43 CFR Part 10

§ 9.13

43 CFR Subtitle A (10–1–14 Edition)

(c) The Secretary reviews each state
plan that a state has simplified, consolidated, or substituted and accepts
the plan only if its contents meet Federal requirements.
§ 9.13 May the Secretary waive any
provision of these regulations?
In an emergency, the Secretary may
waive any provision of these regulations.

PART
10—NATIVE
AMERICAN
GRAVES PROTECTION AND REPATRIATION REGULATIONS
Subpart A—Introduction
Sec.
10.1 Purpose, applicability, and information
collection.
10.2 Definitions

Subpart B—Human Remains, Funerary Objects, Sacred Objects, or Objects of
Cultural Patrimony From Federal or
Tribal Lands
10.3 Intentional archaeological excavations.
10.4 Inadvertent discoveries.
10.5 Consultation.
10.6 Custody.
10.7 Disposition of unclaimed human remains, funerary objects, sacred objects,
or objects of cultural patrimony. [Reserved]

Subpart C—Human Remains, Funerary Objects, Sacred Objects, or Objects of
Cultural Patrimony in Museums and
Federal Collections
10.8 Summaries.
10.9 Inventories.
10.10 Repatriation.
10.11 Disposition of culturally unidentifiable human remains.
10.12 Civil penalties.
10.13 Future applicability.

Subpart D—General
10.14 Lineal descent and cultural affiliation.
10.15 Limitations and remedies.
10.16 Review committee.
10.17 Dispute resolution.
AUTHORITY: 16 U.S.C. 470dd; 25 U.S.C. 9, 3001
et seq.
SOURCE: 60 FR 62158, Dec. 4, 1995, unless
otherwise noted.

Subpart A—Introduction
§ 10.1 Purpose, applicability, and information collection.
(a) Purpose. These regulations carry
out provisions of the Native American
Graves Protection and Repatriation
Act of 1990 (Pub.L. 101–601; 25 U.S.C.
3001–3013;104 Stat. 3048–3058). These regulations develop a systematic process
for determining the rights of lineal descendants and Indian tribes and Native
Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, or objects
of cultural patrimony with which they
are affiliated.
(b) Applicability. (1) These regulations
pertain to the identification and appropriate disposition of human remains,
funerary objects, sacred objects, or objects of cultural patrimony that are:
(i) In Federal possession or control;
or
(ii) In the possession or control of
any institution or State or local government receiving Federal funds; or
(iii) Excavated intentionally or discovered inadvertently on Federal or
tribal lands.
(2) These regulations apply to human
remains, funerary objects, sacred objects, or objects of cultural patrimony
which are indigenous to Alaska, Hawaii, and the continental United
States, but not to territories of the
United States.
(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 remains, funerary
objects, sacred objects, or objects of
cultural patrimony brought under, and
in compliance with, the Act and this

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Office of the Secretary, Interior

§ 10.2

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.
[60 FR 62158, Dec. 4, 1995, as amended at 62
FR 41293, Aug. 1, 1997; 75 FR 12402, Mar. 15,
2010]

§ 10.2 Definitions.
In addition to the term Act, which
means the Native American Graves
Protection and Repatriation Act as described above, definitions used in these
regulations are grouped in seven classes: Parties required to comply with
these regulations; Parties with standing to make claims under these regulations; Parties responsible for implementing these regulations; Objects covered by these regulations; Cultural affiliation; Types of land covered by
these regulations; and Procedures required by these regulations.
(a) Who must comply with these regulations? (1) Federal agency means any department, agency, or instrumentality
of the United States. Such term does
not include the Smithsonian Institution as specified in section 2 (4) of the
Act.
(2) Federal agency official means any
individual authorized by delegation of
authority within a Federal agency to
perform the duties relating to these
regulations.
(3) Museum means any institution or
State or local government agency (including any institution of higher learning) that has possession of, or control
over, human remains, funerary objects,
sacred objects, or objects of cultural
patrimony and receives Federal funds.
(i) The term ‘‘possession’’ means having physical custody of human remains, funerary objects, sacred objects,
or objects of cultural patrimony with a
sufficient legal interest to lawfully
treat the objects as part of its collection for purposes of these regulations.
Generally, a museum or Federal agen-

cy would not be considered to have possession of human remains, funerary objects, sacred objects, or objects of cultural patrimony on loan from another
individual, museum, or Federal agency.
(ii) 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. Generally, a
museum or Federal agency that has
loaned human remains, funerary objects, sacred objects, or objects of cultural patrimony to another individual,
museum, or Federal agency is considered to retain control of those human
remains, funerary objects, sacred objects, or objects of cultural patrimony
for purposes of these regulations.
(iii) The phrase ‘‘receives Federal
funds’’ means the receipt of funds by a
museum after November 16, 1990, from
a Federal agency through any grant,
loan, contract (other than a procurement contract), or other arrangement
by which a Federal agency makes or
made available to a museum aid in the
form of funds. Federal funds provided
for any purpose that are received by a
larger entity of which the museum is a
part are considered Federal funds for
the purposes of these regulations. For
example, if a museum is a part of a
State or local government or a private
university and the State or local government or private university receives
Federal funds for any purpose, the museum is considered to receive Federal
funds for the purpose of these regulations.
(4) Museum official means the individual within a museum designated as
being responsible for matters relating
to these regulations.
(5) Person means an individual, partnership, corporation, trust, institution,
association, or any other private entity, or, any official, employee, agent,
department, or instrumentality of the
United States, or of any Indian tribe or
Native Hawaiian organization, or of
any State or political subdivision

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§ 10.2

43 CFR Subtitle A (10–1–14 Edition)

thereof that discovers or discovered
human remains, funerary objects, sacred objects or objects of cultural patrimony on Federal or tribal lands after
November 16, 1990.
(b) Who has standing to make a claim
under these regulations? (1) Lineal descendant means an individual tracing
his or her ancestry directly and without interruption by means of the traditional kinship system of the appropriate Indian tribe or Native Hawaiian
organization or by the common law
system of descendance to a known Native American individual whose remains, funerary objects, or sacred objects are being claimed under these
regulations.
(2) [Reserved]
(3)(i) Native Hawaiian organization
means any organization that:
(A) Serves and represents the interests of Native Hawaiians;
(B) Has as a primary and stated purpose the provision of services to Native
Hawaiians; and
(C) Has expertise in Native Hawaiian
affairs.
(ii) The term Native Hawaiian means
any individual who is a descendant of
the aboriginal people who, prior to
1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. Such organizations must include the Office of
Hawaiian Affairs and Hui Ma¯lama I
Na¯Ku¯puna ’O Hawai’i Nei.
(4) Indian tribe official means the principal leader of an Indian tribe or Native Hawaiian organization or the individual officially designated by the governing body of an Indian tribe or Native Hawaiian organization or as otherwise provided by tribal code, policy, or
established procedure as responsible
for matters relating to these regulations.
(c) Who is responsible for carrying out
these regulations? (1) Secretary means
the Secretary of the Interior or a designee.
(2) Review Committee means the advisory committee established pursuant
to section 8 of the Act.
(3) Manager, National NAGPRA Program means the official of the Department of the Interior designated by the
Secretary as responsible for administration of matters relating to this part.

Communications to the Manager, National NAGPRA Program should be
sent to the mailing address listed on
the National NAGPRA Contact Information Web site, http://www.nps.gov/
nagpra/CONTACTS/INDEX.HTM.
(d) What objects are covered by these
regulations? The Act covers four types
of Native American objects. The term
Native American means of, or relating
to, a tribe, people, or culture indigenous to the United States, including
Alaska and Hawaii.
(1) Human remains means the physical
remains of the body of a person of Native American ancestry. The term does
not include remains or portions of remains that may reasonably be determined to have been freely given or naturally shed by the individual from
whose body they were obtained, such as
hair made into ropes or nets. For the
purposes of determining cultural affiliation, human remains incorporated
into a funerary object, sacred object, or
object of cultural patrimony, as defined below, must be considered as part
of that item.
(2) Funerary objects means items that,
as part of the death rite or ceremony of
a culture, are reasonably believed to
have been placed intentionally at the
time of death or later with or near individual human remains. Funerary objects must be identified by a preponderance of the evidence as having been removed from a specific burial site of an
individual affiliated with a particular
Indian tribe or Native Hawaiian organization or as being related to specific
individuals or families or to known
human remains. The term burial site
means any natural or prepared physical location, whether originally below,
on, or above the surface of the earth,
into which, as part of the death rite or
ceremony of a culture, individual
human remains were deposited, and includes rock cairns or pyres which do
not fall within the ordinary definition
of gravesite. For purposes of completing the summary requirements in
§ 10.8 and the inventory requirements of
§ 10.9:
(i) Associated funerary objects means
those funerary objects for which the
human remains with which they were
placed intentionally are also in the
possession or control of a museum or

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§ 10.2

Federal agency. Associated funerary
objects also means those funerary objects that were made exclusively for
burial purposes or to contain human
remains.
(ii) Unassociated funerary objects
means those funerary objects for which
the human remains with which they
were placed intentionally are not in
the possession or control of a museum
or Federal agency. Objects that were
displayed with individual human remains as part of a death rite or ceremony of a culture and subsequently returned or distributed according to traditional custom to living descendants
or other individuals are not considered
unassociated funerary objects.
(3) Sacred objects means items that
are specific ceremonial objects needed
by traditional Native American religious leaders for the practice of traditional Native American religions by
their present-day adherents. While
many items, from ancient pottery
sherds to arrowheads, might be imbued
with sacredness in the eyes of an individual, these regulations are specifically limited to objects that were devoted to a traditional Native American
religious ceremony or ritual and which
have religious significance or function
in the continued observance or renewal
of such ceremony. The term traditional
religious leader means a person who is
recognized by members of an Indian
tribe or Native Hawaiian organization
as:
(i) Being responsible for performing
cultural duties relating to the ceremonial or religious traditions of that Indian tribe or Native Hawaiian organization, or
(ii) Exercising a leadership role in an
Indian tribe or Native Hawaiian organization based on the tribe or organization’s cultural, ceremonial, or religious
practices.
(4) Objects of cultural patrimony means
items having ongoing historical, traditional, or cultural importance central
to the Indian tribe or Native Hawaiian
organization itself, rather than property owned by an individual tribal or
organization member. These objects
are of such central importance that
they may not be alienated, appropriated, or conveyed by any individual
tribal or organization member. Such

objects must have been considered inalienable by the culturally affiliated
Indian tribe or Native Hawaiian organization at the time the object was separated from the group. Objects of cultural patrimony include items such as
Zuni War Gods, the Confederacy Wampum Belts of the Iroquois, and other
objects of similar character and significance to the Indian tribe or Native Hawaiian organization as a whole.
(e)(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.
(f) What types of lands do the excavation and discovery provisions of these
regulations apply to? (1) Federal lands
means any land other than tribal lands
that are controlled or owned by the
United States Government, including
lands selected by but not yet conveyed
to Alaska Native Corporations and
groups organized pursuant to the Alaska Native Claims Settlement Act (43
U.S.C. 1601 et seq.). United States ‘‘control,’’ as used in this definition, refers
to those lands not owned by the United
States but in which the United States
has a legal interest sufficient to permit
it to apply these regulations without
abrogating the otherwise existing legal
rights of a person.
(2) Tribal lands means all lands which:
(i) Are within the exterior boundaries
of any Indian reservation including,
but not limited to, allotments held in

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§ 10.3

43 CFR Subtitle A (10–1–14 Edition)

trust or subject to a restriction on
alienation by the United States; or
(ii) Comprise dependent Indian communities as recognized pursuant to 18
U.S.C. 1151; or
(iii) Are administered for the benefit
of Native Hawaiians pursuant to the
Hawaiian Homes Commission Act of
1920 and section 4 of the Hawaiian
Statehood Admission Act (Pub.L. 86–3;
73 Stat. 6).
(iv) Actions authorized or required
under these regulations will not apply
to tribal lands to the extent that any
action would result in a taking of property without compensation within the
meaning of the Fifth Amendment of
the United States Constitution.
(g) What procedures are required by
these regulations? (1) Summary means
the written description of collections
that may contain unassociated funerary objects, sacred objects, and objects
of cultural patrimony required by § 10.8
of these regulations.
(2) Inventory means the item-by-item
description of human remains and associated funerary objects.
(3) Intentional excavation means the
planned archeological removal of
human remains, funerary objects, sacred objects, or objects of cultural patrimony found under or on the surface
of Federal or tribal lands pursuant to
section 3 (c) of the Act.
(4) Inadvertent discovery means the
unanticipated encounter or detection
of human remains, funerary objects,
sacred objects, or objects of cultural
patrimony found under or on the surface of Federal or tribal lands pursuant
to section 3 (d) of the Act.
(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

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.
[60 FR 62158, Dec. 4, 1995, as amended at 62
FR 41293, Aug. 1, 1997; 70 FR 57179, Sept. 30,
2005; 71 FR 16501, Apr. 3, 2006; 75 FR 12403,
Mar. 15, 2010; 76 FR 39009, July 5, 2011; 78 FR
27082, May 9, 2013]

Subpart B—Human Remains, Funerary Objects, Sacred Objects, or Objects of Cultural
Patrimony From Federal or
Tribal Lands
§ 10.3 Intentional archaeological excavations.
(a) General. This section carries out
section 3 (c) of the Act regarding the
custody of human remains, funerary
objects, sacred objects, or objects of
cultural patrimony that are excavated
intentionally from Federal or tribal
lands after November 16, 1990.
(b) Specific Requirements. These regulations permit the intentional excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony from Federal or tribal
lands only if:
(1) The objects are excavated or removed following the requirements of
the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa et seq.)
and its implementing regulations. Regarding private lands within the exterior boundaries of any Indian reservation, the Bureau of Indian Affairs (BIA)
will serve as the issuing agency for any
permits required under the Act. For
BIA procedures for obtaining such permits, see 25 CFR part 262 or contact the
Deputy Commissioner of Indian Affairs, Department of the Interior,
Washington, DC 20240. Regarding lands
administered for the benefit of Native
Hawaiians pursuant to the Hawaiian
Homes Commission Act, 1920, and section 4 of Pub. L. 86–3, the Department
of Hawaiian Home Lands will serve as

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§ 10.4

the issuing agency for any permits required under the Act, with the Hawaii
State Historic Preservation Division of
the Department of Land and Natural
Resources acting in an advisory capacity for such issuance. Procedures and
requirements for issuing permits will
be consistent with those required by
the ARPA and its implementing regulations;
(2) The objects are excavated after
consultation with or, in the case of
tribal lands, consent of, the appropriate Indian tribe or Native Hawaiian
organization pursuant to § 10.5;
(3) The disposition of the objects is
consistent with their custody as described in § 10.6; and
(4) Proof of the consultation or consent is shown to the Federal agency official or other agency official responsible for the issuance of the required
permit.
(c) Procedures. (1) The Federal agency
official must take reasonable steps to
determine whether a planned activity
may result in the excavation of human
remains, funerary objects, sacred objects, or objects of cultural patrimony
from Federal lands. Prior to issuing
any approvals or permits for activities,
the Federal agency official must notify
in writing the Indian tribes or Native
Hawaiian organizations that are likely
to be culturally affiliated with any
human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated. The
Federal agency official must also notify any present-day Indian tribe which
aboriginally occupied the area of the
planned activity and any other Indian
tribes or Native Hawaiian organizations that the Federal agency official
reasonably believes are likely to have a
cultural relationship to the human remains, funerary objects, sacred objects,
or objects of cultural patrimony that
are expected to be found. The notice
must be in writing and describe the
planned activity, its general location,
the basis upon which it was determined
that human remains, funerary objects,
sacred objects, or objects of cultural
patrimony may be excavated, and, the
basis for determining likely custody
pursuant to § 10.6. The notice must also
propose a time and place for meetings
or consultations to further consider

the activity, the Federal agency’s proposed treatment of any human remains, funerary objects, sacred objects,
or objects of cultural patrimony that
may be excavated, and the proposed
disposition of any excavated human remains, funerary objects, sacred objects,
or objects of cultural patrimony. Written notification should be followed up
by telephone contact if there is no response in 15 days. Consultation must be
conducted pursuant to § 10.5.
(2) Following consultation, the Federal agency official must complete a
written plan of action (described in
§ 10.5(e)) and execute the actions called
for in it.
(3) If the planned activity is also subject to review under section 106 of the
National Historic Preservation Act (16
U.S.C. 470 et seq.), the Federal agency
official should coordinate consultation
and any subsequent agreement for
compliance conducted under that Act
with the requirements of § 10.3 (c)(2)
and § 10.5. Compliance with these regulations does not relieve Federal agency
officials of requirements to comply
with section 106 of the National Historic Preservation Act (16 U.S.C. 470 et
seq.).
(4) If an Indian tribe or Native Hawaiian organization receives notice of
a planned activity or otherwise becomes aware of a planned activity that
may result in the excavation of human
remains, funerary objects, sacred objects, or objects of cultural patrimony
on tribal lands, the Indian tribe or Native Hawaiian organization may take
appropriate steps to:
(i) Ensure that the human remains,
funerary objects, sacred objects, or objects of cultural patrimony are excavated or removed following § 10.3 (b),
and
(ii) Make certain that the disposition
of any human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or discovered inadvertently as
a result of the planned activity are carried out following § 10.6.
§ 10.4 Inadvertent discoveries.
(a) General. This section carries out
section 3 (d) of the Act regarding the
custody of human remains, funerary
objects, sacred objects, or objects of

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§ 10.4

43 CFR Subtitle A (10–1–14 Edition)

cultural patrimony that are discovered
inadvertently on Federal or tribal
lands after November 16, 1990.
(b) Discovery. Any person who knows
or has reason to know that he or she
has discovered inadvertently human remains, funerary objects, sacred objects,
or objects of cultural patrimony on
Federal or tribal lands after November
16, 1990, must provide immediate telephone notification of the inadvertent
discovery, with written confirmation,
to the responsible Federal agency official with respect to Federal lands, and,
with respect to tribal lands, to the responsible Indian tribe official. The requirements of these regulations regarding inadvertent discoveries apply
whether or not an inadvertent discovery is duly reported. If written confirmation is provided by certified mail,
the return receipt constitutes evidence
of the receipt of the written notification by the Federal agency official or
Indian tribe official.
(c) Ceasing activity. If the inadvertent
discovery occurred in connection with
an on-going activity on Federal or tribal lands, the person, in addition to providing the notice described above, must
stop the activity in the area of the inadvertent discovery and make a reasonable effort to protect the human remains, funerary objects, sacred objects,
or objects of cultural patrimony discovered inadvertently.
(d) Federal lands. (1) As soon as possible, but no later than three (3) working days after receipt of the written
confirmation of notification with respect to Federal lands described in
§ 10.4 (b), the responsible Federal agency official must:
(i) Certify receipt of the notification;
(ii) Take immediate steps, if necessary, to further secure and protect
inadvertently discovered human remains, funerary objects, sacred objects,
or objects of cultural patrimony, including, as appropriate, stabilization or
covering;
(iii) Notify any known lineal descendants of a deceased Native American individual whose human remains
and associated funerary objects were
discovered of such discovery, and, with
respect to a discovery of human remains, associated funerary objects,
unassociated funerary objects, sacred

objects, or objects of cultural patrimony, notify the Indian tribes or Native Hawaiian organizations likely to
be culturally affiliated with the cultural items, the Indian tribe or Native
Hawaiian organization that aboriginally occupied the area, and any other
Indian tribe or Native Hawaiian organization known to have a cultural relationship to the cultural items. This notification must be by telephone with
written confirmation and must include
information about the kinds of human
remains, associated funerary objects,
unassociated funerary objects, sacred
objects, or objects of cultural patrimony, their condition, and the circumstances of their discovery;
(iv) Initiate consultation on the inadvertent discovery pursuant to § 10.5;
(v) If the human remains, funerary
objects, sacred objects, or objects of
cultural patrimony must be excavated
or removed, follow the requirements
and procedures in § 10.3 (b) of these regulations; and
(vi) Ensure that disposition of all inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony is carried
out following § 10.6.
(2) Resumption of activity. The activity that resulted in the inadvertent
discovery may resume thirty (30) days
after certification by the notified Federal agency of receipt of the written
confirmation of notification of inadvertent discovery if the resumption of
the activity is otherwise lawful. The
activity may also resume, if otherwise
lawful, at any time that a written,
binding agreement is executed between
the Federal agency and the affiliated
Indian tribes or Native Hawaiian organizations that adopt a recovery plan
for the excavation or removal of the
human remains, funerary objects, sacred objects, or objects of cultural patrimony following § 10.3 (b)(1) of these
regulations. The disposition of all
human remains, funerary objects, sacred objects, or objects of cultural patrimony must be carried out following
§ 10.6.
(e) Tribal lands. (1) As soon as possible, but no later than three (3) working days after receipt of the written
confirmation of notification with respect to Tribal lands described in § 10.4

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§ 10.5

(b), the responsible Indian tribe official
may:
(i) Certify receipt of the notification;
(ii) Take immediate steps, if necessary, to further secure and protect
inadvertently discovered human remains, funerary objects, sacred objects,
or objects of cultural patrimony, including, as appropriate, stabilization or
covering;
(iii) If the human remains, funerary
objects, sacred objects, or objects of
cultural patrimony must be excavated
or removed, follow the requirements
and procedures in § 10.3 (b) of these regulations; and
(iv) Ensure that disposition of all inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony is carried
out following § 10.6.
(2) Resumption of Activity. The activity that resulted in the inadvertent
discovery may resume if otherwise lawful after thirty (30) days of the certification of the receipt of notification by
the Indian tribe or Native Hawaiian organization.
(f) Federal agency officials. Federal
agency officials should coordinate
their responsibilities under this section
with their emergency discovery responsibilities under section 106 of the National Historical Preservation Act (16
U.S.C. 470 (f) et seq.), 36 CFR 800.11 or
section 3 (a) of the Archeological and
Historic Preservation Act (16 U.S.C. 469
(a-c)). Compliance with these regulations does not relieve Federal agency
officials of the requirement to comply
with section 106 of the National Historical Preservation Act (16 U.S.C. 470 (f)
et seq.), 36 CFR 800.11 or section 3 (a) of
the Archeological and Historic Preservation Act (16 U.S.C. 469 (a-c)).
(g) Notification requirement in authorizations. All Federal authorizations to
carry out land use activities on Federal
lands or tribal lands, including all
leases and permits, must include a requirement for the holder of the authorization to notify the appropriate Federal or tribal official immediately upon
the discovery of human remains, funerary objects, sacred objects, or objects

of cultural patrimony pursuant to § 10.4
(b) of these regulations.
[60 FR 62158, Dec. 4, 1995, as amended at 62
FR 41293, Aug. 1, 1997; 78 FR 27082, May 9,
2013]

§ 10.5

Consultation.

Consultation as part of the intentional excavation or inadvertent discovery of human remains, funerary objects, sacred objects, or objects of cultural patrimony on Federal lands must
be conducted in accordance with the
following requirements.
(a) Consulting parties. Federal agency
officials must consult with known lineal descendants and Indian tribe officials:
(1) From Indian tribes on whose aboriginal lands the planned activity will
occur or where the inadvertent discovery has been made; and
(2) From Indian tribes and Native Hawaiian organizations that are, or are
likely to be, culturally affiliated with
the human remains, funerary objects,
sacred objects, or objects of cultural
patrimony; and
(3) From Indian tribes and Native Hawaiian organizations that have a demonstrated cultural relationship with
the human remains, funerary objects,
sacred objects, or objects of cultural
patrimony.
(b) Initiation of consultation. (1) Upon
receiving notice of, or otherwise becoming aware of, an inadvertent discovery or planned activity that has resulted or may result in the intentional
excavation or inadvertent discovery of
human remains, funerary objects, sacred objects, or objects of cultural patrimony on Federal lands, the responsible Federal agency official must, as
part of the procedures described in
§§ 10.3 and 10.4, take appropriate steps
to identify the lineal descendant, Indian tribe, or Native Hawaiian organization entitled to custody of the
human remains, funerary objects, sacred objects, or objects of cultural patrimony pursuant to § 10.6 and § 10.14.
The Federal agency official shall notify
in writing:
(i) Any known lineal descendants of
the deceased Native American individual whose human remains and associated funerary objects have been or

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43 CFR Subtitle A (10–1–14 Edition)

are likely to be excavated intentionally or discovered inadvertently;
and
(ii) The Indian tribes or Native Hawaiian organizations that are likely to
be culturally affiliated with the human
remains, funerary objects, sacred objects, or objects of cultural patrimony
that have been or are likely to be excavated intentionally or discovered inadvertently; and
(iii) The Indian tribes which aboriginally occupied the area in which the
human remains, funerary objects, sacred objects, or objects of cultural patrimony have been or are likely to be
excavated intentionally or discovered
inadvertently; and
(iv) The Indian tribes or Native Hawaiian organizations that have a demonstrated cultural relationship with
the human remains, funerary objects,
sacred objects, or objects of cultural
patrimony that have been or are likely
to be excavated intentionally or discovered inadvertently.
(2) The notice must propose a time
and place for meetings or consultation
to further consider the intentional excavation or inadvertent discovery, the
Federal agency’s proposed treatment of
the human remains, funerary objects,
sacred objects, or objects of cultural
patrimony that may be excavated, and
the proposed disposition of any intentionally excavated or inadvertently
discovered human remains, funerary
objects, sacred objects, or objects of
cultural patrimony.
(3) The consultation must seek to
identify traditional religious leaders
who should also be consulted and seek
to identify, where applicable, lineal descendants and Indian tribes or Native
Hawaiian organizations affiliated with
the human remains, funerary objects,
sacred objects, or objects of cultural
patrimony.
(c) Provision of information. During
the consultation process, as appropriate, the Federal agency official
must provide the following information
in writing to the lineal descendants
and the officials of Indian tribes or Native Hawaiian organizations that are or
are likely to be affiliated with the
human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or dis-

covered inadvertently on Federal
lands:
(1) A list of all lineal descendants and
Indian tribes or Native Hawaiian organizations that are being, or have been,
consulted regarding the particular
human remains, funerary objects, sacred objects, or objects of cultural patrimony;
(2) An indication that additional documentation used to identify affiliation
will be supplied upon request.
(d) Requests for information. During
the consultation process, Federal agency officials must request, as appropriate, the following information from
Indian tribes or Native Hawaiian organizations that are, or are likely to be,
affiliated pursuant to § 10.6 (a) with intentionally excavated or inadvertently
discovered human remains, funerary
objects, sacred objects, or objects of
cultural patrimony:
(1) Name and address of the Indian
tribe official to act as representative in
consultations related to particular
human remains, funerary objects, sacred objects, or objects of cultural patrimony;
(2) Names and appropriate methods
to contact lineal descendants who
should be contacted to participate in
the consultation process;
(3) Recommendations on how the
consultation process should be conducted; and
(4) Kinds of cultural items that the
Indian tribe or Native Hawaiian organization
considers
likely
to
be
unassociated funerary objects, sacred
objects, or objects of cultural patrimony.
(e) Written plan of action. Following
consultation, the Federal agency official must prepare, approve, and sign a
written plan of action. A copy of this
plan of action must be provided to the
lineal descendants, Indian tribes and
Native Hawaiian organizations involved. Lineal descendants and Indian
tribe official(s) may sign the written
plan of action as appropriate. At a minimum, the plan of action must comply
with § 10.3 (b)(1) and document the following:
(1) The kinds of objects to be considered as cultural items as defined in
§ 10.2 (b);

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§ 10.6

(2) The specific information used to
determine custody pursuant to § 10.6;
(3) The planned treatment, care, and
handling of human remains, funerary
objects, sacred objects, or objects of
cultural patrimony recovered;
(4) The planned archeological recording of the human remains, funerary objects, sacred objects, or objects of cultural patrimony recovered;
(5) The kinds of analysis planned for
each kind of object;
(6) Any steps to be followed to contact Indian tribe officials at the time
of intentional excavation or inadvertent discovery of specific human remains, funerary objects, sacred objects,
or objects of cultural patrimony;
(7) The kind of traditional treatment,
if any, to be afforded the human remains, funerary objects, sacred objects,
or objects of cultural patrimony by
members of the Indian tribe or Native
Hawaiian organization;
(8) The nature of reports to be prepared; and
(9) The planned disposition of human
remains, funerary objects, sacred objects, or objects of cultural patrimony
following § 10.6.
(f) Comprehensive agreements. Whenever possible, Federal Agencies should
enter into comprehensive agreements
with Indian tribes or Native Hawaiian
organizations that are affiliated with
human remains, funerary objects, sacred objects, or objects of cultural patrimony and have claimed, or are likely
to claim, those human remains, funerary objects, sacred objects, or objects
of cultural patrimony excavated intentionally or discovered inadvertently on
Federal
lands.
These
agreements
should address all Federal agency land
management activities that could result in the intentional excavation or
inadvertent discovery of human remains, funerary objects, sacred objects,
or objects of cultural patrimony. Consultation should lead to the establishment of a process for effectively carrying out the requirements of these
regulations regarding standard consultation procedures, the determination of custody consistent with procedures in this section and § 10.6, and the
treatment and disposition of human remains, funerary objects, sacred objects,
or objects of cultural patrimony. The

signed agreements, or the correspondence related to the effort to reach
agreements, must constitute proof of
consultation as required by these regulations.
(g) Traditional religious leaders. The
Federal agency official must be cognizant that Indian tribe officials may
need to confer with traditional religious leaders prior to making recommendations. Indian tribe officials
are under no obligation to reveal the
identity of traditional religious leaders.
[60 FR 62158, Dec. 4, 1995, as amended at 62
FR 41293, Aug. 1, 1997; 78 FR 27083, May 9,
2013]

§ 10.6 Custody.
(a) Priority of custody. This section
carries out section 3 (a) of the Act, subject to the limitations of § 10.15, regarding the custody of human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated
intentionally or discovered inadvertently in Federal or tribal lands after
November 16, 1990. For the purposes of
this section, custody means ownership
or control of human remains, funerary
objects, sacred objects, or objects of
cultural patrimony excavated intentionally or discovered inadvertently in
Federal or tribal lands after November
16, 1990. Custody of these human remains, funerary objects, sacred objects,
or objects of cultural patrimony is,
with priority given in the order listed:
(1) In the case of human remains and
associated funerary objects, in the lineal descendant of the deceased individual as determined pursuant to § 10.14
(b);
(2) When a lineal descendant of a deceased Native American individual
cannot be ascertained with respect to
the human remains and associated funerary objects, and with respect to
unassociated funerary objects, sacred
objects, and objects of cultural patrimony:
(i) In the Indian tribe on whose tribal
land the human remains, funerary objects, sacred objects, or objects of cultural patrimony were excavated intentionally or discovered inadvertently;
(ii) In the Indian tribe or Native Hawaiian organization that has the closest cultural affiliation with the human

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§ 10.7

43 CFR Subtitle A (10–1–14 Edition)

remains, funerary objects, sacred objects, or objects of cultural patrimony
as determined pursuant to § 10.14 (c); or
(iii) In circumstances in which the
cultural affiliation of the human remains, funerary objects, sacred objects,
or objects of cultural patrimony cannot be ascertained and the objects were
excavated intentionally or discovered
inadvertently on Federal land that is
recognized by a final judgment of the
Indian Claims Commission or the
United States Court of Claims as the
aboriginal land of an Indian tribe:
(A) In the Indian tribe aboriginally
occupying the Federal land on which
the human remains, funerary objects,
sacred objects, or objects of cultural
patrimony
were
excavated
intentionally or discovered inadvertently, or
(B) If a preponderance of the evidence
shows that a different Indian tribe or
Native Hawaiian organization has a
stronger cultural relationship with the
human remains, associated funerary
objects, unassociated funerary objects,
sacred objects, or objects of cultural
patrimony, in the Indian tribe or Native Hawaiian organization that has
the strongest demonstrated relationship with the cultural items.
(b) Custody of human remains, funerary objects, sacred objects, or objects
of cultural patrimony and other provisions of the Act apply to all intentional excavations and inadvertent discoveries made after November 16, 1990,
including those made before the effective date of these regulations.
(c) Final notice, claims and disposition
with respect to Federal lands. Upon determination of the lineal descendant,
Indian tribe, or Native Hawaiian organization that under these regulations
appears to be entitled to custody of
particular human remains, funerary
objects, sacred objects, or objects of
cultural patrimony excavated intentionally or discovered inadvertently on
Federal lands, the responsible Federal
agency official must, subject to the notice required herein and the limitations of § 10.15, transfer custody of the
objects to the lineal descendant, Indian
tribe, or Native Hawaiian organization
following
appropriate
procedures,
which must respect traditional customs and practices of the affiliated Indian tribes or Native Hawaiian organi-

zations in each instance. Prior to any
such disposition by a Federal agency
official, the Federal agency official
must publish general notices of the
proposed disposition in a newspaper of
general circulation in the area in
which the human remains, funerary objects, sacred objects, or objects of cultural patrimony were excavated intentionally or discovered inadvertently
and, if applicable, in a newspaper of
general circulation in the area(s) in
which affiliated Indian tribes or Native
Hawaiian organizations members now
reside. The notice must provide information as to the nature and affiliation
of the human remains, funerary objects, sacred objects, or objects of cultural patrimony and solicit further
claims to custody. The notice must be
published at least two (2) times at least
a week apart, and the transfer must
not take place until at least thirty (30)
days after the publication of the second
notice to allow time for any additional
claimants to come forward. If additional claimants do come forward and
the Federal agency official cannot
clearly determine which claimant is
entitled to custody, the Federal agency
must not transfer custody of the objects until such time as the proper recipient is determined pursuant to these
regulations. The Federal agency official must send a copy of the notice and
information on when and in what newspaper(s) the notice was published to
the Manager, National NAGPRA Program.
[60 FR 62158, Dec. 4, 1995, as amended at 62
FR 41293, Aug. 1, 1997; 71 FR 16501, Apr. 3,
2006; 78 FR 27083, May 9, 2013]

§ 10.7 Disposition of unclaimed human
remains, funerary objects, sacred
objects, or objects of cultural patrimony. [Reserved]

Subpart C—Human Remains, Funerary Objects, Sacred Objects, or Objects of Cultural
Patrimony in Museums and
Federal Collections
§ 10.8 Summaries.
(a) General. This section carries out
section 6 of the Act. Under section 6 of
the Act, each museum or Federal agency that has possession or control over

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Office of the Secretary, Interior

§ 10.8

collections
which
may
contain
unassociated funerary objects, sacred
objects, or objects of cultural patrimony must complete a summary of
these collections based upon available
information held by the museum or
Federal agency. The purpose of the
summary is to provide information
about the collections to lineal descendants and culturally affiliated Indian
tribes or Native Hawaiian organizations that may wish to request repatriation of such objects. The summary
serves in lieu of an object-by-object inventory of these collections, although,
if an inventory is available, it may be
substituted. Federal agencies are responsible for ensuring that these requirements are met for all collections
from their lands or generated by their
actions whether the collections are
held by the Federal agency or by a nonFederal institution.
(b) Contents of summaries. For each
collection or portion of a collection,
the summary must include: an estimate of the number of objects in the
collection or portion of the collection;
a description of the kinds of objects included; reference to the means, date(s),
and location(s) in which the collection
or portion of the collection was acquired, where readily ascertainable;
and information relevant to identifying
lineal descendants, if available, and
cultural affiliation.
(c) Completion. Summaries must be
completed not later than November 16,
1993.
(d) Consultation. (1) Consulting parties. Museum and Federal agency officials must consult with Indian tribe officials and traditional religious leaders:
(i)
From
whose
tribal
lands
unassociated funerary objects, sacred
objects, or objects of cultural patrimony originated;
(ii) That are, or are likely to be, culturally affiliated with unassociated funerary objects, sacred objects, or objects of cultural patrimony; and
(iii) From whose aboriginal lands
unassociated funerary objects, sacred
objects, or objects of cultural patrimony originated.
(2) Initiation of consultation. Museum and Federal agency officials must
begin summary consultation no later

than the completion of the summary
process. Consultation may be initiated
with a letter, but should be followed up
by telephone or face-to-face dialogue
with the appropriate Indian tribe official.
(3) Provision of information. During
summary consultation, museum and
Federal agency officials must provide
copies of the summary to lineal descendants, when known, and to officials and traditional religious leaders
representing Indian tribes or Native
Hawaiian organizations that are, or are
likely to be, culturally affiliated with
the cultural items. A copy of the summary must also be provided to the
Manager, National NAGPRA Program.
Upon request by lineal descendants or
Indian tribe officials, museum and Federal agency officials must provide lineal descendants, Indian tribe officials
and traditional religious leaders with
access to records, catalogues, relevant
studies, or other pertinent data for the
limited purposes of determining the geographic origin, cultural affiliation,
and basic facts surrounding acquisition
and accession of objects covered by the
summary. Access to this information
may be requested at any time and must
be provided in a reasonable manner to
be agreed upon by all parties. The Review committee also must be provided
access to such materials.
(4) Requests for information. During
the summary consultation, museum
and Federal agency officials must request, as appropriate, the following information from Indian tribes and Native Hawaiian organizations that are,
or are likely to be, culturally affiliated
with their collections:
(i) Name and address of the Indian
tribe official to act as representative in
consultations related to particular objects;
(ii) Recommendations on how the
consultation process should be conducted, including:
(A) Names and appropriate methods
to contact any lineal descendants, if
known,
of
individuals
whose
unassociated funerary objects or sacred
objects are included in the summary;
(B) Names and appropriate methods
to contact any traditional religious
leaders that the Indian tribe or Native
Hawaiian organization thinks should

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43 CFR Subtitle A (10–1–14 Edition)

be consulted regarding the collections;
and
(iii) Kinds of cultural items that the
Indian tribe or Native Hawaiian organization considers to be funerary objects, sacred objects, or objects of cultural patrimony.
(e) Using summaries to determine affiliation. Museum and Federal agency officials must document in the summary
the following information. They must
use this information in determining, as
appropriate, the lineal descendants of a
deceased Native American individual
with whom unassociated funerary objects and sacred objects are affiliated,
and the Indian tribes and Native Hawaiian
organizations
with
which
unassociated funerary objects, sacred
objects, or objects of cultural patrimony are affiliated:
(1) Accession and catalogue entries;
(2) Information related to the acquisition of unassociated funerary object,
sacred object, or object of cultural patrimony, including:
(i) The name of the person or organization from whom the object was obtained, if known;
(ii) The date of acquisition;
(iii) The place each object was acquired, i.e., name or number of site,
county, State, and Federal agency administrative unit, if applicable; and
(iv) The means of acquisition, i.e.,
gift, purchase, or excavation;
(3) A description of each unassociated
funerary object, sacred object, or object of cultural patrimony, including
dimensions, materials, and photographic documentation, if appropriate,
and the antiquity of such objects, if
known;
(4) A summary of the evidence used
to determine the cultural affiliation of
the unassociated funerary objects, sacred objects, or objects of cultural patrimony pursuant to § 10.14 of these regulations.
(f)
Notification.
Repatriation
of
unassociated funerary objects, sacred
objects, or objects of cultural patrimony to lineal descendants, culturally affiliated Indian tribes, or Native Hawaiian organizations as determined pursuant to § 10.10 (a), must not
proceed prior to submission of a notice
of intent to repatriate to the Manager,
National NAGPRA Program, and publi-

cation of the notice of intent to repatriate in the FEDERAL REGISTER. The
notice of intent to repatriate must describe the unassociated funerary objects, sacred objects, or objects of cultural patrimony being claimed in sufficient detail so as to enable other individuals, Indian tribes or Native Hawaiian organizations to determine their
interest in the claimed objects. It must
include information that identifies
each claimed unassociated funerary object, sacred object, or object of cultural
patrimony and the circumstances surrounding its acquisition, and describes
the objects that are clearly identifiable
as to cultural affiliation. It must also
describe the objects that are not clearly identifiable as being culturally affiliated with a particular Indian tribe
or Native Hawaiian organization, but
which, given the totality of circumstances surrounding acquisition of
the objects, are likely to be culturally
affiliated with a particular Indian tribe
or Native Hawaiian organization. The
Manager, National NAGPRA Program
must publish the notice of intent to repatriate in the FEDERAL REGISTER. Repatriation may not occur until at least
thirty (30) days after publication of the
notice of intent to repatriate in the
FEDERAL REGISTER.
[60 FR 62158, Dec. 4, 1995, as amended at 62
FR 41293, Aug. 1, 1997; 71 FR 16501, Apr. 3,
2006; 78 FR 27083, May 9, 2013]

§ 10.9

Inventories.

(a) General. This section carries out
section 5 of the Act. Under section 5 of
the Act, each museum or Federal agency that has possession or control over
holdings or collections of human 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. The purpose of
the inventory is to facilitate repatriation by providing clear descriptions of
human remains and associated funerary objects and establishing the cultural affiliation between these objects
and present-day Indian tribes and Native Hawaiian organizations. Museums
and Federal agencies are encouraged to

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§ 10.9

produce inventories first on those portions of their collections for which information is readily available or about
which Indian tribes or Native Hawaiian
organizations have expressed special
interest. Early focus on these parts of
collections will result in determinations that may serve as models for
other inventories. Federal agencies
must ensure that these requirements
are met for all collections from their
lands or generated by their actions
whether the collections are held by the
Federal agency or by a non-Federal institution.
(b) Consultation—(1) Consulting parties. Museum and Federal agency officials must consult with:
(i) Lineal descendants of individuals
whose remains and associated funerary
objects are likely to be subject to the
inventory provisions of these regulations; and
(ii) Indian tribe officials and traditional religious leaders:
(A) From whose tribal lands the
human remains and associated funerary objects originated;
(B) That are, or are likely to be, culturally affiliated with human remains
and associated funerary objects; and
(C) From whose aboriginal lands the
human remains and associated funerary objects originated.
(2) Initiation of consultation. Museum
and Federal agency officials must
begin inventory consultation as early
as possible, no later in the inventory
process than the time at which investigation into the cultural affiliation of
human remains and associated funerary objects is being conducted. Consultation may be initiated with a letter, but should be followed up by telephone or face-to-face dialogue.
(3) Provision of information. During inventory consultation, museums and
Federal agency officials must provide
the following information in writing to
lineal descendants, when known, and to
officials and traditional religious leaders representing Indian tribes or Native
Hawaiian organizations that are, or are
likely to be, culturally affiliated with
the human remains and associated funerary objects.
(i) A list of all Indian tribes and Native Hawaiian organizations that are,
or have been, consulted regarding the

particular human remains and associated funerary objects;
(ii) A general description of the conduct of the inventory;
(iii) The projected time frame for
conducting the inventory; and
(iv) An indication that additional
documentation used to identify cultural affiliation will be supplied upon
request.
(4) Requests for information. During
the inventory consultation, museum
and Federal agency officials must request, as appropriate, the following information from Indian tribes and Native Hawaiian organizations that are,
or are likely to be, culturally affiliated
with their collections:
(i) Name and address of the Indian
tribe official to act as representative in
consultations related to particular
human remains and associated funerary objects;
(ii) Recommendations on how the
consultation process should be conducted, including:
(A) Names and appropriate methods
to contact any lineal descendants of individuals whose remains and associated
funerary objects are or are likely to be
included in the inventory; and
(B) Names and appropriate methods
to contact traditional religious leaders
who should be consulted regarding the
human remains and associated funerary objects.
(iii) Kinds of objects that the Indian
tribe or Native Hawaiian organization
reasonably believes to have been made
exclusively for burial purposes or to
contain human remains of their ancestors.
(c) Required information. The following documentation must be included, if available, for all inventories
completed by museum or Federal agency officials:
(1) Accession and catalogue entries,
including the accession/catalogue entries of human remains with which funerary objects were associated;
(2) Information related to the acquisition of each object, including:
(i) The name of the person or organization from whom the object was obtained, if known;
(ii) The date of acquisition,
(iii) The place each object was acquired, i.e., name or number of site,

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§ 10.9

43 CFR Subtitle A (10–1–14 Edition)

county, State, and Federal agency administrative unit, if applicable; and
(iv) The means of acquisition, i.e.,
gift, purchase, or excavation;
(3) A description of each set of human
remains or associated funerary object,
including dimensions, materials, and,
if appropriate, photographic documentation, and the antiquity of such
human remains or associated funerary
objects, if known;
(4) A summary of the evidence, including the results of consultation,
used to determine the cultural affiliation of the human remains and associated funerary objects pursuant to
§ 10.14 of these regulations.
(d) Documents. Two separate documents comprise the inventory:
(1) A listing of all human remains
and associated funerary objects that
are identified as being culturally affiliated with one or more present-day Indian tribes or Native Hawaiian organizations. The list must indicate for each
item or set of items whether cultural
affiliation is clearly determined or
likely based upon the preponderance of
the evidence; and
(2) A listing of all culturally unidentifiable human remains and associated
funerary objects for which no culturally affiliated present-day Indian
tribe or Native Hawaiian organization
can be determined.
(e) Notification. (1) If the inventory
results in the identification or likely
identification of the cultural affiliation of any particular human remains
or associated funerary objects with one
or more Indian tribes or Native Hawaiian organizations, the museum or Federal agency, not later than six (6)
months after completion of the inventory, must send such Indian tribes or
Native Hawaiian organizations the inventory of culturally affiliated human
remains and associated funerary objects, including all information required under § 10.9 (c), and a notice of
inventory completion that summarizes
the results of the inventory.
(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.
(3) If the inventory results in a determination that the human remains are
of an identifiable individual, the museum or Federal agency official must
convey this information to the lineal
descendant of the deceased individual,
if known, and to the Indian tribe or Native Hawaiian organization of which
the deceased individual was culturally
affiliated.
(4) The notice of inventory completion and a copy of the inventory must
also be sent to the Manager, National
NAGPRA Program. These submissions
should be sent in both printed hard
copy and electronic formats. Information on the proper format for electronic submission and suggested alternatives for museums and Federal agencies unable to meet these requirements
are available from the Manager, National NAGPRA Program.
(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

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§ 10.10

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 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.
(7) The Manager, National NAGPRA
Program must publish notices of inventory completion received from museums and Federal agencies in the FEDERAL REGISTER.
(f) Completion. Inventories must be
completed not later than November 16,
1995. Any museum that has made a
good faith effort to complete its inven-

tory, but which will be unable to complete the process by this deadline, may
request an extension of the time requirements from the Secretary. An indication of good faith efforts must include, but not necessarily be limited
to, the initiation of active consultation
and documentation regarding the collections and the development of a written plan to carry out the inventory
process. Minimum components of an
inventory plan are: a definition of the
steps required; the position titles of
the persons responsible for each step; a
schedule for carrying out the plan; and
a proposal to obtain the requisite funding.
[60 FR 62158, Dec. 4, 1995, as amended at 62
FR 41293, Aug. 1, 1997; 71 FR 16501, Apr. 3,
2006; 75 FR 12403, Mar. 15, 2010]

§ 10.10

Repatriation.

(a) Unassociated funerary objects, sacred objects, and objects of cultural patrimony—(1) Criteria. Upon the request of
a lineal descendant, Indian tribe, or
Native Hawaiian organization, a museum or Federal agency must expeditiously repatriate unassociated funerary objects, sacred objects, or objects
of cultural patrimony if all the following criteria are met:
(i) The object meets the definitions
established in § 10.2 (d)(2)(ii), (d)(3), or
(d)(4); and
(ii) The cultural affiliation of the object is established:
(A) Through the summary, consultation, and notification procedures in
§ 10.14 of these regulations; or
(B) By presentation of a preponderance of the evidence by a requesting Indian tribe or Native Hawaiian organization under section 7(a)(4) of the Act;
and
(iii) The known lineal descendant or
culturally affiliated Indian tribe or Native Hawaiian organization presents
evidence which, if standing alone before the introduction of evidence to the
contrary, would support a finding that
the museum or Federal agency does
not have a right of possession to the
objects as defined in § 10.10 (a)(2); and
(iv) The agency or museum is unable
to present evidence to the contrary
proving that it does have a right of
possession as defined below; and

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43 CFR Subtitle A (10–1–14 Edition)

(v) None of the specific exceptions
listed in § 10.10 (c) apply.
(2) Right of possession. For purposes of
this section, ‘‘right of possession’’
means possession obtained with the
voluntary consent of an individual or
group that had authority of alienation.
The original acquisition of a Native
American unassociated funerary object, sacred object, or object of cultural
patrimony from an Indian tribe or Native Hawaiian organization with the
voluntary consent of an individual or
group with authority to alienate such
object is deemed to give right of possession to that object.
(3) Notification. Repatriation must
take place within ninety (90) days of
receipt of a written request for repatriation that satisfies the requirements of
paragraph (a)(1) of this section from a
lineal descendent or culturally affiliated Indian tribe or Native Hawaiian
organization, provided that the repatriation may not occur until at least thirty (30) days after publication of the notice of intent to repatriate in the FEDERAL REGISTER as described in § 10.8.
(b) Human remains and associated funerary objects—(1) Criteria. Upon the request of a lineal descendant, Indian
tribe, or Native Hawaiian organization,
a museum and Federal agency must expeditiously repatriate human remains
and associated funerary objects if all of
the following criteria are met:
(i) The human remains or associated
funerary object meets the definitions
established in § 10.2 (d)(1) or (d)(2)(i);
and
(ii) The affiliation of the deceased individual to known lineal descendant,
present day Indian tribe, or Native Hawaiian organization:
(A) Has been reasonably traced
through the procedures outlined in
§ 10.9 and § 10.14 of these regulations; or
(B) Has been shown by a preponderance of the evidence presented by a requesting Indian tribe or Native Hawaiian organization under section 7(a)(4)
of the Act; and
(iii) None of the specific exceptions
listed in § 10.10 (c) apply.
(2) Notification. Repatriation must
take place within ninety (90) days of
receipt of a written request for repatriation that satisfies the requirements of
§ 10.10 (b)(1) from the culturally affili-

ated Indian tribe or Native Hawaiian
organization, provided that the repatriation may not occur until at least thirty (30) days after publication of the notice of inventory completion in the
FEDERAL REGISTER as described in
§ 10.9.
(c) Exceptions. These requirements for
repatriation do not apply to:
(1) Circumstances where human remains, funerary objects, sacred objects,
or objects of cultural patrimony are indispensable to the completion of a specific scientific study, the outcome of
which is of major benefit to the United
States. Human remains, funerary objects, sacred objects, or objects of cultural patrimony in such circumstances
must be returned no later than ninety
(90) days after completion of the study;
or
(2) Circumstances where there are
multiple requests for repatriation of
human remains, associated funerary
objects, unassociated funerary objects,
sacred objects, or objects of cultural
patrimony and the museum or Federal
agency, after complying with this part,
cannot determine by a preponderance
of the evidence which competing requesting party is the most appropriate
claimant. In these circumstances, the
museum or Federal agency may retain
the cultural items in question until the
competing requesting parties agree
upon the appropriate recipient or the
dispute is otherwise resolved pursuant
to these regulations or by a court of
competent jurisdiction; or
(3) Circumstances where a court of
competent jurisdiction has determined
that the repatriation of the human remains, funerary objects, sacred objects,
or objects of cultural patrimony in the
possession or control of a museum
would result in a taking of property
without just compensation within the
meaning of the Fifth Amendment of
the United States Constitution, in
which event the custody of the objects
must be as provided under otherwise
applicable law. Nothing in these regulations must prevent a museum or Federal agency, where otherwise so authorized, or a lineal descendant, Indian
tribe, or Native Hawaiian organization,
from expressly relinquishing title to,
right of possession of, or control over
any human remains, funerary objects,

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§ 10.11

sacred objects, or objects of cultural
patrimony.
(4) Circumstances where the repatriation is not consistent with other repatriation limitations identified in § 10.15
of these regulations.
(d) Place and manner of repatriation.
The repatriation of human remains, funerary objects, sacred objects, or objects of cultural patrimony must be accomplished by the museum or Federal
agency in consultation with the requesting lineal descendants, or culturally affiliated Indian tribe or Native
Hawaiian organization, as appropriate,
to determine the place and manner of
the repatriation.
(e) The museum official or Federal
agency official must inform the recipients of repatriations of any presently
known treatment of the human remains, funerary objects, sacred objects,
or objects of cultural patrimony with
pesticides, preservatives, or other substances that represent a potential hazard to the objects or to persons handling the objects.
(f) Record of repatriation. (1) Museums
and Federal agencies must adopt internal procedures adequate to permanently document the content and recipients of all repatriations.
(2) The museum official or Federal
agency official, at the request of the
Indian tribe official, may take such
steps as are considered necessary pursuant to otherwise applicable law, to
ensure that information of a particularly sensitive nature is not made
available to the general public.
(g) Culturally unidentifiable human remains. If the cultural affiliation of
human remains cannot be established
under this part, the human remains
must be considered culturally unidentifiable.
(1) Museum and Federal agency officials must report the inventory information regarding these human remains
in their holdings to the Manager, National NAGPRA Program, who will
send this information to the Review
Committee.
(2) The Review Committee will:
(i) Compile an inventory of culturally unidentifiable human remains
in the possession or control of each
museum and Federal agency; and

(ii) Recommend to the Secretary specific actions for disposition of any
human remains not already addressed
in § 10.11.
[60 FR 62158, Dec. 4, 1995, as amended at 62
FR 41294, Aug. 1, 1997; 71 FR 16501, Apr. 3,
2006; 78 FR 27083, May 9, 2013]

§ 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
(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 for purposes of this section
may be recognized by a final judgment
of the Indian Claims Commission or
the United States Court of Claims, or
by 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

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43 CFR Subtitle A (10–1–14 Edition)

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
(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 as-

sociated 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 federally-recognized; or
(B) Reinter culturally unidentifiable
human remains according to State or
other law.
(3) The Secretary may make a recommendation under paragraph (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.

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§ 10.12

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 federallyrecognized, 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.
[75 FR 12403, Mar. 15, 2010, as amended at 78
FR 27083, May 9, 2013]

§ 10.12 Civil penalties.
(a) The Secretary’s authority to assess
civil penalties. The Secretary is authorized by section 9 of the Act to assess

civil penalties on any museum that
fails to comply with the requirements
of the Act. The Assistant Secretary for
Fish and Wildlife and Parks may act on
behalf of the Secretary.
(b) Definition of ‘‘failure to comply.’’
(1) Your museum has failed to comply
with the requirements of the Act if it:
(i) After November 16, 1990, sells or
otherwise transfers human remains, funerary objects, sacred objects, or objects of cultural patrimony contrary to
provisions of the Act, including, but
not limited to, an unlawful sale or
transfer to any individual or institution that is not required to comply
with the Act; or
(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
(v) Refuses, absent any of the exemptions specified in § 10.10(c) of this part,
to repatriate human remains, funerary
object, sacred object, or object of cultural patrimony to a lineal descendant
or culturally affiliated Indian tribe or
Native Hawaiian; or
(vi) Repatriates a human remains, funerary object, sacred object, or object
of cultural patrimony before publishing
the required notice in the FEDERAL
REGISTER;
(vii) Does not consult with lineal descendants, Indian tribe officials, and
traditional religious leaders as required; or
(viii) Does not inform the recipients
of repatriations of any presently
known treatment of the human remains, funerary objects, sacred objects,
or objects of cultural patrimony with

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43 CFR Subtitle A (10–1–14 Edition)

pesticides, preservatives, or other substances that represent a potential hazard to the objects or to persons handling the objects.
(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.
(2) Each instance of failure to comply
will constitute a separate violation.
(c) How to notify the Secretary of a failure to comply. Any person may file an
allegation of failure to comply. Allegations are to be sent to the NAGPRA
Civil Penalties Coordinator, National
NAGPRA Program, at the mailing address listed on the National NAGPRA
Contact Information Web site, http://
www.nps.gov/nagpra/CONTACTS/
INDEX.HTM. The allegation must be in
writing, and should:
(1) Identify each provision of the Act
with which there has been a failure to
comply by a museum;
(2) Include facts supporting the allegation;
(3) Include evidence that the museum
has possession or control of Native
American cultural items; and
(4) Include evidence that the museum
receives Federal funds.
(d) Steps the Secretary may take upon
receiving such an allegation. (1) The Secretary must acknowledge receipt of the
allegation in writing.
(2) The Secretary also may:
(i) Compile and review information
relevant to the alleged failure to comply. The Secretary may request additional information, such as declarations and relevant papers, books, and
documents, from the person making
the allegation, the museum, and other
parties;
(ii) Identify the specific provisions of
the Act with which you have allegedly
failed to comply; and
(iii) Determine if the institution of a
civil penalty action is an appropriate
remedy.
(3) The Secretary must provide written notification to the person making
the allegation and the museum if the
review of the evidence does not show a
failure comply.

(e) How the Secretary notifies you of a
failure to comply. (1) If the allegations
are verified, the Secretary must serve
you with a written notice of failure to
comply either by personal delivery or
by registered or certified mail (return
receipt requested). The notice of failure to comply must include:
(i) A concise statement of the facts
believed to show a failure to comply;
(ii) A specific reference to the provisions of the Act and/or these regulations with which you allegedly have
not complied; and
(iii) Notification of the right to request an informal discussion with the
Secretary or a designee, to request a
hearing, as provided below, or to await
the Secretary’s notice of assessment.
The notice of failure to comply also
must inform you of your right to seek
judicial review of any final administrative decision assessing a civil penalty.
(2) With your consent, the Secretary
may combine the notice of failure to
comply with the notice of assessment
described in paragraph (h) of this section.
(3) The Secretary also must send a
copy of the notice of failure to comply
to:
(i) Any lineal descendant of a known
Native American individual whose
human remains, funerary objects, or
sacred objects are in question; and
(ii) Any Indian tribes or Native Hawaiian organizations that are, or are
likely to be, culturally affiliated with
the human remains, funerary objects,
sacred objects, or objects of cultural
patrimony in question.
(f) Actions you may take upon receipt of
a notice of failure to comply. If you are
served with a notice of failure to comply, you may:
(1) Seek informal discussions with
the Secretary;
(2) Request a hearing. Figure 1 outlines the civil penalty hearing and appeal process. Where the Secretary has
issued a combined notice of failure to
comply and notice of assessment, the
hearing and appeal processes will also
be combined.
(3) Take no action and await the Secretary’s notice of assessment.

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§ 10.12

(g) How the Secretary determines the
penalty amount. (1) The penalty amount
must be determined on the record;

(2) The penalty amount must be .25
percent of your museum’s annual budget, or $5,000, whichever is less, and such
additional sum as the Secretary may

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ER03AP03.002

209

§ 10.12

43 CFR Subtitle A (10–1–14 Edition)

determine is appropriate after taking
into account:
(i) The archeological, historical, or
commercial value of the human remains, funerary object, sacred object,
or object of cultural patrimony involved; and
(ii) The damages suffered, both economic and non-economic, by the aggrieved party or parties including, but
not limited to, expenditures by the aggrieved party to compel the museum to
comply with the Act; and
(iii) The number of violations that
have occurred at your museum.
(3) An additional penalty of up to
$1,000 per day after the date that the
final administrative decision takes effect may be assessed if your museum
continues to violate the Act.
(4) The Secretary may reduce the
penalty amount if there is:
(i) A determination that you did not
willfully fail to comply; or
(ii) An agreement by you to mitigate
the violation, including, but not limited to, payment of restitution to the
aggrieved party or parties; or
(iii) A determination that you are
unable to pay, provided that this factor
may not apply if you have been previously found to have failed to comply
with these regulations; or,
(iv) A determination that the penalty
constitutes
excessive
punishment
under the circumstances.
(h) How the Secretary assesses the penalty. (1) The Secretary considers all
available information, including information provided during the process of
assessing civil penalties or furnished
upon further request by the Secretary.
(2) The Secretary may assess the
civil penalty upon completing informal
discussions or when the period for requesting a hearing expires, whichever
is later.
(3) The Secretary notifies you in
writing of the penalty amount assessed
by serving a written notice of assessment, either in person or by registered
or certified mail (return receipt requested). The notice of assessment includes:
(i) The basis for determining the penalty amount assessed and/or any offer
to mitigate or remit the penalty; and
(ii) Notification of the right to request a hearing, including the proce-

dures to follow, and to seek judicial review of any final administrative decision that assesses a civil penalty.
(i) Actions that you may take upon receipt of a notice of assessment. If you are
served with a notice of assessment, you
may do one of the following:
(1) Accept in writing or by payment
of the proposed penalty, or any mitigation or remission offered in the notice
of assessment. If you accept the proposed penalty, mitigation, or remission, you waive the right to request a
hearing.
(2) Seek informal discussions with
the Secretary.
(3) File a petition for relief. You may
file a petition for relief within 45 calendar days of receiving the notice of
assessment. A petition for relief is to
be sent to the NAGPRA Civil Penalties
Coordinator, National NAGPRA Program, at the mailing address listed on
the National NAGRPA Contact Information Web site, http://www.nps.gov/
nagpra/CONTACTS/INDEX.HTM.
Your
petition may ask the Secretary not to
assess a penalty or to reduce the penalty amount. Your petition must:
(i) Be in writing and signed by an official authorized to sign such documents; and
(ii) Fully explain the legal or factual
basis for the requested relief.
(4) Request a hearing. Figure 1 outlines the civil penalty hearing and appeal process.
(i) In addition to the documentation
required in paragraph (g) of this section, your request must include a copy
of the notice of assessment and must
identify the basis for challenging the
assessment.
(ii) In this hearing, the amount of the
civil penalty assessed must be determined in accordance with paragraph
(h) of this section, and will not be limited to the amount assessed by the Secretary or any offer of mitigation or remission made by the Secretary.
(j) How you request a hearing. You
may file a written, dated request for a
hearing on a notice of failure to comply or notice of assessment with the
Departmental Cases Hearings Division,
Office of Hearings and Appeals, U.S.
Department of the Interior, 405 South
Main Street, Suite 400, Salt Lake City,
UT 84111. You must also serve a copy of

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§ 10.12

the request on the Solicitor of the Department of the Interior personally or
by registered or certified mail (return
receipt requested) at the address specified in the notice.
(1) Your request for a hearing must:
(i) Include a copy of the notice of
failure to comply or the notice of assessment;
(ii) State the relief sought;
(iii) State the basis for challenging
the facts used as the basis for determining the failure to comply or fixing
the assessment; and
(iv) State your preferred place and
date for a hearing.
(2) Your failure to file a written request for a hearing within 45 days of
the date of service of a notice of failure
to comply or notice of assessment
waives your right to a hearing.
(3) Upon receiving a request for a
hearing, the Hearings Division assigns
an administrative law judge to the
case, gives notice of assignment
promptly to the parties, and files all
pleadings, papers, and other documents
in the proceeding directly with the administrative law judge, with copies
served on the opposing party.
(4) Subject to the provisions of 43
CFR 1.3, you may appear by representative or by counsel, and may participate fully in the proceedings. If you
fail to appear and the administrative
law judge determines that this failure
is without good cause, the administrative law judge may, in his/her discretion, determine that this failure waives
your right to a hearing and consent to
the making of a decision on the record.
(5) Departmental counsel, designated
by the Solicitor of the Department of
the Interior, represents the Secretary
in the proceedings. Upon notice to the
Secretary of the assignment of an administrative law judge to the case, this
counsel must enter his/her appearance
on behalf of the Secretary and must
file all petitions and correspondence
exchanges by the Secretary and the respondent that become part of the hearing record. Thereafter, you must serve
all documents for the Secretary on his/
her counsel.
(6) Hearing Administration. Hearings
must take place following the procedures in 43 CFR Part 4, Subparts A and
B.

(i) The administrative law judge has
all powers accorded by law and necessary to preside over the parties and
the proceedings and to make decisions
under 5 U.S.C. 554–557.
(ii) The transcript of testimony; the
exhibits; and all papers, documents,
and requests filed in the proceedings
constitute the record for decision. The
administrative law judge renders a
written decision upon the record,
which sets forth his/her findings of fact
and conclusions of law, and the reasons
and basis for them.
(iii) Unless you file a notice of appeal
described in these regulations, the administrative law judge’s decision constitutes the final administrative determination of the Secretary in the matter and takes effect 30 calendar days
from this decision.
(k) How you appeal a decision. (1) Either you or the Secretary may appeal
the decision of an administrative law
judge by filing a Notice of Appeal. Send
your Notice of Appeal to the Interior
Board of Indian Appeals, Office of
Hearings and Appeals, U.S. Department
of the Interior, 800 North Quincy
Street, Suite 300, Arlington, VA 22203,
within 30 calendar days of the date of
the administrative law judge’s decision. The notice must be accompanied
by proof of service on the administrative law judge and the opposing party.
(2) To the extent they are not inconsistent with these regulations, the provisions of the Department of the Interior Hearings and Appeals Procedures
in 43 CFR part 4, subpart D, apply to
such appeal proceedings. The appeal
board’s decision on the appeal must be
in writing and takes effect as the final
administrative determination of the
Secretary on the date that the decision
is rendered, unless otherwise specified
in the decision.
(3) You may obtain copies of decisions in civil penalty proceedings instituted under the Act by sending a request to the Interior Board of Indian
Appeals, Office of Hearings and Appeals, U.S. Department of the Interior,
800 North Quincy Street, Suite 300, Arlington, VA 22203. Fees for this service
are established by the director of that
office.

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§ 10.13

43 CFR Subtitle A (10–1–14 Edition)

(l) The final administrative decision. (1)
When you have been served with a notice of assessment and have accepted
the penalty as provided in these regulations, the notice constitutes the final
administrative decision.
(2) When you have been served with a
notice of assessment and have not filed
a timely request for a hearing as provided in these regulations, the notice
of assessment constitutes the final administrative decision.
(3) When you have been served with a
notice of assessment and have filed a
timely request for a hearing as provided in these regulations, the decision
resulting from the hearing or any applicable administrative appeal from it
constitutes the final administrative decision.
(m) How you pay the penalty. (1) If
you are assessed a civil penalty, you
have 45 calendar days from the date of
issuance of the final administrative decision to make full payment of the penalty assessed to the Secretary, unless
you have filed a timely request for appeal with a court of competent jurisdiction.
(2) If you fail to pay the penalty, the
Secretary may request the Attorney
General of the United States to collect
the penalty by instituting a civil action in the U.S. District Court for the
district in which your museum is located. In these actions, the validity
and amount of the penalty is not subject to review by the court.
(3) Assessing a penalty under this
section is not a waiver by the Secretary of the right to pursue other
available legal or administrative remedies.
[68 FR 16360, Apr. 3, 2003, as amended at 70
FR 57179, Sept. 30, 2005; 75 FR 12404, Mar. 15,
2010; 75 FR 64670, Oct. 20, 2010; 78 FR 27083,
May 9, 2013]

§ 10.13 Future applicability.
(a) General. This section sets forth
the applicability of the Act to museums and Federal agencies after expiration of the statutory deadlines for completion of summaries and inventories.
(b) New holdings or collections.
(1) Any museum or Federal agency
that, after completion of the summaries and inventories as required by
§§ 10.8 and 10.9, receives a new holding

or collection or locates a previously
unreported current holding or collection that may include human remains,
funerary objects, sacred objects or objects of cultural patrimony, must:
(i) Within 6 months of receiving a
new holding or collection or locating a
previously unreported current holding
or collection, or within 6 months of the
effective date of this rule, whichever is
later, provide a summary of the holding or collection as required by § 10.8 to
any Indian tribe or Native Hawaiian
organization that is, or is likely to be,
affiliated with the collection; and
(ii) Within 2 years of receiving a new
holding or collection or locating a previously unreported current holding or
collection, or within 2 years of the effective date of this rule, whichever is
later, prepare, in consultation with any
affiliated Indian tribe or Native Hawaiian organization, an inventory as required by § 10.9 of these regulations.
Any museum that has made a good
faith effort to complete its inventory,
but which will be unable to complete
the process by this deadline, may request an extension of the time requirements under § 10.9(f).
(2) Additional pieces or fragments of
previously repatriated human remains,
funerary objects, sacred objects and objects of cultural patrimony may be returned to the appropriate Indian tribe
or Native Hawaiian organization without publication of a notice in the FEDERAL REGISTER, as otherwise required
under §§ 10.8(f) and 10.9(e), if they do
not change the number or cultural affiliation of the cultural items listed in
the previous notice.
(3) A museum or Federal agency that
receives a new holding or collection for
which a summary or inventory was
previously prepared, as required by
§§ 10.8 or 10.9, may rely upon the previously prepared documents. The receiving museum or Federal agency
must provide a copy of the previously
prepared summary or inventory to all
affiliated Indian tribes or Native Hawaiian organizations, along with notification that the receiving museum or
Federal agency has assumed possession
and control of the holding or collection.
(c) New Indian tribes.

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Office of the Secretary, Interior

§ 10.14

(1) Any museum or Federal agency
that has possession or control of
human remains, funerary objects, sacred objects, or objects of cultural patrimony that are, or are likely to be,
culturally affiliated with a newly Federally recognized Native American
tribe, must:
(i) Within 6 months of the publication in the FEDERAL REGISTER of the
Native American group’s placement on
the list of Indian Entities Recognized
and Eligible to Receive Services from
the United States Bureau of Indian Affairs, or within 6 months of the effective date of this rule, whichever is
later, provide a summary of the collection as required by § 10.8 to that Indian
tribe; and
(ii) Within 2 years of the publication
in the FEDERAL REGISTER of the Native
American group’s placement on the list
of Indian Entities Recognized and Eligible to Receive Services from the
United States Bureau of Indian Affairs,
or within 2 years of the effective date
of this rule, whichever is later, prepare,
in consultation with the newly recognized culturally affiliated Indian tribe
an inventory as required by § 10.9. Any
museum that has made a good faith effort to complete its inventory, but
which will be unable to complete the
process by this deadline, may request
an extension of the time requirements
under § 10.9(f).
(2) The list of Indian Entities Recognized and Eligible to Receive Services
from the United States Bureau of Indian Affairs is published in the FEDERAL REGISTER as required by section
104 of the Federally Recognized Indian
Tribe List Act of 1994 (25 U.S.C. 479a-1
(2006)).
(d) New Federal funds. Any museum
that has possession or control of
human remains, funerary objects, sacred objects, or objects of cultural patrimony and receives Federal funds for
the first time after expiration of the
statutory deadlines for completion of
summaries and inventories must:
(1) Within 3 years of the date of receipt of Federal funds, or within 3
years of the effective date of this rule,
whichever is later, provide a summary
of the collection as required by § 10.8 to
any Indian tribe or Native Hawaiian
organization that is, or is likely to be,

culturally affiliated with the collections; and
(2) Within 5 years of the date of receipt of Federal funds, or within 5
years of the effective date of this rule,
whichever is later, prepare, in consultation with any affiliated Indian
tribe or Native Hawaiian organization,
an inventory as required by § 10.9.
(e) Amendment of previous decision.
(1) Any museum or Federal agency
that has previously published a notice
in the FEDERAL REGISTER regarding the
intent to repatriate unassociated funerary objects, sacred objects, and objects of cultural patrimony under
§ 10.8(f), or the completion of an inventory of Native American human remains and associated funerary objects
as required by § 10.9(e), must publish an
amendment to that notice if, based on
subsequent information, the museum
or Federal agency revises its decision
in a way that changes the number or
cultural affiliation of the cultural
items listed.
(2) Repatriation may not occur until
at least 30 days after publication of the
amended notice in the FEDERAL REGISTER.
(f) All actions taken as required by
this section must also comply with all
other relevant sections of 43 CFR 10.
[72 FR 13189, Mar. 21, 2007, as amended at 78
FR 27084, May 9, 2013]

Subpart D—General
§ 10.14 Lineal descent and cultural affiliation.
(a) General. This section identifies
procedures for determining lineal descent and cultural affiliation between
present-day individuals and Indian
tribes or Native Hawaiian organizations and human remains, funerary objects, sacred objects, or objects of cultural patrimony in museum or Federal
agency collections or excavated intentionally or discovered inadvertently
from Federal lands. They may also be
used by Indian tribes and Native Hawaiian organizations with respect to
tribal lands.
(b) Criteria for determining lineal descent. A lineal descendant is an individual tracing his or her ancestry directly and without interruption by

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§ 10.15

43 CFR Subtitle A (10–1–14 Edition)

means of the traditional kinship system of the appropriate Indian tribe or
Native Hawaiian organization or by the
common law system of descendence to
a known Native American individual
whose remains, funerary objects, or sacred objects are being requested under
these regulations. This standard requires that the earlier person be identified as an individual whose descendants
can be traced.
(c) Criteria for determining cultural affiliation. Cultural affiliation means a
relationship of shared group identity
that may be reasonably traced historically or prehistorically between a
present-day Indian tribe or Native Hawaiian organization and an identifiable
earlier group. All of the following requirements must be met to determine
cultural affiliation between a presentday Indian tribe or Native Hawaiian organization and the human remains, funerary objects, sacred objects, or objects of cultural patrimony of an earlier group:
(1) Existence of an identifiable
present-day Indian tribe or Native Hawaiian organization with standing
under these regulations and the Act;
and
(2) Evidence of the existence of an
identifiable earlier group. Support for
this requirement may include, but is
not necessarily limited to evidence sufficient to:
(i) Establish the identity and cultural characteristics of the earlier
group,
(ii) Document distinct patterns of
material culture manufacture and distribution methods for the earlier
group, or
(iii) Establish the existence of the
earlier group as a biologically distinct
population; and
(3) Evidence of the existence of a
shared group identity that can be reasonably traced between the present-day
Indian tribe or Native Hawaiian organization and the earlier group. Evidence to support this requirement
must establish that a present-day Indian tribe or Native Hawaiian organization has been identified from prehistoric or historic times to the
present as descending from the earlier
group.

(d) A finding of cultural affiliation
should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to
the connection between the claimant
and the material being claimed and
should not be precluded solely because
of some gaps in the record.
(e) Evidence. Evidence of a kin or cultural affiliation between a present-day
individual, Indian tribe, or Native Hawaiian organization and human remains, funerary objects, sacred objects,
or objects of cultural patrimony must
be established by using the following
types of evidence: Geographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historical, or other relevant information or expert opinion.
(f) Standard of proof. Lineal descent
of a present-day individual from an
earlier individual and cultural affiliation of a present-day Indian tribe or
Native
Hawaiian
organization
to
human remains, funerary objects, sacred objects, or objects of cultural patrimony must be established by a preponderance of the evidence. Claimants
do not have to establish cultural affiliation with scientific certainty.
§ 10.15 Limitations and remedies.
(a) Failure to claim prior to repatriation. (1) Any person who fails to make
a timely claim prior to the repatriation or disposition of human remains,
funerary objects, sacred objects, or objects of cultural patrimony is deemed
to have irrevocably waived any right to
claim such items pursuant to these
regulations or the Act. For these purposes, a ‘‘timely claim’’ means the filing of a written claim with a responsible museum or Federal agency official prior to the time the particular
human remains, funerary objects, sacred objects, or objects of cultural patrimony at issue are duly repatriated or
disposed of to a claimant by a museum
or Federal agency pursuant to these
regulations.
(2) If there is more than one (1)
claimant, the human remains, funerary
object, sacred object, or objects of cultural patrimony may be held by the responsible museum or Federal agency or
person in possession thereof pending
resolution of the claim. Any person

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Office of the Secretary, Interior

§ 10.17

who is in custody of such human remains, funerary objects, sacred objects,
or objects of cultural patrimony and
does not claim entitlement to them
must place the objects in the possession of the responsible museum or Federal agency for retention until the
question of custody is resolved.
(b) Failure to claim where no repatriation or disposition has occurred. [Reserved]
(c) Exhaustion of remedies. (1) A person’s administrative remedies are exhausted only when the person has filed
a written claim with the responsible
Federal agency and the claim has been
duly denied under this part. This paragraph applies to both:
(i) Human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony subject to Subpart B
of this part; and
(ii) Federal collections subject to
Subpart C of 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.
(d) Savings provisions. Nothing in
these regulations can be construed to:
(1) Limit the authority of any museum or Federal agency to:
(i) Return or repatriate human remains, funerary objects, sacred objects,
or objects of cultural patrimony to Indian tribes, Native Hawaiian organizations, or individuals; and
(ii) Enter into any other agreement
with the consent of the culturally affiliated Indian tribe or Native Hawaiian organization as to the disposition
of, or control over, human remains, funerary objects, sacred objects, or objects of cultural patrimony.
(2) Delay actions on repatriation requests that were pending on November
16, 1990;
(3) Deny or otherwise affect access to
court;

(4) Limit any procedural or substantive right which may otherwise be
secured to individuals or Indian tribes
or Native Hawaiian organizations; or
(5) Limit the application of any State
or Federal law pertaining to theft of
stolen property.
[60 FR 62158, Dec. 4, 1995, as amended at 62
FR 41294, Aug. 1, 1997; 75 FR 12405, Mar. 15,
2010; 78 FR 27084, May 9, 2013]

§ 10.16 Review committee.
(a) General. The Review Committee
will advise Congress and the Secretary
on matters relating to these regulations and the Act, including, but not
limited to, monitoring the performance
of museums and Federal agencies in
carrying out their responsibilities, facilitating and making recommendations on the resolution of disputes as
described further in § 10.17, and compiling a record of culturally unidentifiable human remains that are in the
possession or control of museums and
Federal agencies and recommending
actions for their disposition.
(b)
Recommendations.
Any
recommendation, finding, report, or other
action of the Review Committee is advisory only and not binding on any person. Any records and findings made by
the Review Committee may be admissible as evidence in actions brought by
persons alleging a violation of the Act.
§ 10.17 Dispute resolution.
(a) Formal and informal resolutions.
Any person who wishes to contest actions taken by museums, Federal agencies, Indian tribes, or Native Hawaiian
organizations with respect to the repatriation and disposition of human remains, funerary objects, sacred objects,
or objects of cultural patrimony is encouraged to do so through informal negotiations to achieve a fair resolution
of the matter. The Review Committee
may aid in this regard as described
below. In addition, the United States
District Courts have jurisdiction over
any action brought that alleges a violation of the Act.
(b) Review Committee Role. The Review
Committee may facilitate the informal
resolution of disputes relating to these
regulations among interested parties
that are not resolved by good faith negotiations. Review Committee actions

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Pt. 11

43 CFR Subtitle A (10–1–14 Edition)

may include convening meetings between parties to disputes, making advisory findings as to contested facts, and
making recommendations to the disputing parties or to the Secretary as to
the proper resolution of disputes consistent with these regulations and the
Act.

PART 11—NATURAL RESOURCE
DAMAGE ASSESSMENTS

Subpart D—Type A Procedures
11.40 What are type A procedures?
11.41 What data must the authorized official
supply?
11.42 How does the authorized official apply
the NRDAM/CME or NRDAM/GLE?
11.43 Can interested parties review the results of the preliminary application?
11.44 What does the authorized official do
after the close of the comment period?

Subpart E—Type B Procedures

Subpart A—Introduction
Sec.
11.10 Scope and applicability.
11.11 Purpose.
11.12 Biennial review of regulations.
11.13 Overview.
11.14 Definitions.
11.15 What damages may a trustee recover?
11.16 [Reserved]
11.17 Compliance with applicable laws and
standards.
11.18 Incorporation by reference.
11.19 [Reserved]

Subpart B—Preassessment Phase
11.20 Notification and detection.
11.21 Emergency restorations.
11.22 Sampling of potentially injured natural resources.
11.23 Preassessment screen—general.
11.24 Preassessment screen—information on
the site.
11.25 Preassessment
screen—preliminary
identification of resources potentially at
risk.

11.60 Type B assessments—general.
11.61 Injury determination phase—general.
11.62 Injury determination phase—injury
definition.
11.63 Injury determination phase—pathway
determination.
11.64 Injury determination phase—testing
and sampling methods.
11.70 Quantification phase—general.
11.71 Quantification phase—service reduction quantification.
11.72 Quantification phase—baseline services determination.
11.73 Quantification
phase—resource
recoverability analysis.
11.80 Damage determination phase—general.
11.81 Damage determination phase—restoration and compensation determination
plan.
11.82 Damage determination phase—alternatives for restoration, rehabilitation,
replacement, and/or acquisition of equivalent resources.
11.83 Damage
determination
phase—use
value methodologies.
11.84 Damage determination phase—implementation guidance.

Subpart C—Assessment Plan Phase

Subpart F—Post-Assessment Phase

11.30 What does the authorized official do if
an assessment is warranted?
11.31 What does the Assessment Plan include?
11.32 How does the authorized official develop the Assessment Plan?
11.33 What types of assessment procedures
are available?
11.34 When may the authorized official use a
type A procedure?
11.35 How does the authorized official decide
whether to use type A or type B procedures?
11.36 May the authorized official use both
type A and type B procedures for the
same release?
11.37 Must the authorized official confirm
exposure before implementing the Assessment Plan?
11.38 Assessment Plan—preliminary estimate of damages.

11.90 What documentation must the authorized official prepare after completing the
assessment?
11.91 How does the authorized official seek
recovery of the assessed damages from
the potentially responsible party?
11.92 Post-assessment
phase—restoration
account.
11.93 Post-assessment
phase—restoration
plan.
APPENDIX I TO PART 11—METHODS FOR ESTIMATING THE AREAS OF GROUND WATER
AND SURFACE WATER EXPOSURE DURING
THE PREASSESSMENT SCREEN
APPENDIX II TO PART 11—FORMAT FOR DATA
INPUTS AND MODIFICATIONS TO THE
NRDAM/CME
APPENDIX III TO PART 11—FORMAT FOR DATA
INPUTS AND MODIFICATIONS TO THE
NRDAM/GLE
AUTHORITY: 42 U.S.C. 9651(c), as amended.

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