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[Federal Register: March 15, 2010 (Volume 75, Number 49)]
[Rules and Regulations]               
[Page 12377-12405]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15mr10-6]                         


[[Page 12377]]

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Part III





Department of the Interior





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43 CFR Part 10



Native American Graves Protection and Repatriation Act Regulations--
Disposition of Culturally Unidentifiable Human Remains; Final Rule


[[Page 12378]]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 10

RIN 1024-AD68

 
Native American Graves Protection and Repatriation Act 
Regulations--Disposition of Culturally Unidentifiable Human Remains

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule with request for comments.

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SUMMARY: This final rule implements the Native American Graves 
Protection and Repatriation Act by adding procedures for the 
disposition of culturally unidentifiable Native American human remains 
in the possession or control of museums or Federal agencies. This rule 
also amends sections related to purpose and applicability of the 
regulations, definitions, inventories of human remains and related 
funerary objects, civil penalties, and limitations and remedies.

DATES: This rule is effective May 14, 2010. Comments must be received 
by May 14, 2010.

ADDRESSES: You may submit comments on this final rule, identified by 
the number 1024-AD68, by any of the following methods:
     Federal rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail or hand delivery: Sherry Hutt, Manager, National 
NAGPRA Program, National Park Service, 1201 Eye Street, NW., 8th Floor, 
Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Sherry Hutt, Manager, National NAGPRA 
Program, National Park Service, 1201 Eye Street, NW., 8th Floor, 
Washington, DC 20005, Telephone: (202) 354-1479, Fax: (202) 371-5197.

SUPPLEMENTARY INFORMATION: 

Background

    The Native American Graves Protection and Repatriation Act of 1990 
(the Act) addresses the rights of lineal descendants, Indian tribes, 
and Native Hawaiian organizations to certain Native American human 
remains, funerary objects, sacred objects and objects of cultural 
patrimony. Among other things, the Act:

--Established the Native American Graves Protection and Repatriation 
Review Committee, composed of representatives from museum and 
scientific organizations and from Indian tribes and Native Hawaiian 
organizations (the Review Committee) to monitor and review inventory, 
identification, and repatriation activities.
--Required the Review Committee to consult with the Secretary of the 
Interior in developing regulations to implement the Act.
--Charged the Review Committee with compiling an inventory of 
culturally unidentifiable human remains in museums or Federal agencies 
and recommending actions for disposition of these remains.

    In 1995, during initial development of the regulations to implement 
the Act, the Department decided to reserve several sections for later 
development. This decision ensured that development of more complex 
provisions would not delay implementation of the basic regulations 
needed to guide compliance with impending deadlines for inventory 
submissions. We are implementing this long-term publication plan as 
follows:

--We published the first rules to implement the Act on December 4, 1995 
(43 CFR part 10, 60 FR 62158).
--We published rules for assessing civil penalties under the Act on 
April 3, 2003 (43 CFR 10.12, 68 FR 16354).
--We published rules for new collections and continuing obligations for 
compliance on March 21, 2007 (43 CFR 10.13, 72 FR 13189).
--We are publishing this rule today.
--We are developing additional rules to cover disposition of unclaimed 
Native American human remains and cultural items from Federal and 
Indian lands (future 43 CFR 10.7).

    Publication of this rule furthers the Department's goal of 
publication in phases.
    On October 16, 2007, we published in the Federal Register the 
proposed rule to specify procedures for disposition of culturally 
unidentifiable human remains in the possession or control of museums or 
Federal agencies. At that time, we invited public comment for a 90-day 
period, ending on January 14, 2008, and posted the proposed rule on the 
National NAGPRA Program Web site.
    During the comment period, we received 138 written comments from 51 
Indian tribes, 19 Indian organizations, 30 museums, 12 museum or 
scientific organizations, 3 Federal entities, 15 members of the public, 
and the Review Committee. The comments addressed all sections of the 
proposed rule. We fully considered all of these comments and this final 
rule includes extensive revisions that we have made response to the 
concerns raised by commenters.
    As required by the Act, the Review Committee sent comments to the 
Secretary in 2000, 2003, and 2008. During its January 2008 
teleconference, the Review Committee suggested that the Department 
extend the comment period for the proposed rule or reissue a revised 
proposed rule for further comment. After the close of the comment 
period, we worked with the Office of the Solicitor to prepare a draft 
final rule and preamble responding to comments. The following brief 
chronology outlines the reviews that have occurred since we developed 
the rule:

--The Assistant Secretary--Fish and Wildlife and Parks and the 
Assistant Secretary--Indian Affairs reviewed the draft final rule and 
considered the recommendations of the Review Committee.
--The Assistant Secretaries determined that the draft final rule and 
preamble were responsive to comments, and that, given the lengthy 
comment period, there was no need or basis to extend the comment period 
or to repropose the rule.
--The Department identified a procedural problem with publication of 
the final rule relating to the Paperwork Reduction Act, which resulted 
in additional delays totaling 6 months.
--With the change of administration, the Department's management 
conducted additional review by the Assistant Secretary--Fish and 
Wildlife and Parks and the Assistant Secretary--Indian Affairs.

    As the preceding summary illustrates, this final rule has undergone 
extensive review in multiple administrations. Each of these reviews was 
conducted independently, and both the current and previous 
administrations agreed that this rule is appropriate for 
implementation. In addition to the opportunities for comment that we 
have already offered, we are accepting comments on this rule until May 
14, 2010.
    The current Assistant Secretary--Fish and Wildlife and Parks and 
the current Assistant Secretary--Indian Affairs have determined that 
this final rule and preamble are fully responsive to the comments 
received on the proposed rule and that the ten-year process of 
developing the rule, as well as the substantive provisions of the rule, 
fit well with the Administration's goals of transparency in decision 
making and open consultation with Indian tribes. Comments to this rule 
covered myriad issues that have arisen in the 20 years since NAGPRA 
became law. Although

[[Page 12379]]

many of the comments went beyond the scope of this rulemaking, the 
preamble to this rule provides detailed responses to each of the 
comments.
    In brief, this rule pertains to those human remains, in 
collections, determined by museums and Federal agencies to be Native 
American, but for whom no relationship of shared group identity can be 
reasonably traced, historically or prehistorically, between a present 
day Indian tribe or Native Hawaiian organization and an identifiable 
earlier group. These individuals are listed on inventories as 
culturally unidentifiable Native American human remains. The rule 
requires consultation on the culturally unidentifiable human remains by 
the museum or Federal agency with Indian tribes and Native Hawaiian 
organizations whose tribal lands or aboriginal occupancy areas are in 
the area where the remains were removed. If cultural affiliation still 
cannot be determined and repatriation achieved, then the Indian tribe 
or Native Hawaiian organization may request disposition of the remains. 
The museum or Federal agency would then publish a notice and transfer 
control to the tribe, without first being required to appear before the 
Review Committee to seek a recommendation for disposition approval from 
the Secretary of the Interior. Disposition requests, which do not meet 
the parameters of the rule, would still require approval from the 
Secretary, who may request a recommendation from the Review Committee.
    Therefore, the Department is issuing this final rule to be 
effective May 14, 2010.

Summary of Comments

    The proposed rule to specify procedures for the disposition of 
culturally unidentifiable human remains in the possession or control of 
museums or Federal agencies was published in the Federal Register on 
October 16, 2007 (72 FR 58582). Public comment was invited for a 90-day 
period, ending on January 14, 2008. The proposed rule was also posted 
on the National NAGPRA Program Web site. The Review Committee commented 
on the proposed rule at its January 8, 2008 public teleconference. In 
addition, 138 written comments were received during the comment period, 
representing 51 Indian tribes, 19 Indian organizations, 30 museums, 12 
museum or scientific organizations, 3 Federal entities, 15 members of 
the public, and the Review Committee. Comments addressed all sections 
of the proposed rule. All comments were fully considered when revising 
the proposed rule as a final rulemaking.

General Comments

Authority

    Comment 1: Fifteen commenters stated that the Department of the 
Interior does not have the authority to promulgate regulations 
governing the disposition of culturally unidentifiable human remains 
and associated funerary objects and that Congressional action is 
necessary to effect the disposition of such remains and objects. Eleven 
commenters stated that the Department of the Interior does have 
authority to promulgate such regulations.
    Our Response: In section 13 of the Act (25 U.S.C. 3011), Congress 
explicitly authorized the Secretary of the Interior to promulgate 
regulations implementing the Act. As an initial matter, consideration 
of all Native American human remains and associated funerary objects, 
including those that are culturally unidentifiable, is within the scope 
of the statute. Section 5 of the Act (25 U.S.C. 3003) requires Federal 
agencies and museums that have possession or control over holdings or 
collections of Native American human remains and associated funerary 
objects to compile an inventory of such items and, to the extent 
possible based on information possessed by each museum or Federal 
agency, identify the geographical and cultural affiliation of such 
items. Congress anticipated that not all items could be geographically 
or culturally affiliated and, in section 8 of the Act (25 U.S.C. 3006), 
assigned the role of recommending specific actions for developing a 
process for the disposition of culturally unidentifiable human remains 
to the Review Committee. Congress intended that the Review Committee be 
an advisory committee which makes recommendations to the Secretary 
(Senate Report 101-473 at 13). An earlier version of the bill that 
preceded the final version of NAGPRA directed the Review Committee to 
provide its recommendations regarding the disposition of culturally 
unidentifiable human remains to the Secretary and to the Congress (H.R. 
5237, Section (7)(d), July 10, 1990). However, the provision regarding 
Congress was ultimately stricken from the version of the bill that was 
signed into law. The sequence of changes in a statute prior to 
enactment provides strong evidence of the meaning of the enacted 
statute (INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)). It would thus 
appear that while Congress may have considered limiting the Secretary's 
authority to promulgate regulations regarding the disposition of 
culturally unidentifiable human remains, this restriction was 
ultimately rejected. This regulation, promulgated in the exercise of 
Congress' delegated authority, implements many of the Review 
Committee's recommendations and effectuates the goals of the Act. Even 
if Congress may not have expressly delegated authority or 
responsibility to implement a particular provision of the Act or fill a 
particular gap in the law, it can still be apparent from an agency's 
generally conferred authority and other statutory directives that 
Congress would expect the agency to be able to speak with the force of 
law when the agency addresses ambiguities in the statute or fills a gap 
in the enacted law (United States v. Mead, 533 U.S. 218 (2001)).
    Comment 2: Five commenters consider the rule to be contrary to the 
plain language of the Act and against the original intent of Congress.
    Our Response: Typically, the Congress expects the Federal agency 
charged with the implementation of a statute to establish the specific 
process by which the statute's objectives are to be achieved. By 
regulation, the Department directed each museum and Federal agency to 
complete ``a listing of all culturally unidentifiable human remains and 
associated funerary objects for which no culturally affiliated present-
day Indian tribe or Native Hawaiian organization can be determined'' 
(43 CFR 10.9(d)(2)), and, after considering the Review Committee's 
recommendations, the Secretary proposed these regulations to address 
the Congressional silence with respect to procedures for disposition of 
the culturally unidentifiable human remains and associated funerary 
objects. Under Chevron v. Natural Resources Defense Council (467 U.S. 
837 (1984)), if a statute is silent or ambiguous with respect to a 
particular issue, then deference is accorded to the agency's 
interpretation of the provisions of the Act so long as the agency's 
interpretation is not arbitrary, capricious, or manifestly contrary to 
the statute. As discussed above, the promulgation of regulations for 
the disposition of culturally unidentifiable human remains and 
associated funerary objects is consistent with the plain language and 
intent of the Act. Culturally unidentifiable human remains and 
associated funerary objects were previously addressed in the 
regulations promulgated by the Department in December 1995 (60 FR 
62134). 43 CFR 10.9(e)(6) requires Federal agencies and museums to 
provide a list of culturally unidentifiable human remains and

[[Page 12380]]

associated funerary objects to the Department and to retain possession 
of such items pending promulgation of this rule unless legally required 
to do otherwise or the Secretary recommends otherwise. Promulgation of 
this rule provides for additional treatment and ultimate disposition of 
culturally unidentifiable human remains and associated funerary 
objects, and fills the regulatory gap contemplated by the current 
regulations.
    Comment 3: Two commenters stated that Congress intended to allow 
study of ancient, unaffiliated remains.
    Our Response: The Act does not draw a distinction between 
``ancient'' and more recent remains. The Act covers historic or 
prehistoric ``Native American'' human remains. ``Native American'' 
means of, or relating to, a tribe, people, or culture that is 
indigenous to the United States'' (25 U.S.C. 3001(9)). The statute 
states that the Act shall not be construed to be an authorization for 
the initiation of new scientific studies of Native American human 
remains and associated funerary objects or other means of acquiring or 
preserving additional scientific information from such remains and 
objects (25 U.S.C. 3003(b)(2)).
    Comment 4: One commenter indicated that the proposed rule bypasses 
the language of the Act as the Review Committee is given the role of 
making recommendations regarding culturally unidentifiable remains.
    Our Response: In section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5)), 
Congress assigned the Review Committee the role of recommending 
specific actions for developing a process for disposition of culturally 
unidentifiable human remains. Congress also authorized the Review 
Committee to consult with the Secretary in the development of 
regulations to carry out the Act. The Secretary has interpreted the 
intent of Congress in this section as authorizing the Secretary to 
promulgate regulations governing the disposition of culturally 
unidentifiable human remains after considering the Review Committee's 
recommendations on these matters. This interpretation is reflected in 
the Department of the Interior's regulations at Sec.  10.9(6) which 
states, ``Section 10.11 of these regulations will set forth procedures 
for disposition of culturally unidentifiable human remains of Native 
American origin. Museums or Federal Agencies must retain possession of 
such human remains pending promulgation of Sec.  10.11 unless legally 
required to do otherwise, or recommended to do otherwise by the 
Secretary. Recommendations regarding the disposition of culturally 
unidentifiable human remains may be requested prior to final 
promulgation of Sec.  10.11.'' Prior to the completion of Sec.  10.11, 
the Secretary has referred such individual requests to the Review 
Committee, as authorized under section 8(c)(8) of the Act (25 U.S.C. 
3006(c)(8)) (``performing such other related functions as the Secretary 
may assign to the committee'') and has requested the Review Committee's 
advice before making recommendations on the disposition of human 
remains.

Constitutionality

    Comment 5: One commenter was concerned that compliance with the 
proposed rule could place a museum in violation of unspecified state 
statutes.
    Our Response: NAGPRA is Federal law, and, as such, under the 
Supremacy Clause of the Constitution (Art. VI, cl. 2; Lorillard Tobacco 
Co. v. Reilly, 533 US 525 (2001)) preempts any state law on the same 
subject matter. This is especially true in the field of Federal Indian 
law, where the United States has plenary and exclusive power (U.S. 
Constitution, Art. I, Sec. 8, cl. 3; Worcester v. Georgia, 31 US 515, 6 
Pet 515 (1832)). Moreover, in section 7(f) of the Act (25 U.S.C. 
3005(f)), Congress specifically provided that ``[a]ny museum which 
repatriates any item in good faith pursuant to this chapter shall not 
be liable for claims by an aggrieved party or for claims of breach of 
fiduciary duty, public trust, or violations of state law that are 
inconsistent with the provisions of this chapter.''
    Comment 6: Two commenters alleged that the proposed regulations 
would violate the Establishment Clause of the First Amendment to the 
Constitution, focusing on a sentence in the preamble to the proposed 
regulations which suggests that the voluntary repatriation by a museum 
or Federal agency of funerary objects associated with culturally 
unidentifiable human remains would be consistent with ``customary 
religious and spiritual beliefs.'' The commenters stated that this 
suggestion demonstrated unconstitutional special treatment for the 
``creationist viewpoint'' of many Indian people and that such beliefs 
are not evidence of a cultural relationship or cultural affiliation 
under the Act.
    Our Response: The commenters have misconstrued and misapplied the 
sentence in the preamble. First, the use of religious or spiritual 
beliefs is not being invoked to determine whether a specific group of 
human remains is Native American. The rule allows a museum or Federal 
agency to voluntarily repatriate associated funerary objects with human 
remains (which it has already determined to be Native American). 
Considerations of a religious or spiritual belief system are not used 
to determine the origin of the human remains and are not relevant to 
such a voluntary determination by the museum or Federal agency. 
Further, ``funerary objects'' are defined by both the NAGPRA statute 
and current regulations as ``items that, as part of the death rite or 
ceremony of a culture, are reasonably believed to have been placed 
intentionally at the time of death or later'' (43 CFR 10.2(d)(2)). This 
definition is taken from the definition of ``associated funerary 
objects'' in the Act (25 U.S.C. 3001(3)(A)). The statement referred to 
by commenters in the preamble to the proposed rule is a recognition 
that ``the death rite or ceremony of a culture'' is an inherently 
spiritual or religious act, whether the belief system involved is 
traditionally Indian or Christian (also broadly represented in Indian 
country), or another belief system. Such a recognition in the context 
of a voluntary action by a museum or Federal agency (to which the 
commenters did not object) does not constitute support of a particular 
religious point of view or excessive entanglement with religion in the 
context of the Establishment Clause (Walz v. Tax Commission of the City 
of New York, 397 U.S. 664 (1970)).
    Comment 7: Three commenters stated that the proposed rule, if 
finalized, would constitute a ``taking'' by the United States of the 
property of museums in violation of the Fifth Amendment to the United 
States Constitution.
    Our Response: To determine whether a governmental procedure has 
deprived a party of its rights without due process, the first inquiry 
must be whether that party has protected property or liberty interests 
(American Manufacturing Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 
59 (1999), and Federal Lands Legal Consortium v. United States, 195 
F.3d 1190 (10th Cir. 1999)). Under the common law, however, human 
remains are not ``property'' (See, e.g., 2 William Blackstone, 
Commentaries, 429). Thus, a museum would not have a property interest 
in culturally unidentifiable human remains that could be ``taken,'' 
unless the museum has received the right to possess the remains from a 
person or entity with authority to confer that right on the museum. The 
next of kin of the deceased (25 U.S.C. 3001(13)) (see Whaley v. 
Tuscola, 58 F.3d 1111, 1117 (6th Cir. 1995); Brotherton v. Cleveland, 
923 F.2d 477, 482 (6th Cir. 1991)) and the official governing body of 
the appropriate Indian tribe or Native Hawaiian organization (25 U.S.C.

[[Page 12381]]

3001(13) and (3002(e)) are the only parties who possess such a property 
right for purposes of the Fifth Amendment. If a museum could prove, 
therefore, that the human remains were ``excavated, exhumed, or 
otherwise obtained with full knowledge and consent of the next of kin 
or the official governing body of the appropriate culturally affiliated 
Indian tribe or Native Hawaiian organization'' (25 U.S.C. 3001(13)), or 
were remains for which ``the governing body of an Indian tribe or 
Native Hawaiian organization [has] expressly relinquished control'' (25 
U.S.C. 3002(e)), it may have a property right that could be protected. 
That is the purpose of the definition of right of possession under the 
Act (25 U.S.C. 3001(13)), and, to the extent that a museum can prove a 
right of possession for culturally unidentifiable human remains, that 
right is protected by Sec.  10.11(c)(1) of the regulations as well as 
the Constitution.
    Comment 8: Two commenters asserted that the proposed rule, if 
finalized, would violate the Equal Protection clause of the Fourteenth 
Amendment to the United States Constitution. One of these commenters 
noted that the requirement in Sec.  10.11(b)(2) to consult with ``all 
Indian tribes and Native Hawaiian organizations'' with certain 
connections to land (which, in the commenter's view, would include 
Indian groups that are not federally-recognized) would violate the 
Act's insulation from equal protection challenges based on the 
government-to-government relationship between the United States and 
federally-recognized Indian tribes. The other commenter asserted that 
the proposed rule illegally favored one ``cultural lineage'' over 
others.
    Our Response: The first commenter's concern raises an issue common 
to many of the comments on the proposed rule. When agencies publish 
proposed and final rules in the Federal Register that are amending 
existing regulations, the agency is only required to publish the 
portion of the regulations that would change. Unless the agency states 
otherwise, all portions of existing regulations that are not proposed 
for change in the notice of proposed rulemaking remain the same, and 
still apply. Thus, when this proposed rule refers to ``Indian tribes,'' 
the drafters are using the existing definition of that term, which is 
not proposed for changes. That definition, at Sec.  10.2(b)(2), only 
refers to federally-recognized Indian tribes. The drafters of the 
proposed rule have been very careful to distinguish tribes that are not 
federally-recognized Indian groups when those groups are included in a 
provision of the rule in order to maintain a clear distinction. The 
only mandatory consultation or disposition in the rule, consistent with 
the Act, is to Indian tribes (i.e., federally-recognized) or Native 
Hawaiian organizations. This preference in both the regulations and the 
statute is based not on ``cultural lineage'' but on the plenary power 
of Congress to ``regulate commerce * * * with the Indian Tribes'' (U.S. 
Constitution Art. I, Sec. 8, cl. 3), and the unique government-to-
government relationship between the United States and Indian tribes 
(Morton v. Mancari, 417 U.S. 535, 551-52 (1974)).

Statutory Amendment

    Comment 9: Three commenters recommended that Congress consider 
amending the statute. Two commenters recommended expanding who has a 
right to claim cultural items under the Act from lineal descendants, 
Indian tribes, and Native Hawaiian organizations to also include state 
recognized Indian groups, Indian groups currently seeking Federal 
acknowledgement, and indigenous groups located beyond the boundaries of 
the United States. One commenter recommended amending the statute to 
apply to collections held by the Smithsonian Institution. One commenter 
recommended that the composition of the Review Committee be changed to 
ensure a ratio of no less than two Native American members for each 
non-Native American member.
    Our Response: Statutory amendments are the exclusive purview of the 
Congress.

Compliance With Other Statutes and Policies

    Comment 10: The preamble of the proposed rule states that the rule 
does not impose an unfunded mandate on State, local, or tribal 
governments or the private sector of more than $100 million per year. 
Fifteen commenters projected that the financial burden of consultation 
and disposition on museums will be ``tremendous,'' ``onerous,'' 
``impossible,'' ``overwhelming,'' ``ruinous,'' or ``significant.'' Two 
commenters predicted that the rule will result in costly litigation. 
Seven commenters estimated that the cost of implementing the proposed 
rule will exceed $100 million per year. One commenter recalled that 
some museums raised similar financial concerns prior to passage of the 
Act in 1990, but noted that the claims have never been substantiated in 
fact. Two commenters recommended that the Department of the Interior 
provide detailed cost estimates.
    Our Response: Costs to comply with this rule will be seen in the 
costs of consultation and decision-making. Museums and Federal agencies 
are only required to consult upon receipt of a claim from an Indian 
tribe or Native Hawaiian organization. In the last five years, there 
have been approximately 14 requests per year for Review Committee 
consideration of claims for disposition of culturally unidentifiable 
Native American human remains. Although there are numerous human 
remains subject to this rule, it is reasonable to assume that tribes 
will make requests at a constant rate, given the capacity of tribes to 
do so. A single claim may involve many human remains from one site, 
requiring one notice. Absent a claim, a museum or Federal agency may 
also voluntarily offer to transfer control. The costs of decision 
making include exchange of information between museums and tribes, and 
preparation of a notice by a museum. Using current rates of 
compensation for museum clerical, curator and executive staffs, there 
is a weighted cost average for their efforts of $30.00 an hour. 
Assuming approximately 100 hours of information exchange and six hours 
to prepare a notice, the cost per claim is less than $5,000 on average 
and the annual cost of all claims in a year, subject to this rule, is 
less than $100,000. Since there are no deadlines for claims or for 
offering to transfer control, the required consultations will likely 
extend over multiple year periods, thus reducing the total cost of 
consultation in any particular year. Since 1994, Congress has provided 
grant funds for consultation and repatriation activities of 
approximately $2 million dollars per year to account for NAGPRA 
compliance, including this rule. Since NAGPRA became law in 1990, there 
have been almost 40,000 Native American human remains accounted for in 
notices and no indication that a single museum has suffered 
overwhelming or ruinous consequences from compliance with the law.
    There are also cost savings in the reduction of inventory 
maintenance costs and elimination of the pre-rule need to present 
matters at Review Committee meetings, which may involve travel costs. 
Under current regulations, museums and Federal agencies must retain 
possession of culturally unidentifiable human remains, with all of the 
attendant curatorial costs estimated in the millions of dollars per 
year (S. Terry Childs and Karolyn Kinsey, Costs for Curating 
Archeological Collections: A

[[Page 12382]]

Study of Repository Fees in 2002 and 1997/1998. National Park Service 
(2003)). Museums and Federal agencies that wish to effect the 
disposition of culturally unidentifiable human remains under current 
regulations must either request a recommendation from the Secretary of 
the Interior, which involves preparation of materials and presentations 
before the Review Committee, or request involvement in proceedings 
before a United States District Court.
    Comment 11: One commenter requested that the Department of the 
Interior consider the rule significant under Executive Order 12866 on 
the grounds that it raises novel legal or policy issues.
    Our Response: The Office of Management and Budget has determined 
that this rule is significant under EO 12866.
    Comment 12: One commenter stated that Federal agencies should be 
required to conduct review under the National Environmental Policy Act 
(NEPA) (42 U.S.C. 4321, et seq.), for each disposition of culturally 
unidentifiable human remains, with or without associated funerary 
objects, under the final rule.
    Our Response: NAGPRA does not exempt Federal agencies from the 
requirements of any other statutes that may be applicable, such as 
NEPA. The appropriate level of NEPA review required would depend on the 
NEPA procedures of the agency proposing the disposition.

Relationships to Other Sections of These Regulations

    Comment 13: One commenter requested clarification as to whether the 
proposed rule applies to culturally unidentifiable human remains and 
associated funerary objects excavated or removed from Federal or tribal 
lands after November 16, 1990.
    Our Response: Neither the proposed rule nor this final rule apply 
to culturally unidentifiable human remains and associated funerary 
objects excavated or removed from Federal or tribal lands after 
November 16, 1990. This final rule applies to human remains in museum 
and Federal agency collections for which no lineal descendant or 
culturally affiliated Indian tribe or Native Hawaiian organization has 
been identified. For museums, these human remains may have been 
acquired either before or after 1990 when the statute was enacted. For 
Federal agencies, disposition of human remains, funerary objects, 
sacred objects, or objects of cultural patrimony removed from Federal 
lands after November 16, 1990 is effected pursuant to section 3 of the 
Act (25 U.S.C. 3002), and Sec. Sec.  10.3-10.7 of the existing 
regulations. Culturally unidentifiable human remains acquired by a 
Federal agency after November 16, 1990 from other than Federal or 
tribal lands would be covered by the provisions of this rule.
    Comment 14: One commenter recommended that the terms ``unclaimed'' 
and ``culturally unidentifiable'' be clearly distinguished.
    Our Response: There may be some confusion between the terms 
``culturally unidentifiable'' and ``unclaimed.'' As specified in 
section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5) and these regulations, 
``culturally unidentifiable'' refers to Native American human remains 
and associated funerary objects in museum or Federal agency collections 
for which no lineal descendant or culturally affiliated Indian tribe or 
Native Hawaiian organization has been determined. ``Unclaimed'' only 
refers to Native American human remains, funerary objects, sacred 
objects, or objects of cultural patrimony excavated or discovered on 
Federal or tribal lands after November 16, 1990 and not claimed under 
section 3(a) of the Act (25 U.S.C. 3002(a)). A proposed rule regarding 
the disposition of unclaimed cultural items is currently under 
development (43 CFR 10.7).
    Comment 15: One commenter recommended that unclaimed human remains 
which can reasonably be associated with a recognized tribe should be 
returned to that Indian tribe.
    Our Response: Unclaimed remains are governed under section 3(a) of 
the Act (25 U.S.C. 3002(a). A separate proposed rule regarding the 
disposition of unclaimed cultural items is currently under development 
(43 CFR 10.7). Please see Comment 14 for a related response.

Development Process

    Comment 16: Ten commenters recommended adopting the Review 
Committee's 2000 recommendations in lieu of the proposed rule. Three 
commenters recommended adopting the Review Committee's 2002 
recommendations in lieu of the proposed rule. Five commenters 
recommended taking the Review Committee's 2000 and 2002 recommendations 
into account in revising the proposed rule. Three commenters rejected 
the Review Committee's 2000 recommendations.
    Our Response: There appears to be some confusion regarding the 
Review Committee's involvement in the development of the proposed 
regulations. Sections 8(c)(5) and (c)(7) of the Act (25 U.S.C. 
3006(c)(5) and (c)(7)), authorize the Review Committee to recommend 
specific actions for developing a process for the disposition of 
culturally unidentifiable human remains and consulting with the 
Secretary of the Interior in the development of regulations to carry 
out the Act. After circulating three drafts for public comment and 
considering specific case-by-case requests, the Review Committee 
developed its final recommendations regarding the disposition of 
culturally unidentifiable human remains in May 2000. These 
recommendations were reported in detail in the preamble to the 2007 
proposed rule. The Review Committee also considered drafts of the 
proposed rule at its May 31-June 2, 2002 and November 8-9, 2002 
meetings. Meeting minutes are available at: http://www.nps.gov/history/nagpra/REVIEW/meetings/MINUTES.HTM.
    At its November 8-9, 2002 meeting, the Review Committee 
specifically compared the draft regulatory text with the text of its 
2000 recommendations and recommended several changes, most of which, 
though purely advisory, were reflected in the 2007 proposed rule. The 
drafters gave full consideration to the Review Committee's final 
recommendations regarding the disposition of culturally unidentifiable 
human remains (2000) as well as to the Review Committee's review of 
drafts of the proposed rule on May 31-June 2, 2002 and November 8-9, 
2002, and the actual proposed rule on January 8, 2008.
    Comment 17: Fourteen commenters made general or specific 
recommendations regarding the establishment or composition of 
``regional consortia.''
    Our Response: The concept of ``regional consortia'' was proposed in 
the Review Committee's 2000 final recommendations regarding the 
disposition of culturally unidentifiable human remains (65 FR 36462). 
According to the Review Committee, such regional consortia would 
consist of Federal agencies, museums, Indian tribes, and Native 
Hawaiian organizations within a given geographic area that would 
consult together and propose a framework and schedule for the 
disposition of culturally unidentifiable human remains. The drafters 
recognize the establishment of such regional consortia as a potentially 
useful step in arriving at generally applicable disposition agreements. 
However, the establishment or composition of such consortia are clearly 
matters to be determined by

[[Page 12383]]

those who elect to be participants in a consortium. As a result, the 
concept was not addressed in the proposed rule. Indian tribes may 
choose to participate in such regional consortia, but it is not 
required.

Administration

    Comment 18: One commenter recommended that the National Park 
Service establish a permanent office to focus specifically on the 
disposition of the culturally unidentifiable human remains and 
associated funerary objects. One commenter recommended that the 
National Park Service establish training for museums and Federal 
agencies on how to determine cultural affiliation.
    Our Response: The National NAGPRA Program will continue to provide 
technical assistance and training to museums, Federal agencies, lineal 
descendants, Indian tribes, and Native Hawaiian organizations regarding 
the disposition of culturally unidentifiable human remains and 
associated funerary objects, as well as other aspects of the Act.
    Comment 19: Seventeen commenters recommended providing additional 
funds to museums and Indian tribes to assist in the disposition of 
culturally unidentifiable human remains.
    Our Response: All activities required under the proposed rule are 
eligible for Federal grants authorized under section 10 of the Act. The 
Review Committee has asked Congress to consider the appropriation of 
additional funding.
    Comment 20: One commenter recommended that Federal funds be 
appropriated to assist Indian tribes with the protection of Indian 
cemeteries, historic sites, and artifacts during or after an emergency.
    Our Response: The scope of grants authorized under section 10 of 
the Act (25 U.S.C. 3008) is limited to assisting museums in conducting 
the required inventories and identification and to assisting Indian 
tribes and Native Hawaiian organizations in the repatriation of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony (25 U.S.C. 3008). Funds for the protection of Indian 
cemeteries, historical sites, and artifacts are available through other 
Federal programs.
    Comment 21: One commenter recommended that the rule address the 
need to expand existing tribal and family cemeteries.
    Our Response: The Act addresses the protection of current Native 
American burial sites on Federal or tribal lands that are inadvertently 
discovered or intentionally excavated and the repatriation of cultural 
items in museum or Federal agency collections or holdings. The Act does 
not address the creation of new burial sites or the expansion of 
existing sites.
    Comment 22: One commenter recommended that forensic audits of all 
Federal agency inventories be conducted by the General Accounting 
Office to ensure that this requirement of the Act has been fulfilled.
    Our Response: The Review Committee has asked Congress to have the 
Government Accountability Office review Federal compliance with the 
Act.
    Comment 23: One commenter recommends that State governments be 
given the authority to supervise and issue directives to the federally-
recognized Indian tribes in returning Native American human remains 
back to Mother Earth.
    Our Response: Authorizing State governments to direct the actions 
of federally-recognized Indian tribes is beyond the Secretary's 
jurisdiction and inconsistent with both the plenary power of Congress 
to ``regulate commerce * * * with the Indian Tribes'' (U.S. 
Constitution Art. I, Sec. 8, cl. 3), and the unique government-to-
government relationship between the United States and Indian tribes 
(Morton v. Mancari, 417 U.S. 535, 551-52 (1974)).

Section 10.1(b)(3) Final Determinations

    Section 10.1(b)(3) describes decision points throughout the 
regulations which constitute ``final determinations.'' The proposed 
rule added one sentence to provide clarification to Federal agencies as 
to when a determination constitutes ``final agency action'' as used in 
the Administrative Procedure Act (5 U.S.C. 704).
    Comment 24: Eight commenters generally supported this proposed 
revision with some modification. One commenter recommended revising the 
section to stipulate that failure to affirmatively respond to a request 
within a specified time period would be considered a denial of the 
request for purposes of judicial review, unless the museum or agency 
extends the time period in writing for good cause and specifies a 
specific and reasonable timetable. Five commenters recommended 
clarifying that ``an agency denial of such a request is final when the 
lineal descendant, Indian tribe or Native Hawaiian organization has 
exhausted any required administrative appeals within the agency. 
Neither the fact that the Review Committee may review the matter nor 
the fact that an agency denial is subject to reconsideration upon 
submission of new information affects its status as final agency action 
under the Administrative Procedure Act. After a final agency denial, a 
lineal descendant, Indian tribe or Native Hawaiian organization may 
make a new request for repatriation or disposition of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
under the Act on the basis of the findings or recommendations of the 
Review Committee or new information.''
    Our Response: Congress did not provide that requests would be 
deemed denied based on a failure to respond. The drafters agree that 
the language suggested by the five commenters is consistent with case 
law, but consider that the proposed revision adequately addresses when 
a determination constitutes a final agency action as used in the 
Administrative Procedure Act (5 U.S.C. 704). The drafters have also 
added the text previously proposed in Sec.  10.1(b)(3) into Sec.  
10.15(c) to reiterate that the final denial of a request of a lineal 
descendant, Indian tribe, or Native Hawaiian organization for the 
repatriation or disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony constitutes final agency 
action under the Administrative Procedure Act.

Section 10.2(e)(1) Definition of Cultural Affiliation

    Section 10.2(e)(1) revises the definition of ``cultural 
affiliation'' to include ``anthropological'' evidence. The term, which 
is specifically included in section 7(a)(4) of the Act (25 U.S.C. 
3005(a)(7)), was inadvertently omitted from the previous regulatory 
text. Two commenters agreed with the proposed revision of the 
definition of ``cultural affiliation.''
    Comment 25: One commenter recommended including the phrase 
``cultural or geographic relationship'' within the list of evidence 
relevant to determining cultural affiliation in the second sentence of 
Sec.  10.2(e)(1).
    Our Response: Both geographical and anthropological (cultural) 
evidence are already specifically identified as relevant to determining 
cultural affiliation (25 U.S.C. 3005(a)(4)).
    Comment 26: One commenter recommended that human remains should not 
be returned without clear, indisputable physical (archeological) 
linkage to a present-day Indian tribe or Native Hawaiian organization.
    Our Response: Archeological evidence is one of several types of 
relevant information or expert opinion that must be considered in 
determining whether cultural affiliation can be established (25 U.S.C. 
3005(a)(4)).

[[Page 12384]]

Culturally affiliation must be ``reasonably traced'' (25 U.S.C. 
3001(2)). Requiring an ``indisputable linkage'' would be inconsistent 
with the Act.
    Comment 27: One commenter recommended including language in Sec.  
10.2(e)(1) stipulating that ambiguities in determining cultural 
affiliation must be resolved in the favor of Indian tribes.
    Our Response: The Act was enacted for the benefit of Indians, 
therefore the canon of construction applies that statutes ``are to be 
construed liberally in favor of the Indians, with ambiguous provisions 
interpreted to their benefit'' (Yankton Sioux Tribe v. United States 
Army Corps of Engineers, 83 F. Supp 2d 1047, 1056 (D.S.D. 2000)). These 
regulations are subject to the same canon of construction. ``The trust 
relationship and its application to all Federal agencies that may deal 
with Indians necessarily requires the application of a similar canon of 
construction to the interpretation of Federal regulations'' (HRI, Inc. 
v. EPA, 198 F.3d 1224, 1245 (10th Cir. 2000)). This principle of Indian 
law is so well-established, however, that the drafters consider 
additional regulatory text unnecessary.
    Comment 28: One commenter questioned whether the proposed change 
would impact the American Indian Religious Freedom Act.
    Our Response: The proposed change revised the regulatory definition 
of cultural affiliation to reflect the statutory text and has no 
implications related to the American Indian Religious Freedom Act.

Section 10.2(e)(2) Definition of Culturally Unidentifiable

    Section 10.2(e)(2) defines the term ``culturally unidentifiable.''
    Comment 29: One commenter objected to the term ``unidentifiable'' 
given the likelihood that in many cases, cultural affiliation can be 
determined through additional consultation with Indian tribes. The 
commenter stated that the term thus places a false sense that there is 
no existing Native American group legitimately related to prehistoric 
human beings. Another commenter felt the term limits tribal sovereign 
rights and misappropriates the Federal trust responsibility to American 
Indians. Three commenters recommended including separate definitions of 
``unidentifiable'' and ``unidentified.''
    Our Response: Section 8 of the Act (25 U.S.C. 3006) directs the 
Review Committee to compile an inventory of ``culturally 
unidentifiable'' human remains. The drafters recognize that additional 
considerations (e.g., consultation and disposition as required by this 
rule) may result in the determination of cultural affiliation for some 
of these human remains. Provisions to carry out the repatriation of 
human remains and associated funerary objects previously determined to 
be culturally unidentifiable are included at Sec. Sec.  10.11(b)(6), 
10.9(e) and 10.10(b) of the existing regulations, as amended by this 
rule.
    Comment 30: One commenter recommended specifying in the definition 
of ``culturally unidentifiable'' that such identifications are made 
through the inventory process.
    Our Response: The phrase `` * * * through the inventory process'' 
has been added to the end of this definition.
    Comment 31: Three commenters recommended deleting the phrase ``and 
associated funerary objects'' from the definition of culturally 
unidentifiable.
    Our Response: While disposition of funerary objects associated with 
culturally unidentifiable human remains is voluntary, Sec.  10.9(d)(2) 
of these regulations requires museums and Federal agencies to prepare 
an inventory of both human remains and associated funerary objects that 
cannot be identified as affiliated with a particular individual, Indian 
tribe, or Native Hawaiian organization. The phrase ``and associated 
funerary objects'' has been retained.
    Comment 32: One commenter recommended redefining ``culturally 
unidentifiable'' to refer ``to human remains for which a relationship 
of shared group identity cannot be reasonably traced historically or 
prehistorically between members of present-day Indian tribe or Native 
Hawaiian organization and an identifiable earlier group.''
    Our Response: The drafters consider the recommended text less clear 
than the proposed rule text because it omits reference to associated 
funerary objects, lineal descendants, and museum and Federal agency 
collections, all necessary elements of this definition.
    Comment 33: One commenter recommended including reference in the 
definition of ``culturally unidentifiable'' at Sec.  10.2(e)(2) that 
claims could be made for these human remains based on tribal land, 
aboriginal land, or cultural relationship.
    Our Response: The basis for disposition of culturally 
unidentifiable human remains are set forth at Sec.  10.11(c)(1) of this 
rule.
    Comment 34: One commenter was concerned that the proposed 
definition of ``culturally unidentifiable'' at Sec.  10.2(e)(2) would 
require museum staff to make judgment calls without adequate 
professional expertise.
    Our Response: Current regulations require museum and Federal agency 
officials to ``prepare a listing of all culturally unidentifiable human 
remains and associated funerary objects for which no culturally 
affiliated present-day Indian tribe or Native Hawaiian organization can 
be determined'' (43 CFR 10.9(e)(6)). Completion of this listing was 
required by November 16, 1995, or a later date specifically determined 
by the Secretary on a case-by-case basis. Museum and Federal agency 
officials may wish to retain outside professional expertise to assist 
in these determinations, but are not required to do so. Museum and 
Federal agency officials are required to consult with representatives 
of Indian tribes and Native Hawaiian officials.

Section 10.2(g) Definition of Disposition

    Section 10.2(g)(5) provides a definition of disposition and 
identifies procedures to effectuate this process in various situations.
    Comment 35: One commenter recommended deleting the phrase ``with or 
without associated funerary objects'' from Sec.  10.2(g)(iii).
    Our Response: While disposition of funerary objects associated with 
culturally unidentifiable human remains is voluntary, the Secretary 
recommends that museums and Federal agencies engage in such transfers 
whenever Federal or State law would not otherwise preclude them. The 
phrase has been retained.
    Comment 36: Four commenters recommended revisions to the definition 
of ``disposition'' at Sec.  10.2(g)(5) to provide museums and Federal 
agencies with the option of retaining possession and control of 
culturally unidentifiable human remains. One commenter recommended 
inserting the phrase ``or other mutually acceptable alternative'' after 
``transfer or control.''
    Our Response: Section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5)) 
directs the Review Committee to recommend specific actions for 
developing a process for disposition of culturally unidentifiable human 
remains. In its 2000 recommendations, the Review Committee specified 
three types of appropriate disposition solutions, including transfer of 
control based on the recovery of the human remains from a particular 
Indian tribe or Native Hawaiian organization's tribal land or 
aboriginal land or on a relationship of shared group identity between 
the human remains and an Indian group which is not federally-recognized 
(65 FR 36463, June 8, 2000). The governing body of an Indian tribe or 
Native

[[Page 12385]]

Hawaiian organization is free to relinquish control of human remains or 
negotiate ``other mutually acceptable alternatives'' (25 U.S.C. 
3002(e)).
    Comment 37: Five commenters recommended reviewing the term 
``control'' as it relates to the term ``repatriate,'' and to consider 
language that holds a museum or Federal agency harmless if a right of 
possession comes to light after disposition has been effected.
    Our Response: The term ``control'' means having a legal interest in 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony sufficient to lawfully permit the museum or Federal agency to 
treat the objects as part of its collection for purposes of these 
regulations whether or not the human remains, funerary objects, sacred 
objects or objects of cultural patrimony are in the physical custody of 
the museum or Federal agency (43 CFR 10.2(a)(3)(ii)). The Act and these 
regulations provide that any museum which repatriates or effects the 
disposition of Native American human remains in good faith pursuant to 
the Act and these regulations shall not be liable for claims by an 
aggrieved party or for claims of breach of fiduciary duty, public 
trust, or violations of state law that are inconsistent with these 
provisions (25 U.S.C. 3005(f)).

Section 10.2 Other Definitions

    Comment 38: One commenter recommended defining ``nonfederally-
recognized Indian group'' in Sec.  10.2.
    Our Response: The Act requires a museum or Federal agency to 
repatriate Native American cultural items upon receipt of a valid claim 
from a lineal descendant, Indian tribe, or Native Hawaiian 
organization. The latter three terms are defined at Sec.  10.2(b)(1), 
(b)(2), and (b)(3), respectively. We have chosen to clarify by using 
the term ``not federally-recognized'' for any Indian group that does 
not meet the definition in Sec.  10.2(b)(2).
    Comment 39: Three commenters indicated that the proposed rule is 
inconsistent with the Ninth Circuit's opinion in United States v. 
Bonnichsen (357 F.3d 962 (9th Cir. 2004)).
    Our Response: The Court's opinion in Bonnichsen addressed whether 
the remains of ``Kennewick Man'' constituted Native American remains 
within the Act's definition of that term. The proposed rule does not 
affect the definition of ``Native American.'' The proposed rule only 
applies after a determination is made, consistent with applicable law, 
that the human remains or associated funerary objects are Native 
American.
    Comment 40: Seven commenters recommended inserting the phrase 
``Native American'' before each occurrence of ``human remains'' 
throughout the regulations.
    Our Response: Since the drafters did not propose to modify the 
definition of ``human remains'' at Sec.  10.2(d)(1), the meaning of the 
term throughout these regulations remains ``the physical remains of a 
human body of a person of Native American ancestry.''
    Comment 41: One commenter recommended including a definition of 
``preponderance of the evidence.''
    Our Response: Determinations within the Act are based on standard 
rules of civil procedure. Museums and Federal agencies are initially 
required to determine by a reasonable belief if human remains and 
associated funerary objects are culturally affiliated with an Indian 
tribe or Native Hawaiian organization (25 U.S.C. 3003(d)(2)). 
Thereafter, human remains and associated funerary objects must be 
expeditiously repatriated where an Indian tribe or Native Hawaiian 
organization can demonstrate cultural affiliation by the preponderance 
of the evidence (25 U.S.C. 3005(a)(4)). The preponderance of the 
evidence generally means that a decision maker must be persuaded that 
the evidence is sufficient to make it more likely than not that the 
fact the claimant seeks to prove is true.

Section 10.9(e)(2) Content of Notice of Inventory Completion

    Section 10.9(e)(2) details the contents of notices of inventory 
completion. Additional text was proposed at Sec.  10.9(e)(2)(v) to 
clarify that such notices must include information regarding culturally 
unidentifiable human remains, with or without associated funerary 
objects, that may be transferred under Sec.  10.11.
    Comment 42: One commenter recommended deleting the phrase ``with or 
without associated funerary objects'' from Sec.  10.9(e)(2)(v).
    Our Response: While disposition of funerary objects associated with 
culturally unidentifiable human remains is voluntary, the Secretary 
recommends that museums and Federal agencies engage in such transfers 
whenever Federal or State law would not otherwise preclude such 
transfers. The phrase has been retained.
    Comment 43: One commenter recommended replacing the phrase ``that 
may be transferred under Sec.  10.11'' at the end of Sec.  
10.9(e)(2)(v) with ``that are subject to disposition under Sec.  
10.11.''
    Our Response: The recommended change is consistent with the 
language in section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5)) and Sec.  
10.2(g)(5)(iii) of these regulations. The regulations have been changed 
as suggested.
    Comment 44: Two commenters recommended that the listing of 
culturally unidentifiable human remains and associated funerary objects 
specify whether they are: (1) Those for which cultural affiliation 
could be determined but that the appropriate Indian group is not 
federally-recognized as an Indian tribe; (2) those that represent an 
identifiable earlier group, but for which no present-day Indian tribe 
has been identified by the museum or Federal agency; and (3) those for 
which the museum or Federal agency believes that evidence is 
insufficient to identify an earlier group. Another commenter 
specifically recommended that these categories should not be used.
    Our Response: The suggested categories of culturally unidentifiable 
human remains are derived from the Review Committee's 2000 
recommendations (65 FR 36463). However, the Review Committee 
recommendations did not make any distinction regarding disposition of 
any of the three categories. The three categories were not used in the 
proposed rule and no comments were received recommending different 
dispositions on that basis.
    Comment 45: Two commenters recommended that the inventory or notice 
of inventory completion include a ``record of origin'' or ``basis of 
reasoning'' for determining that human remains are Native American and 
culturally unidentifiable.
    Our Response: The contents of the inventory (10.9(d)) and notice of 
inventory completion (43 CFR 10.9(e)) apply only to human remains 
already determined to be ``Native American'' under 43 CFR 10.2(d)(1) 
and the Act. The inventory includes a summary of the evidence used to 
determine cultural affiliation. By definition in 43 CFR 10.2(e)(2), 
remains for which no lineal descendant or culturally affiliated Indian 
tribe or Native Hawaiian organization has been identified through the 
inventory process are considered culturally unidentifiable and, thus, 
do not require a further basis of reasoning when included on the notice 
of inventory completion as culturally unidentifiable.

Section 10.9(e)(5) Additional Documentation

    Section 10.9(e)(5) directs museums or Federal agencies to supply 
additional available documentation upon the request of an Indian tribe 
or Native Hawaiian organization. Additional text was proposed for 
inclusion in

[[Page 12386]]

Sec.  10.9(e)(5)(ii) to clarify that such documentation when supplied 
by a Federal agency or to a Federal agency shall be considered a public 
record subject to disclosure except when exempted under applicable law, 
such as the Freedom of Information Act and the Privacy Act. Further, as 
required by section 5(b)(2) of the Act (25 U.S.C. 3003(b)(2)), neither 
a request for such documentation nor any provisions of the regulations 
shall be construed as authorizing the initiation of new scientific 
studies of such human remains and associated funerary objects or other 
means of acquiring or preserving additional scientific information from 
such remains and objects.
    Comment 46: Six commenters recommended deleting Sec.  10.9(e)(5)(A) 
and (e)(5)(B) on the grounds that they create a seemingly impossible 
conundrum, would severely hinder the scientific study of ancient 
remains, and are ``an obvious attempt to end-run Congressional intent 
and a Federal court ruling in the long-fought Kennewick Man case.'' One 
commenter recommended including language confirming that ``studies or 
other means of acquiring or preserving information are not prohibited, 
but NAGPRA cannot be used as the authorization for them'' or 
``additional study may be authorized, requested, or otherwise developed 
as part of the consultation and affiliation process.'' One commenter 
recommended adding a new paragraph to read as follows: ``In 
consultation with the tribes identified in Sec.  10.11(b)(2), the 
museum or Federal agency may undertake additional documentation of 
human remains and associated funerary objects prior to their transfer 
under Sec.  10.11(c). This documentation shall be completed within two 
years of an offer to transfer culturally unidentifiable human remains 
unless the consulting tribes agree that additional time (beyond two 
years) is needed.'' Eleven commenters recommended including language 
specifying that ``culturally unidentifiable human remains that have not 
yet been repatriated should be treated with great respect and should 
not be subject to any further scientific research or used for teaching 
purposes.'' One commenter recommended that museums and Federal agencies 
should upgrade their testing to include total DNA, not just patrilineal 
DNA.
    Our Response: The language in this section is drawn directly from 
the Act and thus clearly represents Congressional intent.
    Comment 47: Fifteen commenters generally supported this section. 
One commenter requested clarification as to whether a museum or Federal 
agency is required to provide additional documentation upon request of 
an Indian group that is not federally-recognized.
    Our Response: The Act stipulates that a museum or Federal agency 
must supply additional available documentation upon request by an 
Indian tribe or Native Hawaiian organization (25 U.S.C. 3003(b)(2)). 
This requirement does not apply to requests from an Indian group that 
is not federally-recognized.
    A museum or Federal agency may be required to supply such 
documentation under other applicable law and is encouraged to 
voluntarily do so if not otherwise required.
    Comment 48: Nine commenters recommended including language that 
this section is not meant to preclude the withholding from the public 
of information that is specifically exempted from disclosure under 
applicable law.
    Our Response: The drafters have added language to clarify that some 
information may be exempt from disclosure under applicable law, such as 
the Freedom of Information Act (5 U.S.C. 552), Privacy Act (5 U.S.C. 
552a), Archaeological Resources Protection Act (16 U.S.C. 470hh), and 
National Historic Preservation Act (16 U.S.C. 470w-3), and any other 
legal authority exempting such information from public disclosure.

Section 10.9(e)(6) Removing Retention Requirement

    Section 10.9(e)(6) is rewritten to remove the last three sentences 
that required a museum or Federal agency to retain possession of 
culturally unidentifiable human remains pending promulgation of Sec.  
10.11.
    Comment 49: Three commenters recommended deleting the phrase ``with 
or without associated funerary objects'' from Sec.  10.9(e)(6).
    Our Response: The phrase occurs twice in this paragraph. The first 
sentence refers to associated funerary objects that are in the 
possession or control of a museum or Federal agency. The last sentence 
refers to items that are subject to disposition under Sec.  10.11. The 
phrase ``with or without associated funerary objects'' is used 
throughout the regulations to indicate that disposition of such items, 
though encouraged, is not required. Usage of the term in the last 
sentence of this section is thus appropriate. The phrase ``with or 
without'' has been replaced with ``and'' in the first sentence to make 
it clear that associated funerary objects must be included in the 
inventory of culturally unidentifiable human remains provided to the 
Manager, National NAGPRA Program.
    Comment 50: One commenter recommended revising the text in Sec.  
10.9(e)(6) to require a museum or Federal agency to provide the listing 
of culturally unidentifiable human remains in its possession or control 
to both the Manager, National NAGPRA Program and the Departmental 
Consulting Archeologist.
    Our Response: A separate program to administer some of the 
Secretary of the Interior's responsibilities to implement the Act was 
established in 2000. The Departmental Consulting Archeologist is no 
longer responsible for those duties, as reflected in a technical 
amendment to the regulations published in the Federal Register on 
September 30, 2005 (70 FR 57177).
    Comment 51: One commenter recommended that the inventory of 
culturally unidentifiable human remains provided to the Manager, 
National NAGPRA Program and the Review Committee pursuant to Sec.  
10.9(e)(6) also be made available to all interested parties. One 
commenter considered the Review Committee's publicly accessible 
database to provide sufficient notice to all Indian tribes to determine 
their interest in submitting a claim.
    Our Response: Current regulations require museums and Federal 
agencies to provide a listing of all culturally unidentifiable human 
remains and associated funerary objects to the manager, National NAGPRA 
Program, who will make this information available to the Review 
Committee. The Culturally Unidentifiable Native American Human Remains 
Database is publicly posted at http://64.241.25.6/CUI/index.cfm. 
Although museums and Federal agencies are required to consult with 
Indian tribes and Native Hawaiian organizations in preparing the list, 
the Database is the primary means by which lineal descendants, Indian 
tribes, and Native Hawaiian organizations learn that a museum or 
Federal agency has determined particular human remains to be culturally 
unidentifiable.
    Comment 52: One commenter recommended clarifying whether the 
requirement at Sec.  10.9(e)(2)(v) that notices of inventory completion 
must describe human remains, with or without associated funerary 
objects, that are culturally unidentifiable applies only after 
promulgation of the final rule.
    Our Response: Current regulations require publication of a notice 
of inventory completion prior to the repatriation of culturally 
affiliated human remains and associated funerary

[[Page 12387]]

objects (43 CFR 10.9(e)(2)). The Secretary has also required 
publication of a notice of inventory completion prior to the 
disposition of culturally unidentifiable human remains, with or without 
associated funerary objects. The proposed text formalizes as regulation 
the administrative notice requirement for culturally unidentifiable 
human remains, with or without associated funerary objects. This rule 
will have no effect on museums and Federal agencies that previously 
published notices for disposition of culturally unidentifiable human 
remains, with or without associated funerary objects, pursuant to a 
recommendation from the Secretary.

Section 10.9 Other General Comments

    Comment 53: Two commenters stated that the proposed rule puts 
museums in the position of determining whether human remains and 
associated funerary objects are ``Native American.''
    Our Response: Under the Act, museums and Federal agencies already 
have the role and responsibility of determining what constitutes 
``Native American'' cultural items in their possession or control. 
While the statute contemplates consultation on this determination and 
other topics related to cultural items, the final determination is the 
museum or Federal agency's alone. Challenges to such determinations may 
be raised as disputes before the Review Committee or litigated in a 
U.S. District Court.
    Comment 54: Two commenters requested clarification as to who is 
responsible for determining the geographic or cultural affiliation of 
Native American human remains and associated funerary objects.
    Our Response: The statute (25 U.S.C. 3003(a)) and current 
regulations (43 CFR 10.9(a)) are clear that each museum or Federal 
agency that has possession or control over holdings or collections of 
human remains and associated funerary objects must compile an inventory 
of such objects, and, to the fullest extent possible based on 
information possessed by the museum or Federal agency, must identify 
the geographical and cultural affiliation of each item. While these 
decisions must be made in consultation with Indian tribes and Native 
Hawaiian organizations, the museum or Federal agency is responsible for 
identifying the geographical and cultural affiliation of each item.
    Comment 55: One commenter recommended that current inventories of 
culturally unidentifiable human remains be reevaluated in light of U.S. 
v. Bonnichsen (357 F.3d 962 (9th Cir. 2004)).
    Our Response: The proposed rule does not change the definition of 
``Native American'' or ``human remains.'' To come within the scope of 
the Act, a Federal agency or museum must make a threshold determination 
that the culturally unidentifiable remains or funerary objects are 
Native American before they may include culturally unidentifiable human 
remains or funerary objects with which they are associated in the 
inventories that are submitted to the Review Committee pursuant to 
Sec.  10.9(d)(2).
    Comment 56: One commenter recommended that the regulations reaffirm 
that Federal agencies, like museums, must comply with the inventory, 
consultation, and repatriation requirements of the Act.
    Our Response: Like museums, Federal agencies must comply with the 
summary, inventory, consultation, notice, and repatriation process of 
the Act and the regulations.
    Comment 57: Seven commenters requested a clear and explicit 
explanation of how the proposed rule takes into account the potential 
interests of the public in scientific research and education.
    Our Response: The issue of scientific research is specifically 
addressed by Congress. Section 5(b)(2) of the Act states that 
``[Documentation] does not mean, and this Act shall not be construed to 
be an authorization for the initiation of new scientific studies of 
such remains and associated funerary objects or other means of 
acquiring or preserving additional scientific information from such 
remains and objects.'' The rule repeats this language at Sec.  
10.9(5)(ii).
    Comment 58: Eight comments recommended that Indian tribes and 
Native Hawaiian organizations should have the primary role in 
determining whether human remains are ``culturally unidentifiable.''
    Our Response: Museum and Federal agency officials, in consultation 
with Indian tribes and Native Hawaiian organizations, are required to 
determine the cultural affiliation of all Native American human remains 
and associated funerary objects in their possession or control (43 CFR 
10.9).

Section 10.11 Disposition of Culturally Unidentifiable Human Remains

    This new section fulfills the Secretary's responsibility to 
promulgate regulations under sections 8(c)(5) and 13 of the Act (25 
U.S.C. 3006(c)(5) and 3011)) and 25 U.S.C. 9 regarding the process for 
the disposition of culturally unidentifiable human remains. The 
Department of the Interior developed this section after full and 
careful consideration of the Review Committee's recommendations and 
other relevant legislation and policy.
    Comment 59: Thirty-two commenters generally supported this section. 
Twenty-four commenters generally opposed this section. One commenter 
recommended retaining the term ``disposition'' in the title of this 
section.
    Our Response: The term has been retained.
    Comment 60: One commenter recommended removing any timelines or 
deadlines from this section.
    Our Response: The proposed rule includes only two deadlines. 
Section 10.11(b)(1) requires that the museum or Federal agency official 
initiate consultation within ninety days of receiving a request from an 
Indian tribe or Native Hawaiian organization to transfer control of 
culturally unidentifiable human remains or, absent such a request, 
before making any offer to transfer control of culturally 
unidentifiable human remains. Section 10.11(d)(2) requires the manager 
of the National NAGPRA Program to update and make accessible the Review 
Committee's inventory of culturally unidentifiable human remains within 
30 days of publishing a notice of inventory completion for culturally 
unidentifiable human remains. Both deadlines seem reasonable and 
necessary for the effective implementation of this section.
    Comment 61: The preamble to the proposed rule specifically 
requested comments regarding the meaning of the term ``cultural 
relationship'' which is used in Section 3 of the Act (25 U.S.C. 3002) 
as a basis for the disposition of Native American human remains, 
funerary objects, sacred objects or objects of cultural patrimony 
excavated or removed from Federal or tribal land after 1990 (25 U.S.C. 
3002(a)(2)(C)(2)), and was included in the proposed rule as a basis for 
consultation (43 CFR 10.11(b)) and disposition (43 CFR 10.11(c)) of 
culturally unidentifiable human remains. Only four commenters offered 
specific recommendations on how the term should be defined. One 
proposed a definition that is indistinguishable from that of cultural 
affiliation--``a relationship that exists between federally-recognized 
tribes and earlier Native American groups with which those federally-
recognized tribes have a relationship of shared group identity.''
    Our Response: As a matter of regulatory drafting, different terms 
should not be accorded the same meaning when this can be avoided.
    Comment 62: Three other commenters recognized that from its context 
in

[[Page 12388]]

section 3 of the Act the term ``cultural relationship'' connotes a 
weaker connection than ``cultural affiliation,'' but differed on how 
the former connection should be proved. Two commenters recommended that 
the same types of evidence applicable to showing cultural affiliation-- 
``geographical, kinship, biological, archeological, anthropological, 
linguistic, folkloric, oral traditional, historical, or other relevant 
information or expert opinion'' [25 U.S.C. 3005(a)(4)]--should also be 
used to determine cultural relationship, but at some standard less than 
the preponderance of the evidence. Another commenter specified 
additional evidence that should be considered in determining cultural 
relationship, including habitation, tribal history, migration and 
creation stories, and evidence from tribal elders.
    Our Response: The drafters note that all of the specified types of 
evidence for ``cultural relationship'' are already subsumed under the 
broader categories identified in the Act for ``cultural affiliation.''
    Comment 63: Three commenters generally supported using ``cultural 
relationship'' as a basis for disposition of culturally unidentifiable 
human remains. Seven commenters recommended that ``cultural 
relationship'' be defined prior to finalization of the rule. Four 
commenters recommended finalizing the rule with a section reserved to 
define ``cultural relationship'' at a later date. One commenter 
recommended that the Review Committee be tasked with developing a 
definition of ``cultural relationship.'' Thirteen commenters 
recommended not defining ``cultural relationship'' by regulation, 
instead allowing museums, Federal agencies, Indian tribes, and Native 
Hawaiian organizations to interpret the term on a case-by-case basis. 
Nineteen commenters recommended removing ``cultural relationship'' from 
the priority structure entirely.
    Our Response: The diversity of opinion regarding the meaning of 
``cultural relationship'' convinced the drafters to remove it as a 
required criterion for consultation and disposition of culturally 
unidentifiable human remains in Sec.  10.11(b) and Sec.  10.11(c).

Section 10.11(a) General Intent

    Paragraph (a) states the general intent of Sec.  10.11.
    Comment 64: One commenter recommended it be made explicit that the 
rule only applies to human remains determined to be ``Native 
American.''
    Our Response: Section 10.11(a) has been changed to read: ``This 
section implements section 8(c)(5) of the Act (25 U.S.C. 3006(c)(5)) 
and applies to human remains previously determined to be Native 
American pursuant to Sec.  10.9, but for which no lineal descendant or 
culturally affiliated Indian tribe or Native Hawaiian organization has 
been identified.''

Section 10.11(b) Consultation

    Paragraph (b) establishes procedures for consultation regarding the 
disposition of culturally unidentifiable human remains.
    Comment 65: Six commenters recommended making it very clear that 
the appropriate disposition of culturally unidentifiable human remains 
can only occur within the framework of consultation and collaboration.
    Our Response: Section 10.11(b) is intended to provide such a 
framework.
    Comment 66: Six commenters were concerned that the initial listing 
of culturally unidentifiable human remains and associated funerary 
objects was completed without consultation.
    Our Response: Inventory preparation under Sec.  10.9 required 
consultation with lineal descendants and Indian tribal officials and 
traditional religious leaders (1) from whose tribal lands the human 
remains and associated funerary objects originated; (2) that are, or 
are likely to be, culturally affiliated with human remains and 
associated funerary objects; and (3) from whose aboriginal lands the 
human remains and associated funerary objects originated. Failure to 
consult with all of the above-referenced parties constitutes a failure 
to comply with the requirements of the Act and may result in assessment 
of a civil penalty under Sec.  10.12(b)(1)(vii). It is anticipated that 
consultation as required in Sec.  10.11(b) will result in 
determinations that some human remains and associated funerary objects 
previously determined to be culturally unidentifiable are actually 
culturally affiliated with an Indian tribe or Native Hawaiian 
organization.
    Comment 67: Four commenters considered the consultation 
requirements at Sec.  10.11(b) to be impractical, burdensome, likely to 
cause irreparable damage to the strong, highly productive collaborative 
relationships between Indians and the scientific community, and likely 
to lead to rushed decisions regarding disposition of culturally 
unidentifiable human remains. Six commenters recommended including 
additional guidance on how to conduct meaningful consultation. One 
commenter requested clear guidelines on exactly when a particular 
consultation process reaches a definitive conclusion. Five commenters 
recommended including a definition of ``consultation'' consistent with 
House Report 101-877.
    Our Response: Consultation is a critical component of implementing 
this section and the Act as a whole. The committee report accompanying 
the Act (House Report 101-877 (October 15, 1990)) defined consultation 
as ``a process involving the open discussion and joint deliberations 
with respect to potential issues, changes, or actions by all interested 
parties.'' Consultation is not defined in the Act itself. These 
regulations require museums and Federal agencies to initiate 
consultation within ninety days of receipt of a request from an Indian 
tribe or Native Hawaiian organization, or before any offer to transfer 
control of culturally unidentifiable human remains and associated 
funerary objects. Required consultation would generally conclude once 
control of the culturally unidentifiable human remains, with or without 
associated funerary objects, has been transferred to the Indian tribe 
or Native Hawaiian organization.

Section 10.11(b)(1) When To Consult

    Section 10.11(b)(1) identifies when museums and Federal agencies 
must initiate consultation regarding the disposition of culturally 
unidentifiable human remains and associated funerary objects.
    Comment 68: Two commenters recommended that Sec.  10.11(b)(1) 
provide clear guidelines for the circumstances under which a museum or 
Federal agency must initiate consultation. One commenter recommended 
that a museum or Federal agency's obligation to initiate consultation 
be triggered only by receipt of a claim. One commenter asked whether a 
Federal agency should invite consultation if no claim is received from 
a federally-recognized Indian tribe or Native Hawaiian organization. 
One commenter recommended that there be clear guidelines on exactly 
when the consultation process may conclude.
    Our Response: This paragraph requires a museum or Federal agency 
official to initiate consultation regarding the disposition of 
culturally unidentifiable human remains and associated funerary objects 
in two separate instances. Consultation must be initiated within ninety 
days of receipt of a request from an Indian tribe or Native Hawaiian 
organization to transfer control. Absent such a request, consultation 
must also be initiated before the museum or Federal agency makes any 
offer to transfer control. Required consultation would generally

[[Page 12389]]

conclude once the control and possession of the culturally 
unidentifiable human remains, with or without associated funerary 
objects, has been transferred to the Indian tribe or Native Hawaiian 
organization.

Section 10.11(b)(2) Who To Consult

    Section 10.11(b)(2) identifies who must be consulted regarding the 
disposition of culturally unidentifiable human remains and associated 
funerary objects.
    Comment 69: Three commenters recommended that consultation not be 
required with all of the Indian tribes and Native Hawaiian 
organizations specified at Sec.  10.11(b)(2), in part because Indian 
tribes and Native Hawaiian organizations will be inundated with 
requests to consult.
    Our Response: The drafters have removed the requirement to consult 
with Indian tribes and Native Hawaiian organizations with a cultural 
relationship to the region from which the human remains and associated 
funerary objects were removed (43 CFR 10.11(b)(2)(iii)). Museums and 
Federal agencies were already required to consult with Indian tribes 
and Native Hawaiian organizations from whose tribal lands or aboriginal 
lands the human remains and associated funerary objects were removed in 
preparing their initial inventories (43 CFR 10.9(b)).
    Comment 70: One commenter recommended that the Department compile a 
list of Native Hawaiian organizations that should be consulted 
regarding disposition of culturally unidentifiable human remains.
    Our Response: Contact information is available for some Native 
Hawaiian organizations from two sources within the Department of the 
Interior. The National Park Service, National NAGPRA Program maintains 
the Native American Consultation Database (http://home.nps.gov/nacd/). 
The Department of the Interior, Office of Hawaiian Relations maintains 
the Native Hawaiian Organization List (http://www.doi.gov/ohr/). Other 
sources should also be considered.
    Comment 71: One commenter considered inclusion of treaties, acts of 
Congress, and Executive Orders at Sec.  10.11(b)(2)(ii), along with 
final determinations of the Indian Claims Commission and the U.S. Court 
of Claims to be a fair and equitable way of identifying aboriginal 
lands. Three commenters recommended deleting treaties, acts of 
Congress, and Executive Orders as a basis for determining aboriginal 
lands. One commenter considered the cited documents too limiting, and 
recommended adding the ``testimony of experts.'' One commenter 
requested clarification as to who determines whether or not a specific 
tribe was the aboriginal occupant of an area.
    Our Response: While Section 3(a)(2)(C) of the Act (25 U.S.C. 
3002(a)(2)(C)) identifies only a final judgment of the Indian Claims 
Commission or United States Court of Claims as the basis for 
determining aboriginal lands, the drafters intend to include the full 
range of relevant and authoritative governmental determinations in this 
section to provide additional evidence relating to an Indian tribe or 
Native Hawaiian Organization (or, possibly, an Indian group that is not 
federally-recognized) with the closest connection to the culturally 
unidentifiable human remains. These include final judgments of the 
Indian Claims Commission and the United States Court of Claims, as well 
as treaties, Acts of Congress, or Executive Orders. Treaties signed 
before the establishment of the United States between the various 
colonial governments and Indian tribes may be used to identify areas 
aboriginally occupied by Indian tribes. Maps of the territory ceded 
under United States treaties were originally published in the 18th 
Annual Report of the Bureau of American Ethnology to the Secretary of 
the Smithsonian Institution, 1896-1897 (Government Printing Office, 
1899) and are available online at http://memory.loc.gov/ammem/amlaw/lwss-ilc.html. Judgments of the Indian Claims Commission are available 
at http://digital.library.okstate.edu/icc/index.html. The drafters note 
that pursuant to provisions of the Indian Claims Commission Act, 
compromises (settlements) have the same effect of final judgments of 
the Indian Claims Commission ((605 Stat. 1060, 25 U.S.C. 70a et seq.).
    Comment 72: Two commenters recommended including a mechanism at 
Sec.  10.11(b)(2) requiring notification of Indian groups that are not 
federally-recognized or foreign based groups that may have a shared 
group identity with culturally unidentifiable human remains.
    Our Response: The Act and regulations require museums and Federal 
agencies to consult with lineal descendants, Indian tribes, and Native 
Hawaiian organizations. Museum and Federal agencies may consult or 
provide notification to foreign based groups or Indian groups that are 
not federally-recognized as well.
    Comment 73: One commenter considered the Sec.  10.11(b)(2)(iii) 
requirement to consult with Indian tribes and Native Hawaiian 
organizations with a cultural relationship to the region from which 
culturally unidentifiable human remains and associated funerary objects 
were removed to be reasonable and appropriate. Three commenters 
recommended deleting the requirement. Two commenters recommended 
defining the term ``region.'' One commenter recommended clarifying the 
term ``lacking geographic affiliation.'' One commenter recommended 
including provisions to incorporate study results, particularly of the 
age of the human remains, and the results of consultation.
    Our Response: The diversity of opinion regarding the meaning of 
``cultural relationship'' convinced the drafters to remove it as a 
required criteria for consultation regarding the disposition of 
culturally unidentifiable human remains in Sec.  10.11(b)(2)(iii).
    Comment 74: Five commenters recommended that Indians must not be 
viewed as simply one voice among many, but as the primary voice in 
determining the disposition of culturally unidentifiable human remains.
    Our Response: These regulations require museum and Federal agency 
officials to make certain decisions regarding the disposition of 
culturally unidentifiable human remains. While the regulations require 
that these decisions are made in consultation with Indian tribes and 
Native Hawaiian organizations, the responsibility for making the 
decision remains with the museum or Federal agency official. Indian 
tribes and Native Hawaiian organizations assume sole responsibility for 
disposition once the museum or Federal agency transfers control of 
culturally unidentifiable human remains.
    Comment 75: Two commenters requested clarification as to whether 
the requirements of Sec.  10.11(b)(1) and (b)(2) were independent of 
each other.
    Our Response: The two sections are related. Section 10.11(b)(1) 
specifies when consultation must begin: either within 90 days of 
receipt of a request to transfer control or, absent such a request, 
before any offer to transfer control. Section 10.11(b)(2) specifies who 
must be consulted in either situation.

Section 10.11(b)(3) Information Provided

    Section 10.11(b)(3) outlines the information that museum or Federal 
agency officials must provide to all consulted Indian tribes and Native 
Hawaiian organizations.

[[Page 12390]]

    Comment 76: One commenter recommended revising Sec.  10.11(b)(3) to 
clarify that the specified information must be provided to all Indian 
tribes and Native Hawaiian organizations with which the museum or 
Federal agency is consulting ``or should have consulted.''
    Our Response: Refusing to provide the specified information to one 
of the Indian tribes identified in Sec.  10.11(b)(2) would constitute a 
failure to comply under Sec.  10.12(b)(vii).
    Comment 77: Two commenters suggested that Sec.  10.11(b)(3) require 
museums and Federal agencies to send information as part of 
consultation to Indian groups that are not federally-recognized. Two 
commenters questioned the legal basis for requiring a museum or Federal 
agency to provide a list of Indian groups that are not federally-
recognized that are known to have a relationship of shared group 
identity with the particular human remains and associated funerary 
objects.
    Our Response: In the two sections of the Act that impose mandatory 
priorities for control or disposition of human remains (25 U.S.C. 3002 
and 3005), Congress limited the recipients to federally-recognized 
Indian tribes (in addition to lineal descendants and Native Hawaiian 
organizations) in recognition of the government-to-government 
relationship between such tribes and the United States. In expanding 
the possible recipients of culturally unidentifiable human remains, 
with or without associated funerary objects, the Secretary followed the 
lead of Congress both in assuring that such cultural items went to the 
Indian group that had the closest cultural connection to the items, 
even if that group is not federally-recognized, and in maintaining the 
priority position of the government-to-government relationship, by not 
making such a disposition mandatory. In keeping with the voluntary 
nature of such disposition, consultation with Indian groups that are 
not federally-recognized is at the discretion of the museum or Federal 
agency.
    Comment 78: One commenter recommended that the Secretary provide a 
list of Indian groups that are not federally-recognized to facilitate 
the consultation efforts of museums and Federal agencies.
    Our Response: Museums and Federal agencies are not required to 
consult with Indian groups that are not federally-recognized. However, 
they may wish to consult with Indian groups that are not federally-
recognized, particularly if such groups are known to have a 
relationship of shared group identity with culturally unidentifiable 
human remains and associated funerary objects in the possession or 
control of the museum or Federal agency. Section 10.11(b)(3)(ii) 
requires museums and Federal agencies to provide consulted Indian 
tribes and Native Hawaiian organizations with a list of any Indian 
groups that are not federally-recognized and is known to have a 
relationship of shared group identity with such human remains and 
associated funerary objects in order to facilitate consultation 
regarding appropriate disposition. Thus, the museum or Federal agency, 
and not the Secretary, would possess the list of such groups on a case 
by case basis.
    Comment 79: One commenter suggested that the Secretary require a 
museum or Federal agency to state its reasoning for consultation with 
an Indian group that is not federally-recognized.
    Our Response: Because the regulations do not require such 
consultation, they do not require a museum or Federal agency to provide 
the basis for such consultation. However, under Sec.  10.11(b)(4)(iv), 
the museum or Federal agency must request the names and addresses of 
Indian groups that are not federally-recognized during consultation 
with relevant Indian tribes or Native Hawaiian organizations. An 
appropriate subject for the consultation in the context of such a 
request would be the reason why the museum or Federal agency needs to 
consult with those groups.
    Comment 80: One commenter suggested rewording Sec.  10.11(b)(3)(ii) 
to remove the passive voice and clarify that the subject list is of the 
``Indian groups that are not federally-recognized that the museum or 
Federal agency knows shares'' a group identity with the particular 
human remains and associated funerary objects.
    Our Response: The drafters agree that, generally, any such 
knowledge would be within the museum or Federal agency, but prefer to 
leave the requirement in the passive voice to allow for other sources, 
such as the general literature.
    Comment 81: One commenter requested clarification in Sec.  
10.11(b)(3)(ii) of what is a legitimate Indian group that is not 
federally-recognized and what makes such a group ``known.''
    Our Response: Consultation with Indian groups that are not 
federally-recognized is not required by the Act or these regulations. 
Museums and Federal agencies are required to provide consulted Indian 
tribes and Native Hawaiian organizations with a list of any Indian 
groups that are not federally-recognized that are known to have a 
relationship of shared group identity with particular human remains and 
associated funerary objects. Determinations as to whether such a 
relationship of shared group identity exists may be done on a case-by-
case basis relying upon the types of evidence outlined at Sec.  10.14 
of these regulations.

Section 10.11(b)(4) Information Requested

    Section 10.11(b)(4) outlines the information that museum and 
Federal agency officials must request from consulted Indian tribes and 
Native Hawaiian organizations.
    Comment 82: One commenter was concerned that Sec.  10.11(b)(4)(iii) 
gives Indian tribes and Native Hawaiian organizations complete 
authority to determine the criteria to be used in identifying groups of 
human remains and associated funerary objects for consultation.
    Our Response: Museum and Federal agency officials are required to 
request temporal and/or geographic criteria to be used to identify 
groups of human remains and associated funerary objects for 
consultation. Additional criteria may also be used to identify the 
focus of consultation.
    Comment 83: Two commenters were concerned that Sec.  10.11(b)(4)(v) 
gives Indian tribes and Native Hawaiian organizations authority to 
single-handedly and unilaterally determine the consultation schedule 
and process.
    Our Response: Museum and Federal agency officials are required to 
request consultation schedules and process preferences from Indian 
tribes and Native Hawaiian organizations. The consultation schedule and 
process that is actually used will depend on other factors as well.

Section 10.11(b)(5) Disposition Proposals

    Section 10.11(b)(5) directs museum and Federal agency officials to 
seek to develop a proposed disposition for culturally unidentifiable 
human remains and associated funerary objects that is mutually 
agreeable to the parties and consistent with this part.
    Comment 84: Six commenters recommended revising Sec.  10.11(b)(5) 
to require the museum or Federal agency official to develop a proposed 
disposition for culturally unidentifiable human remains and associated 
funerary objects that is mutually agreeable to the parties specified in 
Sec.  10.11(b)(2). One commenter recommended that the museum or Federal 
agency official should consider proposed dispositions developed by and 
mutually agreeable to the parties specified in Sec.  10.11(b)(2).

[[Page 12391]]

One commenter recommended that this paragraph address what would happen 
if the parties do not agree on a proposed disposition. One commenter 
recommended that if no agreement is reached, the museum or Federal 
agency should be able to determine disposition in good faith and be 
protected from liability.
    Our Response: This paragraph strongly encourages museum and Federal 
agency officials to seek to develop proposed dispositions that are 
mutually agreeable to the parties specified in Sec.  10.11(b)(2). It is 
recognized that the interests of the various parties may differ and 
that obtaining a mutually agreeable proposal is beyond the ability of 
any single party.
    Comment 85: One commenter recommended revising Sec.  10.11(b)(5) to 
clarify that disposition of funerary objects associated with culturally 
unidentifiable human remains is advised but not required.
    Our Response: Section 10.11(c)(5) which has been renumbered as 
Sec.  10.11(c)(4) clarifies that a museum or Federal agency may 
transfer control of funerary objects that are associated with 
culturally unidentifiable human remains and that the Secretary 
recommends that museums and Federal agencies engage in such transfers 
whenever Federal or State law would not otherwise preclude transfers.
    Comment 86: One commenter recommended revising Sec.  10.11(b)(5) to 
establish a basis for determining the right of claim or strength of 
relationship among the parties specified in Sec.  10.11(b)(2).
    Our Response: The priority of claim is established by Sec.  
10.11(b)(2). A claim for culturally unidentifiable human remains made 
by an Indian tribe or Native Hawaiian organization from whose tribal 
land, at the time of the excavation or removal, the human remains were 
removed has a higher priority than a claim made by an Indian tribe that 
is recognized as aboriginally occupying the area from which the human 
remains were removed.
    Comment 87: One commenter was concerned that limiting agreement in 
Sec.  10.11(b)(5) to only those parties identified in Sec.  10.11(b)(2) 
will vitiate the careful consideration of evidence required by the Act 
and leave the door wide open to transfers of control to groups with no 
significant relationship to the human remains.
    Our Response: Museum and Federal agency officials are free to 
consult with any party that may help inform the development of a 
proposed disposition. However, the parties identified in Sec.  
10.11(b)(2) must be consulted and the museum or Federal agency official 
should, at a minimum seek to develop a proposed disposition for 
culturally unidentifiable human remains and associated funerary objects 
that is mutually agreeable to the parties.
    Comment 88: One commenter recommended revising Sec.  10.11(b)(5) to 
indicate that a museum or Federal agency and involved Indian parties 
should be free to reach any agreement as to disposition that is 
permitted by all applicable laws.
    Our Response: Museum and Federal agency officials may be bound by 
other Federal, state, or local ordinances regarding the disposition of 
culturally unidentifiable human remains and associated funerary objects 
in their possession or control. Section 10.11(b)(5) stipulates that all 
such agreements must be consistent with these regulations at a minimum.

Section 10.11(b)(6) Determinations of Lineal Descent or Cultural 
Affiliation

    Section 10.11(b)(6) stipulates that the notification and 
repatriation provisions of Sec. Sec.  10.9(e) and 10.10(b) apply if 
human remains and associated funerary objects previously determined to 
be culturally unidentifiable are actually culturally affiliated with an 
Indian tribe or Native Hawaiian organization.
    Comment 89: One commenter recommended that the language in Sec.  
10.11(b)(6) be clarified to indicate that the notification and 
repatriation provisions would also apply if consultation resulted in 
the identification of a lineal descendant. One commenter recommended 
rephrasing the section for clarity.
    Our Response: The text has been revised with additional text 
indicating that the notification and repatriation provisions would 
apply if consultation resulted in the identification of a lineal 
descendant.
    Comment 90: One commenter objected to what he considered a 
presumption in Sec.  10.11(b)(6) that skeletal materials that have not 
been identified with a cultural group can never be correctly 
identified.
    Our Response: The drafters anticipate that the consultation process 
will result in decisions that human remains and associated funerary 
objects previously determined to be culturally unidentifiable are 
actually culturally affiliated with Indian tribes and Native Hawaiian 
organizations. This paragraphs makes it clear that the notification and 
repatriation requirements of Sec.  10.9(e) and Sec.  10.10(b) apply 
when a determination of cultural affiliation is made.

Section 10.11(c) Disposition

    Paragraph(c) establishes a priority listing and procedures for the 
disposition of culturally unidentifiable human remains.
    Comment 91: The preamble to the proposed rule specifically 
requested comments regarding the appropriateness of using a priority 
structure in determining the disposition of culturally unidentifiable 
human remains. The priority structure proposed in Sec.  10.11(c) was 
based on the similar priority structure in section 3 of the Act. 
Sixteen commenters generally supported use of the proposed priority 
structure. Nine commenters objected to use of any priority structure 
based on criteria other than lineal descent or cultural affiliation.
    Our Response: The Review Committee is responsible for recommending 
specific actions for developing a process for disposition of culturally 
unidentifiable human remains (25 U.S.C. 3006 (c)(5)). Since 1992, the 
Review Committee has recommended the disposition of specific culturally 
unidentifiable human remains based on their removal from the aboriginal 
land of an Indian tribe, their shared group identity with an Indian 
group that is not federally-recognized, and reburial pursuant to 
otherwise applicable state burial law. The Review Committee's 
recommendations in these cases have been reviewed by the Secretary of 
the Interior and generally endorsed. Such dispositions are clearly 
within the Secretary's authority under current regulations. The 
proposed rule would simply authorize museums and Federal agencies to 
effect such dispositions to Indian tribes and Native Hawaiian 
organizations without direct reliance upon the Secretary.
    Comment 92: Three commenters recommended that the ``priority 
structure'' should not be the only factor for determining the 
disposition of either culturally affiliated or culturally 
unidentifiable human remains, such as agreements between Indian tribes 
regarding disposition.
    Our Response: Agreements between a Federal agency or museum and 
culturally affiliated Indian tribes or Native Hawaiian organizations 
regarding the disposition of, or control over, Native American human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony are specifically authorized by section 11(1)(B) of the Act 
(25 U.S.C. 3009(1)(B)). Agreements regarding the return of culturally 
unidentifiable human remains and associated funerary objects to Indian 
tribes, Native Hawaiian

[[Page 12392]]

organizations, or individuals are also authorized by section 11(1)(A) 
of the Act (25 U.S.C. 3009(1)(A)). The drafters have added a new 
subsection at Sec.  10.11(c)(2)(i) to facilitate such voluntary 
dispositions.
    Comment 93: One commenter urged inclusion of guidelines clearly 
specifying the level of effort that will be required to determine if 
culturally unidentifiable human remains fit the proposed priority 
categories.
    Our Response: Guidelines specifying the level of effort necessary 
to determine the applicability of these, or other definitions within 
the regulations, are already provided by the statute and regulations. 
For instance, determinations regarding the cultural affiliation of 
human remains, or the lack thereof, are to be made, to the extent 
possible, based on information possessed by a museum or Federal agency 
(25 U.S.C. 3003(a)). New scientific studies of such remains and 
associated funerary objects, or other means of acquiring or preserving 
additional scientific information from such remains and objects, are 
not required by the statute (25 U.S.C. 3003(b)(2)).
    Comment 94: One commenter urged consideration of a single unified 
effort to specifically identify and map tribal and aboriginal lands.
    Our Response: Maps of tribal land, Indian Claims Commission 
decisions, and treaty areas are currently posted at: http://www.nps.gov/history/nagpra/.
    Comment 95: Three commenters were concerned that assigning 
disposition of culturally unidentifiable human remains to a particular 
culture group might result in some skeletal remains being transferred 
to a group to which they do not belong, including some of European, 
African, and Asian ancestry.
    Our Response: All museums and Federal agencies were required to 
compile inventories of human remains and associated funerary objects. 
Each museum and Federal agency was responsible for determining if the 
human remains and associated funerary objects were Native American in 
the first instance. Human remains that were not identified as Native 
American were not to be included on the inventory. Museums and Federal 
agencies that wish to amend a previous decision may do so pursuant to 
Sec.  10.13(e).

Section 10.11(c)(1) Required Offers to Transfer Control

    Section 10.11(c)(1) requires a museum or Federal agency to offer to 
transfer control of culturally unidentifiable human remains for which 
it cannot prove right of possession to Indian tribes or Native Hawaiian 
organizations according to two priority categories.
    Comment 96: One commenter recommended that the ``offer to transfer 
control'' referred to in Sec.  10.11(c)(1) must be developed in 
consultation with Indian tribes and Native Hawaiian organizations.
    Our Response: Any offer to transfer control must be developed in 
consultation with the Indian tribes and Native Hawaiian organizations 
identified in Sec.  10.11(b)(2).
    Comment 97: Two commenters recommended that museums and Federal 
agencies should not be required to initiate efforts to transfer control 
of culturally unidentifiable human remains absent a request from an 
Indian tribe or Native Hawaiian organization with the right to make 
such a claim.
    Our Response: Under Sec.  10.11(b)(1)(i), a museum or Federal 
agency official must initiate consultation regarding the disposition of 
culturally unidentifiable human remains and associated funerary objects 
within 90 days of receipt of a request from an Indian tribe or Native 
Hawaiian organization to transfer control of such items. Absent such a 
request, the museum or Federal agency official may voluntarily offer to 
transfer control, in which case they must initiate consultation prior 
to making such an offer.
    Comment 98: Nine commenters supported the proposed provision in 
Sec.  10.11(c)(1) requiring that a museum or Federal agency offer to 
transfer culturally unidentifiable human remains to certain classes of 
Indian tribes unless it can prove that it has the right of possession 
to the remains. Seven commenters generally opposed the same provision, 
claiming that museums and Federal agencies should not have to prove 
that right to keep their collections.
    Our Response: The opportunity for a museum or Federal agency to 
assert that it has the right of possession to culturally unidentifiable 
human remains is consistent with the provisions in Sec.  10.15 of the 
regulations concerning repatriation of culturally affiliated human 
remains and the intent of Congress to recognize such a right as an 
exception to repatriation of human remains under section 7 of the Act 
(25 U.S.C. 3003)). The Secretary believes that it is appropriate to 
recognize that right as an exception for these remains as well.
    Comment 99: One commenter questioned the use of the term ``right of 
possession'' with respect to human remains, stating that one person 
cannot own another person, alive or dead.
    Our Response: Although the use of this term, as well as the term 
``culturally unidentifiable'' is sensitive, Congress used both of these 
terms with specific meanings and consequences in the Act, so they must 
be used in the regulations with respect to those same meanings and 
consequences.
    Comment 100: Eight commenters stated that proving right of 
possession to culturally unidentifiable human remains would be 
``impossible'' since only a culturally affiliated Indian tribe can 
grant consent.
    Our Response: Under NAGPRA, ``the original acquisition of Native 
American human remains and associated funerary objects which were 
excavated, exhumed, or otherwise obtained with full knowledge and 
consent of the next of kin or the official governing body of the 
appropriate culturally affiliated Indian tribe or Native Hawaiian 
organization is deemed to give right of possession to those remains'' 
(25 U.S.C. 3001(13)). Further, ``the governing body of an Indian tribe 
or Native Hawaiian organization [may] expressly relinquish * * * 
control over any Native American human remains'' acquired pursuant to 
the ownership provisions of the Act (25 U.S.C. 3002(e)). Thus, Congress 
has defined the right of possession for these cultural items, and the 
Secretary cannot change that definition. The Secretary does note, 
however, that the ``full knowledge and consent of the next of kin'' 
would bring freely donated organs and other body parts within the right 
of possession. Furthermore, the exception listed at Sec.  10.10(c)(3) 
applies to the requirements of Sec.  10.11(c)(1).
    Comment 101: Four commenters requested that the final rule be very 
clear that the burden of proof for the right of possession of 
culturally unidentifiable human remains is on the museum or Federal 
agency.
    Our Response: The Secretary agrees that the burden of proof is on 
the museum or Federal agency, and that, as the proposed and final rule 
states, if a museum or Federal agency ``is unable to prove that it has 
right of possession'', it must offer to transfer the remains, with or 
without associated funerary objects (25 U.S.C. 3005(c)) upon receipt of 
a request.
    Comment 102: Three commenters stated that a museum or Federal 
agency should be presumed to have the legal right of possession to its 
collection, unless shown to be otherwise. The commenters asserted that 
such a presumption would be consistent with the treatment of 
archaeological resources as property of the United States under the 
Archaeological Resources Protection Act (ARPA) and

[[Page 12393]]

with state laws relating to property rights and private ownership of 
human remains and artifacts taken from private property. Culturally 
unidentifiable human remains should be retained by museums and Federal 
agencies in the public trust.
    Our Response: Congress specifically chose to change the ownership 
presumption in ARPA when it enacted NAGPRA, as evidenced by the 
requirement for a museum or Federal agency to prove that it has the 
right of possession to culturally affiliated human remains under 
section 7 of NAGPRA. With respect to state property laws and 
presumptions of ownership, NAGPRA is Federal law, and, as such, under 
the Supremacy Clause of the Constitution (Art. VI, cl. 2; Lorillard 
Tobacco Co. v. Reilly, 533 US 525 (2001)) would preempt any state law 
on the same subject matter. This is especially true in Indian affairs, 
where the United States has plenary and exclusive power (Art. I, Sec. 
8, cl. 3; Worcester v. Georgia, 31 US 515, 6 Pet 515 (1832)).
    Comment 103: Two commenters recommended excluding human anatomical 
collections used by medical schools for training.
    Our Response: Though not excluded from the inventory provisions, 
medical schools that receive Federal funds would not be required to 
repatriate Native American human remains obtained with the voluntary 
consent of an individual or group that had authority of alienation.
    Comment 104: Six commenters supported the provision at Sec.  
10.11(c)(1)(i) requiring museums and Federal agencies to offer to 
transfer control of culturally unidentifiable human remains to the 
Indian tribe or Native Hawaiian organization from whose tribal land, at 
the time of excavation or removal, the human remains were removed. One 
commenter objected to the provision since it may force a museum or 
Federal agency to transfer human remains to an Indian tribe or Native 
Hawaiian organization with which they are not culturally affiliated.
    Our Response: Disposition of human remains, funerary objects, 
sacred objects, and objects of cultural patrimony to Indian tribes 
based on criteria other than cultural affiliation was clearly 
anticipated by Congress. Section 3(a)(2)(A) of the Act (25 U.S.C. 
3002(a)(2)(A)), which was used as the model for the proposed provision, 
specifically authorizes disposition of human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated or 
discovered on tribal lands after November 16, 1990 to the Indian tribe 
or Native Hawaiian organization in control of that tribal land. 
Significantly, under section 3 of the Act, ownership or control based 
on tribal land is given a higher priority order than cultural 
affiliation. The drafters consider disposition of culturally 
unidentifiable human remains to the Indian tribe or Native Hawaiian 
organization from whose tribal land, at the time of excavation or 
removal, the human remains were removed, to be reasonable and 
appropriate.
    Comment 105: One commenter recommended revising Sec.  
10.11(c)(1)(i) to require an offer to transfer control of culturally 
unidentifiable human remains to the Indian tribe or Native Hawaiian 
organization on whose tribal land the remains were originally buried, 
and not just to the Indian tribe or Native Hawaiian organization from 
whose tribal land the remains were excavated.
    Our Response: The concept of tribal land as used in these 
regulations applies to all lands which are currently within the 
exterior boundary of any Indian reservation, comprise a dependent 
Indian community, or are administered for the benefit of Native 
Hawaiians pursuant to the Hawaiian Homes Commission Act (25 U.S.C. 3001 
(15)). Human remains that were buried on tribal land which was 
subsequently transferred to another party are likely to be of 
relatively recent age, making it very likely that a lineal descendant 
or culturally affiliated Indian tribe or Native Hawaiian organization 
can be determined.
    Comment 106: One commenter requested clarification of what 
constitutes ``tribal lands'' in Oklahoma.
    Our Response: ``Tribal lands'' are defined at Sec.  10.2(f)(2) and 
include all lands which (1) Are within the exterior boundaries of any 
Indian reservation including, but not limited to, allotments held in 
trust or subject to a restriction on alienation by the United States; 
(2) comprise dependent Indian communities; or (3) are administered for 
the benefit of Native Hawaiians pursuant to the Hawaiian Homes 
Commission Act. Given the diversity of Indian land ownership, the 
determination of whether a particular parcel or area is ``tribal 
lands'' for purposes of this definition is made on a case-by-case 
basis, consistent with case law developed by the Supreme Court and 
other Federal courts, for example, Alaska v. Native Village of Venetie 
Tribal Government, 522 U.S. 520 (1998). That determination is 
especially difficult in certain parts of the United States, such as 
Oklahoma and California.
    Comment 107: Five commenters supported the provision at Sec.  
10.11(c)(1)(ii) requiring museums and Federal agencies to offer to 
transfer control of culturally unidentifiable human remains to the 
Indian tribe or tribes from whose aboriginal land the human remains 
were removed. Two commenters opposed such returns that are not based on 
cultural affiliation.
    Our Response: Disposition of human remains, funerary objects, 
sacred objects, and objects of cultural patrimony to Indian tribes 
based on criteria other than cultural affiliation was clearly 
anticipated by Congress. Section 3(a)(2)(C) of the Act (25 U.S.C. 
3002(a)(2)(C)), which was used as the model for the proposed provision, 
specifically authorizes disposition of human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated or 
discovered on aboriginal lands after November 16, 1990 to the Indian 
tribe that aboriginally occupied the area in which the cultural items 
were discovered. Consistent with the terms of the statute, the drafters 
consider disposition of culturally unidentifiable human remains to the 
Indian tribe or tribes that are recognized as aboriginally occupying 
the area from which the human remains were recovered to be reasonable 
and appropriate given that often the designation of culturally 
unidentifiable is due to a lack of information occasioned by less than 
optimal collection practices.
    Comment 108: One commenter recommended changing the phrase ``Indian 
tribe or tribes that are recognized * * *'' in Sec.  10.11(c)(1)(ii) to 
``Indian tribe that is recognized * * *'' One commenter requested 
clarification as to whether this provision would apply to an Indian 
group that is not federally-recognized.
    Our Response: The drafters included both the singular and plural 
forms of the term ``Indian tribe'' to acknowledge that many United 
States treaties were signed by representatives of more than one Indian 
tribe. Regardless, when interpreting a statute words importing the 
singular include and apply to several persons, parties, or things (1 
U.S.C. 1). When Federal agencies publish proposed and final rules in 
the Federal Register that amend existing regulations, the agency only 
publishes the portion of the regulations that would change. Unless the 
Federal agency states otherwise, all portions of existing regulations 
that are not proposed for change in the notice of proposed rulemaking 
remain the same, and still apply. Thus, when this final rule refers to 
``Indian tribes'', the drafters are using

[[Page 12394]]

the existing definition of that term, for which no change was proposed. 
That definition, at Sec.  10.2(b)(2), only refers to federally-
recognized Indian tribes. The drafters of the final rule were very 
careful to use the term ``Indian group that is not federally-
recognized'' when those groups were included in a provision to try to 
keep the distinction clear.
    Comment 109: One commenter objected to authorizing the use of more 
than a final judgment of the Indian Claims Commission or United States 
Court of Claims to determine aboriginal land in Sec.  10.11 (c)(1)(ii).
    Our Response: While section 3 (a)(2)(C) of the Act (25 U.S.C. 3002 
(a)(2)(C)) identifies only a final judgment of the Indian Claims 
Commission or United States Court of Claims as the basis for 
determining aboriginal lands, the drafters intend to include the full 
range of relevant and authoritative governmental determinations in this 
section. To provide additional evidence relating to an Indian tribe or 
Native Hawaiian Organization (or, possibly, an Indian group that is not 
federally-recognized) with the closest connection to the culturally 
unidentifiable human remains. These include final judgments of the 
Indian Claims Commission and the United States Court of Claims, as well 
as treaties, Acts of Congress, or Executive Orders. Treaties signed 
before the establishment of the United States between the various 
colonial governments and Indian tribes may be used to identify areas 
aboriginally occupied by Indian tribes based on the acknowledgement of 
the validity of these treaties by the United States. Maps of the 
territory ceded under United States treaties were originally published 
in the 18th Annual Report of the Bureau of American Ethnology to the 
Secretary of the Smithsonian Institution, 1896-1897 (Government 
Printing Office, 1899) and are available online at http://memory.loc.gov/ammem/amlaw/lwss-ilc.html. Judgments of the Indian 
Claims Commission are available at http://digital.library.okstate.edu/icc/index.html. The drafters note that pursuant to provisions of the 
Indian Claims Commission Act, settlements have the same effect as final 
judgments of the Indian Claims Commission (605 Stat. 1060, 25 U.S.C. 
70a et seq.).
    Comment 110: One commenter recommended provisions be included to 
resolve conflicts over dispositions based on aboriginal lands pursuant 
to Sec.  10.11(c)(1)(ii).
    Our Response: Section 10.11(e) addresses the resolution of disputes 
regarding the disposition of culturally unidentifiable human remains 
and associated funerary objects, including disputes regarding 
identification of aboriginal lands.
    Comment 111: Three commenters recommended that determinations of 
aboriginal occupation should not be limited to the sources outlined in 
Sec.  10.11(c)(1)(ii), but should be defined at the discretion of the 
Native communities and/or based on the ``testimony of experts.'' One 
commenter recommended including provisions recognizing final judgments 
of other Federal courts.
    Our Response: The drafters intend to include the full range of 
relevant and authoritative governmental determinations in this section. 
These may include final judgments from Federal Courts, including the 
United States Court of Claims. Museum and Federal agency officials may 
also consider other information, such as expert testimony, but are not 
required to do so.
    Comment 112: One commenter generally supported the disposition of 
culturally unidentifiable human remains based on ``cultural 
relationship.'' Eleven commenters raised concerns about using 
``cultural relationship'' as the basis for disposition of culturally 
unidentifiable human remains.
    Our Response: As noted in the response to comment 63 above, the 
diversity of opinion regarding the meaning of ``cultural relationship'' 
convinced the drafters to remove it as a required criterion for 
consultation and disposition of culturally unidentifiable human 
remains.
    Comment 113: One commenter was concerned that some museums might 
urge Indian tribes and Native Hawaiian organizations to accept human 
remains to which they may not have any ancestral connection in order to 
prevent turning over such human remains to groups with more attenuated 
``cultural relationships.''
    Our Response: The drafters have removed the term ``cultural 
relationship'' as a basis for disposition under Sec.  10.11(c)(1). 
Consultation may result in a determination that human remains and 
associated funerary objects previously determined to be culturally 
unidentifiable are actually culturally affiliated with an Indian tribe 
or Native Hawaiian organization (43 CFR 10.11(b)(6)).
    Comment 114: One commenter recommended that an Indian tribe's 
decision regarding the disposition of culturally unidentifiable human 
remains should not be contingent upon the agreement of other lower 
priority claimants.
    Our Response: Under Sec.  10.11(c)(1), a request to transfer 
control of culturally unidentifiable human remains from an Indian tribe 
or Native Hawaiian organization from whose tribal land, at the time of 
excavation or removal, the human remains were removed is given priority 
and is not contingent upon any agreement with another Indian tribe that 
is recognized as aboriginally occupying the area from which the human 
remains were removed.
    Comment 115: One commenter considered the Review Committee's case-
by-case consideration of requests for disposition of culturally 
unidentifiable human remains to be working well and to be superior to 
the proposed system.
    Our Response: Under current regulations (43 CFR 10.9(e)(6)), 
museums must retain possession of culturally unidentifiable human 
remains unless legally required to do otherwise or recommended to do 
otherwise by the Secretary. For over a decade, the Secretary has given 
full consideration to the Review Committee's case-by-case deliberations 
in deciding to make such a recommendation. These regulations were 
developed with this case-by-case experience in mind, as well as after 
careful consideration of the Review Committee's 2000 final 
recommendations. Dispositions involving Indian groups that are not 
federally-recognized or reinterment according to State or other law 
will still require a recommendation from the Secretary, who may request 
the Review Committee's advice.

Section 10.11(c)(2) Voluntary Dispositions

    Section 10.11(c)(3) (renumbered as Sec.  10.11(c)(2)) establishes a 
process for the voluntary disposition of culturally unidentifiable 
human remains that are not transferred under provisions of Sec.  
10.11(c)(1).
    Comment 116: Four commenters stated that the claims to culturally 
unidentifiable human remains, with or without associated funerary 
objects, by a federally-recognized Indian tribe must take priority over 
any other group.
    Our Response: The Secretary agrees. To ensure that the rights of 
federally-recognized Indian tribes are protected, a museum or Federal 
agency may only transfer control of culturally unidentifiable human 
remains, with or without associated funerary objects, to an Indian 
group that is not federally-recognized after full consultation with 
relevant federally-recognized Indian

[[Page 12395]]

tribes, with no objection of any of those tribes, and upon receiving a 
recommendation from the Secretary. Such Indian groups that are not 
federally-recognized would be identified through consultation with all 
relevant federally-recognized Indian tribes. The Secretary considers 
that these provisions adequately respect and protect the sovereignty 
and rights of federally-recognized tribes.
    Comment 117: Seven commenters were concerned that any disposition 
to Indian groups that are not federally-recognized was voluntary and 
that the proposed rule would not force a museum or Federal agency to 
transfer control of culturally unidentifiable human remains, with or 
without associated funerary objects, to an Indian group that is not 
federally-recognized to which the cultural items are clearly culturally 
connected.
    Our Response: In the two sections of the Act that impose mandatory 
priorities for control or disposition of human remains (Sections 3 and 
7), Congress limited the recipients to federally-recognized Indian 
tribes (in addition to lineal descendants and Native Hawaiian 
organizations) in recognition of the government-to-government 
relationship between such tribes and the United States. In expanding 
the universe of possible recipients of culturally unidentifiable human 
remains, with or without associated funerary objects, the Secretary 
followed the lead of Congress both in assuring that such cultural items 
went to the Indian group that had the closest cultural connection to 
the items, even if that group is not federally-recognized, and in 
maintaining the priority of the government-to-government relationship, 
by not making such a disposition mandatory to an Indian group that is 
not federally-recognized.
    Comment 118: Eleven commenters were concerned that the provision in 
Sec.  10.11(c)(3) for voluntary disposition of culturally 
unidentifiable human remains, with or without associated funerary 
objects, to an Indian group that is not federally-recognized would put 
a museum or Federal agency in the position of determining whether a 
particular entity is a ``valid'' Indian group that is not federally-
recognized, which the commenters asserted that a Federal agency or 
museum lacks the authority to make. Some of the commenters requested 
that the Secretary define ``an Indian group that is not federally-
recognized.''
    Our Response: Section 10.11(c)(3) has been renumbered as Sec.  
10.11(c)(2). The proposed and final rules do not require a museum or 
Federal agency to make such a determination. Rather, during 
consultation, the museum or Federal agency supplies relevant federally-
recognized Indian tribes and Native Hawaiian organizations with ``a 
list of any Indian groups that are not federally-recognized that are 
known to have a relationship of shared group identity with the 
particular human remains and associated funerary objects'' (43 CFR 
10.11(b)(3)(ii) (emphasis added), i.e., those groups that would be 
culturally affiliated with the human remains and associated funerary 
objects if the group was recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians. Then, the museum or Federal agency requests 
from the federally-recognized Indian tribe or Native Hawaiian 
organization ``the names and addresses of other * * * Indian groups 
that are not federally-recognized that should be included in the 
consultations.'' (43 CFR 10.11(b)(4)(iv)). Thus, the museum or Federal 
agency must only identify on its own any Indian groups that are not 
federally-recognized that the museum or Federal agency knows have a 
relationship of shared group identity with the culturally 
unidentifiable human remains and associated funerary objects. The 
museum or Federal agency can rely on the relevant federally-recognized 
Indian tribe or Native Hawaiian organization for identification of any 
other relevant groups. A definition of ``Indian group that is not 
federally-recognized'' is not, therefore, needed.
    Comment 119: Two commenters suggested that Indian groups that are 
not federally-recognized should be required to submit a claim for 
culturally unidentifiable human remains, with or without associated 
funerary objects, through, or in association with, a federally-
recognized tribe.
    Our Response: To ensure that the rights of federally-recognized 
Indian tribes are protected, a museum or Federal agency may only 
transfer control of culturally unidentifiable human remains, with or 
without associated funerary objects, to an Indian group that is not 
federally-recognized after full consultation with relevant federally-
recognized Indian tribes, with no objection from any of those Indian 
tribes following consultation, and upon receiving a recommendation from 
the Secretary. Such Indian groups that are not federally-recognized 
would be identified through consultation with all relevant federally-
recognized Indian tribes. The Secretary considers that these provisions 
adequately respect and protect the sovereignty and rights of federally-
recognized tribes. The commenters' suggestion might work in some areas 
of the country, but would be less effective in other areas, for 
example, California and parts of the eastern United States where the 
number of Indian groups that are not federally-recognized far exceeds 
the number of federally-recognized Indian tribes.
    Comment 120: One commenter was concerned that the consultation 
with, and possible transfer of control to, Indian groups that are not 
federally-recognized would be used by those groups as leverage for 
Federal recognition. Another commenter considers requiring each museum 
and Federal agency to prepare and distribute a list of Indian groups 
that are not federally-recognized inconsistent with the Federal 
acknowledgement process.
    Our Response: Congress specifically stated in the Act that it 
``reflects the unique relationship between the Federal Government and 
Indian tribes and Native Hawaiian organizations and should not be 
construed to establish a precedent with respect to any other 
individual, organization or foreign government,'' (25 U.S.C. 3010), 
which would include an Indian group that is not federally-recognized. 
The preamble to the proposed rule clearly stated, and this preamble 
again emphasizes, that ``the Secretary's recommendation regarding the 
disposition of culturally unidentifiable human remains or associated 
funerary objects to an Indian group that is not federally-recognized 
does not indicate Federal recognition of the group's status as an 
Indian tribe or the existence of a government-to-government 
relationship'' (72 FR 58586). Finally, the Federal acknowledgement 
process addressed in 25 CFR part 83 is detailed and rigorous, and it is 
highly unlikely, especially given the disclaimers from both Congress 
and the Secretary, that consultation with, or possible transfer of 
control to, an Indian group that is not federally recognized would 
satisfy any of the criteria required in that process.
    Comment 121: One commenter was concerned that transfer of control 
of culturally unidentifiable human remains, with or without associated 
funerary objects, to unaffiliated Indian tribes or to Indian groups 
that are not federally-recognized would preclude future transfer of 
human remains to affiliated tribes and thereby cause injury to museums 
and Federal agencies.
    Our Response: In section 7(f) of the Act (25 U.S.C. 3005), Congress 
specifically provided in that ``[a]ny museum which repatriates any item 
in good faith pursuant to this chapter shall

[[Page 12396]]

not be liable for claims by an aggrieved party or for claims of breach 
of fiduciary duty, public trust, or violations of state law that are 
inconsistent with the provisions of this chapter.'' To ensure that the 
rights of federally-recognized Indian tribes are protected, a museum or 
Federal agency may only transfer control of culturally unidentifiable 
human remains, with or without associated funerary objects, to an 
Indian group that is not federally-recognized after full consultation 
with relevant federally-recognized Indian tribes, with no objection of 
any of those tribes, and upon receiving a recommendation from the 
Secretary. Such Indian groups that are not federally-recognized would 
be identified through consultation with all relevant federally-
recognized Indian tribes. The Secretary considers that these provisions 
adequately respect and protect the sovereignty and rights of federally-
recognized tribes.
    Comment 122: One commenter suggested that Indian groups that are 
not federally-recognized, Indian regional organizations, and Indian 
national organizations should be able to make a claim for culturally 
unidentifiable human remains, with or without associated funerary 
objects, when no federally-recognized Indian tribe does so.
    Our Response: In the two sections of NAGPRA that impose mandatory 
priorities for control or disposition of human remains (Sections 3 and 
7), Congress intentionally limited the recipients to federally-
recognized Indian tribes (in addition to lineal descendants and Native 
Hawaiian organizations) in recognition of the government-to-government 
relationship between such tribes and the United States. In expanding 
the universe of possible recipients of culturally unidentifiable human 
remains, with or without associated funerary objects, the Secretary 
followed the lead of Congress in making sure that such cultural items 
went to the Indian group that had the closest cultural connection to 
the items, even if that group is not federally-recognized. In 
recognition of the importance of that cultural connection, and of 
tribal sovereignty, the Secretary has not expanded the definition or 
the scope of the parties that are eligible to make claims to include 
regional and national Indian organizations. The ultimate disposition of 
culturally unidentifiable human remains, with or without associated 
funerary objects, control of which is not transferred under these 
regulations, is outside the scope of these regulations and reserved for 
Sec.  10.15(b).
    Comment 123: Twelve commenters generally supported the inclusion in 
the proposed rule of the disposition of culturally unidentifiable human 
remains, with or without associated funerary objects, to Indian groups 
that are not federally-recognized. Thirteen commenters generally 
opposed the proposal to allow for disposition of culturally 
unidentifiable human remains, with or without associated funerary 
objects, to Indian groups that are not federally-recognized.
    Our Response: As noted in the Review Committee's 2000 
Recommendations, and reflected in the preamble of the proposed rule, 
one of the categories of culturally unidentifiable human remains is 
those remains ``for which cultural affiliation could be determined 
except that the appropriate Indian organization is not federally-
recognized as an Indian tribe'' (65 FR 36462, 36463 (2000)). In 
attempting to find a solution for the disposition of this category of 
human remains, the Secretary considered the overall intent of Congress 
in section 7 of the Act (25 U.S.C. 3005) to return control of Native 
American human remains in the possession of museums and Federal 
agencies to persons or entities with the closest cultural connection to 
those remains. While a mandate for return of control to Indian groups 
that are not federally-recognized would be contrary to the terms of 
NAGPRA and to the government-to-government relationship between the 
United States and federally-recognized Indian tribes, nothing in the 
Act prohibits the voluntary transfer of human remains, with or without 
associated funerary objects, to ``culturally affiliated'' Indian groups 
that are not federally-recognized, with appropriate safeguards for the 
rights of federally-recognized Indian tribes.
    Comment 124: Seven commenters were concerned that disposition of 
culturally unidentifiable human remains, with or without associated 
funerary objects, to Indian groups that are not federally-recognized 
would be voluntary and recommended that any such disposition should be 
(1) addressed through regional tribal consultation; and (2) brought 
before the Review Committee.
    Our Response: To ensure that the rights of federally-recognized 
Indian tribes are protected, a museum or Federal agency may only 
transfer control of culturally unidentifiable human remains, with or 
without associated funerary objects, to an Indian group that is not 
federally-recognized after full consultation with relevant federally-
recognized Indian tribes, with no objection from any of those tribes, 
and upon receiving a recommendation from the Secretary. Although, in 
respect of tribal sovereignty and the government-to-government 
relationship, the Secretary cannot mandate that museums and Federal 
agencies consult only on a regional basis, tribes may make arrangements 
for such consultations. In the past, the Secretary has referred 
requests for the disposition of culturally unidentifiable human remains 
to the Review Committee, under section 8(c)(8) of the Act (25 U.S.C. 
3006(c)(8)) (``performing such other related functions as the Secretary 
may assign to the committee'') and requested the Review Committee's 
advice before making recommendations on the disposition request. In 
formulating his or her recommendation concerning a disposition to an 
Indian group that is not federally-recognized, the Secretary will 
decide, on a case-by-case basis, whether the advice of the Review 
Committee would be useful, and, if so, will seek that advice.
    Comment 125: Three commenters objected to the proposed provision in 
Sec.  10.11(c)(3)(ii) that provides authority for voluntary reinterment 
under state law of culturally unidentifiable human remains, with or 
without associated funerary objects, stating that such reburial by non-
tribal people would be considered inappropriate by tribal leaders and 
members.
    Our Response: Section 10.11(c)(3)(ii) has been renumbered as Sec.  
10.11(c)(ii)(B). The Secretary notes that any such reinterment would 
only occur after full consultation with relevant federally-recognized 
Indian tribes, with no objection from any of those tribes, and upon 
receiving a recommendation from the Secretary under Sec.  10.11(c)(3).
    Comment 126: One commenter suggested that the final rule should 
include a disposition process that involves consultation with regional 
consortia and appropriate state agencies, citing the California law 
providing for repatriation to federally-recognized Indian tribes and 
Indian groups that are not federally-recognized (Health and Safety Code 
8010, et seq.). Another commenter encouraged museums and Federal 
agencies to work with state officials since they are the most 
responsive to local needs and issues.
    Our Response: Although, in respect of tribal sovereignty and the 
government-to-government relationship, the Secretary cannot mandate 
that museums and Federal agencies consult on a regional basis, tribes 
may make arrangements for such consultations. California, Iowa, New 
Mexico, and several other states have put in place or are considering 
state processes similar

[[Page 12397]]

to NAGPRA. Federal agencies and museums are encouraged to consult with 
their appropriate state agencies, especially if they propose to 
voluntarily transfer control to an Indian group that is not federally-
recognized under Sec.  10.11(c)(2)(ii)(A) or reinter culturally 
unidentifiable human remains, with or without associated funerary 
objects, pursuant to state law under Sec.  10.11(c)(2)(ii)(B).
    Comment 127: One commenter stated that, if culturally 
unidentifiable human remains, with or without associated funerary 
objects, are not claimed, the remains should continue to be in the care 
of the museum or Federal agency, without precluding future 
repatriation.
    Our Response: In such a situation, the museum or Federal agency 
may, under the final rule, transfer control of the remains, with or 
without the funerary objects, to an Indian group that is not federally-
recognized, reinter them under state law, or enter into an agreement 
with a federally-recognized Indian tribe for other disposition. The 
ultimate disposition of culturally unidentifiable human remains, with 
or without associated funerary objects, control of which is not 
transferred under these regulations, is outside the scope of these 
regulations and reserved for Section 10.15(b).
    Comment 128: One commenter recommended clarification that once all 
efforts to transfer control to an Indian tribe, Native Hawaiian 
organization, or an Indian group that is not federally-recognized have 
been exhausted, the museum or Federal agency should reinter culturally 
unidentifiable human remains at their place of discovery.
    Our Response: Under Sec.  10.11(c)(2)(ii)(B), museums and Federal 
agencies may reinter culturally unidentifiable human remains upon 
receiving a recommendation from the Secretary or authorized 
representative.

Section 10.11(c)(4) Secretary's Recommendation

    Section 10.11(c)(4) (renumbered as Sec.  10.11(c)(3)) stipulated 
that the Secretary may make a recommendation under Sec.  10.11(c)(3) 
(renumbered as Sec.  10.11(c)(2)) only with the written consent of all 
Indian tribes and Native Hawaiian organizations stipulated in Sec.  
10.11(c)(1).
    Comment 129: Three commenters supported the Sec.  10.11(c)(4) 
language requiring the written consent of all Indian tribes and Native 
Hawaiian organizations stipulated in Sec. Sec.  10.11(c)(1) and (c)(2) 
before the Secretary can make a recommendation under Sec.  10.11(c)(3). 
Seven commenters stated that Sec.  10.11(c)(4) of the proposed rule 
would create an unfair burden on both federally-recognized Indian 
tribes that are not interested in a disposition and Indian groups that 
are not federally-recognized that may lack the resources to meet the 
requirement of obtaining the consent of all relevant federally-
recognized Indian tribes before a museum or Federal agency may transfer 
control of culturally unidentifiable human remains to a an Indian group 
that is not federally-recognized. Some of the commenters suggest that 
the final rule require that the museum or Federal agency make a good 
faith effort to consult with all of the relevant federally-recognized 
tribes, and, if no federally-recognized tribe has objected, then the 
disposition to the ``culturally affiliated'' Indian group that is not 
federally-recognized should be permitted to go forward.
    Our Response: The Secretary agrees with these commenters, and has 
revised the final rule to incorporate their suggestions. Sections 
10.11(c)(2), (c)(3), and (c)(4) have been renumbered as Sec.  
10.11(c)(6), (c)(2), and (c)(3) respectively.
    Comment 130: Four commenters stated that Sec.  10.11(c)(4) of the 
proposed rule unduly restricts the flexibility of museums and Federal 
agencies by requiring that they receive a recommendation from the 
Secretary before transferring control of culturally unidentifiable 
human remains, with or without associated funerary objects, to an 
Indian group that is not federally-recognized or reinterment of the 
remains under State law.
    Our Response: Congress enacted NAGPRA in furtherance of the 
government-to-government relationship with federally-recognized Indian 
tribes. Also in furtherance of that relationship, the Secretary has the 
obligation to ensure that the rights of those tribes under the statute 
and under these regulations are fully supported. Therefore, in the case 
of a proposed disposition to an Indian group that is not federally-
recognized or a proposed reinterment under State law, the 
recommendation of the Secretary is needed to make sure that the museum 
or Federal agency has consulted with the relevant federally-recognized 
Indian tribes and none of the tribes have objected. This is also 
consistent with the current practice that the Review Committee and the 
Secretary have developed for disposition (even to federally-recognized 
tribes) of culturally unidentifiable human remains.
    Comment 131: One commenter recommended that the Secretary only 
authorize reburial pursuant to State law after the museum or Federal 
agency has attempted in good faith to transfer control of the 
culturally unidentifiable human remains to an affiliated Indian group 
that is not federally-recognized.
    Our Response: A museum or Federal agency may voluntarily transfer 
control of culturally unidentifiable human remains to an Indian group 
that is not federally-recognized or reinter culturally unidentifiable 
human remains according to state or other law only after receiving a 
recommendation from the Secretary or authorized representative. The 
Secretary will consider evidence related to both options prior to 
making such a recommendation.
    Comment 132: One commenter requested that the Secretary offer a 
process for seeking the recommendations of the Review Committee 
concerning proposed dispositions.
    Our Response: Under section 8(c) of the Act (25 U.S.C. 3006(c)), 
the Review Committee is charged with reviewing and making findings 
concerning the return of cultural items upon the request of any party 
and with facilitating the resolution of any disputes among Indian 
tribes, Native Hawaiian organizations, or lineal descendants and 
Federal agencies or museums relating to the return of such items 
including convening the parties to the dispute if deemed desirable. The 
process for bringing requests and disputes before the Review Committee 
is found on the National NAGPRA Web site at http://www.nps.gov/history/nagpra/REVIEW/Procedures.htm. In addition, Sec.  10.11(e) specifically 
identifies the Review Committee as a possible forum to assist in the 
informal resolution of disputes regarding the disposition of culturally 
unidentifiable human remains and associated funerary objects.

Section 10.11(c)(5) Voluntary Transfer of Associated Funerary Objects

    Section 10.11(c)(5), which has been renumbered as Sec.  
10.11(c)(4), clarifies that a museum or Federal agency may voluntary 
transfer control of funerary objects that are associated with 
culturally unidentifiable human remains.
    Comment 133: Twenty-two commenters stated that the disposition of 
culturally unidentifiable associated funerary objects should be 
mandatory. Three commenters indicated that sufficient legal authority 
and congressional intent exist to require the mandatory disposition of 
culturally unidentifiable associated funerary objects. Three commenters 
stated that disposition of culturally unidentifiable associated 
funerary objects should be

[[Page 12398]]

mandatory because different treatment of such objects is contrary to 
American common law and Indian funeral traditions. One commenter stated 
that disposition of such objects should be mandatory because some 
institutions will not voluntarily transfer objects. One commenter 
supported the disposition of funerary objects associated with 
culturally unidentifiable human remains on a voluntary basis. Three 
commenters recommended deleting Sec.  10.11(c)(5) and amending Sec.  
10.11(c)(1) to read, ``A museum or Federal agency that is unable to 
prove that it has right of possession, as defined at 10.11(a)(2) [sic], 
to culturally unidentifiable human remains and associated funerary 
objects must offer to transfer control of the human remains and 
associated funerary objects to Indian tribes and Native Hawaiian 
organizations in the following priority order * * *''.
    Our Response: Consideration of all Native American human remains 
and associated funerary objects, including those that are culturally 
unidentifiable, is within the scope of the statute. In section 13 of 
the Act (25 U.S.C. 3011), Congress delegated authority to the Secretary 
of the Interior generally to promulgate regulations carrying out the 
Act and carrying the force of law. In section 8(c)(5) of the Act (25 
U.S.C. 3006(c)(5)), Congress assigned the role of recommending specific 
actions for developing a process for disposition of culturally 
unidentifiable human remains to the Review Committee. Congress did not 
indicate the same intent regarding culturally unidentifiable associated 
funerary objects. Mandatory disposition for this category of items 
raises right of possession and takings issues that are not clearly 
resolved in the statute or the legislative history. American common law 
generally recognizes that human remains cannot be owned. The common law 
regarding associated funerary objects that are not culturally 
identifiable is not well established. According to the committee report 
accompanying the Senate NAGPRA bill, the Senate Committee on Indian 
Affairs intended that the legal framework regarding right of possession 
would operate in a manner consistent with general property law (S. 
Report 101-473 at 8). Considering the lack of precedent in the common 
law and Congress' direction to develop a process only with respect to 
culturally unidentifiable human remains, the Secretary does not 
consider it appropriate to make the provision to transfer culturally 
unidentifiable associated funerary objects mandatory.
    Comment 134: Seven commenters recommended deleting Sec.  
10.11(c)(5) on the grounds that the Secretary does not have authority 
to address funerary objects associated with culturally unidentifiable 
human remains.
    Our Response: Section 10.11(c)(5) has been renumbered as Sec.  
10.11(c)(4). In section 13 of the Act (25 U.S.C. 3011), Congress 
delegated authority to the Secretary of the Interior generally to 
promulgate regulations carrying out the Act and carrying the force of 
law. Consideration of all Native American human remains and associated 
funerary objects, including those that are culturally unidentifiable, 
is within the scope of the statute. section 5 of the Act (25 U.S.C. 
3003) requires Federal agencies and museums that have possession or 
control over holdings or collections of Native American human remains 
and associated funerary objects to compile an inventory of such items 
and, to the extent possible based on information possessed by such 
museum or Federal agency, identify the geographical and cultural 
affiliation of such item. Regulations promulgated in 1995 initially 
addressed culturally unidentifiable associated funerary objects to 
which there was no public objection. 43 CFR 10.9(e)(6) required museums 
and Federal agencies to provide notice and a copy of the list of 
culturally unidentifiable human remains and associated funerary objects 
to the National Park Service which in turn made this information 
available to the Review Committee. Congress anticipated that not all 
items would be geographically or culturally affiliated and, in section 
8(c)(5) of the Act (25 U.S.C. 3006(c)(5)), assigned the role of 
recommending specific actions for developing a process for disposition 
of culturally unidentifiable human remains to the Review Committee. 
Congress intended that the Review Committee be an advisory committee 
which makes recommendations to the Secretary (S. Rep. No. 101-473 at 
13). In section 8(c)(7) of the Act (25 U.S.C. 3006(c)(7)), Congress 
also authorized the Review Committee to consult with the Secretary in 
the development of regulations to carry out the Act. As part of its 
recommendations under section 8(c)(5) of the Act (25 U.S.C. 
3006(c)(5)), the Review Committee addressed funerary objects associated 
with culturally unidentifiable remains and recommended their transfer 
along with the associated remains. This regulation, promulgated in the 
exercise of Congress' delegated authority, implements many of the 
Review Committee's recommendations made pursuant to section 8(c)(5) and 
8(c)(7) and effectuates the goals of the Act. Even if Congress may not 
have expressly delegated authority or responsibility to implement a 
particular provision or fill a particular gap, it can still be apparent 
from an agency's generally conferred authority and other statutory 
circumstances that Congress would expect the agency to address 
ambiguities in the statute or fill a gap in the enacted law, even one 
about which Congress may not have actually had an intent as to a 
particular result (U.S. v. Mead, 533 U.S. 218 (2001)). In addition, 25 
U.S.C. 9 authorizes the Secretary to make ``such regulations as he may 
think fit for carrying into effect the various provisions of any act 
relating to Indian affairs.'' Because NAGPRA is Indian law (Yankton 
Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp 2d 
1047, 1056 (D.S.D. 2000)), the Secretary may promulgate any regulations 
needed to implement it under the broad authority to supervise and 
manage Indian affairs given by Congress (United States v. Eberhardt, 
789 F.2d 1354, 1360 (9th Cir. 1986)).
    Comment 135: Two commenters objected to the ``required'' 
disposition of funerary objects associated with culturally 
unidentifiable human remains.
    Our Response: The subsection addressing this category of objects, 
Sec.  10.11(c)(4), does not require disposition. The proposed text 
states, ``A museum or Federal agency may also transfer control of 
funerary objects that are associated with culturally unidentifiable 
human remains. The Secretary recommends that museums and Federal 
agencies engage in such transfers whenever Federal or State law would 
not otherwise preclude them'' (emphasis added).
    Comment 136: One commenter requested clarification on whether it is 
discretionary for museums and Federal agencies to make disposition of 
culturally unidentifiable associated funerary objects.
    Our Response: Subsection 10.11(c)(4) does not mandate the transfer 
of culturally unidentifiable associated funerary objects. This 
provision is voluntary and any decision to transfer such objects is 
based on the discretion of the museum or Federal agency.

Section 10.11(c) Other Issues

    Comment 137: Two commenters suggested the establishment of national 
or regional repositories, controlled by Indian tribes, where culturally 
unidentifiable human remains that are unclaimed may be voluntarily 
reinterred.

[[Page 12399]]

    Our Response: The Secretary cannot mandate that Indian tribes enter 
into such arrangements. Indian tribes may make arrangements for such 
repositories on their own.
    Comment 138: Two commenters recommended that the statutory 
exemptions to repatriation be explicitly identified in this section.
    Our Response: Section 10.10(c) of these regulations stipulates four 
exceptions to repatriation, including circumstances where (1) Human 
remains and funerary objects are indispensible to the completion of a 
specific scientific study, the outcome of which is of major benefit to 
the United States; (2) there are multiple requests for repatriation of 
the human remains and associated funerary objects and the museum or 
Federal agency cannot determine by a preponderance of the evidence 
which requesting party is the most appropriate claimant; (3) a court of 
competent jurisdiction has determined that the repatriation would 
result in a taking of property without just compensation within the 
meaning of the Fifth Amendment of the United States Constitution; and 
(4) the repatriation is not consistent with other repatriation 
limitations identified in Sec.  10.15. The drafters intend that each of 
these exemptions also apply to claims made for the disposition of 
culturally unidentifiable human remains, and additional text has been 
included at Sec.  10.11(c)(5) to that effect.
    Comment 139: Three commenters recommended addressing the recourse 
available to museums and Federal agencies if they cannot transfer 
control of culturally unidentifiable human remains.
    Our Response: Section 10.15(b) of these regulations has been 
reserved to address situations where no claim has been made.

Section 10.11(d) Notification

    Paragraph (d) establishes procedures to ensure that Indian tribes, 
Native Hawaiian organizations, Indian groups that are not federally-
recognized, museums, and Federal agencies are notified of intended 
dispositions of culturally unidentifiable human remains and associated 
funerary objects.
    Comment 140: One commenter recommended adding a provision to 
document the final disposition of culturally unidentifiable human 
remains.
    Our Response: Section 10.10(f) directs museums and Federal agencies 
to adopt internal procedures adequate to permanently document the 
content and recipients of all repatriations.
    Comment 141: One commenter recommended clarifying that the notice 
requirement for culturally unidentifiable human remains would commence 
after consultation (43 CFR 10.11(b)) and determination (43 CFR 
10.11(c)).
    Our Response: Section 10.11(d) stipulates that disposition of 
culturally unidentifiable human remains pursuant to Sec.  10.11(c) may 
not occur until at least thirty days after publication of a notice of 
inventory completion. Section 10.11(b)(1) stipulates that the museum or 
Federal agency official must initiate consultation within ninety days 
of receipt of a request for disposition or, absent such a request, 
before any offer to transfer control of culturally unidentifiable human 
remains.
    Comment 142: One commenter recommended lengthening the notification 
time period from 30 to 60 or 90 days to allow Indian tribes and Native 
Hawaiian organizations to respond before disposition occurs.
    Our Response: The thirty day (minimum) period following publication 
of a notice of inventory completion during which other lineal 
descendants, Indian tribes, or Native Hawaiian organizations may claim 
human remains and associated funerary objects has been in effect since 
1996 (43 CFR 10.10(b)(2)). No Indian tribe or Native Hawaiian 
organization recommended this change.
    Comment 143: One commenter requested clarification of how the 
Review Committee database of culturally unidentifiable human remains 
and associated funerary objects will be made ``accessible'' to Indian 
tribes, Native Hawaiian organizations, Indian groups that are not 
federally-recognized, museums, and Federal agencies.
    Our Response: The Culturally Unidentifiable Native American 
Inventories Database is available at: http://64.241.25.6/CUI/index.cfm.
    Comment 144: Five commenters recommended revising the Review 
Committee's inventory as follows: (1) Create and include an online 
tutorial on how to use the database; (2) include fields in the main 
table to discern whether the repository is reporting on a museum or 
Federal agency collection; (3) update the existing contact information, 
and list contact information for each Federal Agency NAGPRA Contact; 
(4) add search functions to the database to search/sort by keyword e.g. 
``Hohokam''; (5) add search functions to the database so that it is 
possible to search/sort by county; (6) add search functions to the 
database so that it is possible to search/sort by date; (7) separate 
the collection history, age/culture, and associated funerary object 
fields for clarity; (8) link the database to the notices of inventory 
completion and notices of intent to repatriate. Two commenters 
recommended that the original paperwork supporting a published notice 
of inventory completion be posted on the Web site as part of the Review 
Committee's inventory.
    Our Response: The National NAGPRA Program will consider 
implementing these recommendations.

Section 10.11(e) Disputes

    Section 10.11(e) clarifies that disputes regarding the disposition 
of culturally unidentifiable human remains may be resolved through 
informal negotiations, with the assistance of the Review Committee, or 
before a United States District Court.
    Comment 145: One commenter asked for clarification of what is meant 
by ``informal negotiations.''
    Our Response: While the Review Committee is specifically charged 
with facilitating the resolution of disputes, the Committee also stated 
that disputes among Indian tribes, Native Hawaiian organizations, or 
lineal descendants and Federal agencies or museums should be resolved 
at the lowest organizational level and at the earliest time possible 
and strongly encourages the use of alternative methods of dispute 
resolution (Native American Graves Protection and Repatriation Review 
Committee Dispute Procedures, September 2006).
    Comment 146: One commenter recommended that the Review Committee 
only attempt to facilitate disputes regarding the disposition of 
culturally unidentifiable human remains when requested by all involved 
parties.
    Our Response: Under the Review Committee's Dispute Procedures, the 
decision to involve the Review Committee in a dispute is made only 
after all involved parties have been contacted. Disputing parties are 
under no obligation to participate in Review Committee meetings. Review 
Committee recommendations are purely advisory.
    Comment 147: One commenter recommended that the Review Committee's 
existing policies and procedures be formalized into this final 
regulation.
    Our Response: The Review Committee's Dispute Procedures are posted 
at: http://www.nps.gov/history/nagpra/REVIEW/Dispute_procedures.0609.pdf. Formalization of these procedures as regulations 
would likely limit the ability

[[Page 12400]]

of the Review Committee to generate unique and innovative resolutions 
on a case-by-case basis.
    Comment 148: One commenter asked for clarification as to whether 
the proposal would give binding legal force to Review Committee 
advisory opinions. One commenter asked for clarification as to whether 
the proposal would allow lawsuits by any aggrieved person against 
museums ad infinitum.
    Our Response: Review Committee findings and recommendations are 
purely advisory in nature. However, any records and findings made by 
the Review Committee relating to the identity or cultural affiliation 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony may be admissible in actions brought before a 
Federal court (25 U.S.C. 3006(d)). While neither Congress nor the 
Secretary can stop anyone from filing a lawsuit, in section 7(f) of the 
Act (25 U.S.C. 3005), Congress specifically provided in that ``[a]ny 
museum which repatriates any item in good faith pursuant to this 
chapter shall not be liable for claims by an aggrieved party or for 
claims of breach of fiduciary duty, public trust, or violations of 
state law that are inconsistent with the provisions of this chapter.''

Section 10.12(b) Definition of ``Failure to Comply''

    Revisions to this section clarify the definition of ``failure to 
comply'' in the context of the possible assessment of civil penalties.
    Comment 149: Fourteen commenters generally supported the proposed 
text at Sec.  10.12(b)(1)(ix) to allow for the assessment of civil 
penalties for failure of a museum to offer to transfer control of 
culturally unidentifiable human remains for which it cannot prove right 
of possession under Sec.  10.11. Two commenters generally opposed the 
proposed text. One commenter urged that no civil penalty should be 
imposed on a museum for failing to offer to transfer human remains when 
no group has requested a transfer.
    Our Response: The drafters consider the recommendation concerning 
the inadvisability of civil penalties when no Indian tribe or Native 
Hawaiian organization has requested a transfer to be reasonable 
because, absent a claim, the regulations do not specify when a museum 
must offer to transfer control of culturally unidentifiable human 
remains to Indian tribe and Native Hawaiian organizations. Section 
10.12(b)(ix) has been revised to read ``Upon receipt of a claim 
consistent with Sec.  10.11(c)(1), refuses to offer to transfer control 
of culturally unidentifiable human remains for which it cannot prove 
right of possession.''
    Comment 150: Four commenters requested clarification in Sec.  
10.12(b)(1)(ix) that the burden of proof for right of possession of 
culturally unidentifiable human remains rests with the museum or 
Federal agency.
    Our Response: The burden of proof is on the museum or Federal 
agency, and that, as the proposed and final rule states, if a museum or 
Federal agency ``is unable to prove that it has right of possession'', 
it must offer to transfer the remains, with or without associated 
funerary objects (43 CFR 10.11(c)(1)).
    Comment 151: One commenter recommended revising Sec.  10.12 to 
mandate that Federal agencies comply with the Act and its regulations.
    Our Response: Section 9 of the Act (25 U.S.C. 3007) authorizes the 
Secretary to assess civil penalties only against museums.
    Comment 152: Two commenters recommended adding another type of 
failure to comply at Sec.  10.12(b) for museums that refuse to provide 
additional available documentation upon the request of an Indian tribe 
or Native Hawaiian organization that received notice or should have 
received notice and an inventory under Sec.  10.9(e)(1) and (e)(2).
    Our Response: Section 5(b)(2) of the Act (25 U.S.C. 3003(b)(2)), 
requires that a museum or Federal agency supply additional available 
documentation upon request by an Indian tribe or Native Hawaiian 
organization which receives or should have received notice. Refusing to 
provide the specified information to one of the Indian tribes 
identified in Sec.  10.11(b)(2) would constitute a failure to comply 
under Sec.  10.12(b)(vii).

Changes to the Proposed Rule

    Based on the preceding comments and responses, the drafters have 
made the following changes to the proposed rule language:
     Section 10.2(e)(2). We have added text to clarify that 
determinations of cultural affiliation are made ``through the inventory 
process.'' Section 10.9(e)(2)(v). We revised the text to clarify that 
the notice of inventory completion must describe those human remains, 
with or without associated funerary objects, that are culturally 
unidentifiable but that ``are subject to disposition under Sec.  
10.11.''
     Section 10.9(e)(5)(ii). We added text to provide examples 
of the type of Federal legal authority that exempt disclosure of 
Federal documentation to the public.
     Section 10.9(e)(6). We deleted text to make it clear that 
while disposition of funerary objects associated with culturally 
unidentifiable human remains is voluntary, museums and Federal agencies 
must provide notice and a list of such objects to the Manager, National 
NAGPRA Program.
     Section 10.11(a). We revised the text to clarify that this 
section applies to human remains previously determined to be Native 
American pursuant to Sec.  10.9, but for which no lineal descendant or 
culturally affiliated Indian tribe or Native Hawaiian organization has 
been identified.
     Section 10.11(b)(2)(iii). We deleted this section that 
required consultation with all Indian tribes or Native Hawaiian 
organizations with a cultural relationship to the region from which 
culturally identifiable human remains were removed or, in the case of 
human remains lacking geographic affiliation, to the region in which 
the museum or Federal agency repository is located. The diversity of 
opinion regarding the meaning of ``cultural relationship'' convinced 
the drafters to remove the term as a required criterion for 
consultation.
     Section 10.11(b)(6). We added text to this paragraph to 
clarify that the notification and repatriation provisions of Sec. Sec.  
10.9(e) and 10.10(b) apply if human remains previously determined to be 
culturally unidentifiable are actually related to a lineal descendant.
     Section 10.11(c)(1)(iii). We deleted this section that 
required a museum or Federal agency that is unable to prove it has 
right of possession to culturally unidentifiable human remains to offer 
to transfer control of such remains to the Indian tribe or Native 
Hawaiian organization with a cultural relationship to the region from 
which culturally identifiable human remains were removed or, in the 
case of human remains lacking geographic affiliation, to the region in 
which the museum or Federal agency repository is located. The diversity 
of opinion regarding the meaning of ``cultural relationship'' convinced 
the drafters to remove the term as a required criterion for disposition 
of culturally unidentifiable human remains.
     Section 10.11(c)(1)(iv). We deleted this section that 
required a museum or Federal agency that is unable to prove it has 
right of possession to culturally unidentifiable human remains to offer 
to transfer control of such remains to the Indian tribe or Native 
Hawaiian organization with a stronger cultural relationship with the 
human remains than an entity specified in Sec.  10.11(c)(1)(ii) or 
(c)(1)(iii). The

[[Page 12401]]

diversity of opinion regarding the meaning of ``cultural relationship'' 
convinced the drafters to remove the term as a required criterion for 
disposition of culturally unidentifiable human remains.
     Section 10.11(c)(2). We moved and renumbered this 
paragraph as Sec.  10.11(c)(6).
     Section 10.11(c)(3)(i) (renumbered as Sec.  
10.11(c)(2)(i)). We added text to allow a museum or Federal agency to 
voluntarily transfer control of culturally unidentifiable human remains 
to Indian tribes or Native Hawaiian organizations other than those 
specified in Sec.  10.11(c)(1). The change is consistent with statutory 
requirements that nothing in the Act shall be used to limit the 
authority of any Federal agency or museum to return or repatriate 
Native American human remains, funerary objects, sacred objects, or 
objects of cultural patrimony to Indian tribes, Native Hawaiian 
organizations, or individuals (25 U.S.C. 3009(1)(A)).
     Section 10.11(c)(4) (renumbered as Sec.  10.11(c)(3)). We 
revised this provision to remove the requirement that all relevant 
Indian tribes and Native Hawaiian organizations must consent to a 
proposed disposition to an Indian group that is not federally-
recognized or to a proposed reinterment under State law and to require 
instead that the museum or Federal agency prove to the Secretary that 
it has consulted with the relevant Indian tribes and Native Hawaiian 
organizations and none of them has objected. This change was prompted 
by comments on the proposed rule and the Secretary's effort to be 
sensitive to concerns of Indian tribes that may be culturally 
prohibited from discussing or possessing human remains.
     Section 10.11(c)(5) (renumbered as Sec.  10.11(c)(4)).
     Section 10.11(c)(5). We added this new section to clarify 
that the exemptions to repatriation listed at Sec.  10.10(c) also apply 
to dispositions of culturally unidentifiable human remains under Sec.  
10.11(c)(1).
     Section 10.12(b)(1)(ix). We added text to clarify that 
upon receipt of a claim consistent with Sec.  10.11(c)(1), a museum 
refuses to offer to transfer control of culturally unidentifiable human 
remains for which it cannot prove right of possession, will be 
considered to have failed to comply with the Act. Absent a claim, the 
regulations do not specify when a museum must offer to transfer control 
of culturally unidentifiable human remains to Indian tribes and Native 
Hawaiian organizations.
     Section 10.15(c). We inserted text previously proposed for 
inclusion in Sec.  10.1(b)(3) into this paragraph to reiterate that the 
final denial of a request of a lineal descendant, Indian tribe, or 
Native Hawaiian organization for the repatriation or disposition of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony constitutes a final agency action under the Administrative 
Procedure Act.

Compliance With Other Laws and Executive Orders

Regulatory Planning and Review (Executive Order 12866)

    This document is a significant rule and has been reviewed by the 
Office of Management and Budget under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights or 
obligations of their recipients.
    (4) OMB has determined that this rule raises novel legal or policy 
issues.

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The requirement to consult with Indian tribes and Native Hawaiian 
organizations is minimal, as very few small entities have collections 
of Native American human remains that would subject them to this rule. 
Of those having Native American human remains, the collections are 
small. Small entities can transfer those human remains to large museums 
having NAGPRA obligations and they can benefit from the published 
decisions of large museums. Thus, this rule does not constitute a 
significant economic burden. This rule will require the disposition of 
only those Native American human remains for which the controlling 
entity cannot prove right of possession (25 U.S.C. 3005).

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule will not (1) 
have an annual effect on the economy of $100 million or more; (2) cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, local or tribal government agencies, or 
geographic regions; or (3) have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments, or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. This rule will require the disposition of only those 
Native American human remains for which the controlling museum or 
Federal agency cannot prove right of possession [25 U.S.C. 3005(c)].

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficiently significant federalism implications to warrant the 
preparation of a Federalism Assessment. This final rule will not 
substantially and directly affect the relationship between the Federal 
and State governments. To the extent that State and local governments 
have a role in NAGPRA activities, this final rule will not affect that 
role. A Federalism Assessment is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

[[Page 12402]]

Paperwork Reduction Act

    The Office of Management and Budget has approved the information 
collection requirements associated with this rule under OMB Control No. 
1024-0144.
    The public reporting burden for the collection of information for 
Sec.  10.11 is expected to average 20 hours per year, for those costs 
within the scope of the Paperwork Reduction Act, as follows:
    (1) Ten state and local museums producing notifications and 
information requests to Indian tribes and Native Hawaiian organizations 
at 30 minutes for each museum, a total of 5 hours;
    (2) Four private museums producing notifications and information 
requests to Indian tribes and Native Hawaiian organizations at 30 
minutes for each museum, a total of 2 hours.
    (3) Response by Indian tribes and Native Hawaiian organizations to 
requests for information from museums, 16 responses (14 to non-Federal 
museums and 2 to Federal museums) at 48 minutes per response for a 
total of 13 hours.
    The reporting burden includes time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collected information. 
Comments regarding this burden estimate or any other aspects of this 
collection of information, including suggestions for reducing the 
burden, may be sent to the address in the ADDRESSES section and to: 
Information Collection Officer, Attn: Docket No. 1024-0144, National 
Park Service, Department of Interior Building, 1849 C Street NW., Room 
3317, Washington, DC 20240.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment and can be categorically 
excluded under 43 CFR 46.210(i), ``Policies, directives, regulations, 
and guidelines that are of an administrative, financial, legal, 
technical, or procedural nature and whose environmental effects are too 
broad, speculative, or conjectural to lend themselves to meaningful 
analysis and will later be subject to the NEPA process, either 
collectively or case-by-case.'' We have also determined that the rule 
does not involve any of the extraordinary circumstances listed in 43 
CFR 46.215 that would require further analysis under the National 
Environmental Policy Act. Any NEPA review required for a disposition of 
culturally unidentifiable human remains by a Federal agency will be 
conducted by that agency under its NEPA procedures.

Government-to-Government Relationship With Indian Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government to Government Relations with Native American Tribal 
Governments'' [59 FR 22951], Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments'' [65 FR 218], and 512 DM 
2, ``Departmental Responsibilities for Indian Trust Resources,'' this 
rule has a potential effect on federally-recognized Indian tribes. The 
proposed rule was developed in consultation with the Native American 
Graves Protection and Repatriation Review Committee, which includes 
members nominated by Indian tribes. The Review Committee consulted with 
Indian tribes in the development of the Review Committee's 
recommendations regarding the disposition of culturally unidentifiable 
human remains that form the basis of this proposed rule. The Review 
Committee, at the direction of the Secretary of the Interior, consulted 
with tribal representatives regarding its recommendations on February 
16-18, 1995, in Los Angeles, CA; June 9-11, 1996, in Billings, MT; June 
25-27, 1998, in Portland, OR; and May 2-4, 2000, in Juneau, AK. Tribal 
representatives were also consulted regarding draft text for these 
regulations at Review Committee meetings on May 2-4, 2000, in Juneau, 
AK; May 31-June 2, 2002, in Tulsa, OK; and November 8-9, 2002, in 
Seattle, WA. Consultation between tribal representatives and the 
Department also occurred during the public comment period for the 
proposed rule. In addition to comments from tribes that we received 
through members of the Review Committee and at Review Committee 
meetings, we received comments from tribes on the proposed rule in 
training sessions and in initial consultations on the draft rule that 
we are preparing for 43 CFR 10.7. We will conduct ongoing consultation 
with tribes on the implementation of this and other NAGPRA regulations 
through semiannual Review Committee meetings, outreach and training 
events approximately twenty times annually, and formal consultation 
sessions on further amendments to the regulations.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Drafting Information

    The proposed rule was prepared in consultation with the Native 
American Graves Protection and Repatriation Review Committee as 
directed by section 8(c)(7) of the Act. The principal contributors to 
this final rule are C. Timothy McKeown and Sherry Hutt of the National 
NAGPRA Program, National Park Service; Carla Mattix and Stephen Simpson 
of the Office of the Solicitor, U.S. Department of the Interior; 
Jennifer Lee, Office of the Director, National Park Service and Philip 
Selleck, Chief, Regulations and Special Park Uses, National Park 
Service.

List of Subjects in 43 CFR Part 10

    Administrative practice and procedure, Hawaiian natives, Historic 
preservation, Indians-claims, Indians-lands, Museums, Penalties, Public 
lands, Reporting and recordkeeping requirements.


0
In consideration of the foregoing, 43 CFR part 10 is amended as 
follows:

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION 
REGULATIONS

0
1. The authority for part 10 is revised to read as follows:

    Authority:  25 U.S.C. 3001 et seq., 16 U.S.C. 470dd (2), 25 
U.S.C. 9.


0
2. Amend Sec.  10.1 by revising the section heading and paragraph 
(b)(3), and adding paragraph (c) to read as follows:


Sec.  10.1  Purpose, applicability, and information collection.

* * * * *
    (b) * * *
    (3) Throughout this part are decision points which determine how 
this part applies in particular circumstances, e.g., a decision as to 
whether a museum ``controls'' human remains and cultural objects within 
the meaning of the regulations, or a decision as to whether an object 
is a ``human remain,'' ``funerary object,'' ``sacred object,'' or 
``object of cultural patrimony'' within the meaning of the regulations. 
Any final determination making the Act or this part inapplicable is 
subject to review under section 15 of the Act. With respect to Federal 
agencies, the final denial of a request of a lineal descendant, Indian 
tribe, or Native Hawaiian organization for the repatriation or 
disposition of human

[[Page 12403]]

remains, funerary objects, sacred objects, or objects of cultural 
patrimony brought under, and in compliance with, the Act and this part 
constitutes a final agency action under the Administrative Procedure 
Act (5 U.S.C. 704).
    (c) The information collection requirements contained in this part 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned control number 1024-0144. A Federal 
agency may not conduct or sponsor, and you are not required to respond 
to, a collection of information unless it displays a currently valid 
OMB control number.

0
3. Amend Sec.  10.2 by revising paragraph (e) and adding paragraph 
(g)(5) to read as follows:


Sec.  10.2  Definitions.

* * * * *
    (e)(1) What is cultural affiliation? Cultural affiliation means 
that there is a relationship of shared group identity that can be 
reasonably traced historically or prehistorically between members of a 
present-day Indian tribe or Native Hawaiian organization and an 
identifiable earlier group. Cultural affiliation is established when 
the preponderance of the evidence--based on geographical, kinship, 
biological, archeological, anthropological, linguistic, folklore, oral 
tradition, historical evidence, or other information or expert 
opinion--reasonably leads to such a conclusion.
    (2) What does culturally unidentifiable mean? Culturally 
unidentifiable refers to human remains and associated funerary objects 
in museum or Federal agency collections for which no lineal descendant 
or culturally affiliated Indian tribe or Native Hawaiian organization 
has been identified through the inventory process.
* * * * *
    (g) * * *
    (5) Disposition means the transfer of control over Native American 
human remains, funerary objects, sacred objects, and objects of 
cultural patrimony by a museum or Federal agency under this part. This 
part establishes disposition procedures for several different 
situations:
    (i) Custody of human remains, funerary objects, sacred objects, and 
objects of cultural patrimony excavated intentionally from, or 
discovered inadvertently on, Federal or tribal lands after November 16, 
1990, is established under Sec.  10.6.
    (ii) Repatriation of human remains, funerary objects, sacred 
objects, and objects of cultural patrimony in museum and Federal agency 
collections to a lineal descendant or culturally affiliated Indian 
tribe or Native Hawaiian organization is established under Sec.  10.10.
    (iii) Disposition of culturally unidentifiable human remains, with 
or without associated funerary objects, in museum or Federal agency 
collections is established under Sec.  10.11.

0
4. Amend Sec.  10.9 by revising paragraphs (e)(2), (5), and (6) to read 
as follows:


Sec.  10.9  Inventories.

* * * * *
    (e) * * *
    (2) The notice of inventory completion must:
    (i) Summarize the contents of the inventory in sufficient detail so 
as to enable the recipients to determine their interest in claiming the 
inventoried items;
    (ii) Identify each particular set of human remains or each 
associated funerary object and the circumstances surrounding its 
acquisition;
    (iii) Describe the human remains or associated funerary objects 
that are clearly culturally affiliated with an Indian tribe or Native 
Hawaiian organization and identify the Indian tribe or Native Hawaiian 
organization;
    (iv) Describe the human remains or associated funerary objects that 
are not clearly identifiable as culturally affiliated with an Indian 
tribe or Native Hawaiian organization, but that are likely to be 
culturally affiliated with a particular Indian tribe or Native Hawaiian 
organization given the totality of circumstances surrounding 
acquisition of the human remains or associated objects; and
    (v) Describe those human remains, with or without associated 
funerary objects, that are culturally unidentifiable but that are 
subject to disposition under Sec.  10.11.
* * * * *
    (5) Upon request by an Indian tribe or Native Hawaiian organization 
that has received or should have received a notice and inventory under 
paragraphs (e)(1) and (e)(2) of this section, a museum or Federal 
agency must supply additional available documentation.
    (i) For purposes of this paragraph, ``documentation'' means a 
summary of existing museum or Federal agency records including 
inventories or catalogues, relevant studies, or other pertinent data 
for the limited purpose of determining the geographic origin, cultural 
affiliation, and basic facts surrounding the acquisition and accession 
of human remains and associated funerary objects.
    (ii) Documentation supplied under this paragraph by a Federal 
agency or to a Federal agency is considered a public record except as 
exempted under relevant laws, such as the Freedom of Information Act (5 
U.S.C. 552), Privacy Act (5 U.S.C. 552a), Archaeological Resources 
Protection Act (16 U.S.C. 470hh), National Historic Preservation Act 
(16 U.S.C. 470w-3), and any other legal authority exempting the 
information from public disclosure.
    (iii) Neither a request for documentation nor any other provisions 
of this part may be construed as authorizing either:
    (A) The initiation of new scientific studies of the human remains 
and associated funerary objects; or
    (B) Other means of acquiring or preserving additional scientific 
information from the remains and objects.
    (6) This paragraph applies when a the museum or Federal agency 
official determines that it has possession of or control over human 
remains or associated funerary objects that cannot be identified as 
affiliated with a lineal descendent, Indian tribe, or Native Hawaiian 
organization The museum or Federal agency must provide the Manager, 
National NAGPRA Program notice of its determination and a list of the 
culturally unidentifiable human remains and any associated funerary 
objects. The Manager, National NAGPRA Program must make this 
information available to members of the Review Committee. Culturally 
unidentifiable human remains, with or without associated funerary 
objects, are subject to disposition under Sec.  10.11.
* * * * *

0
5. Add Sec.  10.11 to read as follows:


Sec.  10.11  Disposition of culturally unidentifiable human remains.

    (a) General. This section implements section 8(c)(5) of the Act and 
applies to human remains previously determined to be Native American 
under Sec.  10.9, but for which no lineal descendant or culturally 
affiliated Indian tribe or Native Hawaiian organization has been 
identified.
    (b) Consultation. (1) The museum or Federal agency official must 
initiate consultation regarding the disposition of culturally 
unidentifiable human remains and associated funerary objects:
    (i) Within 90 days of receiving a request from an Indian tribe or 
Native Hawaiian organization to transfer control of culturally 
unidentifiable human remains and associated funerary objects; or

[[Page 12404]]

    (ii) If no request is received, before any offer to transfer 
control of culturally unidentifiable human remains and associated 
funerary objects.
    (2) The museum or Federal agency official must initiate 
consultation with officials and traditional religious leaders of all 
Indian tribes and Native Hawaiian organizations:
    (i) From whose tribal lands, at the time of the removal, the human 
remains and associated funerary objects were removed; and
    (ii) From whose aboriginal lands the human remains and associated 
funerary objects were removed. Aboriginal occupation may be recognized 
by a final judgment of the Indian Claims Commission or the United 
States Court of Claims, or a treaty, Act of Congress, or Executive 
Order.
    (3) The museum or Federal agency official must provide the 
following information in writing to all Indian tribes and Native 
Hawaiian organizations with which the museum or Federal agency 
consults:
    (i) A list of all Indian tribes and Native Hawaiian organizations 
that are being, or have been, consulted regarding the particular human 
remains and associated funerary objects;
    (ii) A list of any Indian groups that are not federally-recognized 
and are known to have a relationship of shared group identity with the 
particular human remains and associated funerary objects; and
    (iii) An offer to provide a copy of the original inventory and 
additional documentation regarding the particular human remains and 
associated funerary objects.
    (4) During consultation, museum and Federal agency officials must 
request, as appropriate, the following information from Indian tribes 
and Native Hawaiian organizations:
    (i) The name and address of the Indian tribal official to act as 
representative in consultations related to particular human remains and 
associated funerary objects;
    (ii) The names and appropriate methods to contact any traditional 
religious leaders who should be consulted regarding the human remains 
and associated funerary objects;
    (iii) Temporal and geographic criteria that the museum or Federal 
agency should use to identify groups of human remains and associated 
funerary objects for consultation;
    (iv) The names and addresses of other Indian tribes, Native 
Hawaiian organizations, or Indian groups that are not federally-
recognized who should be included in the consultations; and
    (v) A schedule and process for consultation.
    (5) During consultation, the museum or Federal agency official 
should seek to develop a proposed disposition for culturally 
unidentifiable human remains and associated funerary objects that is 
mutually agreeable to the parties specified in paragraph (b)(2) of this 
section. The agreement must be consistent with this part.
    (6) If consultation results in a determination that human remains 
and associated funerary objects previously determined to be culturally 
unidentifiable are actually related to a lineal descendant or 
culturally affiliated with an Indian tribe or Native Hawaiian 
organization, the notification and repatriation of the human remains 
and associated funerary objects must be completed as required by Sec.  
10.9(e) and Sec.  10.10(b).
    (c) Disposition of culturally unidentifiable human remains and 
associated funerary objects. (1) A museum or Federal agency that is 
unable to prove that it has right of possession, as defined at Sec.  
10.10(a)(2), to culturally unidentifiable human remains must offer to 
transfer control of the human remains to Indian tribes and Native 
Hawaiian organizations in the following priority order:
    (i) The Indian tribe or Native Hawaiian organization from whose 
tribal land, at the time of the excavation or removal, the human 
remains were removed; or
    (ii) The Indian tribe or tribes that are recognized as aboriginal 
to the area from which the human remains were removed. Aboriginal 
occupation may be recognized by a final judgment of the Indian Claims 
Commission or the United States Court of Claims, or a treaty, Act of 
Congress, or Executive Order.
    (2) If none of the Indian tribes or Native Hawaiian organizations 
identified in paragraph (c)(1) of this section agrees to accept 
control, a museum or Federal agency may:
    (i) Transfer control of culturally unidentifiable human remains to 
other Indian tribes or Native Hawaiian organizations; or
    (ii) Upon receiving a recommendation from the Secretary or 
authorized representative:
    (A) Transfer control of culturally unidentifiable human remains to 
an Indian group that is not federally-recognized; or
    (B) Reinter culturally unidentifiable human remains according to 
State or other law.
    (3) The Secretary may make a recommendation under paragraph 
(c)(2)(ii) of this section only with proof from the museum or Federal 
agency that it has consulted with all Indian tribes and Native Hawaiian 
organizations listed in paragraph (c)(1) of this section and that none 
of them has objected to the proposed transfer of control.
    (4) A museum or Federal agency may also transfer control of 
funerary objects that are associated with culturally unidentifiable 
human remains. The Secretary recommends that museums and Federal 
agencies transfer control if Federal or State law does not preclude it.
    (5) The exceptions listed at Sec.  10.10(c) apply to the 
requirements in paragraph (c)(1) of this section.
    (6) Any disposition of human remains excavated or removed from 
Indian lands as defined by the Archaeological Resources Protection Act 
(16 U.S.C. 470bb (4)) must also comply with the provisions of that 
statute and its implementing regulations.
    (d) Notification. (1) Disposition of culturally unidentifiable 
human remains and associated funerary objects under paragraph (c) of 
this section may not occur until at least 30 days after publication of 
a notice of inventory completion in the Federal Register as described 
in Sec.  10.9.
    (2) Within 30 days of publishing the notice of inventory 
completion, the National NAGPRA Program manager must:
    (i) Revise the Review Committee inventory of culturally 
unidentifiable human remains and associated funerary objects to 
indicate the notice's publication; and
    (ii) Make the revised Review Committee inventory accessible to 
Indian tribes, Native Hawaiian organizations, Indian groups that are 
not federally-recognized, museums, and Federal agencies.
    (e) Disputes. Any person who wishes to contest actions taken by 
museums or Federal agencies regarding the disposition of culturally 
unidentifiable human remains and associated funerary objects should do 
so through informal negotiations to achieve a fair resolution. The 
Review Committee may facilitate informal resolution of any disputes 
that are not resolved by good faith negotiation under Sec.  10.17. In 
addition, the United States District Courts have jurisdiction over any 
action brought that alleges a violation of the Act.

0
6. Amend Sec.  10.12 by revising paragraphs (b)(1)(ii), (iii), and (iv) 
and adding paragraph (b)(1)(ix) to read as follows:


Sec.  10.12  Civil penalties.

* * * * *

[[Page 12405]]

    (b) * * *
    (1) * * *
    (ii) After November 16, 1993, or a date specified under Sec.  
10.13, whichever deadline is applicable, has not completed summaries as 
required by the Act; or
    (iii) After November 16, 1995, or a date specified under Sec.  
10.13, or the date specified in an extension issued by the Secretary, 
whichever deadline is applicable, has not completed inventories as 
required by the Act; or
    (iv) After May 16, 1996, or 6 months after completion of an 
inventory under an extension issued by the Secretary, or 6 months after 
the date specified for completion of an inventory under Sec.  10.13, 
whichever deadline is applicable, has not notified culturally 
affiliated Indian tribes and Native Hawaiian organizations; or
* * * * *
    (ix) Upon receipt of a claim consistent with Sec.  10.11(c)(1), 
refuses to offer to transfer control of culturally unidentifiable human 
remains for which it cannot prove right of possession.
* * * * *

0
7. Amend Sec.  10.15 by revising paragraph (c) to read as follows:


Sec.  10.15  Limitations and remedies.

* * * * *
    (c) Exhaustion of remedies. (1) A person's administrative remedies 
are exhausted only when the person has filed a written claim with the 
responsible museum or Federal agency and the claim has been duly denied 
under this part. This paragraph applies to both:
    (i) Human remains, funerary objects, sacred objects, or objects of 
cultural patrimony subject to Subpart B of this part; and
    (ii) Federal lands subject to subpart C this part.
    (2) A Federal agency's final denial of a repatriation request 
constitutes a final agency action under the Administrative Procedure 
Act (5 U.S.C. 704). As used in this paragraph, ``repatriation request'' 
means the request of a lineal descendant, Indian tribe, or Native 
Hawaiian organization for repatriation or disposition of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
brought under the Act and this part.
* * * * *

    Dated: March 4, 2010.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-5283 Filed 3-12-10; 8:45 am]
BILLING CODE P
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