§ 3002 TITLE 25—INDIANS Page 646

2So in original. Probably should be followed by ‘‘and’’.

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.

(8) ‘‘museum’’ means any institution or

State or local government agency (including

any institution of higher learning) that receives Federal funds and has possession of, or

control over, Native American cultural items.

Such term does not include the Smithsonian

Institution or any other Federal agency.

(9) ‘‘Native American’’ means of, or relating

to, a tribe, people, or culture that is indigenous to the United States.

(10) ‘‘Native Hawaiian’’ means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised

sovereignty in the area that now constitutes

the State of Hawaii.

(11) ‘‘Native Hawaiian organization’’ means

any organization which—

(A) serves and represents the interests of

Native Hawaiians,

(B) has as a primary and stated purpose

the provision of services to Native Hawaiians, and

(C) has expertise in Native Hawaiian Affairs, and

shall include the Office of Hawaiian Affairs

and Hui Malama I Na Kupuna O Hawai’i Nei.

(12) ‘‘Office of Hawaiian Affairs’’ means the

Office of Hawaiian Affairs established by the

constitution of the State of Hawaii.

(13) ‘‘right of possession’’ means possession

obtained with the voluntary consent of an individual or group that had authority of alienation. The original acquisition of a Native

American unassociated funerary object, sacred

object or object of cultural patrimony from an

Indian tribe or Native Hawaiian organization

with the voluntary consent of an individual or

group with authority to alienate such object is

deemed to give right of possession of that object, unless the phrase so defined would, as applied in section 3005(c) of this title, result in a

Fifth Amendment taking by the United States

as determined by the United States Court of

Federal Claims pursuant to 28 U.S.C. 1491 in

which event the ‘‘right of possession’’ shall be

as provided under otherwise applicable property law. The original acquisition of Native

American human remains and associated funerary objects which were excavated, exhumed, or otherwise obtained with full knowledge and consent of the next of kin or the official governing body of the appropriate culturally affiliated Indian tribe or Native Hawaiian organization is deemed to give right of

possession to those remains.

(14) ‘‘Secretary’’ means the Secretary of the

Interior.

(15) ‘‘tribal land’’ means—

(A) all lands within the exterior boundaries of any Indian reservation;

(B) all dependent Indian communities; 2

(C) 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.

(Pub. L. 101–601, §2, Nov. 16, 1990, 104 Stat. 3048;

Pub. L. 102–572, title IX, §902(b)(1), Oct. 29, 1992,

106 Stat. 4516.)

REFERENCES IN TEXT

This chapter, referred to in text, was in the original

‘‘this Act’’, meaning Pub. L. 101–601, Nov. 16, 1990, 104

Stat. 3048, which is classified principally to this chapter. For complete classification of this Act to the Code,

see Short Title note set out below and Tables.

The Alaska Native Claims Settlement Act of 1971, referred to in par. (5), probably means the Alaska Native

Claims Settlement Act. See note below.

The Alaska Native Claims Settlement Act, referred

to in par. (7), is Pub. L. 92–203, Dec. 18, 1971, 85 Stat. 688,

as amended, which is classified generally to chapter 33

(§1601 et seq.) of Title 43, Public Lands. For complete

classification of this Act to the Code, see Short Title

note set out under section 1601 of Title 43 and Tables.

The Hawaiian Homes Commission Act, 1920, referred

to in par. (15)(C), is act July 9, 1921, ch. 42, 42 Stat. 108,

as amended, which was classified generally to sections

691 to 718 of Title 48, Territories and Insular Possessions, and was omitted from the Code.

Section 4 of Public Law 86–3, referred to in par.

(15)(C), is section 4 of Pub. L. 86–3, which is set out as

a note preceding section 491 of Title 48.

AMENDMENTS

1992—Par. (13). Pub. L. 102–572 substituted ‘‘United

States Court of Federal Claims’’ for ‘‘United States

Claims Court’’.

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by Pub. L. 102–572 effective Oct. 29, 1992,

see section 911 of Pub. L. 102–572, set out as a note

under section 171 of Title 28, Judiciary and Judicial

Procedure.

SHORT TITLE

Section 1 of Pub. L. 101–601 provided that: ‘‘This Act

[enacting this chapter and section 1170 of Title 18,

Crimes and Criminal Procedure] may be cited as the

‘Native American Graves Protection and Repatriation

Act’.’’

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 10 section 2684; title

16 section 470h–4; title 20 section 80q–9a.

§ 3002. Ownership

(a) Native American human remains and objects

The ownership or control of Native American

cultural items which are excavated or discovered on Federal or tribal lands after November

16, 1990, shall be (with priority given in the order

listed)—

(1) in the case of Native American human remains and associated funerary objects, in the

lineal descendants of the Native American; or

(2) in any case in which such lineal descendants cannot be ascertained, and in the case of

unassociated funerary objects, sacred objects,

and objects of cultural patrimony—

(A) in the Indian tribe or Native Hawaiian

organization on whose tribal land such objects or remains were discovered;

(B) in the Indian tribe or Native Hawaiian

organization which has the closest cultural

affiliation with such remains or objects and

which, upon notice, states a claim for such

remains or objects; or

(C) if the cultural affiliation of the objects

cannot be reasonably ascertained and if the
Page 647 TITLE 25—INDIANS § 3003

1So in original. Probably should be ‘‘items.’’

objects were discovered on 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 some Indian tribe—

(1) in the Indian tribe that is recognized

as aboriginally occupying the area in

which the objects were discovered, if upon

notice, such tribe states a claim for such

remains or objects, or

(2) if it can be shown by a preponderance

of the evidence that a different tribe has a

stronger cultural relationship with the remains or objects than the tribe or organization specified in paragraph (1), in the Indian tribe that has the strongest demonstrated relationship, if upon notice, such

tribe states a claim for such remains or

objects.

(b) Unclaimed Native American human remains

and objects

Native American cultural items not claimed

under subsection (a) of this section shall be disposed of in accordance with regulations promulgated by the Secretary in consultation with the

review committee established under section 3006

of this title, Native American groups, representatives of museums and the scientific community.

(c) Intentional excavation and removal of Native

American human remains and objects

The intentional removal from or excavation of

Native American cultural items from Federal or

tribal lands for purposes of discovery, study, or

removal of such items is permitted only if—

(1) such items are excavated or removed pursuant to a permit issued under section 470cc of

title 16 which shall be consistent with this

chapter;

(2) such items are excavated or removed

after consultation with or, in the case of tribal

lands, consent of the appropriate (if any) Indian tribe or Native Hawaiian organization;

(3) the ownership and right of control of the

disposition of such items shall be as provided

in subsections (a) and (b) of this section; and

(4) proof of consultation or consent under

paragraph (2) is shown.

(d) Inadvertent discovery of Native American remains and objects

(1) Any person who knows, or has reason to

know, that such person has discovered Native

American cultural items on Federal or tribal

lands after November 16, 1990, shall notify, in

writing, the Secretary of the Department, or

head of any other agency or instrumentality of

the United States, having primary management

authority with respect to Federal lands and the

appropriate Indian tribe or Native Hawaiian organization with respect to tribal lands, if known

or readily ascertainable, and, in the case of

lands that have been selected by an Alaska Native Corporation or group organized pursuant to

the Alaska Native Claims Settlement Act of 1971

[43 U.S.C. 1601 et seq.], the appropriate corporation or group. If the discovery occurred in connection with an activity, including (but not limited to) construction, mining, logging, and agriculture, the person shall cease the activity in

the area of the discovery, make a reasonable effort to protect the items discovered before resuming such activity, and provide notice under

this subsection. Following the notification

under this subsection, and upon certification by

the Secretary of the department or the head of

any agency or instrumentality of the United

States or the appropriate Indian tribe or Native

Hawaiian organization that notification has

been received, the activity may resume after 30

days of such certification.

(2) The disposition of and control over any cultural items excavated or removed under this

subsection shall be determined as provided for in

this section.

(3) If the Secretary of the Interior consents,

the responsibilities (in whole or in part) under

paragraphs (1) and (2) of the Secretary of any department (other than the Department of the Interior) or the head of any other agency or instrumentality may be delegated to the Secretary with respect to any land managed by

such other Secretary or agency head.

(e) Relinquishment

Nothing in this section shall prevent the governing body of an Indian tribe or Native Hawaiian organization from expressly relinquishing

control over any Native American human remains, or title to or control over any funerary

object, or sacred object.

(Pub. L. 101–601, §3, Nov. 16, 1990, 104 Stat. 3050.)

REFERENCES IN TEXT

The Indian Claims Commission, referred to in subsec.

(a)(2)(C), terminated Sept. 30, 1978. See Codification

note set out under former section 70 et seq. of this title.

The United States Court of Claims, referred to in subsec. (a)(2)(C), and the United States Court of Customs

and Patent Appeals were merged effective Oct. 1, 1982,

into a new United States Court of Appeals for the Federal Circuit by Pub. L. 97–164, Apr. 2, 1982, 96 Stat. 25,

which also created a United States Claims Court [now

United States Court of Federal Claims] that inherited

the trial jurisdiction of the Court of Claims. See sections 48, 171 et seq., 791 et seq., and 1491 et seq. of Title

28, Judiciary and Judicial Procedure.

The Alaska Native Claims Settlement Act of 1971, referred to in subsec. (d)(1), probably means the Alaska

Native Claims Settlement Act, Pub. L. 92–203, Dec. 18,

1971, 85 Stat. 688, as amended, and which is classified

generally to chapter 33 (§1601 et seq.) of Title 43, Public

Lands. For complete classification of this Act to the

Code, see Short Title note set out under section 1601 of

Title 43 and Tables.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 16 sections 470h–2,

470h–4.

§ 3003. Inventory for human remains and associated funerary objects

(a) In general

Each Federal agency and each museum which

has possession or control over holdings or collections of Native American human remains and

associated funerary objects shall compile an inventory of such items and, to the extent possible

based on information possessed by such museum

or Federal agency, identify the geographical and

cultural affiliation of such item.1