[Federal Register: March 15, 2010 (Volume 75, Number 49)]
[Rules and Regulations]
[Page 12377-12405]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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Part III
Department of the Interior
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43 CFR Part 10
Native American Graves Protection and Repatriation Act Regulations--
Disposition of Culturally Unidentifiable Human Remains; Final Rule
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
RIN 1024-AD68
Native American Graves Protection and Repatriation Act
Regulations--Disposition of Culturally Unidentifiable Human Remains
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule with request for comments.
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SUMMARY: This final rule implements the Native American Graves
Protection and Repatriation Act by adding procedures for the
disposition of culturally unidentifiable Native American human remains
in the possession or control of museums or Federal agencies. This rule
also amends sections related to purpose and applicability of the
regulations, definitions, inventories of human remains and related
funerary objects, civil penalties, and limitations and remedies.
DATES: This rule is effective May 14, 2010. Comments must be received
by May 14, 2010.
ADDRESSES: You may submit comments on this final rule, identified by
the number 1024-AD68, by any of the following methods:
Federal rulemaking portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail or hand delivery: Sherry Hutt, Manager, National
NAGPRA Program, National Park Service, 1201 Eye Street, NW., 8th Floor,
Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Sherry Hutt, Manager, National NAGPRA
Program, National Park Service, 1201 Eye Street, NW., 8th Floor,
Washington, DC 20005, Telephone: (202) 354-1479, Fax: (202) 371-5197.
SUPPLEMENTARY INFORMATION:
Background
The Native American Graves Protection and Repatriation Act of 1990
(the Act) addresses the rights of lineal descendants, Indian tribes,
and Native Hawaiian organizations to certain Native American human
remains, funerary objects, sacred objects and objects of cultural
patrimony. Among other things, the Act:
--Established the Native American Graves Protection and Repatriation
Review Committee, composed of representatives from museum and
scientific organizations and from Indian tribes and Native Hawaiian
organizations (the Review Committee) to monitor and review inventory,
identification, and repatriation activities.
--Required the Review Committee to consult with the Secretary of the
Interior in developing regulations to implement the Act.
--Charged the Review Committee with compiling an inventory of
culturally unidentifiable human remains in museums or Federal agencies
and recommending actions for disposition of these remains.
In 1995, during initial development of the regulations to implement
the Act, the Department decided to reserve several sections for later
development. This decision ensured that development of more complex
provisions would not delay implementation of the basic regulations
needed to guide compliance with impending deadlines for inventory
submissions. We are implementing this long-term publication plan as
follows:
--We published the first rules to implement the Act on December 4, 1995
(43 CFR part 10, 60 FR 62158).
--We published rules for assessing civil penalties under the Act on
April 3, 2003 (43 CFR 10.12, 68 FR 16354).
--We published rules for new collections and continuing obligations for
compliance on March 21, 2007 (43 CFR 10.13, 72 FR 13189).
--We are publishing this rule today.
--We are developing additional rules to cover disposition of unclaimed
Native American human remains and cultural items from Federal and
Indian lands (future 43 CFR 10.7).
Publication of this rule furthers the Department's goal of
publication in phases.
On October 16, 2007, we published in the Federal Register the
proposed rule to specify procedures for disposition of culturally
unidentifiable human remains in the possession or control of museums or
Federal agencies. At that time, we invited public comment for a 90-day
period, ending on January 14, 2008, and posted the proposed rule on the
National NAGPRA Program Web site.
During the comment period, we received 138 written comments from 51
Indian tribes, 19 Indian organizations, 30 museums, 12 museum or
scientific organizations, 3 Federal entities, 15 members of the public,
and the Review Committee. The comments addressed all sections of the
proposed rule. We fully considered all of these comments and this final
rule includes extensive revisions that we have made response to the
concerns raised by commenters.
As required by the Act, the Review Committee sent comments to the
Secretary in 2000, 2003, and 2008. During its January 2008
teleconference, the Review Committee suggested that the Department
extend the comment period for the proposed rule or reissue a revised
proposed rule for further comment. After the close of the comment
period, we worked with the Office of the Solicitor to prepare a draft
final rule and preamble responding to comments. The following brief
chronology outlines the reviews that have occurred since we developed
the rule:
--The Assistant Secretary--Fish and Wildlife and Parks and the
Assistant Secretary--Indian Affairs reviewed the draft final rule and
considered the recommendations of the Review Committee.
--The Assistant Secretaries determined that the draft final rule and
preamble were responsive to comments, and that, given the lengthy
comment period, there was no need or basis to extend the comment period
or to repropose the rule.
--The Department identified a procedural problem with publication of
the final rule relating to the Paperwork Reduction Act, which resulted
in additional delays totaling 6 months.
--With the change of administration, the Department's management
conducted additional review by the Assistant Secretary--Fish and
Wildlife and Parks and the Assistant Secretary--Indian Affairs.
As the preceding summary illustrates, this final rule has undergone
extensive review in multiple administrations. Each of these reviews was
conducted independently, and both the current and previous
administrations agreed that this rule is appropriate for
implementation. In addition to the opportunities for comment that we
have already offered, we are accepting comments on this rule until May
14, 2010.
The current Assistant Secretary--Fish and Wildlife and Parks and
the current Assistant Secretary--Indian Affairs have determined that
this final rule and preamble are fully responsive to the comments
received on the proposed rule and that the ten-year process of
developing the rule, as well as the substantive provisions of the rule,
fit well with the Administration's goals of transparency in decision
making and open consultation with Indian tribes. Comments to this rule
covered myriad issues that have arisen in the 20 years since NAGPRA
became law. Although
[[Page 12379]]
many of the comments went beyond the scope of this rulemaking, the
preamble to this rule provides detailed responses to each of the
comments.
In brief, this rule pertains to those human remains, in
collections, determined by museums and Federal agencies to be Native
American, but for whom no relationship of shared group identity can be
reasonably traced, historically or prehistorically, between a present
day Indian tribe or Native Hawaiian organization and an identifiable
earlier group. These individuals are listed on inventories as
culturally unidentifiable Native American human remains. The rule
requires consultation on the culturally unidentifiable human remains by
the museum or Federal agency with Indian tribes and Native Hawaiian
organizations whose tribal lands or aboriginal occupancy areas are in
the area where the remains were removed. If cultural affiliation still
cannot be determined and repatriation achieved, then the Indian tribe
or Native Hawaiian organization may request disposition of the remains.
The museum or Federal agency would then publish a notice and transfer
control to the tribe, without first being required to appear before the
Review Committee to seek a recommendation for disposition approval from
the Secretary of the Interior. Disposition requests, which do not meet
the parameters of the rule, would still require approval from the
Secretary, who may request a recommendation from the Review Committee.
Therefore, the Department is issuing this final rule to be
effective May 14, 2010.
Summary of Comments
The proposed rule to specify procedures for the disposition of
culturally unidentifiable human remains in the possession or control of
museums or Federal agencies was published in the Federal Register on
October 16, 2007 (72 FR 58582). Public comment was invited for a 90-day
period, ending on January 14, 2008. The proposed rule was also posted
on the National NAGPRA Program Web site. The Review Committee commented
on the proposed rule at its January 8, 2008 public teleconference. In
addition, 138 written comments were received during the comment period,
representing 51 Indian tribes, 19 Indian organizations, 30 museums, 12
museum or scientific organizations, 3 Federal entities, 15 members of
the public, and the Review Committee. Comments addressed all sections
of the proposed rule. All comments were fully considered when revising
the proposed rule as a final rulemaking.
General Comments
Authority
Comment 1: Fifteen commenters stated that the Department of the
Interior does not have the authority to promulgate regulations
governing the disposition of culturally unidentifiable human remains
and associated funerary objects and that Congressional action is
necessary to effect the disposition of such remains and objects. Eleven
commenters stated that the Department of the Interior does have
authority to promulgate such regulations.
Our Response: In section 13 of the Act (25 U.S.C. 3011), Congress
explicitly authorized the Secretary of the Interior to promulgate
regulations implementing the Act. As an initial matter, consideration
of all Native American human remains and associated funerary objects,
including those that are culturally unidentifiable, is within the scope
of the statute. Section 5 of the Act (25 U.S.C. 3003) requires Federal
agencies and museums that have possession or control over holdings or
collections of Native American human remains and associated funerary
objects to compile an inventory of such items and, to the extent
possible based on information possessed by each museum or Federal
agency, identify the geographical and cultural affiliation of such
items. Congress anticipated that not all items could be geographically
or culturally affiliated and, in section 8 of the Act (25 U.S.C. 3006),
assigned the role of recommending specific actions for developing a
process for the disposition of culturally unidentifiable human remains
to the Review Committee. Congress intended that the Review Committee be
an advisory committee which makes recommendations to the Secretary
(Senate Report 101-473 at 13). An earlier version of the bill that
preceded the final version of NAGPRA directed the Review Committee to
provide its recommendations regarding the disposition of culturally
unidentifiable human remains to the Secretary and to the Congress (H.R.
5237, Section (7)(d), July 10, 1990). However, the provision regarding
Congress was ultimately stricken from the version of the bill that was
signed into law. The sequence of changes in a statute prior to
enactment provides strong evidence of the meaning of the enacted
statute (INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)). It would thus
appear that while Congress may have considered limiting the Secretary's
authority to promulgate regulations regarding the disposition of
culturally unidentifiable human remains, this restriction was
ultimately rejected. This regulation, promulgated in the exercise of
Congress' delegated authority, implements many of the Review
Committee's recommendations and effectuates the goals of the Act. Even
if Congress may not have expressly delegated authority or
responsibility to implement a particular provision of the Act or fill a
particular gap in the law, it can still be apparent from an agency's
generally conferred authority and other statutory directives that
Congress would expect the agency to be able to speak with the force of
law when the agency addresses ambiguities in the statute or fills a gap
in the enacted law (United States v. Mead, 533 U.S. 218 (2001)).
Comment 2: Five commenters consider the rule to be contrary to the
plain language of the Act and against the original intent of Congress.
Our Response: Typically, the Congress expects the Federal agency
charged with the implementation of a statute to establish the specific
process by which the statute's objectives are to be achieved. By
regulation, the Department directed each museum and Federal agency to
complete ``a listing of all culturally unidentifiable human remains and
associated funerary objects for which no culturally affiliated present-
day Indian tribe or Native Hawaiian organization can be determined''
(43 CFR 10.9(d)(2)), and, after considering the Review Committee's
recommendations, the Secretary proposed these regulations to address
the Congressional silence with respect to procedures for disposition of
the culturally unidentifiable human remains and associated funerary
objects. Under Chevron v. Natural Resources Defense Council (467 U.S.
837 (1984)), if a statute is silent or ambiguous with respect to a
particular issue, then deference is accorded to the agency's
interpretation of the provisions of the Act so long as the agency's
interpretation is not arbitrary, capricious, or manifestly contrary to
the statute. As discussed above, the promulgation of regulations for
the disposition of culturally unidentifiable human remains and
associated funerary objects is consistent with the plain language and
intent of the Act. Culturally unidentifiable human remains and
associated funerary objects were previously addressed in the
regulations promulgated by the Department in December 1995 (60 FR
62134). 43 CFR 10.9(e)(6) requires Federal agencies and museums to
provide a list of culturally unidentifiable human remains and
[[Page 12380]]
associated funerary objects to the Department and to retain possession
of such items pending promulgation of this rule unless legally required
to do otherwise or the Secretary recommends otherwise. Promulgation of
this rule provides for additional treatment and ultimate disposition of
culturally unidentifiable human remains and associated funerary
objects, and fills the regulatory gap contemplated by the current
regulations.
Comment 3: Two commenters stated that Congress intended to allow
study of ancient, unaffiliated remains.
Our Response: The Act does not draw a distinction between
``ancient'' and more recent remains. The Act covers historic or
prehistoric ``Native American'' human remains. ``Native American''
means of, or relating to, a tribe, people, or culture that is
indigenous to the United States'' (25 U.S.C. 3001(9)). The statute
states that the Act shall not be construed to be an authorization for
the initiation of new scientific studies of Native American human
remains and associated funerary objects or other means of acquiring or
preserving additional scientific information from such remains and
objects (25 U.S.C. 3003(b)(2)).
Comment 4: One commenter indicated that the proposed rule bypasses
the language of the Act as the Review Committee is given the role of
making recommendations regarding culturally unidentifiable remains.
Our Response: In section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5)),
Congress assigned the Review Committee the role of recommending
specific actions for developing a process for disposition of culturally
unidentifiable human remains. Congress also authorized the Review
Committee to consult with the Secretary in the development of
regulations to carry out the Act. The Secretary has interpreted the
intent of Congress in this section as authorizing the Secretary to
promulgate regulations governing the disposition of culturally
unidentifiable human remains after considering the Review Committee's
recommendations on these matters. This interpretation is reflected in
the Department of the Interior's regulations at Sec. 10.9(6) which
states, ``Section 10.11 of these regulations will set forth procedures
for disposition of culturally unidentifiable human remains of Native
American origin. Museums or Federal Agencies must retain possession of
such human remains pending promulgation of Sec. 10.11 unless legally
required to do otherwise, or recommended to do otherwise by the
Secretary. Recommendations regarding the disposition of culturally
unidentifiable human remains may be requested prior to final
promulgation of Sec. 10.11.'' Prior to the completion of Sec. 10.11,
the Secretary has referred such individual requests to the Review
Committee, as authorized under section 8(c)(8) of the Act (25 U.S.C.
3006(c)(8)) (``performing such other related functions as the Secretary
may assign to the committee'') and has requested the Review Committee's
advice before making recommendations on the disposition of human
remains.
Constitutionality
Comment 5: One commenter was concerned that compliance with the
proposed rule could place a museum in violation of unspecified state
statutes.
Our Response: NAGPRA is Federal law, and, as such, under the
Supremacy Clause of the Constitution (Art. VI, cl. 2; Lorillard Tobacco
Co. v. Reilly, 533 US 525 (2001)) preempts any state law on the same
subject matter. This is especially true in the field of Federal Indian
law, where the United States has plenary and exclusive power (U.S.
Constitution, Art. I, Sec. 8, cl. 3; Worcester v. Georgia, 31 US 515, 6
Pet 515 (1832)). Moreover, in section 7(f) of the Act (25 U.S.C.
3005(f)), Congress specifically provided that ``[a]ny museum which
repatriates any item in good faith pursuant to this chapter shall not
be liable for claims by an aggrieved party or for claims of breach of
fiduciary duty, public trust, or violations of state law that are
inconsistent with the provisions of this chapter.''
Comment 6: Two commenters alleged that the proposed regulations
would violate the Establishment Clause of the First Amendment to the
Constitution, focusing on a sentence in the preamble to the proposed
regulations which suggests that the voluntary repatriation by a museum
or Federal agency of funerary objects associated with culturally
unidentifiable human remains would be consistent with ``customary
religious and spiritual beliefs.'' The commenters stated that this
suggestion demonstrated unconstitutional special treatment for the
``creationist viewpoint'' of many Indian people and that such beliefs
are not evidence of a cultural relationship or cultural affiliation
under the Act.
Our Response: The commenters have misconstrued and misapplied the
sentence in the preamble. First, the use of religious or spiritual
beliefs is not being invoked to determine whether a specific group of
human remains is Native American. The rule allows a museum or Federal
agency to voluntarily repatriate associated funerary objects with human
remains (which it has already determined to be Native American).
Considerations of a religious or spiritual belief system are not used
to determine the origin of the human remains and are not relevant to
such a voluntary determination by the museum or Federal agency.
Further, ``funerary objects'' are defined by both the NAGPRA statute
and current regulations as ``items that, as part of the death rite or
ceremony of a culture, are reasonably believed to have been placed
intentionally at the time of death or later'' (43 CFR 10.2(d)(2)). This
definition is taken from the definition of ``associated funerary
objects'' in the Act (25 U.S.C. 3001(3)(A)). The statement referred to
by commenters in the preamble to the proposed rule is a recognition
that ``the death rite or ceremony of a culture'' is an inherently
spiritual or religious act, whether the belief system involved is
traditionally Indian or Christian (also broadly represented in Indian
country), or another belief system. Such a recognition in the context
of a voluntary action by a museum or Federal agency (to which the
commenters did not object) does not constitute support of a particular
religious point of view or excessive entanglement with religion in the
context of the Establishment Clause (Walz v. Tax Commission of the City
of New York, 397 U.S. 664 (1970)).
Comment 7: Three commenters stated that the proposed rule, if
finalized, would constitute a ``taking'' by the United States of the
property of museums in violation of the Fifth Amendment to the United
States Constitution.
Our Response: To determine whether a governmental procedure has
deprived a party of its rights without due process, the first inquiry
must be whether that party has protected property or liberty interests
(American Manufacturing Mutual Insurance Co. v. Sullivan, 526 U.S. 40,
59 (1999), and Federal Lands Legal Consortium v. United States, 195
F.3d 1190 (10th Cir. 1999)). Under the common law, however, human
remains are not ``property'' (See, e.g., 2 William Blackstone,
Commentaries, 429). Thus, a museum would not have a property interest
in culturally unidentifiable human remains that could be ``taken,''
unless the museum has received the right to possess the remains from a
person or entity with authority to confer that right on the museum. The
next of kin of the deceased (25 U.S.C. 3001(13)) (see Whaley v.
Tuscola, 58 F.3d 1111, 1117 (6th Cir. 1995); Brotherton v. Cleveland,
923 F.2d 477, 482 (6th Cir. 1991)) and the official governing body of
the appropriate Indian tribe or Native Hawaiian organization (25 U.S.C.
[[Page 12381]]
3001(13) and (3002(e)) are the only parties who possess such a property
right for purposes of the Fifth Amendment. If a museum could prove,
therefore, that the human remains were ``excavated, exhumed, or
otherwise obtained with full knowledge and consent of the next of kin
or the official governing body of the appropriate culturally affiliated
Indian tribe or Native Hawaiian organization'' (25 U.S.C. 3001(13)), or
were remains for which ``the governing body of an Indian tribe or
Native Hawaiian organization [has] expressly relinquished control'' (25
U.S.C. 3002(e)), it may have a property right that could be protected.
That is the purpose of the definition of right of possession under the
Act (25 U.S.C. 3001(13)), and, to the extent that a museum can prove a
right of possession for culturally unidentifiable human remains, that
right is protected by Sec. 10.11(c)(1) of the regulations as well as
the Constitution.
Comment 8: Two commenters asserted that the proposed rule, if
finalized, would violate the Equal Protection clause of the Fourteenth
Amendment to the United States Constitution. One of these commenters
noted that the requirement in Sec. 10.11(b)(2) to consult with ``all
Indian tribes and Native Hawaiian organizations'' with certain
connections to land (which, in the commenter's view, would include
Indian groups that are not federally-recognized) would violate the
Act's insulation from equal protection challenges based on the
government-to-government relationship between the United States and
federally-recognized Indian tribes. The other commenter asserted that
the proposed rule illegally favored one ``cultural lineage'' over
others.
Our Response: The first commenter's concern raises an issue common
to many of the comments on the proposed rule. When agencies publish
proposed and final rules in the Federal Register that are amending
existing regulations, the agency is only required to publish the
portion of the regulations that would change. Unless the agency states
otherwise, all portions of existing regulations that are not proposed
for change in the notice of proposed rulemaking remain the same, and
still apply. Thus, when this proposed rule refers to ``Indian tribes,''
the drafters are using the existing definition of that term, which is
not proposed for changes. That definition, at Sec. 10.2(b)(2), only
refers to federally-recognized Indian tribes. The drafters of the
proposed rule have been very careful to distinguish tribes that are not
federally-recognized Indian groups when those groups are included in a
provision of the rule in order to maintain a clear distinction. The
only mandatory consultation or disposition in the rule, consistent with
the Act, is to Indian tribes (i.e., federally-recognized) or Native
Hawaiian organizations. This preference in both the regulations and the
statute is based not on ``cultural lineage'' but on the plenary power
of Congress to ``regulate commerce * * * with the Indian Tribes'' (U.S.
Constitution Art. I, Sec. 8, cl. 3), and the unique government-to-
government relationship between the United States and Indian tribes
(Morton v. Mancari, 417 U.S. 535, 551-52 (1974)).
Statutory Amendment
Comment 9: Three commenters recommended that Congress consider
amending the statute. Two commenters recommended expanding who has a
right to claim cultural items under the Act from lineal descendants,
Indian tribes, and Native Hawaiian organizations to also include state
recognized Indian groups, Indian groups currently seeking Federal
acknowledgement, and indigenous groups located beyond the boundaries of
the United States. One commenter recommended amending the statute to
apply to collections held by the Smithsonian Institution. One commenter
recommended that the composition of the Review Committee be changed to
ensure a ratio of no less than two Native American members for each
non-Native American member.
Our Response: Statutory amendments are the exclusive purview of the
Congress.
Compliance With Other Statutes and Policies
Comment 10: The preamble of the proposed rule states that the rule
does not impose an unfunded mandate on State, local, or tribal
governments or the private sector of more than $100 million per year.
Fifteen commenters projected that the financial burden of consultation
and disposition on museums will be ``tremendous,'' ``onerous,''
``impossible,'' ``overwhelming,'' ``ruinous,'' or ``significant.'' Two
commenters predicted that the rule will result in costly litigation.
Seven commenters estimated that the cost of implementing the proposed
rule will exceed $100 million per year. One commenter recalled that
some museums raised similar financial concerns prior to passage of the
Act in 1990, but noted that the claims have never been substantiated in
fact. Two commenters recommended that the Department of the Interior
provide detailed cost estimates.
Our Response: Costs to comply with this rule will be seen in the
costs of consultation and decision-making. Museums and Federal agencies
are only required to consult upon receipt of a claim from an Indian
tribe or Native Hawaiian organization. In the last five years, there
have been approximately 14 requests per year for Review Committee
consideration of claims for disposition of culturally unidentifiable
Native American human remains. Although there are numerous human
remains subject to this rule, it is reasonable to assume that tribes
will make requests at a constant rate, given the capacity of tribes to
do so. A single claim may involve many human remains from one site,
requiring one notice. Absent a claim, a museum or Federal agency may
also voluntarily offer to transfer control. The costs of decision
making include exchange of information between museums and tribes, and
preparation of a notice by a museum. Using current rates of
compensation for museum clerical, curator and executive staffs, there
is a weighted cost average for their efforts of $30.00 an hour.
Assuming approximately 100 hours of information exchange and six hours
to prepare a notice, the cost per claim is less than $5,000 on average
and the annual cost of all claims in a year, subject to this rule, is
less than $100,000. Since there are no deadlines for claims or for
offering to transfer control, the required consultations will likely
extend over multiple year periods, thus reducing the total cost of
consultation in any particular year. Since 1994, Congress has provided
grant funds for consultation and repatriation activities of
approximately $2 million dollars per year to account for NAGPRA
compliance, including this rule. Since NAGPRA became law in 1990, there
have been almost 40,000 Native American human remains accounted for in
notices and no indication that a single museum has suffered
overwhelming or ruinous consequences from compliance with the law.
There are also cost savings in the reduction of inventory
maintenance costs and elimination of the pre-rule need to present
matters at Review Committee meetings, which may involve travel costs.
Under current regulations, museums and Federal agencies must retain
possession of culturally unidentifiable human remains, with all of the
attendant curatorial costs estimated in the millions of dollars per
year (S. Terry Childs and Karolyn Kinsey, Costs for Curating
Archeological Collections: A
[[Page 12382]]
Study of Repository Fees in 2002 and 1997/1998. National Park Service
(2003)). Museums and Federal agencies that wish to effect the
disposition of culturally unidentifiable human remains under current
regulations must either request a recommendation from the Secretary of
the Interior, which involves preparation of materials and presentations
before the Review Committee, or request involvement in proceedings
before a United States District Court.
Comment 11: One commenter requested that the Department of the
Interior consider the rule significant under Executive Order 12866 on
the grounds that it raises novel legal or policy issues.
Our Response: The Office of Management and Budget has determined
that this rule is significant under EO 12866.
Comment 12: One commenter stated that Federal agencies should be
required to conduct review under the National Environmental Policy Act
(NEPA) (42 U.S.C. 4321, et seq.), for each disposition of culturally
unidentifiable human remains, with or without associated funerary
objects, under the final rule.
Our Response: NAGPRA does not exempt Federal agencies from the
requirements of any other statutes that may be applicable, such as
NEPA. The appropriate level of NEPA review required would depend on the
NEPA procedures of the agency proposing the disposition.
Relationships to Other Sections of These Regulations
Comment 13: One commenter requested clarification as to whether the
proposed rule applies to culturally unidentifiable human remains and
associated funerary objects excavated or removed from Federal or tribal
lands after November 16, 1990.
Our Response: Neither the proposed rule nor this final rule apply
to culturally unidentifiable human remains and associated funerary
objects excavated or removed from Federal or tribal lands after
November 16, 1990. This final rule applies to human remains in museum
and Federal agency collections for which no lineal descendant or
culturally affiliated Indian tribe or Native Hawaiian organization has
been identified. For museums, these human remains may have been
acquired either before or after 1990 when the statute was enacted. For
Federal agencies, disposition of human remains, funerary objects,
sacred objects, or objects of cultural patrimony removed from Federal
lands after November 16, 1990 is effected pursuant to section 3 of the
Act (25 U.S.C. 3002), and Sec. Sec. 10.3-10.7 of the existing
regulations. Culturally unidentifiable human remains acquired by a
Federal agency after November 16, 1990 from other than Federal or
tribal lands would be covered by the provisions of this rule.
Comment 14: One commenter recommended that the terms ``unclaimed''
and ``culturally unidentifiable'' be clearly distinguished.
Our Response: There may be some confusion between the terms
``culturally unidentifiable'' and ``unclaimed.'' As specified in
section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5) and these regulations,
``culturally unidentifiable'' refers to Native American human remains
and associated funerary objects in museum or Federal agency collections
for which no lineal descendant or culturally affiliated Indian tribe or
Native Hawaiian organization has been determined. ``Unclaimed'' only
refers to Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony excavated or discovered on
Federal or tribal lands after November 16, 1990 and not claimed under
section 3(a) of the Act (25 U.S.C. 3002(a)). A proposed rule regarding
the disposition of unclaimed cultural items is currently under
development (43 CFR 10.7).
Comment 15: One commenter recommended that unclaimed human remains
which can reasonably be associated with a recognized tribe should be
returned to that Indian tribe.
Our Response: Unclaimed remains are governed under section 3(a) of
the Act (25 U.S.C. 3002(a). A separate proposed rule regarding the
disposition of unclaimed cultural items is currently under development
(43 CFR 10.7). Please see Comment 14 for a related response.
Development Process
Comment 16: Ten commenters recommended adopting the Review
Committee's 2000 recommendations in lieu of the proposed rule. Three
commenters recommended adopting the Review Committee's 2002
recommendations in lieu of the proposed rule. Five commenters
recommended taking the Review Committee's 2000 and 2002 recommendations
into account in revising the proposed rule. Three commenters rejected
the Review Committee's 2000 recommendations.
Our Response: There appears to be some confusion regarding the
Review Committee's involvement in the development of the proposed
regulations. Sections 8(c)(5) and (c)(7) of the Act (25 U.S.C.
3006(c)(5) and (c)(7)), authorize the Review Committee to recommend
specific actions for developing a process for the disposition of
culturally unidentifiable human remains and consulting with the
Secretary of the Interior in the development of regulations to carry
out the Act. After circulating three drafts for public comment and
considering specific case-by-case requests, the Review Committee
developed its final recommendations regarding the disposition of
culturally unidentifiable human remains in May 2000. These
recommendations were reported in detail in the preamble to the 2007
proposed rule. The Review Committee also considered drafts of the
proposed rule at its May 31-June 2, 2002 and November 8-9, 2002
meetings. Meeting minutes are available at: http://www.nps.gov/history/
nagpra/REVIEW/meetings/MINUTES.HTM.
At its November 8-9, 2002 meeting, the Review Committee
specifically compared the draft regulatory text with the text of its
2000 recommendations and recommended several changes, most of which,
though purely advisory, were reflected in the 2007 proposed rule. The
drafters gave full consideration to the Review Committee's final
recommendations regarding the disposition of culturally unidentifiable
human remains (2000) as well as to the Review Committee's review of
drafts of the proposed rule on May 31-June 2, 2002 and November 8-9,
2002, and the actual proposed rule on January 8, 2008.
Comment 17: Fourteen commenters made general or specific
recommendations regarding the establishment or composition of
``regional consortia.''
Our Response: The concept of ``regional consortia'' was proposed in
the Review Committee's 2000 final recommendations regarding the
disposition of culturally unidentifiable human remains (65 FR 36462).
According to the Review Committee, such regional consortia would
consist of Federal agencies, museums, Indian tribes, and Native
Hawaiian organizations within a given geographic area that would
consult together and propose a framework and schedule for the
disposition of culturally unidentifiable human remains. The drafters
recognize the establishment of such regional consortia as a potentially
useful step in arriving at generally applicable disposition agreements.
However, the establishment or composition of such consortia are clearly
matters to be determined by
[[Page 12383]]
those who elect to be participants in a consortium. As a result, the
concept was not addressed in the proposed rule. Indian tribes may
choose to participate in such regional consortia, but it is not
required.
Administration
Comment 18: One commenter recommended that the National Park
Service establish a permanent office to focus specifically on the
disposition of the culturally unidentifiable human remains and
associated funerary objects. One commenter recommended that the
National Park Service establish training for museums and Federal
agencies on how to determine cultural affiliation.
Our Response: The National NAGPRA Program will continue to provide
technical assistance and training to museums, Federal agencies, lineal
descendants, Indian tribes, and Native Hawaiian organizations regarding
the disposition of culturally unidentifiable human remains and
associated funerary objects, as well as other aspects of the Act.
Comment 19: Seventeen commenters recommended providing additional
funds to museums and Indian tribes to assist in the disposition of
culturally unidentifiable human remains.
Our Response: All activities required under the proposed rule are
eligible for Federal grants authorized under section 10 of the Act. The
Review Committee has asked Congress to consider the appropriation of
additional funding.
Comment 20: One commenter recommended that Federal funds be
appropriated to assist Indian tribes with the protection of Indian
cemeteries, historic sites, and artifacts during or after an emergency.
Our Response: The scope of grants authorized under section 10 of
the Act (25 U.S.C. 3008) is limited to assisting museums in conducting
the required inventories and identification and to assisting Indian
tribes and Native Hawaiian organizations in the repatriation of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony (25 U.S.C. 3008). Funds for the protection of Indian
cemeteries, historical sites, and artifacts are available through other
Federal programs.
Comment 21: One commenter recommended that the rule address the
need to expand existing tribal and family cemeteries.
Our Response: The Act addresses the protection of current Native
American burial sites on Federal or tribal lands that are inadvertently
discovered or intentionally excavated and the repatriation of cultural
items in museum or Federal agency collections or holdings. The Act does
not address the creation of new burial sites or the expansion of
existing sites.
Comment 22: One commenter recommended that forensic audits of all
Federal agency inventories be conducted by the General Accounting
Office to ensure that this requirement of the Act has been fulfilled.
Our Response: The Review Committee has asked Congress to have the
Government Accountability Office review Federal compliance with the
Act.
Comment 23: One commenter recommends that State governments be
given the authority to supervise and issue directives to the federally-
recognized Indian tribes in returning Native American human remains
back to Mother Earth.
Our Response: Authorizing State governments to direct the actions
of federally-recognized Indian tribes is beyond the Secretary's
jurisdiction and inconsistent with both the plenary power of Congress
to ``regulate commerce * * * with the Indian Tribes'' (U.S.
Constitution Art. I, Sec. 8, cl. 3), and the unique government-to-
government relationship between the United States and Indian tribes
(Morton v. Mancari, 417 U.S. 535, 551-52 (1974)).
Section 10.1(b)(3) Final Determinations
Section 10.1(b)(3) describes decision points throughout the
regulations which constitute ``final determinations.'' The proposed
rule added one sentence to provide clarification to Federal agencies as
to when a determination constitutes ``final agency action'' as used in
the Administrative Procedure Act (5 U.S.C. 704).
Comment 24: Eight commenters generally supported this proposed
revision with some modification. One commenter recommended revising the
section to stipulate that failure to affirmatively respond to a request
within a specified time period would be considered a denial of the
request for purposes of judicial review, unless the museum or agency
extends the time period in writing for good cause and specifies a
specific and reasonable timetable. Five commenters recommended
clarifying that ``an agency denial of such a request is final when the
lineal descendant, Indian tribe or Native Hawaiian organization has
exhausted any required administrative appeals within the agency.
Neither the fact that the Review Committee may review the matter nor
the fact that an agency denial is subject to reconsideration upon
submission of new information affects its status as final agency action
under the Administrative Procedure Act. After a final agency denial, a
lineal descendant, Indian tribe or Native Hawaiian organization may
make a new request for repatriation or disposition of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
under the Act on the basis of the findings or recommendations of the
Review Committee or new information.''
Our Response: Congress did not provide that requests would be
deemed denied based on a failure to respond. The drafters agree that
the language suggested by the five commenters is consistent with case
law, but consider that the proposed revision adequately addresses when
a determination constitutes a final agency action as used in the
Administrative Procedure Act (5 U.S.C. 704). The drafters have also
added the text previously proposed in Sec. 10.1(b)(3) into Sec.
10.15(c) to reiterate that the final denial of a request of a lineal
descendant, Indian tribe, or Native Hawaiian organization for the
repatriation or disposition of human remains, funerary objects, sacred
objects, or objects of cultural patrimony constitutes final agency
action under the Administrative Procedure Act.
Section 10.2(e)(1) Definition of Cultural Affiliation
Section 10.2(e)(1) revises the definition of ``cultural
affiliation'' to include ``anthropological'' evidence. The term, which
is specifically included in section 7(a)(4) of the Act (25 U.S.C.
3005(a)(7)), was inadvertently omitted from the previous regulatory
text. Two commenters agreed with the proposed revision of the
definition of ``cultural affiliation.''
Comment 25: One commenter recommended including the phrase
``cultural or geographic relationship'' within the list of evidence
relevant to determining cultural affiliation in the second sentence of
Sec. 10.2(e)(1).
Our Response: Both geographical and anthropological (cultural)
evidence are already specifically identified as relevant to determining
cultural affiliation (25 U.S.C. 3005(a)(4)).
Comment 26: One commenter recommended that human remains should not
be returned without clear, indisputable physical (archeological)
linkage to a present-day Indian tribe or Native Hawaiian organization.
Our Response: Archeological evidence is one of several types of
relevant information or expert opinion that must be considered in
determining whether cultural affiliation can be established (25 U.S.C.
3005(a)(4)).
[[Page 12384]]
Culturally affiliation must be ``reasonably traced'' (25 U.S.C.
3001(2)). Requiring an ``indisputable linkage'' would be inconsistent
with the Act.
Comment 27: One commenter recommended including language in Sec.
10.2(e)(1) stipulating that ambiguities in determining cultural
affiliation must be resolved in the favor of Indian tribes.
Our Response: The Act was enacted for the benefit of Indians,
therefore the canon of construction applies that statutes ``are to be
construed liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit'' (Yankton Sioux Tribe v. United States
Army Corps of Engineers, 83 F. Supp 2d 1047, 1056 (D.S.D. 2000)). These
regulations are subject to the same canon of construction. ``The trust
relationship and its application to all Federal agencies that may deal
with Indians necessarily requires the application of a similar canon of
construction to the interpretation of Federal regulations'' (HRI, Inc.
v. EPA, 198 F.3d 1224, 1245 (10th Cir. 2000)). This principle of Indian
law is so well-established, however, that the drafters consider
additional regulatory text unnecessary.
Comment 28: One commenter questioned whether the proposed change
would impact the American Indian Religious Freedom Act.
Our Response: The proposed change revised the regulatory definition
of cultural affiliation to reflect the statutory text and has no
implications related to the American Indian Religious Freedom Act.
Section 10.2(e)(2) Definition of Culturally Unidentifiable
Section 10.2(e)(2) defines the term ``culturally unidentifiable.''
Comment 29: One commenter objected to the term ``unidentifiable''
given the likelihood that in many cases, cultural affiliation can be
determined through additional consultation with Indian tribes. The
commenter stated that the term thus places a false sense that there is
no existing Native American group legitimately related to prehistoric
human beings. Another commenter felt the term limits tribal sovereign
rights and misappropriates the Federal trust responsibility to American
Indians. Three commenters recommended including separate definitions of
``unidentifiable'' and ``unidentified.''
Our Response: Section 8 of the Act (25 U.S.C. 3006) directs the
Review Committee to compile an inventory of ``culturally
unidentifiable'' human remains. The drafters recognize that additional
considerations (e.g., consultation and disposition as required by this
rule) may result in the determination of cultural affiliation for some
of these human remains. Provisions to carry out the repatriation of
human remains and associated funerary objects previously determined to
be culturally unidentifiable are included at Sec. Sec. 10.11(b)(6),
10.9(e) and 10.10(b) of the existing regulations, as amended by this
rule.
Comment 30: One commenter recommended specifying in the definition
of ``culturally unidentifiable'' that such identifications are made
through the inventory process.
Our Response: The phrase `` * * * through the inventory process''
has been added to the end of this definition.
Comment 31: Three commenters recommended deleting the phrase ``and
associated funerary objects'' from the definition of culturally
unidentifiable.
Our Response: While disposition of funerary objects associated with
culturally unidentifiable human remains is voluntary, Sec. 10.9(d)(2)
of these regulations requires museums and Federal agencies to prepare
an inventory of both human remains and associated funerary objects that
cannot be identified as affiliated with a particular individual, Indian
tribe, or Native Hawaiian organization. The phrase ``and associated
funerary objects'' has been retained.
Comment 32: One commenter recommended redefining ``culturally
unidentifiable'' to refer ``to human remains for which a relationship
of shared group identity cannot be reasonably traced historically or
prehistorically between members of present-day Indian tribe or Native
Hawaiian organization and an identifiable earlier group.''
Our Response: The drafters consider the recommended text less clear
than the proposed rule text because it omits reference to associated
funerary objects, lineal descendants, and museum and Federal agency
collections, all necessary elements of this definition.
Comment 33: One commenter recommended including reference in the
definition of ``culturally unidentifiable'' at Sec. 10.2(e)(2) that
claims could be made for these human remains based on tribal land,
aboriginal land, or cultural relationship.
Our Response: The basis for disposition of culturally
unidentifiable human remains are set forth at Sec. 10.11(c)(1) of this
rule.
Comment 34: One commenter was concerned that the proposed
definition of ``culturally unidentifiable'' at Sec. 10.2(e)(2) would
require museum staff to make judgment calls without adequate
professional expertise.
Our Response: Current regulations require museum and Federal agency
officials to ``prepare a listing of all culturally unidentifiable human
remains and associated funerary objects for which no culturally
affiliated present-day Indian tribe or Native Hawaiian organization can
be determined'' (43 CFR 10.9(e)(6)). Completion of this listing was
required by November 16, 1995, or a later date specifically determined
by the Secretary on a case-by-case basis. Museum and Federal agency
officials may wish to retain outside professional expertise to assist
in these determinations, but are not required to do so. Museum and
Federal agency officials are required to consult with representatives
of Indian tribes and Native Hawaiian officials.
Section 10.2(g) Definition of Disposition
Section 10.2(g)(5) provides a definition of disposition and
identifies procedures to effectuate this process in various situations.
Comment 35: One commenter recommended deleting the phrase ``with or
without associated funerary objects'' from Sec. 10.2(g)(iii).
Our Response: While disposition of funerary objects associated with
culturally unidentifiable human remains is voluntary, the Secretary
recommends that museums and Federal agencies engage in such transfers
whenever Federal or State law would not otherwise preclude them. The
phrase has been retained.
Comment 36: Four commenters recommended revisions to the definition
of ``disposition'' at Sec. 10.2(g)(5) to provide museums and Federal
agencies with the option of retaining possession and control of
culturally unidentifiable human remains. One commenter recommended
inserting the phrase ``or other mutually acceptable alternative'' after
``transfer or control.''
Our Response: Section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5))
directs the Review Committee to recommend specific actions for
developing a process for disposition of culturally unidentifiable human
remains. In its 2000 recommendations, the Review Committee specified
three types of appropriate disposition solutions, including transfer of
control based on the recovery of the human remains from a particular
Indian tribe or Native Hawaiian organization's tribal land or
aboriginal land or on a relationship of shared group identity between
the human remains and an Indian group which is not federally-recognized
(65 FR 36463, June 8, 2000). The governing body of an Indian tribe or
Native
[[Page 12385]]
Hawaiian organization is free to relinquish control of human remains or
negotiate ``other mutually acceptable alternatives'' (25 U.S.C.
3002(e)).
Comment 37: Five commenters recommended reviewing the term
``control'' as it relates to the term ``repatriate,'' and to consider
language that holds a museum or Federal agency harmless if a right of
possession comes to light after disposition has been effected.
Our Response: The term ``control'' means having a legal interest in
human remains, funerary objects, sacred objects, or objects of cultural
patrimony sufficient to lawfully permit the museum or Federal agency to
treat the objects as part of its collection for purposes of these
regulations whether or not the human remains, funerary objects, sacred
objects or objects of cultural patrimony are in the physical custody of
the museum or Federal agency (43 CFR 10.2(a)(3)(ii)). The Act and these
regulations provide that any museum which repatriates or effects the
disposition of Native American human remains in good faith pursuant to
the Act and these regulations shall not be liable for claims by an
aggrieved party or for claims of breach of fiduciary duty, public
trust, or violations of state law that are inconsistent with these
provisions (25 U.S.C. 3005(f)).
Section 10.2 Other Definitions
Comment 38: One commenter recommended defining ``nonfederally-
recognized Indian group'' in Sec. 10.2.
Our Response: The Act requires a museum or Federal agency to
repatriate Native American cultural items upon receipt of a valid claim
from a lineal descendant, Indian tribe, or Native Hawaiian
organization. The latter three terms are defined at Sec. 10.2(b)(1),
(b)(2), and (b)(3), respectively. We have chosen to clarify by using
the term ``not federally-recognized'' for any Indian group that does
not meet the definition in Sec. 10.2(b)(2).
Comment 39: Three commenters indicated that the proposed rule is
inconsistent with the Ninth Circuit's opinion in United States v.
Bonnichsen (357 F.3d 962 (9th Cir. 2004)).
Our Response: The Court's opinion in Bonnichsen addressed whether
the remains of ``Kennewick Man'' constituted Native American remains
within the Act's definition of that term. The proposed rule does not
affect the definition of ``Native American.'' The proposed rule only
applies after a determination is made, consistent with applicable law,
that the human remains or associated funerary objects are Native
American.
Comment 40: Seven commenters recommended inserting the phrase
``Native American'' before each occurrence of ``human remains''
throughout the regulations.
Our Response: Since the drafters did not propose to modify the
definition of ``human remains'' at Sec. 10.2(d)(1), the meaning of the
term throughout these regulations remains ``the physical remains of a
human body of a person of Native American ancestry.''
Comment 41: One commenter recommended including a definition of
``preponderance of the evidence.''
Our Response: Determinations within the Act are based on standard
rules of civil procedure. Museums and Federal agencies are initially
required to determine by a reasonable belief if human remains and
associated funerary objects are culturally affiliated with an Indian
tribe or Native Hawaiian organization (25 U.S.C. 3003(d)(2)).
Thereafter, human remains and associated funerary objects must be
expeditiously repatriated where an Indian tribe or Native Hawaiian
organization can demonstrate cultural affiliation by the preponderance
of the evidence (25 U.S.C. 3005(a)(4)). The preponderance of the
evidence generally means that a decision maker must be persuaded that
the evidence is sufficient to make it more likely than not that the
fact the claimant seeks to prove is true.
Section 10.9(e)(2) Content of Notice of Inventory Completion
Section 10.9(e)(2) details the contents of notices of inventory
completion. Additional text was proposed at Sec. 10.9(e)(2)(v) to
clarify that such notices must include information regarding culturally
unidentifiable human remains, with or without associated funerary
objects, that may be transferred under Sec. 10.11.
Comment 42: One commenter recommended deleting the phrase ``with or
without associated funerary objects'' from Sec. 10.9(e)(2)(v).
Our Response: While disposition of funerary objects associated with
culturally unidentifiable human remains is voluntary, the Secretary
recommends that museums and Federal agencies engage in such transfers
whenever Federal or State law would not otherwise preclude such
transfers. The phrase has been retained.
Comment 43: One commenter recommended replacing the phrase ``that
may be transferred under Sec. 10.11'' at the end of Sec.
10.9(e)(2)(v) with ``that are subject to disposition under Sec.
10.11.''
Our Response: The recommended change is consistent with the
language in section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5)) and Sec.
10.2(g)(5)(iii) of these regulations. The regulations have been changed
as suggested.
Comment 44: Two commenters recommended that the listing of
culturally unidentifiable human remains and associated funerary objects
specify whether they are: (1) Those for which cultural affiliation
could be determined but that the appropriate Indian group is not
federally-recognized as an Indian tribe; (2) those that represent an
identifiable earlier group, but for which no present-day Indian tribe
has been identified by the museum or Federal agency; and (3) those for
which the museum or Federal agency believes that evidence is
insufficient to identify an earlier group. Another commenter
specifically recommended that these categories should not be used.
Our Response: The suggested categories of culturally unidentifiable
human remains are derived from the Review Committee's 2000
recommendations (65 FR 36463). However, the Review Committee
recommendations did not make any distinction regarding disposition of
any of the three categories. The three categories were not used in the
proposed rule and no comments were received recommending different
dispositions on that basis.
Comment 45: Two commenters recommended that the inventory or notice
of inventory completion include a ``record of origin'' or ``basis of
reasoning'' for determining that human remains are Native American and
culturally unidentifiable.
Our Response: The contents of the inventory (10.9(d)) and notice of
inventory completion (43 CFR 10.9(e)) apply only to human remains
already determined to be ``Native American'' under 43 CFR 10.2(d)(1)
and the Act. The inventory includes a summary of the evidence used to
determine cultural affiliation. By definition in 43 CFR 10.2(e)(2),
remains for which no lineal descendant or culturally affiliated Indian
tribe or Native Hawaiian organization has been identified through the
inventory process are considered culturally unidentifiable and, thus,
do not require a further basis of reasoning when included on the notice
of inventory completion as culturally unidentifiable.
Section 10.9(e)(5) Additional Documentation
Section 10.9(e)(5) directs museums or Federal agencies to supply
additional available documentation upon the request of an Indian tribe
or Native Hawaiian organization. Additional text was proposed for
inclusion in
[[Page 12386]]
Sec. 10.9(e)(5)(ii) to clarify that such documentation when supplied
by a Federal agency or to a Federal agency shall be considered a public
record subject to disclosure except when exempted under applicable law,
such as the Freedom of Information Act and the Privacy Act. Further, as
required by section 5(b)(2) of the Act (25 U.S.C. 3003(b)(2)), neither
a request for such documentation nor any provisions of the regulations
shall be construed as authorizing the initiation of new scientific
studies of such human remains and associated funerary objects or other
means of acquiring or preserving additional scientific information from
such remains and objects.
Comment 46: Six commenters recommended deleting Sec. 10.9(e)(5)(A)
and (e)(5)(B) on the grounds that they create a seemingly impossible
conundrum, would severely hinder the scientific study of ancient
remains, and are ``an obvious attempt to end-run Congressional intent
and a Federal court ruling in the long-fought Kennewick Man case.'' One
commenter recommended including language confirming that ``studies or
other means of acquiring or preserving information are not prohibited,
but NAGPRA cannot be used as the authorization for them'' or
``additional study may be authorized, requested, or otherwise developed
as part of the consultation and affiliation process.'' One commenter
recommended adding a new paragraph to read as follows: ``In
consultation with the tribes identified in Sec. 10.11(b)(2), the
museum or Federal agency may undertake additional documentation of
human remains and associated funerary objects prior to their transfer
under Sec. 10.11(c). This documentation shall be completed within two
years of an offer to transfer culturally unidentifiable human remains
unless the consulting tribes agree that additional time (beyond two
years) is needed.'' Eleven commenters recommended including language
specifying that ``culturally unidentifiable human remains that have not
yet been repatriated should be treated with great respect and should
not be subject to any further scientific research or used for teaching
purposes.'' One commenter recommended that museums and Federal agencies
should upgrade their testing to include total DNA, not just patrilineal
DNA.
Our Response: The language in this section is drawn directly from
the Act and thus clearly represents Congressional intent.
Comment 47: Fifteen commenters generally supported this section.
One commenter requested clarification as to whether a museum or Federal
agency is required to provide additional documentation upon request of
an Indian group that is not federally-recognized.
Our Response: The Act stipulates that a museum or Federal agency
must supply additional available documentation upon request by an
Indian tribe or Native Hawaiian organization (25 U.S.C. 3003(b)(2)).
This requirement does not apply to requests from an Indian group that
is not federally-recognized.
A museum or Federal agency may be required to supply such
documentation under other applicable law and is encouraged to
voluntarily do so if not otherwise required.
Comment 48: Nine commenters recommended including language that
this section is not meant to preclude the withholding from the public
of information that is specifically exempted from disclosure under
applicable law.
Our Response: The drafters have added language to clarify that some
information may be exempt from disclosure under applicable law, such as
the Freedom of Information Act (5 U.S.C. 552), Privacy Act (5 U.S.C.
552a), Archaeological Resources Protection Act (16 U.S.C. 470hh), and
National Historic Preservation Act (16 U.S.C. 470w-3), and any other
legal authority exempting such information from public disclosure.
Section 10.9(e)(6) Removing Retention Requirement
Section 10.9(e)(6) is rewritten to remove the last three sentences
that required a museum or Federal agency to retain possession of
culturally unidentifiable human remains pending promulgation of Sec.
10.11.
Comment 49: Three commenters recommended deleting the phrase ``with
or without associated funerary objects'' from Sec. 10.9(e)(6).
Our Response: The phrase occurs twice in this paragraph. The first
sentence refers to associated funerary objects that are in the
possession or control of a museum or Federal agency. The last sentence
refers to items that are subject to disposition under Sec. 10.11. The
phrase ``with or without associated funerary objects'' is used
throughout the regulations to indicate that disposition of such items,
though encouraged, is not required. Usage of the term in the last
sentence of this section is thus appropriate. The phrase ``with or
without'' has been replaced with ``and'' in the first sentence to make
it clear that associated funerary objects must be included in the
inventory of culturally unidentifiable human remains provided to the
Manager, National NAGPRA Program.
Comment 50: One commenter recommended revising the text in Sec.
10.9(e)(6) to require a museum or Federal agency to provide the listing
of culturally unidentifiable human remains in its possession or control
to both the Manager, National NAGPRA Program and the Departmental
Consulting Archeologist.
Our Response: A separate program to administer some of the
Secretary of the Interior's responsibilities to implement the Act was
established in 2000. The Departmental Consulting Archeologist is no
longer responsible for those duties, as reflected in a technical
amendment to the regulations published in the Federal Register on
September 30, 2005 (70 FR 57177).
Comment 51: One commenter recommended that the inventory of
culturally unidentifiable human remains provided to the Manager,
National NAGPRA Program and the Review Committee pursuant to Sec.
10.9(e)(6) also be made available to all interested parties. One
commenter considered the Review Committee's publicly accessible
database to provide sufficient notice to all Indian tribes to determine
their interest in submitting a claim.
Our Response: Current regulations require museums and Federal
agencies to provide a listing of all culturally unidentifiable human
remains and associated funerary objects to the manager, National NAGPRA
Program, who will make this information available to the Review
Committee. The Culturally Unidentifiable Native American Human Remains
Database is publicly posted at http://64.241.25.6/CUI/index.cfm.
Although museums and Federal agencies are required to consult with
Indian tribes and Native Hawaiian organizations in preparing the list,
the Database is the primary means by which lineal descendants, Indian
tribes, and Native Hawaiian organizations learn that a museum or
Federal agency has determined particular human remains to be culturally
unidentifiable.
Comment 52: One commenter recommended clarifying whether the
requirement at Sec. 10.9(e)(2)(v) that notices of inventory completion
must describe human remains, with or without associated funerary
objects, that are culturally unidentifiable applies only after
promulgation of the final rule.
Our Response: Current regulations require publication of a notice
of inventory completion prior to the repatriation of culturally
affiliated human remains and associated funerary
[[Page 12387]]
objects (43 CFR 10.9(e)(2)). The Secretary has also required
publication of a notice of inventory completion prior to the
disposition of culturally unidentifiable human remains, with or without
associated funerary objects. The proposed text formalizes as regulation
the administrative notice requirement for culturally unidentifiable
human remains, with or without associated funerary objects. This rule
will have no effect on museums and Federal agencies that previously
published notices for disposition of culturally unidentifiable human
remains, with or without associated funerary objects, pursuant to a
recommendation from the Secretary.
Section 10.9 Other General Comments
Comment 53: Two commenters stated that the proposed rule puts
museums in the position of determining whether human remains and
associated funerary objects are ``Native American.''
Our Response: Under the Act, museums and Federal agencies already
have the role and responsibility of determining what constitutes
``Native American'' cultural items in their possession or control.
While the statute contemplates consultation on this determination and
other topics related to cultural items, the final determination is the
museum or Federal agency's alone. Challenges to such determinations may
be raised as disputes before the Review Committee or litigated in a
U.S. District Court.
Comment 54: Two commenters requested clarification as to who is
responsible for determining the geographic or cultural affiliation of
Native American human remains and associated funerary objects.
Our Response: The statute (25 U.S.C. 3003(a)) and current
regulations (43 CFR 10.9(a)) are clear that each museum or Federal
agency that has possession or control over holdings or collections of
human remains and associated funerary objects must compile an inventory
of such objects, and, to the fullest extent possible based on
information possessed by the museum or Federal agency, must identify
the geographical and cultural affiliation of each item. While these
decisions must be made in consultation with Indian tribes and Native
Hawaiian organizations, the museum or Federal agency is responsible for
identifying the geographical and cultural affiliation of each item.
Comment 55: One commenter recommended that current inventories of
culturally unidentifiable human remains be reevaluated in light of U.S.
v. Bonnichsen (357 F.3d 962 (9th Cir. 2004)).
Our Response: The proposed rule does not change the definition of
``Native American'' or ``human remains.'' To come within the scope of
the Act, a Federal agency or museum must make a threshold determination
that the culturally unidentifiable remains or funerary objects are
Native American before they may include culturally unidentifiable human
remains or funerary objects with which they are associated in the
inventories that are submitted to the Review Committee pursuant to
Sec. 10.9(d)(2).
Comment 56: One commenter recommended that the regulations reaffirm
that Federal agencies, like museums, must comply with the inventory,
consultation, and repatriation requirements of the Act.
Our Response: Like museums, Federal agencies must comply with the
summary, inventory, consultation, notice, and repatriation process of
the Act and the regulations.
Comment 57: Seven commenters requested a clear and explicit
explanation of how the proposed rule takes into account the potential
interests of the public in scientific research and education.
Our Response: The issue of scientific research is specifically
addressed by Congress. Section 5(b)(2) of the Act states that
``[Documentation] does not mean, and this Act shall not be construed to
be an authorization for the initiation of new scientific studies of
such remains and associated funerary objects or other means of
acquiring or preserving additional scientific information from such
remains and objects.'' The rule repeats this language at Sec.
10.9(5)(ii).
Comment 58: Eight comments recommended that Indian tribes and
Native Hawaiian organizations should have the primary role in
determining whether human remains are ``culturally unidentifiable.''
Our Response: Museum and Federal agency officials, in consultation
with Indian tribes and Native Hawaiian organizations, are required to
determine the cultural affiliation of all Native American human remains
and associated funerary objects in their possession or control (43 CFR
10.9).
Section 10.11 Disposition of Culturally Unidentifiable Human Remains
This new section fulfills the Secretary's responsibility to
promulgate regulations under sections 8(c)(5) and 13 of the Act (25
U.S.C. 3006(c)(5) and 3011)) and 25 U.S.C. 9 regarding the process for
the disposition of culturally unidentifiable human remains. The
Department of the Interior developed this section after full and
careful consideration of the Review Committee's recommendations and
other relevant legislation and policy.
Comment 59: Thirty-two commenters generally supported this section.
Twenty-four commenters generally opposed this section. One commenter
recommended retaining the term ``disposition'' in the title of this
section.
Our Response: The term has been retained.
Comment 60: One commenter recommended removing any timelines or
deadlines from this section.
Our Response: The proposed rule includes only two deadlines.
Section 10.11(b)(1) requires that the museum or Federal agency official
initiate consultation within ninety days of receiving a request from an
Indian tribe or Native Hawaiian organization to transfer control of
culturally unidentifiable human remains or, absent such a request,
before making any offer to transfer control of culturally
unidentifiable human remains. Section 10.11(d)(2) requires the manager
of the National NAGPRA Program to update and make accessible the Review
Committee's inventory of culturally unidentifiable human remains within
30 days of publishing a notice of inventory completion for culturally
unidentifiable human remains. Both deadlines seem reasonable and
necessary for the effective implementation of this section.
Comment 61: The preamble to the proposed rule specifically
requested comments regarding the meaning of the term ``cultural
relationship'' which is used in Section 3 of the Act (25 U.S.C. 3002)
as a basis for the disposition of Native American human remains,
funerary objects, sacred objects or objects of cultural patrimony
excavated or removed from Federal or tribal land after 1990 (25 U.S.C.
3002(a)(2)(C)(2)), and was included in the proposed rule as a basis for
consultation (43 CFR 10.11(b)) and disposition (43 CFR 10.11(c)) of
culturally unidentifiable human remains. Only four commenters offered
specific recommendations on how the term should be defined. One
proposed a definition that is indistinguishable from that of cultural
affiliation--``a relationship that exists between federally-recognized
tribes and earlier Native American groups with which those federally-
recognized tribes have a relationship of shared group identity.''
Our Response: As a matter of regulatory drafting, different terms
should not be accorded the same meaning when this can be avoided.
Comment 62: Three other commenters recognized that from its context
in
[[Page 12388]]
section 3 of the Act the term ``cultural relationship'' connotes a
weaker connection than ``cultural affiliation,'' but differed on how
the former connection should be proved. Two commenters recommended that
the same types of evidence applicable to showing cultural affiliation--
``geographical, kinship, biological, archeological, anthropological,
linguistic, folkloric, oral traditional, historical, or other relevant
information or expert opinion'' [25 U.S.C. 3005(a)(4)]--should also be
used to determine cultural relationship, but at some standard less than
the preponderance of the evidence. Another commenter specified
additional evidence that should be considered in determining cultural
relationship, including habitation, tribal history, migration and
creation stories, and evidence from tribal elders.
Our Response: The drafters note that all of the specified types of
evidence for ``cultural relationship'' are already subsumed under the
broader categories identified in the Act for ``cultural affiliation.''
Comment 63: Three commenters generally supported using ``cultural
relationship'' as a basis for disposition of culturally unidentifiable
human remains. Seven commenters recommended that ``cultural
relationship'' be defined prior to finalization of the rule. Four
commenters recommended finalizing the rule with a section reserved to
define ``cultural relationship'' at a later date. One commenter
recommended that the Review Committee be tasked with developing a
definition of ``cultural relationship.'' Thirteen commenters
recommended not defining ``cultural relationship'' by regulation,
instead allowing museums, Federal agencies, Indian tribes, and Native
Hawaiian organizations to interpret the term on a case-by-case basis.
Nineteen commenters recommended removing ``cultural relationship'' from
the priority structure entirely.
Our Response: The diversity of opinion regarding the meaning of
``cultural relationship'' convinced the drafters to remove it as a
required criterion for consultation and disposition of culturally
unidentifiable human remains in Sec. 10.11(b) and Sec. 10.11(c).
Section 10.11(a) General Intent
Paragraph (a) states the general intent of Sec. 10.11.
Comment 64: One commenter recommended it be made explicit that the
rule only applies to human remains determined to be ``Native
American.''
Our Response: Section 10.11(a) has been changed to read: ``This
section implements section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5))
and applies to human remains previously determined to be Native
American pursuant to Sec. 10.9, but for which no lineal descendant or
culturally affiliated Indian tribe or Native Hawaiian organization has
been identified.''
Section 10.11(b) Consultation
Paragraph (b) establishes procedures for consultation regarding the
disposition of culturally unidentifiable human remains.
Comment 65: Six commenters recommended making it very clear that
the appropriate disposition of culturally unidentifiable human remains
can only occur within the framework of consultation and collaboration.
Our Response: Section 10.11(b) is intended to provide such a
framework.
Comment 66: Six commenters were concerned that the initial listing
of culturally unidentifiable human remains and associated funerary
objects was completed without consultation.
Our Response: Inventory preparation under Sec. 10.9 required
consultation with lineal descendants and Indian tribal officials and
traditional religious leaders (1) from whose tribal lands the human
remains and associated funerary objects originated; (2) that are, or
are likely to be, culturally affiliated with human remains and
associated funerary objects; and (3) from whose aboriginal lands the
human remains and associated funerary objects originated. Failure to
consult with all of the above-referenced parties constitutes a failure
to comply with the requirements of the Act and may result in assessment
of a civil penalty under Sec. 10.12(b)(1)(vii). It is anticipated that
consultation as required in Sec. 10.11(b) will result in
determinations that some human remains and associated funerary objects
previously determined to be culturally unidentifiable are actually
culturally affiliated with an Indian tribe or Native Hawaiian
organization.
Comment 67: Four commenters considered the consultation
requirements at Sec. 10.11(b) to be impractical, burdensome, likely to
cause irreparable damage to the strong, highly productive collaborative
relationships between Indians and the scientific community, and likely
to lead to rushed decisions regarding disposition of culturally
unidentifiable human remains. Six commenters recommended including
additional guidance on how to conduct meaningful consultation. One
commenter requested clear guidelines on exactly when a particular
consultation process reaches a definitive conclusion. Five commenters
recommended including a definition of ``consultation'' consistent with
House Report 101-877.
Our Response: Consultation is a critical component of implementing
this section and the Act as a whole. The committee report accompanying
the Act (House Report 101-877 (October 15, 1990)) defined consultation
as ``a process involving the open discussion and joint deliberations
with respect to potential issues, changes, or actions by all interested
parties.'' Consultation is not defined in the Act itself. These
regulations require museums and Federal agencies to initiate
consultation within ninety days of receipt of a request from an Indian
tribe or Native Hawaiian organization, or before any offer to transfer
control of culturally unidentifiable human remains and associated
funerary objects. Required consultation would generally conclude once
control of the culturally unidentifiable human remains, with or without
associated funerary objects, has been transferred to the Indian tribe
or Native Hawaiian organization.
Section 10.11(b)(1) When To Consult
Section 10.11(b)(1) identifies when museums and Federal agencies
must initiate consultation regarding the disposition of culturally
unidentifiable human remains and associated funerary objects.
Comment 68: Two commenters recommended that Sec. 10.11(b)(1)
provide clear guidelines for the circumstances under which a museum or
Federal agency must initiate consultation. One commenter recommended
that a museum or Federal agency's obligation to initiate consultation
be triggered only by receipt of a claim. One commenter asked whether a
Federal agency should invite consultation if no claim is received from
a federally-recognized Indian tribe or Native Hawaiian organization.
One commenter recommended that there be clear guidelines on exactly
when the consultation process may conclude.
Our Response: This paragraph requires a museum or Federal agency
official to initiate consultation regarding the disposition of
culturally unidentifiable human remains and associated funerary objects
in two separate instances. Consultation must be initiated within ninety
days of receipt of a request from an Indian tribe or Native Hawaiian
organization to transfer control. Absent such a request, consultation
must also be initiated before the museum or Federal agency makes any
offer to transfer control. Required consultation would generally
[[Page 12389]]
conclude once the control and possession of the culturally
unidentifiable human remains, with or without associated funerary
objects, has been transferred to the Indian tribe or Native Hawaiian
organization.
Section 10.11(b)(2) Who To Consult
Section 10.11(b)(2) identifies who must be consulted regarding the
disposition of culturally unidentifiable human remains and associated
funerary objects.
Comment 69: Three commenters recommended that consultation not be
required with all of the Indian tribes and Native Hawaiian
organizations specified at Sec. 10.11(b)(2), in part because Indian
tribes and Native Hawaiian organizations will be inundated with
requests to consult.
Our Response: The drafters have removed the requirement to consult
with Indian tribes and Native Hawaiian organizations with a cultural
relationship to the region from which the human remains and associated
funerary objects were removed (43 CFR 10.11(b)(2)(iii)). Museums and
Federal agencies were already required to consult with Indian tribes
and Native Hawaiian organizations from whose tribal lands or aboriginal
lands the human remains and associated funerary objects were removed in
preparing their initial inventories (43 CFR 10.9(b)).
Comment 70: One commenter recommended that the Department compile a
list of Native Hawaiian organizations that should be consulted
regarding disposition of culturally unidentifiable human remains.
Our Response: Contact information is available for some Native
Hawaiian organizations from two sources within the Department of the
Interior. The National Park Service, National NAGPRA Program maintains
the Native American Consultation Database (http://home.nps.gov/nacd/).
The Department of the Interior, Office of Hawaiian Relations maintains
the Native Hawaiian Organization List (http://www.doi.gov/ohr/). Other
sources should also be considered.
Comment 71: One commenter considered inclusion of treaties, acts of
Congress, and Executive Orders at Sec. 10.11(b)(2)(ii), along with
final determinations of the Indian Claims Commission and the U.S. Court
of Claims to be a fair and equitable way of identifying aboriginal
lands. Three commenters recommended deleting treaties, acts of
Congress, and Executive Orders as a basis for determining aboriginal
lands. One commenter considered the cited documents too limiting, and
recommended adding the ``testimony of experts.'' One commenter
requested clarification as to who determines whether or not a specific
tribe was the aboriginal occupant of an area.
Our Response: While Section 3(a)(2)(C) of the Act (25 U.S.C.
3002(a)(2)(C)) identifies only a final judgment of the Indian Claims
Commission or United States Court of Claims as the basis for
determining aboriginal lands, the drafters intend to include the full
range of relevant and authoritative governmental determinations in this
section to provide additional evidence relating to an Indian tribe or
Native Hawaiian Organization (or, possibly, an Indian group that is not
federally-recognized) with the closest connection to the culturally
unidentifiable human remains. These include final judgments of the
Indian Claims Commission and the United States Court of Claims, as well
as treaties, Acts of Congress, or Executive Orders. Treaties signed
before the establishment of the United States between the various
colonial governments and Indian tribes may be used to identify areas
aboriginally occupied by Indian tribes. Maps of the territory ceded
under United States treaties were originally published in the 18th
Annual Report of the Bureau of American Ethnology to the Secretary of
the Smithsonian Institution, 1896-1897 (Government Printing Office,
1899) and are available online at http://memory.loc.gov/ammem/amlaw/
lwss-ilc.html. Judgments of the Indian Claims Commission are available
at http://digital.library.okstate.edu/icc/index.html. The drafters note
that pursuant to provisions of the Indian Claims Commission Act,
compromises (settlements) have the same effect of final judgments of
the Indian Claims Commission ((605 Stat. 1060, 25 U.S.C. 70a et seq.).
Comment 72: Two commenters recommended including a mechanism at
Sec. 10.11(b)(2) requiring notification of Indian groups that are not
federally-recognized or foreign based groups that may have a shared
group identity with culturally unidentifiable human remains.
Our Response: The Act and regulations require museums and Federal
agencies to consult with lineal descendants, Indian tribes, and Native
Hawaiian organizations. Museum and Federal agencies may consult or
provide notification to foreign based groups or Indian groups that are
not federally-recognized as well.
Comment 73: One commenter considered the Sec. 10.11(b)(2)(iii)
requirement to consult with Indian tribes and Native Hawaiian
organizations with a cultural relationship to the region from which
culturally unidentifiable human remains and associated funerary objects
were removed to be reasonable and appropriate. Three commenters
recommended deleting the requirement. Two commenters recommended
defining the term ``region.'' One commenter recommended clarifying the
term ``lacking geographic affiliation.'' One commenter recommended
including provisions to incorporate study results, particularly of the
age of the human remains, and the results of consultation.
Our Response: The diversity of opinion regarding the meaning of
``cultural relationship'' convinced the drafters to remove it as a
required criteria for consultation regarding the disposition of
culturally unidentifiable human remains in Sec. 10.11(b)(2)(iii).
Comment 74: Five commenters recommended that Indians must not be
viewed as simply one voice among many, but as the primary voice in
determining the disposition of culturally unidentifiable human remains.
Our Response: These regulations require museum and Federal agency
officials to make certain decisions regarding the disposition of
culturally unidentifiable human remains. While the regulations require
that these decisions are made in consultation with Indian tribes and
Native Hawaiian organizations, the responsibility for making the
decision remains with the museum or Federal agency official. Indian
tribes and Native Hawaiian organizations assume sole responsibility for
disposition once the museum or Federal agency transfers control of
culturally unidentifiable human remains.
Comment 75: Two commenters requested clarification as to whether
the requirements of Sec. 10.11(b)(1) and (b)(2) were independent of
each other.
Our Response: The two sections are related. Section 10.11(b)(1)
specifies when consultation must begin: either within 90 days of
receipt of a request to transfer control or, absent such a request,
before any offer to transfer control. Section 10.11(b)(2) specifies who
must be consulted in either situation.
Section 10.11(b)(3) Information Provided
Section 10.11(b)(3) outlines the information that museum or Federal
agency officials must provide to all consulted Indian tribes and Native
Hawaiian organizations.
[[Page 12390]]
Comment 76: One commenter recommended revising Sec. 10.11(b)(3) to
clarify that the specified information must be provided to all Indian
tribes and Native Hawaiian organizations with which the museum or
Federal agency is consulting ``or should have consulted.''
Our Response: Refusing to provide the specified information to one
of the Indian tribes identified in Sec. 10.11(b)(2) would constitute a
failure to comply under Sec. 10.12(b)(vii).
Comment 77: Two commenters suggested that Sec. 10.11(b)(3) require
museums and Federal agencies to send information as part of
consultation to Indian groups that are not federally-recognized. Two
commenters questioned the legal basis for requiring a museum or Federal
agency to provide a list of Indian groups that are not federally-
recognized that are known to have a relationship of shared group
identity with the particular human remains and associated funerary
objects.
Our Response: In the two sections of the Act that impose mandatory
priorities for control or disposition of human remains (25 U.S.C. 3002
and 3005), Congress limited the recipients to federally-recognized
Indian tribes (in addition to lineal descendants and Native Hawaiian
organizations) in recognition of the government-to-government
relationship between such tribes and the United States. In expanding
the possible recipients of culturally unidentifiable human remains,
with or without associated funerary objects, the Secretary followed the
lead of Congress both in assuring that such cultural items went to the
Indian group that had the closest cultural connection to the items,
even if that group is not federally-recognized, and in maintaining the
priority position of the government-to-government relationship, by not
making such a disposition mandatory. In keeping with the voluntary
nature of such disposition, consultation with Indian groups that are
not federally-recognized is at the discretion of the museum or Federal
agency.
Comment 78: One commenter recommended that the Secretary provide a
list of Indian groups that are not federally-recognized to facilitate
the consultation efforts of museums and Federal agencies.
Our Response: Museums and Federal agencies are not required to
consult with Indian groups that are not federally-recognized. However,
they may wish to consult with Indian groups that are not federally-
recognized, particularly if such groups are known to have a
relationship of shared group identity with culturally unidentifiable
human remains and associated funerary objects in the possession or
control of the museum or Federal agency. Section 10.11(b)(3)(ii)
requires museums and Federal agencies to provide consulted Indian
tribes and Native Hawaiian organizations with a list of any Indian
groups that are not federally-recognized and is known to have a
relationship of shared group identity with such human remains and
associated funerary objects in order to facilitate consultation
regarding appropriate disposition. Thus, the museum or Federal agency,
and not the Secretary, would possess the list of such groups on a case
by case basis.
Comment 79: One commenter suggested that the Secretary require a
museum or Federal agency to state its reasoning for consultation with
an Indian group that is not federally-recognized.
Our Response: Because the regulations do not require such
consultation, they do not require a museum or Federal agency to provide
the basis for such consultation. However, under Sec. 10.11(b)(4)(iv),
the museum or Federal agency must request the names and addresses of
Indian groups that are not federally-recognized during consultation
with relevant Indian tribes or Native Hawaiian organizations. An
appropriate subject for the consultation in the context of such a
request would be the reason why the museum or Federal agency needs to
consult with those groups.
Comment 80: One commenter suggested rewording Sec. 10.11(b)(3)(ii)
to remove the passive voice and clarify that the subject list is of the
``Indian groups that are not federally-recognized that the museum or
Federal agency knows shares'' a group identity with the particular
human remains and associated funerary objects.
Our Response: The drafters agree that, generally, any such
knowledge would be within the museum or Federal agency, but prefer to
leave the requirement in the passive voice to allow for other sources,
such as the general literature.
Comment 81: One commenter requested clarification in Sec.
10.11(b)(3)(ii) of what is a legitimate Indian group that is not
federally-recognized and what makes such a group ``known.''
Our Response: Consultation with Indian groups that are not
federally-recognized is not required by the Act or these regulations.
Museums and Federal agencies are required to provide consulted Indian
tribes and Native Hawaiian organizations with a list of any Indian
groups that are not federally-recognized that are known to have a
relationship of shared group identity with particular human remains and
associated funerary objects. Determinations as to whether such a
relationship of shared group identity exists may be done on a case-by-
case basis relying upon the types of evidence outlined at Sec. 10.14
of these regulations.
Section 10.11(b)(4) Information Requested
Section 10.11(b)(4) outlines the information that museum and
Federal agency officials must request from consulted Indian tribes and
Native Hawaiian organizations.
Comment 82: One commenter was concerned that Sec. 10.11(b)(4)(iii)
gives Indian tribes and Native Hawaiian organizations complete
authority to determine the criteria to be used in identifying groups of
human remains and associated funerary objects for consultation.
Our Response: Museum and Federal agency officials are required to
request temporal and/or geographic criteria to be used to identify
groups of human remains and associated funerary objects for
consultation. Additional criteria may also be used to identify the
focus of consultation.
Comment 83: Two commenters were concerned that Sec. 10.11(b)(4)(v)
gives Indian tribes and Native Hawaiian organizations authority to
single-handedly and unilaterally determine the consultation schedule
and process.
Our Response: Museum and Federal agency officials are required to
request consultation schedules and process preferences from Indian
tribes and Native Hawaiian organizations. The consultation schedule and
process that is actually used will depend on other factors as well.
Section 10.11(b)(5) Disposition Proposals
Section 10.11(b)(5) directs museum and Federal agency officials to
seek to develop a proposed disposition for culturally unidentifiable
human remains and associated funerary objects that is mutually
agreeable to the parties and consistent with this part.
Comment 84: Six commenters recommended revising Sec. 10.11(b)(5)
to require the museum or Federal agency official to develop a proposed
disposition for culturally unidentifiable human remains and associated
funerary objects that is mutually agreeable to the parties specified in
Sec. 10.11(b)(2). One commenter recommended that the museum or Federal
agency official should consider proposed dispositions developed by and
mutually agreeable to the parties specified in Sec. 10.11(b)(2).
[[Page 12391]]
One commenter recommended that this paragraph address what would happen
if the parties do not agree on a proposed disposition. One commenter
recommended that if no agreement is reached, the museum or Federal
agency should be able to determine disposition in good faith and be
protected from liability.
Our Response: This paragraph strongly encourages museum and Federal
agency officials to seek to develop proposed dispositions that are
mutually agreeable to the parties specified in Sec. 10.11(b)(2). It is
recognized that the interests of the various parties may differ and
that obtaining a mutually agreeable proposal is beyond the ability of
any single party.
Comment 85: One commenter recommended revising Sec. 10.11(b)(5) to
clarify that disposition of funerary objects associated with culturally
unidentifiable human remains is advised but not required.
Our Response: Section 10.11(c)(5) which has been renumbered as
Sec. 10.11(c)(4) clarifies that a museum or Federal agency may
transfer control of funerary objects that are associated with
culturally unidentifiable human remains and that the Secretary
recommends that museums and Federal agencies engage in such transfers
whenever Federal or State law would not otherwise preclude transfers.
Comment 86: One commenter recommended revising Sec. 10.11(b)(5) to
establish a basis for determining the right of claim or strength of
relationship among the parties specified in Sec. 10.11(b)(2).
Our Response: The priority of claim is established by Sec.
10.11(b)(2). A claim for culturally unidentifiable human remains made
by an Indian tribe or Native Hawaiian organization from whose tribal
land, at the time of the excavation or removal, the human remains were
removed has a higher priority than a claim made by an Indian tribe that
is recognized as aboriginally occupying the area from which the human
remains were removed.
Comment 87: One commenter was concerned that limiting agreement in
Sec. 10.11(b)(5) to only those parties identified in Sec. 10.11(b)(2)
will vitiate the careful consideration of evidence required by the Act
and leave the door wide open to transfers of control to groups with no
significant relationship to the human remains.
Our Response: Museum and Federal agency officials are free to
consult with any party that may help inform the development of a
proposed disposition. However, the parties identified in Sec.
10.11(b)(2) must be consulted and the museum or Federal agency official
should, at a minimum seek to develop a proposed disposition for
culturally unidentifiable human remains and associated funerary objects
that is mutually agreeable to the parties.
Comment 88: One commenter recommended revising Sec. 10.11(b)(5) to
indicate that a museum or Federal agency and involved Indian parties
should be free to reach any agreement as to disposition that is
permitted by all applicable laws.
Our Response: Museum and Federal agency officials may be bound by
other Federal, state, or local ordinances regarding the disposition of
culturally unidentifiable human remains and associated funerary objects
in their possession or control. Section 10.11(b)(5) stipulates that all
such agreements must be consistent with these regulations at a minimum.
Section 10.11(b)(6) Determinations of Lineal Descent or Cultural
Affiliation
Section 10.11(b)(6) stipulates that the notification and
repatriation provisions of Sec. Sec. 10.9(e) and 10.10(b) apply if
human remains and associated funerary objects previously determined to
be culturally unidentifiable are actually culturally affiliated with an
Indian tribe or Native Hawaiian organization.
Comment 89: One commenter recommended that the language in Sec.
10.11(b)(6) be clarified to indicate that the notification and
repatriation provisions would also apply if consultation resulted in
the identification of a lineal descendant. One commenter recommended
rephrasing the section for clarity.
Our Response: The text has been revised with additional text
indicating that the notification and repatriation provisions would
apply if consultation resulted in the identification of a lineal
descendant.
Comment 90: One commenter objected to what he considered a
presumption in Sec. 10.11(b)(6) that skeletal materials that have not
been identified with a cultural group can never be correctly
identified.
Our Response: The drafters anticipate that the consultation process
will result in decisions that human remains and associated funerary
objects previously determined to be culturally unidentifiable are
actually culturally affiliated with Indian tribes and Native Hawaiian
organizations. This paragraphs makes it clear that the notification and
repatriation requirements of Sec. 10.9(e) and Sec. 10.10(b) apply
when a determination of cultural affiliation is made.
Section 10.11(c) Disposition
Paragraph(c) establishes a priority listing and procedures for the
disposition of culturally unidentifiable human remains.
Comment 91: The preamble to the proposed rule specifically
requested comments regarding the appropriateness of using a priority
structure in determining the disposition of culturally unidentifiable
human remains. The priority structure proposed in Sec. 10.11(c) was
based on the similar priority structure in section 3 of the Act.
Sixteen commenters generally supported use of the proposed priority
structure. Nine commenters objected to use of any priority structure
based on criteria other than lineal descent or cultural affiliation.
Our Response: The Review Committee is responsible for recommending
specific actions for developing a process for disposition of culturally
unidentifiable human remains (25 U.S.C. 3006 (c)(5)). Since 1992, the
Review Committee has recommended the disposition of specific culturally
unidentifiable human remains based on their removal from the aboriginal
land of an Indian tribe, their shared group identity with an Indian
group that is not federally-recognized, and reburial pursuant to
otherwise applicable state burial law. The Review Committee's
recommendations in these cases have been reviewed by the Secretary of
the Interior and generally endorsed. Such dispositions are clearly
within the Secretary's authority under current regulations. The
proposed rule would simply authorize museums and Federal agencies to
effect such dispositions to Indian tribes and Native Hawaiian
organizations without direct reliance upon the Secretary.
Comment 92: Three commenters recommended that the ``priority
structure'' should not be the only factor for determining the
disposition of either culturally affiliated or culturally
unidentifiable human remains, such as agreements between Indian tribes
regarding disposition.
Our Response: Agreements between a Federal agency or museum and
culturally affiliated Indian tribes or Native Hawaiian organizations
regarding the disposition of, or control over, Native American human
remains, funerary objects, sacred objects, or objects of cultural
patrimony are specifically authorized by section 11(1)(B) of the Act
(25 U.S.C. 3009(1)(B)). Agreements regarding the return of culturally
unidentifiable human remains and associated funerary objects to Indian
tribes, Native Hawaiian
[[Page 12392]]
organizations, or individuals are also authorized by section 11(1)(A)
of the Act (25 U.S.C. 3009(1)(A)). The drafters have added a new
subsection at Sec. 10.11(c)(2)(i) to facilitate such voluntary
dispositions.
Comment 93: One commenter urged inclusion of guidelines clearly
specifying the level of effort that will be required to determine if
culturally unidentifiable human remains fit the proposed priority
categories.
Our Response: Guidelines specifying the level of effort necessary
to determine the applicability of these, or other definitions within
the regulations, are already provided by the statute and regulations.
For instance, determinations regarding the cultural affiliation of
human remains, or the lack thereof, are to be made, to the extent
possible, based on information possessed by a museum or Federal agency
(25 U.S.C. 3003(a)). New scientific studies of such remains and
associated funerary objects, or other means of acquiring or preserving
additional scientific information from such remains and objects, are
not required by the statute (25 U.S.C. 3003(b)(2)).
Comment 94: One commenter urged consideration of a single unified
effort to specifically identify and map tribal and aboriginal lands.
Our Response: Maps of tribal land, Indian Claims Commission
decisions, and treaty areas are currently posted at: http://
www.nps.gov/history/nagpra/.
Comment 95: Three commenters were concerned that assigning
disposition of culturally unidentifiable human remains to a particular
culture group might result in some skeletal remains being transferred
to a group to which they do not belong, including some of European,
African, and Asian ancestry.
Our Response: All museums and Federal agencies were required to
compile inventories of human remains and associated funerary objects.
Each museum and Federal agency was responsible for determining if the
human remains and associated funerary objects were Native American in
the first instance. Human remains that were not identified as Native
American were not to be included on the inventory. Museums and Federal
agencies that wish to amend a previous decision may do so pursuant to
Sec. 10.13(e).
Section 10.11(c)(1) Required Offers to Transfer Control
Section 10.11(c)(1) requires a museum or Federal agency to offer to
transfer control of culturally unidentifiable human remains for which
it cannot prove right of possession to Indian tribes or Native Hawaiian
organizations according to two priority categories.
Comment 96: One commenter recommended that the ``offer to transfer
control'' referred to in Sec. 10.11(c)(1) must be developed in
consultation with Indian tribes and Native Hawaiian organizations.
Our Response: Any offer to transfer control must be developed in
consultation with the Indian tribes and Native Hawaiian organizations
identified in Sec. 10.11(b)(2).
Comment 97: Two commenters recommended that museums and Federal
agencies should not be required to initiate efforts to transfer control
of culturally unidentifiable human remains absent a request from an
Indian tribe or Native Hawaiian organization with the right to make
such a claim.
Our Response: Under Sec. 10.11(b)(1)(i), a museum or Federal
agency official must initiate consultation regarding the disposition of
culturally unidentifiable human remains and associated funerary objects
within 90 days of receipt of a request from an Indian tribe or Native
Hawaiian organization to transfer control of such items. Absent such a
request, the museum or Federal agency official may voluntarily offer to
transfer control, in which case they must initiate consultation prior
to making such an offer.
Comment 98: Nine commenters supported the proposed provision in
Sec. 10.11(c)(1) requiring that a museum or Federal agency offer to
transfer culturally unidentifiable human remains to certain classes of
Indian tribes unless it can prove that it has the right of possession
to the remains. Seven commenters generally opposed the same provision,
claiming that museums and Federal agencies should not have to prove
that right to keep their collections.
Our Response: The opportunity for a museum or Federal agency to
assert that it has the right of possession to culturally unidentifiable
human remains is consistent with the provisions in Sec. 10.15 of the
regulations concerning repatriation of culturally affiliated human
remains and the intent of Congress to recognize such a right as an
exception to repatriation of human remains under section 7 of the Act
(25 U.S.C. 3003)). The Secretary believes that it is appropriate to
recognize that right as an exception for these remains as well.
Comment 99: One commenter questioned the use of the term ``right of
possession'' with respect to human remains, stating that one person
cannot own another person, alive or dead.
Our Response: Although the use of this term, as well as the term
``culturally unidentifiable'' is sensitive, Congress used both of these
terms with specific meanings and consequences in the Act, so they must
be used in the regulations with respect to those same meanings and
consequences.
Comment 100: Eight commenters stated that proving right of
possession to culturally unidentifiable human remains would be
``impossible'' since only a culturally affiliated Indian tribe can
grant consent.
Our Response: Under NAGPRA, ``the original acquisition of Native
American human remains and associated funerary objects which were
excavated, exhumed, or otherwise obtained with full knowledge and
consent of the next of kin or the official governing body of the
appropriate culturally affiliated Indian tribe or Native Hawaiian
organization is deemed to give right of possession to those remains''
(25 U.S.C. 3001(13)). Further, ``the governing body of an Indian tribe
or Native Hawaiian organization [may] expressly relinquish * * *
control over any Native American human remains'' acquired pursuant to
the ownership provisions of the Act (25 U.S.C. 3002(e)). Thus, Congress
has defined the right of possession for these cultural items, and the
Secretary cannot change that definition. The Secretary does note,
however, that the ``full knowledge and consent of the next of kin''
would bring freely donated organs and other body parts within the right
of possession. Furthermore, the exception listed at Sec. 10.10(c)(3)
applies to the requirements of Sec. 10.11(c)(1).
Comment 101: Four commenters requested that the final rule be very
clear that the burden of proof for the right of possession of
culturally unidentifiable human remains is on the museum or Federal
agency.
Our Response: The Secretary agrees that the burden of proof is on
the museum or Federal agency, and that, as the proposed and final rule
states, if a museum or Federal agency ``is unable to prove that it has
right of possession'', it must offer to transfer the remains, with or
without associated funerary objects (25 U.S.C. 3005(c)) upon receipt of
a request.
Comment 102: Three commenters stated that a museum or Federal
agency should be presumed to have the legal right of possession to its
collection, unless shown to be otherwise. The commenters asserted that
such a presumption would be consistent with the treatment of
archaeological resources as property of the United States under the
Archaeological Resources Protection Act (ARPA) and
[[Page 12393]]
with state laws relating to property rights and private ownership of
human remains and artifacts taken from private property. Culturally
unidentifiable human remains should be retained by museums and Federal
agencies in the public trust.
Our Response: Congress specifically chose to change the ownership
presumption in ARPA when it enacted NAGPRA, as evidenced by the
requirement for a museum or Federal agency to prove that it has the
right of possession to culturally affiliated human remains under
section 7 of NAGPRA. With respect to state property laws and
presumptions of ownership, NAGPRA is Federal law, and, as such, under
the Supremacy Clause of the Constitution (Art. VI, cl. 2; Lorillard
Tobacco Co. v. Reilly, 533 US 525 (2001)) would preempt any state law
on the same subject matter. This is especially true in Indian affairs,
where the United States has plenary and exclusive power (Art. I, Sec.
8, cl. 3; Worcester v. Georgia, 31 US 515, 6 Pet 515 (1832)).
Comment 103: Two commenters recommended excluding human anatomical
collections used by medical schools for training.
Our Response: Though not excluded from the inventory provisions,
medical schools that receive Federal funds would not be required to
repatriate Native American human remains obtained with the voluntary
consent of an individual or group that had authority of alienation.
Comment 104: Six commenters supported the provision at Sec.
10.11(c)(1)(i) requiring museums and Federal agencies to offer to
transfer control of culturally unidentifiable human remains to the
Indian tribe or Native Hawaiian organization from whose tribal land, at
the time of excavation or removal, the human remains were removed. One
commenter objected to the provision since it may force a museum or
Federal agency to transfer human remains to an Indian tribe or Native
Hawaiian organization with which they are not culturally affiliated.
Our Response: Disposition of human remains, funerary objects,
sacred objects, and objects of cultural patrimony to Indian tribes
based on criteria other than cultural affiliation was clearly
anticipated by Congress. Section 3(a)(2)(A) of the Act (25 U.S.C.
3002(a)(2)(A)), which was used as the model for the proposed provision,
specifically authorizes disposition of human remains, funerary objects,
sacred objects, or objects of cultural patrimony excavated or
discovered on tribal lands after November 16, 1990 to the Indian tribe
or Native Hawaiian organization in control of that tribal land.
Significantly, under section 3 of the Act, ownership or control based
on tribal land is given a higher priority order than cultural
affiliation. The drafters consider disposition of culturally
unidentifiable human remains to the Indian tribe or Native Hawaiian
organization from whose tribal land, at the time of excavation or
removal, the human remains were removed, to be reasonable and
appropriate.
Comment 105: One commenter recommended revising Sec.
10.11(c)(1)(i) to require an offer to transfer control of culturally
unidentifiable human remains to the Indian tribe or Native Hawaiian
organization on whose tribal land the remains were originally buried,
and not just to the Indian tribe or Native Hawaiian organization from
whose tribal land the remains were excavated.
Our Response: The concept of tribal land as used in these
regulations applies to all lands which are currently within the
exterior boundary of any Indian reservation, comprise a dependent
Indian community, or are administered for the benefit of Native
Hawaiians pursuant to the Hawaiian Homes Commission Act (25 U.S.C. 3001
(15)). Human remains that were buried on tribal land which was
subsequently transferred to another party are likely to be of
relatively recent age, making it very likely that a lineal descendant
or culturally affiliated Indian tribe or Native Hawaiian organization
can be determined.
Comment 106: One commenter requested clarification of what
constitutes ``tribal lands'' in Oklahoma.
Our Response: ``Tribal lands'' are defined at Sec. 10.2(f)(2) and
include all lands which (1) Are within the exterior boundaries of any
Indian reservation including, but not limited to, allotments held in
trust or subject to a restriction on alienation by the United States;
(2) comprise dependent Indian communities; or (3) are administered for
the benefit of Native Hawaiians pursuant to the Hawaiian Homes
Commission Act. Given the diversity of Indian land ownership, the
determination of whether a particular parcel or area is ``tribal
lands'' for purposes of this definition is made on a case-by-case
basis, consistent with case law developed by the Supreme Court and
other Federal courts, for example, Alaska v. Native Village of Venetie
Tribal Government, 522 U.S. 520 (1998). That determination is
especially difficult in certain parts of the United States, such as
Oklahoma and California.
Comment 107: Five commenters supported the provision at Sec.
10.11(c)(1)(ii) requiring museums and Federal agencies to offer to
transfer control of culturally unidentifiable human remains to the
Indian tribe or tribes from whose aboriginal land the human remains
were removed. Two commenters opposed such returns that are not based on
cultural affiliation.
Our Response: Disposition of human remains, funerary objects,
sacred objects, and objects of cultural patrimony to Indian tribes
based on criteria other than cultural affiliation was clearly
anticipated by Congress. Section 3(a)(2)(C) of the Act (25 U.S.C.
3002(a)(2)(C)), which was used as the model for the proposed provision,
specifically authorizes disposition of human remains, funerary objects,
sacred objects, or objects of cultural patrimony excavated or
discovered on aboriginal lands after November 16, 1990 to the Indian
tribe that aboriginally occupied the area in which the cultural items
were discovered. Consistent with the terms of the statute, the drafters
consider disposition of culturally unidentifiable human remains to the
Indian tribe or tribes that are recognized as aboriginally occupying
the area from which the human remains were recovered to be reasonable
and appropriate given that often the designation of culturally
unidentifiable is due to a lack of information occasioned by less than
optimal collection practices.
Comment 108: One commenter recommended changing the phrase ``Indian
tribe or tribes that are recognized * * *'' in Sec. 10.11(c)(1)(ii) to
``Indian tribe that is recognized * * *'' One commenter requested
clarification as to whether this provision would apply to an Indian
group that is not federally-recognized.
Our Response: The drafters included both the singular and plural
forms of the term ``Indian tribe'' to acknowledge that many United
States treaties were signed by representatives of more than one Indian
tribe. Regardless, when interpreting a statute words importing the
singular include and apply to several persons, parties, or things (1
U.S.C. 1). When Federal agencies publish proposed and final rules in
the Federal Register that amend existing regulations, the agency only
publishes the portion of the regulations that would change. Unless the
Federal agency states otherwise, all portions of existing regulations
that are not proposed for change in the notice of proposed rulemaking
remain the same, and still apply. Thus, when this final rule refers to
``Indian tribes'', the drafters are using
[[Page 12394]]
the existing definition of that term, for which no change was proposed.
That definition, at Sec. 10.2(b)(2), only refers to federally-
recognized Indian tribes. The drafters of the final rule were very
careful to use the term ``Indian group that is not federally-
recognized'' when those groups were included in a provision to try to
keep the distinction clear.
Comment 109: One commenter objected to authorizing the use of more
than a final judgment of the Indian Claims Commission or United States
Court of Claims to determine aboriginal land in Sec. 10.11 (c)(1)(ii).
Our Response: While section 3 (a)(2)(C) of the Act (25 U.S.C. 3002
(a)(2)(C)) identifies only a final judgment of the Indian Claims
Commission or United States Court of Claims as the basis for
determining aboriginal lands, the drafters intend to include the full
range of relevant and authoritative governmental determinations in this
section. To provide additional evidence relating to an Indian tribe or
Native Hawaiian Organization (or, possibly, an Indian group that is not
federally-recognized) with the closest connection to the culturally
unidentifiable human remains. These include final judgments of the
Indian Claims Commission and the United States Court of Claims, as well
as treaties, Acts of Congress, or Executive Orders. Treaties signed
before the establishment of the United States between the various
colonial governments and Indian tribes may be used to identify areas
aboriginally occupied by Indian tribes based on the acknowledgement of
the validity of these treaties by the United States. Maps of the
territory ceded under United States treaties were originally published
in the 18th Annual Report of the Bureau of American Ethnology to the
Secretary of the Smithsonian Institution, 1896-1897 (Government
Printing Office, 1899) and are available online at http://
memory.loc.gov/ammem/amlaw/lwss-ilc.html. Judgments of the Indian
Claims Commission are available at http://digital.library.okstate.edu/
icc/index.html. The drafters note that pursuant to provisions of the
Indian Claims Commission Act, settlements have the same effect as final
judgments of the Indian Claims Commission (605 Stat. 1060, 25 U.S.C.
70a et seq.).
Comment 110: One commenter recommended provisions be included to
resolve conflicts over dispositions based on aboriginal lands pursuant
to Sec. 10.11(c)(1)(ii).
Our Response: Section 10.11(e) addresses the resolution of disputes
regarding the disposition of culturally unidentifiable human remains
and associated funerary objects, including disputes regarding
identification of aboriginal lands.
Comment 111: Three commenters recommended that determinations of
aboriginal occupation should not be limited to the sources outlined in
Sec. 10.11(c)(1)(ii), but should be defined at the discretion of the
Native communities and/or based on the ``testimony of experts.'' One
commenter recommended including provisions recognizing final judgments
of other Federal courts.
Our Response: The drafters intend to include the full range of
relevant and authoritative governmental determinations in this section.
These may include final judgments from Federal Courts, including the
United States Court of Claims. Museum and Federal agency officials may
also consider other information, such as expert testimony, but are not
required to do so.
Comment 112: One commenter generally supported the disposition of
culturally unidentifiable human remains based on ``cultural
relationship.'' Eleven commenters raised concerns about using
``cultural relationship'' as the basis for disposition of culturally
unidentifiable human remains.
Our Response: As noted in the response to comment 63 above, the
diversity of opinion regarding the meaning of ``cultural relationship''
convinced the drafters to remove it as a required criterion for
consultation and disposition of culturally unidentifiable human
remains.
Comment 113: One commenter was concerned that some museums might
urge Indian tribes and Native Hawaiian organizations to accept human
remains to which they may not have any ancestral connection in order to
prevent turning over such human remains to groups with more attenuated
``cultural relationships.''
Our Response: The drafters have removed the term ``cultural
relationship'' as a basis for disposition under Sec. 10.11(c)(1).
Consultation may result in a determination that human remains and
associated funerary objects previously determined to be culturally
unidentifiable are actually culturally affiliated with an Indian tribe
or Native Hawaiian organization (43 CFR 10.11(b)(6)).
Comment 114: One commenter recommended that an Indian tribe's
decision regarding the disposition of culturally unidentifiable human
remains should not be contingent upon the agreement of other lower
priority claimants.
Our Response: Under Sec. 10.11(c)(1), a request to transfer
control of culturally unidentifiable human remains from an Indian tribe
or Native Hawaiian organization from whose tribal land, at the time of
excavation or removal, the human remains were removed is given priority
and is not contingent upon any agreement with another Indian tribe that
is recognized as aboriginally occupying the area from which the human
remains were removed.
Comment 115: One commenter considered the Review Committee's case-
by-case consideration of requests for disposition of culturally
unidentifiable human remains to be working well and to be superior to
the proposed system.
Our Response: Under current regulations (43 CFR 10.9(e)(6)),
museums must retain possession of culturally unidentifiable human
remains unless legally required to do otherwise or recommended to do
otherwise by the Secretary. For over a decade, the Secretary has given
full consideration to the Review Committee's case-by-case deliberations
in deciding to make such a recommendation. These regulations were
developed with this case-by-case experience in mind, as well as after
careful consideration of the Review Committee's 2000 final
recommendations. Dispositions involving Indian groups that are not
federally-recognized or reinterment according to State or other law
will still require a recommendation from the Secretary, who may request
the Review Committee's advice.
Section 10.11(c)(2) Voluntary Dispositions
Section 10.11(c)(3) (renumbered as Sec. 10.11(c)(2)) establishes a
process for the voluntary disposition of culturally unidentifiable
human remains that are not transferred under provisions of Sec.
10.11(c)(1).
Comment 116: Four commenters stated that the claims to culturally
unidentifiable human remains, with or without associated funerary
objects, by a federally-recognized Indian tribe must take priority over
any other group.
Our Response: The Secretary agrees. To ensure that the rights of
federally-recognized Indian tribes are protected, a museum or Federal
agency may only transfer control of culturally unidentifiable human
remains, with or without associated funerary objects, to an Indian
group that is not federally-recognized after full consultation with
relevant federally-recognized Indian
[[Page 12395]]
tribes, with no objection of any of those tribes, and upon receiving a
recommendation from the Secretary. Such Indian groups that are not
federally-recognized would be identified through consultation with all
relevant federally-recognized Indian tribes. The Secretary considers
that these provisions adequately respect and protect the sovereignty
and rights of federally-recognized tribes.
Comment 117: Seven commenters were concerned that any disposition
to Indian groups that are not federally-recognized was voluntary and
that the proposed rule would not force a museum or Federal agency to
transfer control of culturally unidentifiable human remains, with or
without associated funerary objects, to an Indian group that is not
federally-recognized to which the cultural items are clearly culturally
connected.
Our Response: In the two sections of the Act that impose mandatory
priorities for control or disposition of human remains (Sections 3 and
7), Congress limited the recipients to federally-recognized Indian
tribes (in addition to lineal descendants and Native Hawaiian
organizations) in recognition of the government-to-government
relationship between such tribes and the United States. In expanding
the universe of possible recipients of culturally unidentifiable human
remains, with or without associated funerary objects, the Secretary
followed the lead of Congress both in assuring that such cultural items
went to the Indian group that had the closest cultural connection to
the items, even if that group is not federally-recognized, and in
maintaining the priority of the government-to-government relationship,
by not making such a disposition mandatory to an Indian group that is
not federally-recognized.
Comment 118: Eleven commenters were concerned that the provision in
Sec. 10.11(c)(3) for voluntary disposition of culturally
unidentifiable human remains, with or without associated funerary
objects, to an Indian group that is not federally-recognized would put
a museum or Federal agency in the position of determining whether a
particular entity is a ``valid'' Indian group that is not federally-
recognized, which the commenters asserted that a Federal agency or
museum lacks the authority to make. Some of the commenters requested
that the Secretary define ``an Indian group that is not federally-
recognized.''
Our Response: Section 10.11(c)(3) has been renumbered as Sec.
10.11(c)(2). The proposed and final rules do not require a museum or
Federal agency to make such a determination. Rather, during
consultation, the museum or Federal agency supplies relevant federally-
recognized Indian tribes and Native Hawaiian organizations with ``a
list of any Indian groups that are not federally-recognized that are
known to have a relationship of shared group identity with the
particular human remains and associated funerary objects'' (43 CFR
10.11(b)(3)(ii) (emphasis added), i.e., those groups that would be
culturally affiliated with the human remains and associated funerary
objects if the group was recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians. Then, the museum or Federal agency requests
from the federally-recognized Indian tribe or Native Hawaiian
organization ``the names and addresses of other * * * Indian groups
that are not federally-recognized that should be included in the
consultations.'' (43 CFR 10.11(b)(4)(iv)). Thus, the museum or Federal
agency must only identify on its own any Indian groups that are not
federally-recognized that the museum or Federal agency knows have a
relationship of shared group identity with the culturally
unidentifiable human remains and associated funerary objects. The
museum or Federal agency can rely on the relevant federally-recognized
Indian tribe or Native Hawaiian organization for identification of any
other relevant groups. A definition of ``Indian group that is not
federally-recognized'' is not, therefore, needed.
Comment 119: Two commenters suggested that Indian groups that are
not federally-recognized should be required to submit a claim for
culturally unidentifiable human remains, with or without associated
funerary objects, through, or in association with, a federally-
recognized tribe.
Our Response: To ensure that the rights of federally-recognized
Indian tribes are protected, a museum or Federal agency may only
transfer control of culturally unidentifiable human remains, with or
without associated funerary objects, to an Indian group that is not
federally-recognized after full consultation with relevant federally-
recognized Indian tribes, with no objection from any of those Indian
tribes following consultation, and upon receiving a recommendation from
the Secretary. Such Indian groups that are not federally-recognized
would be identified through consultation with all relevant federally-
recognized Indian tribes. The Secretary considers that these provisions
adequately respect and protect the sovereignty and rights of federally-
recognized tribes. The commenters' suggestion might work in some areas
of the country, but would be less effective in other areas, for
example, California and parts of the eastern United States where the
number of Indian groups that are not federally-recognized far exceeds
the number of federally-recognized Indian tribes.
Comment 120: One commenter was concerned that the consultation
with, and possible transfer of control to, Indian groups that are not
federally-recognized would be used by those groups as leverage for
Federal recognition. Another commenter considers requiring each museum
and Federal agency to prepare and distribute a list of Indian groups
that are not federally-recognized inconsistent with the Federal
acknowledgement process.
Our Response: Congress specifically stated in the Act that it
``reflects the unique relationship between the Federal Government and
Indian tribes and Native Hawaiian organizations and should not be
construed to establish a precedent with respect to any other
individual, organization or foreign government,'' (25 U.S.C. 3010),
which would include an Indian group that is not federally-recognized.
The preamble to the proposed rule clearly stated, and this preamble
again emphasizes, that ``the Secretary's recommendation regarding the
disposition of culturally unidentifiable human remains or associated
funerary objects to an Indian group that is not federally-recognized
does not indicate Federal recognition of the group's status as an
Indian tribe or the existence of a government-to-government
relationship'' (72 FR 58586). Finally, the Federal acknowledgement
process addressed in 25 CFR part 83 is detailed and rigorous, and it is
highly unlikely, especially given the disclaimers from both Congress
and the Secretary, that consultation with, or possible transfer of
control to, an Indian group that is not federally recognized would
satisfy any of the criteria required in that process.
Comment 121: One commenter was concerned that transfer of control
of culturally unidentifiable human remains, with or without associated
funerary objects, to unaffiliated Indian tribes or to Indian groups
that are not federally-recognized would preclude future transfer of
human remains to affiliated tribes and thereby cause injury to museums
and Federal agencies.
Our Response: In section 7(f) of the Act (25 U.S.C. 3005), Congress
specifically provided in that ``[a]ny museum which repatriates any item
in good faith pursuant to this chapter shall
[[Page 12396]]
not be liable for claims by an aggrieved party or for claims of breach
of fiduciary duty, public trust, or violations of state law that are
inconsistent with the provisions of this chapter.'' To ensure that the
rights of federally-recognized Indian tribes are protected, a museum or
Federal agency may only transfer control of culturally unidentifiable
human remains, with or without associated funerary objects, to an
Indian group that is not federally-recognized after full consultation
with relevant federally-recognized Indian tribes, with no objection of
any of those tribes, and upon receiving a recommendation from the
Secretary. Such Indian groups that are not federally-recognized would
be identified through consultation with all relevant federally-
recognized Indian tribes. The Secretary considers that these provisions
adequately respect and protect the sovereignty and rights of federally-
recognized tribes.
Comment 122: One commenter suggested that Indian groups that are
not federally-recognized, Indian regional organizations, and Indian
national organizations should be able to make a claim for culturally
unidentifiable human remains, with or without associated funerary
objects, when no federally-recognized Indian tribe does so.
Our Response: In the two sections of NAGPRA that impose mandatory
priorities for control or disposition of human remains (Sections 3 and
7), Congress intentionally limited the recipients to federally-
recognized Indian tribes (in addition to lineal descendants and Native
Hawaiian organizations) in recognition of the government-to-government
relationship between such tribes and the United States. In expanding
the universe of possible recipients of culturally unidentifiable human
remains, with or without associated funerary objects, the Secretary
followed the lead of Congress in making sure that such cultural items
went to the Indian group that had the closest cultural connection to
the items, even if that group is not federally-recognized. In
recognition of the importance of that cultural connection, and of
tribal sovereignty, the Secretary has not expanded the definition or
the scope of the parties that are eligible to make claims to include
regional and national Indian organizations. The ultimate disposition of
culturally unidentifiable human remains, with or without associated
funerary objects, control of which is not transferred under these
regulations, is outside the scope of these regulations and reserved for
Sec. 10.15(b).
Comment 123: Twelve commenters generally supported the inclusion in
the proposed rule of the disposition of culturally unidentifiable human
remains, with or without associated funerary objects, to Indian groups
that are not federally-recognized. Thirteen commenters generally
opposed the proposal to allow for disposition of culturally
unidentifiable human remains, with or without associated funerary
objects, to Indian groups that are not federally-recognized.
Our Response: As noted in the Review Committee's 2000
Recommendations, and reflected in the preamble of the proposed rule,
one of the categories of culturally unidentifiable human remains is
those remains ``for which cultural affiliation could be determined
except that the appropriate Indian organization is not federally-
recognized as an Indian tribe'' (65 FR 36462, 36463 (2000)). In
attempting to find a solution for the disposition of this category of
human remains, the Secretary considered the overall intent of Congress
in section 7 of the Act (25 U.S.C. 3005) to return control of Native
American human remains in the possession of museums and Federal
agencies to persons or entities with the closest cultural connection to
those remains. While a mandate for return of control to Indian groups
that are not federally-recognized would be contrary to the terms of
NAGPRA and to the government-to-government relationship between the
United States and federally-recognized Indian tribes, nothing in the
Act prohibits the voluntary transfer of human remains, with or without
associated funerary objects, to ``culturally affiliated'' Indian groups
that are not federally-recognized, with appropriate safeguards for the
rights of federally-recognized Indian tribes.
Comment 124: Seven commenters were concerned that disposition of
culturally unidentifiable human remains, with or without associated
funerary objects, to Indian groups that are not federally-recognized
would be voluntary and recommended that any such disposition should be
(1) addressed through regional tribal consultation; and (2) brought
before the Review Committee.
Our Response: To ensure that the rights of federally-recognized
Indian tribes are protected, a museum or Federal agency may only
transfer control of culturally unidentifiable human remains, with or
without associated funerary objects, to an Indian group that is not
federally-recognized after full consultation with relevant federally-
recognized Indian tribes, with no objection from any of those tribes,
and upon receiving a recommendation from the Secretary. Although, in
respect of tribal sovereignty and the government-to-government
relationship, the Secretary cannot mandate that museums and Federal
agencies consult only on a regional basis, tribes may make arrangements
for such consultations. In the past, the Secretary has referred
requests for the disposition of culturally unidentifiable human remains
to the Review Committee, under section 8(c)(8) of the Act (25 U.S.C.
3006(c)(8)) (``performing such other related functions as the Secretary
may assign to the committee'') and requested the Review Committee's
advice before making recommendations on the disposition request. In
formulating his or her recommendation concerning a disposition to an
Indian group that is not federally-recognized, the Secretary will
decide, on a case-by-case basis, whether the advice of the Review
Committee would be useful, and, if so, will seek that advice.
Comment 125: Three commenters objected to the proposed provision in
Sec. 10.11(c)(3)(ii) that provides authority for voluntary reinterment
under state law of culturally unidentifiable human remains, with or
without associated funerary objects, stating that such reburial by non-
tribal people would be considered inappropriate by tribal leaders and
members.
Our Response: Section 10.11(c)(3)(ii) has been renumbered as Sec.
10.11(c)(ii)(B). The Secretary notes that any such reinterment would
only occur after full consultation with relevant federally-recognized
Indian tribes, with no objection from any of those tribes, and upon
receiving a recommendation from the Secretary under Sec. 10.11(c)(3).
Comment 126: One commenter suggested that the final rule should
include a disposition process that involves consultation with regional
consortia and appropriate state agencies, citing the California law
providing for repatriation to federally-recognized Indian tribes and
Indian groups that are not federally-recognized (Health and Safety Code
8010, et seq.). Another commenter encouraged museums and Federal
agencies to work with state officials since they are the most
responsive to local needs and issues.
Our Response: Although, in respect of tribal sovereignty and the
government-to-government relationship, the Secretary cannot mandate
that museums and Federal agencies consult on a regional basis, tribes
may make arrangements for such consultations. California, Iowa, New
Mexico, and several other states have put in place or are considering
state processes similar
[[Page 12397]]
to NAGPRA. Federal agencies and museums are encouraged to consult with
their appropriate state agencies, especially if they propose to
voluntarily transfer control to an Indian group that is not federally-
recognized under Sec. 10.11(c)(2)(ii)(A) or reinter culturally
unidentifiable human remains, with or without associated funerary
objects, pursuant to state law under Sec. 10.11(c)(2)(ii)(B).
Comment 127: One commenter stated that, if culturally
unidentifiable human remains, with or without associated funerary
objects, are not claimed, the remains should continue to be in the care
of the museum or Federal agency, without precluding future
repatriation.
Our Response: In such a situation, the museum or Federal agency
may, under the final rule, transfer control of the remains, with or
without the funerary objects, to an Indian group that is not federally-
recognized, reinter them under state law, or enter into an agreement
with a federally-recognized Indian tribe for other disposition. The
ultimate disposition of culturally unidentifiable human remains, with
or without associated funerary objects, control of which is not
transferred under these regulations, is outside the scope of these
regulations and reserved for Section 10.15(b).
Comment 128: One commenter recommended clarification that once all
efforts to transfer control to an Indian tribe, Native Hawaiian
organization, or an Indian group that is not federally-recognized have
been exhausted, the museum or Federal agency should reinter culturally
unidentifiable human remains at their place of discovery.
Our Response: Under Sec. 10.11(c)(2)(ii)(B), museums and Federal
agencies may reinter culturally unidentifiable human remains upon
receiving a recommendation from the Secretary or authorized
representative.
Section 10.11(c)(4) Secretary's Recommendation
Section 10.11(c)(4) (renumbered as Sec. 10.11(c)(3)) stipulated
that the Secretary may make a recommendation under Sec. 10.11(c)(3)
(renumbered as Sec. 10.11(c)(2)) only with the written consent of all
Indian tribes and Native Hawaiian organizations stipulated in Sec.
10.11(c)(1).
Comment 129: Three commenters supported the Sec. 10.11(c)(4)
language requiring the written consent of all Indian tribes and Native
Hawaiian organizations stipulated in Sec. Sec. 10.11(c)(1) and (c)(2)
before the Secretary can make a recommendation under Sec. 10.11(c)(3).
Seven commenters stated that Sec. 10.11(c)(4) of the proposed rule
would create an unfair burden on both federally-recognized Indian
tribes that are not interested in a disposition and Indian groups that
are not federally-recognized that may lack the resources to meet the
requirement of obtaining the consent of all relevant federally-
recognized Indian tribes before a museum or Federal agency may transfer
control of culturally unidentifiable human remains to a an Indian group
that is not federally-recognized. Some of the commenters suggest that
the final rule require that the museum or Federal agency make a good
faith effort to consult with all of the relevant federally-recognized
tribes, and, if no federally-recognized tribe has objected, then the
disposition to the ``culturally affiliated'' Indian group that is not
federally-recognized should be permitted to go forward.
Our Response: The Secretary agrees with these commenters, and has
revised the final rule to incorporate their suggestions. Sections
10.11(c)(2), (c)(3), and (c)(4) have been renumbered as Sec.
10.11(c)(6), (c)(2), and (c)(3) respectively.
Comment 130: Four commenters stated that Sec. 10.11(c)(4) of the
proposed rule unduly restricts the flexibility of museums and Federal
agencies by requiring that they receive a recommendation from the
Secretary before transferring control of culturally unidentifiable
human remains, with or without associated funerary objects, to an
Indian group that is not federally-recognized or reinterment of the
remains under State law.
Our Response: Congress enacted NAGPRA in furtherance of the
government-to-government relationship with federally-recognized Indian
tribes. Also in furtherance of that relationship, the Secretary has the
obligation to ensure that the rights of those tribes under the statute
and under these regulations are fully supported. Therefore, in the case
of a proposed disposition to an Indian group that is not federally-
recognized or a proposed reinterment under State law, the
recommendation of the Secretary is needed to make sure that the museum
or Federal agency has consulted with the relevant federally-recognized
Indian tribes and none of the tribes have objected. This is also
consistent with the current practice that the Review Committee and the
Secretary have developed for disposition (even to federally-recognized
tribes) of culturally unidentifiable human remains.
Comment 131: One commenter recommended that the Secretary only
authorize reburial pursuant to State law after the museum or Federal
agency has attempted in good faith to transfer control of the
culturally unidentifiable human remains to an affiliated Indian group
that is not federally-recognized.
Our Response: A museum or Federal agency may voluntarily transfer
control of culturally unidentifiable human remains to an Indian group
that is not federally-recognized or reinter culturally unidentifiable
human remains according to state or other law only after receiving a
recommendation from the Secretary or authorized representative. The
Secretary will consider evidence related to both options prior to
making such a recommendation.
Comment 132: One commenter requested that the Secretary offer a
process for seeking the recommendations of the Review Committee
concerning proposed dispositions.
Our Response: Under section 8(c) of the Act (25 U.S.C. 3006(c)),
the Review Committee is charged with reviewing and making findings
concerning the return of cultural items upon the request of any party
and with facilitating the resolution of any disputes among Indian
tribes, Native Hawaiian organizations, or lineal descendants and
Federal agencies or museums relating to the return of such items
including convening the parties to the dispute if deemed desirable. The
process for bringing requests and disputes before the Review Committee
is found on the National NAGPRA Web site at http://www.nps.gov/history/
nagpra/REVIEW/Procedures.htm. In addition, Sec. 10.11(e) specifically
identifies the Review Committee as a possible forum to assist in the
informal resolution of disputes regarding the disposition of culturally
unidentifiable human remains and associated funerary objects.
Section 10.11(c)(5) Voluntary Transfer of Associated Funerary Objects
Section 10.11(c)(5), which has been renumbered as Sec.
10.11(c)(4), clarifies that a museum or Federal agency may voluntary
transfer control of funerary objects that are associated with
culturally unidentifiable human remains.
Comment 133: Twenty-two commenters stated that the disposition of
culturally unidentifiable associated funerary objects should be
mandatory. Three commenters indicated that sufficient legal authority
and congressional intent exist to require the mandatory disposition of
culturally unidentifiable associated funerary objects. Three commenters
stated that disposition of culturally unidentifiable associated
funerary objects should be
[[Page 12398]]
mandatory because different treatment of such objects is contrary to
American common law and Indian funeral traditions. One commenter stated
that disposition of such objects should be mandatory because some
institutions will not voluntarily transfer objects. One commenter
supported the disposition of funerary objects associated with
culturally unidentifiable human remains on a voluntary basis. Three
commenters recommended deleting Sec. 10.11(c)(5) and amending Sec.
10.11(c)(1) to read, ``A museum or Federal agency that is unable to
prove that it has right of possession, as defined at 10.11(a)(2) [sic],
to culturally unidentifiable human remains and associated funerary
objects must offer to transfer control of the human remains and
associated funerary objects to Indian tribes and Native Hawaiian
organizations in the following priority order * * *''.
Our Response: Consideration of all Native American human remains
and associated funerary objects, including those that are culturally
unidentifiable, is within the scope of the statute. In section 13 of
the Act (25 U.S.C. 3011), Congress delegated authority to the Secretary
of the Interior generally to promulgate regulations carrying out the
Act and carrying the force of law. In section 8(c)(5) of the Act (25
U.S.C. 3006(c)(5)), Congress assigned the role of recommending specific
actions for developing a process for disposition of culturally
unidentifiable human remains to the Review Committee. Congress did not
indicate the same intent regarding culturally unidentifiable associated
funerary objects. Mandatory disposition for this category of items
raises right of possession and takings issues that are not clearly
resolved in the statute or the legislative history. American common law
generally recognizes that human remains cannot be owned. The common law
regarding associated funerary objects that are not culturally
identifiable is not well established. According to the committee report
accompanying the Senate NAGPRA bill, the Senate Committee on Indian
Affairs intended that the legal framework regarding right of possession
would operate in a manner consistent with general property law (S.
Report 101-473 at 8). Considering the lack of precedent in the common
law and Congress' direction to develop a process only with respect to
culturally unidentifiable human remains, the Secretary does not
consider it appropriate to make the provision to transfer culturally
unidentifiable associated funerary objects mandatory.
Comment 134: Seven commenters recommended deleting Sec.
10.11(c)(5) on the grounds that the Secretary does not have authority
to address funerary objects associated with culturally unidentifiable
human remains.
Our Response: Section 10.11(c)(5) has been renumbered as Sec.
10.11(c)(4). In section 13 of the Act (25 U.S.C. 3011), Congress
delegated authority to the Secretary of the Interior generally to
promulgate regulations carrying out the Act and carrying the force of
law. Consideration of all Native American human remains and associated
funerary objects, including those that are culturally unidentifiable,
is within the scope of the statute. section 5 of the Act (25 U.S.C.
3003) requires Federal agencies and museums that have possession or
control over holdings or collections of Native American human remains
and associated funerary objects to compile an inventory of such items
and, to the extent possible based on information possessed by such
museum or Federal agency, identify the geographical and cultural
affiliation of such item. Regulations promulgated in 1995 initially
addressed culturally unidentifiable associated funerary objects to
which there was no public objection. 43 CFR 10.9(e)(6) required museums
and Federal agencies to provide notice and a copy of the list of
culturally unidentifiable human remains and associated funerary objects
to the National Park Service which in turn made this information
available to the Review Committee. Congress anticipated that not all
items would be geographically or culturally affiliated and, in section
8(c)(5) of the Act (25 U.S.C. 3006(c)(5)), assigned the role of
recommending specific actions for developing a process for disposition
of culturally unidentifiable human remains to the Review Committee.
Congress intended that the Review Committee be an advisory committee
which makes recommendations to the Secretary (S. Rep. No. 101-473 at
13). In section 8(c)(7) of the Act (25 U.S.C. 3006(c)(7)), Congress
also authorized the Review Committee to consult with the Secretary in
the development of regulations to carry out the Act. As part of its
recommendations under section 8(c)(5) of the Act (25 U.S.C.
3006(c)(5)), the Review Committee addressed funerary objects associated
with culturally unidentifiable remains and recommended their transfer
along with the associated remains. This regulation, promulgated in the
exercise of Congress' delegated authority, implements many of the
Review Committee's recommendations made pursuant to section 8(c)(5) and
8(c)(7) and effectuates the goals of the Act. Even if Congress may not
have expressly delegated authority or responsibility to implement a
particular provision or fill a particular gap, it can still be apparent
from an agency's generally conferred authority and other statutory
circumstances that Congress would expect the agency to address
ambiguities in the statute or fill a gap in the enacted law, even one
about which Congress may not have actually had an intent as to a
particular result (U.S. v. Mead, 533 U.S. 218 (2001)). In addition, 25
U.S.C. 9 authorizes the Secretary to make ``such regulations as he may
think fit for carrying into effect the various provisions of any act
relating to Indian affairs.'' Because NAGPRA is Indian law (Yankton
Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp 2d
1047, 1056 (D.S.D. 2000)), the Secretary may promulgate any regulations
needed to implement it under the broad authority to supervise and
manage Indian affairs given by Congress (United States v. Eberhardt,
789 F.2d 1354, 1360 (9th Cir. 1986)).
Comment 135: Two commenters objected to the ``required''
disposition of funerary objects associated with culturally
unidentifiable human remains.
Our Response: The subsection addressing this category of objects,
Sec. 10.11(c)(4), does not require disposition. The proposed text
states, ``A museum or Federal agency may also transfer control of
funerary objects that are associated with culturally unidentifiable
human remains. The Secretary recommends that museums and Federal
agencies engage in such transfers whenever Federal or State law would
not otherwise preclude them'' (emphasis added).
Comment 136: One commenter requested clarification on whether it is
discretionary for museums and Federal agencies to make disposition of
culturally unidentifiable associated funerary objects.
Our Response: Subsection 10.11(c)(4) does not mandate the transfer
of culturally unidentifiable associated funerary objects. This
provision is voluntary and any decision to transfer such objects is
based on the discretion of the museum or Federal agency.
Section 10.11(c) Other Issues
Comment 137: Two commenters suggested the establishment of national
or regional repositories, controlled by Indian tribes, where culturally
unidentifiable human remains that are unclaimed may be voluntarily
reinterred.
[[Page 12399]]
Our Response: The Secretary cannot mandate that Indian tribes enter
into such arrangements. Indian tribes may make arrangements for such
repositories on their own.
Comment 138: Two commenters recommended that the statutory
exemptions to repatriation be explicitly identified in this section.
Our Response: Section 10.10(c) of these regulations stipulates four
exceptions to repatriation, including circumstances where (1) Human
remains and funerary objects are indispensible to the completion of a
specific scientific study, the outcome of which is of major benefit to
the United States; (2) there are multiple requests for repatriation of
the human remains and associated funerary objects and the museum or
Federal agency cannot determine by a preponderance of the evidence
which requesting party is the most appropriate claimant; (3) a court of
competent jurisdiction has determined that the repatriation would
result in a taking of property without just compensation within the
meaning of the Fifth Amendment of the United States Constitution; and
(4) the repatriation is not consistent with other repatriation
limitations identified in Sec. 10.15. The drafters intend that each of
these exemptions also apply to claims made for the disposition of
culturally unidentifiable human remains, and additional text has been
included at Sec. 10.11(c)(5) to that effect.
Comment 139: Three commenters recommended addressing the recourse
available to museums and Federal agencies if they cannot transfer
control of culturally unidentifiable human remains.
Our Response: Section 10.15(b) of these regulations has been
reserved to address situations where no claim has been made.
Section 10.11(d) Notification
Paragraph (d) establishes procedures to ensure that Indian tribes,
Native Hawaiian organizations, Indian groups that are not federally-
recognized, museums, and Federal agencies are notified of intended
dispositions of culturally unidentifiable human remains and associated
funerary objects.
Comment 140: One commenter recommended adding a provision to
document the final disposition of culturally unidentifiable human
remains.
Our Response: Section 10.10(f) directs museums and Federal agencies
to adopt internal procedures adequate to permanently document the
content and recipients of all repatriations.
Comment 141: One commenter recommended clarifying that the notice
requirement for culturally unidentifiable human remains would commence
after consultation (43 CFR 10.11(b)) and determination (43 CFR
10.11(c)).
Our Response: Section 10.11(d) stipulates that disposition of
culturally unidentifiable human remains pursuant to Sec. 10.11(c) may
not occur until at least thirty days after publication of a notice of
inventory completion. Section 10.11(b)(1) stipulates that the museum or
Federal agency official must initiate consultation within ninety days
of receipt of a request for disposition or, absent such a request,
before any offer to transfer control of culturally unidentifiable human
remains.
Comment 142: One commenter recommended lengthening the notification
time period from 30 to 60 or 90 days to allow Indian tribes and Native
Hawaiian organizations to respond before disposition occurs.
Our Response: The thirty day (minimum) period following publication
of a notice of inventory completion during which other lineal
descendants, Indian tribes, or Native Hawaiian organizations may claim
human remains and associated funerary objects has been in effect since
1996 (43 CFR 10.10(b)(2)). No Indian tribe or Native Hawaiian
organization recommended this change.
Comment 143: One commenter requested clarification of how the
Review Committee database of culturally unidentifiable human remains
and associated funerary objects will be made ``accessible'' to Indian
tribes, Native Hawaiian organizations, Indian groups that are not
federally-recognized, museums, and Federal agencies.
Our Response: The Culturally Unidentifiable Native American
Inventories Database is available at: http://64.241.25.6/CUI/index.cfm.
Comment 144: Five commenters recommended revising the Review
Committee's inventory as follows: (1) Create and include an online
tutorial on how to use the database; (2) include fields in the main
table to discern whether the repository is reporting on a museum or
Federal agency collection; (3) update the existing contact information,
and list contact information for each Federal Agency NAGPRA Contact;
(4) add search functions to the database to search/sort by keyword e.g.
``Hohokam''; (5) add search functions to the database so that it is
possible to search/sort by county; (6) add search functions to the
database so that it is possible to search/sort by date; (7) separate
the collection history, age/culture, and associated funerary object
fields for clarity; (8) link the database to the notices of inventory
completion and notices of intent to repatriate. Two commenters
recommended that the original paperwork supporting a published notice
of inventory completion be posted on the Web site as part of the Review
Committee's inventory.
Our Response: The National NAGPRA Program will consider
implementing these recommendations.
Section 10.11(e) Disputes
Section 10.11(e) clarifies that disputes regarding the disposition
of culturally unidentifiable human remains may be resolved through
informal negotiations, with the assistance of the Review Committee, or
before a United States District Court.
Comment 145: One commenter asked for clarification of what is meant
by ``informal negotiations.''
Our Response: While the Review Committee is specifically charged
with facilitating the resolution of disputes, the Committee also stated
that disputes among Indian tribes, Native Hawaiian organizations, or
lineal descendants and Federal agencies or museums should be resolved
at the lowest organizational level and at the earliest time possible
and strongly encourages the use of alternative methods of dispute
resolution (Native American Graves Protection and Repatriation Review
Committee Dispute Procedures, September 2006).
Comment 146: One commenter recommended that the Review Committee
only attempt to facilitate disputes regarding the disposition of
culturally unidentifiable human remains when requested by all involved
parties.
Our Response: Under the Review Committee's Dispute Procedures, the
decision to involve the Review Committee in a dispute is made only
after all involved parties have been contacted. Disputing parties are
under no obligation to participate in Review Committee meetings. Review
Committee recommendations are purely advisory.
Comment 147: One commenter recommended that the Review Committee's
existing policies and procedures be formalized into this final
regulation.
Our Response: The Review Committee's Dispute Procedures are posted
at: http://www.nps.gov/history/nagpra/REVIEW/Dispute_
procedures.0609.pdf. Formalization of these procedures as regulations
would likely limit the ability
[[Page 12400]]
of the Review Committee to generate unique and innovative resolutions
on a case-by-case basis.
Comment 148: One commenter asked for clarification as to whether
the proposal would give binding legal force to Review Committee
advisory opinions. One commenter asked for clarification as to whether
the proposal would allow lawsuits by any aggrieved person against
museums ad infinitum.
Our Response: Review Committee findings and recommendations are
purely advisory in nature. However, any records and findings made by
the Review Committee relating to the identity or cultural affiliation
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony may be admissible in actions brought before a
Federal court (25 U.S.C. 3006(d)). While neither Congress nor the
Secretary can stop anyone from filing a lawsuit, in section 7(f) of the
Act (25 U.S.C. 3005), Congress specifically provided in that ``[a]ny
museum which repatriates any item in good faith pursuant to this
chapter shall not be liable for claims by an aggrieved party or for
claims of breach of fiduciary duty, public trust, or violations of
state law that are inconsistent with the provisions of this chapter.''
Section 10.12(b) Definition of ``Failure to Comply''
Revisions to this section clarify the definition of ``failure to
comply'' in the context of the possible assessment of civil penalties.
Comment 149: Fourteen commenters generally supported the proposed
text at Sec. 10.12(b)(1)(ix) to allow for the assessment of civil
penalties for failure of a museum to offer to transfer control of
culturally unidentifiable human remains for which it cannot prove right
of possession under Sec. 10.11. Two commenters generally opposed the
proposed text. One commenter urged that no civil penalty should be
imposed on a museum for failing to offer to transfer human remains when
no group has requested a transfer.
Our Response: The drafters consider the recommendation concerning
the inadvisability of civil penalties when no Indian tribe or Native
Hawaiian organization has requested a transfer to be reasonable
because, absent a claim, the regulations do not specify when a museum
must offer to transfer control of culturally unidentifiable human
remains to Indian tribe and Native Hawaiian organizations. Section
10.12(b)(ix) has been revised to read ``Upon receipt of a claim
consistent with Sec. 10.11(c)(1), refuses to offer to transfer control
of culturally unidentifiable human remains for which it cannot prove
right of possession.''
Comment 150: Four commenters requested clarification in Sec.
10.12(b)(1)(ix) that the burden of proof for right of possession of
culturally unidentifiable human remains rests with the museum or
Federal agency.
Our Response: The burden of proof is on the museum or Federal
agency, and that, as the proposed and final rule states, if a museum or
Federal agency ``is unable to prove that it has right of possession'',
it must offer to transfer the remains, with or without associated
funerary objects (43 CFR 10.11(c)(1)).
Comment 151: One commenter recommended revising Sec. 10.12 to
mandate that Federal agencies comply with the Act and its regulations.
Our Response: Section 9 of the Act (25 U.S.C. 3007) authorizes the
Secretary to assess civil penalties only against museums.
Comment 152: Two commenters recommended adding another type of
failure to comply at Sec. 10.12(b) for museums that refuse to provide
additional available documentation upon the request of an Indian tribe
or Native Hawaiian organization that received notice or should have
received notice and an inventory under Sec. 10.9(e)(1) and (e)(2).
Our Response: Section 5(b)(2) of the Act (25 U.S.C. 3003(b)(2)),
requires that a museum or Federal agency supply additional available
documentation upon request by an Indian tribe or Native Hawaiian
organization which receives or should have received notice. Refusing to
provide the specified information to one of the Indian tribes
identified in Sec. 10.11(b)(2) would constitute a failure to comply
under Sec. 10.12(b)(vii).
Changes to the Proposed Rule
Based on the preceding comments and responses, the drafters have
made the following changes to the proposed rule language:
Section 10.2(e)(2). We have added text to clarify that
determinations of cultural affiliation are made ``through the inventory
process.'' Section 10.9(e)(2)(v). We revised the text to clarify that
the notice of inventory completion must describe those human remains,
with or without associated funerary objects, that are culturally
unidentifiable but that ``are subject to disposition under Sec.
10.11.''
Section 10.9(e)(5)(ii). We added text to provide examples
of the type of Federal legal authority that exempt disclosure of
Federal documentation to the public.
Section 10.9(e)(6). We deleted text to make it clear that
while disposition of funerary objects associated with culturally
unidentifiable human remains is voluntary, museums and Federal agencies
must provide notice and a list of such objects to the Manager, National
NAGPRA Program.
Section 10.11(a). We revised the text to clarify that this
section applies to human remains previously determined to be Native
American pursuant to Sec. 10.9, but for which no lineal descendant or
culturally affiliated Indian tribe or Native Hawaiian organization has
been identified.
Section 10.11(b)(2)(iii). We deleted this section that
required consultation with all Indian tribes or Native Hawaiian
organizations with a cultural relationship to the region from which
culturally identifiable human remains were removed or, in the case of
human remains lacking geographic affiliation, to the region in which
the museum or Federal agency repository is located. The diversity of
opinion regarding the meaning of ``cultural relationship'' convinced
the drafters to remove the term as a required criterion for
consultation.
Section 10.11(b)(6). We added text to this paragraph to
clarify that the notification and repatriation provisions of Sec. Sec.
10.9(e) and 10.10(b) apply if human remains previously determined to be
culturally unidentifiable are actually related to a lineal descendant.
Section 10.11(c)(1)(iii). We deleted this section that
required a museum or Federal agency that is unable to prove it has
right of possession to culturally unidentifiable human remains to offer
to transfer control of such remains to the Indian tribe or Native
Hawaiian organization with a cultural relationship to the region from
which culturally identifiable human remains were removed or, in the
case of human remains lacking geographic affiliation, to the region in
which the museum or Federal agency repository is located. The diversity
of opinion regarding the meaning of ``cultural relationship'' convinced
the drafters to remove the term as a required criterion for disposition
of culturally unidentifiable human remains.
Section 10.11(c)(1)(iv). We deleted this section that
required a museum or Federal agency that is unable to prove it has
right of possession to culturally unidentifiable human remains to offer
to transfer control of such remains to the Indian tribe or Native
Hawaiian organization with a stronger cultural relationship with the
human remains than an entity specified in Sec. 10.11(c)(1)(ii) or
(c)(1)(iii). The
[[Page 12401]]
diversity of opinion regarding the meaning of ``cultural relationship''
convinced the drafters to remove the term as a required criterion for
disposition of culturally unidentifiable human remains.
Section 10.11(c)(2). We moved and renumbered this
paragraph as Sec. 10.11(c)(6).
Section 10.11(c)(3)(i) (renumbered as Sec.
10.11(c)(2)(i)). We added text to allow a museum or Federal agency to
voluntarily transfer control of culturally unidentifiable human remains
to Indian tribes or Native Hawaiian organizations other than those
specified in Sec. 10.11(c)(1). The change is consistent with statutory
requirements that nothing in the Act shall be used to limit the
authority of any Federal agency or museum to return or repatriate
Native American human remains, funerary objects, sacred objects, or
objects of cultural patrimony to Indian tribes, Native Hawaiian
organizations, or individuals (25 U.S.C. 3009(1)(A)).
Section 10.11(c)(4) (renumbered as Sec. 10.11(c)(3)). We
revised this provision to remove the requirement that all relevant
Indian tribes and Native Hawaiian organizations must consent to a
proposed disposition to an Indian group that is not federally-
recognized or to a proposed reinterment under State law and to require
instead that the museum or Federal agency prove to the Secretary that
it has consulted with the relevant Indian tribes and Native Hawaiian
organizations and none of them has objected. This change was prompted
by comments on the proposed rule and the Secretary's effort to be
sensitive to concerns of Indian tribes that may be culturally
prohibited from discussing or possessing human remains.
Section 10.11(c)(5) (renumbered as Sec. 10.11(c)(4)).
Section 10.11(c)(5). We added this new section to clarify
that the exemptions to repatriation listed at Sec. 10.10(c) also apply
to dispositions of culturally unidentifiable human remains under Sec.
10.11(c)(1).
Section 10.12(b)(1)(ix). We added text to clarify that
upon receipt of a claim consistent with Sec. 10.11(c)(1), a museum
refuses to offer to transfer control of culturally unidentifiable human
remains for which it cannot prove right of possession, will be
considered to have failed to comply with the Act. Absent a claim, the
regulations do not specify when a museum must offer to transfer control
of culturally unidentifiable human remains to Indian tribes and Native
Hawaiian organizations.
Section 10.15(c). We inserted text previously proposed for
inclusion in Sec. 10.1(b)(3) into this paragraph to reiterate that the
final denial of a request of a lineal descendant, Indian tribe, or
Native Hawaiian organization for the repatriation or disposition of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony constitutes a final agency action under the Administrative
Procedure Act.
Compliance With Other Laws and Executive Orders
Regulatory Planning and Review (Executive Order 12866)
This document is a significant rule and has been reviewed by the
Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
(3) This rule does not materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs, or the rights or
obligations of their recipients.
(4) OMB has determined that this rule raises novel legal or policy
issues.
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The requirement to consult with Indian tribes and Native Hawaiian
organizations is minimal, as very few small entities have collections
of Native American human remains that would subject them to this rule.
Of those having Native American human remains, the collections are
small. Small entities can transfer those human remains to large museums
having NAGPRA obligations and they can benefit from the published
decisions of large museums. Thus, this rule does not constitute a
significant economic burden. This rule will require the disposition of
only those Native American human remains for which the controlling
entity cannot prove right of possession (25 U.S.C. 3005).
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule will not (1)
have an annual effect on the economy of $100 million or more; (2) cause
a major increase in costs or prices for consumers, individual
industries, Federal, State, local or tribal government agencies, or
geographic regions; or (3) have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments, or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
Takings (Executive Order 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. This rule will require the disposition of only those
Native American human remains for which the controlling museum or
Federal agency cannot prove right of possession [25 U.S.C. 3005(c)].
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
sufficiently significant federalism implications to warrant the
preparation of a Federalism Assessment. This final rule will not
substantially and directly affect the relationship between the Federal
and State governments. To the extent that State and local governments
have a role in NAGPRA activities, this final rule will not affect that
role. A Federalism Assessment is not required.
Civil Justice Reform (Executive Order 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
[[Page 12402]]
Paperwork Reduction Act
The Office of Management and Budget has approved the information
collection requirements associated with this rule under OMB Control No.
1024-0144.
The public reporting burden for the collection of information for
Sec. 10.11 is expected to average 20 hours per year, for those costs
within the scope of the Paperwork Reduction Act, as follows:
(1) Ten state and local museums producing notifications and
information requests to Indian tribes and Native Hawaiian organizations
at 30 minutes for each museum, a total of 5 hours;
(2) Four private museums producing notifications and information
requests to Indian tribes and Native Hawaiian organizations at 30
minutes for each museum, a total of 2 hours.
(3) Response by Indian tribes and Native Hawaiian organizations to
requests for information from museums, 16 responses (14 to non-Federal
museums and 2 to Federal museums) at 48 minutes per response for a
total of 13 hours.
The reporting burden includes time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collected information.
Comments regarding this burden estimate or any other aspects of this
collection of information, including suggestions for reducing the
burden, may be sent to the address in the ADDRESSES section and to:
Information Collection Officer, Attn: Docket No. 1024-0144, National
Park Service, Department of Interior Building, 1849 C Street NW., Room
3317, Washington, DC 20240.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment and can be categorically
excluded under 43 CFR 46.210(i), ``Policies, directives, regulations,
and guidelines that are of an administrative, financial, legal,
technical, or procedural nature and whose environmental effects are too
broad, speculative, or conjectural to lend themselves to meaningful
analysis and will later be subject to the NEPA process, either
collectively or case-by-case.'' We have also determined that the rule
does not involve any of the extraordinary circumstances listed in 43
CFR 46.215 that would require further analysis under the National
Environmental Policy Act. Any NEPA review required for a disposition of
culturally unidentifiable human remains by a Federal agency will be
conducted by that agency under its NEPA procedures.
Government-to-Government Relationship With Indian Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government to Government Relations with Native American Tribal
Governments'' [59 FR 22951], Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' [65 FR 218], and 512 DM
2, ``Departmental Responsibilities for Indian Trust Resources,'' this
rule has a potential effect on federally-recognized Indian tribes. The
proposed rule was developed in consultation with the Native American
Graves Protection and Repatriation Review Committee, which includes
members nominated by Indian tribes. The Review Committee consulted with
Indian tribes in the development of the Review Committee's
recommendations regarding the disposition of culturally unidentifiable
human remains that form the basis of this proposed rule. The Review
Committee, at the direction of the Secretary of the Interior, consulted
with tribal representatives regarding its recommendations on February
16-18, 1995, in Los Angeles, CA; June 9-11, 1996, in Billings, MT; June
25-27, 1998, in Portland, OR; and May 2-4, 2000, in Juneau, AK. Tribal
representatives were also consulted regarding draft text for these
regulations at Review Committee meetings on May 2-4, 2000, in Juneau,
AK; May 31-June 2, 2002, in Tulsa, OK; and November 8-9, 2002, in
Seattle, WA. Consultation between tribal representatives and the
Department also occurred during the public comment period for the
proposed rule. In addition to comments from tribes that we received
through members of the Review Committee and at Review Committee
meetings, we received comments from tribes on the proposed rule in
training sessions and in initial consultations on the draft rule that
we are preparing for 43 CFR 10.7. We will conduct ongoing consultation
with tribes on the implementation of this and other NAGPRA regulations
through semiannual Review Committee meetings, outreach and training
events approximately twenty times annually, and formal consultation
sessions on further amendments to the regulations.
Public Availability of Comments
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Drafting Information
The proposed rule was prepared in consultation with the Native
American Graves Protection and Repatriation Review Committee as
directed by section 8(c)(7) of the Act. The principal contributors to
this final rule are C. Timothy McKeown and Sherry Hutt of the National
NAGPRA Program, National Park Service; Carla Mattix and Stephen Simpson
of the Office of the Solicitor, U.S. Department of the Interior;
Jennifer Lee, Office of the Director, National Park Service and Philip
Selleck, Chief, Regulations and Special Park Uses, National Park
Service.
List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Hawaiian natives, Historic
preservation, Indians-claims, Indians-lands, Museums, Penalties, Public
lands, Reporting and recordkeeping requirements.
0
In consideration of the foregoing, 43 CFR part 10 is amended as
follows:
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
0
1. The authority for part 10 is revised to read as follows:
Authority: 25 U.S.C. 3001 et seq., 16 U.S.C. 470dd (2), 25
U.S.C. 9.
0
2. Amend Sec. 10.1 by revising the section heading and paragraph
(b)(3), and adding paragraph (c) to read as follows:
Sec. 10.1 Purpose, applicability, and information collection.
* * * * *
(b) * * *
(3) Throughout this part are decision points which determine how
this part applies in particular circumstances, e.g., a decision as to
whether a museum ``controls'' human remains and cultural objects within
the meaning of the regulations, or a decision as to whether an object
is a ``human remain,'' ``funerary object,'' ``sacred object,'' or
``object of cultural patrimony'' within the meaning of the regulations.
Any final determination making the Act or this part inapplicable is
subject to review under section 15 of the Act. With respect to Federal
agencies, the final denial of a request of a lineal descendant, Indian
tribe, or Native Hawaiian organization for the repatriation or
disposition of human
[[Page 12403]]
remains, funerary objects, sacred objects, or objects of cultural
patrimony brought under, and in compliance with, the Act and this part
constitutes a final agency action under the Administrative Procedure
Act (5 U.S.C. 704).
(c) The information collection requirements contained in this part
have been approved by the Office of Management and Budget under 44
U.S.C. 3501 et seq. and assigned control number 1024-0144. A Federal
agency may not conduct or sponsor, and you are not required to respond
to, a collection of information unless it displays a currently valid
OMB control number.
0
3. Amend Sec. 10.2 by revising paragraph (e) and adding paragraph
(g)(5) to read as follows:
Sec. 10.2 Definitions.
* * * * *
(e)(1) What is cultural affiliation? Cultural affiliation means
that there is a relationship of shared group identity that can be
reasonably traced historically or prehistorically between members of a
present-day Indian tribe or Native Hawaiian organization and an
identifiable earlier group. Cultural affiliation is established when
the preponderance of the evidence--based on geographical, kinship,
biological, archeological, anthropological, linguistic, folklore, oral
tradition, historical evidence, or other information or expert
opinion--reasonably leads to such a conclusion.
(2) What does culturally unidentifiable mean? Culturally
unidentifiable refers to human remains and associated funerary objects
in museum or Federal agency collections for which no lineal descendant
or culturally affiliated Indian tribe or Native Hawaiian organization
has been identified through the inventory process.
* * * * *
(g) * * *
(5) Disposition means the transfer of control over Native American
human remains, funerary objects, sacred objects, and objects of
cultural patrimony by a museum or Federal agency under this part. This
part establishes disposition procedures for several different
situations:
(i) Custody of human remains, funerary objects, sacred objects, and
objects of cultural patrimony excavated intentionally from, or
discovered inadvertently on, Federal or tribal lands after November 16,
1990, is established under Sec. 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 Sec. 10.10.
(iii) Disposition of culturally unidentifiable human remains, with
or without associated funerary objects, in museum or Federal agency
collections is established under Sec. 10.11.
0
4. Amend Sec. 10.9 by revising paragraphs (e)(2), (5), and (6) to read
as follows:
Sec. 10.9 Inventories.
* * * * *
(e) * * *
(2) The notice of inventory completion must:
(i) Summarize the contents of the inventory in sufficient detail so
as to enable the recipients to determine their interest in claiming the
inventoried items;
(ii) Identify each particular set of human remains or each
associated funerary object and the circumstances surrounding its
acquisition;
(iii) Describe the human remains or associated funerary objects
that are clearly culturally affiliated with an Indian tribe or Native
Hawaiian organization and identify the Indian tribe or Native Hawaiian
organization;
(iv) Describe the human remains or associated funerary objects that
are not clearly identifiable as culturally affiliated with an Indian
tribe or Native Hawaiian organization, but that are likely to be
culturally affiliated with a particular Indian tribe or Native Hawaiian
organization given the totality of circumstances surrounding
acquisition of the human remains or associated objects; and
(v) Describe those human remains, with or without associated
funerary objects, that are culturally unidentifiable but that are
subject to disposition under Sec. 10.11.
* * * * *
(5) Upon request by an Indian tribe or Native Hawaiian organization
that has received or should have received a notice and inventory under
paragraphs (e)(1) and (e)(2) of this section, a museum or Federal
agency must supply additional available documentation.
(i) For purposes of this paragraph, ``documentation'' means a
summary of existing museum or Federal agency records including
inventories or catalogues, relevant studies, or other pertinent data
for the limited purpose of determining the geographic origin, cultural
affiliation, and basic facts surrounding the acquisition and 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 Sec. 10.11.
* * * * *
0
5. Add Sec. 10.11 to read as follows:
Sec. 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 Sec. 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
[[Page 12404]]
(ii) If no request is received, before any offer to transfer
control of culturally unidentifiable human remains and associated
funerary objects.
(2) The museum or Federal agency official must initiate
consultation with officials and traditional religious leaders of all
Indian tribes and Native Hawaiian organizations:
(i) From whose tribal lands, at the time of the removal, the human
remains and associated funerary objects were removed; and
(ii) From whose aboriginal lands the human remains and associated
funerary objects were removed. Aboriginal occupation may be recognized
by a final judgment of the Indian Claims Commission or the United
States Court of Claims, or a treaty, Act of Congress, or Executive
Order.
(3) The museum or Federal agency official must provide the
following information in writing to all Indian tribes and Native
Hawaiian organizations with which the museum or Federal agency
consults:
(i) A list of all Indian tribes and Native Hawaiian organizations
that are being, or have been, consulted regarding the particular human
remains and associated funerary objects;
(ii) A list of any Indian groups that are not federally-recognized
and are known to have a relationship of shared group identity with the
particular human remains and associated funerary objects; and
(iii) An offer to provide a copy of the original inventory and
additional documentation regarding the particular human remains and
associated funerary objects.
(4) During consultation, museum and Federal agency officials must
request, as appropriate, the following information from Indian tribes
and Native Hawaiian organizations:
(i) The name and address of the Indian tribal official to act as
representative in consultations related to particular human remains and
associated funerary objects;
(ii) The names and appropriate methods to contact any traditional
religious leaders who should be consulted regarding the human remains
and associated funerary objects;
(iii) Temporal and geographic criteria that the museum or Federal
agency should use to identify groups of human remains and associated
funerary objects for consultation;
(iv) The names and addresses of other Indian tribes, Native
Hawaiian organizations, or Indian groups that are not federally-
recognized who should be included in the consultations; and
(v) A schedule and process for consultation.
(5) During consultation, the museum or Federal agency official
should seek to develop a proposed disposition for culturally
unidentifiable human remains and associated funerary objects that is
mutually agreeable to the parties specified in paragraph (b)(2) of this
section. The agreement must be consistent with this part.
(6) If consultation results in a determination that human remains
and associated funerary objects previously determined to be culturally
unidentifiable are actually related to a lineal descendant or
culturally affiliated with an Indian tribe or Native Hawaiian
organization, the notification and repatriation of the human remains
and associated funerary objects must be completed as required by Sec.
10.9(e) and Sec. 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 Sec.
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. The Secretary recommends that museums and Federal
agencies transfer control if Federal or State law does not preclude it.
(5) The exceptions listed at Sec. 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 Sec. 10.9.
(2) Within 30 days of publishing the notice of inventory
completion, the National NAGPRA Program manager must:
(i) Revise the Review Committee inventory of culturally
unidentifiable human remains and associated funerary objects to
indicate the notice's publication; and
(ii) Make the revised Review Committee inventory accessible to
Indian tribes, Native Hawaiian organizations, Indian groups that are
not federally-recognized, museums, and Federal agencies.
(e) Disputes. Any person who wishes to contest actions taken by
museums or Federal agencies regarding the disposition of culturally
unidentifiable human remains and associated funerary objects should do
so through informal negotiations to achieve a fair resolution. The
Review Committee may facilitate informal resolution of any disputes
that are not resolved by good faith negotiation under Sec. 10.17. In
addition, the United States District Courts have jurisdiction over any
action brought that alleges a violation of the Act.
0
6. Amend Sec. 10.12 by revising paragraphs (b)(1)(ii), (iii), and (iv)
and adding paragraph (b)(1)(ix) to read as follows:
Sec. 10.12 Civil penalties.
* * * * *
[[Page 12405]]
(b) * * *
(1) * * *
(ii) After November 16, 1993, or a date specified under Sec.
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 Sec.
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 Sec. 10.13,
whichever deadline is applicable, has not notified culturally
affiliated Indian tribes and Native Hawaiian organizations; or
* * * * *
(ix) Upon receipt of a claim consistent with Sec. 10.11(c)(1),
refuses to offer to transfer control of culturally unidentifiable human
remains for which it cannot prove right of possession.
* * * * *
0
7. Amend Sec. 10.15 by revising paragraph (c) to read as follows:
Sec. 10.15 Limitations and remedies.
* * * * *
(c) Exhaustion of remedies. (1) A person's administrative remedies
are exhausted only when the person has filed a written claim with the
responsible museum or Federal agency and the claim has been duly denied
under this part. This paragraph applies to both:
(i) Human remains, funerary objects, sacred objects, or objects of
cultural patrimony subject to Subpart B of this part; and
(ii) Federal lands subject to subpart C this part.
(2) A Federal agency's final denial of a repatriation request
constitutes a final agency action under the Administrative Procedure
Act (5 U.S.C. 704). As used in this paragraph, ``repatriation request''
means the request of a lineal descendant, Indian tribe, or Native
Hawaiian organization for repatriation or disposition of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
brought under the Act and this part.
* * * * *
Dated: March 4, 2010.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-5283 Filed 3-12-10; 8:45 am]
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