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Office of the Secretary, Interior Pt. 10

9.10 How does the Secretary make ef-forts to accommodate intergovern-mental concerns?

(a) I f a stat e process provides a stateprocess recommendati on to the Depart -ment through its single point of con-tact, t he Secretary eit her:

(1) A ccepts t he recommendation;(2) Reaches a mutually agreeable so-

lution with the state process; or(3) P rovides the single point of con-

tact with such written explanation ofthe decision, as the Secretary in his orher discreti on deems appropri ate. TheSecretary may also supplement thewritten explanation by providing theexplanation to the single point of con-tact by telephone, other telecommuni-cation, or other means.

(b) In any explanation under para-graph (a)(3) of the section, the Sec-retary informs the single point of con-tact that:

(1) T he Department wil l not i mple-ment its decision for at least ten daysafter the single point of contact re-ceives the explanati on; or

(2) T he Secretary has reviewed thedecision and determined that, becauseof unusual circumstances, the waitingperiod of at least ten days is not fea-sible.

(c) For purposes of computing thewaiting period under paragraph (b)(1)of this section, a single point of con-tact is presumed to have received writ-ten notification 5 days after the date ofmailing of such notification.

9.11 What are the Secretarys obliga-tions in interstate situations?

(a) The Secretary is responsible for:(1) I dentifyi ng proposed federal finan-

cial assistance and direct F ederal de-velopment that have an impact oninterstate areas;

(2) Notifying appropriate officialsand entities in states which have

adopted a process and which select theDepartments program or acti vit iy ;

(3) Making efforts t o identi fy and no-tify the affected state, areawide, re-gional, and local officials and entitiesin those states that have not adopted aprocess under the Order or do not se-lect the Departments program or ac-tivity;

(4) Responding pursuant to 9.10 ofthis part if the Secretary receives a

recommendation from a designatedareawide agency transmitted by a sin-gle point of contact, in cases in whichthe review, coordination, and commu-nication with the Department havebeen delegated.

(b) The Secretary uses the proceduresin 9.10 if a state process provides astate process recommendation to theDepartment through a single point ofcontact.

9.12 How may a state simplify, con-solidate, or substitute federally re-quired state plans?

(a) As used in this section:(1) Simpl i fymeans that a state may

develop its own format, choose its ownsubmission date, and select the plan-ning period for a state plan.

(2) Conso l ida temeans that a statemay meet statutory and regulatory re-quirements by combining two or moreplans into one document and that thestate can select the format, submissiondate, and planning period for the con-solidated plan.

(3) Subst i tu temeans that a state mayuse a plan or other document that it

has developed for its own purposes tomeet F ederal requirements.(b) If not inconsistent with law, a

state may decide to try to simplify,consoli date, or substi tut e Federall y r e-quired state plans without prior ap-proval by the Secretary.

(c) The Secretary reviews each stateplan that a state has simplified, con-solidated, or substituted and acceptsthe plan only if it s contents meet F ed-eral requirements.

9.13 May the Secretary waive anyprovision of these regulations?

In an emergency, the Secretary maywaive any provision of these regula-tions.

PART 10NATIVE AMERICANGRAVES PROTECTION AND RE-PATRIATION REGULATIONS

Subpart AIntroduction

Sec.

10.1 P urpose and applicabil it y.

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43 CFR Subtitle A (10103 Edition) 10.1

10.2 Definitions

Subpart BHuman Remains, Funerary Ob-jects, Sacred Objects, or Objects ofCultural Patrimony From Federal orTribal Lands

10.3 Intentional archaeological excavati ons.10.4 Inadvert ent discoveries.10.5 Consultation.10.6 Custody.10.7 Disposition of unclaimed human re-

mains, funerary objects, sacred objects,or objects of cultural patrimony. [Re-served]

Subpart CHuman Remains, Funerary Ob-jects, Sacred Objects, or Objects ofCultural Patrimony in Museums andFederal Collections

10.8 Summaries.10.9 Inventories.10.10 Repatriati on.10.11 Disposition of culturall y unidentifi -

able human remains. [Reserved]10.12 Civil penalties.10.13 F uture appli cabil it y. [Reserved]

Subpart DGeneral

10.14 L ineal descent and cult ural affili ation.10.15 L imi tati ons and remedies.10.16 Review committ ee.

10.17 Dispute r esoluti on.

A P P E N D I X A T O P A RT 10SA M P L E SU M M A R Y .A P P E N D I X B T O P A R T 10SA M P L E NOT I C E OF

I N V E N T O R Y CO M P L E T I O N.

A U T H O R I T Y : 25 U.S .C. 3001 et seq.

SO UR CE: 60 F R 62158, Dec. 4, 1995, unl essotherwise noted.

Subpart AIntroduction

10.1 Purpose and applicability.

(a) Purpose. These regulati ons carryout provisions of the Native AmericanGraves P rotection and Repatri ationAct of 1990 (P ub.L . 101601; 25 U.S.C.30013013;104 St at . 30483058). T hese reg-

ulations develop a systematic processfor determining the rights of lineal de-scendants and Indian tribes and NativeHawaiian organizations to certain Na-tive American human remains, funer-ary objects, sacred objects, or objectsof cultural patrimony with which theyare affil iated.

(b) App l i cab i l i t y. (1) T hese regulati onspertain t o the identifi cation and appro-priate disposition of human remains,

funerary objects, sacred objects, or ob-jects of cul tural patr imony that are:

(i) I n F ederal possession or control ;or

(ii ) In t he possession or control ofany institution or State or local gov-ernment receivi ng F ederal funds; or

(iii) Excavated intentionally or dis-covered inadvert ently on F ederal ortribal lands.

(2) T hese regulati ons apply to humanremains, funerary objects, sacred ob-jects, or objects of cul tural patr imonywhich are indigenous to Alaska, Ha-

waii, and the continental UnitedStates, but not to territories of theUnited States.

(3) Throughout t hese regulati ons aredecision points which determine theirapplicability in particular cir-cumstances, e.g., a decision as towhether a museum controls humanremains and cultural objects withinthe meaning of the regulations, or, adecision as to whether an object is ahuman remain, funerary object,sacred object, or object of culturalpatrimony within the meaning of theregulations. Any final determinationmaking the Act or these regulationsinapplicable is subject to review pursu-

ant t o secti on 15 of the Act .[60 F R 62158, Dec. 4, 1995, as amended at 62F R 41293, A ug. 1, 1997]

10.2 Definitions.

In addition to the term A ct, whichmeans the Native American GravesP rotection and Repatr iat ion Act as de-scribed above, definitions used in theseregulations are grouped in seven class-es: Part ies required to comply withthese regulations; P arti es with stand-ing to make claims under these regula-ti ons; P arti es responsible for imple-menting these regulati ons; Objects cov-ered by these regulations; Cultural af-fi l iat ion; Types of land covered by

these regulati ons; and Procedures re-quired by these regulations.

(a) Wh o must comply w i th th ese regu la-t ions?(1) Federal a gencymeans any de-partment, agency, or instrumentalityof the United States. Such term doesnot include the Smithsonian Institu-tion as specified in section 2 (4) of theAct.

(2) Federa l agency of f ic ia lmeans anyindividual authorized by delegation of


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authorit y wit hin a F ederal agency toperform the duties relating to theseregulations.

(3) M useummeans any institution orState or local government agency (in-cluding any institution of higher learn-ing) that has possession of, or controlover, human remains, funerary objects,sacred objects, or objects of culturalpatri mony and receives F ederal funds.

(i) T he term possession means hav-ing physical custody of human re-mains, funerary objects, sacred objects,or objects of cultural patrimony with a

sufficient legal interest to lawfullytreat the objects as part of its collec-tion for purposes of these regulations.General ly , a museum or F ederal agen-cy would not be considered to have pos-session of human remains, funerary ob-jects, sacred objects, or objects of cul -tural patrimony on loan from anotherindivi dual, museum, or F ederal agency.

(ii) T he term cont ro l means havinga legal interest in human remains, fu-nerary objects, sacred objects, or ob-jects of cul tural patr imony suffi cientto l awfully permi t t he museum or F ed-eral agency to treat the objects as partof its collection for purposes of theseregulations whether or not the human

remains, funerary objects, sacred ob-jects or objects of cul tural patr imonyare in the physical custody of the mu-seum or F ederal agency. Generally, amuseum or F ederal agency that hasloaned human remains, funerary ob-jects, sacred objects, or objects of cul -tural patrimony to another individual,museum, or F ederal agency i s consid-ered to retain control of those humanremains, funerary objects, sacred ob-jects, or objects of cul tural patr imonyfor purposes of t hese regulati ons.

(ii i) T he phrase receives Federalf u nds means the receipt of funds by amuseum after November 16, 1990, froma Federal agency through any grant,

loan, contract (other than a procure-ment contract), or other arrangementby which a F ederal agency mak es ormade available to a museum aid in theform of funds. Federal funds providedfor any purpose that are received by alarger entity of which the museum is apart are considered Federal funds forthe purposes of these regulati ons. Forexample, if a museum is a part of aState or local government or a private

university and the State or local gov-ernment or private university receivesF ederal funds for any purpose, the mu-seum is considered to receive Federalfunds for the purpose of these regula-tions.

(4) M useum of f ic ia l means the indi-vidual within a museum designated asbeing responsible for matters relatingto these regulations.

(5) Personmeans an individual, part-nership, corporation, trust, institution,association, or any other private enti-ty, or, any official, employee, agent,department, or instrumentality of theUni ted States, or of any Indian tr ibe orNative Hawaiian organization, or ofany State or political subdivisionthereof that discovers or discoveredhuman remains, funerary objects, sa-cred objects or objects of cultural pat-rimony on Federal or tr ibal l ands afterNovember 16, 1990.

(b) Wh o has stan d in g to make a cla imunder these regulat ions?(1) L inea l de-scendantmeans an individual tracinghis or her ancestry directly and with-out interruption by means of the tradi-tional kinship system of the appro-priate Indian tribe or Native Hawaiian

organization or by the common lawsystem of descendance to a known Na-tive American individual whose re-mains, funerary objects, or sacred ob-jects are being claimed under theseregulations.

(2) I n d i a n t r i bemeans any t ri be, band,nation, or other organized Indian groupor community of Indians, includingany Alaska Native village or corpora-tion as defined in or established by theAlaska Native Claims Settlement Act(43 U.S.C. 1601 et seq.), which is recog-nized as eligible for the special pro-grams and services provided by theUnited States to Indians because oftheir status as Indians. The Secretary

will distri bute a li st of I ndian tr ibes forthe purposes of carrying out this stat-ute through the Departmental Con-sulting Archeologist.

(3)(i ) Nat i ve Hawa i i an o rgan i za t i onmeans any organization that:

(A) Serves and represents the inter-ests of Native Hawaiians;

(B) Has as a primary and stated pur-pose the provision of services to NativeHawaiians; and


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(C) Has expertise in Native Hawaiianaffairs.

(ii) T he term Nat i ve Haw a i i anmeansany individual who is a descendant ofthe aboriginal people who, prior to1778, occupi ed and exerci sed sov-ereignty in the area that now con-stitutes the State of Hawaii. Such or-ganizations must include the Office ofHawaiian Affairs and H u i M a l ama I Na K upuna O Haw a i i Nei.

(4) I n d ian t r i be o f f i c i a l means the prin-cipal l eader of an I ndian tri be or Na-tive Hawaiian organization or the indi-

vidual officially designated by the gov-erning body of an I ndian tr ibe or Na-ti ve Hawaiian organization or as other-wise provided by tribal code, policy, orestablished procedure as responsiblefor matters relating to these regula-tions.

(c) Wh o is responsible for carr yi ng outthese regulat ions? (1) Secretary meansthe Secretary of the Int eri or.

(2) Review Committeemeans the advi-sory committee established pursuantto secti on 8 of the Act.

(3) Depar tment a l Consu l t in g Archeo lo-gist means the official of the Depart-ment of the I nterior designated by theSecretary as responsible for the admin-istration of matters relating to theseregulations. Communications to theDepartmental Consulting Archeologistshould be addressed to:Departmental Consult ing A rcheologistNational P ark Service,P O Box 37127Washi ngt on, DC 200137127.

(d) Wh at objects are covered by th eseregu la t ions?The Act covers four typesof Nati ve American objects. The termNat i ve Amer icanmeans of, or relatingto, a tribe, people, or culture indige-nous to the United States, includingAlaska and Hawaii.

(1) Human rema insmeans the physicalremains of the body of a person of Na-

ti ve American ancestry . T he term doesnot include remains or portions of re-mains that may reasonably be deter-mined to have been freely given or nat-urally shed by the individual fromwhose body they were obtained, such ashair made int o ropes or nets. F or thepurposes of determining cultural affili-ation, human remains incorporatedinto a funerary object, sacred object, orobject of cultural patrimony, as de-

fined below, must be considered as partof that item.

(2) Fu nerary ob jec tsmeans items that,as part of the death rite or ceremony ofa culture, are reasonably believed tohave been placed intentionally at thetime of death or later with or near in-dividual human remains. Funerary ob-jects must be identi fi ed by a preponder-ance of the evidence as having been re-moved from a specific burial site of anindividual affiliated with a particularIndian tribe or Native Hawaiian orga-nization or as being related to specific

individuals or families or to knownhuman remains. The term bur ia l s i temeans any natural or prepared phys-ical l ocati on, whether originally below,on, or above the surface of the earth,into which, as part of the death rite orceremony of a culture, individualhuman remains were deposited, and in-cludes rock cairns or pyres which donot fall within the ordinary definitionof gravesit e. For purposes of com-pleting the summary requirements in10.8 and the inventory requirements of10.9:

(i) Associated funerary objectsmeansthose funerary objects for which thehuman remains with which they were

placed intentionally are also in thepossession or control of a museum orF ederal agency. A ssociated funeraryobjects also means those funerary ob-jects that were made exclusi vely forburial purposes or to contain humanremains.

(ii) Unassociated funerary objectsmeans those funerary objects for whichthe human remains with which theywere placed intentionally are not inthe possession or control of a museumor F ederal agency. Objects that weredisplayed with individual human re-mains as part of a death rite or cere-mony of a culture and subsequently re-turned or distributed according to tra-

ditional custom to living descendantsor other individuals are not consideredunassociated funerary objects.

(3) Sacred objectsmeans items thatare specific ceremonial objects neededby traditional Native American reli-gious leaders for the practice of tradi-tional Native American religions bytheir present-day adherents. Whilemany items, from ancient potterysherds to arrowheads, might be imbued


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with sacredness in the eyes of an indi-vidual, these regulations are specifi-cally limited to objects that were de-voted to a traditional Native Americanreligious ceremony or ri tual and whichhave religious significance or functionin t he continued observance or r enewalof such ceremony. T he term t r ad i t i ona lreligious leader means a person who isrecognized by members of an I ndiantribe or Native Hawaiian organizationas:

(i) Being responsible for performingcultural duties relating to the ceremo-

nial or religious traditions of that In-dian tribe or Native Hawaiian organi-zati on, or

(ii ) Exercising a leadership role in anIndian tri be or Nati ve Hawaii an orga-nization based on the tribe or organiza-ti ons cultural, ceremonial, or religiouspractices.

(4) Objec ts of cu l tu ra l pat r imonymeansitems having ongoing historical, tradi-tional, or cultural importance centralto the Indian tribe or Native Hawaiianorganization itself, rather than prop-erty owned by an individual tribal ororganizati on member. These objectsare of such central importance thatthey may not be alienated, appro-

priated, or conveyed by any individualtribal or organization member. Suchobjects must have been considered in-alienable by the culturally affiliatedIndian tri be or Nati ve Hawaii an orga-nization at the time the object was sep-arated from the group. Objects of cul-tural patrimony include items such asZuni War Gods, the Confederacy Wam-pum Belts of the Iroquois, and otherobjects of simil ar character and signifi-cance to the Indian tribe or Native Ha-waiian organization as a whole.

(e) What i s cu l t u ra l a f f i l i a t i on?Cul-tural affiliation means that there is arelationship of shared group identitywhich can reasonably be traced histori-

cally or prehistorically between mem-bers of a present-day I ndian t ri be orNative Hawaiian organization and anidentifiable earlier group. Cultural af-filiation is established when the pre-ponderance of the evidence based ongeographical, kinship, biological, ar-cheological, linguistic, folklore, oraltradition, historical evidence, or otherinformation or expert opinion rea-sonably leads to such a conclusion.

(f) Wha t t ypes of lan ds do the exca-vat ion and discovery provis ions of theseregu la t ions app ly to?(1) Federa l landsmeans any l and other than tr ibal l andsthat are controlled or owned by theUnited States Government, includinglands selected by but not yet conveyedto Alaska Native Corporations andgroups organized pursuant to the Alas-ka Native Claims Settlement Act (43U.S.C. 1601 et seq.). United Statescontrol, as used in this definition,refers to those lands not owned by theUnited States but in which the United

States has a legal interest sufficient topermit it to apply these regulationswithout abrogating the otherwise ex-isti ng legal r ights of a person.

(2) Tr iba l landsmeans all lands which:(i) A re withi n the exterior boundaries

of any Indian reservation including,but not limited to, allotments held intrust or subject to a restriction onalienation by t he United States; or

(ii ) Comprise dependent I ndian com-munities as recognized pursuant to 18U.S.C. 1151; or

(iii) Are administered for the benefitof Native Hawaiians pursuant to theHawaiian Homes Commission Act of1920 and section 4 of the Hawai ian

St atehood Admission Act (P ub.L . 863;73 Stat. 6).

(iv) Actions authorized or requiredunder these regulations will not applyto tribal lands to the extent that anyaction would result in a t aki ng of prop-erty without compensation within themeaning of the F ift h A mendment ofthe United States Constitution.

(g) What procedures are required bythese regulat ions? (1) Summary meansthe written description of collectionsthat may contain unassociated funer-ary objects, sacred objects, and objectsof cultural patrimony required by 10.8of these regulati ons.

(2) I nven to rymeans the item-by-item

descripti on of human remains and asso-ciated funerary objects.

(3) In tent iona l excavat ion means theplanned archeological removal ofhuman remains, funerary objects, sa-cred objects, or objects of cultural pat-rimony found under or on the surfaceof F ederal or t ri bal l ands pursuant t osecti on 3 (c) of the Act.

(4) Inadver tent d iscovery means theunanticipated encounter or detection


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of human remains, funerary objects,sacred objects, or objects of culturalpatrimony found under or on the sur-face of F ederal or tri bal lands pursuantto section 3 (d) of the Act.

[60 F R 62158, Dec. 4, 1995, as amended at 62F R 41293, Aug. 1, 1997]

Subpart BHuman Remains, Fu-nerary Objects, Sacred Ob-jects, or Objects of CulturalPatrimony From Federal orTribal Lands

10.3 Intentional archaeological exca-vations.

(a) General. T his secti on carries outsection 3 (c) of the Act regarding thecustody of human remains, funeraryobjects, sacred objects, or objects ofcultural patrimony that are excavatedintentionally from F ederal or t riballands after November 16, 1990.

(b) Specif i c Requir ement s. These regu-lations permit the intentional exca-vation of human remains, funerary ob-jects, sacred objects, or objects of cul -tural patr imony from Federal or tri ballands only if:

(1) The objects are excavated or re-moved following the requirements ofthe Archaeological Resources P rotec-t ion A ct (A RP A) (16 U.S .C. 470aa etseq.) and its implementing regulations.Regarding private lands within the ex-terior boundaries of any Indian res-ervation, the Bureau of Indian Affairs(BIA) will serve as the issuing agencyfor any permi ts r equired under the Act.F or BI A procedures for obtaining suchpermits, see 25 CF R part 262 or cont actthe Deputy Commissioner of Indian Af-fairs, Department of the Interior,Washington, DC 20240. R egarding landsadministered for the benefit of NativeHawaiians pursuant to the Hawaiian

Homes Commi ssion Act, 1920, and sec-t ion 4 of P ub. L . 863, the Departmentof Hawaiian Home L ands wil l serve asthe issuing agency for any permits re-quired under the Act, with the HawaiiState Historic P reservation Di vision ofthe Department of L and and NaturalResources acting in an advisory capac-i ty for such issuance. P rocedures andrequirements for issuing permits willbe consistent with those required by

the ARP A and its implementi ng regu-lations;

(2) The objects are excavated afterconsultation with or, in the case oftribal lands, consent of, the appro-priate Indian tribe or Native Hawaiianorganizati on pursuant to 10.5;

(3) The disposit ion of the objects isconsistent with their custody as de-scribed in 10.6; and

(4) Proof of the consultat ion or con-sent is shown to the Federal agency of-ficial or other agency official respon-

sible for the issuance of the requiredpermit.(c) Procedures. (1) The Federal agency

official must take reasonable steps todetermine whether a planned activitymay result in the excavati on of humanremains, funerary objects, sacred ob-jects, or objects of cul tural patr imonyfrom F ederal l ands. P rior to issuingany approvals or permits for activi ti es,the F ederal agency official must noti fyin writing the Indian tribes or NativeHawaiian organizations that are likelyto be culturally affiliated with anyhuman remains, funerary objects, sa-cred objects, or objects of cultural pat-ri mony that may be excavated. T he

F ederal agency offi cial must also no-ti fy any present-day Indian tri be whichaboriginally occupied the area of theplanned activity and any other Indiantribes or Native Hawaiian organiza-ti ons that the Federal agency offici alreasonably believes are likely to have acultural relationship to the human re-mains, funerary objects, sacred objects,or objects of cultural patrimony thatare expected to be found. T he noti cemust be in writing and describe theplanned activity, its general location,the basis upon which it was determinedthat human remains, funerary objects,sacred objects, or objects of culturalpatrimony may be excavated, and, the

basis for determining likely custodypursuant t o 10.6. T he notice must alsopropose a time and place for meetingsor consultations to further considerthe activi ty , the Federal agencys pro-posed treatment of any human re-mains, funerary objects, sacred objects,or objects of cultural patrimony thatmay be excavated, and the proposeddisposition of any excavated human re-mains, funerary objects, sacred objects,


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or objects of cultural patrimony. Writ-ten notification should be followed upby telephone contact if there is no re-sponse in 15 days. Consultati on must beconducted pursuant to 10.5.

(2) F ollowing consultat ion, the Fed-eral agency official must complete awritten plan of action (described in10.5(e)) and execute the actions call edfor in it .

(3) If the planned activity is also sub-ject to review under section 106 of theNati onal Hi storic P reservati on Act (16U.S.C. 470 et seq.), the Federal agency

official should coordinate consultationand any subsequent agreement forcompliance conducted under that Actwith the requirements of 10.3 (c)(2)and 10.5. Compliance with these regu-lati ons does not relieve F ederal agencyofficials of requirements to complywith section 106 of the National His-tori c P reservat ion A ct (16 U.S .C. 470 etseq.).

(4) If an Indian tribe or Native Ha-waiian organization receives notice ofa planned activity or otherwise be-comes aware of a planned activity thatmay result in the excavation of humanremains, funerary objects, sacred ob-jects, or objects of cul tural patr imony

on tri bal l ands, the I ndian tri be or Na-tive Hawaiian organization may takeappropri ate steps to:

(i) Ensure that the human remains,funerary objects, sacred objects, or ob-jects of cul tural patr imony are exca-vated or removed following 10.3 (b),and

(ii) Make certain that the dispositionof any human remains, funerary ob-jects, sacred objects, or objects of cul -tural patrimony excavated inten-tionally or discovered inadvertently asa result of the planned acti vit y are car-ri ed out foll owing 10.6.

10.4 Inadvertent discoveries.

(a) General. T his secti on carries outsection 3 (d) of the Act regarding thecustody of human remains, funeraryobjects, sacred objects, or objects ofcultural patrimony that are discoveredinadvertentl y on F ederal or t ri ballands after November 16, 1990.

(b) Discovery. Any person who knowsor has reason to know that he or shehas discovered inadvert ently human re-mains, funerary objects, sacred objects,

or objects of cultural patrimony onF ederal or tr ibal l ands after November16, 1990, must provide immediate tele-phone notification of the inadvertentdiscovery, with written confirmation,to t he responsible Federal agency offi -cial wit h respect to Federal lands, and,with respect to tribal lands, to the re-sponsible I ndian tr ibe official. T he re-quirements of these regulat ions regard-ing inadvertent discoveries applywhether or not an inadvertent dis-covery is duly reported. If written con-firmation is provided by certified mail,

the return receipt constitutes evidenceof the receipt of the written notifica-ti on by t he Federal agency official orIndian tr ibe official.

(c) Ceasing act iv i ty. If the inadvertentdiscovery occurred in connection withan on-going activi ty on Federal or t ri b-al lands, the person, in addition to pro-vidi ng the noti ce described above, muststop the activity in the area of the in-advert ent discovery and mak e a rea-sonable effort to protect the human re-mains, funerary objects, sacred objects,or objects of cultural patrimony dis-covered inadvertently.

(d) Federa l lan ds. (1) As soon as pos-sible, but no later than three (3) work-

ing days after receipt of the writtenconfirmation of notification with re-spect to F ederal l ands descri bed in10.4 (b), the responsible F ederal agen-cy official must:

(i) Certify receipt of the notification;(ii ) T ake immediate steps, i f nec-

essary, to further secure and protectinadvertently discovered human re-mains, funerary objects, sacred objects,or objects of cultural patrimony, in-cluding, as appropriate, stabilization orcovering;

(iii) Notify by telephone, with writ-ten confirmation, the Indian tribes orNative Hawaiian organizations likelyto be culturally affiliated with the in-

advertently discovered human remains,funerary objects, sacred objects, or ob-jects of cul tural patr imony, the I ndiantribe or Native Hawaiian organizationwhich aboriginally occupied the area,and any other Indian tribe or NativeHawaiian organization that is reason-ably known to have a cultural relati on-ship to the human remains, funeraryobjects, sacred objects, or objects ofcultural patrimony. This notification


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must include pertinent information asto kinds of human remains, funeraryobjects, sacred objects, or objects ofcultural patrimony discovered inad-vertently, their condition, and the cir-cumstances of their inadvertent dis-covery;

(iv) Initiate consultation on the inad-vertent discovery pursuant to 10.5;

(v) If t he human remains, funeraryobjects, sacred objects, or objects ofcultural patrimony must be excavatedor removed, follow the requirementsand procedures in 10.3 (b) of these reg-ulat ions; and

(vi) Ensure that disposition of all in-advertently discovered human remains,funerary objects, sacred objects, or ob-jects of cul tural patr imony is carr iedout following 10.6.

(2) Resumpt i on of act iv i t y. The activ-ity that resulted in the inadvertentdiscovery may resume thirty (30) daysafter cert ifi cation by the noti fied F ed-eral agency of receipt of the writtenconfirmation of notification of inad-vertent discovery if the resumption ofthe activity is otherwise lawful. Theactivity may also resume, if otherwiselawful, at any time that a written,

binding agreement is executed betweenthe F ederal agency and the affi li atedIndian tri bes or Nati ve Hawaiian orga-nizations that adopt a recovery planfor the excavation or removal of thehuman remains, funerary objects, sa-cred objects, or objects of cultural pat-rimony following 10.3 (b)(1) of theseregulat ions. The disposit ion of allhuman remains, funerary objects, sa-cred objects, or objects of cultural pat-rimony must be carried out following10.6.

(e) Tr iba l lands. (1) As soon as pos-sible, but no later than three (3) work-ing days after receipt of the writtenconfirmation of notification with re-

spect to T ri bal l ands descri bed in 10.4(b), the responsible Indian tribe officialmay:

(i) Certify receipt of the notification;(ii ) T ake immediate steps, i f nec-

essary, to further secure and protectinadvertently discovered human re-mains, funerary objects, sacred objects,or objects of cultural patrimony, in-cluding, as appropriate, stabilization orcovering;

(iii) If the human remains, funeraryobjects, sacred objects, or objects ofcultural patrimony must be excavatedor removed, follow the requirementsand procedures in 10.3 (b) of these reg-ulati ons; and

(iv) Ensure that disposition of all in-advertently discovered human remains,funerary objects, sacred objects, or ob-jects of cul tural patr imony is carr iedout following 10.6.

(2) Resumption of Acti vit y. T he ac-tivity that resulted in the inadvertentdiscovery may resume if otherwise law-ful after thirty (30) days of the certifi-cation of the receipt of notification bythe Indian tribe or Native Hawaiian or-ganization.

(f) Federal agency off ic ia ls. F ederalagency officials should coordinatetheir responsibili ti es under t his secti onwith their emergency discovery respon-sibilities under section 106 of the Na-ti onal Hi storical P reservati on Act (16U.S.C. 470 (f) et seq.), 36 CF R 800.11 orsection 3 (a) of the Archeological andHi stori c Preservat ion A ct (16 U.S .C. 469(a-c)). Compliance with these regula-ti ons does not r elieve F ederal agencyofficials of the requirement to complywith section 106 of the National Histor-ical P reservat ion A ct (16 U.S .C. 470 (f)et seq.), 36 CF R 800.11 or secti on 3 (a) ofthe Ar cheological and Historic P reser-vation Act (16 U.S.C. 469 (a-c)).

(g) Not i f i ca t ion requ i rement in au th or -iza t ions. Al l F ederal authorizati ons tocarry out land use activi ti es on F ederallands or tribal lands, including allleases and permits, must include a re-quirement for the holder of the author-izati on to notify the appropri ate Fed-eral or tribal official immediately uponthe discovery of human remains, funer-ary objects, sacred objects, or objectsof cultural patr imony pursuant to 10.4(b) of these regulations.

[60 F R 62158, Dec. 4, 1995, as amended at 62F R 41293, A ug. 1, 1997]

10.5 Consultation.

Consultation as part of the inten-tional excavation or inadvertent dis-covery of human remains, funerary ob-jects, sacred obj ects, or objects of cul -tural patrimony on F ederal l ands mustbe conducted in accordance with thefollowing requirements.


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(a) Consu l t ing par t i es. F ederal agencyofficials must consult with known lin-eal descendants and Indian tribe offi-cials:

(1) F rom I ndian t ri bes on whose ab-original lands the planned activity willoccur or where the inadvertent dis-covery has been made; and

(2) F rom I ndian tri bes and Nati ve Ha-waiian organizations that are, or arelikely to be, culturally affiliated withthe human remains, funerary objects,sacred objects, or objects of culturalpatr imony; and

(3) F rom I ndian tri bes and Nati ve Ha-waiian organizations that have a dem-onstrated cultural relationship withthe human remains, funerary objects,sacred objects, or objects of culturalpatrimony.

(b) I n i t i a t i on o f consu l t a t i on. (1) Uponreceiving notice of, or otherwise be-coming aware of, an inadvertent dis-covery or planned activity that has re-sulted or may result in the intentionalexcavation or inadvertent discovery ofhuman remains, funerary objects, sa-cred objects, or objects of cultural pat-ri mony on F ederal lands, the respon-sible F ederal agency offici al must, aspart of the procedures described in

10.3 and 10.4, take appropr iate stepsto identify the lineal descendant, In-dian tribe, or Native Hawaiian organi-zation entitled to custody of thehuman remains, funerary objects, sa-cred objects, or objects of cultural pat-rimony pursuant to 10.6 and 10.14.The F ederal agency offi cial shall noti fyin writ ing:

(i) A ny known lineal descendants ofthe individual whose remains, funeraryobjects, sacred objects, or objects ofcultural patrimony have been or arelikely to be excavated intentionally ordiscovered inadvertently; and

(ii) The Indian tribes or Native Ha-waiian organizations that are likely to

be culturally affiliated with the humanremains, funerary objects, sacred ob-jects, or objects of cul tural patr imonythat have been or are likely to be exca-vated intenti onall y or di scovered inad-vertentl y; and

(ii i) T he Indian tribes which aborigi-nally occupied the area in which thehuman remains, funerary objects, sa-cred objects, or objects of cultural pat-rimony have been or are likely to be

excavated intentionally or discoveredinadvertentl y; and

(iv) The Indian tri bes or Nat ive Ha-waiian organizations that have a dem-onstrated cultural relationship withthe human remains, funerary objects,sacred objects, or objects of culturalpatrimony that have been or are likelyto be excavated intentionally or dis-covered inadvertently.

(2) The notice must propose a timeand place for meetings or consultationto further consider the intentional ex-cavation or inadvertent discovery, the

F ederal agencys proposed treatment ofthe human remains, funerary objects,sacred objects, or objects of culturalpatrimony that may be excavated, andthe proposed disposition of any inten-tionally excavated or inadvertentlydiscovered human remains, funeraryobjects, sacred objects, or objects ofcultural patri mony.

(3) The consultati on must seek toidentify traditional religious leaderswho should also be consult ed and seekto identify, where applicable, lineal de-scendants and Indian tribes or NativeHawaiian organizations affiliated withthe human remains, funerary objects,sacred objects, or objects of cultural

patrimony.(c) Prov is ion of in format ion. During

the consultation process, as appro-priate, the F ederal agency officialmust provide the following informationin writing to the lineal descendantsand the official s of Indian tr ibes or Na-ti ve Hawaiian organizati ons that are orare likely to be affiliated with thehuman remains, funerary objects, sa-cred objects, or objects of cultural pat-rimony excavated intentionally or dis-covered inadvert ently on F ederallands:

(1) A list of all lineal descendants andIndian tribes or Native Hawaiian orga-nizations that are being, or have been,

consulted regarding the particularhuman remains, funerary objects, sa-cred objects, or objects of cultural pat-rimony;

(2) An indication that additional doc-umentation used to identify affiliationwil l be supplied upon request.

(d) Requests for information. Duringthe consult ati on process, Federal agen-cy officials must request, as appro-priate, the following information from


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I ndian tri bes or Nati ve Hawaiian orga-nizations that are, or are likely to be,affiliated pursuant to 10.6 (a) with in-tentionally excavated or inadvertentlydiscovered human remains, funeraryobjects, sacred objects, or objects ofcultural patrimony:

(1) Name and address of the Indiantr ibe offici al t o act as representati ve inconsultations related to particularhuman remains, funerary objects, sa-cred objects, or objects of cultural pat-rimony;

(2) Names and appropriate methodsto contact lineal descendants whoshould be contacted to participate inthe consultation process;

(3) Recommendations on how theconsultation process should be con-ducted; and

(4) K inds of cultural i tems that t heIndian tri be or Nati ve Hawaii an orga-nization considers likely to beunassociated funerary objects, sacredobjects, or objects of cultural pat-rimony.

(e) Wr i t t en p lan o f ac t i on. F ollowingconsult ation, the F ederal agency offi -cial must prepare, approve, and sign awritten plan of action. A copy of this

plan of action must be provided to thel ineal descendants, Indian tri bes andNative Hawaiian organizations in-volved. L ineal descendants and Indiantribe official(s) may sign the writtenplan of acti on as appropri ate. At a min-imum, the plan of action must complywith 10.3 (b)(1) and document the fol-lowing:

(1) T he ki nds of objects to be consid-ered as cultural items as defined in10.2 (b);

(2) The specif ic i nformat ion used todetermine custody pursuant to 10.6;

(3) T he planned treatment, care, andhandling of human remains, funeraryobjects, sacred objects, or objects of

cultural patr imony recovered;(4) T he planned archeological record-

ing of the human remains, funerary ob-jects, sacred objects, or objects of cul -tural patr imony recovered;

(5) The ki nds of analysis planned foreach kind of object;

(6) Any steps to be foll owed to con-tact Indian tribe officials at the timeof intentional excavation or inad-vertent discovery of specific human re-

mains, funerary objects, sacred objects,or objects of cult ural patri mony;

(7) The k ind of tradit ional t reatment,if any, to be afforded the human re-mains, funerary objects, sacred objects,or objects of cultural patrimony bymembers of the Indian tribe or NativeHawaii an organizati on;

(8) T he nature of reports to be pre-pared; and

(9) T he planned disposi ti on of humanremains, funerary objects, sacred ob-jects, or objects of cul tural patr imonyfol lowing 10.6.

(f) Comprehensive agreements. When-ever possible, F ederal Agencies shouldenter into comprehensive agreementswith Indian tribes or Native Hawaiianorganizations that are affiliated withhuman remains, funerary objects, sa-cred objects, or objects of cultural pat-rimony and have claimed, or are likelyto claim, those human remains, funer-ary objects, sacred objects, or objectsof cultural patrimony excavated inten-ti onall y or discovered inadvertentl y onF ederal lands. T hese agreementsshould address all F ederal agency l andmanagement activities that could re-sult in the intentional excavation orinadvertent discovery of human re-

mains, funerary objects, sacred objects,or objects of cultural patrimony. Con-sultation should lead to the establish-ment of a process for effectively car-rying out the requirements of theseregulations regarding standard con-sultation procedures, the determina-tion of custody consistent with proce-dures in this section and 10.6, and thetreatment and disposition of human re-mains, funerary objects, sacred objects,or objects of cultural patrimony. Thesigned agreements, or the correspond-ence related to the effort to reachagreements, must constitute proof ofconsultation as required by these regu-lations.

(g) Trad i t iona l re l ig ious leaders. TheF ederal agency offi cial must be cog-nizant that Indian tribe officials mayneed to confer with traditional reli-gious leaders prior to making rec-ommendations. Indian tribe officialsare under no obligation to reveal theidentity of traditional religious lead-ers.



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10.6 Custody.

(a) Pr ior i ty of custody. Thi s sectioncarries out section 3 (a) of the Act, sub-ject t o the li mi tations of 10.15, regard-ing the custody of human remains, fu-nerary objects, sacred objects, or ob-jects of cul tural patr imony excavatedintentionally or discovered inadvert-entl y in F ederal or t ri bal l ands afterNovember 16, 1990. F or the purposes ofthis section, custody means ownershipor control of human remains, funeraryobjects, sacred objects, or objects of

cultural patrimony excavated inten-tionally or discovered inadvertently inF ederal or t ri bal lands after November16, 1990. Custody of t hese human re-mains, funerary objects, sacred objects,or objects of cultural patrimony is,with priority given in the order listed:

(1) I n the case of human remains andassociated funerary objects, in the lin-eal descendant of the deceased indi-vidual as determined pursuant to 10.14(b);

(2) I n cases where a l ineal descendantcannot be ascertained or no claim ismade, and with respect to unassociatedfunerary objects, sacred objects, andobjects of cultural patri mony:

(i) I n the Indian tri be on whose tr iballand the human remains, funerary ob-jects, sacred objects, or objects of cul -tural patrimony were excavated inten-ti onall y or discovered inadvertentl y;

(ii) In the Indian tribe or Native Ha-waiian organization that has the clos-est cultural affiliati on with t he humanremains, funerary objects, sacred ob-jects, or objects of cul tural patr imonyas determined pursuant to 10.14 (c); or

(iii) In circumstances in which thecultural affiliation of the human re-mains, funerary objects, sacred objects,or objects of cultural patrimony can-not be ascert ained and the objects wereexcavated intentionally or discovered

inadvertentl y on F ederal l and that isrecognized by a final judgment of theIndian Claims Commission or theUnited States Court of Claims as theaboriginal land of an Indian tr ibe:

(A) In the Indian tribe aboriginallyoccupyi ng the Federal land on whichthe human remains, funerary objects,sacred objects, or objects of culturalpatrimony were excavated inten-ti onall y or discovered inadvertentl y, or

(B) I f i t can be shown by a preponder-ance of the evidence that a differentIndian tribe or Native Hawaiian orga-nization has a stronger cultural rela-tionship with the human remains, fu-nerary objects, sacred objects, or ob-jects of cul tural patr imony, in the In-dian tribe or Native Hawaiian organi-zation that has the strongest dem-onstrated relationship with the ob-jects.

(b) Custody of human remains, funer-ary objects, sacred objects, or objectsof cultural patrimony and other provi-

sions of the Act apply to all inten-tional excavations and inadvertent dis-coveries made aft er N ovember 16, 1990,including those made before the effec-tive date of these regulations.

(c) Fi na l not ice , cla ims and d isposi t i onwi t h r espect to F edera l lands. Upon de-termination of the lineal descendant,Indian tribe, or Native Hawaiian orga-nization that under these regulationsappears to be entitled to custody ofparticular human remains, funeraryobjects, sacred objects, or objects ofcultural patrimony excavated inten-ti onall y or discovered inadvertentl y onF ederal l ands, the responsible F ederalagency official must, subject to the no-

tice required herein and the limita-tions of 10.15, transfer custody of theobjects to the lineal descendant, Indiantribe, or Native Hawaiian organizationfollowing appropriate procedures,which must respect traditional cus-toms and practices of the affiliated In-dian tribes or Native Hawaiian organi-zati ons in each instance. P ri or to anysuch disposit ion by a F ederal agencyofficial , the F ederal agency offici almust publish general notices of theproposed disposition in a newspaper ofgeneral circulation in the area inwhich the human remains, funerary ob-jects, sacred obj ects, or objects of cul -tural patrimony were excavated inten-

tionally or discovered inadvertentlyand, if applicable, in a newspaper ofgeneral circulation in the area(s) inwhich affiliated Indian tribes or NativeHawaiian organizations members nowreside. The noti ce must provide infor-mation as to the nature and affiliationof the human remains, funerary ob-jects, sacred obj ects, or objects of cul -tural patrimony and solicit furtherclaims to custody. T he noti ce must be


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published at l east t wo (2) t imes at l easta week apart, and the tr ansfer mustnot take place until at least thirty (30)days after the publication of the secondnotice to allow time for any additionalclaimants to come forward. If addi-tional claimants do come forward andthe F ederal agency official cannotclearly determine which claimant isenti tl ed to custody, the F ederal agencymust not transfer custody of the ob-jects unt i l such time as the proper re-cipient is determined pursuant to theseregulat ions. The F ederal agency offi -

cial must send a copy of the notice andinformation on when and in what news-paper(s) the notice was published tothe Departmental Consult ing A rcheolo-gist.


10.7 Disposition of unclaimed humanremains, funerary objects, sacredobjects, or objects of cultural pat-rimony. [Reserved]

Subpart CHuman Remains, Fu-nerary Objects, Sacred Ob-jects, or Objects of CulturalPatrimony in Museums and

Federal Collections

10.8 Summaries.

(a) General. T his secti on carries outsection 6 of the Act. Under section 6 ofthe Act , each museum or F ederal agen-cy that has possession or control overcollections which may containunassociated funerary objects, sacredobjects, or objects of cultural pat-rimony must complete a summary ofthese collections based upon availableinformation held by the museum orF ederal agency. T he purpose of thesummary is to provide informationabout the collections to lineal descend-ants and culturally affiliated Indian

tribes or Native Hawaiian organiza-tions that may wish to request repatri-ati on of such objects. The summaryserves in lieu of an object-by-object in-ventory of these collections, although,if an inventory is available, it may besubsti tut ed. F ederal agencies are re-sponsible for ensuring that these re-quirements are met for all collectionsfrom their lands or generated by theiractions whether the collections are

held by the Federal agency or by a non-F ederal i nsti tuti on.

(b) Contents of summaries. F or eachcollection or portion of a collection,the summary must include: an esti-mate of the number of objects in thecollection or portion of the collection;a description of the kinds of objects in-cluded; reference to the means, date(s),and location(s) in which the collectionor portion of the collection was ac-quired, where readily ascertainable;and informati on relevant to identi fyi ng

lineal descendants, if available, andcultural affiliation.(c) Complet ion. Summaries must be

completed not later than November 16,1993.

(d) Consu l ta t ion. (1) Consulting par-ti es. Museum and Federal agency offi -cials must consult with Indian tribe of-ficials and traditional religious lead-ers:

(i) F rom whose tr ibal l andsunassociated funerary objects, sacredobjects, or objects of cultural pat-rimony originated;

(ii) That are, or are likely to be, cul-turally affiliated with unassociated fu-nerary objects, sacred objects, or ob-jects of cul tural patr imony; and

(ii i) F rom whose abori ginal landsunassociated funerary objects, sacredobjects, or objects of cultural pat-rimony originated.

(2) Initiation of consultation. Mu-seum and F ederal agency offi cial s mustbegin summary consultation no laterthan the completion of the summaryprocess. Consultation may be initiatedwith a letter, but should be followed upby telephone or face-to-face dialoguewith the appropriate Indian tribe offi-cial.

(3) P rovision of informati on. Duringsummary consultation, museum and

F ederal agency offi cials must providecopies of the summary to lineal de-scendants, when k nown, and to offi -cials and traditional religious leadersrepresenti ng Indian t ri bes or Nati veHawaii an organizati ons that are, or arelikely to be, culturally affiliated withthe cultural items. A copy of the sum-mary must also be provided to the De-partmental Consulting Archeologist.Upon request by lineal descendants or


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I ndian tr ibe offi cials, museum and Fed-eral agency officials must provide lin-eal descendants, Indian tribe officialsand traditional religious leaders withaccess to records, catalogues, relevantstudies, or other pert inent data for t helimited purposes of determining the ge-ographic origin, cultural affiliation,and basic facts surrounding acquisitionand accession of objects covered by thesummary. Access to this informationmay be requested at any t ime and mustbe provided in a reasonable manner tobe agreed upon by al l parti es. T he Re-view committee also must be providedaccess to such materi als.

(4) Requests for information. Duringthe summary consultation, museumand F ederal agency offi cial s must re-quest, as appropriate, the following in-formation from Indian tribes and Na-tive Hawaiian organizations that are,or are li kely to be, culturally affiliatedwith their collections:

(i) Name and address of the Indi antr ibe offici al t o act as representati ve inconsultations related to particular ob-jects;

(ii) Recommendations on how theconsultation process should be con-

ducted, including:(A) Names and appropriate methods

to contact any lineal descendants, ifknown, of individuals whoseunassociated funerary objects or sacredobjects are included in the summary;

(B) Names and appropriate methodsto contact any traditional religiousleaders that the Indian tribe or NativeHawaiian organization thinks shouldbe consulted regarding the collections;and

(iii) Kinds of cultural items that theIndian tri be or Nati ve Hawaii an orga-nization considers to be funerary ob-jects, sacred objects, or objects of cul -tural patri mony.

(e) Museum and Federal agency off i-cials must document the following in-formation regarding unassociated fu-nerary objects, sacred objects, and ob-jects of cul tural patr imony in theircollections and must use this docu-mentation in determining the individ-uals, Indian tribes, and Native Hawai-ian organizations with which they areaffiliated:

(1) A ccession and catalogue entri es;

(2) Information relat ed to the acqui-sition of unassociated funerary object,sacred object, or object of cultural pat-rimony, including:

(i) T he name of the person or organi -zation from whom the object was ob-tained, if known;

(ii ) The date of acquisit ion;

(ii i) T he place each object was ac-quired, i.e., name or number of site,county, State, and F ederal agency ad-mini strati ve unit , if appli cable; and

(iv) T he means of acquisit ion, i.e.,

gift, purchase, or excavation;(3) A descript ion of each unassociatedfunerary object, sacred object, or ob-ject of cul tural patr imony, includingdimensions, materials, and photo-graphic documentation, if appropriate,and the antiquity of such objects, ifknown;

(4) A summary of t he evidence usedto determine the cultural affiliation ofthe unassociated funerary objects, sa-cred objects, or objects of cultural pat-ri mony pur suant to 10.14 of these reg-ulations.

(f) Not i f ica t ion. Repatriation ofunassociated funerary objects, sacredobjects, or objects of cultural pat-

rimony to lineal descendants, cul-turally affiliated Indian tribes, or Na-tive Hawaiian organizations as deter-mined pursuant to 10.10 (a), must notproceed prior to submission of a noticeof intent to repatriate to the Depart-mental Consulting Archeologist, andpublication of the notice of intent torepatriate in the F E D E R A L R E G I S T E R .The notice of i ntent to repatri ate mustdescribe the unassociated funerary ob-jects, sacred obj ects, or objects of cul -tural patrimony being claimed in suffi-cient detail so as to enable other indi-viduals, Indian tribes or Native Hawai-ian organizations to determine theirint erest in the claimed objects. I t must

include information that identifieseach cl aimed unassociated funerary ob-ject, sacred object, or object of cul turalpatrimony and the circumstances sur-rounding its acquisition, and describesthe objects that are clearl y i denti fiableas to cultural affiliation. It must alsodescribe the objects that are not clear-ly identifiable as being culturally af-filiated with a particular Indian tribeor Native Hawaiian organization, but


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which, given the totality of cir-cumstances surrounding acquisition ofthe objects, are likely to be culturallyaffiliated wit h a parti cular Indian tri beor Nati ve Hawaiian organization. TheDepartmental Consulting Archeologistmust publi sh the noti ce of int ent t o re-patriate in the F E D E R A L R E G I S T E R. Re-patriation may not occur until at leastthi rty (30) days after publicati on of thenotice of intent to repatriate in theF E D E R A L R E G I S T E R .


10.9 Inventories.

(a) General. T his secti on carries outsection 5 of the Act. Under section 5 ofthe Act , each museum or F ederal agen-cy that has possession or control overholdings or collections of human re-mains and associated funerary objectsmust compile an inventory of such ob-jects, and, t o the ful lest extent possibl ebased on information possessed by themuseum or F ederal agency, must iden-tify the geographical and cultural af-fi li ati on of each item. The purpose ofthe inventory is to facilitate repatri-ation by providing clear descriptions ofhuman remains and associated funer-ary objects and establishing the cul-tural affiliation between these objectsand present-day I ndian t ri bes and Na-tive Hawaiian organizations. Museumsand F ederal agencies are encouraged toproduce inventories first on those por-tions of their collections for which in-formation is readily available or aboutwhich Indian tribes or Native Hawaiianorganizations have expressed specialinterest. Early focus on these parts ofcollections will result in determina-tions that may serve as models forother inventori es. F ederal agenciesmust ensure that these requirementsare met for all collections from theirlands or generated by their actions

whether the collections are held by theF ederal agency or by a non-F ederal in-stitution.

(b) Consu l ta t ion(1) Consu l t ing par-ties. Museum and Federal agency offi -cials must consult with:

(i) L ineal descendants of i ndividualswhose remains and associated funeraryobjects are likely to be subject to theinventory provisions of these regula-ti ons; and

(ii) Indian tribe officials and tradi-ti onal religious leaders:

(A) F rom whose tr ibal l ands thehuman remains and associated funer-ary objects originated;

(B) That are, or are li kely to be, cul-turally affiliated with human remainsand associated funerary objects; and

(C) F rom whose aboriginal lands thehuman remains and associated funer-ary objects originated.

(2) I n i t i a t i on o f consu l t a t i on . Museumand Federal agency offi cial s mustbegin inventory consultation as early

as possible, no later in the inventoryprocess than the time at which inves-tigation into the cultural affiliation ofhuman remains and associated funer-ary objects is being conducted. Con-sultation may be initiated with a let-ter, but should be followed up by tele-phone or face-to-face dialogue.

(3) Prov is ion of in f ormat ion . During in-ventory consultation, museums andF ederal agency offi cials must providethe foll owing informati on in writ ing toli neal descendants, when known, and toofficials and traditional religious lead-ers representi ng Indian tr ibes or Nati veHawaii an organizati ons that are, or arelikely to be, culturally affiliated with

the human remains and associated fu-nerary objects.

(i) A list of all Indian tribes and Na-tive Hawaiian organizations that are,or have been, consulted regarding theparticular human remains and associ-ated funerary objects;

(ii) A general description of the con-duct of the inventory;

(ii i) T he projected ti me frame forconducting the inventory; and

(iv) An indication that additionaldocumentation used to identify cul-tural affiliation will be supplied uponrequest.

(4) Requests for in format ion . Duringthe inventory consultation, museum

and F ederal agency offi cial s must re-quest, as appropriate, the following in-formation fr om Indian t ri bes and Na-tive Hawaiian organizations that are,or are li kely t o be, culturally affil iatedwith their collections:

(i) N ame and address of the Indi antr ibe offici al t o act as representat ive inconsultations related to particularhuman remains and associated funer-ary objects;


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(ii) Recommendations on how theconsultation process should be con-ducted, including:

(A) Names and appropriate methodsto contact any lineal descendants of in-divi duals whose remains and associatedfunerary objects are or are l ik ely to beincluded in t he inventory; and

(B) Names and appropriate methodsto contact traditional religious leaderswho should be consulted regarding thehuman remains and associated funer-ary objects.

(ii i) K inds of objects that the Indian

tribe or Native Hawaiian organizationreasonably bel ieves to have been madeexclusively for burial purposes or tocontain human remains of their ances-tors.

(c) Requi red in format ion. The fol-lowing documentation must be in-cluded, if available, for all inventoriescompleted by museum or F ederal agen-cy officials:

(1) A ccession and catalogue entri es,including the accession/catalogue en-tries of human remains with which fu-nerary objects were associated;

(2) Information related to the acqui-sit ion of each object, i ncluding:

(i) T he name of the person or organi -

zation from whom the object was ob-tained, if known;

(ii ) The date of acquisit ion,(ii i ) The place each object was ac-

quired, i.e., name or number of site,county, St ate, and F ederal agency ad-mini strati ve unit , if appli cable; and

(iv) T he means of acquisit ion, i .e.,gift, purchase, or excavation;

(3) A descripti on of each set of humanremains or associated funerary object,including dimensions, materials, and,if appropriate, photographic docu-mentation, and the antiquity of suchhuman remains or associated funeraryobjects, if known;

(4) A summary of the evidence, in-

cluding the results of consultation,used to determine the cultural affili-ation of the human remains and associ-ated funerary objects pursuant to10.14 of these regulat ions.

(d) Documents. Two separate docu-ments comprise the inventory:

(1) A listing of all human remainsand associated funerary objects thatare identified as being culturally affili-ated with one or more present-day In-

dian tribes or Native Hawaiian organi-zati ons. The list must indicate for eachitem or set of items whether culturalaffiliation is clearly determined orl ikely based upon the preponderance ofthe evidence; and

(2) A listing of all culturally uniden-tifiable human remains and associatedfunerary objects for which no cul-turally affiliated present-day Indiantribe or Native Hawaiian organizationcan be determined.

(e) Not i f ica t ion. (1) I f the inventoryresults in the identification or likely

identification of the cultural affili-ation of any particular human remainsor associated funerary objects with oneor more Indian tribes or Native Hawai-ian organizations, the museum or F ed-eral agency, not later than six (6)months after completion of the inven-tory, must send such Indian tribes orNative Hawaiian organizations the in-ventory of culturally affiliated humanremains and associated funerary ob-jects, including al l information re-quired under 10.9 (c), and a not ice ofinventory completion that summarizesthe result s of the inventory.

(2) The noti ce of inventory comple-tion must summarize the contents of

the inventory in sufficient detail so asto enable the recipients to determinetheir interest in claiming the inven-tori ed items. It must identify each par-ticular set of human remains or eachassociated funerary object and the cir-cumstances surrounding its acquisi-tion, describe the human remains orassociated funerary objects that areclearly identifi able as to cultural affili-ation, and describe the human remainsand associated funerary objects thatare not clearly identifiable as beingculturally affiliated with an Indiantribe or Native Hawaiian organization,but which, given the totality of cir-cumstances surrounding acquisition of

the human remains or associated ob-jects, are i denti fi ed as l ikely to be cul -turally affiliated with a particular In-dian tribe or Native Hawaiian organi-zation.

(3) I f t he inventory result s in a deter-mination that the human remains areof an identifiable individual, the mu-seum or F ederal agency offi cial mustconvey this information to the linealdescendant of the deceased individual,


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if known, and to the Indian tri be or Na-tive Hawaiian organization of whichthe deceased individual was culturallyaffiliated.

(4) The notice of inventory comple-tion and a copy of the inventory mustalso be sent to the Departmental Con-sulti ng Archeologist. T hese submis-sions should be sent in both printedhard copy and electroni c formats. In-formation on the proper format forelectroni c submission and suggested al-ternati ves for museums and F ederalagencies unable to meet these require-

ments are available from the Depart-mental Consult ing A rcheologist.

(5) Upon request by an I ndian t ri be orNative Hawaiian organization that hasreceived or should have received a no-tice of inventory completion and acopy of the inventory as describedabove, a museum or F ederal agencymust supply additional available docu-mentation to supplement the informa-ti on provided with t he noti ce. F orthese purposes, the term documenta-tion means a summary of existing mu-seum or F ederal agency records incl ud-ing inventories or catalogues, relevantstudies, or other pert inent data for t helimited purpose of determining the

geographical origin, cultural affili-ation, and basic facts surrounding theacquisition and accession of human re-mains and associated funerary objects.

(6) I f t he museum or F ederal agencyofficial determines that the museum orF ederal agency has possession of orcontrol over human remains that can-not be identified as affiliated with aparticular individual, Indian tribes orNative Hawaiian organizations, themuseum or F ederal agency must pro-vide the Department Consult ing A rche-ologist notice of this result and a copyof the list of culturally unidentifiablehuman remains and associated funer-ary objects. The Depart mental Con-

sulting Archeologist must make thisinformation available to members ofthe Review Committee. Section 10.11 ofthese regulations will set forth proce-dures for disposition of culturally un-identifiable human remains of NativeAmeri can origin. M useums or F ederalagencies must retain possession of suchhuman remains pending promulgationof 10.11 unless legal ly required to dootherwise, or recommended to do oth-

erwise by the Secretary. Recommenda-tions regarding the disposition of cul-turally unidentifiable human remainsmay be requested prior to final promul-gation of 10.11.

(7) T he Departmental Consult ing A r-cheologist must publish notices of in-ventory completion received from mu-seums and F ederal agencies in t he F E D-E R A L R E G I S T E R .

(f) Complet ion. Inventories must becompleted not later than November 16,1995. A ny museum that has made agood faith effort to complete its i nven-tory, but which will be unable to com-plete the process by this deadline, mayrequest an extension of the time re-quirements from the Secretary. An in-dication of good faith efforts must in-clude, but not necessarily be limitedto, the initiation of active consultationand documentation regarding the col-lections and the development of a writ-ten plan to carry out the inventoryprocess. Minimum components of aninventory plan are: a definition of thesteps required; the position titles ofthe persons responsible for each step; aschedule for carrying out the plan; anda proposal to obtain the requisite fund-ing.


10.10 Repatriation.

(a) Unassociated funerary objects, sa-cred objects, and objects of cultu ral pat -r imony(1) Cr i te r ia . Upon the request ofa li neal descendant, I ndian tri be, orNative Hawaiian organization, a mu-seum or F ederal agency must expedi-tiously repatriate unassociated funer-ary objects, sacred objects, or objectsof cultural patrimony if all the fol-lowing crit eria are met:

(i) T he object meets t he defini ti onsestabli shed in 10.2 (d)(2)(i i ), (d)(3), or

(d)(4); and(ii) T he cultural affiliati on of the ob-

ject i s establi shed:(A) T hrough the summary, consult a-

tion, and notification procedures in10.14 of these regulat ions; or

(B) By presentation of a preponder-ance of t he evidence by a requesti ng In-dian tribe or Native Hawaiian organi-zation pursuant to section 7(c) of theAct; and


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(ii i) The known li neal descendant orculturally affiliated Indian tri be or Na-tive Hawaiian organization presentsevidence which, if standing alone be-fore the introduction of evidence to thecontrary, would support a finding thatthe museum or F ederal agency doesnot have a right of possession to theobjects as defined in 10.10 (a)(2); and

(iv) T he agency or museum is unableto present evidence to the contraryproving that it does have a right ofpossession as defined below; and

(v) None of the specific exceptionsl isted in 10.10 (c) apply .(2) Ri ght of possession. F or purposes of

this section, right of possessionmeans possession obtained with thevoluntary consent of an individual orgroup that had authority of alienation.The ori ginal acquisi t ion of a Nat iveAmerican unassociated funerary ob-ject, sacred object, or object of cul turalpatrimony from an Indian tribe or Na-tive Hawaiian organization with thevoluntary consent of an individual orgroup with authority to alienate suchobject is deemed to give right of pos-session to that object.

(3) Not i f i ca t i on . Repatriation musttake place within ninety (90) days ofreceipt of a writ ten request for repatri -ation that sati sfies the requirements ofparagraph (a)(1) of this section from alineal descendent or culturally affili-ated I ndian tri be or Nati ve Hawaiianorganizati on, provided that t he repatr i-ation may not occur until at least thi r-ty (30) days after publication of the no-tice of intent to repatriate in the F E D-E R A L R E G I S T E R as described in 10.8.

(b) Hu man r emains and associa ted fu -nerar y objects(1) Cr i te r ia . Upon the re-quest of a l ineal descendant, I ndiantribe, or Native Hawaiian organization,a museum and Federal agency must ex-

peditiously repatriate human remainsand associated funerary objects if all ofthe following cri teria are met:

(i) T he human remains or associatedfunerary object meets the definitionsestabli shed in 10.2 (d)(1) or (d)(2)(i );and

(ii ) T he affil iat ion of t he deceased in-dividual to known lineal descendant,present day I ndian tr ibe, or Nati ve Ha-waiian organization:

(A) Has been reasonably tr acedthrough the procedures outlined in10.9 and 10.14 of t hese regulations; or

(B) Has been shown by a preponder-ance of the evidence presented by a re-questing Indian tribe or Native Hawai-ian organization pursuant to section7(c) of the Act; and

(iii) None of the specific exceptionsl isted in 10.10 (c) apply.

(2) Not i f i ca t i on . Repatriation musttake place within ninety (90) days ofreceipt of a writ ten request for repatri -ation that sati sfies the requirements of

10.10 (b)(1) from the culturally affili-ated Indian tribe or Native Hawaiianorganization, provided that t he repatr i-ation may not occur until at l east thir -ty (30) days after publication of the no-tice of inventory completion in theF E D E R A L R E G I S T E R as descri bed in10.9.

(c) Except ions. T hese requirements forrepatri ation do not apply to:

(1) Circumstances where human re-mains, funerary objects, sacred objects,or objects of cult ural patri mony are in-dispensable to the completion of a spe-cific scientific study, the outcome ofwhich is of major benefit to the UnitedStates. Human remains, funerary ob-

jects, sacred obj ects, or objects of cul -tural patrimony in such circumstancesmust be returned no later than ninety(90) days after completion of the study;or

(2) Circumstances where there aremultiple requests for repatriation ofhuman remains, funerary objects, sa-cred objects, or objects of cultural pat-ri mony and the museum or F ederalagency, after complying with theseregulations, cannot determine by a pre-ponderance of the evidence which re-questing party is the most appropriateclaimant. I n such circumstances, themuseum or F ederal agency may retainthe human remains, funerary objects,

sacred objects, or objects of culturalpatrimony until such time as the re-questing parties mutually agree uponthe appropriate recipient or the disputeis otherwise resolved pursuant to theseregulations or as ordered by a court ofcompetent jur isdicti on; or

(3) Circumstances where a court ofcompetent jurisdiction has determinedthat the repatriation of the human re-mains, funerary objects, sacred objects,


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or objects of cultural patrimony in thepossession or control of a museumwould result in a taking of propertywithout just compensation within themeaning of the F ift h Amendment ofthe United States Constitution, inwhich event the custody of the objectsmust be as provided under otherwiseapplicable law. Nothing in these regu-lati ons must prevent a museum or F ed-eral agency, where otherwise so au-thori zed, or a li neal descendant, I ndiantribe, or Native Hawaiian organization,from expressly relinquishing title to,

right of possession of, or control overany human remains, funerary objects,sacred objects, or objects of culturalpatrimony.

(4) Circumstances where the repatri-ation is not consistent wit h other repa-triation limitations identified in 10.15of these regulations.

(d) Place and mann er of repat r ia t ion.The repatr iation of human remains, fu-nerary objects, sacred objects, or ob-jects of cul tural patr imony must be ac-complished by the museum or F ederalagency in consultation with the re-questing lineal descendants, or cul-turall y affili ated Indian tribe or NativeHawaiian organization, as appropriate,

to determine the place and manner ofthe repatriation.

(e) The museum offi cial or F ederalagency official must inform the recipi-ents of repatriations of any presentlyknown treatment of the human re-mains, funerary objects, sacred objects,or objects of cultural patrimony withpesticides, preservatives, or other sub-stances that represent a potential haz-ard to the objects or to persons han-dling the objects.

(f) Record of repat r ia t ion. (1) Museumsand Federal agencies must adopt int er-nal procedures adequate to perma-nently document the content and re-cipients of all repatri ations.

(2) The museum offi cial or F ederalagency official, at the request of theIndian tribe official, may take suchsteps as are considered necessary pur-suant to otherwise applicable law, toensure that information of a particu-larly sensitive nature is not madeavailable to the general public.

(g) Cu l tu ra l l y u n iden t i f i ab le human r e-ma ins. If the cultural affiliation ofhuman remains cannot be established

pursuant to these regulations, thehuman remains must be considered cul-turally unidentifiable. Museum andF ederal agency offi cial s must reportthe inventory information regardingsuch human remains in their holdingsto t he Departmental Consult ing A rche-ologist who will transmit thi s informa-ti on to the Review Commit tee. The Re-view Committee is responsible for com-piling an inventory of culturally un-identifiable human remains in the pos-session or control of each museum andF ederal agency, and, for recommendingto the Secretary specific actions fordisposition of such human remains.


10.11 Disposition of culturally un-identifiable human remains. [Re-served]

10.12 Civil penalties.

(a) Th e Secretary s Aut hor i t y to AssessCiv i l Pena l t ies. The Secretary is author-ized by section 9 of the Act to assesscivil penalties on any museum thatfails to comply with the requirementsof the Act . As used in t his P aragraph,

failure to comply with requirementsof the Act also means fail ure to com-ply wi th applicable porti ons of the reg-ulati ons set fort h in thi s Part . As usedin t his P aragraph you refers to themuseum or the museum official des-ignated responsible for matters relatedto implementat ion of the Act.

(b) Def in i t i on o f f a i l u r e to comp ly . (1) Y our museum has failed to complywith the requirements of the Act if it:

(i ) A ft er November 16, 1990, sell s orotherwise transfers human remains, fu-nerary objects, sacred objects, or ob-jects of cul tural patr imony contrary toprovisions of the Act, including, butnot limited to, an unlawful sale or

transfer to any individual or institu-tion that is not required to complywith t he Act ; or

(i i ) A fter November 16, 1993, has notcompleted summaries as required bythe Act; or

(i i i ) A fter November 16, 1995, or t hedate specified in an extension issued bythe Secretary, whichever is later, hasnot completed inventories as requiredby the Act ; or


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(iv) A fter M ay 16, 1996, or 6 monthsafter completion of an inventory underan extension issued by the Secretary,whichever i s later, has not noti fied cul-turally affiliated Indian tribes and Na-ti ve Hawaiian organizations; or

(v) Refuses, absent any of the exemp-tions specified in 10.10(c) of this part,to repatriate human remains, funeraryobject, sacred object, or object of cul-tural patrimony to a lineal descendantor culturally affiliated Indian tribe orNati ve Hawaiian; or

(vi) Repatriates a human remains, fu-

nerary object, sacred object, or objectof cultural patri mony before publishingthe required noti ce in t he F ederal Reg-ister;

(vii) Does not consult with lineal de-scendants, Indian tribe officials, andtraditional religious leaders as re-quired; or

(viii) Does not inform the recipientsof repatriations of any presentlyknown treatment of the human re-mains, funerary objects, sacred objects,or objects of cultural patrimony withpesticides, preservatives, or other sub-stances that represent a potential haz-ard to the objects or to persons han-dling the objects.

(2) Each instance of failure to complywil l constit ute a separate violati on.

(c) How to Not i fy the Secre tary of aFai lu re to Comply . Any person maybring an allegati on of failure to complyto the attention of the Secretary. Alle-gations must be in writing, and shouldinclude documentation identifying theprovision of the Act with which therehas been a failure to comply and sup-porting facts of the alleged failure tocomply . Documentat ion should i ncludeevidence that the museum has posses-sion or control of Native American cul-tural it ems, receives Federal funds, andhas failed to comply with specific pro-visions of the Act. Written allegations

should be sent to the attention of theDi rector, Nati onal P ark Servi ce, 1849 CSt reet, NW, Washington, D.C. 20240.

(d) Steps the Secretar y ma y t ake up onreceiv in g such an a l legat ion . (1) The Sec-retary must acknowledge receipt of theallegation in writi ng.

(2) The Secretary also may:(i) Compile and review information

relevant to the alleged failure to com-ply. The Secretary may request addi-

tional information, such as declara-ti ons and relevant papers, books, anddocuments, from t he person mak ingthe allegation, the museum, and otherparties;

(ii) Identify the specific provisions ofthe Act with which you have allegedlyfailed to comply; and

(iii ) Determine if t he instit ution of acivil penalty action is an appropriateremedy.

(3) The Secretary must provide wri t-ten notification to the person makingthe allegation and the museum if the

review of the evidence does not show afailure comply.

(e) How th e Secretary not i f ies you of afa i l u re to comply . (1) If t he all egati onsare verified, the Secretary must serveyou with a written notice of failure tocomply either by personal delivery orby registered or certified mail (returnreceipt requested). The noti ce of fail -ure to comply must include:

(i) A concise statement of the factsbelieved to show a failure to comply;

(ii) A specific reference to the provi-sions of the Act and/or these regula-tions with which you allegedly havenot compli ed; and

(iii) Notification of the right to re-

quest an informal discussion with theSecretary or a designee, to request ahearing, as provided below, or to awaitthe Secretarys notice of assessment.The notice of fai lure to comply alsomust inform you of your right to seekjudicial review of any final administr a-tive decision assessing a civil penalty.

(2) With your consent, the Secretarymay combine the notice of failure tocomply with the notice of assessmentdescribed in paragraph (h) of this sec-tion.

(3) T he Secretary al so must send acopy of the notice of failure to complyto:

(i) Any lineal descendant of a known

Native American individual whosehuman remains, funerary objects, orsacred objects are in questi on; and

(ii) Any Indian tribes or Native Ha-waiian organizations that are, or arelikely to be, culturally affiliated withthe human remains, funerary objects,sacred objects, or objects of culturalpatr imony i n question.

(f) Act ions you may tak e upon r eceip t ofa n ot ice of fa i lu r e to comply. If you are


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served with a notice of failure to com-ply, you may:

(1) Seek informal discussions withthe Secretary;

(2) Request a heari ng. F igure 1 out-lines the civil penalty hearing and ap-peal process. Where the Secretary has

issued a combined notice of failure tocomply and notice of assessment, thehearing and appeal processes will alsobe combined.

(3) Take no action and await the Sec-retarys not ice of assessment.


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(g) How the Secretary determines thepena l t y amoun t .

(1) T he penalt y amount must be de-termined on the record;

(2) T he penalt y amount must be .25percent of your museums annual budg-et, or $5,000, whi chever i s less, and suchadditional sum as the Secretary may


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determine is appropriate after takingint o account:

(i) T he archeological, histori cal, orcommercial value of the human re-mains, funerary object, sacred object,or object of cultural patrimony in-volved; and

(i i) The damages suffered, both eco-nomic and non-economic, by the ag-grieved party or parties including, butnot limited to, expenditures by the ag-grieved party to compel the museum tocomply 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 thefinal administrative decision takes ef-fect may be assessed if your museumcontinues to violate the Act.

(4) The Secretary may r educe thepenalty amount i f there is:

(i) A determination that you did notwill fully fail to comply; or

(ii) An agreement by you to mitigatethe violation, including, but not lim-ited to, payment of restitution to theaggri eved part y or parti es; or

(iii) A determination that you areunable to pay, provided that this factormay not apply if you have been pre-

viously found to have failed to complywith these regulations; or,

(iv) A determination that the penaltyconstitutes excessive punishmentunder t he circumstances.

(h) H ow t he Secretar y a ssesses the pen-a l t y . (1) The Secretary considers allavailable information, including infor-mation provided during the process ofassessing civil penalties or furnishedupon further request by the Secretary.

(2) T he Secretary may assess thecivil penalty upon completing informaldiscussions or when the period for re-questing a hearing expires, whicheveris later.

(3) T he Secretary noti fies you in

writing of the penalty amount assessedby serving a written notice of assess-ment, either in person or by registeredor certified mail (return receipt re-quested). The noti ce of assessment in-cludes:

(i) T he basis for determi ning the pen-alty amount assessed and/or any offerto mi ti gate or remit t he penalty ; and

(ii) Notification of the right to re-quest a hearing, including the proce-

dures to follow, and to seek judicial re-view of any final administrative deci-sion that assesses a civil penalty.

(i) Act ions that y ou may take upon re-ceip t of a n oti ce of a ssessment . If you areserved wit h a not ice of assessment, youmay do one of the following:

(1) Accept in writing or by paymentof the proposed penalty, or any mitiga-tion or remission offered in the noticeof assessment. I f you accept t he pro-posed penalty, mitigation, or remis-sion, you waive the right to request ahearing.

(2) Seek informal discussions withthe Secretary .

(3) F il e a peti ti on for reli ef. Y ou mayfile a petition for relief with the Sec-retary within 45 calendar days of re-ceiving the noti ce of assessment. Y ourpetition for relief may request the Sec-retary t o assess no penalt y or to reducethe amount. Y our peti ti on must be inwriting and signed by an official au-thori zed to sign such documents. Yourpetition must set forth in full the legalor factual basis for the requested relief.

(4) Request a heari ng. F igure 1 out-lines the civil penalty hearing and ap-peal process.

(i) I n addit ion to the documentat ion

required in paragra