§ 10.9 Repatriation of unassociated funerary objects, sacred objects, or objects of cultural patrimony. Each museum and Federal agency that has possession or control of a holding or collection that may contain an unassociated funerary object, sacred object, or object of cultural patrimony must follow the steps in this section. The purpose of this section is to provide general information about a holding or collection to lineal descendants, Indian Tribes, and Native Hawaiian organizations to facilitate repatriation. ( a ) *Step 1—Compile a summary of a holding or collection.* Based on the information available, a museum or Federal agency must compile a summary describing any holding or collection that may contain unassociated funerary objects, sacred objects, or objects of cultural patrimony. Depending on the scope of the holding or collection, a museum or Federal agency may organize its summary into sections based on geographical area, accession or catalog name or number, or other defining attributes. A museum or Federal agency must ensure the summary is comprehensive and covers any holding or collection relevant to this section. ( 1 ) A summary must include: ( i ) The estimated number and a general description of the holding or collection, including any potential cultural items;
( ii ) The geographical location (provenience) by county or State where the potential cultural items;
( iii ) The acquisition history (provenance) of the potential cultural items;
( iv ) Other information relevant for identifying: ( A ) A lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation, and
( B ) Any object as an unassociated funerary object, sacred object, or object of cultural patrimony; and
( v ) The presence of any potentially hazardous substances used to treat any of the unassociated funerary objects, sacred objects, or objects of cultural patrimony, if known.
( 2 ) After January 12, 2024, a museum or Federal agency must submit a summary to the Manager, National NAGPRA Program, by the deadline in Table 1 of this paragraph (a)(2). Table 1 to § 10.9(a)(2)—Deadlines for Compiling a Summary
If a museum or Federal agency . . .
. . . a summary must be submitted . . . acquires possession or control of unassociated funerary objects, sacred objects, or objects of cultural patrimony
6 months after acquiring possession or control of the unassociated funerary objects, sacred objects, or objects of cultural patrimony. locates previously lost or unknown unassociated funerary objects, sacred objects, or objects of cultural patrimony
6 months after locating the unassociated funerary objects, sacred objects, or objects of cultural patrimony. receives Federal funds for the first time after January 12, 2024, and has possession or control of unassociated funerary objects, sacred objects, or objects of cultural patrimony
3 years after receiving Federal funds for the first time after January 12, 2024.
( 3 ) After January 12, 2024, when a holding or collection previously included in a summary is transferred to a museum or Federal agency, the museum or Federal agency acquiring possession or control of the holding or collection may rely on the previously compiled summary. ( i ) No later than 30 days after acquiring the holding or collection, the museum or Federal agency must send the previously compiled summary to the Manager, National NAGPRA Program.
( ii ) No later than the deadline in Table 1 to paragraph (a)(2) of this section, the museum or Federal agency must compile a summary under paragraph (a)(1) of this section based on the previously compiled summary and additional information available. The museum or Federal agency must submit the summary to the Manager, National NAGPRA Program, and must initiate consultation under paragraph (b) of this section.
( 4 ) Prior to January 12, 2024, a museum or Federal agency must have submitted a summary to the Manager, National NAGPRA Program: ( i ) By November 16, 1993, for unassociated funerary objects, sacred objects, or objects of cultural patrimony subject to the Act;
( ii ) By October 20, 2007, for unassociated funerary objects, sacred objects, or objects of cultural patrimony acquired or located after November 16, 1993;
( iii ) By April 20, 2010, for unassociated funerary objects, sacred objects, or objects of cultural patrimony in the possession or control of a museum that received Federal funds for the first time after November 16, 1993;
( iv ) After October 20, 2007, six months after acquiring or locating unassociated funerary objects, sacred objects, or objects of cultural patrimony; or
( v ) After April 20, 2010, three years after receiving Federal funds for the first time.
( b ) *Step 2—Initiate consultation.* No later than 30 days after compiling a summary, 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 summary described in paragraph (a)(1) of this section;
( ii ) The names of all consulting parties; and
( iii ) A proposed 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 six months 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 cultural items.* A museum or Federal agency must respond to any consulting party, regardless of whether the party has received an invitation to consult. Consultation on an unassociated funerary object, sacred object, or object of cultural patrimony may continue until the museum or Federal agency sends a repatriation statement for that object to a requestor under paragraph (g) of this section. ( 1 ) In 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 unassociated funerary objects, sacred objects, or objects of cultural patrimony; and
( iv ) The duty of care under § 10.1(d) for unassociated funerary objects, sacred objects, or objects of cultural patrimony.
( 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 a museum or Federal agency sends a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony to a requestor under paragraph (g) of this section, the 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 the holding or collection. 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 unassociated funerary object, sacred object, or object of cultural patrimony.
( d ) *Step 4—Receive and consider a request for repatriation.* After a summary is compiled, any lineal descendant, Indian Tribe, or Native Hawaiian organization may submit to the museum or Federal agency a written request for repatriation of an unassociated funerary object, sacred object, or object of cultural patrimony. ( 1 ) A request for repatriation of an unassociated funerary object, sacred object, or object of cultural patrimony must be received by the museum or Federal agency before the museum or Federal agency sends a repatriation statement for that unassociated funerary object, sacred object, or object of cultural patrimony to a requestor under paragraph (g) of this section. A request for repatriation received by the museum or Federal agency before the deadline for compiling a summary in table 1 to paragraph (a)(2) of this section is dated the same date as the deadline for compiling the summary.
( 2 ) Requests from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony are considered a single request and not competing requests.
( 3 ) A request for repatriation must satisfy the following criteria: ( i ) Each unassociated funerary object, sacred object, or object of cultural patrimony being requested meets the definition of an unassociated funerary object, a sacred object, or an object of cultural patrimony;
( ii ) The request is from a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation; and
( iii ) The request includes information to support a finding that the museum or Federal agency does not have right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony.
( e ) *Step 5—Respond to a request for repatriation.* 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 consulting party. 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 for repatriation satisfies the criteria under paragraph (d) of this section. In the written response, the museum or Federal agency must state one of the following: ( 1 ) The request meets the criteria under paragraph (d) of this section. The museum or Federal agency must submit a notice of intended repatriation under paragraph (f) of this section.
( 2 ) The request does not meet the criteria under paragraph (d) 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.
( 3 ) The request meets the criteria under paragraph (d)(3)(i) and (ii) of this section, but the museum or Federal agency asserts a right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony and refuses repatriation of the requested object to the requestor. The museum or Federal agency must provide information to prove that the museum or Federal agency has a right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony.
( 4 ) The museum or Federal agency has received competing requests for repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony that meet the criteria and must determine the most appropriate requestor using the procedures and deadlines under paragraph (h) of this section.
( f ) *Step 6—Submit a notice of intended repatriation.* No later than 30 days after responding to a request for repatriation that meets the criteria, a museum or Federal agency must submit a notice of intended repatriation. The museum or Federal agency may include in a single notice any unassociated funerary objects, sacred objects, or objects of cultural patrimony with the same requestor. ( 1 ) A notice of intended repatriation must be sent to all requestors, any consulting parties, and to the Manager, National NAGPRA Program, for publication in the Federal Register.
( 2 ) A notice of intended repatriation must conform to the mandatory format of the Federal Register and include: ( i ) An abstract of the information compiled under paragraph (a) of this section;
( ii ) The total number and brief description of the unassociated funerary objects, sacred objects, or objects of cultural patrimony (counted separately or by lot);
( iii ) The lineal descendant (whose name may be withheld), Indian Tribe, or Native Hawaiian organization requesting repatriation of the unassociated funerary objects, sacred objects, or objects of cultural patrimony;
( 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 the requestor.
( 3 ) No later than 21 days after receiving a notice of intended repatriation, the Manager, National NAGPRA Program, must: ( i ) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (f)(2) of this section; or
( ii ) Return to the museum or Federal agency any submission that does not conform to the requirements under paragraph (f)(2) of this section. No later than 14 days after the submission is returned, the museum or Federal agency must resubmit the notice of intended repatriation.
( 5 ) At any time before sending a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony under paragraph (g) of this section, the museum or Federal agency may receive additional, competing requests for repatriation of that object that meet the criteria under paragraph (d) of this section. The museum or Federal agency must determine the most appropriate requestor using the procedures and deadlines under paragraph (h) of this section.
( g ) *Step 7—Repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony.* No earlier than 30 days and no later than 90 days after publication of a notice of intended repatriation, 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 unassociated funerary object, sacred object, or object of cultural patrimony to the 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 unassociated funerary object, sacred object, or object of cultural patrimony.
( h ) *Evaluating competing requests for repatriation.* At any time before sending a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony under paragraph (g) of this section, a museum or Federal agency may receive additional, competing requests for repatriation of that object that meet the criteria under paragraph (d) of this section. The museum or Federal agency must determine the most appropriate requestor using this paragraph. ( 1 ) For an unassociated funerary object or sacred object, in the following priority order, the most appropriate requestor is: ( i ) The 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 ) For an object of cultural patrimony, the most appropriate requestor is the Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part.
( 3 ) 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 was received. In response, the 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 cultural items.
( 4 ) 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 and the competing requests were received before the publication of a notice of intended repatriation. The museum or Federal agency must: ( A ) Identify the most appropriate requestor and explain how the determination was made;
( B ) Submit a notice of intended repatriation in accordance with paragraph (f) of this section no later than 30 days after sending the determination; and
( C ) No earlier than 30 days and no later than 90 days after publication of the notice of intended repatriation, the museum or Federal agency must send a repatriation statement to the most appropriate requestor under paragraph (g) of this section;
( ii ) The most appropriate requestor has been determined and a notice of intended repatriation was previously published. The museum or Federal agency must: ( A ) Identify the most appropriate requestor and explain how the determination was made; and
( 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 (g) of this section; or
( iii ) The most appropriate requestor cannot be determined, and repatriation is stayed under paragraph (i)(2) of this section. The museum or Federal agency must briefly describe the information considered and explain how the determination was made.
( i ) *Stay of repatriation.* Repatriation under paragraph (g) 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 (g) 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 (h) 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 (g) of this section.
( 3 ) Before the publication of a notice of intended repatriation under paragraph (f) of this section, the museum or Federal agency has both requested and received the Assistant Secretary's written concurrence that the unassociated funerary object, sacred object, or object of cultural patrimony is 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 unassociated funerary object, sacred object, or object of cultural patrimony 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 determination, the museum or Federal agency must submit a notice of intended repatriation in accordance with paragraph (f) of this section.
( iv ) No earlier than 30 days and no later than 90 days after publication of the notice of intended repatriation, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (g) of this section.