§ 10.10 Repatriation of human remains or associated funerary objects. Each museum and Federal agency that has possession or control of a holding or collection that may contain human remains or associated funerary objects must follow the steps in this section. The purpose of this section is to provide notice of determinations, following consultation, about human remains or associated funerary objects to lineal descendants, Indian Tribes, and Native Hawaiian organizations to facilitate repatriation. ( a ) *Step 1—Compile an itemized list of any human remains and associated funerary objects.* Based on information available, a museum or Federal agency must compile a simple itemized list of any human remains and associated funerary objects in a holding or collection. Depending on the scope of the holding or collection, a museum or Federal agency may organize its itemized list into sections based on geographical area, accession or catalog name or number, or other defining attributes. A museum or Federal agency must ensure the itemized list is comprehensive and covers all holdings or collections relevant to this section. The simple itemized list must include: ( 1 ) The number of individuals identified in a reasonable manner based on the information available. No additional study or analysis is required to identify the number of individuals. If human remains are in a holding or collection, the number of individuals is at least one;
( 2 ) The number of associated funerary objects and types of objects (counted separately or by lot);
( 3 ) The geographical location (provenience) by county or State where the human remains or associated funerary objects were removed;
( 4 ) The acquisition history (provenance) of the human remains or associated funerary objects;
( 5 ) Other information available for identifying a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation; and
( 6 ) The presence of any potentially hazardous substances used to treat any of the human remains or associated funerary objects, if known.
( b ) *Step 2—Initiate consultation.* As soon as possible after compiling an itemized list, a museum or Federal agency must identify consulting parties based on information available and invite the parties to consult. ( 1 ) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential cultural affiliation.
( 2 ) An invitation to consult must be in writing and must include: ( i ) The itemized list described in paragraph (a) of this section;
( ii ) The names of all consulting parties; and
( iii ) A proposed timeline and method for consultation.
( 3 ) When a museum or Federal agency identifies a new consulting party under paragraph (b)(1) of this section, the museum or Federal agency must invite the party to consult. An invitation to consult under paragraph (b)(2) of this section must be sent: ( i ) No later than 30 days after identifying a new consulting party based on new information; or
( ii ) No later than two years after the addition of a Tribal entity to the list of federally recognized Indian Tribes published in the Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C. 5131).
( c ) *Step 3—Consult on human remains or associated funerary objects.* A museum or Federal agency must respond to any consulting party, regardless of whether the party has received an invitation to consult. Consultation on human remains or associated funerary objects may continue until the museum or Federal agency sends a repatriation statement for those human remains or associated funerary objects to a requestor under paragraph (h) of this section. ( 1 ) In the response to a consulting party, a museum or Federal agency must ask for the following information, if not already provided: ( i ) Preferences on the proposed timeline and method for consultation; and
( ii ) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leader, and known lineal descendant who may participate in consultation.
( 2 ) Consultation must address identification of: ( i ) Lineal descendants;
( ii ) Indian Tribes or Native Hawaiian organizations with cultural affiliation;
( iii ) The types of objects that might be associated funerary objects, including any objects that were made exclusively for burial purposes or to contain human remains; and
( iv ) The duty of care under § 10.1(d) for human remains or associated funerary objects.
( 3 ) The museum or Federal agency must prepare a record of consultation that describes the concurrence, disagreement, or nonresponse of the consulting parties to the identifications in paragraph (c)(2) of this section.
( 4 ) At any time before the museum or Federal agency sends a repatriation statement for human remains or associated funerary objects to a requestor under paragraph (h) of this section, a museum or Federal agency may receive a request from a consulting party for access to records, catalogues, relevant studies, or other pertinent data related to those human remains or associated funerary objects. A museum or Federal agency must provide access to the additional information in a reasonable manner and for the limited purpose of determining cultural affiliation, including the geographical location or acquisition history, of the human remains or associated funerary objects.
( d ) *Step 4—Complete an inventory of human remains or associated funerary objects.* Based on information available and the results of consultation, a museum or Federal agency must submit to all consulting parties and the Manager, National NAGPRA Program, an inventory of any human remains and associated funerary objects in the holding or collection. ( 1 ) An inventory must include: ( i ) The names of all consulting parties and dates of consultation;
( ii ) The information, updated as appropriate, from the itemized list compiled under paragraph (a) of this section;
( iii ) For each entry in the itemized list, a determination identifying one of the following: ( A ) A known lineal descendant (whose name may be withheld);
( B ) The Indian Tribe or Native Hawaiian organization with cultural affiliation that is clearly identified by the information available about the human remains or associated funerary objects;
( C ) The Indian Tribe or Native Hawaiian organization with cultural affiliation that is reasonably identified by the geographical location or acquisition history of the human remains or associated funerary objects; or
( D ) No lineal descendant or any Indian Tribe or Native Hawaiian organization with cultural affiliation can be clearly or reasonably identified. The inventory must briefly describe the information considered under § 10.3(a) of this part and the criteria identified under § 10.3(b) of this part to explain how the determination was made.
( 2 ) After January 12, 2024, a museum or Federal agency must submit an inventory to all consulting parties and the Manager, National NAGPRA Program, by the deadline in table 1 of the paragraph (d)(2). Table 1 to § 10.10(d)(2)—Deadlines for Completing an Inventory
If a museum or Federal agency . . .
an inventory must be submitted . . . acquires possession or control of human remains or associated funerary objects
2 years after acquiring possession or control of human remains or associated funerary objects. locates previously lost or unknown human remains or associated funerary objects
2 years after locating the human remains or associated funerary objects. receives Federal funds for the first time after January 12, 2024, and has possession or control of human remains or associated funerary objects
5 years after receiving Federal funds for the first time after January 12, 2024.
( 3 ) No later than January 10, 2029, for any human remains or associated funerary objects listed in an inventory but not published in a notice of inventory completion prior to January 12, 2024, a museum or Federal agency must: ( i ) Initiate consultation as described under paragraph (b) of this section;
( ii ) Consult with consulting parties as described under paragraph (c) of this section;
( iii ) Update its inventory under paragraph (d)(1) of this section and ensure the inventory is comprehensive and covers all holdings or collections relevant to this section; and
( iv ) Submit an updated inventory to all consulting parties and the Manager, National NAGPRA Program.
( 4 ) After January 12, 2024, when a holding or collection previously included in an inventory is transferred to a museum or Federal Agency, subject to the limitations in 18 U.S.C. 1170(a), the museum or Federal agency acquiring possession or control of the holding or collection may rely on the previously completed or updated inventory. ( i ) No later than 30 days after acquiring the holding or collection, the museum or Federal agency must send the previously completed or updated inventory to initiate consultation under paragraph (b) of this section and notify the Manager, National NAGPRA Program.
( ii ) No later than the deadline in Table 1 to paragraph (d)(2) of this section, the museum or Federal agency must complete an inventory under paragraphs (d)(1) and (d)(2) of this section based on the previously completed or updated inventory, additional information available, and the results of consultation.
( 5 ) Any museum may request an extension to complete or update its inventory if it has made a good faith effort but is unable to do so by the appropriate deadline. A request for an extension must be submitted to the Manager, National NAGPRA Program, before the appropriate deadline. The Manager, National NAGPRA Program must publish in the Federal Register a list of any museum who request an extension and the Assistant Secretary's determination on the request. A request for an extension must include: ( i ) Information showing the initiation of consultation;
( ii ) The names of all consulting parties and consent to the extension request from a majority of consulting parties, evidenced by a signed agreement or official correspondence to the museum;
( iii ) The estimated number of human remains and associated funerary objects in the holding or collection; and
( iv ) A written plan for completing or updating the inventory, which includes, at minimum: ( A ) The specific steps required to complete or update the inventory;
( B ) A schedule for completing each step and estimated inventory completion or update date;
( C ) Position titles of the persons responsible for each step in the schedule; and
( D ) A proposal to obtain any requisite funding needed to complete or update the inventory.
( 6 ) Prior to January 12, 2024, a museum or Federal agency must have submitted an inventory to all consulting parties and the Manager, National NAGPRA Program: ( i ) By November 16, 1995, for human remains or associated funerary objects subject to the Act;
( ii ) By April 20, 2009, for human remains or associated funerary objects acquired or located after November 16, 1995;
( iii ) By April 20, 2012, for human remains or associated funerary objects in the possession or control of a museum that received Federal funds for the first time after November 16, 1995;
( iv ) After April 20, 2009, two years after acquiring or locating the human remains or associated funerary objects; or
( v ) After April 20, 2012, five years after receiving Federal funds for the first time after April 20, 2012.
( e ) *Step 5—Submit a notice of inventory completion.* No later than six months after completing or updating an inventory under paragraph (d) of this section, a museum or Federal agency must submit a notice of inventory completion for all human remains or associated funerary objects in the inventory. The museum or Federal agency may include in a single notice any human remains or associated funerary objects having the same determination under paragraph (d)(1)(iii) of this section. ( 1 ) A notice of inventory completion must be sent to any consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register.
( 2 ) A notice of inventory completion must conform to the mandatory format of the Federal Register and include the following for all human remains or associated funerary objects in the notice: ( i ) An abstract of the information compiled under paragraph (d)(1)(ii) of this section;
( ii ) The determination under paragraph (d)(1)(iii) of this section;
( iii ) The total number of individuals and associated funerary objects (counted separately or by lot);
( iv ) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and
( v ) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the museum or Federal agency may send a repatriation statement to a requestor.
( 3 ) No later than 21 days after receiving a notice of inventory completion, the Manager, National NAGPRA Program, must: ( i ) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (e)(2) of this section; or
( ii ) Return to the museum or Federal agency any submission that does not conform to the requirements under paragraph (e)(2) of this section. No later than 14 days after the submission is returned, the museum or Federal agency must resubmit the notice of inventory completion.
( f ) *Step 6—Receive and consider a request for repatriation.* After publication of a notice of inventory completion in the Federal Register, any lineal descendant, Indian Tribe, or Native Hawaiian organization may submit to the museum or Federal agency a written request for repatriation of human remains or associated funerary objects. ( 1 ) A request for repatriation of human remains or associated funerary objects must be received by the museum or Federal agency before the museum or Federal agency sends a repatriation statement for those human remains or associated funerary objects under paragraph (h) of this section. A request for repatriation received by the museum or Federal agency before the publication of the notice of inventory completion is dated the same date the notice was published.
( 2 ) Requests from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint repatriation of the human remains or associated funerary objects are considered a single request and not competing requests.
( 3 ) A request for repatriation must satisfy one of the following criteria: ( i ) The requestor is identified in the notice of inventory completion, or
( ii ) The requestor is not identified in the notice of inventory completion, and the request shows, by a preponderance of the evidence, that the requestor is a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation.
( g ) *Step 7—Respond to a request for repatriation.* No earlier than 30 days after publication of a notice of inventory completion but no later than 90 days after receiving a request for repatriation, a museum or Federal agency must send a written response to the requestor with a copy to any other party identified in the notice of inventory completion. Using the information available, including relevant records, catalogs, existing studies, and the results of consultation, a museum or Federal agency must determine if the request satisfies the criteria under paragraph (f) of this section. ( 1 ) In the written response, the museum or Federal agency must state one of the following: ( i ) The request meets the criteria under paragraph (f) of this section. The museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section, unless the museum or Federal agency receives additional, competing requests for repatriation.
( ii ) The request does not meet the criteria under paragraph (f) of this section. The museum or Federal agency must provide a detailed explanation why the request does not meet the criteria, and an opportunity for the requestor to provide additional information to meet the criteria.
( iii ) The museum or Federal agency has received competing requests for repatriation that meet the criteria and must determine the most appropriate requestor using the procedures and deadlines under paragraph (i) of this section.
( 2 ) At any time before sending a repatriation statement for human remains or associated funerary objects under paragraph (h) of this section, the museum or Federal agency may receive additional, competing requests for repatriation of those human remains or associated funerary objects that meet the criteria under paragraph (f) of this section. The museum or Federal agency must determine the most appropriate requestor using the procedures and deadlines under paragraph (i) of this section.
( h ) *Step 8—Repatriation of the human remains or associated funerary objects.* No later than 90 days after responding to a request for repatriation that meets the criteria, a museum or Federal agency must send a written repatriation statement to the requestor and a copy to the Manager, National NAGPRA Program. In a repatriation statement, a museum or Federal agency must relinquish possession or control of the human remains or associated funerary objects to a lineal descendant, Indian Tribe, or Native Hawaiian organization. In the case of joint requests for repatriation, a repatriation statement must identify and be sent to all requestors. ( 1 ) After sending a repatriation statement, the museum or Federal agency must: ( i ) Consult with the requestor on custody and physical transfer,
( ii ) Document any physical transfer, and
( iii ) Protect sensitive information, as identified by the requestor, from disclosure to the general public to the extent consistent with applicable law.
( 2 ) After a repatriation statement is sent, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the human remains or associated funerary objects.
( i ) *Evaluating competing requests for repatriation.* At any time before sending a repatriation statement for human remains or associated funerary objects under paragraph (h) of this section, a museum or Federal agency may receive additional, competing requests for repatriation of those human remains or associated funerary objects that meets the criteria under paragraph (f) of this section. The museum or Federal agency must determine the most appropriate requestor using this paragraph. ( 1 ) In the following priority order, the most appropriate requestor is: ( i ) The known lineal descendant, if any; or
( ii ) The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part.
( 2 ) No later than 14 days after receiving a competing request, a museum or Federal agency must send a written letter to each requestor identifying all requestors and the date each request for repatriation was received. In response, requestors may provide additional information to show by a preponderance of the evidence that the requestor has a stronger relationship of shared group identity to the human remains or associated funerary objects.
( 3 ) No later than 180 days after informing the requestors of competing requests, a museum or Federal agency must send a written determination to each requestor and the Manager, National NAGPRA Program. The determination must be one of the following: ( i ) The most appropriate requestor has been determined. The museum or Federal agency must: ( A ) Identify the most appropriate requestor and explain how the determination was made;
( B ) No earlier than 30 days and no later than 90 days after sending a determination of the most appropriate requestor, the museum or Federal agency must send a repatriation statement to the most appropriate requestor under paragraph (h) of this section.
( ii ) The most appropriate requestor cannot be determined, and repatriation is stayed under paragraph (j)(2) of this section. The museum or Federal agency must briefly describe the information considered and explain how the determination was made.
( j ) *Stay of repatriation.* Repatriation under paragraph (h) of this section is stayed if: ( 1 ) A court of competent jurisdiction has enjoined the repatriation. When there is a final resolution of the legal case or controversy in favor of a requestor, the museum or Federal agency must: ( i ) No later than 14 days after a resolution, send a written statement of the resolution to each requestor and the Manager, National NAGPRA Program;
( ii ) No earlier than 30 days and no later than 90 days after sending the written statement, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section, unless a court of competent jurisdiction directs otherwise.
( 2 ) The museum or Federal agency has received competing requests for repatriation and, after complying with paragraph (i) of this section, cannot determine the most appropriate requestor. When a most appropriate requestor is determined by an agreement between the parties, binding arbitration, or means of resolution other than through a court of competent jurisdiction, the museum or Federal agency must: ( i ) No later than 14 days after a resolution, send a written determination to each requestor and the Manager, National NAGPRA Program;
( ii ) No earlier than 30 days and no later than 90 days after sending the determination, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section.
( 3 ) Before the publication of a notice of inventory completion under paragraph (e) of this section, the museum or Federal agency has both requested and received the Assistant Secretary's written concurrence that the human remains or associated funerary objects are indispensable for completion of a specific scientific study, the outcome of which is of major benefit to the people of the United States. ( i ) To request the Assistant Secretary's concurrence, the museum or Federal agency must send to the Manager, National NAGPRA Program, a written request of no more than 10 double-spaced pages. The written request must: ( A ) Be on the letterhead of the requesting museum or Federal agency and be signed by an authorized representative;
( B ) Describe the specific scientific study, the date on which the study commenced, and how the study is of major benefit to the people of the United States;
( C ) Explain why retention of the human remains or associated funerary objects is indispensable for completion of the study;
( D ) Describe the steps required to complete the study, including any destructive analysis, and provide a completion schedule and completion date;
( E ) Provide the position titles of the persons responsible for each step in the schedule;
( F ) Affirm that the study has in place the requisite funding; and
( G ) Provide written documentation showing free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations to the study.
( ii ) In response to the request, the Assistant Secretary must: ( A ) Consult with lineal descendants, Indian Tribes, or Native Hawaiian organizations that consented to the study;
( B ) Send a written determination of concurrence or denial to the museum or Federal agency with a copy to the consulting parties; and
( C ) If the Assistant Secretary concurs, specify in the written determination the date by which the scientific study must be completed.
( iii ) No later than 30 days after the completion date in the Assistant Secretary's concurrence, the museum or Federal agency must submit a notice of inventory completion in accordance with paragraph (e) of this section.
( iv ) No earlier than 30 days after publication of the notice of inventory completion and no later than 90 days after responding to a request for repatriation, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section.
( k ) *Transfer or reinter human remains or associated funerary objects.* For human remains or associated funerary objects with no lineal descendant or no Indian Tribe or Native Hawaiian organization with cultural affiliation, a museum or Federal agency, at its discretion, may agree to transfer or decide to reinter the human remains or associated funerary objects. The museum or Federal agency must ensure it has initiated consultation under paragraph (b) of this section before taking any of the following steps. ( 1 ) *Step 1—Agree to transfer or decide to reinter.* A museum or Federal agency may: ( i ) Agree in writing to transfer the human remains or associated funerary objects to an Indian Tribe or Native Hawaiian organization;
( ii ) Decide in writing to reinter the human remains or associated funerary objects according to applicable laws and policies; or
( iii ) Receive a request for repatriation of the human remains or associated funerary objects at any time before transfer or reinterment and must evaluate whether the request meets the criteria under paragraph (f) of this section. ( A ) If the request for repatriation meets the criteria under paragraph (f) of this section, the museum or Federal agency must respond in writing under paragraph (g) of this section and proceed with repatriation under paragraph (h) of this section.
( B ) If the request does not meet the criteria under paragraph (f) of this section, the museum or Federal agency must respond in writing under paragraph (g) of this section and may proceed with transfer or reinterment after publication of a notice.
( 2 ) *Step 2—Submit a notice of proposed transfer or reinterment.* No later than 30 days after agreeing to transfer or deciding to reinter the human remains or associated funerary objects, the museum or Federal agency must submit a notice of proposed transfer or reinterment. ( i ) A notice of proposed transfer or reinterment must be sent to all consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register.
( ii ) A notice of proposed transfer or reinterment must conform to the mandatory format of the Federal Register and include: ( A ) An abstract of the information compiled under paragraph (d)(1)(ii) of this section;
( B ) The total number of individuals and associated funerary objects (counted separately or by lot);
( C ) The determination under paragraph (d)(1)(iii)(D) of this section that no lineal descendant or any Indian Tribe or Native Hawaiian organization with cultural affiliation can be clearly or reasonably identified. The notice must briefly describe the information considered and explain how the determination was made.
( D ) The names of all consulting parties identified under paragraph (b) of this section;
( E ) The Indian Tribe or Native Hawaiian organization requesting the human remains or associated funerary objects or a statement that the museum or Federal agency agrees to reinter the human remains or associated funerary objects;
( F ) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and
( G ) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the museum or Federal agency may proceed with the transfer or reinterment of the human remains or associated funerary objects.
( iii ) No later than 21 days after receiving a notice of proposed transfer or reinterment, the Manager, National NAGPRA Program, must: ( A ) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (k)(2)(ii) of this section; or
( B ) Return to the museum or Federal agency any submission that does not conform to the requirements under paragraph (k)(2)(ii) of this section. No later than 14 days after the submission is returned, the museum or Federal agency must resubmit the notice of proposed transfer or reinterment.
( 3 ) *Step 3—Transfer or reinter the human remains or associated funerary objects.* No earlier than 30 days and no later than 90 days after publication of a notice of proposed transfer or reinterment, the museum or Federal agency must transfer or reinter the human remains or associated funerary objects and send a written statement to the Manager, National NAGPRA Program, that the transfer or reinterment is complete. ( i ) After transferring or reinterring, the museum or Federal agency must: ( A ) Document the transfer or reinterment of the human remains or associated funerary objects, and
( B ) Protect sensitive information from disclosure to the general public to the extent consistent with applicable law.
( ii ) After transfer or reinterment occurs, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the human remains or associated funerary objects.