## Guidance for Compliance with the Native American Graves Protection and Repatriation Act by National Park Service Offices and Units 

## NPS Cultural Resource Management Guideline, Appendix R

**Table of Contents**

1\. Introduction

2\. Sources of Information and Assistance

## When Does NAGPRA Apply?

a.  Inadvertent Discoveries and Excavations

> Inadvertent Discoveries
>
> Intentional Excavations
>
> Written Plans of Action
>
> Excavation or Removal
>
> Notification

b.  Collections

> Summaries
>
> Inventories
>
> Notification

4\. Who has Standing to Claim NAGPRA Items?

5\. Who Does Not Have Standing to Claim NAGPRA Items?

6\. Consultation

a\. Identifying Consulting Partners/Groups

b\. Initiating Consultation

c\. Consultation Meetings

d\. Maintaining Consultation

e\. Documenting Consultation

f\. Cost of Consultation

7\. Evaluating Requests

a\. Standing

b\. Object Categories

c\. Relationships

d\. Evaluation of Evidence

8\. Disputes

9\. Transfer of Control or Custody

10\. When May NPS Retain Control?

11\. Documentation

12\. Long-term Management: Comprehensive Agreements

13\. Glossary

14\. Frequently Asked Questions

**1. INTRODUCTION**

On November 16, 1990, President George Bush approved the Native American
Graves Protection and Repatriation Act \[P.L. 101-601; 25 USC 3001-3013;
104 Stat. 3048-3058\] (NAGPRA). Final regulations were published on
December 4, 1995 \[43 CFR 10\]. The law and regulations address the
rights of lineal descendants, Indian tribes, and Native Hawaiian
organizations to Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony. They require Federal
agencies and institutions that receive Federal funds to provide
information about Native American human remains, funerary objects,
sacred objects, and objects of cultural patrimony to lineal descendants,
Indian tribes, and Native Hawaiian organizations and, upon presentation
of a valid request, return these cultural items to them.

The National Park Service--like all Federal agencies except the
Smithsonian Institution (which is under a separate statute)--is required
to comply with the regulations. Park superintendents are responsible for
notifying and consulting with lineal descendants, Indian tribes, and
Native Hawaiian organizations regarding planned excavations and
inadvertent discoveries on NPS lands. If, as part of an excavation or
inadvertent discovery, Native American human remains or NAGPRA-related
items are disinterred, scientific archeological methods, techniques,
analyses, and reports are conducted as required by the Archaeological
Resources Protection Act (16 U.S.C. 470aa et seq.) and Section 3 of
NAGPRA (25 U.S.C. 3002).

Superintendents also were responsible for the completion of (1)
summaries of Native American collections in their control that might
include unassociated funerary objects, sacred objects, and objects of
cultural patrimony and (2) inventories of Native American human remains
and associated funerary objects. The summaries and inventories included
both objects in park collections and those from NPS lands that are
currently held in other repositories. Superintendents are responsible
for evaluating requests for repatriation and making decisions about the
disposition or repatriation of Native American human remains, funerary
objects, sacred objects, and objects of cultural patrimony under NPS
control. The trafficking provisions of the statute may also require
cooperation with officials of the Department of Justice regarding
illegal excavations on NPS lands.

NAGPRA compliance is achieved by implementation of the applicable
regulations \[43 CFR 10\]. This appendix provides additional general
guidelines for NPS park, center, and regional compliance with the
statute and regulations, which are the primary documents that must be
followed. These guidelines were updated in 2003-2004 to reflect and
implement the recommendations issued by the National Park System
Advisory Board regarding how NPS makes determinations of cultural
affiliation under NAGPRA.

**2. SOURCES OF INFORMATION AND ASSISTANCE**

Information and technical assistance in implementing NAGPRA are
available from NPS regional offices; NPS centers; the Park NAGPRA
Program Lead; and the National NAGPRA program.

The National NAGPRA program is distinct from Park NAGPRA. National
NAGPRA focuses on NAGPRA implementation *outside of the National Park
System* by developing regulations and guidance; providing support for
the NAGPRA Review Committee; and assisting Indian tribes, Native Alaskan
villages and corporations, Native Hawaiian organizations, museums, and
Federal agencies with the NAGPRA process. Park NAGPRA, a servicewide
program located in the Intermountain Region Office of Indian Affairs &
American Culture, focuses on NAGPRA implementation and provides
information and technical assistance *within the National Park System*.

To request assistance, parks should contact either their regional NAGPRA
coordinators (see contact information on Inside NPS) or the Park NAGPRA
program lead (see below). The Park NAGPRA program lead is the liaison
between the parks and National NAGPRA for publishing the required
*Federal Register* notices. See Section 8 for information on developing
notices.

##### Contact Information

  --------------------- ----------------------------------------------------------------------------------
  Park NAGPRA Program   Mary S. Carroll, mary_carroll@nps.gov
  Lead                  

                        

  National Parks        http://www.cr.nps.gov/aad/SITES/repat.htm
  Repatriation          

                        

  Inside NPS -- Park    http://inside.nps.gov/programs/programcustommenu.cfm?menuid=1530&div=68&prog=279
  NAGPRA                

                        

  Lotus Notes Groups    NPS NAGPRA Regional Coordinators

                        

  National NAGPRA       http://www.cr.nps.gov/nagpra
  --------------------- ----------------------------------------------------------------------------------

**3. WHEN DOES NAGPRA APPLY?**

The statute and regulations describe two sets of procedures -- one for
planned excavations and inadvertent discoveries (25 USC 3002; 43 CFR
Subpart B) and one for collections (25 USC 3003; 25 USC 3004; 43 CFR
Subpart C) -- to ensure proper treatment and repatriation of Native
American human remains, funerary objects, sacred objects, and objects of
cultural patrimony. See Figure 1 for an overview of the differences
between procedures for inadvertent discoveries/excavations and
procedures for collections. Consultation with Indian tribes or Native
Hawaiian organizations is required in all circumstances \[43 CFR 10.5
and 10.9(6)\]. See Section 6 for more information about consultation.

**a. Inadvertent Discoveries and Excavations**

Provisions regarding inadvertent discoveries \[43 CFR 10.4\] and
intentional excavations \[43 CFR 10.3\] are designed to facilitate the
proper disposition of Native American human remains, funerary objects,
sacred objects, or objects of cultural patrimony that might be
intentionally excavated or inadvertently discovered on park lands after
November 16, 1990. If a park has a comprehensive agreement in place with
culturally affiliated tribes, the provisions of that agreement should be
followed when Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony are inadvertently discovered
or are found during a planned excavation. See 43 CFR 10.5(f) and Section
12 for more information.

######### Inadvertent Discoveries

Inadvertent discovery means the unanticipated encounter or detection of
Native American human remains, funerary objects, sacred objects, or
objects of cultural patrimony found under or on park lands \[43 CFR
10.2(g)(4)\]. See Figure 2 for a model of the inadvertent discovery
process.

Any person who has inadvertently discovered Native American human
remains, funerary objects, sacred objects, or objects of cultural
patrimony in park units must provide immediate telephone notification of
the inadvertent discovery, with written confirmation, to the
superintendent. If the inadvertent discovery occurred in connection with
an ongoing activity, the person must stop the activity in the area of
the inadvertent discovery and make a reasonable effort to protect the
human remains, funerary objects, sacred objects, or objects of cultural
patrimony.

As soon as possible, but not later than three working days after receipt
of the written confirmation of notification, the superintendent must
certify receipt of the written notification, secure and protect the
remains and/or items, and notify lineal descendants, Indian tribes and
Native Hawaiian organizations of the inadvertent discovery. If the
remains are determined to be Native American, the superintendent must
initiate consultation about the cultural affiliation and disposition of
Native American human remains,

**Figure 2. Inadvertent Discovery Process Model**

# 

# 

#  *Actions Required of Discoverer*

# Notify park superintendent immediately by phone with written confirmation.

# Cease ongoing activity. (May resume after 30 days or when binding agreement executed.)

# Make reasonable effort to protect human remains and other cultural items.

#######  Actions Required of Park Superintendent

funerary objects, sacred objects, or objects of cultural patrimony. If
the remains are not Native American, NAGPRA does not apply. In that
case, notify law enforcement officials, the county or state coroner,
and/or the medical examiner to determine the appropriate course of
action. Analysis of the human remains by an osteologist, forensic
anthropologist, or medical examiner may be required to determine whether
they are Native American and, under some circumstances, the remains may
need to be moved in order to make that determination and to provide for
their safety.

The activity that resulted in the inadvertent discovery may resume 30
days after the superintendent certifies receipt of the written
confirmation of notification. The activity may resume in less than 30
days if a written agreement is executed between the NPS and the
affiliated Indian tribe or Native Hawaiian organization that allows the
Native American human remains, funerary objects, sacred objects, or
objects of cultural patrimony to remain safely *in situ* or that adopts
a recovery plan for the excavation or removal of the remains and
objects.

The disposition of all Native American human remains, funerary objects,
sacred objects, and objects of cultural patrimony must be carried out
according to the priority listing in the regulations \[43 CFR 10.6\].
See Section 7.c. for more information about priority of
ownership/custody.

[Intentional Excavations]{.underline}

Intentional excavation means the planned archeological removal of Native
American human remains, funerary objects, sacred objects, or objects of
cultural patrimony found under or on park lands after November 16, 1990
\[43 CFR 10.2(g)(3)\]. Superintendents are required to take reasonable
steps to determine whether a planned activity may result in the
excavation of Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony. See Figure 3 for a model of
the intentional excavation process.

Intentional excavation of Native American human remains, funerary
objects, sacred objects, and objects of cultural patrimony can only
proceed after consultation with the appropriate Indian tribes and Native
Hawaiian organizations. Proof of consultation must be shown to the
superintendent or other official responsible for the issuance of the
required permit. Regulatory requirements for intentional excavations
\[43 CFR 10.3\] include excavation of items according to scientific
standards; consultation with Indian tribes or Native Hawaiian
organizations; disposition of objects in accordance with priority of
custody as described in 43 CFR 10.6; and proof of consultation.

######### Written Plans of Action

A written plan of action is required for both inadvertent discoveries
and intentional excavations \[43 CFR 10.5(e)\]. Following consultation
the plan of action must be prepared, approved, and signed by the
superintendent. A copy of the plan must be provided to the lineal
descendants, Indian tribes and Native Hawaiian organizations. Lineal
descendants and Indian tribe official(s) may sign the written plan of
action as appropriate. The plan of action must at least comply with 43
CFR 10.3(b) (1) \[ARPA requirements\] and must document:

1.  The kinds of objects to be considered as cultural items;

2.  The specific information used to determine custody;

3.  The planned treatment, care, and handling of human remains and other
    cultural items;

4.  The planned archeological recording of the human remains and other
    cultural items;

5.  The kinds of analysis planned for each kind of object;

6.  Any steps to be followed to contact Indian tribe officials at the
    time of intentional excavation or inadvertent discovery of specific
    human remains and other cultural items;

7.  The kind of traditional treatment, if any, to be afforded the human
    remains and other cultural items by members of the Indian tribe or
    Native Hawaiian organization;

8.  The nature of reports to be prepared; and

9.  The planned disposition of human remains and other cultural items.

######## **Figure 3. Intentional Excavation Process Model** 

######## [Excavation or Removal]{.underline} 

Excavation or removal of human remains, funerary objects, sacred
objects, or objects of cultural patrimony discovered inadvertently or
excavated intentionally as part of a planned activity must be undertaken
in accordance with the requirements of the Archaeological Resources
Protection Act (ARPA) (16 USC 470aa et seq.) and its implementing
regulations. Superintendents must ensure that scientific methods and
techniques are used for the physical removal, recording, and analysis of
cultural items; that a descriptive and interpretive report of the
excavation is produced; and that excavation records and items not
covered by NAGPRA are curated in NPS collections \[43 CFR 10.3(b), 43
CFR 10.4(d)(v)\].

######## [Notification]{.underline}

Before the disposition of Native American human remains, funerary
objects, sacred objects, and objects of cultural patrimony excavated or
discovered inadvertently on park lands after November 16, 1990, a notice
must be published in local newspapers \[43 CFR 10.6(c)\]. If the Native
American human remains and other cultural items will not be moved, a
notice is not required. Notification focuses on providing information to
potentially affected parties of a pending agency action, providing them
with an opportunity to respond. Notification is not meant as a primary
means of communication with potential claimants but as a last chance for
any legitimate claimants that may have been overlooked to voice their
concerns.

# 

# A Notice of Intended Disposition must be published two times, at least one week apart, in a newspaper of general circulation in the area in which the Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony were excavated or discovered inadvertently and, if applicable, in a newspaper of general circulation in the area(s) in which affiliated Indian tribes or Native Hawaiian organizations now reside. Disposition of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony may not occur until at least 30 days after publication of the second notice. Copies of the newspaper notice with information on when and in what newspaper it was published must be sent to the Park NAGPRA Program Lead.

# 

The Notice of Intended Disposition should minimally include the
following information --

-   circumstances of the excavation or inadvertent discovery

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-   minimum number of individuals represented by Native American human
    remains

-   number and types of funerary objects

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-   a brief and general description (including number) of sacred objects
    and objects of cultural patrimony

# evidence that supports determinations of lineal descent, cultural affiliation, or aboriginal territory

# 

**b. Collections**

The regulations also require Federal agencies and museums to inform
Indian tribes and Native Hawaiian organizations of Native American human
remains, funerary objects, sacred objects, and objects of cultural
patrimony in their collections prior to November 16, 1990 \[43 CFR
Subpart C\]. Distribution of this information was achieved through two
types of documents: summaries and inventories.

Superintendents should periodically review their Park NAGPRA inventory
and summary to make sure they are accurate and updated to reflect new
information that may have changed identification of items as covered by
NAGPRA, new information that may have changed determinations of cultural
affiliation, new acquisitions, or newly recognized Indian tribes. A
NAGPRA module in the NPS collections management database system, ANCS+,
is available to facilitate the update process.

Anytime new information is received that may affect cultural affiliation
determinations, modifications to the original summaries or inventories
may be necessary. Anytime items are found that were not on the original
summaries or inventories, the process of consultation, evaluation, and
notification -- as outlined in Figures 4 and 5 -- will again take place.

[Summaries]{.underline}

Summaries are written descriptions of collections that may contain
unassociated funerary objects, sacred objects, or objects of cultural
patrimony \[43 CFR 10.8\]. Summary information for all park units was
distributed to nearly 800 Indian tribes, Native Hawaiian organizations,
and non-Federally recognized Indian groups in November 1993. This served
as a simple notification to each Indian tribe and Native Hawaiian
organization of the nature of the collections held by NPS. The summary
is intended as an initial step to bring Indian tribes and Native
Hawaiian organizations into consultation with NPS. Consultation between
NPS and an Indian tribe or Native Hawaiian organization was required no
later than the completion of the summary process.

If a claim is made for unassociated funerary objects, sacred objects, or
objects of cultural patrimony, the superintendent must determine that
the object claimed fits the definition of the specified NAGPRA category.
Identification of specific unassociated funerary objects, sacred
objects, or objects of cultural patrimony must be done in consultation
with Indian tribe representatives and traditional religious leaders who
may have special knowledge regarding these categories of objects.
Superintendents also must ensure that claimants meet the definition
either of lineal descendants or culturally affiliated Indian tribes.

######### Inventories

Inventories are item-by-item descriptions of Native American human
remains and associated funerary objects. Unlike the summaries,
inventories must have been completed in consultation with Indian tribes
and Native Hawaiian organizations and represent a decision by the
superintendent as to the cultural affiliation of particular Native
American human remains or associated funerary objects \[43 CFR 10.9\].

######## [Notification]{.underline}

Before the repatriation of Native American human remains, funerary
objects, sacred objects, and objects of cultural patrimony in NPS
collections, a notice must be published in the *Federal Register* \[43
CFR 10.8(f) and 10.9(e)\]. Notification focuses on providing information
to potentially affected parties of a pending agency action, providing
them with an opportunity to respond. Notification is not meant as a
primary means of communication with potential claimants but as a last
chance for any legitimate claimants that may have been overlooked to
voice their concerns.

######### *Notice of Inventory Completion*

A Notice of Inventory Completion summarizes the contents of an inventory
of Native American human remains and associated funerary objects in
sufficient detail to enable other individuals, Indian tribes, and Native
Hawaiian organizations to determine their interest in claiming the
inventoried items. The notice is published in the *Federal Register*
when a park has made a determination of cultural affiliation or lineal
descent for Native American human remains and associated funerary
objects in its possession or control. Repatriation may not occur until
at least 30 days after publication in the *Federal Register*. See Figure
4 for a model of the notice development process.

The Notice of Inventory Completion should minimally include the
following information --

-   names of all participating Indian tribes, specifically noting any
    agreements among groups regarding which group will lead in a
    repatriation, which groups have withdrawn from a repatriation, and
    any other pertinent information;

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-   name of site, county, state from which the cultural items
    originated;

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-   minimum number of individuals represented by the Native American
    human remains;

-   number and types of associated funerary objects;

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-   the circumstances surrounding the removal and all subsequent
    transfers until the remains and other cultural items came into the
    park's possession;

-   dates and additional information about the Native American human
    remains, or any known earlier group/phase and how/why these
    individuals have been determined to be Native American;

-   evidence for present-day cultural affiliation with the earlier
    identifiable group, for example, any historical records, continuity
    of occupation, continuity of ethnographic materials;

-   tribal evidence of cultural affiliation, for example, oral history,
    manner of interment, known/named village/camp, etc.

**Figure 4. Notice of Inventory Completion Development Process Model**

*Notice of Intent to Repatriate*

A Notice of Intent to Repatriate is published when a park receives,
reviews, and accepts a claim by a tribe for sacred objects, unassociated
funerary objects, or objects of cultural patrimony. The notice describes
unassociated funerary objects, sacred objects, or objects of cultural
patrimony being claimed in sufficient detail to enable other
individuals, Indian tribes, and Native Hawaiian organizations to
determine their interest in the claimed objects. Repatriation may not
occur until at least 30 days after publication in the *Federal
Register*. See Figure 5 for a model of the notice development process.

The Notice of Intent to Repatriate should minimally include the
following information --

-   a brief and general description (including number) of the object(s)

-   the dates and circumstances of acquisition

-   the evidence for cultural affiliation

-   evidence from consultation with the tribe supporting the definition
    of these cultural items as unassociated funerary objects, sacred
    objects, or objects of cultural patrimony as defined under NAGPRA

**NOTE:** The Notice of Inventory Completion and the Notice of Intent to
Repatriate are distinct and unrelated. Notices of Inventory Completion
include only Native American human remains and associated funerary
objects and must be published whether or not a claim has been received.
Notices of Intent to Repatriate include only unassociated funerary
objects, sacred objects, or objects of cultural patrimony and are
published after a claim has been received, evaluated, and accepted. A
Notice of Intent to Repatriate is not intended as notification of the
repatriation of Native American human remains and/or associated funerary
objects that may occur after the publication of a Notice of Inventory
Completion. Both types of notices must be developed in cooperation with
the Park NAGPRA Program Lead.

**4. WHO HAS STANDING TO CLAIM NAGPRA ITEMS?**

Lineal descendants, Indian tribes, and Native Hawaiian organizations may
request cultural items covered by NAGPRA \[43 CFR 10.2(b)\]. See Section
7 for more detailed information regarding priority of custody and which
cultural items may be claimed by which group.

[Lineal Descendants]{.underline}

The regulations implementing NAGPRA \[43 CFR 10.2(b)(1)\] define lineal
descendant as an individual tracing his or her ancestry directly and
without interruption by means of the traditional kinship system of the
appropriate Indian tribe or Native Hawaiian organization or by the
common law system of descendance to a known Native American individual
whose remains, funerary objects, or sacred objects are being claimed.

######## [Indian Tribes]{.underline}

The regulations implementing NAGPRA \[43 CFR 10.2(b)(2)\] define Indian
tribe as any tribe, band, nation, or other organized Indian group or
community of Indians, including any Alaska Native village or corporation
as defined in or established by the Alaska Native Claims Settlement Act
(43 U.S.C. 1601 et seq.), which is recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians.

######## [Native Hawaiian organization]{.underline}

The regulations implementing NAGPRA \[43 CFR 10.2(b)(3)\] define Native
Hawaiian organization as any organization that serves and represents the
interests of Native Hawaiians, has as a primary and stated purpose the
provision of services to Native Hawaiians, and has expertise in Native
Hawaiian affairs. The regulations specifically identify the Office of
Hawaiian Affairs and Hui Malama I Na Kupuna \'O Hawai\'i Nei as being
Native Hawaiian organizations. Native Hawaiian organizations need not
comprise mostly Native Hawaiian members.

**Figure 5. Notice of Intent to Repatriate Development Process Model**

**5. WHO DOES NOT HAVE STANDING TO CLAIM NAGPRA ITEMS?**

Individuals, except in the case of lineal descendants, cannot make
claims for Native American human remains or other cultural items.
Non-Federally recognized Indian groups *do not* have standing to claim
cultural items under the statute because they are not recognized as
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians. Native American
human remains in NPS collections for which a relationship of shared
group identity can be shown with a particular non-Federally recognized
Indian group are considered culturally unidentifiable for NAGPRA
purposes. See Section 10 for more information about culturally
unidentifiable remains.

**6. CONSULTATION**

The regulations require consultation throughout the process: before
planned excavations, before the completion of inventories, upon the
completion of summaries, and immediately after inadvertent discoveries.
The statute and regulations require consultation to be initiated through
a formal written request \[43 CFR 10.5(b)\]. The formal request should
be followed by personal contact and interaction.

**a. Identifying Consulting Partners/Groups**

The first step in any consultation effort must be to identify the
appropriate consulting partners. This step is particularly critical when
an inadvertent discovery occurs on park land. Upon notification of the
inadvertent discovery, the superintendent has only three working days to
contact the appropriate lineal descendants, Indian tribes, or Native
Hawaiian organizations \[43 CFR 10.4(d)(1)\]. It is therefore helpful to
have an existing list of contacts. Many parks will have established
relationships with tribes either as a result of NAGPRA or the
requirements of other statutes and regulations.

Federally recognized tribes that are traditionally associated with the
park should be among the initial contacts in beginning the consultation
process. See Section 7 for a discussion of the distinction between
traditional association and cultural affiliation. In addition, the
implementing regulations \[43 CFR 10.5(a), 10.8(d), and 10.9(b)\]
stipulate that all of the following individuals, Indian tribes, and
Native Hawaiian organizations must be consulted:

-   Potential lineal descendants. These individuals may have already
    contacted the park or been identified by the appropriate Indian
    tribe or Native Hawaiian organization. In cases where the identity
    of the individual whose remains or other cultural items are being
    discussed is known, it may be appropriate to publish a notice in a
    newspaper of general circulation in the area in which the affiliated
    Indian tribes or Native Hawaiian organizations now reside to ensure
    that all potential lineal descendants have been identified. See
    Section 7 for more information about lineal descendants.

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-   Indian tribes and Native Hawaiian organizations that are or are
    likely to be culturally affiliated with the Native American human
    remains, funerary objects, sacred objects, or objects of cultural
    patrimony. See Section 7 for more information about cultural
    affiliation.

-   Indian tribes on whose aboriginal lands the Native American human
    remains, funerary objects, sacred objects, or objects of cultural
    patrimony were or are expected to be found. Determinations of tribal
    aboriginal lands have been made by the Indian Claims Commission and
    the U.S. Court of Claims. See Section 7 for more information about
    aboriginal lands.

Some online resources for assistance in identifying federally recognized
tribes, official tribal contacts, and aboriginal lands include:

-   BIA list of federally recognized tribes
    \<http://www.cr.nps.gov/nagpra/mandates/BIA_list.pdf\>

-   Native American Consultation Database
    \<http://www.cast.uark.edu/other/nps/nacd\>, and

-   map of aboriginal lands as established by the Indian Claims
    Commission \<http://www.cr.nps.gov/nagpra/DOCUMENTS/ClaimsMAP.htm\>.

**b. Initiating Consultation**

Initial contact with lineal descendants, Indian tribes, and Native
Hawaiian organizations can take several forms. Written correspondence is
essential in documenting the consultation process for the administrative
record. However, initiating consultation with a telephone call, with
written confirmation, is an effective way to avoid misunderstandings
that could result from exclusive use of written communication.
Inadvertent discoveries require telephone notification with written
confirmation. Fax transmission of written correspondence also expedites
the consultation process. No matter what form is used, initial contact
should outline the nature of the situation to be discussed, identify who
will represent the NPS, request information on the appropriate tribal
representatives to contact, and propose a time for additional
consultation. The most effective initial contact is short and to the
point. In light of the government-to-government relationship between
Indian tribes and the United States, initial contact by NPS units should
originate with the superintendent and be directed to the head of tribal
government. Subsequent consultation may be delegated to professional
staff if appropriate.

Each Indian tribe or Native Hawaiian organization has authority to
select a representative of its choice. Care should be taken to ensure
that an individual claiming to represent these entities is authorized to
make such a request. If there is any doubt, call the tribal chair,
governor, or president to verify that the individual is acting on behalf
of the Indian tribe or Native Hawaiian organization.

Follow-up is critical to successful consultation. Indian tribe and
Native Hawaiian organization officials may be busy and not respond to
the initial letter or telephone call in a timely fashion. If a response
to the initial communication is not received within two weeks, the
superintendent or other appropriate staff should call the appropriate
Indian tribe or Native Hawaiian organization official directly to verify
that they received the communication. Follow-up informal contact with
the appropriate tribal staff office, e.g., the Tribal Historic
Preservation Office, is a good technique for making sure that a formal
notification receives attention by the head of government.

**c. Consultation Meetings**

Face-to-face consultation meetings are one of the most effective forums
for obtaining the advice or opinion of Indian tribes and Native Hawaiian
organizations. A number of factors need to be considered when planning
consultation meetings.

The complex and sensitive issues that need to be dealt with during
consultation make it unlikely that discussions will be completed with a
single meeting. Initial meetings generally provide an opportunity for
the participants to get acquainted and review legal requirements.
Subsequent meetings build on this foundation to address the more
substantive and sensitive issues. Initial meetings can often accommodate
larger numbers of people representing various Indian tribes, Native
Hawaiian organizations, and NPS. Later meetings focusing on particular
Native American human remains, funerary objects, sacred objects, or
objects of cultural patrimony are best limited to a small number of
representatives of the NPS and a particular Indian tribe or Native
Hawaiian organization. It is vital that the NPS offer to meet
individually with tribes since some issues may be too sensitive to
discuss in a group setting.

Initial meetings should be convened in a location that is mutually
convenient to participants. It may be beneficial to hold subsequent
meetings at or near the current location of the site or repository where
the objects under discussion were found or are currently held, but care
should be taken to ensure that the meeting place is culturally
appropriate to the Indian tribe representatives.

Some Indian tribes and Native Hawaiian organizations have their own
meeting protocol that should be taken into account when planning
consultation meetings. Tribal representatives may be uncomfortable
discussing Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony without first opening the
meeting with prayer. Some topics may require comment from more than one
individual; discussions of other topics may be limited to specific
individuals, with others being precluded from even hearing sensitive
information; and some information may only be communicated at certain
times of the year. Tribal representatives may have to relate the details
of those meetings to their governing officials, traditional religious
leaders, and other community members before decisions are made and
actions authorized. Such factors make it essential that all participants
discuss and agree on the form and content of consultation meetings, as
well as on the time needed for reaching well-informed decisions.

**d. Maintaining Consultation**

Parks may find that once consultation has been initiated, a regular
pattern of communication on these issues and all other matters of
concern to the consulting parties is beneficial. It is expected that,
along with the requirements of NAGPRA, the compliance requirements of
other statutes and regulations, such as the National Historic
Preservation Act, will have resulted in extensive networking and
relationship building among parks and tribes that can be utilized and
enhanced when specific NAGPRA issues arise.

**e. Documenting Consultation**

All consultation should be documented and include copies of all written
correspondence between the parties involved, a log of all telephone
conversations, and summaries or transcripts of all consultation
meetings.

**f. Cost of Consultation**

The NPS is required to consult with lineal descendants and the
representatives of Indian tribes and Native Hawaiian organizations
before reaching decisions regarding the repatriation or disposition of
Native American human remains and objects covered by NAGPRA under agency
control. In order to facilitate consultation, it may be appropriate for
the NPS to pay the travel and per diem expenses of lineal descendants
and Indian tribe and Native Hawaiian organization representatives.
Consultation fees may also be appropriate for individuals with special
expertise, such as traditional religious leaders and translators. Park
and support office administrative personnel can suggest ways of paying
for consultation services, including invited travel procedures (when no
consultation fees are involved) and purchase orders that pay for
professional services rendered.

**7. EVALUATING REQUESTS**

Upon the request of a lineal descendant, Indian tribe, or Native
Hawaiian organization, NPS must expeditiously return Native American
human remains, funerary objects, sacred objects, or objects of cultural
patrimony if **all** of the following criteria apply:

-   the claimant has standing,

-   the claimed item conforms to a class of cultural items covered by
    the statute, and

-   a relationship conforming to those recognized in the law can be
    demonstrated between the claimant and the group represented by the
    cultural item(s) claimed.

**a. Standing**

Lineal descendants, federally recognized Indian tribes (including any
Alaska Native village or corporation), and Native Hawaiian organizations
have standing to request Native American human remains, funerary
objects, and sacred objects in NPS collections or excavated or
discovered inadvertently on park lands after November 16 1990 \[43 CFR
10.2(b)\]. Only Indian tribes and Native Hawaiian organizations have
standing to claim objects of cultural patrimony. Lineal descendants
cannot claim objects of cultural patrimony, since by definition objects
of cultural patrimony are the communal property of a tribe.

The statute gives lineal descendants priority over Indian tribes or
Native Hawaiian organizations in making requests for Native American
human remains, funerary objects, and sacred objects. However, the
standard for determining a relationship of lineal descent is very
strict. The individual must be able to trace ancestry directly and
without interruption to a known Native American individual whose
remains, funerary objects, or sacred objects are being claimed.

The regulations specifically identify two Native Hawaiian
organizations--Hui Malama I Na Kupuna \'O Hawai\'i Nei and the Office of
Hawaiian Affairs--and provides criteria to determine if other claimants
have standing \[43 CFR 10.2(b)(3)\]. To qualify, the organization must
demonstrate that it (1) serves and represents the interests of Native
Hawaiians, (2) has as a primary and stated purpose the provision of
services to Native Hawaiians, and (3) has expertise in Native Hawaiian
affairs.

**b. Object Categories**

In addition to Native American human remains, three types of objects can
be claimed under provisions of the statute: funerary objects, sacred
objects, and objects of cultural patrimony. Claimed objects must conform
to the object categories as defined in the statute and the regulations
(25 USC 3001; 43 CFR 10.2).

[Funerary Objects]{.underline}

Funerary objects are items that, as part of the death rite or ceremony
of a culture, are reasonably believed to have been placed intentionally
at the time of death or later with or near individual Native American
human remains \[43 CFR 10.2(d)(2)\]. Funerary objects must be identified
by a preponderance of the evidence as having been removed from a
specific burial site of an individual affiliated with a particular
Indian tribe or Native Hawaiian organization or as being related to
specific individuals or families or to known Native American human
remains. Funerary objects may be either "associated" or "unassociated."
See the glossary (Section 13) for the distinction between associated
funerary objects and unassociated funerary objects.

[Sacred Objects]{.underline}

Sacred objects are items that are specific ceremonial objects needed by
traditional Native American religious leaders for the practice of
traditional Native American religions by their present-day adherents
\[43 CFR 10.2 (d)(3)\]. While many items, from ancient pottery sherds to
arrowheads, might be imbued with sacredness in the eyes of an
individual, these regulations are specifically limited to objects that
were devoted to a traditional Native American religious ceremony or
ritual and which have religious significance or function in the
continued observance or renewal of such ceremony.

[Objects of Cultural Patrimony]{.underline}

Objects of cultural patrimony are items having ongoing historical,
traditional, or cultural importance central to the Indian tribe or
Native Hawaiian organization itself, rather than property owned by an
individual tribal or organization member \[43 CFR 10.2 (d)(4)\]. These
objects are of such central importance that they may not be alienated,
appropriated, or conveyed by any individual tribal or organization
member. Such objects must have been considered inalienable by the
culturally affiliated Indian tribe or Native Hawaiian organization at
the time the object was separated from the group. Objects of cultural
patrimony include items such as Zuni War Gods, the Confederacy Wampum
Belts of the Iroquois, and other objects of similar character and
significance to the Indian tribe or Native Hawaiian organization as a
whole.

**c. Relationships**

An individual or group with standing must demonstrate a relationship
with the Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony being claimed. Potential
relationships are --

-   lineal descent,

-   tribal lands,

-   cultural affiliation,

-   aboriginal occupation, and

-   stronger cultural relationship than the tribe determined to have
    occupied the land aboriginally.

Which type of relationship has priority differs depending on whether the
items are part of a park collection or are excavated or discovered
inadvertently on park land after November 16, 1990.

[Collections]{.underline}

Only relationships of lineal descent or cultural affiliation apply to
Native American human remains and items in NPS collections. Individuals
who can show lineal descent have priority of custody over Indian tribes
that have been determined to be culturally affiliated.

[Inadvertent Discoveries and Excavations]{.underline}

Relationships of lineal descent, tribal land (which will rarely apply in
NPS), cultural affiliation, aboriginal territory, or stronger cultural
relationship than aboriginal territory apply in situations of
intentional excavations or inadvertent discoveries. Priority of custody
is in the order listed here \[43 CFR 10.6(a)\] --

*Lineal Descent*

Documentation is needed to demonstrate a relationship of lineal descent.
The line of descent must be direct and without interruption according to
the traditional kinship system of the Indian tribe or Native Hawaiian
organization or by the common law system of descendance \[43 CFR
10.14(b)\]. An Indian tribe or Native Hawaiian organization can often
provide information on its traditional kinship system to assist in
verifying claims of lineal descent.

*Tribal Lands*

Tribal lands are all lands within the exterior boundaries of any Indian
reservation; all dependent Indian communities; any lands administered
for the benefit of Native Hawaiians pursuant to the Hawaiian Homes
Commission Act, 1920, and section 4 of Public Law 86-3. \[25 USC 3001
(15)\] Indian tribes on whose tribal lands the cultural items were
excavated or discovered inadvertently would have priority of custody if
there are no lineal descendants. This situation will rarely occur in
NPS.

*Cultural Affiliation*

Cultural affiliation is a relationship of shared group identity that can
reasonably be traced historically or prehistorically between members of
a present-day Indian tribe or Native Hawaiian organization and an
identifiable earlier group. A wide variety of evidence must be
introduced and evaluated to document such a relationship, including
geographical, kinship, biological, archeological, anthropological,
linguistic, folklore, oral tradition, historical, and other information
or expert opinion \[43 CFR 10.14(e)\]. There are three elements that
must be considered when investigating whether or not a relationship of
cultural affiliation can be determined. There must be a present day
Indian tribe or Native Hawaiian organization, an identifiable earlier
group, and a relationship of shared group identity between these two
groups.

Unlike claims of lineal descent in which the relationship between the
claimant and the individual whose remains or items are claimed must be
direct and without interruption, determination of cultural affiliation
should be based on an overall evaluation of the totality of the
circumstances and evidence and should not be precluded solely because of
some gaps in the record. Determinations of cultural affiliation should
be as precise as possible, and should result from the critical
evaluation and careful weighing of all available evidence. Parks should
avoid affiliating all cultural items in park collections with all
traditionally associated Native American groups unless the evidence
supports that determination. See Section 7.d. for a discussion about
evaluating lines of evidence.

> *[Traditional Association vs. Cultural Affiliation]{.underline}:* In
> making determinations about cultural affiliation under NAGPRA, it is
> critical that park managers recognize the difference between
> traditional association and cultural affiliation. Under NPS management
> policies, "Traditionally associated peoples\" are groups with special
> cultural interests in a National Park that precede the establishment
> of the park unit and that have endured for at least two generations
> (40 years). These may include park neighbors, traditional residents,
> and former residents who remain attached to the park area despite
> having relocated. Traditionally associated peoples regard park
> resources as essential to their development and identity as a
> culturally distinct group. For traditionally associated peoples,
> specific places or resources within parks, such as sites, structures,
> objects and landscapes hold significance, as they may be closely
> associated with the peoples' sense of purpose, existence as a
> community, heritage, and development as an ethnically or spiritually
> distinctive group. These places may have supported subsistence or
> ceremonial activities, represent birthplaces, or mark migration
> routes.
>
> Whereas traditionally associated peoples have a relationship
> connecting contemporary people to **places** with which they have
> ancestral ties, cultural affiliation is a demonstrated relationship
> between specific Native Americans and the **group** represented by the
> cultural items subject to repatriation under NAGPRA (i.e. Native
> American human remains, associated funerary objects, unassociated
> funerary objects, sacred objects and objects of cultural patrimony).
> Prior geographic association may not, in itself, be enough for a
> determination of cultural affiliation.
>
> The difference between traditionally associated and culturally
> affiliated groups is not an either/or situation. Sometimes an Indian
> tribe can be both traditionally associated through an ongoing cultural
> connection to a park and culturally affiliated with an earlier group
> that resided in the park area, claimed it as aboriginal territory, or
> is connected to the earlier identifiable group that made a particular
> object.

*Aboriginal Occupation*

For situations of planned excavations and inadvertent discoveries when
lineal descent and cultural affiliation cannot be demonstrated,
disposition may be made to an Indian tribe that -- according to a final
judgment of the Indian Claims Commission or the U.S. Court of Claims --
aboriginally occupied the Federal land from which the Native American
human remains or objects were removed. An online map of Indian land
areas established by the Commission is available at the National NAGPRA
program's website
\<http://www.cr.nps.gov/nagpra/DOCUMENTS/ClaimsMAP.htm\>.

*Stronger Cultural Relationship*

This term is not defined in the statute or regulations, but clearly
constitutes a weaker relationship than lineal descent or cultural
affiliation. The concept of "stronger cultural relationship" is
considered **only** in those cases where lineal descent and cultural
affiliation cannot be demonstrated **and** where an Indian tribe has
been identified -- according to a final judgment of the Indian Claims
Commission or the U.S. Court of Claims -- as having aboriginally
occupied the land from which the Native American human remains or
objects were removed. If it can be demonstrated that a different Indian
tribe has a stronger cultural relationship with the Native American
human remains and other cultural items than the tribe designated as the
aboriginal occupant, the former has priority of custody. Situations
where the concept of "stronger cultural relationship" comes into play
are rare. Contact the Park NAGPRA Program Lead for additional
information.

**d. Evaluation of Evidence**

NAGPRA requires careful consideration of evidence when assessing if
human remains are Native American, whether objects fit into the
categories defined by NAGPRA, and if relationships of lineal descent or
cultural affiliation can be determined. NAGPRA requires that cultural
affiliation of an Indian tribe or Native Hawaiian organization be
determined by a preponderance of evidence based on geographical,
kinship, biological, archaeological, anthropological, linguistic,
folkloric, oral traditional, historical, or other relevant information
or expert opinion. This requires consideration of evidence from various
disciplines, each with their own standards of reliability, and from
other, not necessarily academic, sources.

The law does not privilege any one type of evidence over another in
determining cultural affiliation. It requires that the determination be
made based on the preponderance of the evidence \[43 CFR 10.14(f)\].
'Preponderance of the evidence" is a legal term, defined in Black's Law
Dictionary as:

> Evidence which is of greater weight or more convincing than the
> evidence which is offered in opposition to it; that is, evidence which
> as a whole shows that the fact sought to be proved is more probable
> than not. With respect to the burden of proof in civil action, means
> greater weight of evidence, or evidence which is more credible and
> convincing to the mind. That which best accords with reason and
> probability. (1991, abridged 6^th^ edition, p. 819)

The preponderance of the evidence represents the standard of proof
needed to evaluate claims made under the statute. Claimants do not have
to establish their claims with scientific certainty. However, it is the
responsibility of the park to determine to its satisfaction whether the
evidence substantiates the claim. In evaluating claims the park should
seek information from the claimants and from as many other sources as
are available, including academic disciplines and other expert opinion.
The park should hold each type of evidence to the standards of the
particular discipline or source. In the case of scholarly and scientific
disciplines, the assistance and/or review of subject matter experts
should be sought. In the case of non-academic sources of information,
such as expert opinion from a tribal religious leader, the park should
verify the person's authority and standing.

Once the evidence is compiled and evaluated, the superintendent must
decide whether a preponderance of the evidence supports the claim for
Native American human remains, funerary objects, sacred objects, or
objects of cultural patrimony. The reliability and relevance of evidence
needs to be evaluated for each case. A reasonable determination that a
relationship of shared group identity exists is required. \"Reasonable\"
according to Black\'s Law Dictionary (1991, abridged 6th edition, p.
874), means: \"fair, proper, just, moderate, \[and\] suitable under the
circumstances.\" Support office or center archeologists, ethnographers,
curators, and Native American liaisons can assist in the decision-making
process. Superintendents must document their evidence evaluation and
decision-making processes as completely as possible.

**8. DISPUTES**

In some cases, it may not be possible for NPS and the interested
individuals, Indian tribes, and Native Hawaiian organizations to agree
on the disposition or repatriation of particular Native American human
remains, funerary objects, sacred objects, and objects of cultural
patrimony.

NAGPRA does not have a formal administrative appeals process. A lineal
descendant, Indian tribe, or Native Hawaiian organization may decide to
present more evidence following a superintendent's decision not to
return particular objects. Such additional evidence should be given full
consideration by the superintendent and the decision revised if
necessary. Superintendents' decisions are subject to standard
administrative review procedures.

Disputes may be brought to the attention of the NAGPRA Review Committee.
The Review Committee is charged with facilitating the resolution of
disputes among lineal descendants, Indian tribes, Native Hawaiian
organizations, museums, and Federal agencies relating to the return of
Native American human remains, funerary objects, sacred objects, and
objects of cultural patrimony. The Review Committee will consider
requests to facilitate the resolution of a dispute from any of the
involved parties. If the Review Committee decides to attempt to
facilitate the dispute, it will initially request written documentation
regarding the dispute from all involved parties. This information will
be reviewed and, if appropriate, the disputing parties will be invited
to appear before the committee. Review Committee recommendations and
findings are not binding.

**9. TRANSFER OF CONTROL OR CUSTODY**

Transfer of control or custody can only occur after the required public
notice has been published and the designated notice period has elapsed.
See Section 3 for a more detailed discussion of notification
requirements. Preparation for transfer must involve additional
consultation with the appropriate lineal descendant, Indian tribe, or
Native Hawaiian organization to determine the place and manner of
delivery \[25USC 3005(a)(3)\]. Following the close of the notice comment
period the superintendent or the designated NAGPRA coordinator should
contact the lineal descendant or appropriate tribal official(s) and
initiate discussions to facilitate the transfer. During this
consultation, if possible, parks should establish a specific timeline,
acceptable to the recipient, for the transfer. Arrangements should take
into consideration the sensitive nature of the transfer and any
particular cultural or religious proscriptions.

When transferring control or custody of cultural items in collections,
the superintendent must ensure that the Native American human remains,
funerary objects, sacred objects, and objects of cultural patrimony are
deaccessioned according to NPS procedures, including assigning
deaccession numbers, updating accession and catalog records, completing
a deaccession form, and filing all documentation in the accession or
optional deaccession file. (For further guidance on deaccessioning,
consult Part II of the NPS *Museum Handbook*) In addition, it is
suggested that the park create and maintain a transfer document for its
records. This document could outline the conditions (timeframe, place
and manner) of the transfer, be signed by the NPS and the lineal
descendant or tribal representative, and would serve as part of the
permanent record for the park files. See Figure 6 for a sample
repatriation agreement for cultural items in collections from the NPS
*Museum Handbook*.

Current NPS policy (*NPS Management Policies 2001*, section 5.3.4)
allows the reburial of Native American human remains recovered from park
property in the same park from which they were removed. Issues that must
be considered include the nature of the reinterment, how the reinterment
will be conducted, the place of reburial, future use of the area, and
future protection of the area.

**NOTE:** Under Section 3 (inadvertent discoveries and planned
excavations), \"transfer of control or custody\" does not mean that
parks should accession the cultural items or that tribes must physically
take possession of the items before they can be reburied. It is likely
that parks rarely will accession Native American human remains, funerary
objects, sacred objects or objects of cultural patrimony inadvertently
discovered or intentionally excavated after November 16, 1990 into
collections.

**10. WHEN MAY NPS RETAIN CONTROL?**

NPS may retain control of Native American human remains, funerary
objects, sacred objects, or objects of cultural patrimony that would
otherwise be returned to a lineal descendant, Indian tribe, or Native
Hawaiian organization under the regulations if any of five conditions
apply:

1.  there are multiple disputing claimants \[43 CFR10.10(c)(2)\];

2.  the NPS has right of possession to the item \[43 CFR10.10(a)(2)\];

3.  the item is part of an NPS collection and is indispensable to the
    completion of a specific scientific study, the outcome of which is
    of major benefit to the United States \[43 CFR10.10(c)(1)\];

4.  the Native American human remains are culturally unidentifiable \[43
    CFR10.9(e)(6)\]; or

5.  custody cannot be determined or no claim has been received for the
    Native American human remains, funerary objects, sacred objects, or
    objects of cultural patrimony \[43 CFR10.10(7)\].

1\. If there are multiple disputing claims and NPS cannot determine by a
preponderance of the evidence which requesting party is the most
appropriate recipient, then the agency may retain control of Native
American human remains, funerary objects, sacred objects, or objects of
cultural patrimony that are discovered inadvertently, excavated, or part
of a collection. The disputed items may be retained until the requesting
parties mutually agree on the appropriate recipient or the dispute is
otherwise resolved. There is no set time during which multiple claims
must be resolved.

2\. If NPS has right of possession to Native American human remains,
funerary objects, sacred objects, or objects of cultural patrimony that
are discovered inadvertently, excavated, or part of a collection, then
NPS may retain control of the items. Right of possession means
possession obtained with the voluntary consent of an individual or group
that had authority of alienation. If Native American human remains and
associated funerary objects were excavated, exhumed, or otherwise
obtained with the 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, then the agency has the right of
possession to these remains and objects. If a Native American
unassociated funerary object, sacred object, or object of cultural
patrimony were acquired from an Indian tribe or Native Hawaiian
organization with the voluntary consent of an

> US Department of the Interior Page 1 of 2
>
> **National Park Service** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Deaccession Number

  -----------------------------------------------------------------------
  **Repatriation Agreement**

  -----------------------------------------------------------------------

> The Native American Graves Protection and Repatriation Act of 1990
> (NAGPRA) provides definitions and procedures for the repatriation of
> certain Native American human remains and cultural items, as defined
> in 25 U.S.C. 3001-3013, in the possession of federal agencies and
> museums that receive federal funds to lineal descendants, Indian
> tribes, and native Hawaiian organizations; and
>
> The representatives of the National Park Service
> [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}\[NPS
> unit\] have engaged in consultation with representatives of
> [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}\[The
> TRIBE\] to determine the applicability of these definitions and
> procedures to objects currently in the possession of the National Park
> Service [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}\[NPS
> unit\].
>
> The National Park Service [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}
> \[NPS unit\] and [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline} \[The
> TRIBE\] do hereby agree to the following:
>
> 1\. That [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline} \[The TRIBE\] is
> recognized as eligible for the special programs and service provided
> by the United States to Indians because of their status as Indians,
> and thus has status to make a claim for repatriation under NAGPRA;
>
> 2\. That all cultural items described on the attached list meet the
> criteria outlined in the Native American Graves Protection and
> Repatriation Act of 1990 (25 USC 3001-3013) and 43 CFR 10.2 (b), such
> that:
>
> a\. all *human remains* are of Native American ancestry and do not
> include remains or portions of remains freely given by the individual
> from whose body they were obtained;
>
> b\. all *funerary objects* are known or reasonably believed to have
> been placed intentionally at the time of death or later with or near
> individual human remains;
>
> c\. all *sacred objects* are specific objects needed by traditional
> Native American religious leaders for the current practice of
> traditional Native American religions by their present-day adherents;
>
> d\. all *objects of cultural patrimony* have ongoing historical,
> traditional, or cultural importance central to
> [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline} \[The TRIBE\], rather
> than to an individual tribal member and, as such, may not be
> alienated, appropriated, or conveyed by an individual Tribal member;
> and such object shall have been considered inalienable at the time the
> object was separated from [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}
> \[The TRIBE\];
>
> 3\. That all cultural items described on the attached inventory were
> produced or used by an identifiable earlier group;
>
> 4\. That evidence exists of a shared group identity that can be
> reasonably traced between [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}
> \[The TRIBE\] and the earlier group;
>
> 5\. That a Notice of Inventory Completion concerning the human remains
> or associated funerary objects, or a Notice of Intent to Repatriate
> concerning unidentified funerary objects, sacred objects or objects of
> cultural patrimony described on the attached list has been published
> in the *Federal Register*. In the time since that publication \[at
> least thirty days\] neither the National Park Service
> [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline} \[NPS unit\] nor
> [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline} \[The TRIBE\] has become
> aware of any competing claim;
>
> 6\. That, effective on the date of execution of this Repatriation
> Agreement, the National Park Service
> [\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline} \[NPS unit\] transfers to
> [\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline} \[The TRIBE\] all
> responsibility associated with the items described on the attached
> inventory.

7\. That this Repatriation Agreement releases the National Park Service
from any future claims by \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \[The
TRIBE\] regarding the objects described on the attached inventory.

**Figure 6. Sample Repatriation Agreement -- page 1 (from NPS Museum
Handbook).**

Page 2 of 2

**Figure 6 (continued). Sample Repatriation Agreement -- page 2.**

individual or group with authority to alienate such object, then the
agency has the right of possession to that object.

3\. If Native American human remains, funerary objects, sacred objects,
or objects of cultural patrimony that are part of a collection are
indispensable to the completion of a specific study, the outcome of
which is of major benefit to the United States, then NPS may temporarily
retain control of the items. In such circumstances, the items must be
returned to the appropriate lineal descendant, Indian tribe, or Native
Hawaiian organization no later than 90 days after completion of the
study.

4\. Native American human remains that are part of NPS collections and
for which no culturally affiliated present-day Indian tribe or Native
Hawaiian organization can be determined, including remains that can be
shown to have a cultural relationship with non-Federally recognized
Indian groups, are considered culturally unidentifiable. NPS must retain
possession of culturally unidentifiable Native American human remains
until regulations governing their disposition \[43 CFR 10.11\] have been
finalized unless legally required to do otherwise or recommended to do
otherwise by the Secretary of the Interior. Recommendations regarding
the disposition of culturally unidentifiable Native American human
remains may be requested from the NAGPRA Review Committee, on a
case-by-case basis, prior to final promulgation of regulations governing
the disposition of culturally unidentifiable Native American human
remains.

5\. Unclaimed Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony are those that are discovered
inadvertently or excavated from park lands after November 16, 1990 for
which either no claimant has been identified in accordance with the
priority of custody as described in the regulations \[43 CFR 10.6\] or
for which no claim has been received. NPS may retain possession of
unclaimed Native American human remains and other cultural items until
custody has been resolved or until regulations governing disposition of
unclaimed Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony \[43 CFR 10.7\] have been
finalized.

**11. DOCUMENTATION**

**a. The Administrative Record**

The administrative record must document all disposition or repatriation
actions. It must include documentation of the Native American human
remains, funerary objects, sacred objects, or objects of cultural
patrimony under consideration and copies of all written correspondence,
a log of all telephone conversations, documentation of all consultation
meetings, and copies of all agreements between the relevant parties. The
original file should be retained by the park as part of the museum
archive collection and, if appropriate, the archeological site file. A
copy should be sent to the regional office or center that maintains
records concerning park archeology or museum collections. These files
should be retained even after the disposition or repatriation of the
relevant Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony.

**b. Confidentiality**

In some situations, the information needed by the superintendent to make
a decision regarding applicability of the statutory terms to particular
objects may be considered extremely sensitive by Indian tribe and Native
Hawaiian organization representatives. The NPS has a limited ability to
protect sensitive information from public disclosure.

The Freedom of Information Act gives any person the right to access
Federal agency records, except to the extent that such records are
protected from disclosure by one of nine exemptions or three special law
enforcement record exclusions. There is no specific provision in NAGPRA
that protects sensitive information from public disclosure. Other
disclosure limitations, such as those in the Archaeological Resources
Protection Act, the National Historic Preservation Act, and the National
Parks Omnibus Act may provide some flexibility in protecting sensitive
information from public disclosure. ARPA requires that information
concerning the nature and location of any archeological resource whose
excavation or removal requires a permit may not be made available to the
public without the consent of the appropriate Federal land manager
pursuant to the conditions outlined at 16 USC 470hh. The National
Historic Preservation Act requires the head of a Federal agency or other
public official to withhold from disclosure to the public information
about the location, character, or ownership of a historic resource if
the Secretary of the Interior and the agency determine that disclosure
would cause a significant invasion of privacy, risk harm to the
resource, or impede the use of a traditional religious site by
practitioners \[16 USC 470w-3\]. The National Parks Omnibus Act
authorizes the withholding of information on the nature and location of
objects of cultural patrimony in National Park System units \[16 USC
5937\]. See also Management Policies 5.2.3.

It is important to be candid with Indian tribe and Native Hawaiian
organization representatives about the limited protection that can be
given to sensitive information. During consultation, NPS officials
should not request more information than is needed to decide whether
remains or objects fit into NAGPRA categories, to make determinations of
cultural affiliation, or to support other decisions regarding the
disposition or repatriation of Native American human remains, funerary
objects, sacred objects, and objects of cultural patrimony.

**12. LONG-TERM MANAGEMENT: COMPREHENSIVE AGREEMENTS**

Whenever possible, parks should enter into comprehensive agreements with
culturally affiliated Indian tribes or Native Hawaiian organizations
that have claimed, or are likely to claim, human remains and other
cultural items excavated intentionally or discovered inadvertently on
Federal lands \[43 CFR 10.5 (f)\]. Although comprehensive agreements are
optional, they can be useful in streamlining and managing the
consultation process over the long-term. Agreements should address all
land management activities that could result in the intentional
excavation or inadvertent discovery of human remains, funerary objects,
sacred objects, or objects of cultural patrimony and should establish a
process for effectively carrying out the requirements of NAGPRA
regulations regarding consultation \[43 CFR 10.5\], the determination of
custody \[43 CFR 10.5 and 10.6\], and the treatment and disposition of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony.

**13*.* GLOSSARY**

[Aboriginal land]{.underline} -- The regulations implementing NAGPRA
\[43 CFR 10.6(a)(2)(iii)\] refer to aboriginal land as Federal land that
is recognized by a final judgment of the Indian Claims Commission or the
United States Court of Claims as the aboriginal land of an Indian tribe.

[Associated funerary objects]{.underline} -- The regulations
implementing NAGPRA \[43 CFR 10.2(d)(2)(i)\] define associated funerary
objects as those funerary objects for which the Native American human
remains with which they were placed intentionally are also in the
possession or control of a museum or Federal agency. Associated funerary
objects also means those funerary objects that were made exclusively for
burial purposes or to contain Native American human remains.

[Control]{.underline} -- The regulations implementing NAGPRA \[43 CFR
10.2(a)(3)(ii)\] define control as having a legal interest in human
remains, funerary objects, sacred objects, or objects of cultural
patrimony sufficient to lawfully permit the museum or Federal agency to
treat the objects as part of its collection for purposes of these
regulations whether or not the human remains, funerary objects, sacred
objects or objects of cultural patrimony are in the physical custody of
the museum or Federal agency. Generally, a museum or Federal agency that
has loaned human remains, funerary objects, sacred objects, or objects
of cultural patrimony to another individual, museum, or Federal agency
is considered to retain control of those human remains, funerary
objects, sacred objects, or objects of cultural patrimony.

[Cultural affiliation]{.underline} -- The regulations implementing
NAGPRA \[43 CFR 10.2(e)\] define cultural affiliation as a relationship
of shared group identity which can reasonably be traced historically or
prehistorically between members of a present-day Indian tribe or Native
Hawaiian organization and an identifiable earlier group. Cultural
affiliation is established when the preponderance of the evidence \--
based on geographical, kinship, biological, archeological, linguistic,
folklore, oral tradition, historical evidence, or other information or
expert opinion \-- reasonably leads to such a conclusion.

[Culturally unidentifiable --]{.underline} The National NAGPRA program
defines culturally unidentifiable in its online glossary as cultural
items for which no culturally affiliated present-day Indian tribe or
Native Hawaiian organization can be determined.
\<http://www.cr.nps.gov/nagpra/TRAINING/GLOSSARY.HTM\>

[Disposition]{.underline} -- Disposition is not defined in the statute
or regulations. As used in this document, disposition refers to the
transfer of cultural items inadvertently discovered or intentionally
excavated on park lands after November 16, 1990 -- based on the priority
of custody as described in the regulations \[43 CFR 10.6\] and assuming
appropriate claimants have been identified and custody can be determined
-- to lineal descendants, Indian Tribes, or Native Hawaiian
organizations. If no claimant is identified or custody cannot be
determined, disposition may be to an appropriate NPS repository.

[Funerary objects]{.underline} -- The regulations implementing NAGPRA
\[43 CFR 10.2(d)(2)\] define funerary objects 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 with or near
individual Native American human remains. Funerary objects must be
identified by a preponderance of the evidence as having been removed
from a specific burial site of an individual affiliated with a
particular Indian tribe or Native Hawaiian organization or as being
related to specific individuals or families or to known Native American
human remains. The term burial site means any natural or prepared
physical location, whether originally below, on, or above the surface of
the earth, into which, as part of the death rite or ceremony of a
culture, individual Native American human remains were deposited, and
includes rock cairns or pyres which do not fall within the ordinary
definition of gravesite.

[Human remains]{.underline} -- The regulations implementing NAGPRA \[43
CFR 10.2(d)(1)\] define Native American human remains as the physical
remains of a body of a person of Native American ancestry. The term does
not include remains or portions of remains that may reasonably be
determined to have been freely given or naturally shed by the individual
from whose body they were obtained, such as hair made into ropes or
nets. For the purposes of determining cultural affiliation, Native
American human remains incorporated into a funerary object, sacred
object, or object of cultural patrimony, as defined below, must be
considered as part of that item.

[Indian tribe]{.underline} -- The regulations implementing NAGPRA \[43
CFR 10.2(b)(2)\] define Indian tribe as any tribe, band, nation, or
other organized Indian group or community of Indians, including any
Alaska Native village or corporation as defined in or established by the
Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), which is
recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.

[Lineal descendant]{.underline} -- The regulations implementing NAGPRA
\[43 CFR 10.2(b)(1)\] define lineal descendant as an individual tracing
his or her ancestry directly and without interruption by means of the
traditional kinship system of the appropriate Indian tribe or Native
Hawaiian organization or by the common law system of descendance to a
known Native American individual whose remains, funerary objects, or
sacred objects are being claimed.

[Native Hawaiian organization]{.underline} -- The regulations
implementing NAGPRA \[43 CFR 10.2(b)(3)\] define Native Hawaiian
organization as any organization that serves and represents the
interests of Native Hawaiians, has as a primary and stated purpose the
provision of services to Native Hawaiians, and has expertise in Native
Hawaiian affairs. The statute specifically identifies the Office of
Hawaiian Affairs and Hui Malama I Na Kupuna \'O Hawai\'i Nei as being
Native Hawaiian organizations. Native Hawaiian organizations need not
comprise mostly Native Hawaiian members.

[Notice of Intended Disposition]{.underline} -- A notice that is
published in newspapers by the Federal agency official responsible for
cultural items excavated or removed from Federal lands.

[Notice of Intent to Repatriate]{.underline} -- A notice that is
published in the *Federal Register* when a museum or Federal agency
receives, reviews, and accepts a claim by a tribe for sacred objects,
unassociated funerary objects, or objects of cultural patrimony.

[Notice of Inventory Completion]{.underline} -- A notice that is
published in the *Federal Register* when a museum or Federal agency has
made a determination of cultural affiliation for Native American human
remains and associated funerary objects in its possession or control.

[Objects of cultural patrimony]{.underline} -- The regulations
implementing NAGPRA \[43 CFR 10.2(d)(4)\] define objects of cultural
patrimony as items having ongoing historical, traditional, or cultural
importance central to the Indian tribe or Native Hawaiian organization
itself, rather than property owned by an individual tribal or
organization member. These objects are of such central importance that
they may not be alienated, appropriated, or conveyed by any individual
tribal or organization member. Such objects must have been considered
inalienable by the culturally affiliated Indian tribe or Native Hawaiian
organization at the time the object was separated from the group.
Objects of cultural patrimony include items such as Zuni War Gods, the
Confederacy Wampum Belts of the Iroquois, and other objects of similar
character and significance to the Indian tribe or Native Hawaiian
organization as a whole.

[Preponderance of evidence]{.underline} -- *Black's Law Dictionary*
(1991, abridged 6^th^ edition, p. 819) defines preponderance of evidence
as "...evidence which is of greater weight or more convincing than the
evidence which is offered in opposition to it; that is evidence which as
a whole shows that the fact sought to be proved is more probable than
not. ...greater weight of evidence, or evidence which is more credible
and convincing to the mind. That which best accords with reason and
probability. ...'preponderance' means something more than 'weight'; it
denotes a superiority of weight, or outweighing." (p. 819)

[Repatriation]{.underline} -- Repatriation is not defined in the statute
or regulations. The National NAGPRA program, in its online glossary
\<http://www.cr.nps.gov/nagpra/TRAINING/GLOSSARY.HTM\> defines
repatriation as the transfer of physical custody of and legal interest
in Native American cultural items to lineal descendants, culturally
affiliated Indian tribes, and Native Hawaiian organizations.

[Sacred objects]{.underline} -- The regulations implementing NAGPRA \[43
CFR 10.2(d)(3)\] define sacred objects as items that are specific
ceremonial objects needed by traditional Native American religious
leaders for the practice of traditional Native American religions by
their present-day adherents. While many items, from ancient pottery
sherds to arrowheads, might be imbued with sacredness in the eyes of an
individual, these regulations are specifically limited to objects that
were devoted to a traditional Native American religious ceremony or
ritual and which have religious significance or function in the
continued observance or renewal of such ceremony. The term traditional
religious leader means a person who is recognized by members of an
Indian tribe or Native Hawaiian organization as being responsible for
performing cultural duties relating to the ceremonial or religious
traditions of that Indian tribe or Native Hawaiian organization, or
exercising a leadership role in an Indian tribe or Native Hawaiian
organization based on the tribe or organization\'s cultural, ceremonial,
or religious practices.

[Traditionally associated peoples]{.underline} -- *NPS Management
Policies 2001* defines traditionally associated peoples as "...park
neighbors, traditional residents, and former residents who remain
attached to a park area despite having relocated. \...social/cultural
entities such as tribes, communities, and kinship units are
'traditionally associated' with a particular park when (1) the entity
regards park resources as essential to its development and continued
identity as a culturally distinct people; (2) the association has
endured for at least two generations (40 years); and (3) the association
began prior to establishment of the park." (p. 130)

[Unassociated funerary objects]{.underline} -- The regulations
implementing NAGPRA \[43 CFR 10.2(d)(2)(ii)\] define unassociated
funerary objects as those funerary objects for which the Native American
human remains with which they were placed intentionally are not in the
possession or control of a museum or Federal agency. Objects that were
displayed with individual Native American human remains as part of a
death rite or ceremony of a culture and subsequently returned or
distributed according to traditional custom to living descendants or
other individuals are not considered unassociated funerary objects.

**14*.* FREQUENTLY ASKED QUESTIONS**

*May Native American human remains or other cultural items be reburied
without transfer of control or custody?*

> No. Control and/or custody of Native American human remains and other
> cultural items [must]{.underline} be transferred to the appropriate
> lineal descendant, Indian tribe or Native Hawaiian organization before
> reburial may take place.

*May Native American human remains or other cultural items be reburied
on park land?*

> Current NPS policy (*NPS Management Policies 2001*, section 5.3.4)
> allows the reburial of Native American human remains recovered from
> park property in the same park from which they were removed. Issues
> that must be considered include the nature of the reinterment, how the
> reinterment will be conducted, the place of reburial, future use of
> the area, and future protection of the area.

*Must a Notice of Intended Disposition be published in local newspapers
if the Native American human remains or other cultural items discovered
inadvertently are left in situ (not moved from their place of
discovery)?*

> No. A Notice of Intended Disposition need not be published in local
> newspapers if, after consultation and preparation of a written plan of
> action, it has been determined that the Native American human remains
> or other cultural items will be left *in situ*. However, the safety of
> the human remains and other cultural items must be ensured. See Figure
> 2.

*Must a Notice of Intended Disposition be published in local newspapers
if the Native American human remains or other cultural items discovered
inadvertently are moved and reburied only a short distance from their
place of discovery?*

> Yes. A Notice of Intended Disposition is required anytime Native
> American human remains or other cultural items are moved from their
> place of discovery, no matter how close the reburial location is to
> the original site of discovery.

*Must a Notice of Intended Disposition be published in local newspapers
in situations where the Native American human remains or other cultural
items discovered inadvertently cannot be left in situ, for example
remains washed up on a beach?*

> Yes. A Notice of Intended Disposition is required anytime Native
> American human remains or other cultural items are moved from their
> place of discovery.

*Must a Notice of Intent to Repatriate be published in the Federal
Register prior to repatriating Native American human remains and/or
associated funerary objects?*

> No. A Notice of Intent to Repatriate is not intended as notification
> of the repatriation of Native American human remains and/or associated
> funerary objects. Notices of Intent to Repatriate cover only sacred
> objects, unassociated funerary objects, or objects of cultural
> patrimony and are published after a claim has been received,
> evaluated, and accepted. As long as a Notice of Inventory Completion
> has been published; thirty days has passed since its publication; a
> claim has been received, and no other claimants have come forward,
> repatriation of Native American human remains and/or associated
> funerary objects may proceed.

*Must potential or identified lineal descendants be members of a
federally recognized tribe?*

> No. Lineal descendants as defined under NAGPRA need not be members of
> a federally recognized tribe \[43 CFR 10.14(b)\].

*Must a request for repatriation (claim) be in writing?*

> According to NAGPRA regulations \[43 CFR 10.15(1)\], a "timely claim"
> is required. For these purposes, a ''timely claim'' means the filing
> of a written claim with a responsible museum or Federal agency
> official. According to the NPS *Museum Handbook* (p. 6:33), a request
> for repatriation must either be received in writing or documented in
> writing. The claim must be from a recognized lineal descendant or an
> authorized tribal official. See Section 4 and 43 CFR 10.2(b) for more
> information about parties with standing to claim NAGPRA items.