) before the
Secretary can make a recommendation
under § 10.11(c)(3). Seven commenters
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rule would create an unfair burden on
both federally-recognized Indian tribes
that are not interested in a disposition
and Indian groups that are not federallyrecognized that may lack the resources
to meet the requirement of obtaining the
consent of all relevant federallyrecognized Indian tribes before a
museum or Federal agency may transfer
control of culturally unidentifiable
human remains to a an Indian group
that is not federally-recognized. Some of
the commenters suggest that the final
rule require that the museum or Federal
agency make a good faith effort to
consult with all of the relevant
federally-recognized tribes, and, if no
federally-recognized tribe has objected,
then the disposition to the ‘‘culturally
affiliated’’ Indian group that is not
federally-recognized should be
permitted to go forward.
Our Response: The Secretary agrees
with these commenters, and has revised
the final rule to incorporate their
suggestions. Sections 10.11(c)(2), (c)(3),
and (c)(4) have been renumbered as
§ 10.11(c)(6), (c)(2), and (c)(3)
respectively.
Comment 130: Four commenters
stated that § 10.11(c)(4) of the proposed
rule unduly restricts the flexibility of
museums and Federal agencies by
requiring that they receive a
recommendation from the Secretary
before transferring control of culturally
unidentifiable human remains, with or
without associated funerary objects, to
an Indian group that is not federallyrecognized or reinterment of the
remains under State law.
Our Response: Congress enacted
NAGPRA in furtherance of the
government-to-government relationship
with federally-recognized Indian tribes.
Also in furtherance of that relationship,
the Secretary has the obligation to
ensure that the rights of those tribes
under the statute and under these
regulations are fully supported.
Therefore, in the case of a proposed
disposition to an Indian group that is
not federally-recognized or a proposed
reinterment under State law, the
recommendation of the Secretary is
needed to make sure that the museum
or Federal agency has consulted with
the relevant federally-recognized Indian
tribes and none of the tribes have
objected. This is also consistent with the
current practice that the Review
Committee and the Secretary have
developed for disposition (even to
federally-recognized tribes) of culturally
unidentifiable human remains.
Comment 131: One commenter
recommended that the Secretary only
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attempted in good faith to transfer
control of the culturally unidentifiable
human remains to an affiliated Indian
group that is not federally-recognized.
Our Response: A museum or Federal
agency may voluntarily transfer control
of culturally unidentifiable human
remains to an Indian group that is not
federally-recognized or reinter
culturally unidentifiable human
remains according to state or other law
only after receiving a recommendation
from the Secretary or authorized
representative. The Secretary will
consider evidence related to both
options prior to making such a
recommendation.
Comment 132: One commenter
requested that the Secretary offer a
process for seeking the
recommendations of the Review
Committee concerning proposed
dispositions.
Our Response: Under section 8(c) of
the Act (25 U.S.C. 3006(c)), the Review
Committee is charged with reviewing
and making findings concerning the
return of cultural items upon the request
of any party and with facilitating the
resolution of any disputes among Indian
tribes, Native Hawaiian organizations,
or lineal descendants and Federal
agencies or museums relating to the
return of such items including
convening the parties to the dispute if
deemed desirable. The process for
bringing requests and disputes before
the Review Committee is found on the
National NAGPRA Web site at http://
www.nps.gov/history/nagpra/REVIEW/
Procedures.htm. In addition, § 10.11(e)
specifically identifies the Review
Committee as a possible forum to assist
in the informal resolution of disputes
regarding the disposition of culturally
unidentifiable human remains and
associated funerary objects.
Section 10.11(c)(5) Voluntary Transfer
of Associated Funerary Objects
Section 10.11(c)(5), which has been
renumbered as § 10.11(c)(4), clarifies
that a museum or Federal agency may
voluntary transfer control of funerary
objects that are associated with
culturally unidentifiable human
remains.
Comment 133: Twenty-two
commenters stated that the disposition
of culturally unidentifiable associated
funerary objects should be mandatory.
Three commenters indicated that
sufficient legal authority and
congressional intent exist to require the
mandatory disposition of culturally
unidentifiable associated funerary
objects. Three commenters stated that
disposition of culturally unidentifiable
associated funerary objects should be

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mandatory because different treatment
of such objects is contrary to American
common law and Indian funeral
traditions. One commenter stated that
disposition of such objects should be
mandatory because some institutions
will not voluntarily transfer objects. One
commenter supported the disposition of
funerary objects associated with
culturally unidentifiable human
remains on a voluntary basis. Three
commenters recommended deleting
§ 10.11(c)(5) and amending § 10.11(c)(1)
to read, ‘‘A museum or Federal agency
that is unable to prove that it has right
of possession, as defined at 10.11(a)(2)
[sic], to culturally unidentifiable human
remains and associated funerary objects
must offer to transfer control of the
human remains and associated funerary
objects to Indian tribes and Native
Hawaiian organizations in the following
priority order * * *’’.
Our Response: Consideration of all
Native American human remains and
associated funerary objects, including
those that are culturally unidentifiable,
is within the scope of the statute. In
section 13 of the Act (25 U.S.C. 3011),
Congress delegated authority to the
Secretary of the Interior generally to
promulgate regulations carrying out the
Act and carrying the force of law. In
section 8(c)(5) of the Act (25 U.S.C.
3006(c)(5)), Congress assigned the role
of recommending specific actions for
developing a process for disposition of
culturally unidentifiable human
remains to the Review Committee.
Congress did not indicate the same
intent regarding culturally
unidentifiable associated funerary
objects. Mandatory disposition for this
category of items raises right of
possession and takings issues that are
not clearly resolved in the statute or the
legislative history. American common
law generally recognizes that human
remains cannot be owned. The common
law regarding associated funerary
objects that are not culturally
identifiable is not well established.
According to the committee report
accompanying the Senate NAGPRA bill,
the Senate Committee on Indian Affairs
intended that the legal framework
regarding right of possession would
operate in a manner consistent with
general property law (S. Report 101–473
at 8). Considering the lack of precedent
in the common law and Congress’
direction to develop a process only with
respect to culturally unidentifiable
human remains, the Secretary does not
consider it appropriate to make the
provision to transfer culturally
unidentifiable associated funerary
objects mandatory.

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Comment 134: Seven commenters
recommended deleting § 10.11(c)(5) on
the grounds that the Secretary does not
have authority to address funerary
objects associated with culturally
unidentifiable human remains.
Our Response: Section 10.11(c)(5) has
been renumbered as § 10.11(c)(4). In
section 13 of the Act (25 U.S.C. 3011),
Congress delegated authority to the
Secretary of the Interior generally to
promulgate regulations carrying out the
Act and carrying the force of law.
Consideration of all Native American
human remains and associated funerary
objects, including those that are
culturally unidentifiable, is within the
scope of the statute. section 5 of the Act
(25 U.S.C. 3003) requires Federal
agencies and museums that have
possession or control over holdings or
collections of Native American human
remains and associated funerary objects
to compile an inventory of such items
and, to the extent possible based on
information possessed by such museum
or Federal agency, identify the
geographical and cultural affiliation of
such item. Regulations promulgated in
1995 initially addressed culturally
unidentifiable associated funerary
objects to which there was no public
objection. 43 CFR 10.9(e)(6) required
museums and Federal agencies to
provide notice and a copy of the list of
culturally unidentifiable human
remains and associated funerary objects
to the National Park Service which in
turn made this information available to
the Review Committee. Congress
anticipated that not all items would be
geographically or culturally affiliated
and, in section 8(c)(5) of the Act (25
U.S.C. 3006(c)(5)), assigned the role of
recommending specific actions for
developing a process for disposition of
culturally unidentifiable human
remains to the Review Committee.
Congress intended that the Review
Committee be an advisory committee
which makes recommendations to the
Secretary (S. Rep. No. 101–473 at 13). In
section 8(c)(7) of the Act (25 U.S.C.
3006(c)(7)), Congress also authorized the
Review Committee to consult with the
Secretary in the development of
regulations to carry out the Act. As part
of its recommendations under section
8(c)(5) of the Act (25 U.S.C. 3006(c)(5)),
the Review Committee addressed
funerary objects associated with
culturally unidentifiable remains and
recommended their transfer along with
the associated remains. This regulation,
promulgated in the exercise of Congress’
delegated authority, implements many
of the Review Committee’s
recommendations made pursuant to

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section 8(c)(5) and 8(c)(7) and
effectuates the goals of the Act. Even if
Congress may not have expressly
delegated authority or responsibility to
implement a particular provision or fill
a particular gap, it can still be apparent
from an agency’s generally conferred
authority and other statutory
circumstances that Congress would
expect the agency to address
ambiguities in the statute or fill a gap in
the enacted law, even one about which
Congress may not have actually had an
intent as to a particular result (U.S. v.
Mead, 533 U.S. 218 (2001)). In addition,
25 U.S.C. 9 authorizes the Secretary to
make ‘‘such regulations as he may think
fit for carrying into effect the various
provisions of any act relating to Indian
affairs.’’ Because NAGPRA is Indian law
(Yankton Sioux Tribe v. United States
Army Corps of Engineers, 83 F. Supp 2d
1047, 1056 (D.S.D. 2000)), the Secretary
may promulgate any regulations needed
to implement it under the broad
authority to supervise and manage
Indian affairs given by Congress (United
States v. Eberhardt, 789 F.2d 1354, 1360
(9th Cir. 1986)).
Comment 135: Two commenters
objected to the ‘‘required’’ disposition of
funerary objects associated with
culturally unidentifiable human
remains.
Our Response: The subsection
addressing this category of objects,
§ 10.11(c)(4), does not require
disposition. The proposed text states, ‘‘A
museum or Federal agency may also
transfer control of funerary objects that
are associated with culturally
unidentifiable human remains. The
Secretary recommends that museums
and Federal agencies engage in such
transfers whenever Federal or State law
would not otherwise preclude them’’
(emphasis added).
Comment 136: One commenter
requested clarification on whether it is
discretionary for museums and Federal
agencies to make disposition of
culturally unidentifiable associated
funerary objects.
Our Response: Subsection 10.11(c)(4)
does not mandate the transfer of
culturally unidentifiable associated
funerary objects. This provision is
voluntary and any decision to transfer
such objects is based on the discretion
of the museum or Federal agency.
Section 10.11(c) Other Issues
Comment 137: Two commenters
suggested the establishment of national
or regional repositories, controlled by
Indian tribes, where culturally
unidentifiable human remains that are
unclaimed may be voluntarily
reinterred.

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Our Response: The Secretary cannot
mandate that Indian tribes enter into
such arrangements. Indian tribes may
make arrangements for such repositories
on their own.
Comment 138: Two commenters
recommended that the statutory
exemptions to repatriation be explicitly
identified in this section.
Our Response: Section 10.10(c) of
these regulations stipulates four
exceptions to repatriation, including
circumstances where (1) Human
remains and funerary objects are
indispensible to the completion of a
specific scientific study, the outcome of
which is of major benefit to the United
States; (2) there are multiple requests for
repatriation of the human remains and
associated funerary objects and the
museum or Federal agency cannot
determine by a preponderance of the
evidence which requesting party is the
most appropriate claimant; (3) a court of
competent jurisdiction has determined
that the repatriation would result in a
taking of property without just
compensation within the meaning of the
Fifth Amendment of the United States
Constitution; and (4) the repatriation is
not consistent with other repatriation
limitations identified in § 10.15. The
drafters intend that each of these
exemptions also apply to claims made
for the disposition of culturally
unidentifiable human remains, and
additional text has been included at
§ 10.11(c)(5) to that effect.
Comment 139: Three commenters
recommended addressing the recourse
available to museums and Federal
agencies if they cannot transfer control
of culturally unidentifiable human
remains.
Our Response: Section 10.15(b) of
these regulations has been reserved to
address situations where no claim has
been made.

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Section 10.11(d)

Notification

Paragraph (d) establishes procedures
to ensure that Indian tribes, Native
Hawaiian organizations, Indian groups
that are not federally-recognized,
museums, and Federal agencies are
notified of intended dispositions of
culturally unidentifiable human
remains and associated funerary objects.
Comment 140: One commenter
recommended adding a provision to
document the final disposition of
culturally unidentifiable human
remains.
Our Response: Section 10.10(f) directs
museums and Federal agencies to adopt
internal procedures adequate to
permanently document the content and
recipients of all repatriations.

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Comment 141: One commenter
recommended clarifying that the notice
requirement for culturally
unidentifiable human remains would
commence after consultation (43 CFR
10.11(b)) and determination (43 CFR
10.11(c)).
Our Response: Section 10.11(d)
stipulates that disposition of culturally
unidentifiable human remains pursuant
to § 10.11(c) may not occur until at least
thirty days after publication of a notice
of inventory completion. Section
10.11(b)(1) stipulates that the museum
or Federal agency official must initiate
consultation within ninety days of
receipt of a request for disposition or,
absent such a request, before any offer
to transfer control of culturally
unidentifiable human remains.
Comment 142: One commenter
recommended lengthening the
notification time period from 30 to 60 or
90 days to allow Indian tribes and
Native Hawaiian organizations to
respond before disposition occurs.
Our Response: The thirty day
(minimum) period following
publication of a notice of inventory
completion during which other lineal
descendants, Indian tribes, or Native
Hawaiian organizations may claim
human remains and associated funerary
objects has been in effect since 1996 (43
CFR 10.10(b)(2)). No Indian tribe or
Native Hawaiian organization
recommended this change.
Comment 143: One commenter
requested clarification of how the
Review Committee database of
culturally unidentifiable human
remains and associated funerary objects
will be made ‘‘accessible’’ to Indian
tribes, Native Hawaiian organizations,
Indian groups that are not federallyrecognized, museums, and Federal
agencies.
Our Response: The Culturally
Unidentifiable Native American
Inventories Database is available at:
http://64.241.25.6/CUI/index.cfm.
Comment 144: Five commenters
recommended revising the Review
Committee’s inventory as follows: (1)
Create and include an online tutorial on
how to use the database; (2) include
fields in the main table to discern
whether the repository is reporting on a
museum or Federal agency collection;
(3) update the existing contact
information, and list contact
information for each Federal Agency
NAGPRA Contact; (4) add search
functions to the database to search/sort
by keyword e.g. ‘‘Hohokam’’; (5) add
search functions to the database so that
it is possible to search/sort by county;
(6) add search functions to the database
so that it is possible to search/sort by

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date; (7) separate the collection history,
age/culture, and associated funerary
object fields for clarity; (8) link the
database to the notices of inventory
completion and notices of intent to
repatriate. Two commenters
recommended that the original
paperwork supporting a published
notice of inventory completion be
posted on the Web site as part of the
Review Committee’s inventory.
Our Response: The National NAGPRA
Program will consider implementing
these recommendations.
Section 10.11(e) Disputes
Section 10.11(e) clarifies that disputes
regarding the disposition of culturally
unidentifiable human remains may be
resolved through informal negotiations,
with the assistance of the Review
Committee, or before a United States
District Court.
Comment 145: One commenter asked
for clarification of what is meant by
‘‘informal negotiations.’’
Our Response: While the Review
Committee is specifically charged with
facilitating the resolution of disputes,
the Committee also stated that disputes
among Indian tribes, Native Hawaiian
organizations, or lineal descendants and
Federal agencies or museums should be
resolved at the lowest organizational
level and at the earliest time possible
and strongly encourages the use of
alternative methods of dispute
resolution (Native American Graves
Protection and Repatriation Review
Committee Dispute Procedures,
September 2006).
Comment 146: One commenter
recommended that the Review
Committee only attempt to facilitate
disputes regarding the disposition of
culturally unidentifiable human
remains when requested by all involved
parties.
Our Response: Under the Review
Committee’s Dispute Procedures, the
decision to involve the Review
Committee in a dispute is made only
after all involved parties have been
contacted. Disputing parties are under
no obligation to participate in Review
Committee meetings. Review Committee
recommendations are purely advisory.
Comment 147: One commenter
recommended that the Review
Committee’s existing policies and
procedures be formalized into this final
regulation.
Our Response: The Review
Committee’s Dispute Procedures are
posted at: http://www.nps.gov/history/
nagpra/REVIEW/
Dispute_procedures.0609.pdf.
Formalization of these procedures as
regulations would likely limit the ability

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of the Review Committee to generate
unique and innovative resolutions on a
case-by-case basis.
Comment 148: One commenter asked
for clarification as to whether the
proposal would give binding legal force
to Review Committee advisory opinions.
One commenter asked for clarification
as to whether the proposal would allow
lawsuits by any aggrieved person
against museums ad infinitum.
Our Response: Review Committee
findings and recommendations are
purely advisory in nature. However, any
records and findings made by the
Review Committee relating to the
identity or cultural affiliation of human
remains, funerary objects, sacred
objects, or objects of cultural patrimony
may be admissible in actions brought
before a Federal court (25 U.S.C.
3006(d)). While neither Congress nor the
Secretary can stop anyone from filing a
lawsuit, in section 7(f) of the Act (25
U.S.C. 3005), Congress specifically
provided in that ‘‘[a]ny museum which
repatriates any item in good faith
pursuant to this chapter shall not be
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 the provisions
of this chapter.’’
Section 10.12(b) Definition of ‘‘Failure
to Comply’’
Revisions to this section clarify the
definition of ‘‘failure to comply’’ in the
context of the possible assessment of
civil penalties.
Comment 149: Fourteen commenters
generally supported the proposed text at
§ 10.12(b)(1)(ix) to allow for the
assessment of civil penalties for failure
of a museum to offer to transfer control
of culturally unidentifiable human
remains for which it cannot prove right
of possession under § 10.11. Two
commenters generally opposed the
proposed text. One commenter urged
that no civil penalty should be imposed
on a museum for failing to offer to
transfer human remains when no group
has requested a transfer.
Our Response: The drafters consider
the recommendation concerning the
inadvisability of civil penalties when no
Indian tribe or Native Hawaiian
organization has requested a transfer to
be reasonable because, absent a claim,
the regulations do not specify when a
museum must offer to transfer control of
culturally unidentifiable human
remains to Indian tribe and Native
Hawaiian organizations. Section
10.12(b)(ix) has been revised to read
‘‘Upon receipt of a claim consistent with
§ 10.11(c)(1), refuses to offer to transfer
control of culturally unidentifiable

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human remains for which it cannot
prove right of possession.’’
Comment 150: Four commenters
requested clarification in
§ 10.12(b)(1)(ix) that the burden of proof
for right of possession of culturally
unidentifiable human remains rests
with the museum or Federal agency.
Our Response: The burden of proof is
on the museum or Federal agency, and
that, as the proposed and final rule
states, if a museum or Federal agency ‘‘is
unable to prove that it has right of
possession’’, it must offer to transfer the
remains, with or without associated
funerary objects (43 CFR 10.11(c)(1)).
Comment 151: One commenter
recommended revising § 10.12 to
mandate that Federal agencies comply
with the Act and its regulations.
Our Response: Section 9 of the Act
(25 U.S.C. 3007) authorizes the
Secretary to assess civil penalties only
against museums.
Comment 152: Two commenters
recommended adding another type of
failure to comply at § 10.12(b) for
museums that refuse to provide
additional available documentation
upon the request of an Indian tribe or
Native Hawaiian organization that
received notice or should have received
notice and an inventory under
§ 10.9(e)(1) and (e)(2).
Our Response: Section 5(b)(2) of the
Act (25 U.S.C. 3003(b)(2)), requires that
a museum or Federal agency supply
additional available documentation
upon request by an Indian tribe or
Native Hawaiian organization which
receives or should have received notice.
Refusing to provide the specified
information to one of the Indian tribes
identified in § 10.11(b)(2) would
constitute a failure to comply under
§ 10.12(b)(vii).
Changes to the Proposed Rule
Based on the preceding comments
and responses, the drafters have made
the following changes to the proposed
rule language:
• Section 10.2(e)(2). We have added
text to clarify that determinations of
cultural affiliation are made ‘‘through
the inventory process.’’ Section
10.9(e)(2)(v). We revised the text to
clarify that the notice of inventory
completion must describe those human
remains, with or without associated
funerary objects, that are culturally
unidentifiable but that ‘‘are subject to
disposition under § 10.11.’’
• Section 10.9(e)(5)(ii). We added text
to provide examples of the type of
Federal legal authority that exempt
disclosure of Federal documentation to
the public.

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• Section 10.9(e)(6). We deleted text
to make it clear that while disposition
of funerary objects associated with
culturally unidentifiable human
remains is voluntary, museums and
Federal agencies must provide notice
and a list of such objects to the Manager,
National NAGPRA Program.
• Section 10.11(a). We revised the
text to clarify that this section applies to
human remains previously determined
to be Native American pursuant to
§ 10.9, but for which no lineal
descendant or culturally affiliated
Indian tribe or Native Hawaiian
organization has been identified.
• Section 10.11(b)(2)(iii). We deleted
this section that required consultation
with all Indian tribes or Native
Hawaiian organizations with a cultural
relationship to the region from which
culturally identifiable human remains
were removed or, in the case of human
remains lacking geographic affiliation,
to the region in which the museum or
Federal agency repository is located.
The diversity of opinion regarding the
meaning of ‘‘cultural relationship’’
convinced the drafters to remove the
term as a required criterion for
consultation.
• Section 10.11(b)(6). We added text
to this paragraph to clarify that the
notification and repatriation provisions
of §§ 10.9(e) and 10.10(b) apply if
human remains previously determined
to be culturally unidentifiable are
actually related to a lineal descendant.
• Section 10.11(c)(1)(iii). We deleted
this section that required a museum or
Federal agency that is unable to prove
it has right of possession to culturally
unidentifiable human remains to offer to
transfer control of such remains to the
Indian tribe or Native Hawaiian
organization with a cultural relationship
to the region from which culturally
identifiable human remains were
removed or, in the case of human
remains lacking geographic affiliation,
to the region in which the museum or
Federal agency repository is located.
The diversity of opinion regarding the
meaning of ‘‘cultural relationship’’
convinced the drafters to remove the
term as a required criterion for
disposition of culturally unidentifiable
human remains.
• Section 10.11(c)(1)(iv). We deleted
this section that required a museum or
Federal agency that is unable to prove
it has right of possession to culturally
unidentifiable human remains to offer to
transfer control of such remains to the
Indian tribe or Native Hawaiian
organization with a stronger cultural
relationship with the human remains
than an entity specified in
§ 10.11(c)(1)(ii) or (c)(1)(iii). The

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diversity of opinion regarding the
meaning of ‘‘cultural relationship’’
convinced the drafters to remove the
term as a required criterion for
disposition of culturally unidentifiable
human remains.
• Section 10.11(c)(2). We moved and
renumbered this paragraph as
§ 10.11(c)(6).
• Section 10.11(c)(3)(i) (renumbered
as § 10.11(c)(2)(i)). We added text to
allow a museum or Federal agency to
voluntarily transfer control of culturally
unidentifiable human remains to Indian
tribes or Native Hawaiian organizations
other than those specified in
§ 10.11(c)(1). The change is consistent
with statutory requirements that nothing
in the Act shall be used to limit the
authority of any Federal agency or
museum to return or repatriate Native
American human remains, funerary
objects, sacred objects, or objects of
cultural patrimony to Indian tribes,
Native Hawaiian organizations, or
individuals (25 U.S.C. 3009(1)(A)).
• Section 10.11(c)(4) (renumbered as
§ 10.11(c)(3)). We revised this provision
to remove the requirement that all
relevant Indian tribes and Native
Hawaiian organizations must consent to
a proposed disposition to an Indian
group that is not federally-recognized or
to a proposed reinterment under State
law and to require instead that the
museum or Federal agency prove to the
Secretary that it has consulted with the
relevant Indian tribes and Native
Hawaiian organizations and none of
them has objected. This change was
prompted by comments on the proposed
rule and the Secretary’s effort to be
sensitive to concerns of Indian tribes
that may be culturally prohibited from
discussing or possessing human
remains.
• Section 10.11(c)(5) (renumbered as
§ 10.11(c)(4)).
• Section 10.11(c)(5). We added this
new section to clarify that the
exemptions to repatriation listed at
§ 10.10(c) also apply to dispositions of
culturally unidentifiable human
remains under § 10.11(c)(1).
• Section 10.12(b)(1)(ix). We added
text to clarify that upon receipt of a
claim consistent with § 10.11(c)(1), a
museum refuses to offer to transfer
control of culturally unidentifiable
human remains for which it cannot
prove right of possession, will be
considered to have failed to comply
with the Act. Absent a claim, the
regulations do not specify when a
museum must offer to transfer control of
culturally unidentifiable human
remains to Indian tribes and Native
Hawaiian organizations.

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• Section 10.15(c). We inserted text
previously proposed for inclusion in
§ 10.1(b)(3) into this paragraph to
reiterate that the final denial of a request
of a lineal descendant, Indian tribe, or
Native Hawaiian organization for the
repatriation or disposition of human
remains, funerary objects, sacred
objects, or objects of cultural patrimony
constitutes a final agency action under
the Administrative Procedure Act.
Compliance With Other Laws and
Executive Orders

12401

Regulatory Enforcement Fairness Act.
This rule will not (1) have an annual
effect on the economy of $100 million
or more; (2) cause a major increase in
costs or prices for consumers,
individual industries, Federal, State,
local or tribal government agencies, or
geographic regions; or (3) have
significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises.

Regulatory Planning and Review
(Executive Order 12866)
This document is a significant rule
and has 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.
(3) This rule does not materially alter
the budgetary impact of entitlements,
grants, user fees, or loan programs, or
the rights or obligations of their
recipients.
(4) OMB has determined that this rule
raises novel legal or policy issues.

Unfunded Mandates Reform Act

Regulatory Flexibility Act
The Department of the Interior
certifies that 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.). The requirement to
consult with Indian tribes and Native
Hawaiian organizations is minimal, as
very few small entities have collections
of Native American human remains that
would subject them to this rule. Of
those having Native American human
remains, the collections are small. Small
entities can transfer those human
remains to large museums having
NAGPRA obligations and they can
benefit from the published decisions of
large museums. Thus, this rule does not
constitute a significant economic
burden. This rule will require the
disposition of only those Native
American human remains for which the
controlling entity cannot prove right of
possession (25 U.S.C. 3005).

Federalism (Executive Order 13132)

Small Business Regulatory Enforcement
Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business

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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.
Takings (Executive Order 12630)
In accordance with Executive Order
12630, the rule does not have significant
takings implications. A takings
implication assessment is not required.
This rule will require the disposition of
only those Native American human
remains for which the controlling
museum or Federal agency cannot prove
right of possession [25 U.S.C. 3005(c)].

In accordance with Executive Order
13132, the rule does not have
sufficiently significant federalism
implications to warrant the preparation
of a Federalism Assessment. This final
rule will not substantially and directly
affect the relationship between the
Federal and State governments. To the
extent that State and local governments
have a role in NAGPRA activities, this
final rule will not affect that role. A
Federalism Assessment is not required.
Civil Justice Reform (Executive Order
12988)
This rule complies with the
requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
(b) Meets the criteria of section 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.

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Paperwork Reduction Act
The Office of Management and Budget
has approved the information collection
requirements associated with this rule
under OMB Control No. 1024–0144.
The public reporting burden for the
collection of information for § 10.11 is
expected to average 20 hours per year,
for those costs within the scope of the
Paperwork Reduction Act, as follows:
(1) Ten state and local museums
producing notifications and information
requests to Indian tribes and Native
Hawaiian organizations at 30 minutes
for each museum, a total of 5 hours;
(2) Four private museums producing
notifications and information requests
to Indian tribes and Native Hawaiian
organizations at 30 minutes for each
museum, a total of 2 hours.
(3) Response by Indian tribes and
Native Hawaiian organizations to
requests for information from museums,
16 responses (14 to non-Federal
museums and 2 to Federal museums) at
48 minutes per response for a total of 13
hours.
The reporting burden includes time
for reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collected
information. Comments regarding this
burden estimate or any other aspects of
this collection of information, including
suggestions for reducing the burden,
may be sent to the address in the
ADDRESSES section and to: Information
Collection Officer, Attn: Docket No.
1024–0144, National Park Service,
Department of Interior Building, 1849 C
Street NW., Room 3317, Washington,
DC 20240.
National Environmental Policy Act
This rule does not constitute a major
Federal action significantly affecting the
quality of the human environment and
can be categorically excluded under 43
CFR 46.210(i), ‘‘Policies, directives,
regulations, and guidelines that are of
an administrative, financial, legal,
technical, or procedural nature and
whose environmental effects are too
broad, speculative, or conjectural to
lend themselves to meaningful analysis
and will later be subject to the NEPA
process, either collectively or case-bycase.’’ We have also determined that the
rule does not involve any of the
extraordinary circumstances listed in 43
CFR 46.215 that would require further
analysis under the National
Environmental Policy Act. Any NEPA
review required for a disposition of
culturally unidentifiable human
remains by a Federal agency will be
conducted by that agency under its
NEPA procedures.

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Government-to-Government
Relationship With Indian Tribes
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government to Government Relations
with Native American Tribal
Governments’’ [59 FR 22951], Executive
Order 13175, ‘‘Consultation and
Coordination with Indian Tribal
Governments’’ [65 FR 218], and 512 DM
2, ‘‘Departmental Responsibilities for
Indian Trust Resources,’’ this rule has a
potential effect on federally-recognized
Indian tribes. The proposed rule was
developed in consultation with the
Native American Graves Protection and
Repatriation Review Committee, which
includes members nominated by Indian
tribes. The Review Committee consulted
with Indian tribes in the development of
the Review Committee’s
recommendations regarding the
disposition of culturally unidentifiable
human remains that form the basis of
this proposed rule. The Review
Committee, at the direction of the
Secretary of the Interior, consulted with
tribal representatives regarding its
recommendations on February 16–18,
1995, in Los Angeles, CA; June 9–11,
1996, in Billings, MT; June 25–27, 1998,
in Portland, OR; and May 2–4, 2000, in
Juneau, AK. Tribal representatives were
also consulted regarding draft text for
these regulations at Review Committee
meetings on May 2–4, 2000, in Juneau,
AK; May 31–June 2, 2002, in Tulsa, OK;
and November 8–9, 2002, in Seattle,
WA. Consultation between tribal
representatives and the Department also
occurred during the public comment
period for the proposed rule. In addition
to comments from tribes that we
received through members of the
Review Committee and at Review
Committee meetings, we received
comments from tribes on the proposed
rule in training sessions and in initial
consultations on the draft rule that we
are preparing for 43 CFR 10.7. We will
conduct ongoing consultation with
tribes on the implementation of this and
other NAGPRA regulations through
semiannual Review Committee
meetings, outreach and training events
approximately twenty times annually,
and formal consultation sessions on
further amendments to the regulations.
Public Availability of Comments
Before including your address, phone
number, e-mail address, or other
personal identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment

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to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
Drafting Information
The proposed rule was prepared in
consultation with the Native American
Graves Protection and Repatriation
Review Committee as directed by
section 8(c)(7) of the Act. The principal
contributors to this final rule are C.
Timothy McKeown and Sherry Hutt of
the National NAGPRA Program,
National Park Service; Carla Mattix and
Stephen Simpson of the Office of the
Solicitor, U.S. Department of the
Interior; Jennifer Lee, Office of the
Director, National Park Service and
Philip Selleck, Chief, Regulations and
Special Park Uses, National Park
Service.
List of Subjects in 43 CFR Part 10
Administrative practice and
procedure, Hawaiian natives, Historic
preservation, Indians-claims, Indianslands, Museums, Penalties, Public
lands, Reporting and recordkeeping
requirements.
■ In consideration of the foregoing, 43
CFR part 10 is amended as follows:
PART 10—NATIVE AMERICAN
GRAVES PROTECTION AND
REPATRIATION REGULATIONS
1. The authority for part 10 is revised
to read as follows:

■

Authority: 25 U.S.C. 3001 et seq., 16
U.S.C. 470dd (2), 25 U.S.C. 9.

2. Amend § 10.1 by revising the
section heading and paragraph (b)(3),
and adding paragraph (c) to read as
follows:

■

§ 10.1 Purpose, applicability, and
information collection.

*

*
*
*
*
(b) * * *
(3) Throughout this part are decision
points which determine how this part
applies in particular circumstances, e.g.,
a decision as to whether a museum
‘‘controls’’ human remains and cultural
objects within the meaning of the
regulations, or a decision as to whether
an object is a ‘‘human remain,’’ ‘‘funerary
object,’’ ‘‘sacred object,’’ or ‘‘object of
cultural patrimony’’ within the meaning
of the regulations. Any final
determination making the Act or this
part inapplicable is subject to review
under section 15 of the Act. With
respect to Federal agencies, the final
denial of a request of a lineal
descendant, Indian tribe, or Native
Hawaiian organization for the
repatriation or disposition of human

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Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Rules and Regulations
remains, funerary objects, sacred
objects, or objects of cultural patrimony
brought under, and in compliance with,
the Act and this part constitutes a final
agency action under the Administrative
Procedure Act (5 U.S.C. 704).
(c) The information collection
requirements contained in this part have
been approved by the Office of
Management and Budget under 44
U.S.C. 3501 et seq. and assigned control
number 1024–0144. A Federal agency
may not conduct or sponsor, and you
are not required to respond to, a
collection of information unless it
displays a currently valid OMB control
number.
■ 3. Amend § 10.2 by revising paragraph
(e) and adding paragraph (g)(5) to read
as follows:
§ 10.2

Definitions.

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*

*
*
*
*
(e)(1) What is cultural affiliation?
Cultural affiliation means that there is a
relationship of shared group identity
that can be reasonably 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, anthropological,
linguistic, folklore, oral tradition,
historical evidence, or other information
or expert opinion—reasonably leads to
such a conclusion.
(2) What does culturally
unidentifiable mean? Culturally
unidentifiable refers to human remains
and associated funerary objects in
museum or Federal agency collections
for which no lineal descendant or
culturally affiliated Indian tribe or
Native Hawaiian organization has been
identified through the inventory
process.
*
*
*
*
*
(g) * * *
(5) Disposition means the transfer of
control over Native American human
remains, funerary objects, sacred
objects, and objects of cultural
patrimony by a museum or Federal
agency under this part. This part
establishes disposition procedures for
several different situations:
(i) Custody of human remains,
funerary objects, sacred objects, and
objects of cultural patrimony excavated
intentionally from, or discovered
inadvertently on, Federal or tribal lands
after November 16, 1990, is established
under § 10.6.
(ii) Repatriation of human remains,
funerary objects, sacred objects, and

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objects of cultural patrimony in
museum and Federal agency collections
to a lineal descendant or culturally
affiliated Indian tribe or Native
Hawaiian organization is established
under § 10.10.
(iii) Disposition of culturally
unidentifiable human remains, with or
without associated funerary objects, in
museum or Federal agency collections is
established under § 10.11.
■ 4. Amend § 10.9 by revising
paragraphs (e)(2), (5), and (6) to read as
follows:
§ 10.9

Inventories.

*

*
*
*
*
(e) * * *
(2) The notice of inventory
completion must:
(i) Summarize the contents of the
inventory in sufficient detail so as to
enable the recipients to determine their
interest in claiming the inventoried
items;
(ii) Identify each particular set of
human remains or each associated
funerary object and the circumstances
surrounding its acquisition;
(iii) Describe the human remains or
associated funerary objects that are
clearly culturally affiliated with an
Indian tribe or Native Hawaiian
organization and identify the Indian
tribe or Native Hawaiian organization;
(iv) Describe the human remains or
associated funerary objects that are not
clearly identifiable as culturally
affiliated with an Indian tribe or Native
Hawaiian organization, but that are
likely to be culturally affiliated with a
particular Indian tribe or Native
Hawaiian organization given the totality
of circumstances surrounding
acquisition of the human remains or
associated objects; and
(v) Describe those human remains,
with or without associated funerary
objects, that are culturally
unidentifiable but that are subject to
disposition under § 10.11.
*
*
*
*
*
(5) Upon request by an Indian tribe or
Native Hawaiian organization that has
received or should have received a
notice and inventory under paragraphs
(e)(1) and (e)(2) of this section, a
museum or Federal agency must supply
additional available documentation.
(i) For purposes of this paragraph,
‘‘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 geographic origin,
cultural affiliation, and basic facts
surrounding the acquisition and

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12403

accession of human remains and
associated funerary objects.
(ii) Documentation supplied under
this paragraph by a Federal agency or to
a Federal agency is considered a public
record except as exempted under
relevant laws, such as the Freedom of
Information Act (5 U.S.C. 552), Privacy
Act (5 U.S.C. 552a), Archaeological
Resources Protection Act (16 U.S.C.
470hh), National Historic Preservation
Act (16 U.S.C. 470w–3), and any other
legal authority exempting the
information from public disclosure.
(iii) Neither a request for
documentation nor any other provisions
of this part may be construed as
authorizing either:
(A) The initiation of new scientific
studies of the human remains and
associated funerary objects; or
(B) Other means of acquiring or
preserving additional scientific
information from the remains and
objects.
(6) This paragraph applies when a the
museum or Federal agency official
determines that it has possession of or
control over human remains or
associated funerary objects that cannot
be identified as affiliated with a lineal
descendent, Indian tribe, or Native
Hawaiian organization The museum or
Federal agency must provide the
Manager, National NAGPRA Program
notice of its determination and a list of
the culturally unidentifiable human
remains and any associated funerary
objects. The Manager, National
NAGPRA Program must make this
information available to members of the
Review Committee. Culturally
unidentifiable human remains, with or
without associated funerary objects, are
subject to disposition under § 10.11.
*
*
*
*
*
■ 5. Add § 10.11 to read as follows:
§ 10.11 Disposition of culturally
unidentifiable human remains.

(a) General. This section implements
section 8(c)(5) of the Act and applies to
human remains previously determined
to be Native American under § 10.9, but
for which no lineal descendant or
culturally affiliated Indian tribe or
Native Hawaiian organization has been
identified.
(b) Consultation. (1) The museum or
Federal agency official must initiate
consultation regarding the disposition of
culturally unidentifiable human
remains and associated funerary objects:
(i) Within 90 days of receiving a
request from an Indian tribe or Native
Hawaiian organization to transfer
control of culturally unidentifiable
human remains and associated funerary
objects; or

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Federal Register / Vol. 75, No. 49 / Monday, March 15, 2010 / Rules and Regulations

(ii) If no request is received, before
any offer to transfer control of culturally
unidentifiable human remains and
associated funerary objects.
(2) The museum or Federal agency
official must initiate consultation with
officials and traditional religious leaders
of all Indian tribes and Native Hawaiian
organizations:
(i) From whose tribal lands, at the
time of the removal, the human remains
and associated funerary objects were
removed; and
(ii) From whose aboriginal lands the
human remains and associated funerary
objects were removed. Aboriginal
occupation may be recognized by a final
judgment of the Indian Claims
Commission or the United States Court
of Claims, or a treaty, Act of Congress,
or Executive Order.
(3) The museum or Federal agency
official must provide the following
information in writing to all Indian
tribes and Native Hawaiian
organizations with which the museum
or Federal agency consults:
(i) A list of all Indian tribes and
Native Hawaiian organizations that are
being, or have been, consulted regarding
the particular human remains and
associated funerary objects;
(ii) A list of any Indian groups that are
not federally-recognized and are known
to have a relationship of shared group
identity with the particular human
remains and associated funerary objects;
and
(iii) An offer to provide a copy of the
original inventory and additional
documentation regarding the particular
human remains and associated funerary
objects.
(4) During consultation, museum and
Federal agency officials must request, as
appropriate, the following information
from Indian tribes and Native Hawaiian
organizations:
(i) The name and address of the
Indian tribal official to act as
representative in consultations related
to particular human remains and
associated funerary objects;
(ii) The names and appropriate
methods to contact any traditional
religious leaders who should be
consulted regarding the human remains
and associated funerary objects;
(iii) Temporal and geographic criteria
that the museum or Federal agency
should use to identify groups of human
remains and associated funerary objects
for consultation;
(iv) The names and addresses of other
Indian tribes, Native Hawaiian
organizations, or Indian groups that are
not federally-recognized who should be
included in the consultations; and

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(v) A schedule and process for
consultation.
(5) During consultation, the museum
or Federal agency official should seek to
develop a proposed disposition for
culturally unidentifiable human
remains and associated funerary objects
that is mutually agreeable to the parties
specified in paragraph (b)(2) of this
section. The agreement must be
consistent with this part.
(6) If consultation results in a
determination that human remains and
associated funerary objects previously
determined to be culturally
unidentifiable are actually related to a
lineal descendant or culturally affiliated
with an Indian tribe or Native Hawaiian
organization, the notification and
repatriation of the human remains and
associated funerary objects must be
completed as required by § 10.9(e) and
§ 10.10(b).
(c) Disposition of culturally
unidentifiable human remains and
associated funerary objects. (1) A
museum or Federal agency that is
unable to prove that it has right of
possession, as defined at § 10.10(a)(2), to
culturally unidentifiable human
remains must offer to transfer control of
the human remains to Indian tribes and
Native Hawaiian organizations in the
following priority order:
(i) The Indian tribe or Native
Hawaiian organization from whose
tribal land, at the time of the excavation
or removal, the human remains were
removed; or
(ii) The Indian tribe or tribes that are
recognized as aboriginal to the area from
which the human remains were
removed. Aboriginal occupation may be
recognized by a final judgment of the
Indian Claims Commission or the
United States Court of Claims, or a
treaty, Act of Congress, or Executive
Order.
(2) If none of the Indian tribes or
Native Hawaiian organizations
identified in paragraph (c)(1) of this
section agrees to accept control, a
museum or Federal agency may:
(i) Transfer control of culturally
unidentifiable human remains to other
Indian tribes or Native Hawaiian
organizations; or
(ii) Upon receiving a recommendation
from the Secretary or authorized
representative:
(A) Transfer control of culturally
unidentifiable human remains to an
Indian group that is not federallyrecognized; or
(B) Reinter culturally unidentifiable
human remains according to State or
other law.
(3) The Secretary may make a
recommendation under paragraph

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(c)(2)(ii) of this section only with proof
from the museum or Federal agency that
it has consulted with all Indian tribes
and Native Hawaiian organizations
listed in paragraph (c)(1) of this section
and that none of them has objected to
the proposed transfer of control.
(4) A museum or Federal agency may
also transfer control of funerary objects
that are associated with culturally
unidentifiable human remains. The
Secretary recommends that museums
and Federal agencies transfer control if
Federal or State law does not preclude
it.
(5) The exceptions listed at § 10.10(c)
apply to the requirements in paragraph
(c)(1) of this section.
(6) Any disposition of human remains
excavated or removed from Indian lands
as defined by the Archaeological
Resources Protection Act (16 U.S.C.
470bb (4)) must also comply with the
provisions of that statute and its
implementing regulations.
(d) Notification. (1) Disposition of
culturally unidentifiable human
remains and associated funerary objects
under paragraph (c) of this section may
not occur until at least 30 days after
publication of a notice of inventory
completion in the Federal Register as
described in § 10.9.
(2) Within 30 days of publishing the
notice of inventory completion, the
National NAGPRA Program manager
must:
(i) Revise the Review Committee
inventory of culturally unidentifiable
human remains and associated funerary
objects to indicate the notice’s
publication; and
(ii) Make the revised Review
Committee inventory accessible to
Indian tribes, Native Hawaiian
organizations, Indian groups that are not
federally-recognized, museums, and
Federal agencies.
(e) Disputes. Any person who wishes
to contest actions taken by museums or
Federal agencies regarding the
disposition of culturally unidentifiable
human remains and associated funerary
objects should do so through informal
negotiations to achieve a fair resolution.
The Review Committee may facilitate
informal resolution of any disputes that
are not resolved by good faith
negotiation under § 10.17. In addition,
the United States District Courts have
jurisdiction over any action brought that
alleges a violation of the Act.
■ 6. Amend § 10.12 by revising
paragraphs (b)(1)(ii), (iii), and (iv) and
adding paragraph (b)(1)(ix) to read as
follows:
§ 10.12

*

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(b) * * *
(1) * * *
(ii) After November 16, 1993, or a date
specified under § 10.13, whichever
deadline is applicable, has not
completed summaries as required by the
Act; or
(iii) After November 16, 1995, or a
date specified under § 10.13, or the date
specified in an extension issued by the
Secretary, whichever deadline is
applicable, has not completed
inventories as required by the Act; or
(iv) After May 16, 1996, or 6 months
after completion of an inventory under
an extension issued by the Secretary, or
6 months after the date specified for
completion of an inventory under
§ 10.13, whichever deadline is
applicable, has not notified culturally
affiliated Indian tribes and Native
Hawaiian organizations; or
*
*
*
*
*

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(ix) Upon receipt of a claim consistent
with § 10.11(c)(1), refuses to offer to
transfer control of culturally
unidentifiable human remains for which
it cannot prove right of possession.
*
*
*
*
*
■ 7. Amend § 10.15 by revising
paragraph (c) to read as follows:
§ 10.15

Limitations and remedies.

*

*
*
*
*
(c) Exhaustion of remedies. (1) A
person’s administrative remedies are
exhausted only when the person has
filed a written claim with the
responsible museum or Federal agency
and the claim has been duly denied
under this part. This paragraph applies
to both:
(i) Human remains, funerary objects,
sacred objects, or objects of cultural
patrimony subject to Subpart B of this
part; and

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(ii) Federal lands subject to subpart C
this part.
(2) A Federal agency’s final denial of
a repatriation request constitutes a final
agency action under the Administrative
Procedure Act (5 U.S.C. 704). As used
in this paragraph, ‘‘repatriation request’’
means the request of a lineal
descendant, Indian tribe, or Native
Hawaiian organization for repatriation
or disposition of human remains,
funerary objects, sacred objects, or
objects of cultural patrimony brought
under the Act and this part.
*
*
*
*
*
Dated: March 4, 2010.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2010–5283 Filed 3–12–10; 8:45 am]
BILLING CODE P

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