86452 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

43 CFR Part 10 

[NPS–WASO–NAGPRA–NPS0036506; 

PPWOCRADN0–PCU00RP14.550000] 

RIN 1024–AE19 

Native American Graves Protection 

and Repatriation Act Systematic 

Processes for Disposition or 

Repatriation of Native American 

Human Remains, Funerary Objects, 

Sacred Objects, and Objects of 

Cultural Patrimony 

AGENCY: Office of the Secretary, Interior. 

ACTION: Final rule. 

SUMMARY: This final rule revises and 

replaces definitions and procedures for 

lineal descendants, Indian Tribes, 

Native Hawaiian organizations, 

museums, and Federal agencies to 

implement the Native American Graves 

Protection and Repatriation Act of 1990. 

These regulations clarify and improve 

upon the systematic processes for the 

disposition or repatriation of Native 

American human remains, funerary 

objects, sacred objects, or objects of 

cultural patrimony. These regulations 

provide a step-by-step roadmap with 

specific timelines for museums and 

Federal agencies to facilitate disposition 

or repatriation. Throughout these 

systematic processes, museums and 

Federal agencies must defer to the 

Native American traditional knowledge 

of lineal descendants, Indian Tribes, 

and Native Hawaiian organizations. 

DATES: This rule is effective January 12, 

2024. Comments on the information 

collection requirements in this final rule 

must be submitted to the Office of 

Management and Budget by January 12, 

2024. 

ADDRESSES: All public comments and 

attachments received, as well as 

supporting documentation used in the 

preparation of these regulations, are 

available online at https://

www.regulations.gov in Docket No. 

NPS–2022–0004. Written comments and 

suggestions on the information 

collection requirements should be 

submitted by the date specified above in 

DATES to https://www.reginfo.gov/ 

public/do/PRAMain. Find this 

information collection by selecting 

‘‘Currently under Review—Open for 

Public Comments’’ or by using the 

search function. Please provide a copy 

of your comments to the NPS 

Information Collection Clearance Officer 

(ADIR–ICCO), 13461 Sunrise Valley 

Drive, Reston, VA 20191. Please include 

‘‘1024–AE19’’ in the subject line of your 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Melanie O’Brien, National NAGPRA 

Program, National Park Service, (202) 

354–2201, melanie_o’brien@nps.gov. 

Questions regarding the NPS’s 

information collection request (ICR) 

may be submitted to Phadrea Ponds, 

NPS Information Collection Clearance 

Officer, phadrea_ponds@nps.gov. Please 

include ‘‘1024–AE19’’ in the subject line 

of your email request. In compliance 

with the Providing Accountability 

Through Transparency Act of 2023, the 

plain language summary of the proposal 

is available on https://

www.regulations.gov in the docket for 

this rulemaking. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Summary of Public Comments and 

Responses 

A. General Comments 

B. Section 10.1 Introduction 

C. Section 10.2 Definitions for This Part 

D. Section 10.3 Determining Cultural 

Affiliation 

E. Subparts B and C 

F. Section 10.4 General 

G. Section 10.5 Discovery 

H. Section 10.6 Excavation 

I. Section 10.7 Disposition 

J. Subpart C 

K. Section 10.8 General 

L. Section 10.9 Repatriation of 

Unassociated Funerary Objects, Sacred 

Objects, or Objects of Cultural Patrimony 

M. Section 10.10 Repatriation of Human 

Remains or Associated Funerary Objects 

N. Section 10.11 Civil Penalties 

O. Section 10.12 Review Committee 

III. Response to Public Engagement and 

Request for Comments 

A. Public Engagement 

B. Requests for Comment 

C. Use of Received Feedback 

IV. Compliance With Other Laws, Executive 

Orders, and Department Policy 

I. Background 

On November 16, 1990, President 

George Bush signed into law the Native 

American Graves Protection and 

Repatriation Act (NAGPRA or Act) (25 

U.S.C. 3001, et seq.). The Act recognizes 

the rights of lineal descendants, Indian 

Tribes, and Native Hawaiian 

organizations (NHOs) in Native 

American human remains, funerary 

objects, sacred objects, and objects of 

cultural patrimony. The Secretary of the 

Interior is responsible for promulgating 

regulations to carry out the provisions of 

the Act and delegated this authority to 

the Assistant Secretary. Since 1993, the 

Department of the Interior (Department) 

has published rules under the title 

‘‘Native American Graves Protection 

and Repatriation Act Regulations’’ 

including: 

• RIN 1024–AC07, 1993 Proposed 

Rule (58 FR 31122, May 28, 1993) and 

1995 Final Rule (60 FR 62134, 

December 4, 1995); 

• RIN 1024–AC84, Civil Penalties 

Final Rule (68 FR 16354, April 3, 2003) 

and Future Applicability Final Rule (72 

FR 13184, March 21, 2007); 

• RIN 1024–AD68, 2007 Proposed 

Rule Disposition of Culturally 

Unidentifiable Human Remains (72 FR 

58582, October 16, 2007) and 2010 Final 

Rule Disposition of Culturally 

Unidentifiable Human Remains (75 FR 

12378, March 15, 2010); and 

• RIN 1024–AE00, Disposition of 

Unclaimed Cultural Items Final Rule (80 

FR 68465, November 5, 2015). 

II. Summary of Public Comments and 

Responses 

The Department (we) published a 

proposed rule (RIN 1024–AE19) in the 

Federal Register on October 18, 2022 

(87 FR 63202, hereafter 2022 Proposed 

Rule) to clarify and improve upon the 

systematic processes for disposition or 

repatriation of Native American human 

remains and cultural items. We 

accepted public comments for 90 days 

via the mail, hand delivery, and the 

Federal eRulemaking Portal at https://

www.regulations.gov. After considering 

several requests for extensions of the 

public comment period beyond the 

original 90 days, we extended the 

comment period an additional 14 days 

until January 31, 2023. 

All comments received by the 

deadline are publicly available on 

https://www.regulations.gov, Docket No. 

NPS–2022–0004. During the comment 

period, we received a total of 206 

submissions which included 181 

individual submissions posted to the 

docket and 25 attachments as identified 

by the submitter. When necessary, we 

have cited to specific submissions as 

NPS–2022–0004–XXXX. We received 

submissions from a range of sources 

including individual members of the 

public, Indian Tribes, museums, and 

organizations. Table 1 shows the 

number of submissions by type of 

submitter. 

TABLE 1—SUBMISSIONS RECEIVED BY

SUBMITTER

Submitter Submissions 

Individuals ............................. 95 

Federally recognized Indian 

Tribes* ............................... 48 

Museums .............................. 13 

Museum or scientific 

organizations** .................. 9 

Native American organizations ................................... 8 

Duplicate submissions .......... 4 


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TABLE 1—SUBMISSIONS RECEIVED BY

SUBMITTER—Continued 

Submitter Submissions 

Indian groups without Federal recognition ................. 3 

Federal Advisory Review 

Committee ......................... 1 

Native Hawaiian organizations ................................... 0 

* Two submissions were on behalf of multiple Indian Tribes making the total number of 

Indian Tribes represented 55. 

** These submissions are by professional organizations representing museums or scientific 

professionals and they are separate and distinct from the museums above. 

In these final regulations, we focus 

our discussion on changes from the 

2022 Proposed Rule based on comments 

we received during the comment period 

and our further consideration of the 

issues raised. For background on the 

statutory and legislative history and 

case law relevant to these regulations, 

we refer the reader to the previously 

published rules under the title ‘‘Native 

American Graves Protection and 

Repatriation Act Regulations’’ 

referenced in I. Background. We 

reviewed and considered all comments 

prior to developing this final rule. We 

have provided 124 summaries of 

comments and our direct responses 

below; we combined similar comments 

where appropriate. Table 2 shows the 

largest number of comments by issue. 

TABLE 2—TOP 10 ISSUES BY NUMBER OF COMMENTS

Issue Number of 

comments See comment and response 

Changes to ‘‘affiliation’’ ............................................................ 102 Comment 58. to 61. 

Role of Indian groups without Federal recognition ................. 53 Comment 3. and 39. See also Comment 91. and 114. 

Steps for consultation .............................................................. 53 Comment 64. 

Timelines under Subpart C ...................................................... 46 Comment 92. 

Require consent or consultation before allowing scientific 

study.

45 Comment 15. 

Duty of care, including scientific study .................................... 44 Comment 12. to Comment 17. 

‘‘Possession or control’’ ........................................................... 44 Comment 49. 

Specific steps in Subpart C ..................................................... 42 Comment 94. 

Purpose of this rule ................................................................. 42 Comment 9. 

‘‘Consultation’’ .......................................................................... 39 Comment 30. 

In addition, we received 109 

comments generally supporting the 

regulations and the changes (see 

Comment 1.), and we received 96 

comments on the estimated burden and 

information collection requirements for 

the revised regulations (see Comment 

4.). We received 43 comments 

requesting action by the Department of 

the Interior outside of the scope of these 

regulations (see Comment 6.). Four 

comments requested changes in these 

regulations from business days to 

calendar days, which is significant in 

that it impacts all the timelines under 

this final rule (see Comment 19). 

In response to these comments and 

others discussed in detail below, we 

made the following major changes in the 

final rule: 

1. Removed ‘‘geographical affiliation’’ 

in its entirety, simplified the process for 

cultural affiliation to provide that one 

type of information, including 

geographical information, is sufficient 

for cultural affiliation, and replaced 

‘‘preponderance of the evidence’’ with 

‘‘clearly or reasonably identify’’ (§ 10.3 

Determining cultural affiliation). 

2. Removed all reference to Indian 

groups without Federal recognition and 

prioritized the rights of federally 

recognized Indian Tribes in disposition 

and repatriation (§ 10.2 Definitions for 

this part ‘‘Indian Tribe’’ and §§ 10.7(d) 

Disposition and 10.10(k) Repatriation). 

3. Required free, prior, and informed 

consent before any exhibition of, access 

to, or research on human remains or 

cultural items (§ 10.1(d) Duty of Care). 

4. Extended the timeline to allow five 

years (rather than two as proposed) for 

museums and Federal agencies to 

consult and update inventories of 

human remains and associated funerary 

objects (§ 10.10(d) Repatriation). 

5. Replaced ‘‘business days’’ with 

‘‘calendar days’’ and extended deadlines 

as a result (§ 10.1(f) Deadlines). 

6. Revised ‘‘consultation’’ to provide 

more instruction on goals and process 

(§ 10.2 Definitions for this part 

‘‘Consultation’’). 

7. Removed the requirement for 

written requests to consult from Indian 

Tribes or NHOs, and therefore removed 

the requirement for a museum or 

Federal agency to respond within a set 

timeframe (§§ 10.4(b), 10.9(b), and 

10.10(b) Initiate consultation). 

Despite receiving many comments, we 

have not revised the definitions or 

application of ‘‘possession or control’’ 

and ‘‘custody.’’ As in the Act, 

‘‘possession or control’’ is a 

jurisdictional requirement for human 

remains or cultural items subject to 

these regulations and for repatriation 

(§ 10.2 Definitions for this part 

‘‘custody’’ and ‘‘possession or control’’). 

A. General Comments 

1. Comment: We received 109 

comments generally supporting these 

regulations and the overall goals of 

disposition or repatriation. Comments 

from individuals, including many 

students in high school, college, and 

graduate school, offered support for the 

general principle of returning ancestors 

and objects to lineal descendants, 

Indian Tribes, and NHOs. Museum and 

museum and scientific organizations 

supported the overall goals to clarify 

and improve upon the systematic 

processes for disposition and 

repatriation. A few comments from 

museums focused on the impact the 

revised regulations would have on the 

museum profession. One comment 

stated ‘‘Overall, the language in the 

proposed draft reflects contemporary 

best practices around repatriation and 

codification in 43 CFR part 10 makes 

sense in an effort to standardize 

repatriation activities across diverse 

institutions, agencies, and Tribes’’ 

(NPS–2022–0004–0129). Another 

museum commented: 

A fundamental shift in priorities is 

necessary at institutions who have fallen 

short in their efforts to comply with the 

legislation’s intent. It is time for institutions 

to prioritize this work, in both the allocation 

of resources and the ethical commitment to 

genuinely engage in consultation with Native 

Nations. The passage of these proposed 

revisions is a necessary step towards 

addressing the legacy of colonial injustices 

imposed upon Indigenous Peoples in the 

United States (NPS–2022–0004–0115). 


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Many Indian Tribes and Native 

American organizations also expressed 

appreciation and support for the 

revisions and felt the changes better 

reflected Congressional intent. One 

Indian Tribe stated: 

We appreciate the difficult work and 

coordination the Department has undertaken 

to make vast and meaningful changes to shift 

the burden of NAGPRA compliance to where 

it belongs—to federal agencies and museums. 

We explain below several changes that we 

support. While in the interest of brevity, we 

focus our comments on areas of concern, the 

Department should understand that our 

Tribes welcome this proposed rule. With our 

comments below addressed, we believe the 

new regulations will better implement 

NAGPRA and facilitate the repatriation of our 

Ancestors and sacred objects as Congress 

intended (NPS–2022–0004–0158). 

DOI Response: As discussed more 

fully throughout this document, we 

agree with many of these statements; 

and, as a result, we are publishing this 

final rule. We appreciate the comments 

from individuals, especially from 

students, not only for supporting this 

effort but for engaging in the rulemaking 

process. We appreciate the supportive, 

yet constructive comments from 

museums and museum and scientific 

organizations. We are indebted to the 

many Indian Tribes who provided 

comments as well as those who 

provided input during consultation 

throughout the process of developing 

these regulations. 

2. Comment: We received nine 

comments generally objecting to the 

changes to these regulations. One 

comment stated the process was more of 

a political statement than a necessity. 

One comment supported the idea of 

clarifying the repatriation process but 

felt the proposed rule would undermine 

existing efforts and result in a rushed, 

transactional process. One comment felt 

the proposed regulations would hinder 

meaningful consultation and impede the 

progress that museums, Indian Tribes, 

and NHOs have made so far. One 

comment believed the revisions 

compounded difficulties that both 

museums and Indian Tribes already face 

and would reduce efficiency rather than 

improve it. One comment stated that in 

addition to a lack of statutory authority 

for some of the revisions, the 

Department had not identified any 

inadequacies or difficulties in the 

existing regulations, particularly with 

respect to Subpart B. One comment saw 

the revisions as a reversal rather than a 

strengthening of Congressional intent 

and stated that, as the drafted, the 

revisions are ‘‘based upon ‘restorative 

justice’ rather than the words and intent 

of Congressional legislation, [and] has 

gone too far.’’ The comment stated the 

revisions reflected a larger cultural shift 

and that Native activist groups ‘‘have 

urged aggressive claims for repatriation 

and demanded that [T]ribal permission 

be sought for the transfer of objects long 

in legal circulation’’ (NPS–2022–0004– 

0188). Three comments from Indian 

Tribes expressed concerns that the 

revisions would slow down or even stop 

the work of repatriation. All three 

comments believed the revisions are too 

extensive and too complex and will, 

ultimately, create more issues than the 

revisions resolve. One of these 

comments was especially concerned 

that the revisions did not address two 

central and persistent issues that Indian 

Tribes have long asked for: enhanced 

enforcement and protection of private 

information. 

DOI Response: As discussed more 

fully throughout this document, we 

disagree with many of these statements; 

and, as a result, we are proceeding with 

publication of this final rule despite 

these objections. These regulations 

reflect and implement the legal 

requirements established by Congress. 

We understand that some of the 

timelines under this final rule will 

require faster action by museums and 

Federal agencies than under the existing 

regulations. However, certain deadlines 

can be extended or actions delayed, 

provided the appropriate lineal 

descendant, Indian Tribe, or NHO has 

agreed to extend or delay the process. 

We believe the changes in these 

regulations will enhance meaningful 

consultation and ensure that resulting 

efforts are based on consensus or 

agreement. We believe that the 

increased transparency and 

communication required by these 

regulations will resolve some of the 

existing challenges faced by all parties. 

As discussed in more detail throughout 

this document, these revisions are 

within the Secretary’s statutory 

authority and based on over 30 years of 

input, comment, and experience in 

implementing the Act. As reflected in 

the supportive comments above, these 

revisions reflect best practices and 

changes in the wider professional 

disciplines, while at the same time 

adhering to the language and limits 

provided by Congress. We have 

incorporated requests from Indian 

Tribes and NHOs to the maximum 

extent possible, but we do not believe 

these revisions will stop the work of 

repatriation or create more issues than 

are resolved. We do anticipate that the 

work of repatriation may be slowed as 

all parties adjust to the revisions in 

these regulations and especially as all 

parties re-evaluate past practices 

considering these simplified, clarified, 

and streamlined regulations. We 

reiterate here, as we have throughout 

this document, that the goal of this final 

rule is to clarify and improve the 

systematic processes for disposition and 

repatriation by making the requirements 

clear to all parties involved. 

3. Comment: We received 53 

comments on the standing of Indian 

groups without Federal recognition 

under these regulations. Of that total, 40 

comments supported giving standing to 

Indian groups without Federal 

recognition while 13 comments opposed 

it. Some comments also suggested 

changes to 25 CFR part 83 to recognize 

more groups and that the National 

NAGPRA Program should help educate 

groups on how to achieve Federal 

recognition. 

DOI Response: The recognition 

process and training concerning it are 

outside the scope of these regulations. 

Furthermore, as discussed below under 

that definition, these regulations cannot 

expand the definition of ‘‘Indian Tribe’’ 

beyond that provided in the Act. Indian 

groups without Federal recognition, 

including State recognized tribes, are 

not completely excluded from the 

disposition or repatriation processes. As 

is the current practice, Indian groups 

without Federal recognition can work 

with federally recognized Indian Tribes 

as part of a joint claim for disposition 

or joint request for repatriation. See also 

Comment 39. 

4. Comment: We received 96 

comments about the estimated burden 

and related information collection 

requirements of the proposed 

regulations. Of that total, nine 

comments supported some part of the 

burden estimate, including agreeing that 

there is a wide variation in the actual 

time required because of differences in 

size and complexity of the required 

responses. Two of these comments 

supported the overall burden estimate 

and agreed that the changes would yield 

long-term savings, despite the shortterm increased costs. Five of these 

comments agreed that the collection of 

information is necessary and has a 

practical utility. One comment 

specifically stated the information 

collected had no practical utility and 

should not be required. Five comments 

suggested one way to minimize the 

burden of these regulations was for the 

Department to provide online resources 

to assist with identifying Indian Tribes 

with potential cultural affiliation. 

Eighteen comments generally objected 

to the burden estimate. Many of these 

comments felt the methods and 

assumptions were flawed and did not 


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reflect the actual amount of effort 

required to comply with these 

regulations. Several comments stated 

that the proposed regulations 

significantly expanded the 

administrative, staffing, and financial 

burdens already imposed on museums 

and Federal agencies and that museums 

and Federal agencies are already facing 

capacity and resource limitations that 

prevent them from completing the 

already burdensome requirements under 

the existing regulations. Five comments 

stated that, regarding the quality, utility, 

and clarity of the information to be 

collected, there was a disconnect 

between oral statements by the National 

Park Service staff and the proposed 

regulations on the requirements for 

consultation and reporting (see NPS– 

2022–0004–0081). A few comments 

stated additional financial resources 

must be provided before any additional 

tasks can be required and that it was 

unreasonable and misguided to expect 

museums and Federal agencies to 

comply without providing additional 

funds. Two comments stated that the 

estimates should not rely on responses 

from the last three years to estimate 

costs due to the pandemic. One 

comment requested that the General 

Accountability Office estimate the costs 

of the proposed regulations. One 

comment questioned the authority of 

the Department to collect information 

that could be used to monitor the 

repatriation process. 

A total of 31 comments specifically 

discussed the impact of these 

regulations on Indian Tribes and NHOs 

and suggested some possible solutions 

to lessen the burden. Of that total, 18 

comments suggested the Department 

create a dedicated grant program for 

Indian Tribes and NHOs. One of these 

comments expressed that museums 

have been wasting grant funds on 

unnecessary tasks since 1994 and more 

grant funding should be provided to 

Indian Tribes and NHOs. Five 

comments felt the burden on Indian 

Tribes and NHOs in these regulations 

was underestimated, too high, or 

prohibitively expensive. One comment 

from an individual stated the burden on 

Indian Tribes and NHOs could not be 

minimized with technology due to a 

general lack of access to the internet in 

Indian Country. One comment 

requested the regulations provide more 

funding as well as flexibility for Indian 

Tribes to engage with repatriation at 

their own pace. Seven comments 

questioned the costs to Indian Tribes 

under Subpart B of the proposed 

regulations, which some estimated to be 

$40 million per year. 

Eighteen comments provided input or 

alternative estimates for specific tasks. 

Two comments believe tasks are missing 

from the estimate, such as 

documentation review, correspondence 

after consultation, travel arrangements, 

hosting arrangements, inventory/packet/ 

documentation preparation, room setup, 

consultation participation, 

documentation of consultation, 

administrative requirements, moving 

items to or from storage, and 

implementation of care guidance. One 

comment stated the costs of physical 

transfer should be included and, for a 

large repatriation, staff time alone can 

exceed $100,000 for physical transfer. 

Two comments stated the estimate for 

initiating consultation should be much 

higher, from 40 hours to at least 140 

hours, to include the time required to 

identify consulting parties, prepare, and 

distribute letters or emails, and to make 

follow up phone calls. One comment 

suggested the estimate for conducting 

consultation be increased to provide for 

staff to retrieve collections from storage 

and travel by many representatives 

(sometimes up to ten people) from 

Indian Tribes or NHOs to conduct a 

physical review. Three comments stated 

the estimate for completing an inventory 

was too low as even an inventory 

update was an enormous undertaking 

that required significant time and 

resources. One of these comments noted 

that a previously prepared inventory did 

not reduce the necessary time, as 

previous inventories are generally 

‘‘woefully inadequate.’’ One of these 

comments stated that, based on 

experience, it takes 10 hours to 

inventory one box plus an additional 6– 

8 hours to describe each individual or 

object in the box and an additional 40 

hours per site to produce a final report. 

The comment estimated that for 200 

boxes, it would take 2,000 hours to 

inventory the boxes, and this did not 

include additional time to describe each 

object or write a site report (NPS–2022– 

0004–0125). One comment stated the 

estimate for a summary was also 

underestimated and stated it takes 

anywhere from 6 months to two years to 

prepare a summary and then an 

additional six months for illustration 

and documentation of the objects. Five 

comments believe the estimate for 

preparing notices (either for inventory 

completion or intended to repatriation) 

were underestimated. One of these 

comments estimated it takes 120 hours 

to facilitate a notice of inventory 

completion plus additional time to 

verify the information with a physical 

review. Four of these comments 

suggested that for each notice type, the 

minimum amount of time required was 

2 hours while the maximum amount of 

time was between 10 and 30 hours per 

notice, plus additional time to consult 

on the draft notice. One comment stated 

evaluating competing requests and 

resolving stays of repatriation required 

significantly more time, estimating 

between 100 and 1,000 hours, especially 

when considering the involvement of 

legal departments, executives, and 

board members in those tasks. Two 

comments stated the rate used to 

calculate costs should be $100 to $120 

per hour. 

Fourteen comments provided 

estimates for the total costs of Subpart 

C of these regulations. For Indian Tribes 

and NHOs several estimated a cost of 

$17.2 million per year. For museums 

and Federal agencies one comment 

estimated $19.4 million per year. The 

two estimates were developed by one 

individual, using grant awards from 

2011 to 2021 to estimate the average 

cost for a notice of inventory completion 

($14,416 per notice). After calculating 

an estimated cost for museums and 

Federal agencies to comply with the 

proposed regulations, the estimate 

calculated the costs for Indian Tribes 

and NHOs by using the percentage of 

funding awarded in grants from 2011– 

2021 to museums (58%) and Indian 

Tribes or NHOs (42%) to estimate a total 

burden for the proposed regulations at 

$91.4 million over 30 months or $36.6 

million per year (see NPS–2022–0004– 

0174). Other comments estimated a total 

for museums only between $25 million 

and $118 million per year. One museum 

provided a variety of estimates based on 

current project budgets which ranged 

from $200,000 to $500,000 per project 

per year for one museum. The comment 

estimated the burden for the single 

museum at 19,000 hours per year 

($1.273 million per year per museum 

assuming an hourly rate of $67/hour). 

When applied to all 407 museums that 

will be required to update inventories 

under these regulations, that amounts to 

the highest estimate of $518.1 million 

per year for museums alone, although 

the comment noted that not all 

museums will require the same number 

of hours). The same comment 

questioned how the Department 

estimated that the proposed regulations 

do not impose an unfunded mandate on 

State, local, or [T]ribal governments or 

the private sector of more than $100 

million per year (see NPS–2022–0004– 

0125). 

One comment detailed the hours 

involved in one part of a two-part 

project over 15 months. The first phase 

of the project included 13 consultation 

meetings which required hundreds of 


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hours of time by Indian Tribes and 

museum staff, including hundreds of 

phone calls. Consultants hired to 

develop and complete the first phase of 

the project spent thousands of hours on 

the first phase and travel expenses 

totaled $3,000. In the first phase, 31 

notices of inventory completion were 

published, although the comment stated 

that the number of notices could be 

irrelevant as each notice involved a 

single group of Indian Tribes and one 

museum and could have been a single 

notice. The first phase of the project 

covered 1,021 individuals and 11,590 

associated funerary objects. The 

comment noted that these estimates do 

not include the hours involved in 

preparation of the original inventory of 

human remains and associated funerary 

objects completed in the early 1990s. 

Although a total estimated cost for this 

phase of the project was not provided, 

elsewhere the comment suggested at 

minimum $100 to $120 an hour should 

be used in dollar estimates (see NPS– 

2022–0004–0135). Using the lower 

hourly figure and the number of hours 

provided, the estimate for the first phase 

of the project is $123,000 over 15 

months or $98,400 per year. When 

applied to all 407 museums that will be 

required to update inventories under 

these regulations, it equals an estimated 

$40 million per year for museums. 

DOI Response: We appreciate the 

specific input on the estimated costs for 

certain requirements in these 

regulations. We have addressed many of 

these comments in the revised CostBenefit and Regulatory Flexibility 

Threshold Analyses for the final 

regulations. We reiterate that the 

Department believes the short-term 

increased costs of these regulations are 

justified by the associated long-term 

quantitative and qualitative benefits. We 

believe the information collected under 

these regulations is necessary and any 

information collected by the Department 

under these regulations is required by 

the Act for administrative purposes 

(such as publishing notices) and is not 

used for monitoring or evaluating the 

quality of that information. The 

Department will develop and provide 

templates for all information collection 

requirements, and we will provide 

additional resources to assist with 

identifying consulting parties to 

minimize the burdens of these 

regulations, as discussed further in 

Comment 95. Any changes to the 

amount of available funding through 

grants are beyond the scope of these 

regulations and are the purview of 

Congress and the appropriations 

process. We cannot limit the grant 

awards to only Indian Tribes and NHOs 

as that would be inconsistent with the 

Act. 

Regarding the hourly rate used to 

calculate costs, we used the Bureau of 

Labor Statistics (BLS) News Release 

USDL–23–1305, March 2023 Employer 

Costs for Employee Compensation— 

released June 16, 2023 (https://

www.bls.gov/news.release/ecec.nr0.htm, 

accessed 12/1/2023). This is a standard 

source we have used in estimating the 

burden of these regulations as a part of 

our compliance with the Paperwork 

Reduction Act. Any person equates to 

Civil workers. Table 2 lists the hourly 

rate for full-time workers as $43.07, 

including benefits. Lineal descendants 

equate to Private Industry Workers: 

Table 6 lists the hourly rate for all 

workers as $40.79, including benefits. 

Any Affected Party, Indian Tribes/ 

NHOs, Federal agencies, and museums 

equates to State and Local Government 

Workers. Table 3 lists the hourly rate for 

Professional and related Workers as 

$67.01, including benefits. 

Regarding the impact of these 

regulations on Indian Tribes and NHOs, 

we anticipate a change in how grant 

funds are awarded due to the changes in 

these regulations. During the first five 

years after publication of the final 

regulations, grant funds will likely 

continue to go to consultation and 

documentation projects to consult and 

update inventories. After five years, we 

anticipate more grant funds will be 

requested by Indian Tribes or NHOs for 

repatriation assistance or for making 

requests for repatriation. As noted in 

Comment 102, the Notice of Funding 

Opportunity for NAGPRA grants is 

where any changes to the allowable 

activities for grants will be made. We do 

not intend to impose requirements on 

lineal descendants, Indian Tribes, or 

NHOs to respond to invitations to 

consult or to submit claims for 

disposition or requests for repatriation. 

Those are actions that lineal 

descendants, Indian Tribes, and NHOs 

may choose to take but are not required. 

We agree there are new requirements 

for Indian Tribes to take certain actions 

under Subpart B that under the existing 

regulations are voluntary. We disagree 

that all those requirements under 

Subpart B are new, and we strongly 

disagree with the estimate provided. As 

discussed in Comment 70 and Comment 

83, we disagree that the Act, the existing 

regulations, or any other regulations 

designate that the BIA is responsible for 

discovery, excavation, and disposition 

on Tribal lands in Alaska and the 

continental United States. We agree that 

Indian Tribes have discretion under the 

existing regulations in responding to a 

discovery on Tribal lands and that the 

final regulations will require Indian 

Tribes to respond to discoveries on 

Tribal land. This is to improve 

consistency with the Act and clarify the 

responsibilities in these regulations. We 

understand that in some cases these 

responsibilities may exceed the capacity 

or resources of an Indian Tribe, and in 

those cases, the Indian Tribe can 

delegate these responsibilities to the 

Bureau of Indian Affairs or another 

Federal agency with primary 

management authority. Lastly, we note 

that Tribal laws, policies, and 

administrative capacity vary greatly, 

and the comments do not seem to take 

that into account by applying a blanket 

assumption of the same cost for each 

Indian Tribe. The comments also do not 

consider the small number of actions on 

Tribal lands per year, which is not 

likely to significantly change based on 

the final regulations. 

Regarding the alternative estimates 

provided by some comments, we believe 

that any estimate based on current 

practice or past grant awards is 

inherently flawed and does not account 

for the specific objective of the proposed 

and final regulations to simplify and 

improve the systematic processes within 

specific timeframes. We understand that 

our estimates do not reflect the actual 

amount of time some museums and 

Federal agencies currently spend on 

compliance with these regulations. We 

strongly disagree, however, that our 

estimates do not reflect what is required 

by these regulations. In the 33 years 

since the passage of the Act, each 

museum or Federal agency has 

approached the requirements of these 

regulations in different ways, and, as a 

result, there is a wide variation in how 

much time and money is spent to 

comply with these regulations. As noted 

in the proposed regulations and 

elsewhere in this document, one of our 

goals in revising the regulations is to 

improve efficiency and consistency in 

meeting these requirements. 

Necessarily, this will mean a difference 

between our estimated costs for these 

regulations and current practices. While 

we understand the objections to our 

estimates and the concerns about 

insufficient funding to carry out these 

requirements, the Secretary, the 

Assistant Secretary, and the Department 

are committed to changing the 

implementation of the Act and to 

clearing a path to expeditious 

repatriation as Congress intended. 

Concerns about the financial burden 

of the Act and these regulations on 

museums were expressed even before 

the Act was passed. In discussing the 

key compromises made to the final bill 


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in 1990, Representative Campbell stated 

that limiting the inventory requirement 

to only human remains and associated 

funerary objects ‘‘will go a long way to 

reduce cost to museum and at the same 

time encourage both sides to sit down 

early together to discuss their options’’ 

(136 Cong. Rec. 31938). With this 

change and the authorization of a grant 

program to assist museums with the 

inventory requirements, the Association 

of American Museums and the Antique 

Tribal Arts Dealers Association 

withdrew their objections to the final 

legislation. 

As envisioned by Congress, most of 

the requirements for repatriation under 

the Act should have been completed by 

1995, although extensions were 

authorized in some cases. In 1990, the 

Congressional Budget Office (CBO) 

reviewed the Act and estimated the 

legislation would cost between $20 

million and $50 million over five years. 

The main costs of the Act were in 

preparing inventories of human 

remains, estimated between $5 million 

and $30 million over five years, ‘‘for 

museums to provide [T]ribes with the 

basic information required by the bill.’’ 

The CBO acknowledged that to some 

extent, ‘‘the total cost is discretionary— 

the more funds made available, the 

more accurate and comprehensive will 

be the information collected by 

museums.’’ More extensive and 

expensive studies might be required for 

some human remains, but, as the CBO 

noted, such studies were not required 

by the Act. CBO noted that ‘‘If museums 

were required to identify all of their 

holdings definitively, the costs of this 

bill would be significantly higher than 

the $30 million estimate.’’ The other $15 

million to $20 million in estimated costs 

were for identifying funerary objects 

and completing summaries as well as 

for Indian Tribes to make claims and 

repatriate human remains or cultural 

items (H. Rpt. 101–877, at 21–22). 

After nearly 33 years of 

implementation, the total cost of 

repatriation is clearly discretionary, 

and, in addition to funds, the more time 

that has been available to complete an 

inventory of human remains, the more 

comprehensive, extensive, and 

expensive the inventories have become. 

After meeting the initial deadline for 

inventories in 1995, many museums and 

Federal agencies have continued to 

update inventories at their own 

discretion, going beyond what is 

required by the Act and the existing 

regulations. Under the Act and the 

existing regulations, an inventory of 

human remains only requires use of 

‘‘information possessed by such 

museum or Federal agency’’ (25 U.S.C. 

3003(a)). Yet, despite the minimum 

requirements, hundreds of museums 

and several Federal agencies submit 

updated inventories each year. The 

number of museums updating inventory 

data is relatively large and accounts for 

multiple submissions each year from a 

single museum because the data is 

updated on a case-by-case basis at the 

discretion of the museum. 

Since 1993, the Department has 

provided estimated hours for tasks 

under these regulations as a part of its 

compliance with the Paperwork 

Reduction Act. These estimates are far 

below the estimates provided by some 

comments, but these estimates have 

been consistently used by the 

Department and reflect what the 

Department believes is required by the 

Act and these regulations. The 1993 

Proposed Rule included an estimate of 

‘‘100 hours for the exchange of 

summary/inventory information 

between a museum or Federal agency 

and an Indian [T]ribe or Native 

Hawaiian organization . . .’’ (58 FR 

31124). From 1993 until publishing the 

proposed regulations in 2022, we 

continued to use the estimate of 100 

hours per museum for a new summary 

or inventory. This is far less than the 

comment that stated a museum spends 

19,000 hours per year on its inventory 

and summary and related tasks. 

The 1993 Proposed Rule included an 

estimate of ‘‘six hours per response for 

the notification to the Secretary, 

including time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collected information’’ 

(58 FR 31124). In 2012, we increased 

this estimate to 10 hours per notice. 

This is less than the estimate provided 

in the comments of 120 hours to 

facilitate a notice, including gathering 

and maintaining data and reviewing and 

verifying the information, or the 

estimated range of two hours to 30 

hours, for a median of 16 hours, to just 

complete the notice template. The 

estimate based on previous grants 

suggests a notice costs $14,416 each 

which equates to between 120 hours 

and 225 hours per notice, depending on 

the hourly rate applied. We agree with 

the one comment that stated the number 

of notices is irrelevant to estimating the 

burden involved. Although not 

explicitly stated in the existing 

regulations, the final regulations clearly 

state that museums or Federal agencies 

may include in a single notice all 

human remains and associated funerary 

object having the same lineal 

descendant or cultural affiliation for 

efficiency and expediency. The 

comment that stated 31 notices could 

have been combined in to one notice 

demonstrates the discretion museums 

and Federal agencies exercise in 

complying with these regulations. 

The 2010 Final Rule added a new 

estimate related to the new regulatory 

requirements. Under the regulations, 

museums and Federal agencies were 

required to (1) provide to Indian Tribes 

and NHOs a list of Indian groups 

without Federal recognition that may 

have a relationship to human remains 

and associated funerary items and (2) 

request from Indian Tribes and NHOs 

the temporal and/or geographic criteria 

used to identify the groups of human 

remains to be included in consultation. 

The estimated burden on museums for 

this collection of information was 30 

minutes total, including time for 

reviewing existing data sources, 

gathering and maintaining data, and 

preparing a transmission to other 

consulting parties. In the 2022 Proposed 

Rule, we renamed this requirement 

‘‘Initiating consultation and requesting 

information,’’ and we increased the 

estimated time required to range from 

less than one hour, or 0.50 hours, up to 

5 hours, or a median of 2.75 hours. This 

is far less than the comments that 

suggested this should be much higher 

and range from 40 hours to 140 hours, 

or a median of 90 hours to initiate 

consultation and request information. 

In preparing the Cost-Benefit and 

Regulatory Flexibility Threshold 

Analyses for the 2022 Proposed Rule, 

we accounted for all actions that are 

required under the existing regulations 

to calculate the baseline conditions. We 

disagree that our estimate is missing 

required tasks, and the tasks identified 

by comments as missing are generally 

included in the estimate for conducting 

consultation. The costs of conducting 

consultation vary greatly, depending on 

the size and complexity of the 

consultation. However, we note that 

consultation does not require any 

specific documentation beyond what 

was already prepared in the initial 

summary or inventory. The additional 

tasks of inventory/packet/ 

documentation preparation or even 

moving items from storage for purposes 

of consultation are not required by the 

regulations. A physical inspection of a 

collection is not required by these 

regulations, although we understand 

that for some museums, lineal 

descendants, Indian Tribes, or NHOs, in 

person consultation is preferred. As for 

the costs of physical transfer, we 

address this further in Comments 51 

and 66 in this document. Physical 

transfer, and any costs that accompany 

that effort, are not required by these 


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regulations, and we note that grants are 

provided specifically for assisting with 

the costs of physical transfer. 

As these comments clearly 

emphasize, the burden estimates vary 

widely. In its 1990 evaluation of the 

Act, the Congressional Budget Office 

made a similar conclusion, noting 

‘‘[t]here is considerable disagreement 

about the nature of the inventory 

required by H.R. 5237,’’ and widely 

varied estimates of costs. In the end, the 

CBO estimated only $5 million to $30 

million over five years would be 

required which reflected the ‘‘costs of 

an inventory of museums’ collections, 

as well as a review of existing 

information to determine [Tribal] 

origin’’ (H. Rpt. 101–877, at 22). 

5. Comment: We received 25 

comments expressing concerns for the 

protection of sensitive information in 

the regulations. Some comments 

suggested use of the Privacy Act and the 

Archeological Resources Protection Act 

(ARPA) to withhold information about 

human remains and cultural items. 

Other comments suggested changes to 

the regulations to require that museums 

and Federal agencies keep sensitive 

information confidential. 

DOI Response: While we appreciate 

the suggestions, we cannot make the 

requested changes. First, neither the 

Privacy Act nor ARPA apply. Deceased 

individuals do not have any Privacy Act 

rights, nor do executors or next-of-kin. 

See, generally, OMB 1975 Guidelines, 

40 FR 28, 40 FR 951 (also available at 

https://www.justice.gov/paoverview_

omb-75, accessed 12/1/2023) (stating 

‘‘the thrust of the Act was to provide 

certain statutory rights to living as 

opposed to deceased individuals’’ and 

‘‘the Act did not contemplate permitting 

relatives and other interested parties to 

exercise rights granted by the Privacy 

Act to individuals after the demise of 

those individuals’’). Similarly, the 

exemption from disclosure under ARPA 

applies specifically to ‘‘the nature and 

location of any archaeological resource 

for which the excavation or removal 

requires a permit or other permission 

under [ARPA] or under any other 

provision of Federal law’’ (16 U.S.C. 

470hh(a)). Thus, the ARPA provision is 

directed to archaeological resources that 

would require a permit for excavation or 

removal, which applies to some but not 

all human remains and cultural items 

under the Act and these regulations. 

In the proposed regulations and in 

these final regulations, the Department 

has taken steps to remove requirements 

for museums or Federal agencies to 

disclose sensitive information in an 

inventory, summary, or notice. While 

we cannot dictate how a museum or 

Federal agency responds to a request for 

disclosure of sensitive information, we 

encourage a museum or Federal agency, 

at the request of a lineal descendant, 

Indian Tribe, or NHO, to ensure that 

information of a particularly sensitive 

nature is not made available to the 

public. Since 1995, the Department has 

recommended museum or Federal 

officials ensure that sensitive 

information does not become part of the 

public record by not collecting, or 

writing down, such information in the 

first place (1995 Final Rule, 60 FR 

62154). 

6. Comment: We received 43 

comments requesting additional action 

by the Department of the Interior 

outside of these regulations. Of that 

total, nine comments requested the 

Department impose NAGPRA-related 

conditions on any museum that 

received any Federal grant. Seven 

comments requested the Department 

move the National NAGPRA Program 

out of the National Park Service. A total 

of 11 comments requested the 

Department conduct more consultation 

on these regulations before issuing final 

regulations; five comments requested 

consultation with only Indian Tribes 

and NHOs while six comments 

requested consultation with all 

constituents. Five comments requested 

further engagement with the Department 

on these regulations. Five comments 

requested the Department conduct or 

request an audit of the National 

NAGPRA Program, Federal agency 

compliance, or the grant program. Four 

comments requested the Department 

provide more information about the 

changes to these regulations, either 

through training or simplified 

documents outlining the changes. One 

comment requested the Department 

ensure its own bureaus follow these 

regulations. One comment requested the 

proposed regulations be withdrawn and 

the Department start a new effort to 

develop these regulations in 

consultation with Indian Tribes and 

NHOs. 

DOI Response: We appreciate the 

requests for additional action by the 

Department. We agree that additional 

information about changes to these 

regulations will be needed, and we plan 

on providing as many opportunities as 

we can for training sessions, 

discussions, and guidance documents 

once the regulations are effective. We 

welcome any other suggestions for how 

we can support museums, lineal 

descendants, Indian Tribes, or NHOs 

with these regulations. We are working 

to ensure all the bureaus within the 

Department of the Interior have 

adequate staffing and support to ensure 

compliance with these regulations. 

We decline to include in these 

regulations a requirement for imposing 

NAGPRA-related conditions on Federal 

grants. All Federal grant recipients are 

required to provide assurances that they 

will comply with all applicable 

requirements of Federal laws, 

regulations, and policies (see 

‘‘Assurances for Construction/NonConstruction Programs (SF–424D and 

SF–424B)’’ at https://www.grants.gov/ 

forms/forms-repository/sf-424-family, 

accessed 12/1/2023). While we cannot 

include the requested provisions in 

these regulations, we agree to work with 

the Office of Management and Budget to 

explore whether and how a NAGPRAspecific condition might be included in 

the general assurances required for all 

Federal grant programs. We decline to 

withdraw the proposed regulations or to 

engage in additional consultations at 

this time. We are committed to 

implementing the final regulations as 

soon as possible to ensure these longoverdue changes are implemented. 

Regarding the location of the National 

NAGPRA Program, we appreciate the 

input we received during Tribal 

consultation in 2021 and in response to 

the proposed regulations. Currently, we 

have not decided about the future 

location of the National NAGPRA 

Program. Regarding the requests for an 

audit of the National NAGPRA Program, 

Federal agency compliance, or the grant 

program, all Federal agency programs, 

including the National NAGPRA 

Program, Federal agency NAGPRA 

programs, and the NAGPRA grant 

program, are subject to regular internal 

control reviews under the Office of 

Management and Budget Circular A– 

123, Management’s Responsibility for 

Enterprise Risk Management and 

Internal Control (revised 7/15/2016). 

Along with other management and 

performance evaluation processes, the 

National NAGPRA Program and all 

Federal agency programs undergo 

routine and regular review. We will 

continue to consider the need for 

additional management oversight. 

7. Comment: We received 22 

comments concerning how the 

regulations should balance the interests 

of, on the one hand, repatriation, and on 

the other hand, scientific study. Of that 

total, 17 comments outright objected to 

the regulations giving museums or 

Federal agencies decision-making 

authority for disposition or repatriation. 

Thirteen of these comments, which 

came from one submission, asserted that 

decisions on cultural affiliation, 

evaluation of requests, repatriation, and 

competing requests should be in the 


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hands of the appropriate Indian Tribes 

or NHOs and not museums and Federal 

agencies (see NPS–2022–0004–0157). 

Four comments provided similar 

sentiments. One comment requested 

that an independent authority evaluate 

decisions made by museums and 

Federal agencies. One comment noted 

that despite positive changes, the 

proposed regulations still had not truly 

shifted the burden of having to prove 

the identity or cultural affiliation of 

human remains or cultural items off 

Indian Tribes or NHOs because the 

regulations did not give the power of 

decision making to Indian Tribes or 

NHOs. 

By contrast, two comments objected 

to the proposed regulations claiming 

that they eliminate the balance of 

interests that Congress intended when it 

passed the Act. Both comments 

referenced or quoted from statements 

made by Senators Inouye and McCain in 

1992, to the effect that the Act 

represents a balance between scientific 

study and respectful treatment of 

human remains and cultural items. One 

of these comments stressed that the 

proposed regulations were inherently 

imbalanced because they were 

developed through consultation only 

with Indian Tribes and NHOs and not 

with museums, scientific organizations, 

and Federal agencies (see NPS–2022– 

0004–0150). Citing to ‘‘. . . words such 

as ‘balance’ and ‘compromise’ [in] 

describing the law in a special issue of 

the Arizona State Law Journal published 

shortly after the bill was passed (vol. 24, 

1992),’’ the other objecting comment 

stated, ‘‘[i]n my view, a rule published 

in 2010 (43 CFR 10.11) began to move 

NAGPRA away from the balance that 

Congress intended. The new regulations 

proposed here would make that balance 

go away entirely’’ (see NPS–2022–0004– 

0172). 

Three comments directly refuted the 

two objecting comments as gross 

misrepresentations of the Act. One of 

these comments concluded that the 

imbalance is because the Act vests 

decision making with museums and 

Federal agencies and stated ‘‘where 

there is disagreement between 

institutions and Tribes regarding 

affiliation, it requires that the Tribes 

take extraordinary lengths to press 

claims. The challenge is, can this rule or 

any rule really overcome the inherent 

imbalance in the Act?’’ (see NPS–2022– 

0004–0129). Another comment 

supported the proposed regulations in 

trying to shift the balance more toward 

Indian Tribes and NHOs because, since 

1990, repatriation has been too slow, 

and the burdens placed on Indian Tribes 

and NHOs has been too great. The 

comment supported the proposed 

regulations as representing the 

‘‘continued evolution to ensure 

NAGPRA’s relevance to its true 

constituents-Indian [T]ribes and Native 

Hawaiian organizations’’ (see NPS– 

2022–0004–0080). A third comment 

refuting the objecting comments stated: 

Though some argue that repatriation is a 

weighing of interests between science and 

human rights, that interest is absent from the 

Act, which is singularly aimed at providing 

restitution. The Act creates an administrative 

process for repatriation and disposition to 

provide restitution for harms that have been 

called out by Congress as genocide and 

human rights violations. The only exception 

the Act provides to repatriation is when a 

museum or agency can prove that they have 

a ‘‘right of possession.’’ Even permitting 

completion of a scientific study of major 

benefit to the United States does not prevent 

repatriation, and will only delay it. 25 U.S.C. 

3005(b). 

Museums—even well-funded ones—have 

admitted that they will not be proactive with 

their CUI inventories, even with the 

NAGPRA funding they request, and that 

instead, they will continue to work to 

overcomplicate the process, based on the 

current regulations and criteria outlined 

there. Thus, it is imperative that the 

Secretary take over this duty and correct the 

Ancestors and their belongings that languish 

under a label called ‘‘unidentifiable’’ (NPS– 

2022–0004–0153). 

DOI Response: Nowhere in the Act 

did Congress say that decisions about 

disposition or repatriation are made by 

balancing the interests of science against 

the interests of human rights. While we 

are aware of the statements made by 

Senators Inouye and McCain in 1992, 

we understand those statements to say 

that the Act itself is the product of 

balancing these interests. The lengthy 

process of developing, drafting, and 

agreeing to the language of the Act is 

how Congress ensured a balance 

between scientific study and respectful 

treatment of human remains and 

cultural items. 

To ensure all information related to 

the Congressional record is available, 

the documents that provide legislative 

intent are available on the National 

NAGPRA Program website (https://

www.nps.gov/subjects/nagpra/thelaw.htm, accessed 12/1/2023). Beyond 

the two reports, the Congressional 

Record provides statements by 

individual members of Congress. In the 

Senate, Senator Inouye’s full statement 

is available in the Congressional Record 

Senate (October 26, 1990) on page 

35678–35679. Senator McCain’s 

opening statement is on the preceding 

page 35677. A discussion of the impact 

of the legislation on development 

activities on Federal lands by Senators 

McCain and Simpson is on page 35679– 

35680. In the House, Representatives 

Campbell (D–CO), Rhodes (R–AZ), 

Collins (D–IL), Richardson (D–NM), 

Bennett (D–FL), Mink (D–HI), and Udall 

(D–AZ) provided statements in the 

Congressional Record House (October 

22, 1990) on pages 31937–31941. 

We agree with the objecting 

comments that the Congressional record 

is replete with references to the balance, 

compromise, and agreement in both the 

process to develop the Act and in the 

content of the Act itself. We agree with 

the objecting comments that the Act 

creates a balance, but we believe that 

the balance is built into the Act itself 

through compromises made in the Act 

before its final passage. The objecting 

comments appear to indicate that the 

balance Congress intended comes in 

only repatriating some human remains 

and even fewer associated funerary 

objects (as suggested by the objecting 

comments reference to the 2010 Final 

Rule) or that in each decision on 

disposition or repatriation, a museum or 

Federal agency must balance the 

interests of science with those of human 

rights. We disagree with this 

interpretation of the legislative history. 

The Congressional record of the 

House clearly identified ‘‘points of 

compromise’’ in the final version of the 

Act. Representatives Campbell and 

Richardson stated the Act represents a 

compromise on the following issues: 

1. Limiting the inventory requirement to 

only human remains and associated funerary 

objects rather than all Native American 

collections; 

2. Clarifying the definition of cultural 

affiliation to incorporate anthropological and 

archeological criteria (i.e., traced historically 

or prehistorically); 

3. Adding a standard of repatriation for 

unassociated funerary objects, sacred objects, 

and objects of cultural patrimony by defining 

‘‘right of possession;’’ 

4. Tightening the definitions of 

unassociated funerary objects and sacred 

objects; 

5. Clarifying the definition of museum to 

not apply to private individuals who receive 

Federal payments such as social security; and 

6. Balancing representation of the Review 

Committee to include all groups affected by 

the Act. 

Representative Campbell’s statement 

included two other compromises in the 

final version of the Act: 

The bill takes into account that many of 

these items may be of considerable scientific 

value and allows for current studies to 

continue with repatriation occurring after the 

completion of such a study. It further 

acknowledges that repatriation is not the 

only alternative and I encourage all sides to 

try and work out agreeable compromises 

where all interested parties can benefit from 


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access to some of the items (136 Cong. Rec. 

31938, emphasis added). 

We agree with the last comment 

summarized above that the only 

exception to expeditious repatriation 

under the Act is proving a ‘‘right of 

possession’’ (25 U.S.C. 3005(c)). Any 

need to complete a scientific study does 

not prevent repatriation but only delays 

it (25 U.S.C. 3005(b)). In addition, we 

note that any need to excavate human 

remains or cultural items on Federal or 

Tribal lands is only permitted after 

consultation (on Federal lands) or 

consent (on Tribal lands), and that 

regardless of any scientific study, 

disposition of human remains or 

cultural items to the appropriate lineal 

descendant, Indian Tribe, or NHO is 

always required (25 U.S.C. 3002(c)). 

Accordingly, we conclude that the 

objective of the systematic processes in 

the Act is the disposition or repatriation 

of human remains or cultural items, not 

to achieve any kind of balance between 

the interests of science and the interests 

of human rights. 

We intend these regulations to better 

align with the processes for disposition 

and repatriation found in the Act. In 

these regulations, we cannot remove the 

decision-making authority vested in 

museums and Federal agencies because 

doing so would be inconsistent with the 

Act. We can, and have, included 

requirements for museums and Federal 

agencies to consult, collaborate, and, in 

the case of scientific study or research, 

obtain consent from lineal descendants, 

Indian Tribes, or NHOs (see Comment 

15). In addition, these regulations 

require museums and Federal agencies 

to defer to the Native American 

traditional knowledge of lineal 

descendants, Indian Tribes, and NHOs 

in all decision-making steps. 

In developing both the proposed and 

final regulations, we emphasized 

consultation with Indian Tribes and 

NHOs and incorporated comments from 

consultation to the maximum extent 

possible. This does not indicate an 

imbalance in the process to develop 

these regulations or in the resulting 

product, but rather reflects the special 

relationship between the Federal 

government and Indian Tribes and 

NHOs (25 U.S.C. 3010). Furthermore, 

while the Act is the primary authority 

for these regulations, Congress 

authorized the Secretary to make such 

regulations for carrying into effect the 

various provisions of any act relating to 

Indian affairs (25 U.S.C. 9). As the Act 

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 

this provision 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)). 

Finally, a statement in the 

Congressional record by Senator Inouye 

is directly relevant to the objective of 

these revised regulations to better reflect 

Congressional intent: 

This legislation is designed to facilitate a 

more open and cooperative relationship 

between native Americans and museums. For 

museums that have dealt honestly and in 

good faith with native Americans, this 

legislation will have little effect. For 

museums and institutions which have 

consistently ignored the requests of native 

Americans, this legislation will give native 

Americans greater ability to negotiate. Mr. 

President, I believe this bill represents a 

major step in correcting an injustice that 

started over 100 years ago. It is appropriate 

that Congress take an active role in helping 

to restore these rights to native Americans 

and I urge the adoption of this measure by 

the Senate (136 Cong. Rec. 35678). 

8. Comment: We received two 

comments requesting the Department 

develop guidance and a framework to 

establish reburial areas for repatriated 

collections. The comments point to the 

U.S. Department of Agriculture, Forest 

Service, as an example of how landmanaging Federal agencies can assist 

and support reburials on Federal lands. 

DOI Response: We appreciate the 

request, and we understand the 

significant issues involved with 

securing lands for reburial. While this 

request is outside the scope of these 

regulations, the Department will 

consider how guidance and policy 

might be used to effectuate the 

requested change. 

B. Section 10.1 Introduction 

9. Comment: We received 42 

comments on § 10.1(a) Purpose. Of that 

total, 18 comments supported the 

revised paragraph, specifically the 

inclusion of deference to lineal 

descendants, Indian Tribes, and NHOs 

in the purpose paragraph. An additional 

19 comments, while generally 

supportive, also suggested changes to 

the paragraph. Suggested changes 

include adherence to the purpose as 

stated by Congress, emphasizing the 

limited exceptions to disposition or 

repatriation, a significant change to verb 

tense, and defining and referencing 

deference in the regulatory text. On the 

other hand, four comments specifically 

objected to the inclusions of deference 

in the purpose paragraph and expressed 

concerns about how deference applies 

when there are disagreements among 

Indian Tribes or when other 

requirements or definitions do not allow 

for deference to lineal descendants, 

Indian Tribes, or NHOs. One comment 

generally objected to the change in the 

purpose as an entire rewrite of the 

regulations that would impede the 

systematic repatriation process. 

DOI Response: We specifically 

requested input on the proposed 

purpose paragraph, and we appreciate 

the response and have made changes 

where permissible. As many comments 

indicate, the proposed purpose 

paragraph was not as clear or effective 

as we had intended. Although some 

comments suggested we delete the 

sentence on the rights the Act 

recognizes, we have retained the 

sentence given the number of 

supporting comments we received, but 

we have changed the verb tense as 

requested. We have revised the purpose 

paragraph as suggested by several 

comments to paraphrase the language 

used by Congress (H. Rpt. 101–877, at 8) 

which outlines the two separate 

processes for disposition and 

repatriation under the Act. The purpose 

paragraph uses plain language to 

describe the overall goals of these two 

separate processes for disposition and 

repatriation (protect and restore). In 

response to the objections and concerns 

about deference, we have included both 

consultation and deference as a part of 

the purpose for these regulations to 

ensure meaningful consideration of 

Native American traditional knowledge 

throughout these processes. It is through 

consultation and deference that these 

regulations ensure the rights of lineal 

descendants, Indian Tribes, and NHOs 

the Act recognizes. 

10. Comment: We received four 

comments on § 10.1(b) Applicability. 

Three comments suggested editorial 

changes to the paragraph while one 

comment strongly supported the 

paragraph, especially with its focus on 

museums and Federal agencies as the 

applicable party. 

DOI Response: Considering the 

revisions to § 10.1(a), we have made 

changes to this paragraph to emphasize 

the applicable parties that are 

responsible for each major section of 

these regulations. We tried to make this 

paragraph clear that many parts of the 

Act and these regulations are not 

limited to Federal or Tribal lands. In 

response to other comments on the 

requirements of these regulations, we 

have clarified that lineal descendants, 

Indian Tribes, and NHOs are not 

required to consult or to make a claim 

for disposition or a request for 

repatriation. 

11. Comment: We received two 

comments related to § 10.1(c) 

Accountability. One comment suggested 


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requiring a duty of candor by museums 

and Federal agencies to disclose any 

human remains or cultural items that 

were destroyed, deaccessioned, lost, or 

in any other way removed from the 

provisions of these regulations. One 

comment suggested adding transparency 

to the accountability requirements. 

DOI Response: We cannot make the 

requested change regarding candor as it 

is contrary to the requirements of the 

Act. A museum or Federal agency must 

compile a summary of cultural items 

and an itemized list of human remains 

and associated funerary objects in its 

possession or control (25 U.S.C. 3003(a) 

and 3004(a)). Based on the information 

available, a museum or Federal agency 

must determine if human remains or 

cultural items that are destroyed, 

deaccessioned, lost, or in any other way 

removed are under its possession or 

control and therefore subject to these 

regulations. We note that in these 

regulations, as in the proposed 

regulations, a museum or Federal 

agency must ensure the summary and 

itemized list are comprehensive and 

cover any holding or collection relevant 

to § 10.9 and § 10.10. 

12. Comment: We received five 

comments objecting to § 10.1(d) Duty of 

care because the requirements went 

beyond the statutory authority and 

should be recommendations not 

requirements. Some of these comments 

suggested that the costs to comply with 

this paragraph would be substantial, 

that additional curation and collections 

facilities may need to be constructed, 

and that conflicts might arise with 

standard curation, conservation, and 

preservation principles or practices. 

One comment questioned how conflicts 

among Indian Tribes should be handled. 

Another comment stated that research 

on human remains and cultural items is 

necessary to determine cultural 

affiliation and, therefore, the 

requirements in this paragraph conflict 

with the requirements in § 10.3. One 

comment suggested that ‘‘to the 

maximum extent possible’’ and 

‘‘safeguard and preserve’’ should be 

replaced with ‘‘reasonable effort’’ and a 

cross-reference to requirements in 36 

CFR part 79, respectively. 

DOI Response: We disagree that these 

requirements go beyond the statutory 

authority or that these requirements 

should only be recommendations. The 

Secretary’s authority for promulgating 

these regulations is discussed 

extensively in other responses to 

comments (see Comment 7), the 2010 

Final Rule (75 FR 12379), and the 2022 

Proposed Rule (87 FR 63207). Given the 

number of supporting comments for this 

paragraph during consultation in 2021, 

including from the Secretary’s Federal 

Advisory Review Committee (Review 

Committee), and comments on the 

proposed regulations requesting we 

strengthen these requirements (see 

Comments 13–17), we chose not to 

revise these requirements into 

recommendations. We strongly disagree 

with the comment that research on 

human remains or cultural items is 

required by the Act or these regulations 

to determine cultural affiliation or for 

any other purpose. Rather, the Act 

explicitly and specifically does not 

require new scientific studies or other 

means of acquiring or preserving 

information (25 U.S.C. 3003(b)(2)), and 

we have incorporated similar language 

into this paragraph to clarify (see 

Comment 16). 

Earlier drafts of these regulations 

referenced 36 CFR part 79, as suggested 

by one comment, but we received 

substantial negative feedback on this 

during consultation in 2021 and from 

the Review Committee. Most of that 

feedback felt the inclusion of 36 CFR 

part 79 in these regulations was 

confusing or concerning. Federal 

agencies and their repositories must still 

care for and manage collections that are 

covered by the provisions of 36 CFR 

part 79. Regarding speculation on 

substantial costs, conflicts with 

conservation and preservation 

principles, and conflicts among lineal 

descendants, Indian Tribes, or NHOs, 

the final regulations now require 

museums and Federal agencies to make 

a ‘‘reasonable and good-faith effort’’ to 

incorporate and accommodate Native 

American traditional knowledge in the 

storage, treatment, or handling of 

human remains or cultural items (see 

Comment 14). 

13. Comment: We received 16 

comments supporting § 10.1(d) Duty of 

care as proposed while 23 comments 

were generally supportive but suggested 

changes to strengthen the requirements. 

Many comments requested this 

paragraph clearly apply to all Native 

American collections, even those on 

loan or where specific cultural items 

subject to the Act have not been 

identified. Some comments specifically 

requested ‘‘custody’’ be deleted from the 

paragraph in line with requested 

changes to expand ‘‘possession or 

control’’ or that this paragraph clearly 

state that a museum or Federal agency 

only has a duty of care and does not 

have rightful ownership of Native 

American human remains or cultural 

items. Several comments requested a 

definition of ‘‘care for, safeguard, and 

preserve.’’ One comment requested this 

paragraph include a requirement for the 

National NAGPRA Program to make 

sporadic inspections of all museums 

and Federal agencies to ensure 

professional museum and archival 

standards are met, including physically 

securing collections through clean, 

rodent-free, and locked areas with 

limited access. One comment requested 

additional clarifying language to ensure 

these requirements do not serve as a 

justification to delay or avoid 

repatriation. One comment requested 

two additional paragraphs be included 

to require museums and Federal 

agencies to provide specific and 

detailed information on any study or 

research of Native American collections 

conducted after 1990, including copies 

of published work and photographs. 

DOI Response: We cannot require that 

this paragraph, or this part, apply to all 

Native American collections as that 

would be inconsistent with the Act (25 

U.S.C. 3003(a) and 3004(a)). The 

requirements of this paragraph are 

limited to human remains and cultural 

items as defined by the Act and these 

regulations. We cannot remove 

‘‘custody’’ from the first sentence and 

still ensure that this paragraph will 

apply to human remains and cultural 

items that are on loan but still subject 

to the Act (see the definitions of 

‘‘custody’’ and ‘‘possession or control’’ 

discussed elsewhere). We have 

intentionally included ‘‘custody’’ in the 

duty of care requirement to ensure all 

Native American human remains and 

cultural items are cared for, 

safeguarded, and preserved until the 

disposition and repatriation processes 

are complete. However, the inclusion of 

museums or Federal agencies with 

‘‘custody’’ is not intended to limit the 

ability of the museum or Federal agency 

with possession or control of the human 

remains or cultural items from carrying 

out its responsibilities under this 

paragraph or these regulations. We 

cannot include the requested statement 

on rightful ownership as it would be 

contrary to the provisions of the Act 

where a museum or Federal agency can 

prove it has a right of possession to a 

cultural item. We have not changed or 

defined ‘‘to care for, safeguard, and 

preserve,’’ and these terms should be 

understood to have a standard, 

dictionary definition. We believe these 

terms, along with paragraphs (d)(1), 

(d)(2), and (d)(3), are sufficient to ensure 

an adequate standard of care for human 

remains and cultural items, including 

that the human remains or cultural 

items are properly stored and physically 

secured in a clean and locked area and 

are reasonably believed to be safe from 

damage or destruction by pests or 

natural elements. We believe the 


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timelines included in the disposition or 

repatriation processes ensure that these 

requirements will not be used to delay 

or avoid repatriation, and we note that 

any request for an extension of the 

deadlines for repatriation or for a stay of 

repatriation for scientific studies would 

require consultation with and consent of 

the appropriate lineal descendant, 

Indian Tribe, or NHO. While we 

appreciate the suggestion to require 

information on any past research or 

study be provided to lineal descendants, 

Indian Tribes, or NHOs as a part of a 

duty of care, this provision is already 

provided for in §§ 10.9(c)(4) and 

10.10(c)(4). Under the Act and these 

regulations, lineal descendants, Indian 

Tribes, and NHOs have a right to request 

records, catalogues, relevant studies, or 

other pertinent data (25 U.S.C. 

3003(b)(2) and 25 U.S.C. 3004(b)(2)), 

and museums and Federal agencies are 

required to share that information (25 

U.S.C. 3005(d)). As required by the Act, 

additional information is only provided 

upon request of an Indian Tribe or NHO, 

and we cannot make this a requirement 

that applies to all human remains or 

cultural items absent such a request. 

In conjunction with that reasoning, 

we have removed the requirement for 

lineal descendants, Indian Tribes, or 

NHOs to first make a request for the 

duty of care requirements that follow, 

and we have removed ‘‘to the maximum 

extent possible’’ from the introductory 

phrase (see Comment 14). We have 

revised this paragraph to include 

paragraphs (d)(1), (d)(2), and (d)(3) on 

what a museum or Federal agency must 

do as a part of its more general duty of 

care for human remains or cultural 

items. These three requirements align 

with the purpose of the Act, these 

regulations, and Congressional intent, 

which was stated as follows: 

The [Senate] Committee intends the 

provisions of this Act to establish a process 

which shall provide a framework for 

discussions between Indian [T]ribes and 

museums and Federal agencies. The 

Committee believes that the process 

established under this Act will prevent many 

of the past instances of cultural insensitivity 

to Native American peoples. The Committee 

has received testimony describing instances 

where museums have treated Native 

American human remains and funerary 

objects in a manner entirely different from 

the treatment of other human remains. 

Several [T]ribal leaders expressed their 

outrage at the manner in which Native 

American human remains had been treated, 

stored or displayed and the use of culturally 

sensitive materials and objects in violation of 

traditional Native American religious 

practices. In the long history of relations 

between Native Americans and museums, 

these culturally insensitive practices have 

occurred because of the failure of museums 

to seek the consent of or consult with Indian 

[T]ribes (S. Rpt. 101–473, at 3). 

Section 10.1(d)(1) requires museums 

and Federal agencies to consult on the 

appropriate storage, treatment, or 

handling of human remains or cultural 

items, which was reiterated in the 

proposed regulations at §§ 10.4, 10.9, 

and 10.10. In these final regulations, we 

have revised those specific sections to 

refer to this paragraph. 

Section 10.1(d)(2) requires museums 

and Federal agencies to make a 

reasonable and good-faith effort to 

incorporate and accommodate requests 

made by consulting parties (see 

Comment 14). 

Section 10.1(d)(3) requires museums 

and Federal agencies to obtain consent 

from consulting parties prior to any 

exhibition of, access to, or research on 

human remains or cultural items (see 

Comment 15–17). 

14. Comment: Of the 23 comments 

requesting we strengthen the duty of 

care requirements, many requested 

‘‘deference’’ replace ‘‘to the maximum 

extent possible.’’ In addition, all 

comments objecting to the duty of care 

requirements raised concerns about the 

vagueness of this phrase and the 

potential for conflict between and 

among consulting parties on the 

implementation of this phrase. 

DOI Response: We have removed the 

phrase and revised § 10.1(d)(2) to 

require museums and Federal agencies 

make a reasonable and good-faith effort 

(in place of ‘‘to the maximum extent 

possible’’ in the proposed regulations) 

to incorporate and accommodate the 

Native American traditional knowledge 

in caring for human remains or cultural 

items. As the purpose of the Act and 

these regulations is the disposition or 

repatriation of human remains and 

cultural items, museums and Federal 

agencies must prioritize requests for 

storage, treatment, or handling by lineal 

descendants, Indian Tribes, or NHOs 

who will be the future caretakers of the 

human remains or cultural items. These 

requests may require alterations or 

exceptions to standard curation or 

preservation practices. In addition, as 

noted elsewhere, when consultation on 

the duty of care does not result in 

consensus, agreement, or mutually 

agreeable alternatives, the consultation 

record must describe the concurrence, 

disagreement, or nonresponse of the 

consulting parties. 

As an example of how this 

requirement might be implemented, a 

consulting Indian Tribe might request 

that an offering of organic material be 

placed with human remains until 

repatriation and physical transfer of the 

collection is complete. During 

consultation, the museum and Indian 

Tribe might agree on how to 

accommodate this request while still 

protecting and preserving the collection. 

The resulting agreement might include 

increased pest monitoring in the area 

with the offering, enclosing the offering 

in a glass jar next to the human remains 

or cultural items, or identifying an 

alternative location for the offering. 

As another example of this 

requirement, a consulting Indian Tribe 

might request that a particular type of 

oil or substance be applied to an animal 

hide that is incorporated into a cultural 

item. Traditional knowledge indicates 

that the oil or substance provides both 

physical and spiritual protection of the 

cultural item until it is repatriated. 

During consultation, the museum and 

Indian Tribe could agree on the 

appropriate individual, possibly a 

trained conservator or a Tribal member, 

and the appropriate method to apply the 

substance that does not affect other 

parts of the cultural item or other items 

in the collection. 

Other examples of requests a lineal 

descendant, Indian Tribe, or NHO might 

make for specific human remains or 

cultural items in a collection include 

smudging in a collection storage space; 

using specific cloth to cover collections; 

restrictions on who, how, or when 

collections are handled; orienting 

collections in a certain direction; storing 

certain collections separately or storing 

certain collections together. Each of 

these requests must be considered in 

light of other policies or systems, such 

as safety precautions, fire suppression 

systems, human resource policies, or 

space limitations. Through consultation, 

these requests may be incorporated and 

accommodated in a mutually agreeable 

way. Resources from the School for 

Advanced Research and the American 

Alliance of Museums are available to 

assist all parties with these types of 

discussions and accommodations 

(‘‘Standards for Museums with Native 

American Collections,’’ May 2023, 

https://sarweb.org/iarc/smnac/, and 

‘‘Indigenous Collections Care Guide,’’ 

publication pending, https://sarweb.org/ 

iarc/icc/, accessed 12/1/2023). 

15. Comment: Of the 23 comments 

requesting that we strengthen the duty 

of care requirements, many requested 

that museums and Federal agencies 

must obtain consent from lineal 

descendants, Indian Tribes, or NHOs 

before any activity occurs that involves 

any Native American collections, but 

especially prior to allowing access to or 

research on human remains and cultural 

items. Some comments requested 

adding a requirement to remove human 


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remains or cultural items from display 

or public access. Some comments 

requested replacing ‘‘Limit’’ with 

‘‘Prohibit’’ and include ‘‘exhibition of’’ 

with ‘‘access to and research on’’ in 

§ 10.1(d)(3). One of the comments 

objecting to the duty of care requirement 

stated that a limitation on research 

conflicted with the requirements for 

determining cultural affiliation, which 

requires research. 

In addition to these comments, 45 

comments on provisions for ‘‘scientific 

study’’ found in Subpart C echoed these 

requests that the regulations strengthen 

the protection of human remains or 

cultural items in holdings or collections. 

Most of these comments requested that 

museums and Federal agencies obtain 

consent from lineal descendants, Indian 

Tribes, or NHOs prior to allowing any 

research on human remains or cultural 

items. The second largest group of 

comments suggested that museums and 

Federal agencies must consult with 

lineal descendants, Indian Tribes, or 

NHOs prior to allowing research on 

human remains or cultural items. One 

comment from a museum and scientific 

organization requested that the 

regulations better align with the ethical 

principles of professional archaeological 

and anthropological organizations, 

which call for input, consensus, and 

informed consent from descendant 

communities (NPS–2022–0004–0139). 

One comment from an Indian Tribe 

explained that research and scientific 

studies continue to be conducted on 

human remains and cultural items, 

despite the repeated requests of Indian 

Tribes, and this research and study has 

delayed or even prevented repatriation 

in some cases. The comment states: 

We have raised these issues many times at 

the Congressional level before the Senate 

Committee on Indian Affairs and before the 

NAGPRA Review Committee and nothing 

was done to prevent the illegal study of our 

relatives or the lengthy delays in their 

repatriation and reburial. Changes must be 

made now to prevent any further privileged 

use of the Act by agencies and museums who 

have been allowed to ignore the plain speech 

in the Act regarding the study of our 

deceased ancestors and their burial property. 

It is plain to see that agencies and 

museums have had more than enough time 

(the 33 years that NAGPRA has existed plus 

all the decades our relatives sat ignored and 

collecting dust in museum or agency 

repositories) to conduct their illegal studies 

and analyses of our poor deceased relatives 

and their burial property and insist that steps 

be taken now to prevent any further studies 

of our deceased relatives and their burial 

property (NPS–2022–0004–0123). 

DOI Response: In response to these 

comments, we revised § 10.1(d)(3), by 

replacing ‘‘Limit’’ with ‘‘Obtain free, 

prior, and informed consent’’ and 

adding ‘‘exhibition of’’ to ‘‘access to or 

research on human remains or cultural 

items.’’ We cannot, as requested by 

some comments, prohibit exhibition, 

access, or research on human remains or 

cultural items as that would exceed the 

Secretary’s authority under the Act and 

would be contrary to Congressional 

intent. While the Act is the primary 

authority for these regulations, Congress 

authorized the Secretary to make such 

regulations for carrying into effect the 

various provisions of any act relating to 

Indian affairs (25 U.S.C. 9). As the Act 

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 

this provision 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)). Ambiguities in statutes 

passed for the benefit of Indians are to 

be construed to the benefit of the 

Indians (Bryan v. Itasca County, 426 

U.S. 373 (1976)). 

The Act does not prohibit museums 

or Federal agencies from conducting 

scientific studies of human remains or 

cultural items but does clearly state that 

such studies are not authorized by or 

required to comply with the Act (25 

U.S.C. 3003(b)(2)). The Act allows for a 

scientific study to delay, but not to 

prevent, repatriation (25 U.S.C. 3005(b)). 

The Act provides only one exception to 

expeditious repatriation by proving a 

‘‘right of possession’’ (25 U.S.C. 

3005(c)). In addition, the Act allows for 

excavation of human remains or cultural 

items from Federal or Tribal lands for 

purposes of a study, but only after 

consultation (on Federal lands) or 

consent (on Tribal lands) (25 U.S.C. 

3002(c)). As a result, there is some 

ambiguity in the Act related to scientific 

study, which has been interpreted to 

mean that the Act neither authorizes nor 

prohibits scientific study of human 

remains or cultural items. In exercising 

the Secretary’s authority for these 

regulations, the Department considered 

both the legislative and regulatory 

history related to scientific study of 

human remains or cultural items subject 

to the Act, as well as related 

recommendations from the Review 

Committee who is responsible for 

monitoring the repatriation process (25 

U.S.C. 3006(c)(2)). 

The legislative history shows 

Congress intended for the Act to give 

lineal descendants, Indian Tribes, and 

NHOs a more equitable voice in any 

future scientific study of human 

remains or cultural items. One central 

goal of the Act was ‘‘to allow for the 

development of agreements between 

Indian [T]ribes and museums which 

reflect an understanding of the 

important historic and cultural value of 

the remains and objects in museums 

collections’’ (S. Rpt. 101–473, at 4). The 

Senate Report provided a model of this 

kind of agreement where a museum 

agreed to return human remains to an 

Indian Tribe for burial, and the Indian 

Tribe chose to bury the human remains 

in a specially designed crypt that could 

be opened periodically to provide 

access for scientists to continue the 

study of the human remains. Earlier 

drafts of the legislation allowed for a 

request for repatriation to be denied if 

the requested item was part of a 

scientific study (H. Rpt. 101–877, at 11). 

In explaining the substitute amendment 

that ultimately became the Act, 

Congress explained the change to only 

delaying, not denying, repatriation for a 

scientific study was a means of urging 

‘‘the scientific community to enter into 

mutually agreeable situations with 

culturally affiliated [T]ribes in such 

matters’’ (H. Rpt. 101–877, at 15). 

As discussed in Comment 7, in 

describing the compromises in the final 

legislation, Representative Campbell 

stated that the Act acknowledges ‘‘that 

many of these items may be of 

considerable scientific value’’ and ‘‘that 

repatriation is not the only alternative.’’ 

Representative Campbell recommended 

‘‘agreeable compromises where all 

interested parties can benefit from 

access to some of the items’’ (136 Cong. 

Rec. 31938). Similarly, in urging the 

passage of the bill, Senator Inouye 

stated ‘‘[f]or museums and institutions 

which have consistently ignored the 

requests of native Americans, this 

legislation will give native Americans 

greater ability to negotiate’’ (136 Cong. 

Rec. 35678). This sentiment was echoed 

by Senator Akaka who stated the Act 

would, among other things, ‘‘eliminate 

the longstanding policy of scientific 

research on future remains found’’ (136 

Cong. Rec. 35678). 

In its final version, the Act used the 

term ‘‘scientific study’’ twice. First, in 

describing what documentation may be 

requested, the Act explicitly and 

specifically does not require new 

scientific studies on human remains or 

associated funerary objects (25 U.S.C. 

3003(b)(2), referred to here as ‘‘scientific 

studies are not required’’). Second, the 

Act requires that when a specific 

scientific study of human remains, 

associated funerary objects, 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony 

will result in a major benefit to the 

United States, a museum or Federal 

agency may postpone repatriation but 


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may not deny the request for 

repatriation (25 U.S.C. 3005(b)), referred 

to here as ‘‘delay for scientific study’’). 

The regulations as proposed in 1993 

and as promulgated in 1995 addressed 

only the delay for scientific study under 

the exceptions to repatriation in § 10.10. 

The regulations included the statutory 

language on documentation of human 

remains at § 10.9 but did not include 

that scientific studies are not required. 

The 1995 Final Rule made a reference 

to both scientific study provisions in 

responding to one comment that 

repatriation could not occur until a 

scientific analysis was completed. The 

Department responded stating: 

Section 5 (a) specifies that the geographic 

and cultural affiliation of human remains and 

associated funerary objects be determined ‘to 

the extent possible based on information 

possessed by the museum of Federal agency.’ 

No new scientific research is required. 

Delaying repatriation until new scientific 

research is completed contradicts the intent 

of Congress unless that scientific research is 

considered to be of major benefit to the 

United States (60 FR 62156). 

The 2007 Proposed Rule, Disposition 

of Culturally Unidentifiable Human 

Remains, added that scientific studies 

are not required to the paragraph on 

documentation of human remains at 

§ 10.9. The 2007 Proposed Rule added 

text to explain (1) any documentation 

provided is a public record and (2) a 

request for documentation cannot be 

construed as authorizing a new 

scientific study or other means of 

acquiring information. These additions 

were drawn directly from the Review 

Committee’s recommendations on 

culturally unidentifiable human 

remains (discussed below). 

In the 2010 Final Rule, Disposition of 

Culturally Unidentifiable Human 

Remains, the Department responded to 

three comments on scientific study 

specifically. Under General Comments, 

Comment 3 summarized comments 

opining that ‘‘Congress intended to 

allow study of ancient, unaffiliated 

remains.’’ The Department responded 

that ‘‘The Act does not draw a 

distinction between ‘ancient’ and more 

recent remains’’ and then reiterated that 

scientific studies are not required (75 FR 

12380). Under Section 10.9 Other 

General Comments, Comment 57 

summarized comments that ‘‘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.’’ The 

Department responded that scientific 

studies are not required (75 FR 12387). 

In the 2010 Final Rule, under Section 

10.9(e)(5) Additional Documentation, 

Comment 46 summarized 20 comments 

regarding the addition in the proposed 

regulations that scientific studies are not 

required. Some comments stated the 

language would ‘‘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 comment 

requested language be added to clarify 

that scientific studies are not prohibited, 

and another comment requested 

language be added to allow scientific 

studies if the consulting parties agree. 

The largest number of comments 

requested language stating that human 

remains must be treated with respect 

and ‘‘should not be subject to any 

further scientific research or used for 

teaching purposes.’’ In response to these 

comments, the Department simply 

stated that the language came directly 

from the Act and reflected 

Congressional intent (2010 Final Rule at 

12386). Since 2010, both provisions on 

scientific study have been codified in 

the regulations. 

While the existing regulations include 

both provisions on scientific study, the 

existing regulations do not provide any 

mechanisms for ensuring that scientific 

studies are not required or for 

administering the delay for scientific 

study. In the 2021 draft revisions of the 

regulations prepared for Tribal 

consultation, the Department 

introduced a procedure, through the 

Secretary, to administer the delay for 

scientific study but did not include any 

reference that scientific studies are not 

required. We received a significant 

number of comments regarding both 

scientific study provisions during Tribal 

consultation and from the Review 

Committee. As a result of this input, the 

proposed regulations included in the 

duty of care requirement a limitation on 

‘‘access to or research on’’ human 

remains or cultural items which would 

provide for implementation as well as 

enforcement that scientific studies are 

not required. The proposed regulations 

also provided procedures to administer 

the delay for scientific study by both 

requesting and receiving concurrence of 

the Secretary as a stay of the repatriation 

timeline under §§ 10.9 and 10.10. 

In preparing these final regulations, 

we looked at not only the comments we 

received on the proposed regulations 

but also to the legislative and regulatory 

history discussed above and to input 

from the Review Committee on these 

issues. As noted above, the addition to 

the regulations in 2007 that scientific 

studies are not required was based on a 

Review Committee recommendation. 

Notably, the Review Committee’s 

recommendation was not to include the 

statutory language, but to clarify that 

scientific studies must be agreed to by 

all parties through consultation. In its 

2000 final recommendations on 

culturally unidentifiable human 

remains, the Review Committee 

recommended: 

Documentation must occur within the 

context of the consultation process. 

Additional study is not prohibited if the 

parties (Federal agencies, museums, lineal 

descendants, Indian [T]ribes, and Native 

Hawaiian organizations) in consultation 

agree that such study is appropriate (65 FR 

36463, June 8, 2000). 

Between July 2021 and June 2022, the 

Review Committee reviewed and 

discussed the draft regulatory text and, 

in its final recommendations, developed 

its own duty of care requirement: 

Duty of care. Through meaningful 

consultation with [T]ribes and Native 

Hawaiian organizations, Federal agencies, 

museums, universities, and repositories shall 

provide standards of care based upon the 

free, prior, and informed consent of [T]ribes 

and Native Hawaiian organizations for 

human remains and cultural items. Museums 

and Federal agencies have an obligation to 

adhere to a standard of reasonable care while 

performing any act that would foreseeably 

harm any cultural item in their possession or 

control. This duty includes taking affirmative 

steps to verify the location and condition of 

all cultural items in the control of the 

museum or Federal agency, and consulting 

with any lineal descendants and any 

culturally or geographically affiliated Indian 

[T]ribes or Native Hawaiian organizations to 

determine the standard of care they consider 

reasonable (NPS–2002–0004–0003, 

attachment page 2). 

As noted in the document, one 

Review Committee member objected to 

the requirement of ‘‘consent’’ by Indian 

Tribes or NHOs to the standards of 

curatorial treatment for Native 

American human remains and other 

cultural items. The Review Committee 

member stated ‘‘[s]uch a unilaterallyimposed requirement might not be 

appropriate or reasonable, and in some 

circumstances might violate existing 

binding administrative agreements, legal 

obligations, and/or professional 

standards of the curating organization’’ 

(NPS–2022–0004–0003, attachment 

page 2, footnote 1). 

In preparing the proposed regulations, 

we adopted the Review Committee’s 

recommendation to include 

consultation, collaboration, and consent 

but, in response to the objecting 

comment, caveated the requirement 

with ‘‘to the maximum extent possible.’’ 

The proposed regulations did not 

include the Review Committee’s 

suggested language of ‘‘free, prior, and 

informed consent’’ and the last sentence 


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of the Review Committee’s 

recommendation was incorporated 

directly into Subpart C. In preparing 

these final regulations, we revisited the 

Review Committee’s recommendations 

and found we were able to incorporate 

the concept of ‘‘free, prior, and informed 

consent’’ by clarifying the provisions in 

§ 10.1 pertaining to duty of care. 

Paragraph (d)(1) requires consultation, 

paragraph (d)(2) requires collaboration, 

and paragraph (d)(3) requires consent. 

We agree with the Review Committee 

member and some of the comments on 

the proposed regulations that curatorial 

standards and other requirements may 

limit a museum or Federal agency’s 

ability to incorporate or accommodate 

requests from lineal descendants, Indian 

Tribes, or NHOs, and, as discussed in 

Comment 14, museums and Federal 

agencies must make a reasonable and 

good-faith effort to do so. We have 

limited the requirement to obtain 

consent only to the exhibition of, access 

to, or research on human remains and 

cultural items. 

As the purpose of the Act and these 

regulations is the disposition or 

repatriation of human remains or 

cultural items, we find it appropriate 

that museums and Federal agencies 

must obtain consent from lineal 

descendants, Indian Tribes, or NHOs 

before conducting activities that might 

physically or spiritually harm human 

remains or cultural items. For purposes 

of the duty of care paragraph, the lineal 

descendants, Indian Tribes, or NHOs are 

those identified as consulting parties 

under §§ 10.4(b)(1), 10.9(b)(1), and 

10.10(b)(1): Consulting parties are any 

lineal descendant and any Indian Tribe 

or NHO with potential cultural 

affiliation. If a museum or Federal 

agency cannot identify any consulting 

parties for specific human remains or 

cultural items, the duty of care 

requirement still applies. Until 

consulting parties are identified, the 

museum or Federal agency may not be 

required to consult under paragraph 

(d)(1) or collaborate under paragraph 

(d)(2) of § 10.1. Until consulting parties 

are identified, the museum or Federal 

agency must not allow any exhibition 

of, access to, or research on human 

remains or cultural items as doing so 

may be subject to a failure to comply 

with the requirements of these 

regulations. If a museum or Federal 

agency wished to conduct a specific 

scientific study of human remains or 

cultural items, it could do so by 

following the requirements for a stay of 

repatriation under §§ 10.9 or 10.10. 

After following the requirements of 

these regulations, nothing would 

preclude a museum or Federal agency 

from exhibiting, allowing access to, or 

conducting research on collections that 

are not subject to the Act or, after 

disposition or repatriation, reaching an 

agreement with the requesting lineal 

descendant, Indian Tribe, or NHO. 

16. Comment: We received four 

comments requesting the regulations 

include in § 10.10 the related statutory 

language from 25 U.S.C. 3003(b)(2) on 

‘‘scientific study.’’ Another comment 

questioned if ‘‘scientific study’’ as used 

in §§ 10.9 and 10.10 equated to a single 

study that records paleopathology on an 

individual or a long-term archaeological 

project at a site that includes many subprojects that study different 

bioarcheological and physical 

anthropological topics. 

DOI Response: We incorporated the 

statutory language on ‘‘scientific study’’ 

into paragraph (d)(3) by adding two 

sentences to clarify that the term 

‘‘research’’ as used here equates to the 

term ‘‘scientific study’’ in the Act and 

to emphasize that ‘‘research’’ of any 

kind is not required by the Act or these 

regulations. We have defined ‘‘research’’ 

to mean any study, analysis, 

examination, or other means of 

acquiring or preserving information. 

‘‘Research’’ includes any activity to 

generate new or additional information 

beyond the information that is already 

available, for example, osteological 

analysis of human remains, physical 

inspection or review of collections, 

examination or segregation of comingled 

material (such as soil or faunal remains), 

or rehousing of collections. ‘‘Research’’ 

is not required to identify the number of 

individuals or cultural items or to 

determine cultural affiliation. 

For example, if a museum wished to 

physically examine its collection to 

identify the number of individuals or 

associated funerary objects, the museum 

must first obtain consent from lineal 

descendants, Indian Tribes, or NHOs. 

Until that consent is obtained, the 

museum must rely on the information 

available (previous inventories, catalog 

cards, accession records, etc.) to identify 

consulting parties, conduct 

consultation, update the inventory, and 

submit a notice of inventory 

completion. 

If a Federal agency wished to examine 

an unprocessed collection of 

archaeological material excavated from 

Federal land after 1990 to identify if any 

human remains or cultural items were 

present, it could do so until human 

remains or cultural items were 

identified. At that time, any further 

examination or inspection of the 

collection would require obtaining 

consent from a lineal descendant, 

Indian Tribe or NHO. Until that consent 

is obtained, the Federal agency must 

rely on the information available 

(excavation location, field notes, etc.) to 

identify consulting parties, conduct 

consultation, and complete the 

disposition of the human remains or 

cultural items. 

17. Comment: We received five 

comments, including those by the 

Review Committee, objecting to the 

inclusion of unassociated funerary 

objects, sacred objects, or objects of 

cultural patrimony in the delay for 

scientific study because it is 

inconsistent with the Act and adverse to 

Tribal interests. These comments 

requested that the stay of repatriation in 

§ 10.9 for ‘‘scientific study’’ be deleted 

in its entirety (see NPS–2022–0004– 

0096; NPS–2022–0004–0143; NPS– 

2022–0004–0151; NPS–2022–0004– 

0177; and NPS–2022–0004–0183). 

DOI Response: We believe these 

comments conflated the two statutory 

provisions for ‘‘scientific study’’ we 

outlined in response to Comment 16 

(‘‘scientific studies are not required’’ 

and ‘‘delay for scientific study’’). We 

agree that the Act limits the provision 

that scientific studies are not required to 

only human remains and associated 

funerary objects (25 U.S.C. 3003(b)(2)). 

Similar language does not appear in the 

Act for unassociated funerary objects, 

sacred objects, and cultural patrimony 

(25 U.S.C. 3004(b)(2)). 

We do not agree, however, that 

extending the provision that scientific 

studies are not required or the 

corresponding paragraph at (d)(3) to 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony 

is adverse to Tribal interests. Rather, we 

feel this extension accomplishes the 

request made by many individuals, 

Indian Tribes, and Native American 

organizations to prohibit all ‘‘research’’ 

on human remains as well as any 

cultural item (see NPS–2022–0004– 

0107; NPS–2022–0004–0138; NPS– 

2022–0004–0158; NPS–2022–0004– 

0161; and NPS–2022–0004–0187). 

Therefore, paragraph (d)(3) on duty of 

care that requires consent for exhibition, 

access, or research applies to human 

remains, associated funerary objects, 

unassociated funerary objects, sacred 

objects, and objects of cultural 

patrimony. 

We understand that the delay for 

scientific study in both §§ 10.9 and 

10.10 is adverse to Tribal interests and 

may seem to allow or authorize 

scientific studies. As one comment 

stated clearly: 

Finally, please note our previous statement 

that we are categorically opposed to any 


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scientific study of our ancestors, their burial 

property or any item of our sacred or cultural 

patrimony and we specifically request that 

any language allowing any type of scientific 

study of any NAGPRA-related item be 

stricken from this rulemaking for the reasons 

submitted by our Nation, above (NPS–2022– 

0004–0123). 

We cannot remove reference to 

‘‘scientific study’’ or research from these 

regulations. The delay for scientific 

study applies to all ‘‘Native American 

cultural items,’’ which are defined in 

the Act as human remains, associated 

funerary objects, unassociated funerary 

objects, sacred objects, and objects of 

cultural patrimony (25 U.S.C. 3005(b)). 

As any elimination or restriction of 25 

U.S.C. 3005(b) would require an act of 

Congress, we cannot remove the 

reference to ‘‘scientific study’’ entirely 

or make the requested change to remove 

§ 10.9(i)(3). We have, however, 

strengthened the requirements under 

duty of care in this final rule to ensure 

better implementation and enforcement 

that scientific studies are not required. 

18. Comment: We received three 

comments requesting clarification of 

§ 10.1(e) Delivery of written documents. 

One comment requested an editorial 

change to the text and the other two 

comments requested an explanation of 

proof of receipt. One comment stated 

that tracking the sending and receipt of 

written documents was a considerable 

burden on all parties and would require 

a significant outlay of resources (NPS– 

2022–0004–0135). 

DOI Response: We have made the 

requested editorial change to paragraph 

(e)(1) and added ‘‘one of the following’’ 

to ‘‘must be sent by.’’ Regarding ‘‘proof 

of receipt’’ for email, many email 

systems include an option to request a 

read receipt automatically. While these 

systems may not constitute legal proof, 

use of such systems is sufficient for the 

purposes of these regulations. If an 

email system does not provide this 

option, other software or services can 

provide proof of receipt for little to no 

cost. However, we do not expect or 

require additional software or services 

to meet this requirement. The minimum 

requirement to satisfy ‘‘proof of receipt’’ 

would be to request that the recipient 

acknowledge receipt of the email. If no 

acknowledgment is received, the sender 

may follow up with a phone call to 

ensure the email was received. A call 

log or note to the file would be 

sufficient ‘‘proof of receipt.’’ 

19. Comment: We received four 

comments suggesting changes to 

§ 10.1(f) Deadlines and timelines. One 

comment noted that Tribal holidays 

may not coincide with Federal holidays 

and should be included. Another 

comment requested this paragraph 

clarify that the Federal Register 

calculates calendar days. One comment 

questioned how the Manager, National 

NAGPRA Program, will meet the notice 

publication deadline if there is a lapse 

in appropriations. One comment 

specifically questioned the use of 

business days in relation to the 

requirements under § 10.5 and stated 

that under the Act, ‘‘days’’ means 

calendar days. By using business days, 

the total maximum work stoppage under 

§ 10.5 could increase to some 95 

calendar days. In enacting the 30-day 

stop-work period, Congress said ‘‘days,’’ 

which is commonly understood as 

calendar days. Similarly, Rule 6(a) of 

the Federal Rules of Civil Procedure 

provides that, in computing any time 

period specified in the Rules, in any 

local rule or court order, or in any 

statute that does not specify a method 

of computing time, when a period is 

stated in days or a longer unit of time, 

every day is counted, including 

intermediate Saturdays, Sundays, and 

legal holidays. Furthermore, the 

comment states, except for using three 

‘‘working days’’ for the ministerial 

certification of receipt of a notice of 

discovery, the Department has always 

used calendar days as the metric for 

calculating a period in the existing 

regulations stated in days or a longer 

unit. 

DOI Response: We agree that in the 

Act, days means calendar days. We 

appreciate the comment on Tribal 

holidays, but given the great variation in 

those dates, we cannot accommodate 

the request to include or observe Tribal 

holidays. The purpose of this paragraph 

is to provide clear instruction on how to 

calculate dates for the deadlines and 

timelines in these regulations. Earlier 

drafts of these regulations used calendar 

days. We received requests during 

consultation in 2021 to use business 

days and to account for a lapse in 

appropriations. We noted this change 

would lengthen most deadlines in the 

regulations but accepted the suggested 

change in the proposed regulations. We 

have revised paragraph (f)(1) in § 10.1 to 

calendar days and included an 

exception for when a deadline falls on 

a Saturday, Sunday, or Federal holiday, 

including a lapse in appropriations. 

20. Comment: We received seven 

comments suggesting changes to 

§ 10.1(g) Failure to make a claim or a 

request. Five comments requested we 

delete this paragraph because the Act 

does not provide the Secretary with the 

authority to include this waiver of rights 

language in the regulations. These 

comments state that an Indian Tribe or 

NHO must never lose its rights to claim 

disposition or request repatriation of 

human remains or cultural items. One 

comment requested clarification and 

guidance on the application of this 

paragraph to the time between sending 

a repatriation statement and completing 

physical transfer of human remains or 

cultural items. One comment requested 

the regulations require clear and concise 

written proof of compliance with the 

notice and consultation requirements 

prior to any waiver of a right to make 

a claim or a request. 

DOI Response: The Secretary’s 

authority for promulgating these 

regulations is discussed extensively in 

the 2010 Final Rule (75 FR 12379) and 

the 2022 Proposed Rule (87 FR 63207). 

The purpose of a disposition or 

repatriation statement is to provide clear 

and concise written proof that the 

requirements of the Act have been 

fulfilled (25 U.S.C. 3002(a) and 3005(a)). 

With the disposition or repatriation 

statement, the museum or Federal 

agency divests itself of any interest in 

the human remains or cultural items. 

We cannot remove this paragraph 

without jeopardizing the entire 

disposition or repatriation processes 

provided by the Act and these 

regulations. This paragraph has been 

included in these regulations since the 

1993 Proposed Rule (58 FR 31132) and 

ensures that any claim for disposition or 

request for repatriation must be 

considered by a museum or Federal 

agency prior to disposition, repatriation, 

transfer, or reinterment of human 

remains or cultural items. Once 

disposition, repatriation, transfer, or 

reinterment occurs, a museum or 

Federal agency cannot accept a claim or 

request from another party as the 

museum or Federal agency no longer 

has any rights to or interest in the 

human remains or cultural item. This 

paragraph provides protection for lineal 

descendants, Indian Tribes, and NHOs 

as well as for museums and Federal 

agencies that once a disposition or 

repatriation statement is sent, it is not 

subject to future appeal or challenge. 

21. Comment: We received four 

comments suggesting changes to 

§ 10.1(h) Judicial jurisdiction. Three 

comments requested we include the role 

of the U.S. Court of Federal Claims in 

resolving specific matters. One 

comment asked if this paragraph 

restricted the role of Tribal courts in any 

related legal actions. 

DOI Response: Nothing in the Act or 

these regulations is intended to abrogate 

any concurrent Tribal jurisdiction that 

may exist with respect to alleged 

violations of similar Tribal laws on 

Tribal lands. Regarding the U.S. Court of 

Federal Claims, we disagree with the 


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suggested change. This paragraph 

reflects the statutory description of 

judicial jurisdiction for violations of the 

Act (25 U.S.C. 3013). It is not intended 

to address judicial jurisdiction for 

potential constitutional violations, such 

as the possibility of a Fifth Amendment 

taking as described in the Act’s 

definition for ‘‘right of possession’’ (25 

U.S.C. 3001(13)). It is unnecessary for 

these regulations to address the Court of 

Federal Claims’ jurisdiction over Fifth 

Amendment takings claims, which is 

well-established and not specific to this 

Act. Regarding collection of civil 

penalties, this is already included in 

§ 10.11, specifically in paragraph (m)(2) 

of these regulations. 

22. Comment: We received 19 

comments suggesting changes to 

§ 10.1(i) Final agency action. Four 

comments requested clarification as to 

how to interpret final agency action and 

confirming that disposition or 

repatriation determinations are final 

agency actions. Four comments 

considered the categories of final agency 

action to be too narrow as written and 

recommended adding language to 

clarify and including examples of 

determinations that would make this 

part inapplicable, such as 

determinations regarding plans of 

action, excavations, Federal land 

ownership, and possession or control. 

On the other hand, one comment 

described how those categories of final 

agency action impermissibly broaden 

the concept. Six comments urged the 

Department to approve all museum 

determinations under these regulations 

or compel museum action, and that 

such approval or failure to compel 

should be defined as final agency 

action. Four comments recommended 

that the Assistant Secretary’s decision 

not to assess a civil penalty be 

considered reviewable as final agency 

action. 

DOI Response: The Act does not grant 

the Secretary authority to approve or 

compel museum determinations, other 

than by assessing civil penalties for 

failures to comply. Regarding civil 

penalties, we have not made changes 

that would make decisions to assess 

civil penalties reviewable as final 

agency action because, first, the Act 

makes this decision permissive, not 

required, and second, such decisions are 

comparable to those in a criminal 

context (United States v. Halper, 490 

U.S. 435 (1989)) and generally 

considered unreviewable under the 

Administrative Procedure Act in order 

to preserve prosecutorial discretion 

(Heckler v. Cheney, 470 U.S. 821 

(1985)). While we appreciate the 

remaining recommendations, we believe 

that the concerns underlying each are 

already addressed by the language as it 

appeared in the proposed regulations. 

First, the inclusion of any final 

determination making the Act or this 

part inapplicable is intentionally broad 

and inclusive enough to capture the 

examples and other regulatory actions 

described in the comments. Second, at 

the same time, because this 

determination must be final, because it 

is on its own terms limited to situations 

where the information available to the 

Federal agency has informed the 

determination that the Act or this part 

is inapplicable, and because the 

determination in question is specific to 

the application of this Act or this part, 

the category is sufficiently limited in 

scope so as to ensure consistency with 

the Administrative Procedure Act. The 

Department does not consider this 

language in these regulations to redefine 

final agency action, but only to clarify 

its existing application across the 

entirety of the Act and this part. 

In addition, we have added a 

paragraph (k) to this section on 

severability. While this rule is intended 

to create systematic processes for 

implementing the Act, if a court holds 

any provision of one part of this rule 

invalid, it should not impact the other 

parts of the rule. For example, a 

decision holding a portion of Subpart B 

invalid should not impact Subpart C, 

since they are two separate processes for 

two different situations. Similarly, a 

decision holding part of the inventory 

process invalid should not impact the 

summary or repatriation processes. Any 

decision finding any provisions in this 

rule to be invalid would not impact the 

remaining provisions, which would 

remain in force. The intent of this rule 

is to streamline the processes and 

increase deference to lineal 

descendants, Indian Tribes, and NHOs 

as a whole, but the rule is not an 

interdependent whole—other provisions 

of the rule would implement that intent 

even if a court declared certain 

provisions invalid. 

C. Section 10.2 Definitions for This Part 

23. Comment: We received four 

comments requesting we add new 

definitions. Three comments requested 

we define ‘‘deference.’’ One comment 

requested we define ‘‘simple itemized 

list,’’ ‘‘lot,’’ and ‘‘specific area’’ for 

funerary objects. 

DOI Response: We have not defined 

‘‘deference’’ in these regulations. As 

used in these regulations, this term is 

intended to ensure meaningful 

consideration of Native American 

traditional knowledge of lineal 

descendants, Indian Tribes, and NHOs 

throughout the systematic processes for 

disposition and repatriation. The term 

should be understood to have a 

standard, dictionary definition: ‘‘respect 

and esteem due a superior or an elder; 

also affected or ingratiating regard for 

another’s wishes’’ (Merriam-Webster 

definition of ‘‘deference’’ https://

www.merriam-webster.com/dictionary/ 

deference, accessed 12/1/2023). The 

requirement for deference is not 

intended to remove the decision-making 

responsibility of a museum or Federal 

agency under the Act or these 

regulations but is intended to require 

that a museum or Federal agency 

recognize that lineal descendants, 

Indian Tribes, and NHOs are the 

primary experts on their cultural 

heritage. We believe the application of 

deference in these regulations is clear, 

and we have reinforced its application 

through changes to paragraphs in 

§ 10.1(a) Purpose and (d) Duty of care 

and in the definition of ‘‘consultation’’ 

below. 

We do not believe it is necessary to 

define ‘‘simple itemized list,’’ ‘‘lot,’’ or 

‘‘specific area.’’ Each of these terms 

should be understood to have a 

standard, dictionary definition, and 

when a museum or Federal agency is 

trying to apply them, we note that 

consultation with lineal descendants, 

Indian Tribes, or NHOs should inform 

that decision. 

24. Comment: We received six 

comments supporting the definitions in 

the proposed regulations. These 

comments appreciated that the 

definition of ‘‘cultural item’’ (and the 

definitions of specific kinds of cultural 

items) included language that 

recognizes lineal descendants, Indian 

Tribes, and NHOs are the primary 

experts on their own cultural heritage. 

One comment requested these 

definitions be further strengthened by 

requiring museums and Federal 

agencies defer to the determination of 

the lineal descendant, Indian Tribe, or 

NHO. Similar comments were repeated 

in each of the definitions of specific 

kinds of cultural items. 

DOI Response: We have retained the 

language in the definition of ‘‘cultural 

item,’’ ‘‘funerary object,’’ ‘‘sacred 

object,’’ and ‘‘object of cultural 

patrimony.’’ We have not added a 

requirement for deference to the 

determinations of lineal descendants, 

Indian Tribes, or NHOs as it would be 

inconsistent with the Act. Museums and 

Federal agencies are responsible for 

making determinations under the Act 

and these regulations, but must do so 

after consulting with lineal descendants, 

Indian Tribes, and NHOs. We have 

changed the order of the sentences to 


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reflect the importance of Native 

American traditional knowledge (which 

includes customs and traditions) in 

these definitions. Furthermore, we have 

strengthened the application of these 

definitions through changes to 

paragraphs in § 10.1(a) Purpose and (d) 

Duty of care and in the definition of 

‘‘consultation’’ below. 

25. Comment: We received 21 

comments on the proposed definitions 

of ‘‘acknowledged aboriginal land’’ and 

‘‘adjudicated aboriginal land.’’ Of that 

total, 13 comments suggested changes to 

the definitions while eight comments 

supported both definitions as proposed. 

DOI Response: Due to the changes to 

the definition of ‘‘cultural affiliation,’’ 

we are not finalizing the proposed 

definitions of aboriginal land in this 

rule. We believe the changes to cultural 

affiliation address the concerns 

expressed by the comments and ensure 

consultation on and consideration of 

information about aboriginal occupation 

in determining cultural affiliation. We 

have replaced ‘‘adjudicated aboriginal 

land’’ in the regulatory text with the 

elements of the definition. 

26. Comment: We received 21 

comments on the definition of 

‘‘affiliation.’’ Of that total, 14 comments 

suggested changes to the definition 

while seven comments supported it. 

One comment questioned if the 

Secretary has the authority to alter a 

definition in the statute and opposed 

the generalized and simplistic meaning 

of ‘‘affiliation.’’ The other comments 

requested that the definition of 

‘‘affiliation’’ be used to define ‘‘cultural 

affiliation.’’ 

DOI Response: We agree with the 

suggestion to add ‘‘cultural’’ before 

affiliation in this definition. We have 

clarified this definition by incorporating 

the Congressional intent of this 

definition ‘‘to ensure that the claimant 

has a reasonable connection with the 

materials’’ (H. Rpt. 101–877, at 14, and 

S. Rpt. 101–473, at 6). The additional 

language found in the definition in the 

Act (traced through time and 

identifiable earlier group) has been 

incorporated into the procedure for 

determining cultural affiliation and the 

related changes explained in our 

responses under § 10.3. We included in 

the definition of cultural affiliation the 

two ways cultural affiliation may be 

identified (clearly or reasonably), taken 

from the language in the Act (25 U.S.C. 

3003(d)(2)). 

27. Comment: We received two 

comments suggesting changes to the 

definition of ‘‘ahupua‘a.’’ 

DOI Response: We agree with the 

comments and have made the suggested 

changes. We appreciate the feedback 

that the definition of ahupua‘a includes 

extra contextual information that is 

already incorporated in § 10.3. We also 

note that priority for cultural affiliation 

is not given to an NHO based on the 

NHO’s location or cultural practice at 

the time of their claim or request but 

rather priority for cultural affiliation is 

based on the NHO’s relationship to the 

earlier occupants of the ahupua-a from 

where the human remains or cultural 

items were removed or in which they 

are discovered. 

28. Comment: We received three 

comments suggesting changes to the 

definition of ‘‘appropriate official.’’ One 

comment suggested that the appropriate 

official be trained on the time 

requirements of that job. The other 

comments wanted the Department to 

provide a contact list of appropriate 

officials. 

DOI Response: The responsible Indian 

Tribe, NHO, DHHL, or Federal agency is 

responsible for the training the 

appropriate official. The National 

NAGPRA Program maintains contact 

information on its website at https://

grantsdev.cr.nps.gov/NagpraPublic/ 

Home/Contact (accessed 12/1/2023). We 

encourage Indian Tribes, NHOs, Federal 

agencies, and museums to provide or 

update contact information on a regular 

basis. We also point out that the 

Advisory Council on Historic 

Preservation keeps an updated list of 

Federal Preservation Officers for each 

Federal agency at https://

www.achp.gov/protecting-historicproperties/fpo-list (accessed 12/1/2023). 

The National Park Service and the 

Bureau of Indian Affairs maintain 

contact information on Tribal Historic 

Preservation Offices at https://

grantsdev.cr.nps.gov/THPO_Review/ 

index.cfm (accessed 12/1/2023) and 

Tribal Leaders at https://www.bia.gov/ 

bia/ois/tribal-leaders-directory/ 

(accessed 12/1/2023). 

29. Comment: We received 10 

comments suggesting changes to the 

definitions of ‘‘ARPA Indian land’’ and 

‘‘ARPA public land.’’ Most of the 

comments said that the definitions are 

inconsistent with the Act and would 

unduly narrow the application of the 

Act and these regulations. One comment 

noted that the definition of ‘‘ARPA 

Indian land’’ includes the term 

‘‘individual Indian.’’ The comment 

stated that the latter term was undefined 

in the proposed regulations and 

suggested that it be replaced with the 

defined term ‘‘lineal descendant.’’ 

DOI Response: We have not changed 

these definitions. These definitions do 

not change the application of NAGPRA. 

NAGPRA applies to its fullest extent on 

‘‘Federal land’’ or ‘‘Tribal land,’’ as 

defined in both the statute and these 

regulations. Rather, the terms ‘‘ARPA 

Indian land’’ and ‘‘ARPA public land’’ 

define which excavations under 

NAGPRA require a permit issued under 

ARPA and which do not. Specifically, 

NAGPRA requires that human remains 

or cultural items may only be excavated 

or removed from Federal or Tribal land 

if, among other requirements, ‘‘such 

items are excavated or removed 

pursuant to a permit issued under 

[ARPA] which shall be consistent with 

[NAGPRA].’’ 25 U.S.C. 3002(c)(1). Since 

both NAGPRA and ARPA are intended 

to protect important cultural resources, 

they must be construed together. 

Further, ‘‘issued under ARPA’’ is an 

adjectival phrase modifying ‘‘permit.’’ 

Thus, it is not ARPA that ‘‘shall be 

consistent with NAGPRA,’’ but rather 

the ARPA permit that must be 

consistent with NAGPRA. This is 

supported by the NAGPRA legislative 

history. The Senate Indian Affairs 

Committee specifically noted that it 

‘‘[intended] the notice and permit 

provisions of this section to be fully 

consistent with the provisions of 

[ARPA]’’ (S. Rpt. 101–473, at 7). 

Likewise, the House Committee on 

Interior and Insular Affairs, in 

discussing the stopping of work for an 

inadvertent discovery, noted that, 

‘‘[a]lthough a specific time limit was not 

added here, the Committee does intend 

to protect the remains and objects found 

and does not intend to weaken any 

provisions of other laws, such as 

[ARPA], regarding similar situations.’’ 

Like the Senate Committee, the House 

Committee also stated that, 

‘‘[s]ubsection (c) provides that items 

covered by this Act can be excavated 

from Federal or [T]ribal land if proof 

exists that a permit has been acquired 

under Section 4 of the [ARPA]’’ (H. Rpt. 

101–877, at 15 and 17). 

Therefore, the provisions of ARPA, 

including the scope of public land and 

Indian land, are not affected by 

NAGPRA. So, the terms ‘‘ARPA Indian 

land’’ and ‘‘ARPA public land’’ are 

defined in these regulations using the 

exact same definitions of ‘‘Indian land’’ 

and ‘‘public land’’ in ARPA, including 

use of the term ‘‘individual Indian,’’ 

which is used in ARPA to denote land 

that is owned by an individual Indian, 

who may or may not be a ‘‘lineal 

descendant’’ as defined in NAGPRA. 

The protection of the scope of both 

statutes is reflected in these regulations 

by the requirement that ARPA permits 

are issued for NAGPRA excavations just 

as they are for ARPA excavations, 

keeping the full protections of each 

statute in place, as Congress intended. 


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30. Comment: We received 39 

comments on the definition of 

‘‘consultation.’’ Of that total, two 

comments objected to the definition 

because ‘‘to the maximum extent 

possible’’ was a vague and troubling 

standard. These two comments also 

objected to the use of consensus and 

requested it be removed or made a 

recommendation rather than a 

requirement because, as one comment 

stated, ‘‘it is not within the ability of 

museums to seek consensus or mediate 

potential disagreements among 

sovereign nations during the 

consultation process’’ (NPS–2022– 

0004–0136). In addition, one comment 

didn’t object to the definition but 

requested clarification as to whether 

‘‘seek consensus’’ would mean 

museums and Federal agencies must 

ensure responses are received from all 

parties invited to consult. 

On the other hand, nine comments 

supported the definition as proposed 

while 27 comments supported the 

definition but suggested changes to 

strengthen it. Most of these comments 

suggested changing ‘‘seek consensus’’ to 

‘‘achieve’’ or ‘‘strive for’’ consensus, 

replacing ‘‘incorporating’’ with 

‘‘deferring to,’’ replacing ‘‘to the 

maximum extent possible’’ with ‘‘as the 

Indian Tribe or Native Hawaiian 

organization understands them,’’ or 

removing ‘‘to the maximum extent 

possible.’’ A few comments suggested 

adding that consultation is between 

equal parties or that it must be 

conducted in good faith. A few 

comments suggested including a 

requirement for museum or Federal 

agency decision-makers to be present at 

consultation, for consultation to be 

continual, or to add ‘‘transparent’’ and 

‘‘formal’’ to the definition. One 

comment renewed a request to use the 

definition of consultation in 36 CFR part 

800. 

DOI Response: Consultation is a 

critical, central, and continual part of 

the systematic processes for disposition 

or repatriation provided by the Act and 

these regulations. However, neither the 

Act nor the existing regulations define 

consultation. Earlier drafts of these 

regulations drew directly on 

Congressional report language that 

‘‘consultation’’ under NAGPRA means 

‘‘the open discussion and joint 

deliberations with respect to potential 

issues, changes, or actions by all 

interested parties’’ (H. Rpt. 101–877, at 

16). Specific to the inventory, Congress 

emphasized the need for ‘‘cooperative 

exchange of information between Indian 

[T]ribes or Native Hawaiian 

organizations and museums regarding 

objects in museum collections’’ (S. Rpt. 

101–473, at 8). In the proposed 

regulations, we added specific types of 

information that are exchanged during 

consultation (identifications, 

recommendations, and Native American 

traditional knowledge). We also drew 

language from other definitions for 

consultation found in 36 CFR part 800, 

Executive Order 13175, and draft 

guidance and language that became the 

November 2022 White House 

memorandum on Uniform Standards for 

Tribal Consultation. 

In response to comments that objected 

to the proposed definition, we have 

removed ‘‘to the maximum extent 

possible’’ and clarified the goal of 

consultation is to strive for consensus, 

agreement, or mutually agreeable 

alternatives. We did not and do not 

intend for ‘‘consensus’’ to imply 

museums or Federal agencies are 

required to mediate potential or even 

actual disagreements among lineal 

descendants, Indian Tribes, or NHOs. 

Likewise, ‘‘consensus’’ does not require 

a museum or Federal agency receive a 

response from every invited consulting 

party before it can proceed. The 

consultation record should include 

efforts to invite consulting parties. 

When consultation does not result in 

consensus, agreement, or mutually 

agreeable alternatives, the consultation 

record must describe the concurrence, 

disagreement, or nonresponse of the 

consulting parties. 

In response to comments that 

requested strengthening the definition 

for consultation, we have revised the 

second half of the sentence to better 

reflect the goals of consultation. We 

have added ‘‘good faith’’ to the 

definition to ensure honest and fair 

consideration of all points of view and 

removed it from each of the regulatory 

steps on consultation. We have 

expanded the definition to clearly 

identify the goals of consultation, 

drawing on other sources suggested by 

the comments. ‘‘Seek, discuss, and 

consider the views of all parties’’ comes 

from language in 36 CFR part 800.16. 

Although we received several comments 

requesting we change ‘‘seek’’ to 

‘‘achieve,’’ we have used ‘‘strive for’’ 

which was suggested by some 

comments and is found in the 

November 2022 White House 

memorandum on Uniform Standards for 

Tribal Consultation. We feel this change 

better reflects the goal of consultation 

and is stronger than ‘‘seek consensus’’ 

but still reflects consensus may not be 

achieved. We have also added to the 

goal of consensus ‘‘agreement’’ and 

‘‘mutually acceptable alternatives.’’ 

Although we received several comments 

requesting we add deference to this 

definition, we have instead added that 

consultation enables consideration of 

the kinds of information that can be 

provided by lineal descendants, Indian 

Tribes, and NHOs. This replaces the 

more limited list of information in the 

proposed regulations, and we expect it 

will provide a more robust and clearer 

record of information shared by lineal 

descendants, Indian Tribes, and NHOs 

during consultation. 

In response to all the comments and 

as noted elsewhere, when consultation 

does not result in consensus, agreement, 

or mutually agreeable alternatives, the 

consultation record must describe the 

concurrence, disagreement, or 

nonresponse of the consulting parties. 

Although a few comments suggested we 

require in the definition that decision 

makers attend consultations, we have 

not included this in these regulations. 

We believe this requirement may not fit 

every situation and might end up 

delaying or eliminating the efficiencies 

of these regulations. Rather, we note 

that when consultation does not result 

in consensus, agreement, or mutually 

acceptable alternatives, consulting 

parties may wish to involve decision 

makers from all parties to see if a 

resolution can be found. 

Lastly, we note that consultation as 

defined here is different than 

consultation defined in other contexts, 

especially consultation between a 

Federal agency and an Indian Tribe or 

NHO. For purposes of disposition or 

repatriation, Federal agencies are 

required to comply with this definition 

of consultation as well as any applicable 

policy on government-to-government/ 

sovereign consultation that would apply 

in all contexts. For purposes of 

repatriation, we cannot require 

museums to conduct the same level of 

consultation that would be required for 

a Federal agency. We feel this definition 

of consultation provides requirements 

that can be met by both museums and 

Federal agencies, fills in a missing piece 

of the Act and the existing regulations, 

and ensures consultation remains a 

critical, central, and continual part of 

the systematic processes for disposition 

or repatriation. 

31. Comment: We received 20 

comments on the definition of ‘‘cultural 

item.’’ Of that total, 16 comments 

suggested changes to the definition 

while four comments supported it. Four 

comments stated that changing the 

definition of cultural item to exclude 

human remains exceeded the 

Secretary’s authority. One comment 

objected to the definition without 

further request for changes. One 

comment suggested a grammatical 

change. One comment suggested 


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cultural item be broadened to include 

documents and records (including 

photographs) associated with human 

remains or cultural items to ensure 

repatriation of those documents and 

records. Six comments requested the 

definition of cultural items be expanded 

to require Tribal consultation. The 

comments pointed out that the 

definitions in the Act ‘‘depend in part 

on [T]ribal use and cultural significance. 

25 U.S.C. 3001(3). Courts have clarified 

that Indian Tribes play a role in 

determining whether items possess the 

requisite cultural significance to meet 

NAGPRA’s definitions, especially 

regarding ‘cultural patrimony.’ See 

United States v. Tidwell, 191 F.3d 976, 

981 (9th Cir. 1999); United States v. 

Corrow, 119 F.3d 796, 805 (10th Cir. 

1997).’’ (see NPS–2022–0004–0119 for 

one of the six comments). Three 

comments objected to the definition as 

proposed because the required 

deference to Indian Tribes and NHOs in 

the regulations and the definitions of 

cultural items had the potential to create 

conflict between types of information or 

among Indian Tribes or NHOs. 

DOI Response: As we stated in the 

proposed regulations, use of the phrase 

‘‘human remains or cultural items’’ is 

responsive to requests of Indian Tribes 

and NHOs. The existing regulations do 

not define ‘‘cultural items’’ but still use 

the term to include human remains. 

This change from ‘‘cultural items’’ to 

‘‘human remains or cultural items’’ is 

only editorial and does not have any 

impact on the applicability or scope of 

these regulations. This editorial change 

is within the Secretary’s authority, as 

the Department asserted in the 1993 

Proposed Rule (58 FR 31122). 

We have not made the requested 

grammatical change (from singular to 

plural) as it is unnecessary in regulatory 

definitions. Throughout these final 

regulations, a singular term includes 

and applies to several persons, parties, 

or things. We cannot expand the 

definition to include documents and 

records (including photographs) as that 

would be inconsistent with the Act. We 

note that requesting documents and 

records (which could include 

photographs) is already provided for in 

§§ 10.9(c)(4) and 10.10(c)(4). Under the 

Act and these regulations, lineal 

descendants, Indian Tribes, and NHOs 

have a right to request records, 

catalogues, relevant studies, or other 

pertinent data (25 U.S.C. 3003(b)(2) and 

25 U.S.C. 3004(b)(2)), and museums and 

Federal agencies are required to share 

that information (25 U.S.C. 3005(d)). As 

required by the Act, additional 

information is only provided upon 

request of an Indian Tribe or NHO, and 

we cannot require documents and 

records be provided by including these 

in the definition of cultural items. We 

advise lineal descendants, Indian 

Tribes, and NHOs to make their requests 

as broad as possible to ensure all 

information about cultural items, 

including digital data, is provided. 

Regarding the request to strengthen 

the definition, we are unable to change 

‘‘according to’’ to ‘‘as determined by’’ as 

it would be inconsistent with the Act. 

Museums and Federal agencies are 

responsible for making determinations 

under the Act and these regulations, but 

must do so after consulting with lineal 

descendants, Indian Tribes, and NHOs. 

We have changed the order of the 

sentence to reflect the importance of 

Native American traditional knowledge 

(which includes customs and traditions) 

in this definition. 

We disagree that the definition is 

over-broad, a reversal of Congressional 

intent, or contrary to explicit statements 

in the Congressional record. Deference 

to Native American traditional 

knowledge is necessary to ensure the 

rights of lineal descendants, Indian 

Tribes, and NHOs the Act recognizes. 

The addition of ‘‘according to Native 

American traditional knowledge’’ in this 

definition is to ensure meaningful 

consideration of this information during 

consultation. 

We believe this addition to the 

various definitions of cultural items will 

lead to more informed decision-making 

and help to avoid the lengthy and costly 

delays in disposition or repatriation. In 

crafting the definitions of cultural items, 

Congress clearly intended that the 

definitions ‘‘will vary according to the 

[T]ribe, village, or Native Hawaiian 

community’’ (S. Rpt. 101–473, at 4). 

Consultation, which is required 

throughout the Act prior to any 

determination, is how an Indian Tribe 

or NHO shares the information needed 

to identify a cultural item. 

32. Comment: We received 14 

comments on the definition of 

‘‘custody.’’ Of that total, nine comments 

suggested changes to the definition 

while five comments supported it. Eight 

comments recommended deleting this 

definition and replacing it with the 

concept of possession in the definition 

of ‘‘possession or control.’’ One 

comment recommended replacing the 

term ‘‘sufficient interest’’ with the term 

‘‘legal authority.’’ 

DOI Response: We have not made 

changes to this definition. We cannot 

replace this definition with an 

expanded definition for ‘‘possession or 

control,’’ as discussed in the response to 

comments on that definition (see 

comment 49). Custody without 

‘‘possession or control’’ is a distinct 

concept from ‘‘possession or control’’ 

itself. This distinct concept requires 

definition to implement certain 

requirements, including a duty of care 

and certain reporting requirements. 

Further, we did not replace the term 

‘‘sufficient interest,’’ which is a 

threshold determination that museums 

and Federal agencies must make. 

Changing this phrase would presume 

application of the Act before that 

determination has been made. As 

discussed in more detail in the response 

to comments for the definition of 

‘‘possession or control,’’ whether a 

museum or Federal agency has a 

sufficient interest in an object or item to 

establish ‘‘possession or control’’ is a 

legal determination that must be made 

on a case-by-case basis. 

33. Comment: We received two 

comments requesting changes to the 

definition of ‘‘discovery.’’ One comment 

raised a concern that removal of human 

remains or cultural items from Federal 

or Tribal lands is either excavation or 

theft, not a discovery. One comment 

questioned why the word ‘‘inadvertent’’ 

is no longer used with the word 

‘‘discovery.’’ 

DOI Response: We understand the 

concern but cannot make the requested 

change to eliminate ‘‘removing’’ from 

the definition of discovery and still 

ensure that human remains or cultural 

items are protected on Federal or Indian 

lands under these regulations. As one 

comment notes, an intentional removal 

without a written authorization for an 

excavation could violate other Federal 

laws, depending on the circumstances. 

These regulations do not replace or 

supplant the other protections available 

on Federal or Tribal lands. Rather this 

definition and these regulations provide 

a process for the disposition of those 

human remains or cultural items that 

may be discovered. 

The definition of discovery includes 

both inadvertent and intentional 

discovery of human remains or cultural 

items. This ensures that any human 

remains or cultural items are subject to 

these regulations, regardless of how they 

were discovered. 

34. Comment: We received seven 

comments requesting clarification of the 

definition of ‘‘Federal lands.’’ Four 

comments did not consider the 

definition to be sufficiently clear or 

instructive to Federal agencies. One 

comment noted that the definition 

should include lands leased by the 

Federal government. One comment 

noted that the definition could impact 

museum collections under Subpart C. 

One comment noted that the definition 

should include language to provide for 


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the protection and disposition of Native 

American children buried at Indian 

boarding schools on lands not owned or 

controlled by the Federal Government, 

but where the Indian boarding school 

was operated by or for the U.S. 

Government. 

DOI Response: We have not made 

these changes. Whether a Federal 

agency’s control of the lands on which 

it conducts it programs or activities is 

sufficient to apply these regulations 

depends on the circumstances and 

scope of that Federal agency’s authority, 

and on the nature of State and local 

jurisdiction. Because of the wide array 

of agency-specific authorities that can 

establish federally controlled lands, the 

Federal agency officials must make such 

determinations on a case-by-case basis. 

In some circumstances, the definition 

may include lands leased by the Federal 

agency, depending on the nature of that 

lease, the Federal agency’s statutory 

authority, and other case-by-case 

circumstances. The Department cannot 

instruct Federal agencies any further on 

their own circumstances or statutory 

authorities, and recommends Federal 

agencies consult with their legal counsel 

in making such determinations. The 

definition is not applied to museum 

collections in Subpart C. 

Regarding lands on which Native 

American children were buried at 

Indian boarding schools, we cannot 

amend the regulatory definition of 

‘‘Federal lands’’ as requested. Congress 

specifically and explicitly defined 

Federal lands based on control or 

ownership, not on receipt of Federal 

funds (as it did in the definition of a 

‘‘museum’’). Thus, ‘‘[w]e have here an 

instance where the Congress, 

presumably after due consideration, has 

indicated by plain language a preference 

to pursue its stated goals . . . . In such 

case, neither [a] court nor the agency is 

free to ignore the plain meaning of the 

statute and to substitute its policy 

judgment for that of Congress’’ 

(Alabama Power Co. v. United States 

EPA, 40 F. 3d 450, 456 (D.C. Cir. 1994); 

United Keetoowah Band of Cherokee 

Indians Of Okla. v. United States HUD, 

567 F. 3d 1235, 1243 (10th Cir. Okla. 

2009) (same); Chevron U.S.A. v. Natural 

Resources Defense Council, 467 U.S. 

837, 842–43 (1984) (‘‘If the intent of 

Congress is clear, that is the end of the 

matter; for the court, as well as the 

agency, must give effect to the 

unambiguously expressed intent of 

Congress’’)). However, the Department 

does encourage the custodians of 

records from boarding schools not on 

Federal or Tribal lands, and the current 

owners of those boarding schools and 

cemeteries, to fully consult with lineal 

descendants, Indian Tribes, and NHOs 

on identification, disinterment, and 

repatriation of Native American 

children. The Department stands ready 

to assist lineal descendants, Indian 

Tribes, and NHOs to the fullest extent 

of its authority. 

35. Comment: We received two 

comments suggesting changes to the 

definition of Federal agency to include 

the Smithsonian Institution. 

DOI Response: We cannot make this 

change. The Act expressly excludes the 

Smithsonian Institution from the 

definition of Federal agency. 

36. Comment: We received 22 

comments on the definition of ‘‘funerary 

object.’’ Of that total, 8 comments 

supported the definition in the 

proposed regulations while 14 

comments requested changes to it. Two 

comments objected to the definition as 

being too expansive by replacing 

‘‘preponderance of the evidence’’ in the 

existing regulations with ‘‘according to’’ 

which the comments believed would 

create ambiguity and confusion in 

applying the definition. On the other 

hand, two comments suggested 

changing ‘‘according to’’ to be ‘‘as 

determined by’’ to further strengthen the 

deference to lineal descendants, Indian 

Tribes, and NHOs on identification of 

funerary objects. One comment 

suggested integrating the definition of 

funerary object in to two separate 

definitions for associated and 

unassociated funerary objects. This 

same comment raised concerns about 

the example provided in the proposed 

regulations. One comment expressed 

frustration with the use of acronyms for 

funerary objects which the comment 

stated are offensive and dismissive. 

Six comments provided an extensive 

argument and requested removing the 

temporal limitation on human remains 

related to associated funerary object 

(‘‘are, or were after November 16, 1990’’) 

(see NPS–2022–0004–0119 for one of 

the six comments). One comment 

requested clarification of and emphasis 

on the location of human remains for 

unassociated funerary objects. One 

comment objected to the statement that 

a burial site could ever be ‘‘no longer 

extant.’’ 

DOI Response: We reemphasize that 

the proposed revisions to the existing 

regulations, specifically the removal of 

‘‘preponderance of the evidence’’ from 

the definition of funerary object, is to 

align the definitions in the regulations 

with those in the Act. The existing 

regulations limit the definition of a 

funerary object by including the 

statutory language intended to apply 

only to unassociated funerary objects. In 

1995, the Department accepted the 

suggestion to combine the definitions of 

associated funerary objects and 

unassociated funerary object into a 

single definition of funerary object and 

in doing so, attached the statutory 

language for unassociated funerary 

object to all funerary objects. In 1995, 

the Department asserted: 

The statutory language makes it clear that 

only those objects that are associated with 

individual human remains are considered 

funerary objects. The distinction between 

associated and unassociated funerary objects 

is based on whether the individual human 

remains are in the possession or control of a 

museum or Federal agency. (60 FR 62137). 

The Department reiterated and 

clarified this statement in the 2022 

Proposed Rule, ‘‘. . . determining if the 

funerary object is associated or 

unassociated does not require 

identifying the specific individual with 

which the object was placed, but rather, 

only requires identifying the location of 

the related human remains’’ (87 FR 

63211). The intent of revising this 

definition is to clarify long-standing 

confusion over the distinction between 

associated and unassociated funerary 

objects and align the definitions with 

those in the Act. We have retained the 

single defintion for funerary object and 

the two related definitions of associated 

or unassociated funerary object as we 

believe it clarifies the definitions. 

It is important to note ‘‘individual 

human remains’’ as used in the Act 

means the human remains of an 

individual or individuals. We have 

removed ‘‘individual’’ from the 

definition of funerary object to simplify 

and clairfy the definition. The Act does 

not require a funerary object be 

identified to a specific individual. 

Rather, a group of individuals may be 

related to a single funerary object and 

the object may be a funerary object 

without identifying specifically with 

which individual the object was placed. 

We have retained the phrase ‘‘with or 

near’’ as we believe it approporiately 

expands the definition of what may be 

a funerary object. As noted in the 1995 

Final Rule, ‘‘[t]he clause was included 

to accommodate variations in Native 

American death rites or ceremonies’’ (60 

FR 62138). We have retained the 

requirement for the object to be 

‘‘intentionally’’ placed. As noted in the 

1995 Final Rule, ‘‘[t]he term is included 

to emphasize the intentional nature of 

death rites or ceremonies. Items that 

indadvertently came into proximity or 

contact with human remains are not 

considered funerary objects’’ (60 FR 

62137). For funerary objects, broad 

categorical identifications, including 

everything from a burial site or specific 

area, may meet the definition of a 


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funerary object depending on the 

information available and the results of 

consultation. As noted in the example 

in the 2022 Proposed Rule, it may be 

reasonable to believe an object was 

placed intentionally in a location 

because of the human remains even if 

the object was placed there many 

centuries after the human remains (87 

FR 63211). As one comment suggested, 

this may result in the funerary object 

having a different cultural affiliation 

than the human remains. We have 

revised the definition of funeary object 

to ensure, as in the Act, that cultural 

affiliation is not a required element to 

meet the definition of a funerary object. 

Table 3 compares the definition of 

‘‘funerary object’’ from the Act, the 

existing regulations, and this final rule 

and indicates the changes to the 

definition in the Act by underline 

(additions), strikethrough (removals), 

and moved text (brackets). 

Regarding the request to strengthen 

the definition, we are unable to change 

‘‘according to’’ to ‘‘as determined by’’ as 

it would be inconsistent with the Act. 

Museums and Federal agencies are 

responsible for making determinations 

under the Act and these regulations, but 

must do so after consulting with lineal 

descendants, Indian Tribes, and NHOs. 

We have changed the order of the 

sentence to reflect the importance of 

Native American traditional knowledge 

(which includes customs and traditions) 

in this definition. 

We disagree that the definition is 

over-broad, a reversal of Congressional 

intent, or contrary to explicit statements 

in the Congressional record. Deference 

to Native American traditional 

knowledge is necessary to ensure the 

rights of lineal descendants, Indian 

Tribes, and NHOs the Act recognizes. 

The addition of ‘‘according to Native 

American traditional knowledge’’ in this 

definition is to ensure meaningful 

consideration of this information during 

consultation. 

We believe this addition to the 

various definitions of cultural items will 

lead to more informed decision-making 

and help to avoid the lengthy and costly 

delays in disposition or repatriation. In 

crafting the definitions of cultural items, 

Congress clearly intended that the 

definitions ‘‘will vary according to the 

[T]ribe, village, or Native Hawaiian 

community’’ (S. Rpt. 101–473, at 4). 

Consultation, which is required 

throughout the Act prior to any 

determination, is how an Indian Tribe 

or NHO shares the information needed 

to identify a cultural item. 

In response to the extensive 

comments on the definition of 

‘‘associated funerary object,’’ we 

appreciate and share the concern 

regarding the inappropriate and 

inaccurate misreading of NAGPRA. We 

clearly and affirmatively state that the 

Act and these regulations apply to any 

museum or Federal agency that has 

possession or control of Native 

American human remains or cultural 

items. Identification of where or when 

the human remains or cultural items 

were removed may impact which entity 

has possession or control, but where or 

when the human remains or cultural 

items were removed does not impact the 

identification of human remains or 

cultural items for purposes of these 

definitions. 

We have revised the definition as 

requested to remove the date and avoid 

possible misunderstanding. The Act 

requires that for a funerary object to be 

an associated funerary object, the 

related human remains must be 

‘‘presently’’ in the possession or control 

of a museum or Federal agency, but the 

Act does not require the human remains 

to be in the possession or control of the 

same museum or Federal agency as the 

associated funerary object. The 1995 

Final Rule clarified that when another 

museum or Federal agency has 

possession or control of the related 

human remains, the related funerary 

objects are still ‘‘associated funerary 

objects’’ (60 FR 62138). By using 

‘‘presently’’ in the Act, Congress 

intended to distinguish associated 

funerary objects from unassociated 

funerary objects based on the location of 

the related human remains. Where 

human remains and funerary objects 

were removed from a burial site and 

when the location of those human 

remains is known, the funerary objects 

are associated funeary objects. Even if 

the human remains were removed with 

the funerary objects and the human 

remains are properly repatriated and 

reburied, the associated funerary objects 

do not lose their status as associated 

funerary objects. Associated funeary 

objects are still associated to the human 

remains as long as the location of the 

human remains is known. 

Regarding the other comments, we 

reiterate that when the location of 

human remains related to a funerary 

object is unknown, the funerary objects 

are unassociated funerary objects but are 

still funeray objects subject to the Act 

and these regulations. Additional 

information about unassociated funerary 

objects is necessary to satisfy the 


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Table 3: Comparison of "funerary object" definition . 

Act . . . as part of the death rite or ceremony of a culture, are reasonably 

25U.S.C. believed to have been placed with individual hum.an remains either 

3001(3)(A)-(B) at the time of death or later ... 

Existing ... as part of the death rite or ceremony of a culture, are reasonably 

§10.2(d)(2) believed to have been placed intentionally [ at the time of death or 

laterl with or near individual hum.an remains . 

Final . . . reasonably believed to have been placed intentionally with or 

§10.2 Funerary near iedi:rliEluel hum.an remains. A funerary object is any object 

object connected, either at the time of death or later, as p8ft ef the to a 

[death rite or ceremony of a] Native American culture according to 

the Native American traditional knowledge of a lineal descendants 

Indian Tribe. or Native Hawaiian onzanization. 
Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations 86473 

definition and meet the criteria for 

disposition or repatriation of the 

unassociated funerary objects. For 

example, an object that was 

intentionally placed with or near human 

remains and is connected to a death rite 

or ceremony of a Native American 

culture meets the definition of a 

funerary object. If the location of the 

related human remains is unknown, the 

funerary object meets the definition of 

unassociated funerary object. If cultural 

affiliation of the unassociated funerary 

object is reasonably identified by the 

geographical location where the 

unassociated funerary object was 

removed, the unassociated funerary 

object may satisfy the criteria for 

repatriation, provided the museum or 

Federal agency cannot prove it has a 

right of possession to the unassociated 

funerary object. 

We understand the comment that in 

some Native American traditions a 

burial site never ceases to exist, we have 

retained the option for an unassociated 

funerary object to be identified when in 

a specific area, such as a flood plain or 

a shore line, the burial site is no longer 

extant. Lastly, we appreciate and will 

strive to no longer use acronyms for 

associated funerary objects or 

unassociated funerary objects that may 

be offensive. We encourage all parties to 

discuss appropriate terminology during 

consultation to recognize and reflect the 

significance of human remains and 

cultural items to lineal descendants, 

Indian Tribes, and NHOs. 

37. Comment: We received two 

comments on the definition of ‘‘holding 

or collection,’’ both supporting the 

definition as proposed. 

DOI Response: These regulations 

retain this definition to assist all parties 

with identifying the application of the 

Act and these regulations. 

38. Comment: We received 37 

comments requesting changes to the 

definition of ‘‘human remains.’’ One 

comment objected to considering 

human remains incorporated into a 

cultural item as the cultural item and 

not human remains. One comment 

requested adding that soil associated 

with burials and likely containing 

human remains be accounted for in this 

definition. Two comments requested we 

remove the sentence on comingled 

material (such as soil or faunal remains) 

being treated as human remains while 

one comment supported it. 

One comment letter stated in five 

separate comments that animal remains 

should be included in the definition of 

human remains or cultural items and a 

Review Committee comment agreed. 

These comments requested animal 

burials be included separately and 

distinctly from cultural items because 

these animals are imbued with the same 

spirit as human remains and, therefore, 

require the same treatment under the 

Act and these regulations. An additional 

comment suggested the Department look 

at incorporating protections for 

ceremonial animal interments. 

Of the total number of comments, 13 

comments requested we expand the 

definition of human remains to include 

casts, 3–D scans, and all other digital 

data. Some of these comments also 

suggested expanding the definition to 

include any information or samples 

taken from an individual, including 

pictures, biological samples, isotope 

readings, soft tissue, and any other 

biological remnants. Some of these 

comments requested we add that any 

data collected directly relating to a 

Native American individual should also 

be considered human remains. A few of 

these comments requested that we 

require museums and Federal agencies 

to provide references to all casts of 

human remains, any replicas from 3–D 

scans, and all other digital data 

produced from human remains or 

cultural items and require consultation 

on the proper treatment of those 

references. The comments also 

requested we add that ‘‘No such casts, 

replicas, or digital data scanned from 

Native American human remains, 

funerary objects, sacred objects or 

cultural patrimony shall be offered for 

sale or exchange without the free, prior, 

and informed consent of the culturally 

affiliated Indian Tribe or Native 

Hawaiian organization. Failure to 

comply shall be deemed a violation of 

NAGPRA.’’ Separately, one comment 

suggested the definition of human 

remains be broadened to include 

documents and records associated with 

human remains or cultural items to 

ensure repatriation of those documents 

and records. 

In addition, 12 comments requested 

we delete from the definition the 

sentence that excludes from the 

definition any human remains or 

portions of human remains that are 

determined to have been freely given or 

naturally shed. 

DOI Response: We understand there is 

a wide variety of opinions on how 

human remains that are incorporated 

into a cultural item might be identified. 

The Department sought input on this 

issue in the 1993 Proposed Rule and 

retained the language in the 1995 Final 

Rule as it was ‘‘recommended by the 

Review Committee to preclude the 

destruction of items that might be 

culturally affiliated with one Indian 

Tribe that incorporated human remains 

culturally affiliated with another Indian 

Tribe.’’ The 1995 Final Rule also noted 

that ‘‘[d]etermination of the proper 

disposition of such human remains 

must necessarily be made on a case-bycase basis’’ (60 FR 62137). In the 2022 

Proposed Rule, we included these two 

ways human remains may be 

incorporated into an object or item to 

ensure, as Congress intended, that 

human remains of any ancestry be 

treated with respect, and any Native 

American human remains must be made 

available for disposition or repatriation. 

We decline to make the requested 

change. 

Regarding an admixture of comingled 

materials, the Act requires identification 

of all human remains in a holding or 

collection, including human remains 

reasonably believed to be comingled 

with other material (such as soil or 

faunal remains). Museums and Federal 

agencies are required to identify these 

comingled materials in its itemized list 

and during consultation should evaluate 

if the entire admixture can be treated as 

human remains. If it is not possible to 

treat the admixture as human remains, 

the record of consultation should 

include the effort to identify a mutually 

agreeable alternative, which may 

include additional handling, with 

consent of the lineal descendant, Indian 

Tribe, or NHO, to separate the human 

remains from other materials. We are 

aware that comingled materials are a 

significant issue for many Indian Tribes, 

NHOs, museums, and Federal agencies. 

The intent of this addition to the 

definition is to ensure these kinds of 

collections are included on an itemized 

list and made available to lineal 

descendants, Indian Tribes, and NHOs 

during consultation and for repatriation. 

The term ‘‘human remains’’ appears 

in the definition section of the Act even 

though it is an undefined term. We have 

defined ‘‘human’’ using the commonly 

understood meaning of the word, i.e., a 

member of the species homo sapiens. 

For this reason, we cannot make the 

requested change to include animal 

burials as a separate and distinct 

category of human remains as that 

would be inconsistent with the Act. We 

note, too, that purposefully buried 

remains that do not include human 

remains are not included in the 

definition of human remains. Other 

kinds of burials and remains that are not 

human remains should be carefully 

considered, through consultation, as 

cultural items. For example, animal 

burials that are not related to the burial 

of human remains and, therefore, are 

not funerary objects, may be needed by 

traditional Native American religious 

leaders for the practice of traditional 

religions and may be sacred objects. 


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We cannot expand the definition of 

human remains to include casts, 3–D 

scans, or other digital data, documents, 

or records as that would be inconsistent 

with the Act. We note that the right to 

request documents and records, which 

could include casts, 3–D scans, 

photographs, digital data, or other 

information, is already provided for in 

§§ 10.9(c)(4) and 10.10(c)(4). Under the 

Act and these regulations, lineal 

descendants, Indian Tribes, and NHOs 

have a right to request records, 

catalogues, relevant studies, or other 

pertinent data (25 U.S.C. 3003(b)(2) and 

25 U.S.C. 3004(b)(2)), and museums and 

Federal agencies are required to share 

that information (25 U.S.C. 3005(d)). We 

advise lineal descendants, Indian 

Tribes, and NHOs to make their requests 

as broad as possible to ensure all 

information about human remains, 

including digital data, is provided. In 

addition, we cannot make the requested 

addition to prohibit the sale or exchange 

of casts, replicas, or digital data of 

human remains as that would be 

inconsistent with the Act. 

We have always interpreted biological 

samples (including DNA), soft tissue, 

and any other biological remnants to be 

within the definition of human remains 

and subject to the Act and these 

regulations. The definition of human 

remains is purposefully broad to ensure 

that ANY physical remains of the body 

of a Native American individual are 

included (with the one exception 

discussed below). In the 1993 Proposed 

Rule, the Department included an 

example clause in the definition of 

human remains as ‘‘including, but not 

limited to bones, teeth, hair, ashes, or 

mummified or otherwise preserved soft 

tissues of a person of Native American 

ancestry’’ (58 FR 31126). In the 1995 

Final Rule, the Department considered 

comments requesting the definition of 

human remains exclude isolated teeth, 

finger bones, cut finger nails, coprolites, 

blood residues, and tissue samples 

taken by coroners. In response, the 

Department stated: 

The Act makes no distinction between 

fully-articulated [sic] burials and isolated 

bones and teeth. Additional text has been 

added excluding ‘‘naturally shed’’ human 

remains from consideration under the Act. 

This exclusion does not include any human 

remains for which there is evidence of 

purposeful disposal or deposition. The 

exemplary clause has been deleted (60 FR 

62137). 

Identification of human remains for 

the purposes of the Act and these 

regulations requires a case-by-case 

assessment, in consultation with lineal 

descendants, Indian Tribes, and NHOs. 

Recent examples have demonstrated 

that the example clause from the 1993 

Proposed Rule is beneficial in 

identifying human remains subject to 

the Act and these regulations, especially 

when it comes to hair samples taken 

from living individuals, coprolites, 

blood residues, tissue samples, and 

DNA extractions. The definition of 

human remains is intentionally broad 

and contains only one exception 

(discussed below). The definition does 

not include a requirement for the 

human remains to be from an 

archeological context, of a certain age, 

or from a deceased person. The 

definition does not exclude human 

anatomical collections used by medical 

schools for training or teaching 

collections. Again, the definition of 

human remains is purposefully broad to 

ensure that ANY physical remains of the 

body of a Native American individual 

are included (with the one exception 

discussed below). 

We appreciate the comments 

requesting removal of the sentence that 

excludes human remains that were 

freely given or naturally shed. We agree 

with the comments of the Review 

Committee that state: ‘‘[a]llowing 

museums and Federal agencies to 

predetermine if such remains were 

freely given or naturally shed and not 

report them in their inventories 

deprives Indian [T]ribes and Native 

Hawaiian organizations with necessary 

information’’ (see NPS–2022–0004– 

0096). However, we disagree that a 

museum or Federal agency should be 

required to complete an inventory for 

human remains that were obtained with 

full knowledge and consent of the 

individual or next of kin. In the 1995 

Final Rule, one comment requested 

clarification if human remains included 

blood sold or given to a blood bank by 

a Native American individual (60 FR 

62137). In the 2010 Final Rule, two 

comments recommended excluding 

human anatomical collections used by 

medical schools for training from the 

definition of human remains. In 

response, the Department stated, 

‘‘[t]hough 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’’ 

(75 FR 12393). 

We have revised the sentence in the 

definition to require a higher standard 

of information for human remains that 

are excluded from the Act and these 

regulations. We agree with the Review 

Committee that a museum or Federal 

agency must be able to prove the 

original acquisition of Native American 

human remains was obtained with the 

full knowledge and consent of the 

individual, next of kin, or the official 

governing body of the appropriate 

Indian Tribe or NHO (see ‘‘right of 

possession’’ 25 U.S.C. 3001(13)). In the 

Act, Congress acknowledged that a right 

of possession is qualified with respect to 

human remains and associated funerary 

objects. Congress did not provide for a 

museum or Federal agency to assert a 

right of possession to human remains 

and associated funerary objects 

identified in an inventory. This 

approach is consistent with Congress’ 

intent to distinguish human remains 

and associated funerary objects from 

cultural items as quasi-property. 

Applicable common law in the United 

States generally accepts that human 

remains and associated burial items 

cannot be ‘‘owned’’ in the same manner 

as conventional property. The Act 

follows the common law by 

distinguishing between the quasiproperty attributes of Native American 

human remains and associated funerary 

objects and the property attributes of 

Native American unassociated funerary 

objects, sacred objects, or objects of 

cultural patrimony. 

In line with applicable common law 

in the United States, Congress stated 

that the original acquisition of Native 

American human remains which were 

exhumed, removed, or otherwise 

obtained with full knowledge and 

consent of the next of kin or the official 

governing body of the appropriate 

Indian Tribe or NHO is deemed to give 

right of possession to those human 

remains. Therefore, these regulations 

cannot require a museum or Federal 

agency to complete an inventory or 

repatriate Native American human 

remains where the museum or Federal 

agency can show it has a right of 

possession. 

For example, when any individual, 

regardless of ancestry, dies, local or 

State law dictates certain actions by law 

enforcement, medical examiners, and 

other local or State officials. Local or 

State law generally requires consent by 

the next of kin prior to any other action 

by the local or State authorities. When 

the deceased individual is Native 

American and when no next of kin is 

ascertainable, the local or State 

authorities may be required to treat the 

individual as human remains under the 

Act and these regulations, unless the 

local or State authorities obtain the full 

knowledge and consent of the official 

governing body of the appropriate 

Indian Tribe or NHO. Coroners, medical 

examiners, and other local or State 

agencies should consider their 

requirements under the Act and these 


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regulations for any Native American 

human remains. 

The Department interprets ‘‘full 

knowledge and consent’’ considering 

the history of Indian country and 

recognizes that ‘‘full knowledge and 

consent’’ does not include ‘‘consent’’ 

given under duress or because of 

bribery, blackmail, fraud, 

misrepresentation, or duplicity on the 

part of the recipient. As such, consent 

in this definition must be shown to have 

been fully free, prior, and informed 

consent. 

39. Comment: We received 24 

comments suggesting changes to the 

definition of ‘‘Indian Tribe.’’ Several of 

the comments relied on the decision 

which held, based on the definition of 

‘‘group’’ in the 1992 regulations at 25 

CFR part 83, an Indian group without 

Federal recognition was an ‘‘Indian 

Tribe’’ for purposes of NAGPRA 

(Abenaki Nation of Mississquoi v. 

Hughes, 805 F. Supp. 234 (D.Vt., 1992), 

aff’d per curiam, 900 F.2d 729 (2nd Cir. 

1993)). Some comments also disagreed 

with the addition of a reference to the 

List Act in this definition, arguing that 

the definition of Indian Tribe under 

NAGPRA is different than the standard 

for inclusion on the list published under 

the List Act. Many of those comments 

requested we reiterate the statutory 

definition verbatim. A few comments 

adamantly opposed any changes to the 

definition of Indian Tribe beyond 

federally recognized Indian Tribes. 

DOI Response: NAGPRA defines 

‘‘Indian [T]ribe’’ as ‘‘any [T]ribe, band, 

nation, or other organized group or 

community of Indians, including any 

Alaska Native village (as defined in, or 

established pursuant to, the Alaska 

Native Claims Settlement Act [43 U.S.C. 

1601 et seq.]), which is recognized as 

eligible for the special programs and 

services provided by the United States 

to Indians because of their status as 

Indians’’ (25 U.S.C. 3001(7) (emphasis 

added)). This definition was based on 

the definition in the Indian SelfDetermination and Education 

Assistance Act (ISDEAA), which defines 

‘‘Indian [T]ribe’’ as ‘‘any Indian [T]ribe, 

band, nation, or other organized group 

or community, including any Alaska 

Native village or regional or village 

corporation as defined in or established 

pursuant to the Alaska Native Claims 

Settlement Act (85 Stat. 688) [43 U.S.C. 

1601 et seq.], which is recognized as 

eligible for the special programs and 

services provided by the United States 

to Indians because of their status as 

Indians’’ (25 U.S.C. 5304(e) (emphasis 

added)). Finally, the List Act requires 

that the Secretary ‘‘publish in the 

Federal Register a list of all Indian 

[T]ribes which the Secretary recognizes 

to be eligible for the special programs 

and services provided by the United 

States to Indians because of their status 

as Indians’’ (25 U.S.C. 5131(a) 

(emphasis added)). 

The Supreme Court of the United 

States recently ruled that the ISDEAA 

definition referred only to federally 

recognized Tribes and Alaska Native 

Corporations (Yellen v. Confederated 

Tribes of the Chehalis Reservation, 141 

S. Ct. 2434 (2021)). The only difference 

between the ISDEAA definition and the 

NAGPRA definition is Congress’s 

intentional deletion of Alaska Native 

Corporations (see Statement of 

Representative Bill Richardson, 136 

Cong. Rec. 36815). Therefore, under the 

Supreme Court’s reasoning on ISDEAA, 

the NAGPRA definition only applies to 

federally recognized Indian Tribes. 

Because Congress also used the same 

language ‘‘eligible for the special 

programs and services’’ in both 

NAGPRA and the List Act, the list of 

federally recognized Tribes is the list of 

Indian Tribes for the purposes of 

NAGPRA. 

The Abenaki decision is not 

persuasive. First, the decision not only 

precedes the List Act, but also solely 

relies on a definition that no longer 

appears in the 25 CFR part 83 

regulations. Second, the decision 

focuses on that definition while 

ignoring the rest of the NAGPRA 

definition concerning recognition of 

eligibility for services. Finally, it is a 

Tribal-specific analysis that has not 

been followed by any other court. In 

contrast, the list of federally recognized 

Tribes under the List Act is based on the 

current recognition regulations in part 

83, which are specifically designed ‘‘for 

the Department to use to determine 

whether a petitioner is an Indian [T]ribe 

eligible for the special programs and 

services provided by the United States 

to Indians because of their status as 

Indians.’’ 25 CFR 83.2. The plain 

language congruence of the ISDEAA 

definition, the NAGPRA definition, and 

the purpose and foundation of the list 

under the List Act, as confirmed by the 

Yellen decision, are more persuasive 

than the Abenaki case, and fully support 

the definition in these regulations. The 

definition in these regulations has not 

been changed. The Department believes 

it is important to codify this definition 

and clarify any continuing 

misinterpretation or misunderstanding. 

Throughout these final regulations, 

the term ‘‘Indian Tribe’’ is used in the 

singular form, but it is expected that 

multiple Indian Tribes may meet the 

criteria under this part for disposition or 

repatriation of the same human remains 

or cultural items. Any Indian Tribe with 

cultural affiliation may submit a claim 

for disposition or a request for 

repatriation. Two or more Indian Tribes 

may agree to joint disposition or joint 

repatriation of human remains or 

cultural items. Claims or requests for 

joint disposition or joint repatriation 

should be considered a single claim or 

request and not competing claims or 

requests. 

40. Comment: We received three 

comments on the definition of 

‘‘inventory.’’ Of that total, two 

comments suggested changes to the 

definition while one comment 

supported it as proposed. The 

supportive comment felt the revision 

was an excellent clarification and would 

streamline the inventory and overcome 

a barrier to repatriation. One comment 

adamantly opposed revision of the 

existing regulatory definition, 

specifically the removal of an ‘‘item-byitem description’’ requirement. One 

comment asked if the definition meant 

that (1) an inventory is not complete 

unless it is informed by consultation 

and (2) an initial itemized list could not 

be submitted to National NAGPRA if 

consultation had not occurred. 

DOI Response: We decline to make 

changes to the definition. Our intent is 

to clarify and simplify what an 

inventory must include both in the 

definition and in the § 10.10. We are 

aware that the existing regulatory 

definition and related text have been a 

barrier to expeditious repatriation. On 

the other hand, we know that a lack of 

transparency and accuracy in 

inventories is also a barrier to 

repatriation. 

The Act defines an inventory as ‘‘a 

simple itemized list that summarizes the 

information called for by this section’’ 

(25 U.S.C. 3003(e)). The information 

called for in an inventory is information 

to identify (1) ‘‘each Native American 

human remains or associated funerary 

objects and the circumstances 

surrounding its acquisition’’ (25 U.S.C. 

3003(d)(2)(A)); and (2) ‘‘the geographical 

and cultural affiliation of such item[s]’’ 

(25 U.S.C. 3003(a)). An inventory only 

pertains to human remains and 

associated funerary objects (25 U.S.C. 

3003(a)). The inventory is also defined 

by what is not an inventory; namely, a 

summary, which is ‘‘in lieu of an objectby-object inventory’’ (25 U.S.C. 

3004(b)(1)(A)) and pertains to 

‘‘unassociated funerary objects, sacred 

objects, or objects of cultural 

patrimony’’ (25 U.S.C. 3004(a)). 

The existing regulations provide a 

short definition for an inventory: ‘‘the 

item-by-item description of human 

remains and associated funerary 


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objects,’’ but also provide a more 

detailed list of what an inventory must 

include in § 10.9. As noted in the 1995 

Final Rule, the difference between a 

summary and an inventory ‘‘reflects not 

only their subject matter, but also their 

detail (brief overview vs. item-by-item 

list), and place within the process. 

Summaries represent an initial 

exchange of information prior to 

consultation while inventories are 

documents completed in consultation 

with Indian [T]ribe officials and 

representing a decision by the museum 

official or Federal agency official about 

the cultural affiliation of human 

remains and associated funerary 

objects’’ (60 FR 62140). 

We are keenly aware of the preference 

of many, if not most, Indian Tribes and 

NHOs to have all human remains and 

associated funerary objects identified in 

order to repatriate them together. In 

reviewing the comments, the goal of 

both the supporting comment and the 

opposed comment is the same: allow 

lineal descendants, Indian Tribes, and 

NHOs to dictate the level of 

documentation or collections review 

required for an inventory. We agree, and 

changes to § 10.1(d) Duty of care are 

specifically meant to achieve this goal. 

The final regulations require a museum 

or Federal agency to obtain free, prior, 

and informed consent prior to any 

exhibition of, access to, or research on 

human remains or cultural items. 

In response to the questions asked, an 

inventory is not complete until a 

museum or Federal agency initiates 

consultation with lineal descendants, 

Indian Tribes, and NHOs and consults 

with any consulting party that wishes to 

do so. Only completed inventories that 

contain the names of consulting parties 

or those invited to consult should be 

submitted to the National NAGPRA 

Program. If there is no response to the 

invitation to consult, the museum or 

Federal agency must still complete or 

update the inventory by the required 

deadlines. 

41. Comment: We received eight 

comments on the definition of ‘‘lineal 

descendant.’’ Of that total, four 

comments suggested changes to the 

definition while four comments 

supported it as proposed. One comment 

stated common-law system of descent is 

not clear and the regulations should 

revert to the existing language. One 

comment requested a grammatical 

change and one comment asked what 

‘‘known individual’’ means. One 

comment requested clarification if a 

museum or Federal agency must 

confirm the identity of a lineal 

descendant with an Indian Tribe with 

cultural affiliation or if the presence of 

a lineal descendant meant consultation 

with an Indian Tribe was not required. 

DOI Response: The existing 

regulations refer to the ‘‘common law 

system of descendance’’ and ‘‘known 

Native American individual’’ in the 

definition for lineal descendant. The 

regulatory text adds ‘‘This standard 

requires that the earlier person be 

identified as an individual whose 

descendants can be traced.’’ The 

common law system of descent means 

the customary practice of tracing 

ancestry to a person’s parents, 

grandparents, great-grandparents, and so 

on. It does not indicate any kind of 

precedent is set by previous 

repatriations. There is a requirement for 

the deceased individual to be known, 

but that does not mean a named 

individual is the only way a person 

could be known. Rather, it indicates that 

the deceased individual must be 

identified in some way to trace ancestry 

between that individual and the living 

individual. We have removed the 

limiting gendered language from the 

definition as requested by one comment. 

Both the existing regulations and this 

final rule require museums and Federal 

agencies to initiate consultation with 

both lineal descendants and Indian 

Tribes or NHOs with potential cultural 

affiliation and to provide the names of 

all identified consulting parties. The 

existing regulations require a museum 

or Federal agency convey information to 

both a lineal descendant, if known, and 

to the Indian Tribe or NHO with 

cultural affiliation, when the inventory 

results in a determination that the 

human remains are of an identifiable 

individual. In the proposed regulations 

and this final rule, this requirement is 

a part of the information shared and 

requested during the consultation 

process. We cannot require a museum or 

Federal agency to verify the identity of 

a lineal descendant with an Indian Tribe 

or NHO. The statute gives lineal 

descendants priority over Indian Tribes 

or NHOs. Establishing a system in 

which verification of lineal descendants 

is through Indian [T]ribes or NHOs 

could be detrimental to the rights of 

lineal descendants, particularly those 

that are not members of an Indian 

[T]ribe or NHO. Given the diversity of 

ways in which a lineal descendant may 

be traced, we cannot require certain 

types of documentation or evidence 

needed to establish lineal descent. 

Museums and Federal agencies must 

determine if a request from a lineal 

descendant provides sufficient 

information and respond to the request 

accordingly. 

Throughout these final regulations, 

the term ‘‘lineal descendant’’ is used in 

the singular form, but it is expected that 

multiple lineal descendants may meet 

the criteria under this part for 

disposition or repatriation of the same 

human remains, funerary objects, or 

sacred objects. Any lineal descendant 

may submit a claim for disposition or a 

request for repatriation for human 

remains, funerary objects, or sacred 

objects. Two or more lineal descendants 

may agree to joint disposition or joint 

repatriation of human remains, funerary 

objects, or sacred objects. Claims or 

requests for joint disposition or joint 

repatriation should be considered a 

single claim or request and not 

competing claims or requests. 

42. Comment: We received one 

comment suggesting a review of the 

involvement of non-profits in museum 

funding and a change to the definition 

of ‘‘museum’’ that would replace 

‘‘institution of higher learning’’ with 

‘‘all educational institutions.’’ 

DOI Response: The requested review 

is outside of the scope of this regulatory 

action. We have not made the requested 

change because this part of the 

definition comes directly from the Act, 

which is already sufficiently inclusive 

of all educational institutions that have 

possession or control of human remains 

or cultural items and receive Federal 

funds. 

43. Comment: We received four 

comments suggesting changes to the 

definition of ‘‘Native American.’’ Two 

comments expressed concern over the 

inclusion in this definition of Indian 

groups without Federal recognition. One 

comment requested we require 

consultation with Indian Tribes or 

NHOs prior to any determination that 

human remains or cultural items are 

Native American. One comment 

expressed concern that, as written, this 

definition might exclude cross-border 

indigenous peoples or cultures who are 

indigenous to the United States but also 

to Canada, Mexico, or Russia. 

DOI Response: We do not intend to 

include Indian groups without Federal 

recognition in the definition of Tribe (as 

noted elsewhere in the definition of 

Indian Tribe). In determining whether 

human remains or cultural items are 

Native American, we cannot require 

consultation prior to compiling a 

summary of cultural items or an 

itemized list of human remains and 

associated funerary objects under 

Subpart C, but we can and do require 

consultation prior to any determination 

of cultural affiliation or decision on a 

request for repatriation. When 

compiling a summary of cultural items 

or an itemized list of human remains 

and associated funerary objects, a 

museum or Federal agency should 


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include any potential Native American 

human remains or cultural items to 

allow for further consultation. 

The Act limits the definition of Native 

American to the United States, and we 

cannot remove that geographical 

descriptor. We believe the added 

definitions for ‘‘people’’ and ‘‘culture’’ 

includes those who are indigenous to 

locations near present day geographical 

borders. Any pre-contact Tribe, people, 

or culture would be included in this 

definition. Native Hawaiians are 

included in this definition as a 

‘‘people,’’ to clarify an ambiguity left by 

Congress. 

44. Comment: We received 12

comments on the definition of ‘‘Native 

American traditional knowledge.’’ Of 

that total, six comments suggested 

changes to the definition while six 

comments supported it. Two comments 

opposed the definition, and both 

requested it be revised or removed 

because it was unclear and complex, 

and one comment felt it would lead to 

poor decision-making or other pitfalls. 

One of these comments was concerned 

that this definition, along with the 

required deference, would give equal or 

greater weight to this type of 

information than to scientific and 

historical information and, when 

identifying cultural items, Native 

American traditional knowledge might 

be used as the only type of information 

instead of scientific or historical 

evidence. One comment was neutral 

and asked how the term changed the 

current cultural affiliation process. 

Three comments supported the 

definition as proposed but suggested 

changes to strengthen it. One comment 

requested we add language to the 

variety of information listed while 

another comment requested we include 

a reference to § 10.3. One comment 

provided an extensive discussion and 

specific changes to the definition to 

include Indian Tribes, expert opinion, 

and confidentiality. 

DOI Response: We disagree that the 

definition is unclear, vague, or overly 

broad or that this definition is novel or 

unique to these regulations. The concept 

of ‘‘Native American traditional 

knowledge’’ has been used broadly 

among Federal agencies in the context 

of land management and the use of 

natural or cultural resources, although 

the specific terms used might vary. 

More recently, the White House Council 

on Environmental Quality and the 

Office of Science and Technology Policy 

released government-wide guidance and 

an implementation memorandum for 

Federal agencies on recognizing and 

including Indigenous knowledge in 

Federal research, policy, and decision 

making (https://www.whitehouse.gov/ 

ceq/news-updates/2022/12/01/whitehouse-releases-first-of-a-kindindigenous-knowledge-guidance-forfederal-agencies/, accessed 12/1/2023). 

Most certainly, this is not a new concept 

to lineal descendants, Indian Tribes, or 

NHOs and any difficulty understanding 

this definition could be resolved 

through adequate consultation. We 

believe this term will lead to more 

informed decision-making and help to 

avoid the lengthy and sometimes costly 

delays in disposition or repatriation. 

Under the Act and these regulations, all 

information available is equally relevant 

to determining cultural affiliation, and 

our intent in defining this type of 

information is to ensure that Native 

American traditional knowledge is 

considered alongside scientific and 

historical information. In response to 

the question asked, this is not different 

than decision-making for cultural 

affiliation under the existing regulations 

or the Act itself. Although it may not 

have been identified as such, Congress 

intended for Native American 

traditional knowledge to be considered 

when determining cultural affiliation or 

identifying cultural items. The 

definitions of funerary objects, sacred 

objects, and objects of cultural 

patrimony all rely on information that 

may only be available to or shared by 

lineal descendants, Indian Tribes, or 

NHOs. Consultation, which is required 

throughout the Act prior to any 

determination, is how an Indian Tribe 

or NHO shares the information needed 

to identify a cultural item. In cases 

where there is no other information, 

Native American traditional knowledge 

alone may identify a cultural item. 

In response to the other comments, 

we have added linguistics to the variety 

of named information, but stress that 

this list is not exhaustive. We have 

added a final sentence to reiterate the 

statement in § 10.3 that Native 

American traditional knowledge is 

expert opinion. We have added Indian 

Tribes, the Native Hawaiian 

Community, and confidentiality to the 

definition, although in slightly different 

places than was suggested. 

45. Comment: We received 11

comments suggesting changes to the 

definition of ‘‘Native Hawaiian 

organization.’’ Most of the comments 

requested revisions to paragraph (3)(i) 

identifying some NHOs. One comment 

expressed concern that changes to this 

definition would result in a broad range 

of NHOs who meet the criteria and 

impact the Native Hawaiian objects that 

are subject to the regulations. 

DOI Response: The definition reflects 

the language in the Act, which is 

binding unless stricken, modified, or 

contravened by other Federal law. The 

definition in the Act may be modified 

if it is no longer relevant when certain 

referenced terms, conditions, or entities 

cease to exist. The Act includes the 

Office of Hawaiian Affairs as a ‘‘Native 

Hawaiian organization,’’ and the 

definition in these regulations remains 

unchanged. Other concerns about NHOs 

are addressed by the definition as well 

as the prioritization of cultural 

affiliation under § 10.3. The omission of 

Hui Malama I Na Kupuna O Hawai1i Nei 

from the definition of a ‘‘Native 

Hawaiian organization’’ is due to the 

group’s dissolution rather than any 

judgment as to its or any successors’ 

status as NHOs. The incorporation of 

‘‘Native Hawaiian’’ into the definition of 

a ‘‘Native Hawaiian organization,’’ and 

the use of the term ‘‘indigenous people’’ 

rather than ‘‘aboriginal people,’’ clarifies 

what constitutes an NHO and their 

relevance to these regulations (2022 

Proposed Rule, 87 FR 63213). 

This definition and these regulations 

are consistent with the government-tosovereign relationship between the 

United States government and the 

Native Hawaiian Community. If the 

Native Hawaiian Community decides to 

change its relationship with the United 

States government to that of a 

government-to-government relationship, 

the Department may review and update 

the current policy and procedures. 

Throughout these final regulations, 

the term ‘‘Native Hawaiian 

organization’’ is used in the singular 

form, but it is expected that multiple 

NHOs may meet the criteria under this 

part for disposition or repatriation of the 

same human remains or cultural items. 

Any NHO with cultural affiliation may 

submit a claim for disposition or a 

request for repatriation. Two or more 

NHOs may agree to joint disposition or 

joint repatriation of human remains or 

cultural items. Claims or requests for 

joint disposition or joint repatriation 

should be considered a single claim or 

request and not competing claims or 

requests. 

46. Comment: We received six

comments suggesting changes to the 

definition of ‘‘object of cultural 

patrimony.’’ One comment requested we 

remove from the definition the 

provision that the object must have been 

considered inalienable by the group at 

the time the object was separated from 

the group as it seems unnecessary. One 

comment questioned the use of ‘‘Native 

American group’’ in the definition. One 

comment suggested changing 

‘‘according to’’ to be ‘‘as determined by’’ 

to further strengthen the deference to 

lineal descendants, Indian Tribes, and 


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NHOs on identification of objects of 

cultural patrimony. One comment 

requested an expansion of this 

definition to include intellectual 

property like songs, recordings, and 

photos as well as digital files. Another 

comment asked if this definition 

included documents and photos and, if 

not, then how the regulations support 

the return of such objects. One comment 

objected to the definition as over-broad, 

a reversal of Congressional intent, and 

contrary to explicit statements in the 

Congressional record at the time of the 

Act’s passage. 

DOI Response: We do not have the 

discretion to revise the definition as 

suggested by these first two comments 

as both are a part of the definition in the 

Act. The term ‘‘group’’ or ‘‘sub-group’’ 

used in this definition and elsewhere in 

these regulations should be understood 

to have a standard, dictionary 

definition: ‘‘a number of individuals 

assembled together or having some 

unifying relationship’’ (https://

www.merriam-webster.com/dictionary/ 

group, accessed 12/1/2023). We cannot 

expand the definition to include 

intellectual property, digital files, other 

documents, or records as that would be 

inconsistent with the Act. We note that 

requesting documents and records 

(which could include recordings, 

photos, or digital files) is already 

provided for in §§ 10.9(c)(4) and 

10.10(c)(4). Under the Act and these 

regulations, lineal descendants, Indian 

Tribes, and NHOs have a right to request 

records, catalogues, relevant studies, or 

other pertinent data (25 U.S.C. 

3003(b)(2) and 25 U.S.C. 3004(b)(2)), 

and museums and Federal agencies are 

required to share that information (25 

U.S.C. 3005(d)). As required by the Act, 

additional information is only provided 

upon request of a lineal descendant, 

Indian Tribe, or NHO, and we cannot 

require documents and records be 

provided by including these in the 

definition of objects of cultural 

patrimony. We advise lineal 

descendants, Indian Tribes, and NHOs 

to make their requests as broad as 

possible to ensure all information about 

objects of cultural patrimony, including 

digital data, is provided. 

Regarding the request to strengthen 

the definition, we are unable to change 

‘‘according to’’ to ‘‘as determined by’’ as 

it would be inconsistent with the Act. 

Museums and Federal agencies are 

responsible for making determinations 

under the Act and these regulations, but 

must do so after consulting with lineal 

descendants, Indian Tribes, and NHOs. 

We have changed the order of the 

sentence to reflect the importance of 

Native American traditional knowledge 

(which includes customs and traditions) 

in this definition. 

We disagree that the definition as 

proposed is over-broad, a reversal of 

Congressional intent, or contrary to 

explicit statements in the Congressional 

record. We agree with the concerned 

comment that when NAGPRA was 

passed, Congress made clear that not all 

objects could be deemed ‘‘sacred’’ or 

‘‘cultural patrimony.’’ The definition of 

object of cultural patrimony in these 

regulations is consistent with the Act 

and the legislative history. An object of 

cultural patrimony must not only be an 

object owned by the collective whole, 

but must be of ongoing historical, 

traditional, or cultural importance, as 

indicated by the Senate (S. Rpt. 101– 

473, at 5). 

Deference to Native American 

traditional knowledge is necessary to 

ensure the rights of lineal descendants, 

Indian Tribes, and NHOs the Act 

recognizes. The addition of ‘‘according 

to Native American traditional 

knowledge’’ in this definition is to 

ensure meaningful consideration of this 

information during consultation. 

We believe this addition to the 

various definitions of cultural items will 

lead to more informed decision-making 

and help to avoid the lengthy and costly 

delays in disposition or repatriation. In 

crafting the definitions of cultural items, 

Congress clearly intended that the 

definitions ‘‘will vary according to the 

[T]ribe, village, or Native Hawaiian 

community’’ (S. Rpt. 101–473, at 4). 

Consultation, which is required 

throughout the Act prior to any 

determination, is how an Indian Tribe 

or NHO shares the information needed 

to identify a cultural item. 

47. Comment: We received two 

comments suggesting changes to the 

definition of ‘‘ ‘ohana.’’ Both comments 

requested a revision of the definition to 

reflect that an ‘ohana may be comprised 

of lineal descendants. 

DOI Response: We appreciate the 

suggested change and acknowledge the 

limitations of the proposed definition. 

We have revised the definition 

accordingly. 

48. Comment: We received one 

comment suggesting changes to the 

definition of person to include 

‘‘spiritual entity personhood’’ and 

clarification that this is different from 

‘‘appropriate official.’’ 

DOI Response: While the word 

‘‘person’’ is used in a few definitions 

and instances, the definition is intended 

to ensure the requirements under § 10.5 

Discovery are completed and to give 

clear meaning to the phrase in the Act 

and these regulations: ‘‘Any person who 

knows or has reason to know. . . .’’ 

Certain actions are required by any 

individual, partnership, corporation, 

trust, institution, association, or any 

other private entity, or any 

representative, official, employee, agent, 

department, or instrumentality of the 

United States Government or of any 

Indian Tribe or NHO, or of any State or 

subdivision of a State when a discovery 

of human remains or cultural items on 

Federal or Tribal lands occurs. These 

actions are separate from the required 

actions of an ‘‘appropriate official’’ for 

that same discovery. It is possible that 

a person who makes a discovery on 

Federal or Tribal land may also be the 

representative authorized by a 

delegation of authority within an Indian 

Tribe, NHO, Federal agency, or 

Department of Hawaiian Home Lands 

(DHHL) to be responsible for human 

remains or cultural items on Federal or 

Tribal lands. In those instances, the 

same individual may be performing the 

required actions of the person and the 

appropriate official. Considering the use 

of this definition, we decline to include 

‘‘spiritual entity personhood.’’ 

49. Comment: We received 44 

comments on the definition of 

‘‘possession or control.’’ Of that total, 40 

comments suggested changes to the 

definition while four comments 

supported it. A total of 17 comments 

expressed concerns with museum and 

Federal agency compliance. Six 

comments supported using a single 

definition for the term possession or 

control while five comments proposed 

splitting the definition into two 

definitions. Five comments proposed 

replacing the definition of custody with 

the concept of possession. A total of 13 

comments recommended expanding the 

definition to include museums that only 

have an obligation to care for human 

remains or cultural items, for example, 

a museum that received a loan of human 

remains or cultural items from another 

museum. One comment recommended 

replacing the phrase ‘‘a sufficient 

interest in an object or item to 

independently direct, manage, oversee, 

or restrict the use of the object or item’’ 

with ‘‘an interest in human remains or 

cultural items, such that the museum or 

Federal agency has been providing care, 

direction, management, oversight, or 

restrictions regarding the use of the 

human remains or cultural item.’’ Two 

comments recommended replacing the 

phrase ‘‘sufficient interest’’ with ‘‘legal 

responsibility’’ or ‘‘legal authority.’’ One 

comment requested that we clarify the 

meaning of sufficient interest to address 

confusion over whether a museum with 

mere custody by a loan, lease, license, 

or bailment, has possession or control. 


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One comment was concerned that the 

definition as written would permit 

museums that have received loans of 

human remains or cultural items from 

other museums to make determinations 

regarding repatriations of the loaning 

museum’s collection. Six comments 

were concerned with museums making 

unilateral determinations regarding 

possession or control of human remains 

or cultural items. Nine comments 

expressed concerns that museums and 

Federal agencies use the existing 

definitions as a loophole to avoid 

compliance with the Act. One comment 

expressed concern that the proposed 

regulations no longer include a 

statement that ‘‘Federal agencies must 

ensure that these requirements are met 

for all collections from their lands or 

generated by their actions whether the 

collections are held by the Federal 

agency or by a non-Federal institution.’’ 

DOI Response: We have not made 

changes to this definition, other than to 

replace physical custody with physical 

location to avoid any confusion. We 

received one more comment in support 

of the use of a single definition than we 

did recommending that the definition be 

split in two. Congress used these two 

words as a single term throughout the 

Act, except for ‘‘right of possession.’’ 

And, given the overwhelming support 

for the single definition during 

consultation in 2021, we have not made 

any other changes to this definition 

from the proposed rule. Further, we did 

not change the terms ‘‘sufficient 

interest’’ or ‘‘independently direct’’ 

which are threshold determinations for 

museums and Federal agencies to make 

and changing these phrases as suggested 

would presume application of the Act 

before that determination has been 

made. Whether a museum or Federal 

agency has a sufficient interest in 

human remains or cultural items to 

establish possession or control is a legal 

determination that must be made on a 

case-by-case basis. However, when a 

museum with custody of human 

remains or cultural items cannot 

identify any person, institution, State or 

local government agency, or Federal 

agency with possession or control, the 

museum should presume it has 

possession or control of the human 

remains or cultural items for purposes 

of repatriation under the Act and these 

regulations. When a Federal agency 

cannot determine if human remains or 

cultural items came into its possession 

or control before or after November 16, 

1990, or cannot identify the type of land 

the human remains or cultural items 

were removed from, the Federal agency 

should presume it has possession or 

control of the human remains or 

cultural items for purposes of 

repatriation under the Act and these 

regulations. This determination is a 

jurisdictional requirement for 

application of the Act and these 

regulations to the human remains or 

cultural items that may be subject to 

repatriation by the appropriate museum 

or Federal agency. 

While we acknowledge the continued 

interest in expanding the scope of the 

definition to include entities that merely 

have custody, we cannot make the 

requested change. In some cases, 

expanding the scope of the definition 

would make multiple entities 

concurrently responsible for fulfilling 

the inventory, summary, and 

repatriation process. Such an 

interpretation is inconsistent with the 

framework and legislative history of the 

Act. Congress provided no indication 

that such an expansive interpretation 

was its intent, and various features of 

the Act, including civil penalties, right 

of possession, and museum obligations, 

presume that a single museum or 

Federal agency would be responsible for 

compliance with the inventory, 

summary, and repatriation provisions. 

The phrase ‘‘possession or control’’ as 

used in the Act connotes a singular 

interest in human remains or cultural 

items. Since 1993, these regulations 

have defined the two elements of the 

phrase only to differentiate between 

physical location of the human remains 

or cultural items (1993 Proposed Rule, 

58 FR 31127). In the Act, having 

possession or control means a museum 

or Federal agency has an interest in 

human remains or cultural items, or, in 

other words, it may make 

determinations about human remains or 

cultural items without having to request 

permission from some other entity or 

person. This interest is present 

regardless of the physical location of the 

human remains or cultural items. For a 

similar example, a person has the same 

interest in property that is in the 

person’s home as in property that same 

person keeps in an offsite storage unit. 

The person can make determinations 

about the property in the storage unit 

without having to request permission 

from the storage facility. Regardless of 

the physical location of the property, 

the person’s interest in the property is 

the same whether it is in their home or 

in the custody of the storage facility. 

Several comments expressed concerns 

that collections loaned to other 

institutions would fall outside the scope 

of the Act and these regulations. We 

reiterate that this is not the case. Even 

where a collection is loaned to another 

institution, the loaning entity is still 

required to comply with all the 

requirements of the Act and these 

regulations. Under these regulations, if 

the entity that holds the loaned 

collection meets the definition of a 

museum, it would also have to comply 

with certain requirements for the loaned 

collection and any other human remains 

or cultural items in its custody, 

including a duty of care and reporting 

obligations. We acknowledge that the 

underlying intent of this request is to 

ensure repatriation of all human 

remains or cultural items subject to the 

Act and that it is related to the concerns 

expressed regarding compliance by 

museums and Federal agencies. We 

have made other revisions to address 

these issues by requiring museums and 

Federal agencies to share information 

and increase efforts to complete 

inventories, summaries, and repatriation 

of human remains and cultural items, 

even when they are in the custody of 

other entities. 

50. Comment: We received 16 

comments on the definition of ‘‘receives 

Federal funds.’’ Of that total, 15 

comments suggested changes to the 

definition while one comment 

supported it. Four comments 

recommended revising the phrase 

‘‘institution or agency of a State or local 

government’’ to ‘‘institution or State or 

local government agency.’’ Two 

comments considered the definition to 

be overbroad or an overreach of Federal 

authority. One comment expressed 

constitutional concerns with the 

impacts of this definition on private 

property. One comment suggested 

making the definition of receives 

Federal funds apply to museums that 

only received funds prior to November 

16, 1990. Four comments sought 

clarification on whether funds received 

via specific Federal programs constitute 

Federal funds under the Act and these 

regulations. 

DOI Response: We have made the 

requested change to ensure consistency 

between the definitions of museum and 

receives Federal funds. We do not 

consider this definition to be overly 

broad or an overreach of Federal 

authority. The regulations reflect 

statutory intent as well as a robust area 

of law surrounding the receipt of 

Federal funds. We do not consider this 

definition to unconstitutionally interfere 

with private property rights. The Act 

itself restricts activities that would 

violate the Fifth Amendment’s 

protection of property rights, though 

such situations are rare. We do believe 

that applying this definition to the 

receipt of Federal funds prior to the 

passage of the Act raises constitutional 

concerns. Generally, the Fifth 


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Amendment requires us to disfavor 

retroactive interpretation of Federal 

statutes, unless expressly provided for 

by Congress. Congress did not provide 

such an express instruction here. 

Regarding the nature of funds received 

through specific Federal programs, a 

case-by-case determination as to the 

nature of such funds is outside the 

scope of this regulatory action. We 

recommend seeking technical assistance 

from the National NAGPRA Program on 

specific Federal programs. 

51. Comment: We received 27 

comments on the definitions of 

‘‘disposition’’ or ‘‘repatriation.’’ Of that 

total, 11 comments requested we add 

physical transfer to the definition. 

Similarly, two comments requested we 

add ‘‘the desired outcome’’ has 

occurred, as confirmed by the lineal 

descendant, Indian Tribe, or NHO. The 

comments noted ‘‘[s]uch an outcome 

can include, but is not limited to, 

transfer of possession, reburial, 

traditional use, loan agreements, etc.’’ 

One comment recommended including 

‘‘and completes the physical transfer’’ at 

the end of the definitions. Four 

comments requested changes to ‘‘control 

or ownership’’ in the definitions. 

Alternatives suggested are ‘‘has the right 

to repatriate human remains or cultural 

items’’ or ‘‘has right of possession’’ or 

‘‘has possession or control’’ of the 

human remains or cultural items. Four 

comments requested we replace 

‘‘control or ownership’’ with ‘‘now has 

control as a result of disposition or 

repatriation.’’ One comment suggested 

adding ‘‘relinquishes control’’ and 

include legal transfer in the definition. 

Three comments requested we define 

‘‘disposition statement’’ and 

‘‘repatriation statement.’’ One comment 

questioned why disposition is defined 

and used if repatriation encompasses all 

transfers. 

DOI Response: We have not made the 

requested change to include physical 

transfer in the definitions of disposition 

or repatriation and have responded in 

more detail in Comment 67. We have 

accepted, in part, the suggested change 

to ‘‘repatriation’’ and use ‘‘relinquish 

possession or control.’’ We have 

retained ‘‘ownership or control’’ in the 

definition of disposition, as it is used in 

the Act, and ensured throughout that 

the order of the words in that phrase are 

consistently applied. 

There is no definition in the Act for 

either disposition or repatriation. The 

existing regulations use the single term 

‘‘disposition’’ to mean ‘‘transfer of 

control’’ which does not necessarily 

equate to physical transfer in any, or all, 

of the situations where the term applies. 

This definition was added in 2007 to 

clarify the different procedures in the 

regulations that effectuate the same 

result: transfer of control over human 

remains or cultural items by a museum 

or Federal agency under the regulations 

(2007 Final Rule, 75 FR 58585 and 

58588). The existing definition does not 

clarify if ‘‘transfer of control’’ means 

legal transfer of control or physical 

transfer of control or both. In practice 

and as we advise, legal transfer of 

control often occurs prior to physical 

transfer of control, as physical transfer 

often requires extensive planning for 

transportation, scheduling, and funding. 

We sought to clarify this in the draft 

revisions for consultation in 2021 where 

we provided two separate terms: 

‘‘disposition’’ and ‘‘repatriation’’ and 

neither term included physical transfer. 

We received significant feedback 

objecting to the implication that 

museums and Federal agencies have a 

legal interest in human remains or 

cultural items which is conveyed or 

transferred by disposition or 

repatriation, as the Act does not 

recognize museums or Federal agencies 

have a lawful interest other than ‘‘right 

of possession.’’ We revised the 

definitions of ‘‘disposition’’ and 

‘‘repatriation’’ to remove any 

implication of a legal interest being 

transferred. 

These regulations provide definitions 

for ‘‘disposition’’ and ‘‘repatriation,’’ 

and we do not believe it is necessary to 

also define the related statement 

because these statements are fully 

explained in the regulatory text. 

52. Comment: We received 11 

comments suggesting changes to the 

definition of ‘‘right of possession.’’ One 

comment objected to the concept of a 

right of possession as to any human 

remains, funerary objects, or objects of 

cultural patrimony. Two comments 

objected to the inclusion of funerary 

objects, particularly unassociated 

funerary objects, in the definition. One 

comment objected to the inclusion of 

objects of cultural patrimony in the 

definition. Six comments recommended 

removing the term possession or control 

from the definition and adding language 

found in the explanation of the 

proposed regulations. One comment 

recommended describing right of 

possession as possession or control, 

ownership, or holding legal title. One 

comment noted that determinations of 

right of possession must incorporate 

deference to Native American 

traditional knowledge. One comment 

asked for clarification on how fully free, 

prior, and informed consent is proven. 

DOI Response: We cannot make the 

requested changes. The definition is 

drawn directly from the Act itself, 

which provides for a right of possession 

and applies it in some manner to human 

remains, funerary objects, sacred 

objects, and objects of cultural 

patrimony. Moreover, we cannot delete 

or alter the express meaning provided 

by Congress. 

We have not removed the term 

possession or control because doing so 

could cause confusion that might 

prevent cultural items to which a 

museum or Federal agency asserts a 

right of possession from appearing on 

summaries. Even where a museum or 

Federal agency asserts a right of 

possession, it must still comply with the 

requirements of the Act and these 

regulations for cultural items which are 

in its possession or control. We have not 

made ownership or legal title a 

requirement because doing so would be 

circular and presume the result that an 

analysis of right of possession seeks to 

determine. As this definition 

intentionally hews closely to the Act, 

we have not added any clarifying 

language from the proposed regulations. 

Instead, we reiterate here that a right of 

possession does not include, for 

example, consent given under duress or 

because of bribery, blackmail, fraud, 

misrepresentation, or duplicity on the 

part of the recipient. Voluntary consent 

may be shown by evidence that consent 

was fully free, prior, and informed, 

though those elements are not listed in 

the definition itself. The type and extent 

of such evidence will vary from case to 

case. 

While we agree that determinations of 

right of possession must consider Native 

American traditional knowledge, we 

have not added that requirement to the 

definition. In other places, we have 

emphasized the need for deference to 

Native American traditional knowledge 

to ensure the rights of lineal 

descendants, Indian Tribes, and NHOs 

the Act recognizes. The addition of 

‘‘according to Native American 

traditional knowledge’’ in other 

definitions is to ensure meaningful 

consideration of this information during 

consultation. Consultation, which is 

required throughout the Act prior to any 

determination, is how an Indian Tribe 

or NHO shares the information needed 

to identify a cultural item. 

53. Comment: We received 11 

comments requesting changes to the 

definition of ‘‘sacred object.’’ Two 

comments requested the addition of 

family spiritual practices to 

accommodate a broader definition of 

traditional Native American religions. 

One comment requested we replace 

‘‘according to’’ with ‘‘as determined by’’ 

to strengthen the definition. Three 

comments objected to the definition as 


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it adhered too closely to the definition 

in the Act and the existing regulations 

and is too limiting by requiring the 

object be needed, the adherents be 

present-day, or the practice be for 

observance or renewal. One comment 

asked why the definition has been 

revised at all from the existing 

regulations and requested it be reverted 

to the definition in the Act. One 

comment objected to the definition as 

over-broad, a reversal of Congressional 

intent, and contrary to explicit 

statements in the Congressional record 

at the time of the Act’s passage. 

One extensive comment stated that 

the proposed regulations impermissibly 

broaden the definition, contravenes 

Congressional intent, and could create a 

conflict with the Archaeological 

Resources Protection Act (ARPA). 

According to the comment, the 

proposed definition, coupled with 

explanatory language in the proposed 

regulations, means that if a lineal 

descendant, Indian Tribe, or NHO wants 

an object, or a category of objects, then 

that object or object category is, by 

definition, a sacred object. By contrast, 

Congress stated that a sacred object is an 

object that was devoted to a traditional 

religious ceremony or ritual when 

possessed by a Native American and 

must be used in the present-day in a 

Native American religious ceremony. 

Furthermore, according to the comment, 

the impermissible broadening of the 

term to include items that Congress did 

not intend to be considered sacred 

objects could conflict with ARPA 

because most Native American items 

removed from Federal lands are 

archeological; non-NAGPRA 

archeological resources removed from 

Federal lands under ARPA must be 

curated consisted with Federal curation 

regulations; and those curation 

regulations do not allow transfer or 

reinterment of those archeological 

resources. 

DOI Response: We do not believe this 

definition should include a separate 

category of ‘‘spiritual practice’’ because 

the language in the Act of ‘‘traditional 

Native American religion’’ is broad 

enough to encompass the examples in 

the comment. We are unable to change 

‘‘according to’’ to ‘‘as determined by’’ as 

it would be inconsistent with the Act. 

Museums and Federal agencies are 

responsible for making determinations 

under the Act and these regulations, but 

must do so after consulting with lineal 

descendants, Indian Tribes, and NHOs. 

We have changed the order of the 

sentence to reflect the importance of 

Native American traditional knowledge 

(which includes customs and traditions) 

in this definition. We are unable to 

broaden the definition as requested by 

some comments as those phrases 

(needed and present-day) are the 

required elements of the definition in 

the Act. ‘‘Observance or renewal’’ were 

incorporated into the definitions in the 

1993 Proposed Rule to incorporate 

language from the House and Senate 

Committee reports relating to the Act 

(58 FR 31122 and 58 FR 31126; 1995 

Final Rule, 60 FR 62138). We have 

revised the definition in the existing 

regulations to clarify the definition by 

removing the examples and simplifying 

the sentence structure while retaining 

the required elements of the definition 

from the Act and the legislative history. 

We disagree that the definition as 

proposed is over-broad, a reversal of 

Congressional intent, contrary to 

explicit statements in the Congressional 

record, or in conflict with ARPA. We 

disagree that under the definition, any 

object, or category of objects, that is 

imbued with sacredness by a lineal 

descendant, Indian Tribe, or NHO, 

without anything more, would satisfy 

the definition. All the elements 

explicitly stated in the definition must 

be satisfied for an object to be identified 

as a sacred object. The elements of the 

definition require that an object be: 

• A specific ceremonial object, 

• Needed by a traditional religious 

leader, 

• For present-day adherents to 

practice traditional Native American 

religion. 

We also disagree that an object to be 

interred cannot be a sacred object. A 

specific object may be deemed to be a 

sacred object if, based on Native 

American traditional knowledge, in the 

past, the object was ceremonially 

interred as a traditional Native 

American religious practice, the object 

was subsequently disinterred, and 

today, it is needed by a traditional 

Native American religious leader to 

renew the ceremonial interment of the 

specific object by present-day adherents. 

We agree with the comment that 

when NAGPRA was passed, Congress 

made clear that not all objects could be 

deemed ‘‘sacred’’ or ‘‘cultural 

patrimony.’’ However, this comment 

reinforces the need for deference to 

Native American traditional knowledge 

to ensure the rights of lineal 

descendants, Indian Tribes, and NHOs 

the Act recognizes. The addition of 

‘‘according to Native American 

traditional knowledge’’ in this 

definition is to ensure meaningful 

consideration of this information during 

consultation. 

We believe this addition to the 

various definitions of cultural items will 

lead to more informed decision-making 

and help to avoid the lengthy and costly 

delays in disposition or repatriation. In 

crafting the definitions of cultural items, 

Congress clearly intended that the 

definitions ‘‘will vary according to the 

[T]ribe, village, or Native Hawaiian 

community’’ (S. Rpt. 101–473, at 4). 

Consultation, which is required 

throughout the Act prior to any 

determination, is how an Indian Tribe 

or NHO shares the information needed 

to identify a cultural item. As we noted 

in the 1995 Final Rule, ‘‘[i]dentification 

of specific sacred objects or objects of 

cultural patrimony must be done in 

consultation with Indian [T]ribe 

representatives, [NHOs,] and traditional 

religious leaders since few, if any, 

museums or Federal agencies have the 

necessary personnel to make such 

identifications’’ (60 FR 62148). 

54. Comment: We received one 

comment suggesting changes to the 

definition of ‘‘summary’’ to include 

associated funerary objects. 

DOI Response: We cannot add 

associated funerary objects to a 

summary as that would be inconsistent 

with the Act. An inventory pertains to 

human remains and associated funerary 

objects (25 U.S.C. 3003(a)), while a 

summary pertains to ‘‘unassociated 

funerary objects, sacred objects, or 

objects of cultural patrimony’’ (25 

U.S.C. 3004(a)). 

55. Comment: We received five 

comments suggesting changes to the 

definition of ‘‘traditional religious 

leader.’’ All five comments requested 

broadening the definition so as not to 

limit it to individuals who are 

responsible or who hold a leadership 

role. A broader definition will allow 

Indian Tribes or NHOs to identify 

traditional religious leaders. One 

comment requested we update the 

words used in the term itself, as they are 

unnecessary, condescending, and 

outdated. 

DOI Response: As noted in the 

comments, this definition is not in the 

Act but the term is used in the Act in 

the definition of sacred object, the 

consultation requirements for 

inventories and summaries, and the 

composition of the Review Committee. 

In the proposed regulations, we 

intended to place the authority for 

identifying a traditional religious leader 

in the hands of an Indian Tribe or NHO. 

We understand the term may be 

offensive but given its use in the Act we 

cannot change the term itself. We can, 

and have, modified the definition to 

ensure a lineal descendant, as well as an 

Indian Tribe or NHO, can identify any 

individual that the lineal descendant, 

Indian Tribe, or NHO feels is the 

appropriate individual to serve in this 


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role. This addition of lineal descendant 

aligns with statements made by the 

Department in the 1995 Final Rule 

regarding the role of ‘‘a member of an 

Indian Tribe’’ in the existing definition 

of a traditional religious leader (see 60 

FR 62138, 60 FR 62151, and 60 FR 

62155). 

56. Comment: We received seven 

comments suggesting changes to the 

definition of ‘‘Tribal lands.’’ Some of the 

comments objected to the deletion in 

the proposed regulations of a sentence 

concerning application of the Fifth 

Amendment to the Constitution to 

private land, reasoning that the 

Department was proposing to exclude 

private land within the exterior 

boundaries of a reservation from the 

application of the Act and these 

regulations. Another comment was 

concerned that the definition does not 

include Tribal trust lands outside 

reservation boundaries. Other comments 

suggested the addition of an amendment 

to the regulatory definition, 

incorporating our clarification in the 

preamble to the proposed regulations 

that, under Supreme Court precedent, 

the boundaries of Tribal trust land 

constituted an informal reservation. 

DOI Response: The Act defines 

‘‘Tribal land’’ as ‘‘(1) All lands that are 

within the exterior boundaries of any 

Indian reservation; (2) All lands that are 

dependent Indian communities; and (3) 

All lands administered by the 

Department of Hawaiian Home Lands 

(DHHL) under the Hawaiian Homes 

Commission Act of 1920 (HHCA, 42 

Stat. 108) and Section 4 of the Act to 

Provide for the Admission of the State 

of Hawai1i into the Union (73 Stat. 4), 

including ‘available lands’ and 

‘Hawaiian home lands’ ’’ (25 U.S.C. 

3001(15)). We decline to add Tribal trust 

land to the common statutory definition 

in the regulations because of the 

possibility of unforeseen consequences 

for Tribal jurisdiction. We do, however, 

agree with the comments that the plain 

language of the definition includes 

private land within the exterior 

boundaries of the reservation (McGirt v. 

Oklahoma, 140 S. Ct. 659 (2019)). We 

also agree that Tribal trust land outside 

the exterior boundaries of a formal 

reservation would, under the proposed 

regulations and these regulations, be 

considered an ‘‘informal reservation,’’ 

still qualifying as Tribal land for 

purposes of NAGPRA (Oklahoma Tax 

Comm’n v. Citizen Band Potawatomi 

Indian Tribe of Oklahoma, 498 U.S. 505, 

511 (1991)). 

57. Comment: We received three 

comments requesting clarification to the 

definition of ‘‘United States.’’ All three 

comments wanted to understand how 

the Act and the regulations apply in the 

U.S. territories. 

DOI Response: The Act and these 

regulations only apply to the 50 states 

and the District of Columbia. Unlike 

other statutes referenced by one of the 

comments, the Act does not provide a 

definition of the United States that 

includes its territories and possessions. 

Any change to this limitation would 

require Congressional action. 

D. Section 10.3 Cultural and 

Geographical Affiliation 

58. Comment: We received 27 

comments on § 10.3, generally. Of that 

total, most comments generally 

supported the elimination of the term 

‘‘culturally unidentifiable.’’ A few 

comments specifically objected to the 

removal of ‘‘culturally unidentifiable’’ 

and the use of ‘‘Native American 

traditional knowledge’’ and 

‘‘geographical affiliation’’ because of 

concerns that this would expand the 

scope of what must be repatriated. 

Three comments requested more direct 

participation by Indian Tribes and 

NHOs in determining cultural and 

geographical affiliation and one 

comment requested that the Secretary 

determine cultural and geographical 

affiliation. 

DOI Response: These regulations do 

not use the term ‘‘culturally 

unidentifiable.’’ Because Congress 

anticipated that not all human remains 

could be determined to have cultural 

affiliation, Congress required that the 

Review Committee develop specific 

actions for the disposition of any human 

remains with no cultural affiliation and 

thereby ensured that all Native 

American human remains would be 

subject to the Act. For more on the 

development of these regulations, see 

2007 Proposed Rule (72 FR 58582) and 

2010 Final Rule (75 FR 12378). The 

inclusion of Native American traditional 

knowledge as a type of information that 

can identify cultural affiliation is 

consistent with Congressional intent 

and ensures the stated purpose of these 

regulations for deference to lineal 

descendants, Indian Tribes, and NHOs 

in determinations of cultural affiliation. 

Other revisions to this section, based on 

specific comments, are explained below. 

In response to the noted objections, 

we disagree with their limited 

characterization of the scope of what 

must be repatriated. To forego the use of 

geographical information and Native 

American traditional knowledge to limit 

the number of human remains or 

cultural items that may be subject to 

repatriation is inconsistent with the Act, 

which only provides three exceptions to 

the requirement for expeditious 

repatriation (see 25 U.S.C. 3005). 

59. Comment: We received 11 

comments generally on the paragraph in 

the proposed regulations under § 10.3 

on Information for cultural affiliation (in 

the final regulations, this is renumbered 

§ 10.3(a) and retitled Step 1: Collect 

information available.). Most comments 

supported the changes to the types of 

information, and a few comments 

requested additional changes to types of 

information. 

DOI Response: We cannot make the 

requested changes to prioritize the types 

of information or assign them relative 

values (1995 Final Rule, 60 FR 62156). 

We have repeated the exact types of 

information used for cultural affiliation 

as provided by Congress in alphabetical 

order and added Native American 

traditional knowledge to call out this 

newly defined type of expert opinion. 

60. Comment: We received 23 

comments on the paragraph in the 

proposed regulations under § 10.3 on 

Cultural affiliation (in the final 

regulations, this is incorporated into the 

introductory paragraph of § 10.3). The 

comments objected to the use of 

‘‘preponderance of the evidence’’ rather 

than ‘‘reasonable’’ in this paragraph. 

Most of these comments referenced the 

language of the Act, specifically the 

difference between ‘‘reasonably’’ and 

‘‘reasonable belief’’ at 25 U.S.C. 3001(2), 

3002(a)(2)(C), 3003(d)(2)(C), on the one 

hand, and ‘‘preponderance of the 

evidence’’ at 25 U.S.C. 3001(3)(B), 

3002(a)(2)(C)(2), 3005(a)(4). One 

comment asked what ‘‘reasonable’’ 

means. 

DOI Response: We have replaced ‘‘a 

preponderance of the evidence’’ with 

‘‘reasonable.’’ As stated in the proposed 

regulations, the Department reiterates 

that ‘‘a preponderance of the evidence’’ 

is a similar standard to a 

‘‘reasonableness’’ requirement and both 

standards require a ‘‘more likely than 

not’’ assessment (87 FR 63216). 

However, we agree with the comments 

that these terms have different 

connotations and that ‘‘preponderance 

of the evidence’’ has been misused and 

misapplied in determining cultural 

affiliation. We agree with the comments 

that the Act envisioned a simple and 

collaborative procedure to determine 

cultural affiliation through consultation 

with Indian Tribes and NHOs. Only 

when a museum or Federal agency was 

unable to determine cultural affiliation 

would an Indian Tribe or NHO need to 

demonstrate cultural affiliation through 

a preponderance of the evidence. As 

this section of the regulations describes 

the initial procedure for determining 

cultural affiliation, we have revised it to 


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only reflect the requirement to 

reasonably determine cultural 

affiliation. In response to one comment, 

‘‘reasonable’’ means both the procedure 

to make a determination and the 

determination itself are ‘‘in accordance 

with reason,’’ ‘‘not extreme or 

excessive,’’ and ‘‘moderate, fair’’ 

(https://www.merriam-webster.com/ 

dictionary/reasonable, accessed 12/1/ 

2023). 

61. Comment: We received 41 

comments on the paragraph in the 

proposed regulations under § 10.3 titled 

Geographical affiliation (in the final 

regulations, this is removed). Of that 

total, two comments objected to 

broadening affiliation to include 

geography alone. One comment 

appreciated the more inclusive term but 

was concerned about making 

connections only based on geography. 

One comment requested that 

archaeological and historical 

knowledge, especially of disruptions of 

indigenous territories, be included as 

key pieces of evidence for establishing 

geographical affiliation. Six comments 

supported the paragraph as proposed. 

A total of 33 comments requested the 

paragraph be removed in its entirety, 

although these comments were 

supportive of clarifying that cultural 

affiliation could be based on geography 

alone. Some comments were concerned 

that geographical affiliation would leave 

out Tribal knowledge and oral history. 

One comment was concerned that as 

proposed, ‘‘geographical affiliation’’ 

would disenfranchise Indian Tribes 

under certain circumstances and 

provides fewer options than are 

currently available by restricting 

evidence of geographical affiliation. 

Most of the comments expressly 

requested that geographical affiliation 

be incorporated into cultural affiliation. 

As proposed, the comments expressed 

concern that geographical affiliation 

would not simplify repatriation but 

bring new complications and loopholes 

to the process. The comments requested 

the final regulations should develop an 

efficient and less burdensome procedure 

and provide that, in the absence of other 

evidence, cultural affiliation need only 

include one type of information that 

reasonably points to a shared 

relationship between an Indian Tribe 

and an identifiable earlier group. 

DOI Response: We have removed the 

paragraph proposed at § 10.3 titled 

Geographical affiliation. We have made 

related changes to other paragraphs in 

§ 10.3 and renamed the entire section. 

We have revised the text in the final 

regulations to reflect a step-by-step 

procedure for determining cultural 

affiliation. We have required in the stepby-step processes for disposition under 

§ 10.7 or repatriation under §§ 10.9 and 

10.10 that when cultural affiliation is 

not determined, the museum or Federal 

agency must briefly describe the 

information considered under § 10.3(a) 

and the criteria identified under 

§ 10.3(b) to explain how the 

determination was made. We have made 

clear in the definition of cultural 

affiliation, this section, and the step-bystep processes for disposition or 

repatriation that cultural affiliation must 

be identified either clearly by the 

information available or reasonably by 

the geographic origin or acquisition 

history of the human remains or cultural 

items. 

The intent of these revisions is to 

realign the geographic analysis, applied 

previously to culturally unidentifiable 

human remains in the existing 

regulations, as part of the cultural 

affiliation process. The same methods, 

analyses, sources, and evidence may 

inform cultural affiliation 

determinations based on geographical 

information as have been used in the 

past and as discussed in the proposed 

rule. We agree with the voluminous 

comments that described museum and 

Federal agency practices as overly 

expansive in designating human 

remains and associated funerary objects 

as culturally unidentifiable. We believe 

in most cases, sufficient information on 

geographic origin and acquisition 

history exists and can be used to either 

clearly or reasonably identify Indian 

Tribes or NHOs with cultural affiliation. 

62. Comment: We received four 

comments supporting the paragraph in 

the proposed regulations under § 10.3 

titled Multiple affiliations (in the final 

regulations, this is renumbered § 10.3(d) 

and retitled Joint disposition or 

repatriation). Many other comments 

suggested changing the title of the 

paragraph to Joint disposition or 

repatriation. 

DOI Response: We have accepted and 

adopted the suggested change in the 

title of this paragraph. 

63. Comment: We received 19 

comments suggesting changes to the 

paragraph in the proposed regulations 

under § 10.3 titled Closest affiliation (in 

the final regulations, this is renumbered 

§ 10.3(e) and retitle Competing claims or 

requests). One comment objected to 

museums and Federal agencies making 

determinations on the closest affiliation. 

One comment objected to the priority 

order for NHOs as it was too complex 

and may result in a family or small 

organization having a priority over the 

Office of Native Hawaiian Affairs. Two 

comments asked if the enumerated list 

reflected a priority and if two Indian 

Tribes or NHOs might both be in a 

single category. One comment requested 

guidance on how closest affiliation 

would be determined if one Tribe’s 

claim is based on geographic 

information and another Tribe’s claim is 

based on cultural practices. One 

comment requested it be clear that 

museums and Federal agencies must 

determine the Indian Tribe with the 

closest cultural affiliation and 

continually notify that Indian Tribe, 

regardless of who might make a claim or 

a request. Several comments requested 

the regulations be revised to bring all 

the priority orders together into one 

provision and provided specific redline 

changes to the proposed text. 

DOI Response: We cannot change who 

is responsible for making 

determinations on the closest cultural 

affiliation when, and only when, there 

are competing claims or requests. This 

is required by the Act at 25 U.S.C. 

3002(a) and 3005(e). Museums and 

Federal agencies are responsible for 

making determinations under the Act 

and these regulations, but must do so 

after consulting with lineal descendants, 

Indian Tribes, and NHOs. Based on 

consultation with the Native Hawaiian 

Community, it was our intention to give 

priority to a family or small organization 

over the Office of Native Hawaiian 

Affairs when, and only when, there are 

competing claims or requests. The 

enumerated lists are intended to 

identify a priority order, and it is 

possible that two Indian Tribes or NHOs 

might have the same priority. The 

priority order distinguishes between 

different kinds of cultural affiliation and 

places affiliation based on geographic 

information alone below other kinds of 

cultural affiliation. There is no 

obligation for a museum or Federal 

agency to determine the Indian Tribe or 

NHO with the closest cultural affiliation 

unless and until there are competing 

claims or requests. All Indian Tribes or 

NHOs with cultural affiliation have an 

opportunity to make claims or requests 

prior to a disposition or repatriation 

statement. 

To avoid repetition and to clarify 

when closest cultural affiliation must be 

determined, we have combined 

paragraph (c)(2) in § 10.3 in the 

proposed regulations titled Competing 

claims or requests with paragraph (d) 

titled Closest affiliation to create a new 

paragraph § 10.3(e) Competing claims or 

requests. In conjunction with the 

changes to § 10.3 described above, we 

have added the standard of 

‘‘preponderance of the evidence’’ to this 

paragraph on completing claims or 

requests. We cannot accept the 

suggestion to bring the priority orders 


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together in this paragraph because the 

priority order established in the Act for 

Federal or Tribal lands (25 U.S.C. 3002) 

is broader than the priority order for the 

‘‘closest cultural affiliation’’ identified 

here. Where appropriate, we have 

referred to this paragraph in §§ 10.7, 

10.9, and 10.10. 

E. Subparts B and C 

64. Comment: We received 53 

comments on the regulatory steps for 

consultation (Initiate consultation and 

Consult with requesting parties) in 

§§ 10.4, 10.9, and 10.10. Three 

comments supported the requirement 

for museums and Federal agencies to 

initiate consultation in these 

paragraphs. The largest number of 

comments (15) requested we remove the 

requirement for consulting parties to 

submit a written request to consult. In 

addition, 11 comments requested that 

the invitation to consult include a clear 

statement that sensitive information will 

not be requested, but if shared, the 

consultation record will be protected 

from disclosure ‘‘to any person for any 

reason.’’ Five comments requested 

changes to the two terms ‘‘consulting 

parties’’ and ‘‘requesting parties’’ while 

one comment requested adding to the 

list of ‘‘consulting parties.’’ Five 

comments requested deference to Indian 

Tribes or NHOs on the timelines for 

consultation and one comment 

requested deference to documentation 

submitted by Indian Tribes or NHOs 

during consultation. Four comments 

requested changes to ensure 

consultation is not cutoff with 

publication of a notice. Three comments 

questioned the use of good-faith effort in 

these paragraphs. Two comments 

questioned how consultation can 

proceed where consensus cannot be 

reached. Two comments recommended 

adding an upfront fee payment for 

initiating consultation, like the Federal 

Communications Commission. One 

comment stated that consultation is not 

streamlined or simplified in these 

regulations. 

DOI Response: We have removed the 

requirement for a consulting party to 

submit a written request to consult and, 

consequently, the cutoff for requests to 

consult before publication of a notice. 

Correspondingly, we have removed the 

requirement for a response to the 

request to consult within 10 days. As 

noted in the proposed rule, the written 

request to consult was a necessary 

precursor to require a museum or 

Federal agency to respond by a certain 

date. While a written request to consult 

is no longer a requirement, we would 

recommend a consulting party submit a 

written request to consult to ensure 

there is a clear record in case the 

museum or Federal agency does not 

respond. 

As noted in Comment 5, we cannot 

dictate how a museum or Federal 

agency requests or records sensitive 

information it receives during 

consultation. We can, and have, 

specifically limited the information 

needed to comply with these 

regulations, and we encourage lineal 

descendants, Indian Tribes, and NHOs 

to request that museums and Federal 

agencies ensure that information of a 

particularly sensitive nature is not made 

available to the public, pursuant to 

otherwise applicable law. Since 1995, 

the Department has recommended that 

museum or Federal officials ensure that 

sensitive information does not become 

part of the public record by not 

collecting, or writing down, such 

information in the first place (1995 

Final Rule, 60 FR 62154). We 

recommend that in a response to an 

invitation to consult, lineal 

descendants, Indian Tribes, and NHOs 

stipulate their requirements for 

protecting sensitive information shared 

during consultation, such as prohibiting 

any audio or video recording of 

consultation, requiring use of a specific 

note-taker or transcriptionist, or 

conducting consultation in a separate 

facility with limited attendance. 

We have made clarifying edits to the 

paragraphs in §§ 10.4, 10.9, and 10.10, 

including the requested change from 

‘‘requesting parties’’ to ‘‘consulting 

parties’’ throughout. We note that 

consulting parties are those with 

potential cultural affiliation, but this 

should not impact the role of removed 

and aboriginal land Indian Tribes as 

consulting parties. Based on 

geographical information, removed and 

aboriginal land Indian Tribes are those 

with potential cultural affiliation. We 

have not added a requirement for 

payment of an upfront fee in the 

initiation of consultation. We 

recommend that in a response to an 

invitation to consult, lineal 

descendants, Indian Tribes, and NHOs 

stipulate their requirements for 

conducting consultation, including any 

required financial support. 

In response to other comments, we 

have made changes to the paragraphs in 

§§ 10.4, 10.9, and 10.10 to correspond to 

changes in the definition of consultation 

which directly addresses comments on 

deference, good-faith, and reaching 

consensus. We have changed 

recommendations to preferences on the 

timeline and method for consultation, 

but we cannot require deference in this 

instance because the timeline may be 

dictated by other requirements in the 

regulatory processes. 

65. Comment: We received 20 

comments on the regulatory steps for 

submitting a notice for publication and 

for receiving and considering a claim for 

disposition or a request for repatriation 

in §§ 10.7, 10.9, and 10.10. Four 

comments supported the timeline for 

the National NAGPRA Program to 

approve or return a notice submission 

but requested that a timeline be added 

requiring museums, Federal agencies, or 

DHHL to submit a revised notice. Five 

comments requested clarification on the 

statements in §§ 10.7 and 10.10 that any 

claim or request received no later than 

30 days after publication of a notice 

must be considered, noting that the 

preceding sentence in both sections 

seemed contradictory since any claim or 

request must be received before a 

disposition or repatriation statement is 

sent. One comment requested 

grammatical edits to clarify the criteria 

for a claim for disposition or request for 

repatriation. Seven comments in one 

submission repeatedly objected to the 

30-day timeframe for lineal 

descendants, Indian Tribes, or NHOs to 

submit claims or requests following a 

notice publication in §§ 10.7, 10.9, and 

10.10. On the other hand, one comment 

stated submission of claims or requests 

should be limited to the 30 days after 

publication notice and requests received 

after that date should not be considered. 

One comment disagreed with the 

provisions for claims or requests to be 

received before publication of a notice 

while another comment felt these 

provisions would ensure more 

flexibility for lineal descendants, Indian 

Tribes, and NHOs. 

DOI Response: We do not intend to 

impose deadlines on lineal descendants, 

Indian Tribes, or NHOs to submit claims 

for disposition or requests for 

repatriation. Under these regulations, a 

notice is required to identify the date 

(30 days from the date of publication) 

after which a disposition or repatriation 

statement may be sent to a claimant or 

a requestor. We intended to clarify in 

these provisions that any claim or 

request submitted during that 30-day 

period must be considered since a 

disposition or repatriation statement 

may be sent immediately after that date. 

With the disposition or repatriation 

statement, the museum or Federal 

agency divests itself of any interest in 

the human remains or cultural items 

and cannot accept or consider a request 

from any other party. 

Therefore, while there is no timeline 

for lineal descendants, Indian Tribes, 

and NHOs to act, a failure to do so 

before a disposition or repatriation 


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statement is sent is an irrevocable 

waiver of any right to make a claim or 

a request (see § 10.1(g) and Comment 

20). For example, once a notice of any 

kind publishes in the Federal Register, 

there is a 30-day period for any party to 

make a claim for disposition or a request 

for repatriation. On day 31, if a 

disposition or repatriation statement is 

sent to a claimant or requestor, any 

additional claims or requests will not be 

considered. 

We have added a timeline (14 days or 

two weeks) for a museum or Federal 

agency to resubmit a notice that is 

returned to them under §§ 10.7, 10.9, or 

10.10. We have adjusted the timeline 

(from 15 days to 21 days) for the 

National NAGPRA Program to accept or 

return a notice. This change is related to 

the change in § 10.1(f) from business 

days to calendar days and does not 

change the overall timeline (3 weeks). 

We have removed the sentence stating 

that any claim or request received no 

later than 30 days after publication of a 

notice must be considered. While 

accurate, we understand the confusion 

this sentence causes, especially 

considering the objections to the 30-day 

deadline. We have made grammatical 

changes to the criteria to ensure clarity. 

We have not made changes to the date 

of a claim or request received before 

publication of a notice (same date the 

notice was published). We agree that 

this provides flexibility for lineal 

descendants, Indian Tribes, and NHOs. 

In addition, we feel this provides the 

opportunity for lineal descendants, 

Indian Tribes, and NHOs to dictate the 

timeline, as much as they can, after 

publication of a notice of any kind. For 

example, in a claim for disposition or a 

request for repatriation, the lineal 

descendant, Indian Tribe, or NHO could 

request that the disposition or 

repatriation statement be sent on day 31 

after publication of any kind. If any 

competing claims or requests are 

received during the 30-day period, this 

request could not be accommodated. If 

no competing claims or requests are 

received, nothing in these regulations 

would prevent the disposition or 

repatriation statement from being sent 

on day 31. In addition to competing 

claims or requests, other factors outside 

of these regulations, such as legal 

review of the statement or deaccession 

policies, may require additional time 

before sending the disposition or 

repatriation statement. 

If no competing claims or requests are 

received, 31 days is the minimum 

amount of time between any kind of 

notice publication and sending a 

disposition or repatriation statement. 

Under §§ 10.7 and 10.10, the maximum 

amount of time between notice 

publication and sending a disposition or 

repatriation statement depends on when 

a claim for disposition or request for 

repatriation is received. No later than 90 

days after responding to a claim for 

disposition or a request for repatriation, 

a disposition or repatriation statement 

must be sent. 

66. Comment: We received 22 

comments on the regulatory steps for 

disposition or repatriation under 

§§ 10.7, 10.9, or 10.10. Of that total, 13 

comments requested that the regulations 

require documentation or notification of 

physical transfer after a disposition or 

repatriation statement is sent. Four 

comments made a similar request for 

documentation of the discretionary 

physical transfer or reinterment of 

human remains or cultural items under 

§§ 10.7 or 10.10 specifically so, in the 

future, Indian Tribes or NHOs with 

cultural affiliation would be able to 

request the return of those human 

remains or cultural items. Three 

comments requested disposition or 

repatriation statements be published in 

the Federal Register specifically to 

further support the reviewability of 

disposition or repatriation statements by 

Federal agencies. On the other hand, 

one comment requested a ‘‘paper 

transfer’’ procedure be developed or 

explained for Indian Tribes or NHOs 

who do not have access to a curation 

facility or other means to physically and 

honorably receive human remains or 

cultural items. One comment requested 

clarification as to what kinds of 

agreements might be entered into after 

a disposition or repatriation statement is 

sent. An additional 14 comments made 

a similar request to include physical 

transfer in the definitions of 

‘‘disposition’’ or ‘‘repatriation’’ (see 

Comment 51). 

DOI Response: We have not made the 

requested changes related to physical 

transfers or reinterments for several 

reasons. We have made changes to the 

definition of repatriation and to what is 

required after a disposition or 

repatriation statement is sent. 

First, there is a need to balance the 

requests for additional documentation 

and notification with the protection of 

sensitive information. Any document 

submitted to the National NAGPRA 

Program is generally subject to release 

under the Freedom of Information Act. 

Requiring documentation of physical 

transfers or reinterments to be submitted 

to the National NAGPRA Program or 

published in the Federal Register comes 

with added risks of disclosure of 

sensitive information. As we advise 

museums and Federal agencies, the best 

way to prevent sensitive information 

from being released is to not write it 

down in the first place. 

Second, as discussed in the response 

to comments on the definitions in 

Comment 51, it is difficult for these 

regulations to require physical transfer 

either as a part of or after the regulatory 

processes for disposition or repatriation. 

The term physical transfer is used in 

these regulations to provide for an 

action that, as desired by a Tribe or 

NHO, may occur, but is not required to 

occur, after sending a disposition or 

repatriation statement. While we only 

received one comment indicating this, 

we know that many lineal descendants, 

Indian Tribes, and NHOs prefer to not 

complete physical transfer immediately 

or at all. Therefore, as in the proposed 

regulations, we have retained a 

separation between the disposition or 

repatriation statements and physical 

transfer, and we have not attached any 

requirements for reporting on physical 

transfer in these regulations. 

Documentation of physical transfer is 

required but is not sent to the National 

NAGPRA Program or published in the 

Federal Register. 

Third, the Act does not provide for or 

require the involvement of the Secretary 

in the physical transfer or in any other 

procedure after publication of a notice. 

The proposed regulations provided, and 

these regulations retain, a new 

requirement for the Secretary to receive 

copies of disposition or repatriation 

statements. This new requirement is 

based on the 2010 Government 

Accountability Office report on the 

implementation of the Act, and the 

Department will retain these documents 

with the other compliance documents in 

the disposition or repatriation 

processes. However, we do not believe 

the Department should collect any 

additional documentation on the 

physical transfers or publish these 

disposition or repatriation statements. 

We affirm our response to consultation 

in 2021 that publication in the Federal 

Register would be costly, inefficient, 

and of little relative value. The purpose 

of publishing a notice under the Act and 

these regulations is to allow additional 

parties to come forward. Disposition or 

repatriation statements are the final step 

in regulatory processes and recognize 

the rights of a lineal descendant, Indian 

Tribe, or NHO in the human remains or 

cultural items. These statements cannot 

be challenged or revoked. Publication of 

those statements might lead to 

confusion about which type of 

publication is appealable. Although not 

incorporated into the regulatory text, the 

National NAGPRA Program will record 

information on disposition or 

repatriation statements it receives from 


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both museums and Federal agencies and 

will provide that information in its 

databases or upon request. 

The Act provides very little 

instruction for this significant and 

important part of the processes. The 

section of the Act titled ‘‘Repatriation’’ 

(25 U.S.C. 3005) focuses on the 

circumstances under which human 

remains or cultural items must be 

‘‘expeditiously returned’’ after a request 

from a lineal descendant, Indian Tribe, 

or NHO. The Act requires that the return 

of human remains or cultural items be 

‘‘in consultation with the requesting 

lineal descendant or [T]ribe or 

organization to determine the place and 

manner of delivery of such items’’ (25 

U.S.C. 3005(a)(3)). Congressional reports 

state that after a notice, a museum or 

Federal agency must ‘‘make 

arrangements to return such items if the 

appropriate [T]ribe made a request’’ (H. 

Rpt. 101–877, at 11) and must allow for 

‘‘mutually acceptable alternative[s] to 

repatriation’’ (S. Rpt. 101–473, at 8). 

The existing regulations refer to 

‘‘transfer custody’’ of human remains or 

cultural items from Federal land. For 

holdings or collections of human 

remains or cultural items with cultural 

affiliation, only ‘‘repatriation’’ is used, 

as in consultation must occur on the 

place and manner of the repatriation 

and the content and recipients of all 

repatriations must be permanently 

documented. Under the 2010 

regulations, ‘‘transfer control’’ is used 

repeatedly to describe the process for 

culturally unidentifiable human 

remains. 

We sought to clarify this in the draft 

revisions for consultation in 2021 where 

we provided two separate terms: 

‘‘disposition’’ and ‘‘repatriation’’ and 

neither term included physical transfer. 

Transfer and physical transfer were 

used elsewhere after disposition or 

repatriation statements. In 2021, we did 

not receive any related comments on 

physical transfer. In the proposed 

regulations, we did not address the 

separation of disposition or repatriation 

from physical transfer and retained the 

procedures for physical transfer that, as 

desired by a Tribe or NHO, may occur, 

but are not required to occur, after 

disposition or repatriation (2022 

Proposed Rule, 87 FR 63246, 87 FR 

63250, and 87 FR 63255). 

We appreciate and understand the 

significance of physical transfer or other 

desired outcomes for lineal 

descendants, Indian Tribes, and NHOs 

after museums and Federal agencies 

complete the regulatory processes by 

sending a disposition or repatriation 

statement. We do not intend these 

regulations to indicate that completion 

of the regulatory processes is the end 

goal for lineal descendants, Indian 

Tribes, NHOs, museums, or Federal 

agencies. We know that for many lineal 

descendants, Indian Tribes, and NHOs, 

this work is not finished until their 

ancestors and other relatives are home 

or at rest. For many museums and 

Federal agencies, this work is not 

finished until the holding or collection 

is in the hands of its rightful caretakers. 

However, we also know that the 

desired outcome of the disposition or 

repatriation processes vary greatly 

among lineal descendants, Indian 

Tribes, and NHOs. If or when physical 

transfer occurs depends on many 

factors, including spiritual, cultural, or 

religious observances, which cannot and 

should not be dictated by a regulatory 

process. It is, therefore, difficult for 

these regulations to require physical 

transfer either as a part of or after the 

regulatory processes. In response to the 

request for clarification on agreements 

after disposition or repatriation, any 

kind of agreement could occur after a 

disposition or repatriation statement is 

sent. We provided this language from 

the Act to ensure it was clear that once 

a lineal descendant, Indian Tribe, or 

NHO holds all rights and interests in the 

human remains or cultural items, what 

comes next is not in any way dictated 

by these regulations. We have removed 

‘‘the care or custody’’ to ensure there is 

no implied limitation on such an 

agreement. Examples of agreements after 

disposition or repatriation include 

curation agreements, agreements to 

reinter human remains or cultural items, 

or agreements to analyze human 

remains or cultural items. The terms of 

the agreement, however, are at the 

discretion of the lineal descendant, 

Indian Tribe, or NHO. 

67. Comment: We received 20 

comments on the regulatory steps for or 

after disposition or repatriation 

statements in §§ 10.7, 10.9, and 10.10. 

Two comments related to the 

requirements for consultation on the 

care, custody, and physical transfer of 

human remains or cultural items. One 

comment requested that we add that 

museums or Federal agencies cannot 

dictate care, custody, or physical 

transfer before or after a disposition or 

repatriation statement is sent. One 

comment recommended based on 

experience that consultation on care, 

custody, or physical transfer only occur 

after a disposition or repatriation 

statement is sent. One comment 

requested that the regulations require 

museums and Federal agencies to pay 

for care and physical transfer of human 

remains or cultural items. The other 

comments suggested the following 

language changes: 

• Replace physical ‘‘transfer’’ with 

physical ‘‘repatriation;’’ 

• Replace ‘‘requestors’’ with 

‘‘claimants;’’ 

• Replace ‘‘most appropriate 

claimant/requestor’’ with ‘‘closest 

cultural affiliation claimants’’ and cite 

to § 10.3 of this part; 

• Replace disposition or repatriation 

‘‘statements’’ with ‘‘documents;’’ 

• Replace ‘‘care, custody’’ with ‘‘the 

appropriate duty of care, custody;’’ and 

• Replace ‘‘delivery’’ with ‘‘escort’’ to 

be sensitive to the nature of human 

remains and cultural items. 

DOI Response: We have made the 

requested changes to require a museum 

or Federal agency to consult with a 

requestor on custody and physical 

transfer after a disposition or 

repatriation statement is sent. Nothing 

under the Act or these regulations allow 

a museum or Federal agency to dictate 

any action after a disposition or 

repatriation statement is sent. 

Regardless of the disposition or 

repatriation statement, a museum or 

Federal agency is obligated to exercise 

a duty of care for human remains or 

cultural items in its custody or in its 

possession or control under § 10.1(d) 

and to defer to lineal descendants, 

Indian Tribes, and NHOs. We cannot 

require museums or Federal agencies 

pay for care or physical transfer. 

We have not changed ‘‘physical 

transfer’’ for reasons explained in 

Comment 66 on the intentional 

difference between disposition or 

repatriation and physical transfer. We 

have not changed ‘‘requestor’’ to 

‘‘claimants.’’ We have intentionally 

used the terms ‘‘claim’’ and ‘‘claimant’’ 

to refer to the disposition process in 

Subpart B and ‘‘request’’ and 

‘‘requestor’’ to refer to the repatriation 

process in Subpart C. We cannot make 

the requested change from ‘‘most 

appropriate claimant/requestor’’ 

because while the Indian Tribe or NHO 

with the closest cultural affiliation 

under § 10.3 is one possible most 

appropriate claimant/requestor, 

competing claims for disposition or 

repatriation might involve lineal 

descendants or other Indian Tribes with 

a priority for disposition. We have not 

changed statements to documents. 

Statements are used in limited instances 

in these regulations and indicate a 

specific kind of document. Document is 

used more broadly. 

We have removed ‘‘care’’ in any use 

outside of the duty of care. We have 

revised the documentation of physical 

transfer to not require any specific 

information. While physical transfer 


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must be documented, it is up to the 

lineal descendant, Indian Tribe, or NHO 

to dictate what the documentation 

should contain to ensure protection of 

sensitive information. 

F. Section 10.4 General 

68. Comment: We received seven 

comments requesting changes to 

Subpart B-Protection of human remains 

or cultural items on Federal or Tribal 

lands. Six of these comments requested 

that the regulations acknowledge the 

application of the Act to human remains 

or cultural items removed from Federal 

or Tribal lands that are subject to the 

disposition and trafficking provisions of 

the Act. The comments request a 

procedure by which Indian Tribes can 

report human remains and cultural 

items obtained in violation of the Act 

and send a clear signal to third parties 

that it is a crime to sell human remains 

or cultural items under NAGPRA and 

other statutes, such as the 

Archaeological Resources Protection Act 

(ARPA). The comments specifically 

request that references to human 

remains and cultural items ‘‘on’’ Federal 

or Tribal lands be expanded to human 

remains or cultural items ‘‘located on or 

removed from’’ such lands. One 

comment requested stronger 

requirements in the regulations to 

protect Tribal cultural heritage and 

sacred sites from theft or damage on 

Federal lands. 

DOI Response: We cannot add the 

requested procedures to these 

regulations. We agree that the criminal 

provisions of the Act (18 U.S.C. 1170(a) 

and (b)) apply to human remains or 

cultural items as defined in the Act and 

these regulations. The Secretary and the 

Department do not have jurisdiction for 

implementing those provisions of the 

Act and cannot add them to these 

regulations. Any human remains or 

cultural items located on or removed 

from Federal or Tribal lands after 

November 16, 1990, are subject to these 

regulations under Subpart B. If human 

remains or cultural items are obtained 

illegally from Federal or Tribal lands, 

the processes described in these 

regulations do not apply until the 

human remains or cultural items are 

recovered by Federal law enforcement 

agents and any criminal procedures 

have concluded. The title of Subpart B 

highlights the procedures in §§ 10.4, 

10.5, and 10.6 that provide protection to 

human remains or cultural items that 

are located on Federal or Tribal land. 

The disposition procedures in § 10.7 

apply to any human remains or cultural 

items that are removed from Federal or 

Tribal land. We do not believe changing 

‘‘on’’ to ‘‘located on or removed from’’ 

will have any impact on the application 

of these regulations. We are unable to 

add any requirements to these 

regulations that exceed the requirements 

provided in the Act for protection of 

human remains or cultural items on 

Federal or Tribal land. 

69. Comment: We received 15 

comments on § 10.4, generally. Of that 

total, 14 comments suggested changes to 

the section while one comment 

supported it as proposed. Ten 

comments requested a separate and 

simplified procedure for boarding 

school cemeteries on Federal lands, 

such as (1) consult, (2) develop a plan 

of action, and (3) disinter, with no 

requirement for an ARPA permit. One 

comment objected to the revisions and 

found the text confusing and unclear. 

One comment stated that these 

regulations should not require actions 

by Indian Tribes on Tribal lands. One 

comment suggested removing this 

section entirely and relying on the 

provisions of the National Historic 

Preservation Act (NHPA) because 

‘‘[t]here is no need for a plan of action 

independent of that already stipulated 

for historic preservation requirements in 

the NHPA’’ (see NPS–2022–0004–0116). 

One comment requested a procedure for 

Indian Tribes to make requests for a 

plan of action or comprehensive 

agreement, to report non-compliance of 

Federal agencies, and to file suit under 

the Administrative Procedures Act. 

DOI Response: We cannot make the 

requested change for boarding school 

cemeteries. As stated in the proposed 

regulations, the Act does not require a 

Federal agency to engage in an 

excavation of possible burial sites 

(Geronimo v. Obama, 725 F. Supp. 2d 

182, 187, n. 4 (D.D.C. 2010)). However, 

the excavation provisions of the Act and 

these regulations apply to the human 

remains and cultural items disinterred 

from cemeteries on Federal or Tribal 

lands (2022 Proposed Rule, 87 FR 

63205). The suggested simplified 

procedure is already provided for in 

these regulations. Any Indian Tribe or 

NHO may request the excavation of a 

burial site on Federal lands and, if the 

Federal agency agrees, a plan of action, 

including consultation with lineal 

descendants, Indian Tribes, or NHOs, is 

required. These regulations cannot 

require that a Federal agency agree to 

excavate a burial site nor can we 

unilaterally state an ARPA permit is not 

required for excavations at boarding 

school cemeteries. However, we believe 

these regulations provide a streamlined 

procedure for excavations of boarding 

school cemeteries through consultation 

and a plan of action, and the 

Department encourages any Federal 

agency that manages boarding schools 

and cemeteries on Federal lands to 

consult with lineal descendants, Indian 

Tribes, and NHOs on identification, 

disinterment, and repatriation of Native 

American children. The Department 

stands ready to assist Federal agencies, 

Indian Tribes, and NHOs to the fullest 

extent of its authority. 

We have made changes to the first 

paragraph in this section to clarify the 

responsibilities under this section and 

this Subpart. We cannot remove the 

requirement for Indian Tribes to take 

actions on Tribal lands as these actions 

are required by the Act itself. We cannot 

delete this section and rely on 

provisions in the NHPA because the 

scope of the Act and these regulations 

can be greater than the NHPA 

requirements. However, we encourage 

Federal agencies to consider 

coordinating requirements under these 

regulations with any other required 

consultation and planning efforts for 

their planned activities on Federal 

lands. Nothing in these regulations 

would prevent an Indian Tribe from 

requesting a plan of action or 

comprehensive agreement from a 

Federal agency, and these regulations 

require a plan of action for any 

discovery or excavation on Federal 

lands. Federal agencies are required to 

comply with these regulations for any 

human remains or cultural items on 

Federal lands. Federal law provides 

ways to allege that a Federal agency has 

failed to comply with the requirements 

of the Act or the regulations (or any 

other Federal law or regulations). The 

most broadly applicable way to allege 

that a Federal agency has failed to 

comply is to send an allegation to the 

head of the appropriate Federal agency 

or to the Federal agency’s Office of the 

Inspector General. If the alleged failure 

to comply is a final agency action (see 

§ 10.1(i)), the failure to comply could 

also be the subject of a lawsuit under 

the Administrative Procedure Act (5 

U.S.C. 704). 

70. Comment: We received eight 

comments on § 10.4(a) requiring 

designation of an appropriate official. 

One comment supported the change, 

noting that it would increase 

transparency. One comment suggested 

designation of appropriate officials be 

reported to the Manager, National 

NAGPRA Program. Two comments 

requested a training requirement be 

added for Federal agency employees. 

Four comments questioned whether the 

Bureau of Indian Affairs (BIA) should 

designate the appropriate official for 

Tribal lands in Alaska and the 

continental United States rather than an 

Indian Tribe. Two of these comments 


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stated that because the BIA is currently 

responsible for discovery, excavation, 

and disposition on Tribal lands in 

Alaska and the continental United 

States, this change would require the 

BIA to notify all private landowners 

within the exterior boundaries of 

reservations that authority on those 

lands has changed from the BIA to the 

relevant Indian Tribe. The other two 

comments strongly objected to this 

change and requested that ‘‘. . . 

NAGPRA and its implementing 

regulations designate BIA as the 

exclusive regulatory authority over the 

discovery, excavation, and disposition 

of Native American cultural items 

within the exterior boundaries of any 

Indian reservation. Only after this 

necessary step is taken should transfer 

of that jurisdiction to the Tribes be 

contemplated’’ (see NPS–2022–0004– 

0151). 

DOI Response: We decline to make 

the requested changes. Each Indian 

Tribe, Federal agency, or DHHL may 

designate appropriate officials in any 

way that best suits its organizational 

structure. For some Federal agencies, 

like the National Park Service, the 

appropriate officials may be the 

Superintendent of each park unit. The 

National NAGPRA Program cannot and 

should not track or record those 

designations. Each Federal agency is 

also responsible for ensuring the 

appropriate official receives the 

necessary training. 

We disagree that the Act, the existing 

regulations, or the other cited 

regulations designate that the BIA is 

responsible for discovery, excavation, 

and disposition on Tribal lands in 

Alaska and the continental United 

States. In the Act, Congress specifically 

required that a person discovering 

human remains and cultural items 

notify ‘‘the Secretary of the Department, 

or head of any other agency or 

instrumentality of the United States, 

having primary management authority 

with respect to Federal lands and the 

appropriate Indian [T]ribe or Native 

Hawaiian organization with respect to 

[T]ribal lands’’ 25 U.S.C. 3002(d)(1) 

(emphasis added). Nowhere does the 

Act mention the Bureau of Indian 

Affairs. We agree that Indian Tribes 

have discretion under the existing 

regulations in responding to a discovery 

on Tribal lands and that, also under the 

existing regulations, the BIA is 

responsible for issuing an ARPA permit 

on private lands that are also Tribal 

lands. Neither the existing regulations 

nor the Secretary assign the BIA 

responsibility for consultation, 

obtaining consent, or disposition of 

human remains or cultural items on 

Tribal lands. As the proposed 

regulations stated, the clarification of 

the appropriate official for Tribal lands 

is to improve consistency with the Act 

by requiring certain actions by Indian 

Tribes, NHOs, and DHHL on Tribal 

lands. We note that other comments 

discussed below were supportive of 

Indian Tribes managing and making 

decisions regarding discoveries or 

excavations on their Tribal lands under 

§§ 10.5 and 10.6 of this part (see NPS– 

2022–0004–0119, as one example). 

Furthermore, the BIA does not have a 

record or list of private landowners 

within the exterior boundaries of a 

reservation, and the Federal 

Government has no obligation, besides 

those instituted by Congress in the 

Administrative Procedure Act, to inform 

the public of changes in laws or 

regulations. 

71. Comment: We received 27 

comments on § 10.4(b) Plan of action. Of 

that total, 21 comments suggested 

changes to the paragraph while six 

comments supported it as proposed. 

Four comments requested a statement 

that plans of action and comprehensive 

agreements are not required on Tribal 

lands. Seven comments suggested 

changes to the likelihood of a discovery 

or excavation to include deference to 

Indian Tribes or NHOs. One comment 

requested that a plan of action be 

required before a discovery occurs. 

Several comments requested specific 

changes to requirements of a plan of 

action in paragraph (b)(3) of this section. 

One comment requested clarification on 

how a plan of action accommodates 

immediate reburial of human remains or 

cultural items. One comment objected to 

leaving or relocating human remains or 

cultural items without adequate 

protection or security. Two comments 

requested leaving or relocating human 

remains or cultural items be required in 

all cases. One comment requested 

archaeological recording and analysis be 

added back into the plan of action. One 

comment requested adding 

identification of human remains or 

cultural items to the plan of action. 

Three comments requested Indian 

Tribes and NHOs be required to sign the 

plan of action. 

DOI Response: We have clarified that 

when a Federal agency or DHHL is 

responsible for a discovery or 

excavation on Federal or Tribal lands, a 

plan of action is required. A plan of 

action is not required for a discovery or 

excavation on Tribal lands when the 

Indian Tribe or NHO has responsibility. 

We hope this clarifies that when an 

Indian Tribe delegates its responsibility 

for a discovery or excavation on Tribal 

lands to the BIA or another Federal 

agency, the BIA or Federal agency must 

approve and sign a plan of action. In 

Hawai1i, DHHL must approve and sign 

a plan of action on Tribal lands unless 

a NHO agrees to be responsible for 

discoveries or excavations on the Tribal 

lands of an NHO. In that case, a plan of 

action is not required on Tribal lands of 

an NHO. 

We have added the phrase ‘‘in 

consultation with Indian Tribes and 

Native Hawaiian organizations’’ to the 

likelihood of a discovery or excavation 

for a planned activity. We cannot 

strengthen this requirement further 

because Federal agencies and DHHL 

may have certain obligations under land 

management authorities to allow 

planned activities even when an Indian 

Tribe or NHO objects. However, Federal 

agencies and DHHL also have 

consultation responsibilities for land 

management activities that should 

inform when a planned activity is likely 

to result in a discovery or excavation 

subject to these regulations. We cannot 

require a general plan of action be 

developed by all Federal agencies and 

DHHL in case of discovery, but we agree 

with the comment that a plan of action 

is a useful tool to ensure efficiency and 

effectiveness in responding to a 

discovery. We believe that the 

requirement for a plan of action after a 

discovery will encourage Federal 

agencies and DHHL to develop these 

plans. 

The comments requesting changes to 

the content of a plan of action 

demonstrate the diversity of opinions on 

protecting and caring for human 

remains or cultural items on Federal or 

Tribal lands. Because of this diversity of 

opinion, we have not made the 

requested changes to the minimum 

requirements for a plan of action to 

ensure flexibility. The requirements for 

a plan of action must be broad and 

allow for modification to specific 

circumstances and preferences of 

consulting parties. These are minimum 

requirements for a plan of action and 

any consulting party can request 

additional elements be added to a plan 

of action during consultation. For 

example, a plan of action might indicate 

that the consulting parties prefer 

protection of human remains or cultural 

items in situ or by relocating them in a 

nearby location. Alternately, a plan of 

action might require the immediate 

removal of human remains or cultural 

items to a secure, protected facility. In 

other cases, a plan of action might 

instruct the appropriate official to take 

no action upon the discovery of human 

remains or cultural items to allow for 

natural exposure or erosion. 


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We cannot require a plan of action be 

signed by Indian Tribes or NHOs, but an 

Indian Tribe or NHO can request to sign 

a plan of action. The appropriate official 

must approve and sign the plan of 

action by the deadlines required under 

§§ 10.5 and 10.6 and identify 

disposition by the deadlines required 

under § 10.7 with or without receiving 

a response to the invitation to consult. 

These regulations do not and cannot 

require a lineal descendant, Indian 

Tribe, or NHO to respond to the 

invitation to consult. 

72. Comment: We received 14 

comments on § 10.4(c) Comprehensive 

agreement. Two comments supported 

the paragraph as proposed while 12 

comments suggested changes to it. Most 

of the comments requested more detail 

or additional requirements be added to 

this paragraph. Some comments 

requested a requirement for 

comprehensive agreements to be 

renewed on a regular basis. A few 

comments requested Tribal policy 

should be substituted for a 

comprehensive agreement if applicable. 

One comment asked if Indian Tribes 

could execute comprehensive 

agreements with other Indian Tribes. 

One comment stated comprehensive 

agreements should not be promoted by 

these regulations because a well-crafted 

plan of action works better than a 

comprehensive agreement. 

DOI Response: The diversity of 

opinion on what a comprehensive 

agreement should contain is precisely 

why we decline to make any changes to 

this paragraph. The comprehensive 

agreement, like the plan of action, is 

necessarily broad and includes only the 

minimum requirements. As the 

comprehensive agreement is at the 

discretion of the parties involved, these 

regulations should not dictate the 

content or nature of the agreement. 

Comprehensive agreements should 

contain whatever terms or requirements 

the parties wish it to contain beyond the 

minimum requirements of a plan of 

action. 

G. Section 10.5 Discovery 

73. Comment: We received three 

comments on § 10.5 Discovery, 

generally. One comment supported the 

section as proposed and two comments 

requested clarification on identifying if 

discovered human remains or cultural 

items are Native American. 

DOI Response: We have not made any 

changes. Consistent with the Act, this 

section applies only in the case where 

a person knows or has reason to know 

that the human remains are Native 

American. Whether a person knows or 

has reason to know that the human 

remains are Native American is case 

sensitive. We note that even where a 

person does not know or have reason to 

know that the human remains are 

Native American, other laws addressing 

the discovery of human remains likely 

will apply, particularly for forensic 

purposes. In such cases, the appropriate 

official would identify whether the 

human remains are Native American 

and, if Native American, would notify 

the appropriate Indian Tribes or NHOs 

of the discovery. As noted in the 1995 

Final Rule the drafter considered any 

requirement for requiring the complete 

professional identification of 

inadvertently discovered human 

remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

prior to notification of the responsible 

Federal or Indian Tribe officials to be 

‘‘officials inconsistent with the statutory 

language and the legislative history. (60 

FR 62143) 

74. Comment: We received six 

comments on Table 1 to § 10.5(a): 

Report a discovery on Federal or Tribal 

lands. Three comments requested 

changes to the last row of the table 

related to certain Federal lands in 

Alaska and seem to reference earlier 

drafts of these regulations rather than 

the proposed regulations. One comment 

requested that Indian Tribes be 

identified as the appropriate official for 

Federal, State, county, or private lands 

near Tribal lands. 

DOI Response: We cannot make the 

requested change to make Indian Tribes 

the appropriate official for Federal 

lands, but we note that any Indian Tribe 

with potential cultural affiliation is the 

additional point of contact on Federal 

lands. This subpart only applies to 

discoveries on Federal or Tribal lands. 

Discoveries on State, county, or private 

lands are subject to the laws of the State 

or county. 

We previously revised Table 1 to 

§ 10.5(a) based on similar input we 

received during consultation in 2021. 

We used the exact language from the 

Act to describe the additional point of 

contact for Federal lands in Alaska 

selected but not yet conveyed under the 

Alaska Native Claims Settlement Act 

(ANCSA). For all other Federal lands in 

Alaska, the Indian Tribe with potential 

cultural affiliation should be notified 

and an Alaska Native Corporation 

organized under ANCSA is only notified 

when the Federal land has been selected 

but not yet conveyed. Based on the 

comments, we have removed ‘‘or group’’ 

from the table as that term is 

functionally obsolete following the 

recognition of Indian Tribes in Alaska. 

75. Comment: We received four 

comments in one submission stated that 

the proposed regulations impermissibly 

require private parties to notify an 

ambiguous ‘‘additional point of contact’’ 

of a discovery of Native American 

human remains or cultural items on 

Federal lands. The additional point of 

contact is ‘‘any Indian Tribe or Native 

Hawaiian organization with potential 

cultural affiliation to the human 

remains or cultural items, if known.’’ 

According to the comment, the Act is 

unambiguous that notification of a 

discovery on Federal lands is limited to 

the Federal land managing agency. 

DOI Response: We have not made a 

change. During consultation in 2021, we 

received comments requesting the 

addition of Indian Tribes and NHOs as 

additional points of contact for 

reporting a discovery on Federal lands. 

We disagree with the comment that this 

provision is impermissible and 

ambiguous. While the Act is the primary 

authority for the issuance of regulations 

implementing and interpreting the Act’s 

provisions, Congress authorized the 

Secretary to make such regulations for 

carrying into effect the various 

provisions of any act relating to Indian 

affairs (25 U.S.C. 9). As the Act 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 this provision 

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)). 

The additional point of contact language 

is not ambiguous. Not only does this 

notification requirement only apply to a 

discoverer who knows of an Indian 

Tribe or NHO with potential cultural 

affiliation, but the reporting requirement 

also only applies to a discoverer who 

knows, or has reason to know, that 

Native American human remains or 

cultural items have been discovered. 

Whether a person knows or has reason 

to know that the human remains or 

cultural items are subject to these 

regulations is case sensitive. In cases 

involving a planned activity on Federal 

lands, a person performing the activity 

will have reason to know that 

discovered human remains or cultural 

items are subject to these regulations 

and most likely also will know of an 

Indian Tribe or NHO with potential 

cultural affiliation based on the required 

plan of action. 

76. Comment: We received five 

comments on § 10.5(a) Report any 

discovery. Of that total, three comments 

suggested changes to the paragraph 

while two comments supported it. Two 

comments requested requiring 

telephone notification while one 


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comment asked if an email qualifies as 

written documentation of the discovery. 

DOI Response: We have added a 

requirement for in-person or telephone 

notification to the first sentence 

requiring immediate reporting of the 

discovery. Written documentation of the 

discovery is required to attach the rest 

of the timelines in this section. As 

explained elsewhere and in § 10.1(e) of 

this part, written documents may be 

sent by email, with proof of receipt, or 

by other methods of delivery. 

77. Comment: We received nine 

comments suggesting changes to 

§ 10.5(b) Cease any nearby activity. Most 

of these comments requested changes to 

align this paragraph with the preceding 

paragraph and not impose any 

unintentional limits on the kind of 

activity that must be ceased upon a 

discovery. 

DOI Response: We have revised this 

paragraph to follow and refer to the 

preceding paragraph. We have removed 

the introductory sentence, which is 

already included in § 10.4 of this part, 

so as not to unintentionally limit the 

kinds of activities that must be ceased 

upon a discovery. As suggested by one 

comment, we have added that the 

written documentation of the discovery 

also include any potential threats to the 

discovery. 

78. Comment: We received nine 

comments on § 10.5(c) Respond to a 

discovery. Of that total, six comments 

requested changes to text in earlier 

drafts of these regulations rather than to 

the proposed regulations. Two 

comments requested strengthening the 

requirement to report the discovery to 

additional points of contact to initiate 

consultation. One comment requested 

an explanation of what is required 

under this paragraph on Tribal lands. 

DOI Response: We already addressed 

the concerns expressed by six comments 

in the proposed regulations. The 

proposed regulations require the 

appropriate official to respond to a 

discovery no later than three days after 

receiving written documentation. The 

appropriate official is required to report 

the discovery to any additional point of 

contact, which would be any Indian 

Tribe or NHO with potential cultural 

affiliation. The proposed regulations 

require the Federal agency or DHHL 

prepare and approve a plan of action, 

which includes consultation, for any 

discovery. We agree with the two 

comments that requested a stronger 

requirement in the paragraph to initiate 

consultation. We have made changes to 

paragraph (c)(1)(iii). 

To clarify what this paragraph 

requires on Tribal land, we provide the 

following example: A film production 

company has permission from an Indian 

Tribe to film on lands within the 

exterior boundaries of the Indian Tribe’s 

reservation. The written permission 

from the Indian Tribe requires the 

production company to immediately 

report any discovery of human remains 

or cultural items to the Director of 

Tribal Cultural Affairs and the Director 

of the regional BIA office by telephone 

and in writing by email. During filming, 

a member of the production company 

finds objects eroding from a hillside that 

may be human remains or cultural 

items. The production company reports 

the discovery by telephone and email to 

the Indian Tribe and the BIA, stops all 

activity around the discovery, secures 

and protects the objects by covering 

them, and confirms that no activity will 

resume in the area until a written 

certification is issued by the Indian 

Tribe. No later than three days after 

receiving the email from the production 

company, the Director of Tribal Cultural 

Affairs must make a reasonable effort to 

secure and protect the objects, verify 

that any activity in the area has stopped, 

and notify the Director of the regional 

BIA office. The Director of Tribal 

Cultural Affairs must send a written 

certification to the film production 

company no later than 30 days after 

receiving the email from the production 

company and provide the date (no later 

than 30 days after the date of the written 

certification) on which the film 

production may resume in the area 

around the discovery. If an excavation is 

required, the Director of Tribal Cultural 

Affairs must follow the requirements 

under § 10.6(a). If the objects are human 

remains or cultural items and they are 

removed from the hillside, the Director 

of Tribal Cultural Affairs must follow 

the requirements for disposition under 

§ 10.7. If both the BIA and the Indian 

Tribe consent in writing, the BIA could 

take responsibility for any of the actions 

described above related to the 

discovery, excavation, or disposition. 

79. Comment: We received five 

comments requesting clarification of the 

provisions found in §§ 10.5, 10.6, and 

10.7 for a NHO to accept responsibility 

for discoveries, excavations, and 

dispositions on Tribal lands of an NHO. 

DOI Response: To clarify, ‘‘Tribal 

lands of an NHO’’ does not include 

lands under a Hawaiian homestead 

lease, but rather lands that the Hawaiian 

Homes Commission has determined an 

NHO is qualified to steward under a 

lease or license pursuant to the 

Hawaiian Homes Commission Act. 

Although Congress affords such 

opportunity in the Act, an NHO need 

not accept responsibility for discoveries, 

excavations, or dispositions if it believes 

it is not qualified. As noted in the 

proposed rule, ‘‘[a]ccepting or declining 

responsibility is an exercise of 

sovereignty,’’ and ‘‘the Department 

seeks to be respectful of the sovereignty 

of the Native Hawaiian Community and 

their right to self-determination’’ (NPS– 

2022–0004–0004, pages 17 and 30). The 

regulations do not prescribe how the 

Hawaiian Homes Commission 

implements this provision, recognizing 

its authorities and responsibilities. The 

term ‘‘Tribal lands of an NHO’’ reflects 

the language of ‘‘Tribal lands’’ used in 

the Act. The Department acknowledges 

that the United States’ government-tosovereign relationship with the Native 

Hawaiian Community is different from 

its government-to-government 

relationship with Indian Tribes and 

these provisions reflect those 

relationships. 

80. Comment: We received three 

comments on § 10.5(d) Approve and 

sign a plan of action. One comment 

supported the timeline while two 

comments requested that the 

appropriate official should seek 

consensus or agreement, not just merely 

engage in consultation with, Indian 

Tribes and NHOs. 

DOI Response: We appreciate the 

support for this timeline considering 

other comments addressed below. 

Regarding consultation, we note that 

under these regulations, consultation is 

defined and includes striving for 

consensus, agreement, or mutually 

agreeable alternatives. This is required 

for consultation under this paragraph 

and any other place it is used in these 

regulations. 

81. Comment: We received 14 

comments on § 10.5(e) Certify that an 

activity may resume requesting that we 

extend the timeline for resumption of 

activities or provide more flexibility for 

the appropriate official to extend the 

timeline. Some of these comments 

believe the Act does not require the 

appropriate official to provide any date 

on which activity may resume, and, 

instead, only sets a 30-day floor to stop 

an activity after a discovery occurs. 

These comments also requested 

clarifying edits be made to this 

paragraph. Several comments on 

paragraph (c) discussed above requested 

a copy of the written certification be 

sent to consulting parties. One comment 

stated that evaluating the need for and 

authorization of an excavation of human 

remains or cultural items must be done 

in consultation with Indian Tribes or 

NHOs. 

DOI Response: We specifically 

requested input on this paragraph in the 

proposed rule, and we appreciate the 

responsive comments. However, we 


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cannot make the requested change to 

extend the timeline or build in 

additional flexibility, as discussed in 

full in the next comment and response. 

We can and have made the clarifying 

edits to this paragraph and added a 

requirement to send a copy of the 

certification to the additional points of 

contact. We note that consultation is 

required on a plan of action under 

paragraph (d) of this section, which 

includes the preference of consulting 

parties for leaving or relocating human 

remains or cultural items rather than 

excavating. A plan of action also 

requires a timeline and method for 

evaluating the potential need for an 

excavation, and we have removed the 

redundant language in paragraph (e)(3) 

of this section. 

82. Comment: We received eight 

extensive comments from one 

submission on § 10.5(e) Certify when an 

activity may resume objecting to the 

additional time provided in the 

proposed regulations. According to the 

comment, the Act unambiguously states 

that the required certification from the 

appropriate official to the person 

responsible for the activity is solely to 

acknowledge that the responsible 

official has received written notification 

of the discovery, and that after 30 days, 

the activity may resume. The comment 

cites to Senate Report 101–473 

(September 26, 1990) for the proposition 

that Congress intended the stop-work 

period to last only 30 days (‘‘After 

notice has been received the party must 

cease the activity and make all 

reasonable efforts to protect the remains 

or objects before resuming the activity. 

The activity may resume 30 days after 

notice has been received. . . Under this 

section, Indian [T]ribes or native [sic] 

Hawaiian organizations would be 

afforded 30 days in which to make a 

determination as to the appropriate 

disposition for these human remains or 

objects.’’). The comment also states that 

expanding the stop-work period by 

allowing additional time for the 

appropriate official to certify receipt of 

the notification would significantly 

interrupt and impair activities on 

Federal lands, and thereby contravene 

Congressional intent, as expressed in 

Senate Report 101–473 (‘‘The 

Committee does not intend this section 

to act as a bar to the development of 

Federal or [T]ribal lands on which 

human remains or objects are found. 

Nor does the Committee intend this 

section to significantly interrupt or 

impair development activities on 

Federal or [T]ribal lands.’’). 

Additionally, the comment states that it 

would be arbitrary and unreasonable for 

the responsible official to take up to 35 

days to certify that written notice of the 

discovery from the responsible person 

had been received. Certification is a 

ministerial task that takes little time to 

complete, and the existing regulations 

provide for a maximum of three working 

days for doing so. Consequently, the 

comment requests that the Department 

continue to require the appropriate 

official certify receipt within three 

working days of receiving notification of 

a discovery. 

DOI Response: The Department 

believes the provision to build in 

additional days, if needed, after a 

discovery is permissible. In the final 

regulations, we have revised this time to 

a standard 30 days for clarity. The Act 

does not provide a timeframe for the 

appropriate official to certify that 

written notification of a discovery has 

been received, nor does the Act address 

the action to be taken by the appropriate 

official in responding to the discovery 

itself. Based on other comments about 

this timeframe, we find there is some 

ambiguity in the Act. While the Act is 

the primary authority for the issuance of 

regulations implementing and 

interpreting the Act’s provisions, 

Congress authorized the Secretary to 

make such regulations for carrying into 

effect the various provisions of any act 

relating to Indian affairs (25 U.S.C. 9). 

As 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 this provision 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)). Ambiguities 

in statutes passed for the benefit of 

Indians are to be construed to the 

benefit of the Indians (Bryan v. Itasca 

County, 426 U.S. 373 (1976)). Therefore, 

we have provided in these regulations a 

maximum of 60 days after written 

documentation of a discovery before an 

activity could resume. This timeframe 

provides 30 days for the appropriate 

official for a Federal agency or DHHL to 

evaluate the circumstances of the 

discovery and, in consultation with 

Indian Tribes and NHOs, prepare, 

approve, and sign a plan of action. We 

have provided that no later than 30 days 

after receiving documentation of the 

discovery, the appropriate official for an 

Indian Tribe, NHO, Federal agency, or 

DHHL must certify that written 

notification of the discovery has been 

received and that a lawful activity may 

resume on a certain date, but no later 

than 30 days after the date of the written 

certification. This timeframe allows the 

appropriate official for a Federal agency 

or DHHL a reasonable amount of time to 

consult with Indian Tribes and NHOs, 

evaluate the potential need for an 

excavation, and carry out the steps in a 

plan of action. If the appropriate official 

determines, based on the circumstances, 

that a shorter timeframe is acceptable, 

the lawful activity could resume in 

fewer than 60 days. Moreover, we hope 

that Federal agencies and DHHL will be 

encouraged to engage in consultation 

earlier and develop a plan of action 

prior to a discovery to allow for a 

shorter timeframe. 

H. Section 10.6 Excavation 

83. Comment: We received 26 

comments suggesting changes to § 10.6 

Excavation. The comments generally 

disagreed with our analysis of the 

relationship between NAGPRA and 

ARPA, noting that it is inconsistent with 

the plain language of the Act and would 

unduly narrow the application of the 

Act and these regulations. Some 

comments suggested that, if we did not 

change the interpretation, we should 

add a requirement that excavations not 

on ‘‘ARPA Indian land’’ or ‘‘ARPA 

Public land’’ must have an equivalent 

permit from another jurisdiction. 

DOI Response: Our interpretation 

does not change the application of the 

Act. NAGPRA applies to its fullest 

extent on Tribal land and Federal land, 

as defined in both the statute and 

regulations. Rather, we have defined 

which excavations under the Act 

require a permit issued under ARPA 

and which do not. Specifically, the Act 

requires that human remains or cultural 

items may only be intentionally 

excavated or removed from Federal or 

Tribal land if, among other 

requirements, ‘‘such items are excavated 

or removed pursuant to a permit issued 

under [ARPA] which shall be consistent 

with [NAGPRA].’’ 25 U.S.C. 3002(c)(1). 

Since both NAGPRA and ARPA are 

intended to protect important cultural 

resources, they must be construed 

together. Further, ‘‘issued under ARPA’’ 

is an adjectival phrase modifying 

‘‘permit.’’ Thus, it is not ARPA that 

‘‘shall be consistent with NAGPRA,’’ but 

rather the ARPA permit that must be 

consistent with the Act. This is 

supported by the legislative history. The 

Senate Indian Affairs Committee 

specifically noted that it ‘‘[intended] the 

notice and permit provisions of this 

section to be fully consistent with the 

provisions of [ARPA]’’ (S. Rpt. 101–473, 

at 7). Likewise, the House Committee on 

Interior and Insular Affairs, in 

discussing the stopping of work for an 

inadvertent discovery, noted, 

‘‘[a]lthough a specific time limit was not 


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added here, the Committee does intend 

to protect the remains and objects found 

and does not intend to weaken any 

provisions of other laws, such as 

[ARPA], regarding similar situations.’’ 

Like the Senate Committee, the House 

Committee also stated, ‘‘[s]ubsection (c) 

provides that items covered by this Act 

can be excavated from Federal or 

[T]ribal land if proof exists that a permit 

has been acquired under Section 4 of 

the [ARPA]’’ (H. Rpt. 101–877, at 15 and 

17). Therefore, the provisions of ARPA, 

including the scope of public and 

Indian land, are not affected by the Act. 

So, the terms ‘‘ARPA Indian land’’ and 

‘‘ARPA public land’’ are defined in 

these regulations just as ‘‘Indian land’’ 

and ‘‘public land’’ are defined in ARPA, 

including use of the term ‘‘individual 

Indian,’’ which is used in ARPA to 

denote land that is owned by an 

individual Indian, who may or may not 

be a ‘‘lineal descendant’’ as used in the 

Act and defined in these regulations. 

The protections provided for in both 

statutes is reflected in these regulations 

by the requirement that ARPA permits 

are issued for NAGPRA excavations just 

as they are for ARPA excavations, 

keeping the full protections of each 

statute in place, as Congress intended. 

We have added the requested 

requirement that excavations on Federal 

or Tribal lands that are not ARPA Indian 

lands or ARPA Public lands must have 

an equivalent permit from the relevant 

Indian Tribe, NHO, or State, if 

applicable. 

84. Comment: We received eight 

comments on § 10.6(a) On Tribal lands. 

Of that total, one comment suggested a 

change to the paragraph while seven 

comments supported it as proposed. 

DOI Response: We cannot make the 

requested change to paragraph (a)(2) to 

replace ‘‘consent’’ with ‘‘respond.’’ 

Consent in writing from both the Indian 

Tribe and the Federal agency is required 

before the responsibility for an 

excavation is transferred from the 

Indian Tribe to the Federal agency. This 

ensures all parties are aware of the 

transfer and the responsibilities. 

85. Comment: We received 11 

comments on § 10.6(b) On Federal or 

Tribal lands. Of that total, nine 

comments suggested changes to the 

paragraph while two comments 

supported it. The comments requesting 

changes all expressed concern about the 

role of consultation in the preliminary 

steps by an appropriate official to 

evaluate the potential need for an 

excavation. 

DOI Response: We have removed the 

sentence in § 10.6 referring to evaluation 

of the potential need for an excavation. 

The timeline and method for evaluating 

the potential need for an excavation is 

a required part of a plan of action under 

§ 10.4(b)(3)(vi) of this part. The plan of 

action is required before an excavation 

is authorized and requires consultation 

with lineal descendants, Indian Tribes, 

and NHOs. We note that consultation on 

a plan of action also includes the 

preference of consulting parties for 

leaving or relocating human remains or 

cultural items rather than excavating 

them. We have made other clarifying 

edits to this paragraph considering 

comments we received on § 10.4(b) 

under this part. We have retained the 

requirement for the written 

authorization to describe the steps taken 

to evaluate the potential need for an 

excavation. We believe this is necessary 

to document how the plan of action was 

implemented. 

Because an Indian Tribe may delegate 

its responsibilities for excavations on 

Tribal lands to a Federal agency, we 

have added a requirement for the plan 

of action to include written consent of 

the appropriate Indian Tribe or NHO. 

This requirement could be fulfilled by 

the written consent delegating the 

responsibilities under paragraph (a)(2) 

of § 10.6. On Tribal lands of an NHO, 

DHHL is required to obtain written 

consent from the appropriate NHO prior 

to authorizing an excavation. 

I. Section 10.7 Disposition 

86. Comment: We received nine 

comments on § 10.7 Disposition, 

generally. Of that total, three comments 

suggested requirements for consultation 

be added to the introductory paragraph 

for this section while one comment 

supported the consultation 

requirements as proposed in § 10.7. One 

comment requested adding the 

definition of disposition to the 

introduction to this section. Two 

comments objected to the burden this 

section puts on disposition from 

boarding school cemeteries on Federal 

lands. One comment found this entire 

section confusing and the timelines too 

long. One comment objected to the 

appropriate official in this section being 

anyone other than an Indian Tribe or 

NHO. 

DOI Response: We decline to make 

the requested change to add 

consultation requirements in the 

introductory paragraph to § 10.7. This 

paragraph applies to human remains or 

cultural items removed from Federal or 

Tribal lands and as such must include 

the requirements for the appropriate 

official for an Indian Tribe on Tribal 

lands as well as for the Federal agency 

or DHHL. As discussed elsewhere, we 

received comments requesting we 

provide as much flexibility as possible 

for Indian Tribes who are responsible 

for complying with this section on their 

Tribal lands. As several of the 

comments noted, the requirements of 

§ 10.7 follow the requirements in §§ 10.5 

and 10.6 which require consultation by 

Federal agencies or DHHL through a 

plan of action. In addition, as the 

supporting comment noted, 

consultation is required throughout 

§ 10.7 by Federal agencies or DHHL. 

Disposition is defined in § 10.2 and 

the definition is used to describe what 

a disposition statement must include in 

this section. We have not repeated the 

definition here. Regarding disposition 

from boarding school cemeteries on 

Federal lands, we do not believe this 

will overly complicate the process. It 

will require, as the existing regulations 

do, that when human remains or 

cultural items are removed from Federal 

lands, including boarding school 

cemeteries, a notice must be published 

to identify the Indian Tribe with priority 

for disposition. We believe these 

regulations provide a streamlined 

procedure for excavations of boarding 

school cemeteries through consultation, 

a plan of action, and a notice of 

intended disposition. The Department 

encourages any Federal agency that 

manages boarding schools and 

cemeteries on Federal lands to consult 

with lineal descendants, Indian Tribes, 

and NHOs on identification, 

disinterment, and repatriation of Native 

American children as expeditiously as 

possible. The Department stands ready 

to assist Federal agencies, Indian Tribes, 

and NHOs to the fullest extent of its 

authority. 

We appreciate the concern expressed 

by some comments that as written and 

when read alone, the proposed 

regulations state that the appropriate 

official must determine disposition 

without consultation. We feel that a 

simple change from ‘‘determine’’ to 

‘‘identify’’ will alleviate this concern. 

The priority for disposition is 

established by the Act and all that is 

required under this section is for the 

lineal descendant, Indian Tribe, or NHO 

with priority for disposition be 

identified and, in some cases, notified. 

We have also removed the reference to 

unclaimed human remains or cultural 

items, as discussed in Comment 91. We 

cannot make the requested change to the 

appropriate official in this section. 

87. Comment: We received 19 

comments on § 10.7(a) Priority for 

disposition. Of that total, seven 

comments supported this paragraph 

especially as it relates to boarding 

school repatriations. One comment 

requested human remains or cultural 

items should only be removed from 


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Federal lands with the permission and 

partnership of the affected Indian Tribe. 

Five comments suggested changes to the 

priority order, specifically for Tribal 

lands where the Indian Tribe with 

cultural affiliation is not the Tribal land 

Indian Tribe. Four comments requested 

a significant, but grammatical, change 

from ‘‘originated’’ to ‘‘were removed.’’ 

One comment requested disposition 

should only occur if other Indian Tribes 

or NHOs consent. Other comments 

requesting changes to § 10.3 

Determining cultural affiliation required 

changes to this paragraph. 

DOI Response: We reiterate that this 

paragraph is drawn directly from the 

Act itself and does not represent a 

change in any way. We cannot add a 

requirement to this section to require 

permission or partnership; see the 

discussion above on the requirement for 

a plan of action prior to an excavation 

or after a discovery. We cannot change 

the priority order for Indian Tribes with 

cultural affiliation and Tribal land 

Indian Tribes. Under the Act, the Indian 

Tribe from whose Tribal lands the 

human remains or cultural items were 

removed has priority over any other 

Indian Tribe. Likewise, we cannot 

change the use of aboriginal land in the 

priority order after cultural affiliation. 

Any changes to the priority order would 

require Congressional action. We do 

want to note here that a final judgment 

of the Indian Claims Commission or the 

United States Court of Claims also 

includes a judgment concerning a 

settlement as long as that judgment or 

settlement either explicitly recognizes 

certain land as the aboriginal land of an 

Indian Tribe or adopts findings that do 

so. We have made the requested 

grammatical change to ‘‘originated.’’ 

88. Comment: We received 11 

comments suggesting changes to 

paragraph (b) in the proposed 

regulations under § 10.7 Disposition— 

To a lineal descendant (removed in the 

final regulations). All these comments 

requested we require notices of 

intended disposition for lineal 

descendants. 

DOI Response: We appreciate and 

agree with the need for transparency in 

these regulations. However, we reiterate 

that neither the Act nor the existing 

regulations require publication of a 

notice of intended disposition for a 

lineal descendant. On Federal land, a 

notice and a claim are only required 

when no lineal descendant has been 

ascertained. Considering comments 

related to disposition on Tribal land 

below, we do not believe we can extend 

the requirement for publication of a 

notice of intended disposition on Tribal 

land to the appropriate official for an 

Indian Tribe. Therefore, we have 

removed this paragraph entirely and 

integrated the procedure for disposition 

to lineal descendants into the two 

following paragraphs. 

89. Comment: We received 18 

comments on paragraph (c) in the 

proposed regulations under § 10.7 

Disposition—On Tribal lands (in the 

final regulations, this is renumbered 

§ 10.7(b)). Of that total, 10 comments 

requested we require notices of 

intended disposition on Tribal lands. 

The other eight comments requested we 

remove the unnecessary burdens placed 

on Indian Tribes for disposition on 

Tribal lands. Five submissions 

contained both requests, which seem 

inconsistent with each other. 

DOI Response: We believe that 

requiring the appropriate official for an 

Indian Tribe or NHO to submit a notice 

of intended disposition for publication 

in the Federal Register is an 

unnecessary burden, and we decline to 

make this change. We cannot alleviate 

the entire burden on an Indian Tribe or 

NHO for the disposition process under 

this paragraph. As noted above, we have 

removed the requirement for disposition 

statement to be sent to a lineal 

descendant, yet these regulations must 

provide some procedure for an Indian 

Tribe or NHO to identify if there is a 

lineal descendant with priority for 

disposition, which is a requirement of 

the Act. The requirements in these 

regulations remain like those in the 

proposed regulations. On Tribal lands, 

an Indian Tribe or NHO must identify 

the lineal descendant, Indian Tribe, or 

NHO with priority for disposition and 

prepare and retain a written disposition 

statement. The written disposition 

statement is required because of the 

priority afforded to lineal descendants 

under the Act. When a lineal 

descendant has not been ascertained, an 

Indian Tribe or NHO must ensure a 

record is made of the disposition in case 

a lineal descendant wishes to assert a 

priority right later. 

We believe this is the minimum 

burden these regulations can place on 

Indian Tribes or NHOs for human 

remains or cultural items removed from 

Tribal lands. We note that an Indian 

Tribe may delegate its responsibilities 

for disposition under this paragraph. In 

complex cases involving multiple 

potential lineal descendants or Indian 

Tribes with potential cultural affiliation, 

an Indian Tribe may prefer to delegate 

its responsibility to the Bureau of Indian 

Affairs or another Federal agency. This 

will alleviate the Indian Tribe of any 

additional burden and, as a result, 

require the appropriate official for the 

Federal agency to inform and consult 

with lineal descendants, Indian Tribe, 

or NHOs; publish a notice of intended 

disposition in the Federal Register; 

respond to any claims for disposition; 

resolve any competing claims; and send 

a disposition statement. We note in 

response to the comments on paragraph 

(a) of this section, while we were unable 

to change the priority order for 

disposition, this paragraph and the 

option of delegating responsibility to a 

Federal agency provide opportunity for 

an Indian Tribe to include Indian Tribes 

with cultural affiliation in the 

disposition from Tribal lands. 

90. Comment: We received 12 

comments on paragraph (d) in the 

proposed regulations under § 10.7 

Disposition—On Federal lands in the 

United States or on Tribal lands in 

Hawai‘i (in the final regulations, this is 

renumbered § 10.7(c) and retitled On 

Federal or Tribal lands). Five comments 

in the same submission questioned who 

is responsible for determinations in this 

paragraph and suggested the appropriate 

official should be a representative of an 

Indian Tribe or NHO in all 

circumstances. One of these comments 

stated six months is too long after a 

discovery or excavation to inform 

consulting parties in Step 1. Four 

comments requested adding criminal 

actions under NAGPRA to the deadline 

extension in Step 2. Two comments 

were in favor of requiring notices be 

published in the Federal Register while 

one comment opposed this change. 

DOI Response: We have clarified that 

this paragraph, as in other paragraphs in 

this subpart, applies when a Federal 

agency or DHHL has responsibility for 

disposition of human remains or 

cultural items removed from Federal or 

Tribal lands. We have tried to clarify 

who ‘‘the appropriate official’’ 

represents at the beginning of each 

paragraph and with the paragraph 

headings that identify if the paragraph 

applies ‘‘On Tribal lands’’ or ‘‘On 

Federal or Tribal lands.’’ Because this 

paragraph covers a wide variety of 

circumstances under which human 

remains or cultural items are removed 

from Federal or Tribal lands, a longer 

timeline is necessary for identifying and 

informing consulting parties. In most 

cases, however, this can occur much 

faster based on the plan of action. We 

have added a criminal action under 

NAGPRA to Step 2. We have retained 

the requirement for publication of 

notices of intended disposition in the 

Federal Register. We believe the revised 

regulatory text will prevent the current 

delays in notice publication. 

91. Comment: We received 13 

comments on paragraph (e) in the 

proposed regulations under § 10.7 


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Disposition—Unclaimed human 

remains or cultural items removed from 

Federal lands in the United States or 

from Tribal lands in Hawai‘i (in the 

final regulations, this is renumbered 

§ 10.7(d) and retitled Unclaimed human 

remains or cultural items removed from 

Federal or Tribal lands). Five comments 

emphatically and some repeatedly 

objected to the concept of unclaimed 

human remains or cultural items and 

stated that any human remains or 

cultural items removed from Federal or 

Tribal lands can be identified and 

claimed through effective and 

meaningful consultation. Two 

comments objected to the provision for 

reinterment without Indian Tribes or 

NHOs making the decision to do so. 

Two comments objected to the inclusion 

of Indian groups without Federal 

recognition in this paragraph. One 

comment stated the Federal agency or 

DHHL has an obligation to reach out to 

Indian Tribes or NHOs before human 

remains or cultural items become 

unclaimed. Two comments requested a 

list of unclaimed cultural items be 

published on the National NAGPRA 

Program website. One comment 

requested a requirement for reinterment 

to be as close as possible to the original 

site. 

DOI Response: We understand the 

objections raised by many comments to 

this provision, but we are unable to 

eliminate this paragraph because it is 

required by the Act (see 25 U.S.C. 

3002(b)). Regulations concerning this 

part of the Act were proposed in 2013 

and finalized in 2015 and contained 

very similar provisions. There may be 

circumstances where human remains or 

cultural items are removed from Federal 

or Tribal land and one year after 

publication of a notice of intended 

disposition, no Indian Tribe or NHO has 

made a claim for disposition. In other 

cases, particularly for Federal lands in 

the Eastern United States, when cultural 

affiliation cannot be determined and the 

Federal land is not the aboriginal land 

of an Indian Tribe as defined in 

§ 10.7(a), the Federal agency may not be 

able to identify any Indian Tribe or 

NHO with priority for disposition and 

the human remains or cultural items 

may be unclaimed. 

We believe the clarification and 

simplification of the disposition process 

for human remains or cultural items on 

Federal or Tribal lands that precedes 

this paragraph will address many of the 

concerns raised by these comments and 

that only a small number of human 

remains or cultural items will be 

unclaimed. To date, a total of 44 

individuals and 164 funerary objects 

have been reported as unclaimed. Since 

2015, the National NAGPRA Program 

has published a list of unclaimed 

human remains or cultural items from 

Federal or Tribal lands on its website 

(https://www.nps.gov/subjects/nagpra/ 

unclaimed-cultural-items.htm, accessed 

12/1/2023). 

We have removed the option to 

transfer unclaimed human remains or 

cultural items to Indian groups without 

Federal recognition but we have 

retained the option to transfer to an 

Indian Tribe or NHO or to reinter. At the 

discretion of the Federal agency or 

DHHL and after following the 

requirements of this paragraph, 

unclaimed human remains or cultural 

items removed from Federal or Tribal 

land may be transferred or reinterred. 

As this is a discretionary action, these 

regulations cannot dictate where 

reinterment occurs. 

J. Subpart C 

92. Comment: We received 46 

comments on the overall timelines in 

Subpart C. Of that total, 16 comments 

supported the timelines as proposed. 

Several of these comments felt the 

timelines were adequate and clearly 

explained, especially with tables. Four 

comments supported the requirements 

and timeline for updated inventories 

specifically. Two comments felt the 

timelines achieved a balance between a 

sense of urgency to repatriate and the 

practical limitations of the tasks 

involved. Two of these comments felt 

the timelines were too long and found 

the timelines to be extremely 

unbalanced and specifically aimed at 

benefitting museums and Federal 

agencies rather than lineal descendants, 

Indian Tribes, and NHOs. One comment 

felt the timelines provided sufficient 

opportunity for Indian Tribes and NHOs 

to submit requests for repatriation. 

On the other hand, 30 comments felt 

the timelines were too short, unrealistic, 

unworkable, and unachievable. Many of 

these comments from individuals and 

museums believe the timelines do not 

provide adequate time for consultation 

or relationship building and will result 

in overwhelming Indian Tribes and 

NHOs with requests to consult. Many of 

the comments from Indian Tribes 

requested the timelines be based on 

Tribal priorities. Most of the comments 

from individuals and museums felt the 

timelines underestimate the work 

required for repatriation. One comment 

stated the changes to the regulations 

were too complicated to be done 

quickly. One comment stated the 

timelines were not based in the real 

world and provided an example of one 

Federal agency that needed six months 

just to acquire a signature on a letter. 

One comment stated the focus of these 

timelines on notice publication is 

misplaced and ignores the other parts of 

the process. 

Some of these comments requested 

more flexible timelines with no set 

deadlines. Two comments predicted the 

tasks involved are more likely to take 20 

or 50 years to complete. Suggestions in 

these comments included removing 

timelines entirely, doubling all the 

timelines provided, or retaining the 

timelines in the existing regulations. 

Three comments suggested a five-year 

timeline for updating inventories. One 

comment suggested changing the 

timelines to only require initiation of 

consultation and remove the subsequent 

timelines. 

DOI Response: We have extended the 

deadline for museums and Federal 

agencies to update inventories of human 

remains and associated funerary objects 

from three years to five years after the 

effective date of these final regulations. 

We have made other changes to the 

deadlines in these regulations to 

account for the change from business 

days to calendar days discussed 

elsewhere. We have changed the 

deadline for a museum or Federal 

agency to respond to a request for 

repatriation from 60 days to 90 days for 

both human remains and associated 

funerary objects and for cultural items. 

Tables 4 and 5 provide an overview 

of the general timeframes under Subpart 

C from the longest timeline to the 

shortest timeline. Table 4 relates to 

required reporting on holdings or 

collections and Table 5 relates to 

responding to requests for repatriation. 

TABLE 4—TIMEFRAMES FOR REPORTING ON HOLDINGS OR COLLECTIONS

If a museum or Federal agency . . . . . . it must . . . . . . no later than . . . See 

Has human remains and associated funerary objects not published in a notice.Update an inventory (including consultation) ........ 5 years ............................ § 10.10(d)(3). 

Receives Federal funds for the first time and has 

possession or control of human remains and associated funerary objects.

Complete an inventory (including consultation) .... 5 years ............................ Table 1 to § 10.10(d)(2). 


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TABLE 4—TIMEFRAMES FOR REPORTING ON HOLDINGS OR COLLECTIONS—Continued 

If a museum or Federal agency . . . . . . it must . . . . . . no later than . . . See 

Receives Federal funds for the first time and has 

cultural items.

Compile and submit a summary ........................... 3 years ............................ Table 1 to § 10.9(a)(2). 

Acquires or locates human remains and associated 

funerary objects.

Initiate consultation and complete an inventory .... 2 years ............................ Table 1 to § 10.10(d)(2). 

Has custody of a Federal agency holding or collection (museums only).Submit a statement to the Federal agency and 

National NAGPRA.

1 year ............................. § 10.8(c). 

Has custody of a holding or collection and cannot 

identify an entity with possession or control (museums only).

Submit a statement to National NAGPRA ............ 1 year ............................. § 10.8(d). 

Acquires or locates cultural items ........................... Compile and submit a summary ........................... 6 months ......................... Table 1 to § 10.9(a)(2). 

Completes or updates an inventory ........................ Submit a notice of inventory completion ............... 6 months ......................... § 10.10(e). 

Receives a statement from a museum with custody 

of a Federal agency holding or collection (Federal agencies only).

Respond to the museum and National NAGPRA 180 days ......................... § 10.8(c)(1). 

Acquires previously reported human remains or 

cultural items.

Inform National NAGPRA (and initiate consultation on human remains).30 days ........................... § 10.9(a)(3)(i); § 10.10(d)(4)(i). 

Compiles a summary ............................................... Initiate consultation ................................................ 30 days ........................... § 10.9(b). 

Identifies new consulting parties ............................. Initiate consultation ................................................ 30 days ........................... § 10.9(b)(3); § 10.10(b)(3). 

TABLE 5—TIMEFRAMES FOR RESPONDING TO REQUESTS FOR REPATRIATION

If a museum or Federal agency . . . . . . it must . . . . . . no later than . . . See 

Receives competing requests for repatriation .......... Send a written determination .................................. 180 days ......................... § 10.9(h)(4); § 10.10(i)(3). 

Receives a request for repatriation .......................... Respond to the request ........................................... 90 days ........................... § 10.9(e); § 10.10(g). 

Has completed all other steps .................................. Send a repatriation statement ................................. 90 days ........................... § 10.9(g); § 10.10(h). 

Agrees to a request for repatriation of cultural items Submit a notice of intended repatriation ................. 30 days ........................... § 10.9(f). 

Receives competing requests for repatriation .......... Inform all requestors ................................................ 14 days ........................... § 10.9(h)(3); § 10.10(i)(2). 

Receives a returned notice ...................................... Resubmit a notice .................................................... 14 days ........................... § 10.9(f)(3); § 10.10(e)(3). 

While we understand the objections 

to the timelines and the concerns about 

insufficient staffing and funding, the 

Secretary, the Assistant Secretary, and 

the Department are committed to 

clearing a path to expeditious 

repatriation as Congress intended. In the 

32 years since the passage of the Act, we 

have seen some of the largest 

repatriations occur when a museum or 

Federal agency changed course to invite 

and defer to the input of lineal 

descendants, Indian Tribes, and NHOs. 

By requiring that deference throughout 

these regulations, we hope more 

museums and Federal agencies will 

change course and complete the 

regulatory requirements for repatriation. 

We must stress that most of the 

timelines and deadlines under these 

regulations are triggered by a request for 

repatriation from a lineal descendant, 

Indian Tribe, or NHO. If a museum or 

Federal agency is involved in 

meaningful and effective consultation 

with lineal descendants, Indian Tribes, 

and NHOs, pressure to complete 

repatriation within a set timeframe may 

be significantly alleviated. The one 

exception to the request requirement is 

the timeline for a museum or Federal 

agency to update an inventory of human 

remains and associated funerary objects. 

We further stress that an extension of 

this deadline may be requested by any 

museum that has made a good faith 

effort to update its inventory. We have 

added to the requirements for an 

extension the written agreement of 

consulting parties to the request. If a 

museum will need an additional 10 or 

20 or even 50 years to complete its 

inventory, it can only do so by first 

engaging in meaningful and effective 

consultation with lineal descendants, 

Indian Tribes, and NHOs. With these 

changes to the regulations, we hope to 

provide a clear path to repatriation 

where lineal descendants, Indian Tribes, 

and NHOs, rather than museums and 

Federal agencies, can define what 

expeditious repatriation means. 

93. Comment: We received 21 

comments on the requirements in 

Subpart C for museums and Federal 

agencies to identify all holdings or 

collections that may contain human 

remains or cultural items. Most of these 

comments requested additional 

language to require museums and 

Federal agencies produce transparent 

information about the full extent of their 

holdings or collections, whether in their 

possession or control or custody. These 

comments requested the regulations 

eliminate the loophole that allows 

museums and Federal agencies to avoid 

disclosing information about their 

holdings or collections. One comment 

requested a requirement to identify 

items that may have been transferred, 

stolen, sold, or removed from a holding 

or collection. One comment requested 

standards and requirements for 

museums and Federal agencies to 

engage in some level of effort to identify 

holdings or collections subject to the 

Act and these regulations. One comment 

appreciated the inclusion of lost or 

unknown holdings or collections in this 

subpart but stated that ‘‘negligence to 

care for native material culture is 

evident time and time again. The very 

fact that institutions like universities are 

continuing to discover Native American 

remains in their possession is absolutely 

unacceptable.’’ Several comments 

stressed the importance of consultation 

in identifying holdings or collections 

and suggested consultation should be 

initiated when a museum or Federal 

agency has reason to believe that human 

remains or cultural items are present in 

a holding or collection. One comment 

requested clarification on how museums 

and Federal agencies can be held 

accountable for conducting a full review 

of holdings or collections. 

On the other hand, a few comments 

questioned the Department’s authority 

to require a review of all holdings or 

collections and that this subpart must be 

limited to only those holdings or 

collections that are known to have 

human remains or cultural items. A few 

comments provided details on how long 

it takes identify human remains or 

cultural items in a holding or collection. 

One comment stated it takes weeks or 

months to complete a full review of a 

holding or collection and if done too 

quickly, human remains and cultural 

items will be left behind. One comment 

stated it takes 10 hours to review a 


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single, standard box to identify the 

presence of human remains or cultural 

items. An additional six to eight hours 

is needed to document each individual 

or object in the box, and another 40 

hours is needed to produce a final 

report of the boxes from the same site. 

The comment also stated a significant 

amount of space is needed for this kind 

of review and that can often impair the 

effort to review a holding or collection. 

DOI Response: There is no ambiguity 

in the Act on the requirement for 

museums and Federal agencies to 

identify all human remains or cultural 

items in holdings or collections. The 

Act requires each museum or Federal 

agency that ‘‘has possession or control 

over holdings or collections’’ to identify 

all Native American human remains or 

cultural items. The Act required 

museums and Federal agencies to 

identify all cultural items within three 

years and all human remains and 

associated funerary objects within five 

years. The Act provided an option for 

museums to request an extension to 

identify human remains and associated 

funerary objects, provided the museum 

had made a good faith effort to do so. 

We agree that the initial step requires 

producing factual and transparent 

information about the holdings or 

collections. While determining 

possession or control of a holding or 

collection is a jurisdictional 

requirement and must be done on a 

case-by-case basis, the Act and these 

regulations make clear that the 

evaluation applies to all holdings or 

collections. We agree that when a 

museum or Federal agency has reason to 

believe human remains or cultural items 

are present in a holding or collection it 

must provide information to lineal 

descendants, Indian Tribes, and NHOs. 

We agree the Department does not 

have authority under the Act to require 

a museum or Federal agency review 

holdings or collections that are not 

subject to the Act. Only holdings or 

collections, or portions of holdings or 

collections, that may contain human 

remains or cultural items are required to 

be identified. If a museum or Federal 

agency knows that a certain holding or 

collection does not contain any human 

remains or cultural items, the holding or 

collection would not need to be 

included in a summary of cultural items 

or an itemized list of human remains 

and associated funerary objects. For 

example, a collection excavated from an 

historic era ranch that does not contain 

any Native American objects or items 

would not need to be included on a 

summary. 

We disagree that the Act and these 

regulations do not already require a 

museum or Federal agency to review all 

holdings or collections in their 

possession or control. The Act and these 

regulations already impose standards 

and requirements for museums and 

Federal agencies to make an effort to 

identify human remains and cultural 

items. The standard is if a holding or 

collection may contain human remains 

or cultural items. The requirement is to 

comply with this subpart and complete 

a summary, an inventory, and notices. 

The mechanisms for ensuring 

accountability for a failure to comply 

with this subpart are civil penalties 

against museums or legal action against 

Federal agencies. Any museum or 

Federal agency that fails to identify a 

holding or collection that contains 

human remains or cultural items has 

failed to comply with the Act and these 

regulations. 

Several comments provided examples 

of human remains or cultural items that 

were not identified by museums and 

Federal agencies. In one case, an 

‘‘archeological collection’’ was excluded 

from a summary because the museum 

assumed it did not contain any cultural 

items. However, archival information 

about the person who made the 

collection clearly identifies the collector 

removed objects from a funerary context 

and those objects are likely unassociated 

funerary objects. In another case, human 

remains were found during a physical 

review of a collection after the inventory 

was completed and a notice published. 

Museums and Federal agencies have 

discretion on which holdings or 

collections they include in a summary 

or inventory. When a museum or 

Federal agency decides to exclude a 

holding or collection from a summary or 

inventory, it is deciding that the Act and 

these regulations are not applicable to 

that holding or collection. If that 

holding or collection contains human 

remains or cultural items, the museum 

or Federal agency has failed to comply 

and could be subject to civil penalties 

or other legal action. Museums and 

Federal agencies also have discretion on 

how to evaluate the contents of a 

holding or collection. A museum or 

Federal agency can choose to review 

each box in a holding or collection to 

determine if it contains human remains 

or cultural items, but it must do so 

within the timeframes required by the 

Act and the regulations. Neither the Act 

nor the regulations require a physical 

review of a holding or collection to 

comply with the summary and 

inventory requirements. 

Under the final regulations, consent 

from lineal descendants, Indian Tribes, 

or NHOs is required prior to allowing 

any research on human remains or 

cultural items. We have defined 

‘‘research’’ to mean any study, analysis, 

examination, or other means of 

acquiring or preserving information. 

‘‘Research’’ includes any activity to 

generate new or additional information 

beyond the information that is already 

available, for example, osteological 

analysis of human remains, physical 

inspection or review of collections, 

examination or segregation of comingled 

material (such as soil or faunal remains), 

or rehousing of collections. 

94. Comment: We received 42 

comments on specific steps in the 

repatriation process. Six comments from 

one submission made repeated requests 

to require unassociated funerary objects 

be listed in the inventory so they can be 

repatriated with the human remains and 

associated funerary objects. One 

comment requested testing for 

hazardous substances be required and 

two comments requested removal of 

hazardous substances must be required 

at the expense of museums and Federal 

agencies. One comment requested 

‘‘acquisition’’ be replaced with 

‘‘accession’’ so as not to disrespectfully 

identify human remains as objects. One 

comment requested additional 

information on documentation, analysis, 

or exhibition be included in a summary 

or an inventory. 

Six comments suggested changes to 

the steps for consultation. One comment 

stated identifying consulting parties is a 

difficult task that requires additional 

time than what is provided. One 

comment requested clarification on who 

identifies new consulting parties. Two 

comments requested clarification on if 

the regulations require re-initiation of 

consultations that are ongoing as of the 

effective date of these regulations. One 

comment requested how to proceed 

when consulting parties do not respond 

to invitations to consult. One comment 

requested clarification on the timeline 

for responding to an invitation to 

consult and that Indian Tribes and 

NHOs must be allowed to move at their 

own pace according to each sovereign’s 

capacity and resources. Three comments 

suggested changes to the kinds of 

information a consulting party can 

request from a museum or Federal 

agency, including that accession records 

be specifically included or the 

limitations on the use of the information 

be removed. 

Nine comments requested changes to 

the notices and requests for repatriation 

under this subpart. Four comments 

requested lineal descendants not be 

identified by name, and four comments 

requested amended notices be required 

when additional pieces of previously 

repatriated human remains or cultural 


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items are found. One comment 

requested additional information on 

documentation, analysis, or exhibition 

be included in a notice. Two comments 

requested that all Indian Tribes or NHOs 

with cultural affiliation be notified or 

consent to a request for repatriation. 

Two comments suggested requests for 

repatriation need not be in writing. One 

comment requested changing the 

timeline for sending a repatriation 

statement from the variable 30 to 90 

days to 60 days. 

Three comments expressed concern 

about the timelines for competing 

requests and stays of repatriation. Two 

comments requested changes to the 

deadline for evaluating competing 

requests to either remove the deadline 

in favor of a deadline agreed upon in 

consultation or to include a timeline for 

requestors to submit additional 

information to support their requests. 

Two comments on stays of repatriation 

asked who determines if a court of 

competent jurisdiction enjoins the 

repatriation. One comment requested 

decisions made during a stay of 

repatriation must be made in 

consultation with requesting parties. 

DOI Response: We cannot include 

unassociated funerary objects in an 

inventory as that would be inconsistent 

with the Act. We cannot require testing 

for or removal of hazardous substances 

or who should pay for that testing or 

removal as there is no such requirement 

in the Act. We can and do require 

information about hazardous substances 

be shared, but only when a museum or 

Federal agency knows about the 

presence of any potentially hazardous 

substances. Testing or removal should 

be a part of consultation on human 

remains or cultural items, specifically 

under the duty of care requirements in 

§ 10.1(d). We do not agree that 

‘‘accession’’ is less disrespectful than 

‘‘acquisition’’ since both are generally 

applied to property or collections. The 

use of ‘‘accession’’ could lead to 

confusion over human remains or 

cultural items that were not formally 

accessioned into a holding or collection. 

The Act uses the word ‘‘acquisition,’’ 

and we have retained that word in these 

regulations. We have not required 

additional information on 

documentation, analysis, or exhibition 

be included in a summary or inventory, 

but that information may be requested 

by a lineal descendant, Indian Tribe, or 

NHO and discussed during consultation 

on the duty of care for human remains 

or cultural items. 

We have not made changes to 

timeline or requirements for initiating 

consultation. Depending on the 

provenience and provenance of the 

human remains or cultural items, 

identifying Indian Tribes or NHOs with 

potential cultural affiliation is not 

complex and a museum or Federal 

agency must make a good faith effort to 

identify consulting parties within the 

timeframe provided. There are several 

resources that can assist museums and 

Federal agencies with identifying 

consulting parties, including previously 

prepared summaries or inventories and 

published notices. Museums and 

Federal agencies are responsible for 

determining if a new consulting party 

can be identified. When consultation is 

ongoing as of the effective date of these 

regulations, there is no requirement to 

re-initiate consultation, provided the 

ongoing consultation included all 

consulting parties. 

We do not intend to impose timelines 

on lineal descendants, Indian Tribes, or 

NHOs to respond to an invitation to 

consult and can engage in the 

repatriation process at their own 

discretion. However, museums and 

Federal agencies are required to act 

under § 10.10 within certain timelines, 

and those timelines are required even if 

there is no response from a lineal 

descendant, Indian Tribe, or NHO to an 

invitation to consult. A museum or 

Federal agency must initiate 

consultation prior to completing or 

updating an inventory under § 10.10, 

but if there is no response to the 

invitation to consult, the museum or 

Federal agency must complete or update 

the inventory by the deadlines required 

under § 10.10(d) and submit a notice of 

inventory completion under § 10.10(e). 

As the Department noted in 1995 for the 

first deadline to complete an inventory 

if there is no response after repeated 

attempts to contact Tribal officials by 

telephone, fax, and mail, the museum or 

Federal agency official may be required 

to complete the inventory without 

consultation to meet the regulatory 

deadline. The Department suggested 

museum and Federal agency officials 

document attempts to contact Tribal 

officials to demonstrate good faith 

compliance with these regulations and 

the Act. (1995 Final Rule, 60 FR 62151). 

Although the methods to contact an 

Indian Tribe or NHO have changed 

since 1995, this advice continues to be 

applicable. Museums and Federal 

agencies must document attempts to 

contact lineal descendants, Indian 

Tribes, or NHOs to demonstrate a goodfaith effort to consult prior to the 

deadlines in these regulations. 

We have not made changes to the 

additional information consulting 

parties can request. The language in the 

regulations is taken directly from the 

Act, including the limitations. The 

regulations do not prevent a consulting 

party from requesting any other 

information not explicitly identified 

here. We feel accession records are a 

type of ‘‘records.’’ As noted elsewhere, 

we advise lineal descendants, Indian 

Tribes, and NHOs to make their requests 

as broad as possible to ensure all 

information about human remains or 

cultural items is available to them when 

making a request for repatriation. 

We have revised the required content 

of a notice to simplify the regulatory 

text, and we have included language to 

allow for the name of a lineal 

descendant to be withheld. In response 

to the comments on amended notices 

and to coincide with the overall changes 

in the process for repatriation, we have 

removed the requirement for amending 

a notice. After publication of a notice 

under this subpart, if additional human 

remains or cultural items are identified 

that were not previously included in a 

summary, inventory, or notice, the 

museum or Federal agency must begin 

with Step 1 in each process for the 

newly identified human remains or 

cultural items to ensure adequate 

consultation and notification occurs. We 

have not required additional 

information on documentation, analysis, 

or exhibition be included in the notice 

and feel it is important that these 

regulations require only the minimum 

amount of information required in a 

notice to prevent unnecessary delays or 

public disclosure of information. If an 

Indian Tribe or NHO wishes to have 

additional information included in a 

notice, it should inform the museum or 

Federal agency during consultation of 

this preference. The proposed 

regulations included requirements for 

notifying other Indian Tribes or NHOs 

of a request for repatriation of human 

remains and associated funerary objects. 

We have added these same requirements 

for requests for repatriation of cultural 

items; both the response to a request 

and the notice of intended repatriation 

must be sent to the requestor and any 

other consulting party. We cannot 

require museums and Federal agencies 

obtain consent from other consulting 

parties to a request for repatriation. Any 

consulting party may submit an 

additional, competing request for 

repatriation before a repatriation 

statement is sent. We have not removed 

the requirement for a request for 

repatriation to be submitted in writing. 

The existing regulations contain this 

same requirement, and the Act is clear 

that a request for repatriation is a 

requirement, although it does not 

specify the request be in writing. To 

require the actions that follow a request 


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for repatriation be completed by a 

certain date, the request for repatriation 

must be in writing. Throughout these 

regulations, we have provided flexibility 

in the timeline for sending a repatriation 

statement (between 30 and 90 days), and 

we have retained that timeline. 

In response to several comments, we 

reiterate that competing requests for 

repatriation must occur before a 

repatriation statement is sent and when 

a competing request is received, the 

timeline for a repatriation statement 

changes. If a competing request for 

repatriation is received the day before a 

repatriation statement is sent, the 

museum or Federal agency must wait to 

send the repatriation statement and 

evaluate the competing requests in 

accordance with the procedures and 

deadlines for evaluating competing 

requests for repatriation. One comment 

remarked that ‘‘[g]iven the busy 

schedules of Tribes and museums, and 

planning costs associated with 

repatriation, allowing requests a day 

before a repatriation statement is 

scheduled to be submitted would make 

decisions and obligations between 

museums and Tribe hollow and a 

potential point of contention.’’ This 

comment is precisely the main reason 

the regulations require a repatriation 

statement separate from physical 

transfer. Scheduling and incurring costs 

associated with physical transfer should 

wait until after a repatriation statement 

is sent, assuring all parties that their 

decisions and obligations can be 

upheld. In addition, we recommend a 

museum or Federal agency send a 

repatriation statement as early as 

possible under the regulations to ensure 

expeditious return. We further 

recommend that in a request for 

repatriation, the lineal descendant, 

Indian Tribe, or NHO request a 

repatriation statement be sent as early as 

possible under the regulations. As 

discussed elsewhere, if no competing 

requests are received, 31 days is the 

minimum amount of time between 

notice publication and sending a 

repatriation statement. 

We decline to remove the timeline for 

evaluating competing requests. We 

believe it is important to require 

museums and Federal agencies to make 

determinations within a set timeframe, 

even if that determination is that they 

cannot determine the most appropriate 

requestor. This option allows parties to 

continue consultation but ensures all 

parties have been informed of the 

museum or Federal agency’s decision. 

We have not added a timeline for 

submission of additional information, 

but we have included an option for 

submission of additional information in 

the appropriate paragraphs and in 

§ 10.3(e) Competing claims or requests. 

We note that any request for repatriation 

must provide information to meet the 

criteria and that information, along with 

the record of determining cultural 

affiliation, should be used to determine 

the most appropriate requestor. Where 

competing requests are between Indian 

Tribes or NHOs with cultural affiliation, 

the priority order under § 10.3(e) 

Competing claims or requests, as 

revised, relies on how the cultural 

affiliation determination was made 

(clearly identified or reasonably 

identified). Any party may seek 

assistance of a court of competent 

jurisdiction to resolve a conflict under 

these regulations. Given the variables in 

how a stay of repatriation might be 

resolved, we cannot require 

consultation after a resolution but we 

can and do require notification and 

repatriation within set timeframes. 

95. Comment: We received 20 

comments requesting that the 

Department create a repository for 

information related to repatriation 

under this subpart. Some of these 

comments requested that the repository 

include information on Indian Tribes 

with cultural affiliation to a 

geographical location. Other comments 

requested a contact database that is 

updated every six months. Many of 

these comments requested a digital 

repository with detailed information 

from inventories, summaries, and 

notices that is accessible only to Indian 

Tribes and NHOs and is protected from 

public release under the Freedom of 

Information Act. Four comments 

requested the Department publish a list 

of the museums and Federal agencies 

with the largest collections of human 

remains or cultural items. 

DOI Response: We decline to add any 

such requirement to the regulations as 

this is a matter of policy, subject to a 

wide variety of other laws, regulations, 

and policy for information technology, 

protection of personally identifiable 

information, and special relationships 

between the United States and Indian 

Tribes and NHOs. The Department, 

through the National NAGPRA Program, 

is responsible for receiving and 

maintaining many documents related to 

repatriation, including inventories, 

summaries, and notices. These 

documents are not exempt from public 

disclosure, as discussed under 

Comment 5, and we are unable to 

produce the kind of protected database 

some of the comments requested. 

We do, and have for nearly 20 years, 

provided information about repatriation 

through the National NAGPRA Program 

website. After nearly 33 years, one of 

the best sources for information about 

cultural affiliation are the over 4,400 

notices that have been published in the 

Federal Register. Fully text searchable 

beginning in 1994, notices can easily be 

searched at https://

www.federalregister.gov/ (accessed 12/ 

1/2023). The National NAGPRA 

Program has and will continue to 

improve digital maintenance and access 

to data about repatriation through its 

website. Since 2020, the National 

NAGPRA Program has provided realtime data on inventories, summaries, 

and notices at https://www.nps.gov/ 

subjects/nagpra/databases.htm 

(accessed 12/1/2023). In addition to the 

databases, since 2019, the National 

NAGPRA Program has provided annual 

data in searchable data visualization 

tools at https://public.tableau.com/app/ 

profile/nationalnagpra (accessed 12/1/ 

2023). We are committed to developing 

useful and innovative tools to share 

available data securely, safely, and 

publicly. 

96. Comment: We received 35 

comments on the provisions for a 

museum or Federal agency to request 

the Assistant Secretary’s written 

concurrence that human remains or 

cultural items are indispensable for 

completion of a specific scientific study. 

Most of these comments requested the 

Assistant Secretary consult with Indian 

Tribes and NHOs prior to issuing 

written concurrence or that the request 

from the museum or Federal agency 

include written consent from the 

appropriate Indian Tribe or NHO to the 

study. A few comments requested this 

section be removed entirely and the 

regulations should prohibit any 

scientific study of human remains or 

cultural items. 

DOI Response: We cannot remove the 

provisions for ‘‘scientific study’’ from 

these regulations as that would be 

inconsistent with the Act. ‘‘Scientific 

study’’ is used twice in the Act itself: 

• First, the Act explicitly and 

specifically does not require new 

scientific studies on human remains or 

associated funerary objects to complete 

an inventory or determine cultural 

affiliation (25 U.S.C. 3003(b)(2)). 

• Second, the Act requires that when 

a specific scientific study of human 

remains, associated funerary objects, 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony 

will result in a major benefit to the 

United States, a museum or Federal 

agency may postpone repatriation but 

may not deny the request for 

repatriation (25 U.S.C. 3005(b)). 

The first statutory provision only 

applies to human remains and 

associated funerary objects (25 U.S.C. 


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3003(b)(2)). Similar language does not 

appear in the Act for unassociated 

funerary objects, sacred objects, and 

cultural patrimony (25 U.S.C. 

3004(b)(2)). This is likely due to the 

difference between a summary and an 

inventory. As noted in the 1995 Final 

Rule, the difference between a summary 

and an inventory ‘‘reflects not only their 

subject matter, but also their detail (brief 

overview vs. item-by-item list), and 

place within the process’’ (60 FR 

62140). Since a summary is a brief 

overview of a holding or collection, 

there is no need to include the first 

provision for unassociated funerary 

objects, sacred objects, and cultural 

patrimony. 

The second statutory provision for 

‘‘scientific study’’ applies to all ‘‘Native 

American cultural items,’’ which are 

defined in the Act as human remains, 

associated funerary objects, 

unassociated funerary objects, sacred 

objects, and objects of cultural 

patrimony (25 U.S.C. 3005(b)). The Act 

refers to this exception in each of the 

four paragraphs that require expeditious 

repatriation (25 U.S.C. 3005(a)). As any 

elimination or restriction of 25 U.S.C. 

3005(b) would require an act of 

Congress, we cannot remove the 

provisions that allow for ‘‘scientific 

study’’ entirely. We understand that 

‘‘scientific study’’ in both §§ 10.9 and 

10.10 is adverse to Tribal interests and 

may seem to allow or authorize 

scientific studies. While we cannot 

remove these statutorily required 

exceptions to expeditious repatriation, 

we can limit the implementation of 

these exceptions through the 

regulations. 

First, we have made changes to 

§ 10.1(d) Duty of care to require 

museums and Federal agencies obtain 

consent from lineal descendants, Indian 

Tribes, or NHOs prior to conducting any 

research on human remains or cultural 

items. In that paragraph, we state 

‘‘research’’ equates to the term 

‘‘scientific study’’ in the Act and means 

any study, analysis, examination, or 

other means of acquiring or preserving 

information. ‘‘Research’’ includes any 

activity to generate new or additional 

information beyond the information that 

is already available, for example, 

osteological analysis of human remains, 

physical inspection or review of 

collections, examination or segregation 

of comingled material (such as soil or 

faunal remains), or rehousing of 

collections. ‘‘Research’’ is not required 

to identify the number of individuals or 

cultural items, or to determine cultural 

affiliation. 

Second, the proposed regulations 

provided procedures to administer the 

second statutory provision as a stay of 

the repatriation timeline under §§ 10.9 

and 10.10. A request to exercise this 

stay of repatriation must be submitted 

before publication of a notice of 

intended repatriation or a notice of 

inventory completion. This means that 

for human remains and associated 

funerary objects, a request must be made 

before the deadline to publish a notice 

of inventory completion (in the final 

regulations, this is five years and six 

months after the effective date of the 

final regulations). After the notice is 

published, this exemption cannot be 

used to delay repatriation. The proposed 

regulations and these final regulations 

require the Assistant Secretary’s written 

concurrence with the request and 

stipulates the specific requirements for 

such a request, including explaining the 

‘‘major benefit’’ and why the human 

remains or cultural items are 

‘‘indispensable.’’ The request must also 

state that the study has in place the 

requisite funding and a completion 

schedule and completion date. 

Third, we agree with the comments 

that the request must demonstrate 

consent from lineal descendants, Indian 

Tribes, or NHOs and that the Assistant 

Secretary must consult with Indian 

Tribes or NHOs before concurring with 

the request. We have added these 

requirements to the regulations in 

§§ 10.9 and 10.10. 

K. Section10.8 General 

97. Comment: We received six 

comments on § 10.8 General. Four 

comments requested a deadline be 

imposed for museums and Federal 

agencies to determine possession or 

control of holdings or collections. One 

comment requested ‘‘authorized 

representatives’’ be replaced with 

‘‘appropriate official.’’ One comment 

requested the regulations prohibit 

museums and Federal agencies from 

engaging with NAGPRA consultants or, 

if consultants are engaged, they be 

required to comport with the law and 

the regulations, and any violations be 

reviewed by the National NAGPRA 

Program. 

DOI Response: We have not made any 

of the requested changes. Museums and 

Federal agencies have deadlines to 

determine possession or control of 

holdings or collections under 

paragraphs (c) and (d) of this section 

and through the timelines requiring 

repatriation under §§ 10.9 and 10.10. 

The term ‘‘appropriate official’’ applies 

only to Subpart B and includes Indian 

Tribes and NHOs. Although this 

paragraph requires an authorized 

representative be identified, Subpart C 

does not use this term but instead makes 

the subject of these regulations the 

museum or Federal agency to reinforce 

who is responsible for acting under 

these regulations. We cannot prohibit or 

require review of NAGPRA consultants 

in these regulations. A museum or 

Federal agency may identify any 

authorized representative it chooses to, 

but the museum or Federal agency is 

responsible for the actions of that 

representative. Any failure to comply 

with these regulations is a failure of the 

museum or Federal agency who has 

responsibility under this subpart. 

98. Comment: We received two 

comments on § 10.8(a) Museum holding 

or collections, in addition to those 

discussed elsewhere. One comment 

requested instructions on reporting 

newly acquired holdings or collection 

where the museum asserts a right of 

possession through donation or 

excavation conducted under State law. 

One comment requested clear 

guidelines for museums to determine 

possession or control. 

DOI Response: We have not made 

changes to this paragraph. We believe 

this paragraph provides clear guidelines 

for museums to determine possession or 

control, including for any new holdings 

or collections or previously lost or 

unknown holdings or collections. As 

discussed elsewhere, the Act and these 

regulations define a right of possession 

and apply it in some manner to human 

remains, funerary objects, sacred 

objects, and objects of cultural 

patrimony. When a museum or Federal 

agency asserts a right of possession to 

cultural items in its holding or 

collection, the museum or Federal 

agency must include those cultural 

items in its summary. When a museum 

or Federal agency can prove it has a 

right of possession to human remains, it 

may exclude those physical remains 

from its inventory. We note that when 

human remains and associated funerary 

objects are excavated from State or 

private land, requirements under State 

law may not equate to right of 

possession and a museum (including a 

State or local agency) should ensure it 

can prove it has a right of possession to 

human remains and associated funerary 

objects independent of such 

requirements. 

99. Comment: We received eight 

comments requesting clarification on 

§ 10.8(b) Federal agency holding or 

collection. All the comments questioned 

why a Federal agency must determine 

when or where a holding or collection 

was acquired. 

DOI Response: We have made 

clarifying changes to this paragraph. For 

a holding or collection, a Federal agency 

must determine if the human remains or 


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cultural items are subject to disposition 

under Subpart B or repatriation under 

Subpart C. To make this determination, 

the Federal agency must determine 

when and where the human remains or 

cultural items were removed. If the 

human remains or cultural items were 

removed from Federal or Tribal land 

after November 16, 1990, the Federal 

agency must use Subpart B to complete 

the disposition of those human remains 

or cultural items. If the human remains 

or cultural items were removed from 

Federal lands on or before November 16, 

1990, or after that date from an 

unknown location or from lands that are 

not Federal or Tribal lands, the Federal 

agency must use Subpart C to complete 

the repatriation of those human remains 

or cultural items. 

For example, if a museum has custody 

of a holding or collection that was 

excavated from Federal land in 1991, 

the Federal agency who has 

responsibility for that Federal land must 

comply with Subpart B and identify the 

lineal descendant, Indian Tribe, or NHO 

that has priority for disposition of the 

human remains or cultural items by 

following the requirements of § 10.7. 

Regardless of how long the human 

remains or cultural items have been in 

the custody of the museum, the Federal 

agency has responsibilities for ensuring 

the disposition of those human remains 

or cultural items that were removed 

from Federal land after November 16, 

1990. 

A Federal agency cannot apply the 

summary and inventory requirements in 

Subpart C to any human remains or 

cultural items that were removed from 

Federal or Tribal land after November 

16, 1990. Under the Act, those human 

remains or cultural items are subject to 

disposition under Subpart B. 

100. Comment: We received 18 

comments on § 10.8(c) Museums with 

custody of a Federal agency holding or 

collection. Of the total comments, eight 

comments were supportive, although 

most referred to corresponding 

comments on the definition of 

‘‘custody.’’ One supportive comment 

highlighted the presumptive language 

when a Federal agency fails to decide 

within the set timeline. Four comments 

requested publication of museum 

statements in the Federal Register or 

otherwise provided to Indian Tribes and 

NHOs. One comment was supportive 

but concerned that Federal agencies 

would be unable to respond within the 

timeframe while one comment felt the 

timeframe was too long and should be 

much shorter. One comment questioned 

how this would be enforced while one 

comment was concerned this would 

make Federal agencies responsible for 

holdings or collections they haven’t yet 

taken responsibility for. One comment 

requested the statement be more than a 

statement and align with the 

requirements for a summary and 

inventory. One comment questioned the 

Department’s authority to require 

statements on non-NAGPRA collections, 

requested more information on joint 

possession or control, suggested 

changing possession or control to 

ownership or legal title, and posited 

Federal agencies must first request these 

statements under 36 CFR 79 rather than 

through these regulations. 

DOI Response: We have not made 

changes to this paragraph. Elsewhere in 

these regulations, we have addressed 

the definition of ‘‘custody.’’ We have 

not changed the deadline for a museum 

to issue a statement (one year after the 

effective date of the final regulations) or 

for a Federal agency to respond (six 

months or 180 calendar days after 

receipt of the museum’s statement). 

Both deadlines are important to ensure 

resolution to this long-standing barrier 

to repatriation. We understand and 

share the concern expressed by one 

comment that a Federal agency who has 

not shouldered responsibility for a 

collection to date will be required to 

take responsibility for it in the future. 

We believe that this requirement will 

result in increased awareness by Federal 

agencies of their responsibilities for 

these holdings or collections but also in 

an opportunity to hold Federal agencies 

accountable for those holdings or 

collections. We have not required 

publication of those statements in the 

Federal Register, but the statements will 

be added to the records kept by the 

National NAGPRA Program and will be 

available upon request. We plan to 

provide information on the program 

website, like what we provide for other 

records. 

The Department has authority for both 

these regulations and for 36 CFR part 79 

and the Department recognizes the 

overlapping nature of these regulations 

for Federal agency holdings or 

collections that contain human remains 

or cultural items. We disagree that the 

Department does not have authority to 

require statements of holdings or 

collections that contain human remains 

or cultural items. As discussed 

elsewhere, when a Federal agency 

holding or collection is known to not 

contain human remains or cultural 

items, it is not subject to the Act or these 

regulations. 

101. Comment: We received eight 

comments on § 10.8(d) Museums with 

custody of other holdings or collections. 

Five comments generally supported this 

requirement but suggested it be 

broadened to include holdings or 

collections that are under the control of 

another entity or when control cannot 

be identified, except for those under 

Federal agency control. In addition, 

these comments requested custody be 

replaced with possession, consistent 

with comments on those definitions. 

Two comments opposed this 

requirement and thought the deadline 

was unrealistic. Both comments stated 

the requirement for a museum to 

identify legal ownership status of its 

holdings or collections was onerous and 

would require significant resources. One 

of these comments stated the issue was 

not a lack of information so much as it 

was too much information that required 

significant time to analyze and 

synthesize to decide. One comment 

specifically opposed any requirement 

for museums to notify State and local 

governments of holdings or collections, 

questioned how this would work with 

State repatriation laws, and suggested it 

could result in legal disputes. The 

comment stated many State and local 

governments are unaware of NAGPRA 

and do not have funding or staff to 

comply with these regulations. The 

comment questioned how these 

regulations would apply to criminal 

investigations and medical examiners 

who may hold samples of biological 

materials. 

DOI Response: We have not made 

changes to this paragraph. This 

paragraph requires museums to provide 

statements describing those holdings or 

collections for which it cannot identify 

an entity with possession or control. 

Where a museum can identify that a 

person, institution, or State or local 

government agency has possession or 

control of the holding or collection, no 

statement is required. We encourage a 

museum with custody of a holding or 

collection that contains human remains 

or cultural items to notify the entity that 

has possession or control, but we do not 

require that notification because doing 

so would exceed the Secretary’s 

authority under the Act. The entity that 

has possession or control of the human 

remains or cultural items is responsible 

for complying with these regulations. 

We understand that many museums do 

not have clear documentation for 

holdings or collections, and as one 

comment stated, museums may be 

required to undertake a comprehensive 

review of the legal ownership status to 

determine if the owner is, indeed, 

known. This is not only a requirement 

for purposes of these regulations, but is, 

in general, a professional and ethical 

requirement for museums. A central 

tenant of collections management and 


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care is documentation of not only the 

objects in a holding or collection, but of 

the legal ownership status of those 

holdings or collections. For holdings or 

collections that contain human remains 

or cultural items, a museum must 

ensure it can identify the legal 

ownership of the holding or collection 

or risk a failure to comply with these 

regulations. 

State and local government agencies 

are included in the definition of 

museum in the Act and these 

regulations and where such agencies 

have possession or control of human 

remains or cultural items, regardless of 

their physical location, and those 

agencies receive Federal funds, they 

must comply with the requirements for 

repatriation under this subpart. Any 

museum, including State or local 

government agencies, that fail to comply 

with these requirements are subject to 

the civil penalty provisions. 

As discussed elsewhere, unless local 

or State authorities obtain the full 

knowledge and consent of the next of 

kin or the official governing body of the 

appropriate Indian Tribe or NHO, 

coroners, medical examiners, and other 

local or State agencies should consider 

their requirements under the Act and 

these regulations for any Native 

American human remains, including 

biological samples. 

102. Comment: We received six 

comments on adding a new paragraph to 

§ 10.8 related to making grants to Indian 

Tribes, NHOs, and museums. In 

addition to the statutory language on 

grants, the comments suggested 

including a limitation on initiation of 

any new scientific study of human 

remains and associated funerary objects. 

DOI Response: We have not added the 

requested paragraph. We do not see a 

value in repeating the statutory language 

regarding grants in these regulations. 

We have addressed the issues of new 

scientific studies under § 10.1(d) Duty of 

care. The Notice of Funding 

Opportunity for NAGPRA grants 

provides guidance and limitations on 

potential use of grant funds and is the 

best place for any additional 

requirements to be added. 

L. Section 10.9 Repatriation of 

Unassociated Funerary Objects, Sacred 

Objects, or Objects of Cultural 

Patrimony 

103. Comment: We received 11 

comments generally on § 10.9 

Repatriation of unassociated funerary 

objects, sacred objects, or objects of 

cultural patrimony. Four comments 

objected to preparation of a summary 

prior to consultation with lineal 

descendants, Indian Tribes, or NHOs. 

One of these comments suggested 

reordering the steps so consultation 

occurs before a summary is developed. 

Another of these comments suggested 

changing ‘‘Complete a summary’’ to 

‘‘Draft a summary’’ to recognize the 

need for consultation. On the other 

hand, seven comments supported the 

proposed regulations because it was 

clear that the requirement of a summary 

as a general description and the 

following step-by-step procedures were 

sufficient to ensure consultation prior to 

any determinations. 

DOI Response: We have not changed 

the order of the steps as that would be 

inconsistent with the Act. We have 

changed ‘‘Complete a summary’’ to 

‘‘Compile a summary.’’ We agree with 

most of these comments that the 

proposed regulations are clear that a 

summary is a general description of a 

holding or collection and must be 

followed by consultation with lineal 

descendants, Indian Tribes, and NHOs. 

As the step-by-step procedures make 

clear, determinations related to specific 

cultural items come after a request for 

repatriation is received. In its response 

to the request, a museum or Federal 

agency must determine if the request 

meets the required criteria and, if not, 

must explain why. 

104. Comment: We received nine 

comments on § 10.9(a) Step 1— 

Complete a summary of a holding or 

collection. Four comments requested 

that summaries should be published in 

the Federal Register or otherwise shared 

with Indian Tribes and NHOs by the 

National NAGPRA Program after they 

are submitted. One comment requested 

the summary be expanded to include all 

Native American objects in a collection. 

One comment requested a better 

definition of when a summary is 

complete because that will trigger other 

deadlines. One comment stated that 

when a holding or collection is 

transferred, the previously prepared 

summary can only be relied on if it was 

sufficient in the first place. One 

comment requested updated summaries 

be required in these regulations while 

one comment asked if previously 

submitted summaries were sufficient 

and did not require updates. 

DOI Response: We have not included 

a requirement for summaries to be 

published in the Federal Register or 

otherwise shared by the National 

NAGPRA Program. Museums and 

Federal agencies must send the 

summary with an invitation to consult 

to any lineal descendant and any Indian 

Tribe or NHO with potential cultural 

affiliation no later than 30 days after 

submitting the summary to the National 

NAGPRA Program. The National 

NAGPRA Program retains copies of all 

summaries it has received since 1990 

and will provide them upon request. 

The National NAGPRA Program 

maintains an online database that 

identifies which museums and Federal 

agencies have submitted summaries and 

which Indian Tribes or NHOs were 

invited to consult. We cannot require a 

summary include all Native American 

objects in a holding or collection as this 

would be inconsistent with the Act. 

These regulations require a summary to 

include the entire holding or collection 

which may include cultural items. We 

note that only holdings or collections, or 

portions of holdings or collections, that 

may contain cultural items are required 

to be identified in a summary. 

Table 1 to § 10.9(a)(2) identifies the 

deadlines for compiling a summary after 

the effective date of these final 

regulations for holdings or collections 

that are newly acquired, previously lost 

or unknown, or in the possession or 

control of a museum or Federal agency 

that receives Federal funds for the first 

time. Prior to the effective date of these 

final regulations, summaries must have 

been submitted by the dates identified 

in paragraph (a)(3) of this section. When 

a holding or collection is transferred to 

a museum or Federal agency, the 

museum or Federal agency must inform 

the National NAGPRA Program by 

submitting the previously compiled 

summary within 30 days of acquiring 

the holding or collection. The museum 

or Federal agency must compile its own 

summary by the deadline in Table 1 to 

ensure that the contents of the summary 

are accurate, include any additional 

information available, and reflect the 

newly acquired holding or collection. 

Six months is the deadline in the 

existing regulations for submitting a 

summary for a newly acquired or 

previously lost or unknown holding or 

collection and has been since 2007 (see 

Future Applicability Final Rule, RIN 

1024–AC84 (72 FR 13184, March 21, 

2007). Anytime a museum or Federal 

agency becomes aware of a holding or 

collection that may contain cultural 

items and that has not been submitted 

in a summary, it must treat the holding 

or collection as a previously lost or 

unknown collection and compile a 

summary within six months of 

becoming aware of the holding or 

collection. As discussed in other 

responses, a museum or Federal agency 

is responsible for complying with the 

requirements of this subpart for all 

holdings or collections in its possession 

or control that may contain human 

remains or cultural items. 

Updated summaries are not required 

by the existing regulations or by these 


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final regulations. As discussed above, 

there are requirements for a summary to 

be submitted for newly acquired or 

previously lost or unknown holdings or 

collections. Similarly, when a new 

consulting party is identified, either 

based on new information or a newly 

federally recognized Indian Tribe, a 

museum or Federal agency must send 

an invitation to consult to the new 

consulting parties. Because a summary 

is a general description of a holding or 

collection, it does not require updates 

provided the initial summary 

adequately described the holding or 

collection. While many museums have 

submitted updated summaries under the 

existing regulations, these are better 

identified as new summaries covering 

new or previously unreported 

collections. More detailed information 

about specific cultural items in a 

holding or collection is more 

appropriate for consultation and a 

notice of intended repatriation and does 

not require an updated summary. 

105. Comment: We received nine 

comments on § 10.9(d) Step 4—Receive 

and consider a request for repatriation. 

Seven comments noted that 

geographical affiliation, as used in the 

proposed regulations, was not one of the 

criteria for a request for repatriation. 

Two comments related to the third 

criterion for information to support a 

finding that the museum or Federal 

agency does not have right of 

possession. One comment felt this 

would require significant resources for 

Indian Tribes and NHOs while the other 

comment suggested stating that if an 

object meets the definition of one of the 

cultural items, the definition alone is 

sufficient to meet the criteria. 

DOI Response: Under the Act, there 

are three criteria for the repatriation of 

an unassociated funerary object, sacred 

object, and object of cultural patrimony: 

the establishment, as appropriate, of 

lineal descent or cultural affiliation; the 

establishment of the identity of the 

object as a cultural item; and the 

presentation of evidence which, if 

standing alone before the introduction 

of evidence to the contrary, could 

support a finding that the museum or 

Federal agency did not have a right of 

possession to the cultural item (25 

U.S.C. 3005(a)(2) and (c)). Concerning 

this last criterion, the lineal descendant, 

Indian Tribe, or NHO making the 

request for repatriation is not required 

to do additional research on the object 

and can likely use the information 

provided by the museum or Federal 

agency about the object to satisfy all 

three criteria. 

For example, a museum has 

information that a pipe was acquired 

and accessioned in 1985 from an 

individual donor, a doctor, who 

originally received the pipe in 1965 as 

a gift. During consultation, a traditional 

religious leader identified the pipe as a 

sacred object needed by present-day 

pipe carriers for a traditional pipe 

ceremony. By speaking with elders, the 

traditional religious leader learned that 

in 1954, the U.S. Government 

terminated the Indian Tribe of the last 

Native American to own the pipe. 

Termination resulted in the Tribe’s land 

base being sold, relocation of the Tribe’s 

people to multiple urban areas 

throughout the U.S., and the forced 

suspension of the traditional religious 

practice associated with the pipe. The 

Native American owner relocated to the 

metropolitan area of the museum in 

1957 and was unemployed from 1963 

until the end of his life in 1966. The 

terminated Indian Tribe and the Indian 

Tribe who identified the traditional 

religious leader have a relationship of 

shared group identity through their 

origin stories, inter-marriage, and pipe 

ceremonies. The historical context 

surrounding the acquisition of the 

sacred object by the museum would be 

evidence to support a finding that, 

while the Native American owner had 

the authority to alienate the pipe, this 

transaction was not made voluntarily or 

fully freely. Consequently, in making its 

request for repatriation of this sacred 

object, the Indian Tribe could state (1) 

the pipe is a sacred object, (2) the Indian 

Tribe has cultural affiliation to the pipe 

based on historical information, 

kinship, and expert opinion, and (3) the 

historical information surrounding the 

acquisition of the sacred object shows 

that the museum does not have a right 

of possession to the sacred object. 

106. Comment: We received seven 

comments on § 10.9(e) Step 5—Respond 

to a request for repatriation. One 

comment stated that any request from a 

federally recognized Indian Tribe 

satisfies the criteria for repatriation and 

no other criteria should be required. 

Four comments believe the option for a 

museum or Federal agency to assert a 

right of possession was either 

impossible, a loophole, absurd, or 

intentionally obtuse. One comment 

stated a museum or Federal agency must 

show right of possession by a 

preponderance of the evidence. One 

comment stated that no museum or 

Federal agency could have possession or 

control of an object of cultural 

patrimony based on the definition of 

such an object. 

DOI Response: The criteria identified 

in paragraph (d) of this section are 

drawn from the Act itself at 25 U.S.C. 

3005(a)(2)—requiring identification of 

the specific type of cultural item and 

cultural affiliation to the requestor and 

25 U.S.C. 3005(c)—requiring 

information regarding right of 

possession. Right of possession is not 

intended to be a loophole or 

intentionally obtuse, but it is a standard 

that must be applied to requests for 

repatriation. The legal language of the 

Act ‘‘presents evidence which, if 

standing alone before the introduction 

of evidence to the contrary, would 

support a finding that the Federal 

agency or museum did not have the 

right of possession’’ has been 

interpreted here to fit within the steps 

of receiving and responding to a request 

for repatriation. As discussed in the 

previous response, a request must 

include information to support a finding 

that the museum or Federal agency does 

not have right of possession to the 

unassociated funerary object, sacred 

object, or object of cultural patrimony. 

In response to the information in the 

request for repatriation, a museum or 

Federal agency has an opportunity to 

‘‘overcome such inference and prove 

that it has a right of possession to the 

objects.’’ The standard applied to right 

of possession is distinct from and in 

some ways harder to satisfy than 

preponderance of the evidence. A 

museum or Federal agency must prove 

it has a right of possession to refuse to 

repatriate a cultural item. 

A museum or Federal agency may 

have possession or control of an object 

of cultural patrimony, as those terms are 

defined in the Act and these regulations. 

It is unlikely that a museum or Federal 

agency will have a right of possession to 

an object of cultural patrimony, given 

the definition of that term. Nevertheless, 

each request for repatriation of an object 

of cultural patrimony must be evaluated 

based on the information available. 

107. Comment: We received one 

comment on § 10.9(h) Evaluating 

competing requests for repatriation, 

objecting to the priority order that 

includes lineal descendants as it differs 

from the priority order in the Act at 25 

U.S.C. 3002(a). 

DOI Response: We cannot make the 

requested change to remove lineal 

descendants from the priority order for 

unassociated funerary objects or sacred 

objects. The referenced priority order 

applies to human remains or cultural 

items removed from Federal or Tribal 

lands under Subpart B of these 

regulations. For holdings or collections 

under Subpart C of these regulations, 

the Act provides for lineal descendants 

to request sacred objects under 25 

U.S.C. 3005(a)(5). By definition, an 

object of cultural patrimony cannot be 

connected to a lineal descendant. By 


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definition, an unassociated funerary 

object could be connected to a lineal 

descendant, provided that the related 

human remains are those of a known 

individual whose ancestry can be 

traced. The circumstances under which 

a lineal descendant can be identified for 

unassociated funerary objects is limited, 

but where possible, those lineal 

descendants have priority when there 

are competing requests. 

For example, in 1880, funerary objects 

were removed from the marked grave 

site of a known individual shortly after 

the individual’s death and burial. The 

human remains were not removed. In 

1940, the family of the person who 

removed the funerary objects from the 

grave site donated the objects to a local 

historical society. Accession records 

and exhibit labels at the historical 

society identify the individual who was 

buried with the funerary objects by 

name. A lineal descendant who can 

trace ancestry to the known individual 

requests repatriation of the unassociated 

funerary objects. After the notice of 

intended repatriation is published in the 

Federal Register, the Indian Tribe with 

cultural affiliation also requests 

repatriation of the funerary objects. 

Using this paragraph, the historical 

society determines the lineal 

descendant is the most appropriate 

requestor. 

M. Section 10.10 Repatriation of 

Human Remains or Associated Funerary 

Objects 

108. Comment: We received six 

comments on § 10.10(a) Step 1— 

Compile an itemized list of any human 

remains and associated funerary objects. 

Two comments supported this 

paragraph as proposed. Two comments 

requested additional language to require 

the inclusion of human remains and 

associated funerary objects that are 

identified in documentation that cannot 

be located or are known to have been 

destroyed. Two comments requested 

that this paragraph require consultation 

prior to any analysis and allow Indian 

Tribes and NHOs to dictate the level of 

documentation or analysis required to 

complete the itemized list. 

DOI Response: We have not made the 

requested changes. Based on the 

information available, a museum or 

Federal agency must determine if 

human remains or cultural items that 

are destroyed, deaccessioned, lost, or in 

any other way removed are under its 

possession or control and therefore 

subject to these regulations. As 

discussed elsewhere, a museum or 

Federal agency must ensure the 

itemized list is comprehensive and 

covers any holding or collection that 

may contain human remains and 

associated funerary objects. We note 

that an itemized list may be prepared 

using only documentation identifying 

human remains and associated funerary 

objects and there is no requirement to 

physically locate the human remains 

and associated funerary objects. 

We have not added the requested 

requirement for consultation to this 

paragraph but have, nevertheless, 

provided that lineal descendants, Indian 

Tribes, and NHOs must consent to any 

analysis of human remains and 

associated funerary objects. As provided 

in this paragraph, museums and Federal 

agencies must identify the number of 

individuals in a reasonable manner 

based on the information available. No 

additional study or analysis is required 

to identify the number of individuals. If 

human remains are present in a holding 

or collection, the number of individuals 

is at least one. We have made changes 

to § 10.1(d) Duty of care to require 

museums and Federal agencies obtain 

consent from lineal descendants, Indian 

Tribes, or NHOs prior to conducting any 

research on human remains or cultural 

items. ‘‘Research’’ includes any activity 

to generate new or additional 

information beyond the information that 

is already available, for example, 

osteological analysis of human remains, 

physical inspection or review of 

collections, examination or segregation 

of comingled material (such as soil or 

faunal remains), or rehousing of 

collections. ‘‘Research’’ is not required 

to identify the number of individuals or 

cultural items, or to determine cultural 

affiliation. 

109. Comment: We received three 

comments on § 10.10(b) Step 2—Initiate 

consultation. All three comments 

requested guidance on how to identify 

consulting parties for human remains 

and associated funerary objects with no 

known geographical location or a broad 

geographical location such as 

‘‘Southwestern.’’ One of these 

comments recommended that human 

remains with no geographical location 

information should be assumed to be 

from a geographical location near the 

museum or Federal agency. ‘‘For human 

remains believed to be Native American 

such as those with no provenance, it 

makes sense to establish a presumption 

for return and reburial rather than 

indefinite curation of these ancestral 

human remains.’’ The comment stated 

broad consultation with all Indian 

Tribes and NHOs ‘‘. . . is an inefficient 

manner of handling disposition of 

Native American human remains with 

no provenance’’ (NPS–2022–0004– 

0166). Another comment agreed stating 

‘‘[s]ending consultation letters to all 574 

Tribes and engaging in consultation 

with respondents would be extremely 

burdensome for the museum or Federal 

agency and could impede other 

repatriation efforts’’ (NPS–2022–0004– 

0125). 

On the other hand, one comment 

stated Indian Tribes and NHOs prefer 

for museums and Federal agencies to 

consult broadly with all 347 Indian 

Tribes in the contiguous 48 States, 227 

Indian Tribes in Alaska, and all Native 

Hawaiian organizations. The comment 

stated ‘‘[w]hile only approximately 4% 

of individuals have no geographic 

location information, they deserve to be 

treated with equal respect.’’ The 

comment asked for clarification because 

‘‘inconsistent guidance is provided by 

the Review Committee, which 

encourages broad consultation, and the 

National NAGPRA Program, which 

encourages making arrangements with 

the Tribe or Tribes whose aboriginal 

homeland includes the location of the 

museum’’ (NPS–2022–0004–0135). 

DOI Response: We have not made 

changes to this paragraph. We want to 

stress that broad consultation with all 

574 Indian Tribes and all NHOs is not 

a requirement of either the existing 

regulations or the final regulations. We 

disagree that the Review Committee and 

the National NAGPRA Program have 

provided inconsistent guidance. Both 

the Review Committee and the National 

NAGPRA Program support consultation 

that leads to expeditious repatriation. 

Both the Review Committee and the 

National NAGPRA Program advise that 

broad consultation helps alleviate the 

potential for competing requests or 

disagreements. Under the existing 

regulations and these final regulations, 

a museum or Federal agency is 

responsible for identifying consulting 

parties and initiating consultation based 

on the information available. Museums 

and Federal agencies can choose to 

consult broadly, even if doing so is 

burdensome and less efficient. 

Under these final regulations, there is 

a specific timeframe for museums and 

Federal agencies to consult on human 

remains and associated funerary objects. 

Yet, it is still up to a museum or Federal 

agency to identify lineal descendants 

and Indian Tribes and NHOs with 

potential cultural affiliation and invite 

them to consult. For example, based 

only on acquisition history and the 

current location of the museum, a 

museum could decide its preference is 

to only invite Indian Tribes who 

currently reside in the county and State 

where the museum is located. 

Alternately, a museum could decide to 

invite all Indian Tribes who previously 

occupied the State where the museum is 


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located to participate in consultation. Or 

a museum could decide to invite all 

Indian Tribes who reside in the wider 

geographic region (northeast or 

southwest, for example) or all 574 

Indian Tribes and all NHOs to 

participate in consultation. Provided the 

museum is acting in good faith, any of 

these options are sufficient, but a 

museum or Federal agency should keep 

in mind the deadline for completing or 

updating an inventory and publishing a 

notice of inventory completion. 

110. Comment: We received four 

comments on § 10.10(d) Step 4— 

Complete an inventory of human 

remains and associated funerary objects 

that expressed concern about the 

determinations that are required in an 

inventory under paragraph (d)(1)(iii) of 

this section. 

DOI Response: We have revised the 

list of determinations in an inventory 

under paragraph (d)(1)(iii) to correspond 

to the changes in § 10.3 Determining 

cultural affiliation. For each entry in an 

itemized list, the inventory must 

include a determination identifying one 

of the following: 

1. A known lineal descendant (whose 

name may be withheld); 

2. The Indian Tribe or Native 

Hawaiian organization with cultural 

affiliation that is clearly identified by 

the information available; 

3. The Indian Tribe or Native 

Hawaiian organization with cultural 

affiliation that is reasonably identified 

by the geographical location or 

acquisition history; or 

4. No lineal descendant or any Indian 

Tribe or Native Hawaiian organization 

with cultural affiliation can be clearly or 

reasonably identified. 

The two options for identifying 

cultural affiliation come directly from 

the Act, which we have also used in 

defining cultural affiliation and in § 10.3 

Determining cultural affiliation. In the 

Act, cultural affiliation of human 

remains may be (1) clearly identified or 

(2) not clearly identified but determined 

by a reasonable belief given the 

‘‘circumstances surrounding 

acquisition’’ (25 U.S.C. 3003(d)(2)(B) 

and (C)). Throughout this section of the 

Act, there is reference to an inventory 

identifying ‘‘geographical and cultural 

affiliation,’’ ‘‘geographical origin,’’ 

‘‘basic facts surrounding acquisition and 

accession,’’ ‘‘[T]ribal origin,’’ and 

‘‘totality of circumstances surrounding 

acquisition of the remains or objects’’ 

(25 U.S.C. 3003). The existing 

regulations require an inventory to 

include accession and catalogue entries 

and information related to the 

acquisition of each object, including: the 

name of the person from whom the 

object was obtained, if known; the date 

of acquisition; the place each object was 

acquired; and the means of acquisition. 

The proposed regulations revised this 

into two separate and simplified 

requirements under § 10.10(a): (1) the 

county and State where the human 

remains and associated funerary objects 

were removed and (2) the acquisition 

history (provenance) of the human 

remains and associated funerary objects. 

In these final regulations, the 

requirements under § 10.10(a) are (1) the 

geographical location (provenience) by 

county or State where the human 

remains and associated funerary objects 

were removed; and (2) the acquisition 

history (provenance) of the human 

remains and associated funerary objects. 

‘‘Acquisition’’ is not defined in the Act 

or these regulations and should be 

understood to have a standard, 

dictionary definition of ‘‘to get as one’s 

own; to come into possession or control 

of.’’ To elaborate and clarify what 

information the Act requires, we have 

separated the concept of acquisition into 

two separate parts: ‘‘provenience’’ and 

‘‘provenance’’ which both mean ‘‘origin, 

source.’’ Provenance also means ‘‘the 

history of ownership of a valued object 

or work of art or literature’’ (https://

www.merriam-webster.com/dictionary/ 

acquire, https://www.merriamwebster.com/dictionary/provenience, 

and https://www.merriam-webster.com/ 

dictionary/provenance, accessed 12/1/ 

2023). 

Therefore, under § 10.10(a) and (d), a 

museum or Federal agency must 

identify both the geographical location 

(provenience) from which the human 

remains and associated funerary objects 

were removed, but also the acquisition 

history (provenance) of the human 

remains and associated funerary objects. 

Even in the small number of cases 

where geographical location 

(provenience) of human remains and 

associated funerary objects is unknown, 

all human remains and associated 

funerary objects (as well as other 

cultural items) will have some kind of 

acquisition history or provenance. Even 

when the only information about human 

remains and associated funerary objects 

is that they were ‘‘found in collections’’ 

of a museum, that information is 

sufficient to identify the Indian Tribes 

or NHOs with potential cultural 

affiliation for consultation based solely 

on the location of or general collection 

practices of the museum. 

111. Comment: We received nine 

other comments on § 10.10(d) Step 4— 

Complete an inventory of human 

remains and associated funerary objects. 

One comment objected to the 

requirement for updating an inventory 

under paragraph (d)(4) of this section as 

work formerly deemed ‘‘complete’’ will 

now be ‘‘incomplete’’ and this 

undermines the goal of improving 

implementation and compliance with 

the Act. One comment requested 

changes to require the Assistant 

Secretary to monitor the work of 

museums who requested an extension. 

Seven comments requested clarification 

of the requirements when a holding or 

collection is transferred. 

DOI Response: We disagree that the 

requirement to update an inventory 

undermines the goal of improving 

implementation and compliance with 

the Act and these regulations. Just as 

they were required to do in 1990, 

museums and Federal agencies must 

initiate consultation, consult on human 

remains and associated funerary objects, 

and make determinations about cultural 

affiliation. In updating an inventory, the 

museums or Federal agencies already 

have a significant amount of 

information available in the previously 

prepared and submitted inventories. No 

additional research or analysis is 

required by these regulations. To fulfill 

this requirement, a museum could send 

its original inventory from 1995 along 

with the other required information to 

initiate consultation. In response, a 

consulting party might identify those 

human remains and associated funerary 

objects that it wishes to consult on and 

assert it has cultural affiliation to the 

human remains and associated funerary 

objects. 

The Assistant Secretary will decide 

on any request for an extension to the 

inventory deadlines and will publish a 

list of all museums who request an 

extension in the Federal Register. This 

will provide both the Assistant 

Secretary and the public with 

information needed to monitor the 

progress of museums who have not 

completed the inventory requirements 

by the deadline. 

We have clarified how a museum or 

Federal agency may rely on a previously 

completed or updated inventory after a 

transfer. The museum or Federal agency 

must still complete the inventory by the 

required deadline but only after 

initiating consultation. The criminal 

provisions of NAGPRA (18 U.S.C. 1170) 

clearly prohibit the sale, purchase, use 

for profit, or transportation for sale or 

profit of Native American human 

remains. Any museum or Federal 

agency that acquires possession or 

control of human remains must ensure 

they are not violating those provisions 

in any transfer of human remains. 

112. Comment: We received five 

comments on the requirement to 

repatriate associated funerary objects 


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with all human remains, regardless of 

cultural affiliation. Two of these 

comments objected to the requirement. 

One comment stated the Department 

made a gross oversimplification of the 

issues raised in a taking of property in 

adding this requirement and that ‘‘[i]t is 

a blanket grab for objects not previously 

deemed covered under NAGPRA’’ 

(NPS–2022–0004–0188). Another 

objecting comment believes this change 

to the existing regulations ‘‘. . . is being 

made without a formal review of its 

Fifth Amendment takings implications 

under Executive Order 12630’’ and will 

‘‘create an opportunity for lawsuits to 

overturn these rules—especially now 

that ‘Chevron deference’ has been 

significantly weakened. Experience has 

shown that such litigation is detrimental 

to the relationships that have been built 

between museums and Native groups 

over the past 30 years’’ (NPS–2022– 

0004–0172). On the other hand, three 

comments supported this requirement, 

although one comment expressed 

concern over the legal review of this 

change. 

DOI Response: We have not made any 

change to the requirement for associated 

funerary objects to be repatriated with 

human remains. We have conducted a 

thorough, formal review of this 

requirement and these regulations. 

Information and analysis related to that 

review can be found in the 2022 

Proposed Rule (87 FR 63226). 

113. Comment: We received one 

comment on § 10.10(f) Step 6—Receive 

and consider a request for repatriation. 

The comment stated that any request 

from an Indian Tribe satisfies the 

criteria for repatriation and no other 

criteria should be required. 

DOI Response: In this section for 

human remains and associated funerary 

objects, the only criteria for a request for 

repatriation is that the lineal 

descendant, Indian Tribe, or NHO is 

identified in the notice of inventory 

completion. The lineal descendant, 

Indian Tribe, or NHO that is identified 

in a notice of inventory completion is 

determined in the inventory under 

§ 10.10(d)(1) of this section and as 

discussed in detail in Comment 110. 

The procedures in this paragraph are 

necessary to set up an opportunity for 

additional requests for repatriation to be 

made. 

This paragraph provides an option for 

a requestor that is not identified in a 

notice of inventory completion. The 

requestor must show, by a 

preponderance of the evidence, that the 

requestor is a lineal descendant or an 

Indian Tribe or NHO with cultural 

affiliation. A museum or Federal agency 

may determine in an inventory and a 

notice of inventory completion that for 

certain human remains and associated 

funerary objects there is no lineal 

descendant or any Indian Tribe or NHO 

with cultural affiliation. This paragraph 

provides that any lineal descendant, 

Indian Tribe, or NHO can make a 

request for repatriation of those human 

remains or cultural items. The museum 

or Federal agency must respond in 

writing to the request within 90 days. 

114. Comment: We received 17 

comments on § 10.10(k) Transfer or 

reinter human remains and associated 

funerary objects. Of that total, two 

comments supported this paragraph as 

proposed. Two comments requested we 

remove the option for reinternment as 

museums and Federal agencies should 

not be authorized to reinter human 

remains or cultural items. Two 

comments missed or misunderstood this 

paragraph and expressed concern that 

by removing the options under the 

existing regulations for culturally 

unidentifiable human remains, these 

regulations would eradicate a way 

forward for transfer of human remains 

without cultural affiliation or that have 

a relationship of shared group identity 

to Indian groups without Federal 

recognition. The Review Committee 

objected to the option in this paragraph 

for transfer of human remains to Indian 

groups without Federal recognition and 

requested a thorough legal review of this 

option. The Review Committee and 

others requested this paragraph include 

a requirement for the Review Committee 

and the Secretary to review agreements 

for transfer or reinterment prior to 

publication of a notice of intended 

transfer or reinterment. The Review 

Committee and one other comment also 

requested that any notice for 

reinterment include the specific law 

allowing for reinterment. Four 

comments requested that the regulations 

specifically protect information about 

any reinterment under this section or 

under § 10.7 from disclosure or 

dissemination and that reinterment be 

as close as possible to the location 

where the human remains and 

associated funerary objects were 

removed. 

DOI Response: We have revised this 

paragraph to apply only to human 

remains and associated funerary objects 

with no lineal descendant or no Indian 

Tribe or NHO with cultural affiliation. 

We believe the clarification and 

simplification of the cultural affiliation 

and repatriation processes for human 

remains and associated funerary objects 

that precedes this paragraph will 

address many of the concerns raised by 

these comments and that this paragraph 

will apply only to a small number of 

human remains and associated funerary 

objects. 

We reiterate that cultural affiliation as 

defined in the Act only applies to an 

NHO or an Indian Tribe, which means 

a federally recognized Indian Tribe. An 

Indian group without Federal 

recognition may have a shared group 

identity to an earlier group, but such an 

Indian group cannot have a cultural 

affiliation as defined under the Act or 

these regulations. As noted elsewhere, 

Indian groups without Federal 

recognition, including State recognized 

tribes, are not completely excluded from 

the repatriation processes. As is the 

current practice, Indian groups without 

Federal recognition can work with 

federally recognized Indian Tribes as 

part of a joint request for repatriation. 

We have removed the option to 

transfer unclaimed human remains or 

cultural items to Indian groups without 

Federal recognition. This change is in 

response to the strong objections we 

received from federally recognized 

Indian Tribes and discussed in 

Comment 3. This change also 

emphasizes and recognizes that the Act 

reflects the unique relationship between 

the Federal government and Indian 

Tribes and NHOs (25 U.S.C. 3010). This 

change is also based on experience over 

the last 13 years with repatriation 

involving Indian groups without Federal 

recognition. 

We have retained the option to 

transfer to an Indian Tribe or NHO or to 

reinter. At the discretion of the museum 

or Federal agency and after following 

the requirements of this paragraph, 

human remains and associated funerary 

objects may be transferred or reinterred. 

In Texas, for example, conflicts between 

federally recognized Indian Tribes and 

Indian groups without Federal 

recognition have resulted in a 

preference for reinterment rather than 

for transfer. In California, State law 

provides for more involvement of State 

recognized groups in repatriation and in 

many cases Indian Tribes have worked 

jointly with Indian groups without 

Federal recognition to complete 

repatriations and reburials. This 

paragraph provides for any Indian Tribe 

or NHO to request and receive physical 

transfer of human remains and 

associated funerary objects that have no 

cultural affiliation. We hope that this 

will allow for even more collaboration 

between federally recognized Indian 

Tribes and Indian groups without 

Federal recognition to achieve repose 

for these human remains and associated 

funerary objects. 

As reinterment is a discretionary 

action, these regulations cannot dictate 

where reinterment occurs. The 


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regulations do not require identification 

of the reinterment location and do 

require sensitive information be 

protected from disclosure. After a 

thorough legal and policy review of this 

paragraph, we have determined neither 

the Review Committee nor the Secretary 

must review agreements between the 

parties prior to publication of a notice 

of intended transfer or reinterment. 

N. Section 10.11 Civil Penalties 

115. Comment: We received 30 

comments on § 10.11 Civil penalties. Of 

that total, 12 comments supported the 

section as proposed. Nine comments 

requested the regulations add 

procedures for investigating a Federal 

agency’s failure to comply with the 

requirements of the Act. Three 

comments objected to the revisions to 

this section and requested we reinstate 

or identify more limited categories for 

failure to comply. One comment stated 

that as proposed, the regulations ensure 

all museums will fail to comply with 

the requirements of the Act. Three 

comments requested clarification if 

certain actions, like releasing sensitive 

information, would be a failure to 

comply. One comment requested 

clarification if museums with custody of 

a Federal holding or collection are 

subject to civil penalties. One comment 

provided specific suggestions for this 

section to include (1) a fixed timeline, 

(2) a transparent procedure for 

investigations, (3) involvement of an 

aggrieved party, and (4) options for 

aggrieved parties to appeal a final 

decision. 

DOI Response: We cannot expand this 

section to include Federal agencies. As 

noted in the regulations, Federal 

agencies are not subject to the civil 

penalty provisions of the Act and any 

change would be inconsistent with the 

Act. It is not appropriate for this section 

to reference or include other Federal 

laws. The most broadly applicable way 

to allege that a Federal agency has failed 

to comply with the Act or these 

regulations is to send an allegation to 

the head of the appropriate Federal 

agency or to the Federal agency’s Office 

of the Inspector General. 

We have not revised the broad options 

for a failure to comply. All the 

requirements in Subpart C of these 

regulations can be the subject of a civil 

penalty. We have provided clear 

timelines for museums, after the 

effective date of these final regulations, 

to ensure they are in compliance with 

all these requirements. Museums should 

carefully consider these timelines when 

exercising the discretion they have on 

how to complete the required tasks. For 

example, as discussed elsewhere, a 

museum has discretion in how it 

compiles an itemized list of human 

remains and associated funerary objects. 

Whether a specific action, like failing to 

protect sensitive information, 

constitutes a failure to comply will 

depend on the specific circumstances. A 

museum that has custody of a Federal 

agency holding or collection is 

responsible for sending the required 

statement under § 10.8(c) and a failure 

to do so could constitute a failure to 

comply under this section. As discussed 

in the following responses, this section 

provides timelines and transparency 

whenever possible. However, we note 

that given the nature of investigations 

and civil penalties, not all tasks can be 

made public. 

We have made edits to this section 

and the definitions to identify the 

Assistant Secretary as the individual 

with delegated authority under this 

section. We have made additional 

updates related to the address for the 

Department’s Office of Hearings and 

Appeals. 

116. Comment: We received 30 

comments on § 10.11(a) File an 

allegation. Most of these comments (25) 

requested we remove the requirement 

for an allegation to include the full 

name, mailing address, telephone 

number, and (if available) email address 

of the person alleging the failure to 

comply. A few of these comments also 

requested we reduce the requirements 

for an allegation to identify and 

enumerate violations in an allegation or 

to identify and enumerate the aggrieved 

parties. One comment requested that 

allegations be sent to the Department’s 

Office of the Inspector General, rather 

than the Manager, National NAGPRA 

Program. Two comments requested the 

regulations include a procedure for the 

Department to inspect or investigate 

museums proactively, rather than 

depending on allegations. Two 

comments requested a procedure for 

Indian Tribes to report when a request 

to a museum is denied or ignored. 

DOI Response: We cannot provide for 

anonymous allegations in these 

regulations. To ensure the Assistant 

Secretary can gather necessary 

information on an allegation, we require 

that a person alleging the failure to 

comply identify themselves and provide 

a method for us to contact them. 

However, that does not preclude any 

individual from submitting an 

anonymous tip regarding a failure to 

comply. While not an allegation, an 

anonymous tip could provide 

information for the Assistant Secretary 

to investigate and determine if a failure 

to comply has occurred. We have 

revised the requirement to only include 

contact information (telephone or email) 

in an allegation. We have revised the 

requirements to enumerate violations, 

but we cannot revise the requirement to 

identify violations. The allegation must 

contain some information to determine 

if an investigation is warranted. Again, 

we note that any individual could 

submit a tip regarding a failure to 

comply where the individual has no 

information to identify a violation. 

An allegation may be submitted by an 

Indian Tribe or NHO when a museum 

denies or ignores a request, depending 

on the circumstances. Under these 

regulations, a museum must respond to 

a request for repatriation, and, if a 

museum determines the request does 

not meet the required criteria, it must 

provide a detailed explanation and 

provide an opportunity for the requestor 

to submit additional information. If a 

response to a request for repatriation is 

not sent by the deadline required or if 

it does provide detailed information, the 

Indian Tribe or NHO could allege a 

failure to comply. 

Under the Act, the Secretary has 

discretion for assessing a civil penalty 

pursuant to the procedures established 

in these regulations. The Secretary has 

delegated responsibility for receiving 

allegations of failure to comply to the 

Manager, National NAGPRA Program, 

but the Secretary has delegated 

responsibility for assessing a civil 

penalty to the Assistant Secretary. 

While these regulations do not require 

the Assistant Secretary inspect or 

investigate museums proactively, the 

Assistant Secretary may assess a civil 

penalty to any museum that fails to 

comply. 

117. Comment: We received 12 

comments on § 10.11(b) Respond to an 

allegation. Seven comments supported 

this paragraph as proposed, specifically 

the timeline for the Assistant Secretary 

to respond to an allegation. Four 

comments requested the regulations 

clarify what action the Assistant 

Secretary must take in 90 days. One 

comment stated that a civil penalty 

must always be the appropriate remedy 

to a failure to comply. 

DOI Response: We have made edits to 

clarify that no later than 90 days after 

receiving an allegation, the Assistant 

Secretary must determine if the 

allegation meets the requirements and 

must respond to the person making the 

allegation. After that, the Assistant 

Secretary may conduct any investigation 

that is necessary. We cannot place time 

constraints on the investigation, but we 

have ensured that the Assistant 

Secretary will decide on all allegations 

that meet the requirements for an 

allegation. The Assistant Secretary has 


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reserved the option to determine that a 

failure to comply is substantiated, but a 

penalty is not an appropriate remedy. 

118. Comment: We received nine 

comments on § 10.11(c) Calculate the 

penalty amount. Four comments 

requested an increase in the base 

penalty amount while two comments 

requested penalties be calculated on a 

per day, per violation basis. One 

comment requested that since no 

monetary value can be placed on 

cultural items, the regulations should 

use civil penalties primarily to facilitate 

repatriation. One comment requested 

the regulations not reference the 

commercial value of human remains or 

cultural items. One comment requested 

the regulations make a connection 

between the options for increasing or 

decreasing a penalty amount so that the 

increasing factors can be used to justify 

denying any of the decreasing factors. 

DOI Response: We have not increased 

the base penalty amount or changed the 

calculation to per day and per violation. 

We believe the regulations provide 

sufficient means for the Assistant 

Secretary to calculate a penalty based on 

the number of separate violations and 

the factors for increasing the base 

amount. Coupled with the broadening of 

this section to include any failure to 

comply, we believe civil penalties will 

be an effective tool to facilitate 

repatriation. We cannot remove 

commercial value because that language 

is in the Act itself and must be a part 

of these regulations. 

119. Comment: We received four 

comments on § 10.11(d) Notify a 

museum of a failure to comply that 

requested aggrieved parties be notified 

as well. We received two comments on 

§ 10.11(e) Respond to a notice of failure 

to comply that requested aggrieved 

parties be included in any informal 

discussion of the failure to comply. 

DOI Response: We have included a 

requirement for any lineal descendant, 

Indian Tribe, or NHO named in a notice 

of failure to comply to receive a copy of 

the notice. If an aggrieved party is 

identified in an allegation or through 

the investigation of an allegation, that 

party would be named in the notice of 

failure to comply and receive a copy of 

the notice. We cannot require aggrieved 

parties be included in informal 

discussions regarding the notice of 

failure to comply. Prior to assessing a 

civil penalty, the Assistant Secretary 

may request information from any party 

and must consider that information in 

assessing the civil penalty. After 

receiving a copy of a notice of failure to 

comply, any aggrieved party may 

provide information to the Assistant 

Secretary related to the failure to 

comply, especially if it will inform the 

penalty assessment. 

120. Comment: We received two 

comments related to § 10.11(h) Respond 

to an assessment and four comments on 

§ 10.11(n) Additional remedies. Two 

comments requested clarification on 

where money collected under a civil 

penalty goes. Four comments requested 

the Department use other civil penalties 

authorized under law beyond this 

section. 

DOI Response: Any payments for civil 

penalties are by certified check made 

payable to the U.S. Treasurer and the 

funds go to the general account of the 

U.S. Treasury. The Department reserves 

the right to pursue other available legal 

or administrative remedies in the final 

paragraph of this section. 

O. Section 10.12 Review Committee 

121. Comment: We received 16 

comments on § 10.12 Review 

Committee. Seven comments requested 

that the monitoring responsibilities of 

the Review Committee be added to this 

section. Four comments requested we 

expand this section to include other 

responsibilities or at least caveat the 

final paragraph to indicate it is not the 

only action the Review Committee can 

take. Three comments requested the 

duty to report to Congress be added to 

this section. One comment requested 

the responsibilities for compiling an 

inventory for certain human remains 

and recommending specific actions be 

added to this section, although the 

comment was clear the term ‘‘culturally 

unidentifiable’’ should not be used. One 

comment suggested the Review 

Committee take on regional cases, like 

the Review Committee’s finding for 

Moundville, to assist both Indian Tribes 

and NHOs and museums and Federal 

agencies to determine cultural affiliation 

and publish those decisions. 

DOI Response: We do not see a reason 

to simply add the language of the Act to 

these regulations. The enumerated 

responsibilities in the Act are still 

required regardless of their inclusion in 

the regulations. However, we do agree 

with many of the comments that 

providing additional procedures in 

these regulations for the Review 

Committee may further the goals of 

disposition or repatriation. Although 

some comments provided suggestions 

for adding language, we decline to add 

any additional procedures at this time. 

We commit to working with the Review 

Committee to develop additional 

paragraphs for this section of the 

regulations. Any additions will require 

additional consultation with Indian 

Tribes and NHOs as well as public 

comment. 

122. Comment: We received four 

comments on § 10.12(a) 

Recommendations requesting that we 

revise 90 days to 30 days. We received 

four comments discussed above that 

supported the 90-day timeframe. 

DOI Response: We decline to make 

this change. Under the Federal Advisory 

Committee Act, meeting minutes must 

be certified 90 days after a public 

meeting. Using this same time frame for 

publication of related notices will 

ensure that the meeting minutes that 

support the recommendations or 

findings are also available. 

123. Comment: We received four 

comments on § 10.12(b) Nominations. 

Two comments related to the 

requirement that two traditional Indian 

religious leaders be nominated, at the 

exclusion of a traditional Native 

Hawaiian religious leader. One 

comment suggested that the seventh 

member be appointed from a list 

developed by only the three members 

nominated by Indian Tribes, NHOs, and 

traditional religious leaders. One 

comment requested clarification on the 

limitations of national museum or 

scientific organizations. 

DOI Response: We cannot make the 

changes requested to either the first or 

last category of nominations as doing so 

would be inconsistent with the Act. 

When Congress expressly identified 

traditional Indian religious leaders as 

being eligible to serve in two of the 

three specified slots, it excluded 

traditional Native Hawaiian religious 

leaders. The Act also specifies that the 

Secretary choose the seventh member 

from a list developed and consented to 

by all the other members. The Act did 

not provide any requirements beyond 

‘‘national museum organizations and 

scientific organizations.’’ The additional 

information on these organizations was 

added in response to the Government 

Accountability Office report in 2010. 

‘‘Lesser geographic scope’’ refers to a 

scope that is less than national. 

Similarly, the membership of the 

organization cannot be limited to one 

region of the United States. 

124. Comment: We received three 

comments on § 10.12(c) Findings of fact 

or disputes on repatriation. One 

comment supported the paragraph as 

proposed. One comment requested 

grammatical changes. One comment 

requested we add scientists as affected 

parties under this paragraph. 

DOI Response: We decline to make 

any of the requested changes. The Act 

specifically limits the parties who may 

seek facilitation of disputes to lineal 

descendants, Indian Tribes, NHOs, 

museums, and Federal agencies. For 

findings of fact, the request must be 


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from an affected party and relate to the 

identity, cultural affiliation, or return of 

human remains or cultural items. We do 

not find that scientists alone are affected 

parties in either circumstance. 

III. Response to Public Engagement and 

Request for Comments 

A. Public Engagement 

Between October 18, 2022, and 

January 31, 2023, the Department 

conducted consultation sessions with 

Indian Tribes and the Native Hawaiian 

Community. The Department conducted 

additional consultation sessions, upon 

request, with Indian Tribes or the Native 

Hawaiian Community to ensure 

sufficient opportunity to engage and 

comment in advance of this final rule 

and to respond to the previous requests 

received for additional consultation 

sessions. During consultation, the 

Department requested feedback from 

Indian Tribes and NHOs on how to 

further allow Indian Tribes and NHOs 

flexibility and discretion regarding the 

regulatory requirements and the new 

responsibilities under Subpart B and the 

deadlines under Subpart C. 

We received several comments related 

to these specific requests and have 

responded to them directly elsewhere in 

this document (see Comments 4, 30, 64, 

65, 80, 85, 92, 94, 105, and 111). Other 

comments from Indian Tribes provided 

additional input on these specific 

requests, and we have incorporated any 

suggestions, to the extent possible, to 

provide Indian Tribes and NHOs with 

flexibility and discretion in these 

regulatory requirements. One comment 

provided specific and direct feedback 

related to these specific requests, and 

we are providing a summary of that 

comment and a direct response here as 

an illustrative example. 

In the comment, the Indian Tribe 

expressed concerns about the timelines 

for updating inventories, specifically, 

and the potential for the burden of 

consultation to be placed on Indian 

Tribes. The Indian Tribe requested that 

the regulations provide options for 

Indian Tribes to determine if or when 

they wished to consult and to delay 

consultation as needed. The Indian 

Tribe felt that some of the regulatory 

procedures were streamlined and 

simplified but did not feel that 

consultation was any more efficient 

than the existing regulations. The Indian 

Tribe believed the proposed regulations 

stressed consultation and repatriation 

requests at the end of the inventory, 

rather than at the beginning, and 

requested that the regulations be revised 

to stress the requirement for 

consultation at the beginning of the 

process. The Indian Tribe also asked to 

extend the deadline for the updated 

inventory and that the regulations make 

clear that a request for an extension of 

the deadline is an option. The Indian 

Tribe stated, ‘‘At issue is not the 

regulatory process, but the fact that the 

majority of museums do not know what 

they have in their collections. Any 

attempts to project a budget or 

timeframe for resources needed tend to 

be woefully inadequate. Museums also 

seem unwilling to review their 

collection boxes physically or lack the 

expertise to review osteological 

material’’ (NPS–2022–0004–0185). The 

Indian Tribe provided an example of a 

recent consultation that resulted in the 

identification of an additional 19 sites 

and 500 funerary objects during a 

cursory review. The Indian Tribe 

expressed a concern echoed in many 

comments from all constituents that the 

new deadlines would result in ancestors 

being left behind and a general lack of 

due diligence on the part of museums 

and Federal agencies. 

As discussed elsewhere in this 

document, we do not intend to impose 

requirements on lineal descendants, 

Indian Tribes, or NHOs to respond to 

invitations to consult or to submit 

requests for repatriation. Those are 

actions that lineal descendants, Indian 

Tribes, and NHOs may choose to take, 

but are not required. However, 

museums and Federal agencies are 

required to act within certain timelines, 

and those timelines are required even if 

there is no response from a lineal 

descendant, Indian Tribe, or NHO to an 

invitation to consult. In § 10.10, a 

museum or Federal agency must initiate 

consultation prior to completing or 

updating an inventory, but if there is no 

response to the invitation to consult, the 

museum or Federal agency must 

complete or update the inventory by the 

deadlines required under § 10.10(d) and 

submit a notice of inventory completion 

under § 10.10(e). We stress that an 

extension of this deadline may be 

requested by any museum that has made 

a good faith effort to update its 

inventory. We have added to the 

requirements for an extension the 

written agreement of consulting parties 

to the request. If a museum will need 

additional time to complete its 

inventory, it can only do so by first 

engaging in meaningful and effective 

consultation with lineal descendants, 

Indian Tribes, and NHOs. With these 

changes to the regulations, we hope to 

provide a clear path to repatriation 

where lineal descendants, Indian Tribes, 

and NHOs, rather than museums or 

Federal agencies, define what 

‘‘expeditious’’ repatriation means. 

Regarding due diligence and the 

potential for human remains or cultural 

items to be left behind, we note that the 

Act and these regulations impose 

standards and requirements for 

museums and Federal agencies to make 

an effort to identify human remains and 

cultural items. Any museum or Federal 

agency that fails to identify a holding or 

collection that contains human remains 

or cultural items has failed to comply 

with the Act and these regulations. It is 

therefore advantageous for a museum or 

Federal agency to be broadly inclusive 

of collections, especially those that 

might contain human remains. 

The Department proactively engaged 

with a subset of affected entities, 

including Indian Tribes, NHOs, 

museums, and Federal agencies, to 

understand if the regulatory revisions 

could impact these entities’ capacity 

and resources. The Department 

requested feedback from Indian Tribes, 

NHOs, museums, and Federal agencies 

on how to ensure the step-by-step 

process for repatriation is streamlined 

and simplified by the regulatory 

revisions under Subpart C. In preparing 

the proposed regulations, the 

Department was not aware of any 

capacity and resource limitations that 

would prevent these entities from 

completing the new requirement to 

update inventories, submit requests to 

consult, engage in consultation, and 

publish notices following the effective 

date of a final rule. 

As discussed elsewhere in this 

document, but especially in Comment 4, 

we received substantial and specific 

feedback on the impact to capacity and 

resources under these regulations. We 

have addressed many of these 

comments in the revised Cost-Benefit 

and Regulatory Flexibility Threshold 

Analyses for the final regulations. We 

have incorporated any suggestions, to 

the extent possible, to ensure the stepby-step process for repatriation is 

streamlined and simplified under 

Subpart C. The same submission from 

an Indian Tribe provided specific and 

direct feedback related to this specific 

request as well, and we are providing a 

summary of that comment and a direct 

response here as an illustrative example. 

The Indian Tribe stated its staff would 

be overwhelmed by requests to consult 

and requested that the regulations make 

clear that, after receiving an invitation 

to consult from a museum or Federal 

agency, Indian Tribes should be allowed 

to move at their own pace according to 

each sovereign’s capacity and resources. 

The Indian Tribe stated that it currently 

consults or has consulted with 347 


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entities on NAGPRA collections, and 

every year that number increases. The 

Indian Tribe explained that, depending 

on size, scope, and context of the 

collection, some consultations require 

mere hours while others require years of 

sustained work. The Indian Tribe 

believes there is no way to truly 

calculate the costs or to accurately 

forecast if there will be sufficient 

opportunity to submit requests and 

engage in meaningful consultation. The 

Indian Tribe explained that, based on 

experience, review of collections is 

often necessary as museums fail to 

accurately identify funerary objects and 

other cultural items. The Indian Tribe 

requested that the regulations allow 

flexibility, to be guided by 

considerations and consultations with 

Indian Tribes. 

Throughout these regulations, we 

require museums and Federal agencies 

to defer to the Native American 

traditional knowledge of lineal 

descendants, Indian Tribes, and NHOs. 

We have required museums and Federal 

agencies to not only consult but also 

obtain consent prior to allowing 

exhibition of, access to, or research on 

Native American human remains or 

cultural items. We have reiterated the 

requirements of the Act for museums 

and Federal agencies to rely on the 

information available (previous 

inventories, catalog cards, accession 

records, etc.) to identify consulting 

parties, conduct consultation, determine 

cultural affiliation, update the 

inventory, and submit a notice of 

inventory completion. Any museum or 

Federal agency that fails to identify a 

holding or collection that contains 

human remains or cultural items has 

failed to comply with the Act and these 

regulations. It is therefore advantageous 

for a museum or Federal agency to be 

broadly inclusive of collections, 

especially those that might contain 

funerary objects or other cultural items. 

B. Requests for Comments 

In addition to the public engagement 

and outreach discussed above, the 

Department solicited comment from the 

public on the entirety of the proposed 

rule. The Department received 

comments from the public on the costbenefit and regulatory flexibility 

analyses, including the conclusions 

about the expected costs of complying 

with the rule. In particular, the 

Department requested responses to the 

following questions about the proposed 

regulations (labeled a through g): 

a. For each regulatory requirement, 

does the estimated time per response 

seem reasonable? If not, what range of 

time per response would be more 

reasonable for a specific regulatory 

requirement? 

As noted elsewhere in this document, 

we received several comments that 

provided input or alternative estimates 

for specific tasks. Two comments stated 

the rate used to calculate costs should 

be increased to $100 to $120 per hour. 

A few comments provided estimated 

costs to Indian Tribes and NHOs of 

$17.2 million per year. This estimate 

was developed using grant awards from 

2011 to 2021 to estimate the average 

cost for a notice of inventory completion 

($14,416 per notice). After calculating 

an estimated cost for museums and 

Federal agencies to comply with the 

regulations, the estimate calculated the 

costs for Indian Tribes and NHOs by 

applying the percentage of funding 

awarded in grants from 2011–2021 to 

museums (58%) and Indian Tribes or 

NHOs (42%) to estimate a total burden 

for the regulations at $91.4 million over 

30 months or $36.6 million per year 

(NPS–2022–004–0174). 

One museum provided a variety of 

estimates based on current project 

budgets which ranged from $200,000 to 

$500,000 per project per year for one 

museum. The comment estimated the 

burden for the single museum at 19,000 

hours per year ($1.273 million per year 

per museum assuming an hourly rate of 

$67/hour). When applied to all 407 

museums that will be required to update 

inventories under these regulations, that 

amounts to the highest estimate of 

$518.1 million per year for museums 

alone, although the comment noted that 

not all museums will require the same 

number of hours (NPS–2022–004–0125). 

One individual detailed the hours 

involved in one part of a two-part 

project over 15 months. While a total 

estimated cost was not provided, 

elsewhere the comment suggested at 

minimum $100 to $120 an hour should 

be used in dollar estimates. Using the 

lower hourly figure and the rough 

number of hours provided, the estimate 

for the first phase of the project is 

$123,000 over 15 months or $98,400 per 

year. When applied to all 407 museums 

that will be required to update 

inventories under these regulations, it 

equals an estimated $40 million per year 

for museums. The comment noted that 

these estimates do not include the hours 

involved in preparation of the original 

inventory of human remains and 

associated funerary objects completed in 

the early 1990s (NPS–2022–004–0135). 

Each of these estimates uses a 

different method to estimate the costs 

for repatriation of human remains and 

associated funerary objects, but we do 

not feel they accurately estimate the 

costs of compliance with either the 

existing regulations or this regulatory 

action. We believe that any estimate 

based on current practice or past grant 

awards is inherently flawed and does 

not account for the specific objective of 

this regulatory action to simplify and 

improve the systematic processes within 

specific timeframes. We agree that our 

estimates do not reflect the actual 

amount of time some museums and 

Federal agencies currently spend on 

compliance with these regulations. We 

strongly disagree, however, that our 

estimates do not reflect what is required 

by these regulations. In the 33 years 

since the passage of the Act, each 

museum or Federal agency has 

approached the requirements of these 

regulations in different ways, and, as a 

result, there is a wide variation in how 

much time and money is spent to 

comply with these regulations. As one 

of the goals for this regulatory action is 

to improve efficiency and consistency in 

meeting these requirements, this will 

necessarily mean a difference between 

the estimated costs and current 

practices. 

b. For Subpart B, is the estimated 

number of annual discoveries on 

Federal or Tribal lands reasonable? We 

used the average number of notices on 

Federal lands over the last three years, 

but we have no data on the number of 

discoveries on Tribal lands to inform 

this estimate. 

Our initial estimate relied on an 

average of 11 notices of intended 

disposition submitted by Federal 

agencies in the three years (FY2019 = 13, 

FY2020 = 9, and FY2021 = 10). In the 

most recent year, seven notices were 

submitted (FY2022). We received input 

from Federal agencies that the estimate 

is low, likely because of underreporting. 

Federal agencies provided higher 

estimates for the number of annual 

discoveries and the time per response 

which are incorporated into the revised 

Cost-Benefit and Regulatory Flexibility 

Threshold Analyses for the final 

regulations. The number of discoveries 

and excavations on Tribal lands remains 

unknown. 

For example, in estimating the 

number of responses to a discovery on 

Federal lands, we relied on input from 

Federal agencies and increased the 

estimated number from 11 responses to 

60 responses each year. One Federal 

agency with a large land area reported 

an average of 20 discoveries per year, 

leaving most stabilized in place and not 

excavated or removed, and thus not 

listed in notices of intended disposition. 

Another Federal agency with a smaller 

land area reported an average of 5 

discoveries per year. This change to the 

number of responses for one regulatory 


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requirement impact others that build off 

this number. For example, we estimate 

that the number of Federal agencies 

conducting consultation is 50% of the 

discoveries on Federal lands. 

Federal agencies also provided 

estimates on the time per response for 

each regulatory requirement. For 

responding to a discovery, they 

estimated it spanned from 8 hours to 40 

hours. Given that a response is required 

within 3 days, we feel the maximum 

amount of time may not exceed 30 

hours (one person for 8 hours for 3 days 

plus one person for 6 hours total). We 

estimate the time per response ranges 

from 10 hours to 30 hours, depending 

on the size and complexity of the 

discovery, for a median of 20 hours. As 

Table 6 below shows, changes to both 

the number of responses and to the time 

per response resulted in a significant 

increase to our estimated costs under 

Subpart B. 

TABLE 6—CHANGES TO ESTIMATED COSTS IN SUBPART B 

Estimate Number of 

responses Annual hours Annual costs 

2022 Proposed Regulations * .................................................................................... 65 465.5 $29,738 

2023 Final Regulations * ............................................................................................ 318 6,599.5 473,568 

Change ............................................................................................................... +253 +6,134 +443,830 

* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate. 

c. For Subpart C, is the estimated 

number of museums and Federal 

agencies required to update inventory 

data under the proposed regulations 

reasonable? We assume fewer inventory 

records will require less time to update. 

We assume museums previously 

prepared and submitted inventories in 

accordance with the existing regulations 

and an update to that inventory requires 

less time than submission of a new 

inventory. We estimate the time per 

response will range from less than one 

hour to 100 hours, depending on the 

size and complexity of the update, for 

a median of 50.25 hours. 

As discussed elsewhere in this 

document, we received several 

comments on our estimated costs in 

Subpart C. One of these comments 

noted that a previously prepared 

inventory did not reduce the necessary 

time, as previous inventories are 

generally ‘‘woefully inadequate.’’ Two 

comments stated that the estimates 

should not rely on responses from the 

last three years to estimate costs due to 

the pandemic. We received consistent 

feedback that the estimate is low and 

does not reflect real costs. Some 

comments provided alternative 

estimates on the time per response 

which we incorporated into our 

estimate or explained why we were 

unable to incorporate the suggestion. 

Despite the concerns that the pandemic 

has resulted in fewer submissions, the 

available information does not support 

this, and in fact, we have had more 

submissions in the last two years than 

in any previous year. Our estimate relies 

on the average number of submissions 

by museums and Federal agencies over 

the last four or five years or calculates 

an estimate based on those submissions 

(NPS, National NAGPRA Program 

Annual Reports, https://www.nps.gov/ 

subjects/nagpra/reports.htm, accessed 

12/1/2023). 

Specifically for the number of 

museums and Federal agencies required 

to update an inventory, we estimate 407 

museums and 122 Federal agencies will 

be required to update inventories within 

five years after promulgation of a final 

rule. The final regulatory action will 

allow for inventory updates to be 

combined by geographic location or 

other defining features. We have revised 

the estimated number of updated 

inventories based on comments. 

As the size of collections vary greatly, 

we analyzed previously reported 

inventory data to estimate the number of 

updated inventories as both a high 

estimate (by inventory records) and a 

low estimate (by geographic location). 

We calculated a high estimate using the 

number of inventory records, according 

to the original inventory submission and 

previous updates, and for every 10 

inventory records, we estimate one 

updated inventory will be required. We 

calculated a low estimate using the 

number of unique geographical States 

from which the human remains were 

removed, according to the original 

inventory submission and previous 

updates, and for each State represented, 

we estimated one updated inventory 

will be required. We calculated a 

median value for each estimate and 

divided the total number of updated 

inventories by five years for an 

estimated number of annually updated 

inventories in each estimate. 

While we modified our estimate for 

the number of updated inventories 

between the baseline conditions and the 

final regulatory action, we did not 

change the time required for each 

response. Federal agencies provided 

estimates on the time per response that 

spanned from 50 hours to 218 hours, but 

some of those estimates included time 

for preparing a notice which is 

calculated separately. In response to 

comments, we increased the estimated 

time per response to range from 5 hours 

to 200 hours, depending on the size and 

complexity of the update, for a median 

of 102.5 hours. As Table 7 below shows, 

this resulted in a smaller change to the 

baseline costs estimate in the number of 

responses, but much larger changes in 

the number of hours and costs. 

TABLE 7—CHANGES TO ESTIMATED COSTS IN SUBPART C 

Estimate Number of 

responses Annual hours Annual costs 

2022 Baseline: Proposed Regulations * ...................................................................................... 1,218 36,750.25 $2,361,014 

2023 Baseline: Final Regulations * .............................................................................................. 1,232 73,475.50 4,916,458 

Change ................................................................................................................................. +14 +36,725.25 +2,555,444 

* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate. 


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In other cases, we relied on other 

available data to calculate an estimated 

number of responses. In estimating the 

responses to a request for repatriation, 

we relied on the number of notices as 

the two requirements have a direct 

connection. We estimate requests for 

repatriation are 80% of the total number 

of notices of inventory completion 

(which precede a request) and 100% of 

the notice of intended repatriation 

(which follow a request). Depending on 

the regulatory framework (baseline 

conditions under the existing 

regulations or under the final regulatory 

action), the same calculation applies but 

results in a different number of 

estimated responses. 

In the final regulatory action, 

museums and Federal agencies have 

specific options for responding to a 

request and responses should be based 

on information available in previously 

prepared summaries, inventories, and 

notices. Federal agencies provided 

estimates on the time per response that 

spanned from 8 hours to 25 hours. One 

comment requested the timeframe for 

responding to a request for repatriation 

be increased to a minimum of one year. 

We disagree with this suggestion and 

have not adopted it. Throughout the 

final regulatory action, a response to a 

request for repatriation is required 

within 90 days of receiving the request, 

or at maximum, 480 hours for one full 

time employee (12 weeks × 40 hours per 

week). We find this maximum estimate 

to be an extreme circumstance for an 

action based only on available 

information and with set options for a 

response. We estimate the time per 

response will range from 4 hours to 150 

hours, depending on the complexity of 

the request, for a median of 77 hours. 

Table 8 shows the change in our 

estimate from the 2022 Proposed Rule to 

the final regulations. 

TABLE 8—CHANGES TO ESTIMATED COSTS IN SUBPART C 

Estimate Number of 

responses Annual hours Annual costs 

2022 Regulatory Action years 1–3: Proposed Regulations * ...................................................... 2,962 46,262.25 $2,971,955 

2023 Regulatory Action years 1–5: Final Regulations * .............................................................. 3,086 172,360.50 11,536,684 

Change ................................................................................................................................. +124 +126,098.25 +8,564,729 

* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate. 

d. For Subpart C, many museums and 

Federal agencies update inventories at 

their own discretion, going beyond what 

is required by the Act and the existing 

regulations, which only requires use of 

‘‘information possessed by such 

museum or Federal agency’’ (25 U.S.C. 

3003(a)). Given the potential expense of 

more extensive studies not required by 

the Act or the revised regulations, how 

should the Department account for these 

costs in this rulemaking? We also 

request public data about the potential 

costs of updating inventories under the 

revised regulations. 

We did not receive specific comments 

on how to account for costs that go 

beyond what is required by the Act. A 

few comments stated they did not 

understand this question as museums 

and Federal agencies only do the 

minimum required by the Act and these 

regulations. As discussed elsewhere in 

this document, we received several 

estimates on the costs of updating 

inventories, but these estimates were, 

with two exceptions, not based on 

actual expenses incurred. 

The Society for American 

Archaeology (SAA) estimated annual 

costs to museums and Federal agencies 

of $250 million for repatriation of 

human remains and funerary objects. 

This estimate is based on the current 

museum completion rate of 21%, the 

amount of funding awarded through 

grants ($50 million since 1994), and a 

multiplying factor of 10, representing 

additional funds provided by museums, 

Federal agencies, and Indian Tribes 

outside of grant funds (https://

documents.saa.org/container/docs/ 

default-source/doc-governmentaffairs/ 

final_scia_testimony_

02162022.pdf?sfvrsn=63d7c331_2, 

accessed 12/1/2023). 

One museum estimated annual costs 

to museums and Federal agencies of 

more than $117 million for repatriation 

of human remains and funerary objects. 

This estimate is based on the costs 

incurred by the museum over the past 

20 years to repatriate 3,490 items 

multiplied by the total number of 

human remains and associated funerary 

objects currently pending repatriation 

(Field Museum of Natural History 

(FMNH) Background062722 available at 

https://www.reginfo.gov/public/do/ 

viewEO12866Meeting?viewRule=true&

rin=1024-AE19&

meetingId=139323&acronym=1024-DOI/ 

NPS, accessed 12/1/2023). 

One comment from an individual 

estimated annual costs to museums and 

Federal agencies of nearly $20 million 

for repatriation of human remains and 

funerary objects. This estimate is based 

on a detailed analysis of grants awarded 

to museums since 2011 and the 

resulting number of notices published 

by those museums. The estimate then 

applies an average cost per notice to the 

number of human remains pending 

notification under the existing 

regulations. The shorter timeframe in 

this estimate (30 months) is based on 

the proposed regulatory action requiring 

notice publication within two years and 

six months after promulgation of final 

regulations (https://

www.regulations.gov/comment/NPS2022-0004-0174, accessed 12/1/2023). 

Given the enormous variation in these 

estimates and past estimates related to 

these regulations, we have continued to 

employ the method used in the initial 

estimate but revised the number of 

responses and time per response based 

on comments. We believe we have 

accounted for all actions that are 

required under the existing regulations 

to calculate the baseline conditions and 

under these final regulations to estimate 

the future costs. Table 9 shows a 

summary of other annual estimates for 

inventories. 

TABLE 9—OTHER ANNUAL ESTIMATES

FOR INVENTORIES

Estimated 

costs Reference 

$524,380 2010 Final Rule (75 FR 12402). 

2,971,955 2022 Proposed Rule Analysis (see 

NPS–2022–0004–0002). 

5,300,000 1993 Proposed Rule (58 FR 

31124). 

6,000,000 1990 H. Rpt. 101–877, at 22. 

11,536,684 2023 Final Rule Analysis. 

19,400,000 NPS–2022–0004–0174. 

25,000,000 NPS–2022–0004–0131. 

40,048,800 NPS–2022–0004–0135. 

117,000,000 NPS–2022–0004–0136. 

250,000,000 SAA (cited above). 

518,111,000 NPS–2022–0004–0125. 

e. For Subpart C, is the estimated 

number of museums required to report 

on Federal holdings or collections 

reasonable? We estimate the number of 

museums required to submit statements 

is 5% of all museums that previously 


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submitted information under the 

existing regulations. 

We only received specific input from 

Federal agencies on this estimate. A few 

stated the estimate was too low or 

unreasonable but did not offer any 

alternative estimates or related data. 

One Federal agency stated it has more 

than 150 non-federal repositories. 

Another Federal agency stated only 10% 

of the 170 identified non-federal 

repositories have submitted inventory 

and summary information. Another 

Federal agency stated only a small 

percentage of the 175 non-federal 

repositories have been reviewed and the 

estimate doesn’t anticipate 

identification of new non-federal 

repositories. One Federal agency stated 

it knows of only 13 non-federal 

repositories with unresolved collections 

and that the 5% estimate seemed 

reasonable. Another Federal agency 

stated it believes there are 24 nonfederal repositories holding its 

collections. 

We estimate the number of museums 

(n=140) required to submit statements is 

10% of all museums (n=1,388, rounded 

up) that previously submitted 

information under the existing 

regulations. A statement is a simple 

written document describing a holding 

or collection. These statements are 

required no later than one year after the 

effective date of the final rule, but we 

have annualized the cost over five years 

for purposes of this estimate so as not 

to compound the costs in calculating the 

total costs over five years. 

We estimated the time per response 

for both museums to generate the 

statement and Federal agencies to 

respond to statements. We note that 

some comments estimated museums 

would need multiple staff members 

working full-time for the entire year to 

complete these statements. We disagree 

with this estimate and have not adopted 

it. We estimate the time per response for 

museums will range from 10 hours to 

500 hours, depending on the size and 

complexity of a collection, for a median 

of 255 hours. Federal agencies provided 

estimates on the time per response that 

spanned from 8 hours to 30 hours. We 

estimate the time per response will 

range from 8 hours to 30 hours, 

depending on the size and complexity 

of a collection, for a median of 19 hours. 

Table 10 shows the estimated costs for 

statements of Federal agency holdings 

or collections to both museums and 

Federal agencies. 

TABLE 10—CHANGES TO ESTIMATED COSTS FOR STATEMENTS OF FEDERAL AGENCY HOLDINGS OR COLLECTIONS

Estimate Number of 

responses Annual hours Annual costs 

2022 Regulatory Action: Proposed Regulations * ....................................................................... 140 735 $47,232 

Museums .............................................................................................................................. 70 367.5 23,616 

Federal agencies .................................................................................................................. 70 367.5 23,616 

2023 Regulatory Action: Final Regulations * ............................................................................... 280 38,360 5,570,504 

Museums .............................................................................................................................. 140 35,700 2,392,257 

Federal agencies .................................................................................................................. 140 2,660 178,247 

Change ........................................................................................................................................ +140 +37,625 +5,523,272 

* See the Appendix to the two Cost-Benefit and Regulatory Flexibility Threshold Analyses for detailed information on each regulatory requirement and the method for creating this estimate. 

f. Is the estimated number of 

competing claims for disposition or 

competing requests for repatriation 

reasonable? 

We received specific input from 

Federal agencies on this estimate, and 

most stated it seemed reasonable or that 

they did not have experience or data 

related to it. One Federal agency 

believed the estimate is too low given 

the changes to the regulations, 

especially as it relates to Tribal land of 

an NHO where they anticipate an 

increase in competing claims or requests 

to occur. One Federal agency estimated 

that 20% of discoveries result in 

competing claims on Federal lands. On 

Federal lands, Federal agencies 

provided estimates on the time per 

response that spanned from 25 hours to 

40 hours. Federal agencies provided 

estimates on the time per response that 

spanned from 25 hours to 80 hours. One 

comment from a museum stated 

evaluating competing requests and 

resolving stays of repatriation required 

significantly more time, estimating 

between 100 and 1,000 hours, especially 

when considering the involvement of 

legal departments, executives, and 

board members in those tasks. 

When a competing claim or request is 

received, the timeline for a disposition 

or repatriation statement changes, but 

we believe it is important to require 

museums and Federal agencies to 

decide on competing claims or requests 

within a set timeframe (six months or 

180 calendar days after informing the 

claimants or requestors of the competing 

claims or requests). Under Subpart C, 

one option for a museum or Federal 

agency is to determine a most 

appropriate requestor cannot be 

determined. This option would allow 

parties to continue consultation but 

ensure all parties have been informed of 

the museum or Federal agency’s 

decision in a timely manner or to seek 

assistance of a court of competent 

jurisdiction to resolve a conflict under 

these regulations. The information 

needed to evaluate competing requests 

is submitted by requestors and 

evaluated against the criteria in the 

regulations. Where competing requests 

are between Indian Tribes or NHOs with 

cultural affiliation, the priority order 

under § 10.3(e), as revised, relies on 

how the cultural affiliation 

determination was made (clearly 

identified or reasonably identified). We 

intended for these final regulations to 

provide adequate guidance and 

procedures for museums and Federal 

agencies to follow in determining the 

most appropriate requestor, and as a 

result, lessen the burden and expense of 

those determinations. We estimate the 

time per response ranges from 25 hours 

to 100 hours, depending on the size and 

complexity of the competing claims, for 

a median of 62.5 hours. 

Under Subpart B, the information 

needed to evaluate competing claims is 

submitted by claimants and evaluated 

against the priority of custody. 

However, Federal agencies must 

identify the most appropriate claimant 

or claimants. While this is not a new 

requirement, we do expect, as one 

Federal agency stated, the added 

procedures in these final regulations for 

resolving competing claims on Federal 

lands will likely increase the time per 

response from baseline conditions. 

Given that competing claims follow 

notification and consultation, we 

estimate the time per response ranges 40 

hours to 500 hours for a median of 270 

hours. 

g. Using data on implementation since 

2012, we estimate it will take an 


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additional 26 years to complete 

consultation and notification for all 

117,000 Native American human 

remains currently pending in the 

existing regulatory framework. Is this 

26-year time horizon reasonable? Will 

the proposed regulatory requirements 

result in a change in consultation 

activities per year, and if so, how should 

the Department account for the change 

in costs to Indian Tribes or NHOs for 

engaging in consultation? 

We did not receive specific feedback 

on the estimate under the existing 

regulatory framework. We did receive 

many comments on the timelines under 

Subpart C in general (see Comment 92 

and 93). Most comments felt the twoyear timeline in the proposed 

regulations was too short, unrealistic, 

unworkable, and unachievable. Two 

comments predicted it would take 20 or 

50 years to complete consultation and 

notification for all Native American 

human remains. Most comments on the 

timelines expressed concerns about 

insufficient staffing and funding to 

complete the work of repatriation. 

As discussed elsewhere in this 

document, we have changed the 

deadline for museums and Federal 

agencies to update inventories of human 

remains and associated funerary objects 

to five years after the effective date of 

these final regulations. We have also 

revised our estimate for the timeline 

under the existing regulations. In Fiscal 

Year 2022, the largest number of human 

remains in the history of the Act and 

these regulations completed the 

regulatory process. As of August 2023, 

we expect Fiscal Year 2023 to surpass 

the previous year. We therefore adjusted 

our estimate in the Cost-Benefit and 

Regulatory Flexibility Threshold 

Analyses for these final regulations. 

Using data on implementation since 

2012, the Department estimates it will 

take an additional 20 years to complete 

consultation and notification for all 

approximately 108,000 Native American 

human remains currently pending in the 

existing regulatory framework. Over the 

last 11 years, the average number of 

human remains completing the existing 

regulatory process for repatriation per 

year is 5,460 individual sets of Native 

American human remains (NPS, 

National NAGPRA Program Annual 

Reports, https://www.nps.gov/subjects/ 

nagpra/reports.htm, accessed 12/1/ 

2023). As Table 11 shows, the number 

of human remains completing the 

existing regulatory process varies from 

year to year, depending on the decisionmaking of museums and Federal 

agencies on repatriation. 

TABLE 11—NATIVE AMERICAN HUMAN REMAINS

Fiscal year Total published 

in notices Annual change 

2012 ................................................................................................................................................................. 43,525 3,220 

2013 ................................................................................................................................................................. 45,975 2,450 

2014 ................................................................................................................................................................. 48,588 2,613 

2015 ................................................................................................................................................................. 51,558 2,970 

2016 ................................................................................................................................................................. 56,336 4,778 

2017 ................................................................................................................................................................. 63,885 7,549 

2018 ................................................................................................................................................................. 67,077 3,192 

2019 ................................................................................................................................................................. 79,093 12,016 

2020 ................................................................................................................................................................. 83,076 3,983 

2021 ................................................................................................................................................................. 84,677 1,601 

2022 ................................................................................................................................................................. 100,370 15,693 

Regarding the costs for lineal 

descendants, Indian Tribes, and NHOs 

to participate in consultation, we have 

added an estimate to the Cost-Benefit 

and Regulatory Flexibility Threshold 

Analyses for these final regulations. In 

the existing regulations, consultation is 

required throughout the regulatory 

processes in both Subpart B and C for 

any decision-making action by a Federal 

agency or museum. However, the 

existing regulations do not require any 

Indian Tribe or NHO to participate in 

such consultation. Choosing to 

participate in consultation is an act of 

sovereignty and these regulations, either 

existing or revised, do not require any 

Indian Tribe or NHO to consult. Our 

initial estimates did not include the 

costs to lineal descendants, Indian 

Tribes, or NHOs to participate in 

consultation as the variables of this 

estimate are too great and dependent on 

many factors. For example, one Tribal 

official stated publicly that under the 

existing regulations, consultation can 

require one email exchange or, in the 

most extreme case, eight years of regular 

consultation meetings. As discussed 

elsewhere in this section, a comment 

from an Indian Tribe stated 

consultations can require mere hours 

while some require years of sustained 

work. In addition to the varying time 

required to consult with museums and 

Federal agencies, the costs for Indian 

Tribes and NHOs to consult internally 

with religious leaders or to develop 

their own procedure and protocol for 

conducting consultation cannot and 

should not be estimated by the Federal 

government. In preparing our initial and 

revised estimate, we reviewed other 

regulations for any estimate on the costs 

to Indian Tribes or NHOs to engage in 

consultation but were unable to find a 

relevant example. Our estimate is based 

on a 1:1 relationship between the 

number of participants and the number 

of museums and Federal agencies 

conducting consultation. We know this 

is an underestimate and that 

consultation requires participation by 

more than one lineal descendant, Indian 

Tribe, or NHO. However, we have no 

way to estimate this number. While we 

have provided an estimate on the costs 

to participate in consultation, we 

maintain we do not have sufficient 

information to adequately quantify these 

costs to lineal descendants, Indian 

Tribes, or NHOs. 

C. Use of Received Feedback 

The Department used all received 

feedback to inform this final rule and 

made changes to this final rule based on 

received feedback. 

IV. Compliance With Other Laws, 

Executive Orders and Department 

Policy 

A. Regulatory Planning and Review 

(Executive Orders 12866 and 13563 and 

14094) 

Executive Order 12866, as amended 

by Executive Order 14094, provides that 

the Office of Information and Regulatory 

Affairs (OIRA) in OMB will review all 

significant regulatory actions. OIRA has 

determined that this rule is a significant 

regulatory action. 

Executive Order 14094 amends 

Executive Order 12866 and reaffirms the 


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86514 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations 

principles of Executive Order 12866 and 

Executive Order 13563 and states that 

regulatory analysis should facilitate 

agency efforts to develop regulations 

that serve the public interest, advance 

statutory objectives, and be consistent 

with Executive Order 12866, Executive 

Order 13563, and the Presidential 

Memorandum of January 20, 2021 

(Modernizing Regulatory Review). 

Regulatory analysis, as practicable and 

appropriate, shall recognize distributive 

impacts and equity, to the extent 

permitted by law. 

Executive Order 13563 reaffirms the 

principles of Executive 12866 while 

calling for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. Executive Order 13563 

emphasizes further that regulations 

must be based on the best available 

science and that the rulemaking process 

must allow for public participation and 

an open exchange of ideas. We have 

developed this rule in a manner 

consistent with these requirements. 

B. Advancing Racial Equity and Support 

for Underserved Communities Through 

the Federal Government (Executive 

Order 13985) 

This final rule is expected to advance 

racial equity in agency actions and 

programs, in accordance with the 

Executive Order 13985. 

C. Regulatory Flexibility Act 

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.). 

This certification is based on the costbenefit and regulatory flexibility 

analyses found in the report entitled 

‘‘Benefit-Cost and Regulatory Flexibility 

Threshold Analyses: Native American 

Graves Protection and Repatriation Act 

Regulations’’ that may be viewed online 

at https://www.regulations.gov. 

The analyses conclude that this final 

regulatory action will likely generate 

benefits for museums, Federal agencies, 

Indian Tribes, and NHOs that are greater 

than the temporary increase in reporting 

costs for museums. For all entities, the 

NPS anticipates a temporary increase of 

$6.948 million in annual costs for the 

first five years under the final regulatory 

action compared to baseline conditions. 

Starting year six, NPS anticipates a 

$2.978 million benefit in reduced 

annual costs compared to baseline 

conditions. This final regulatory action 

would produce a net benefit when 

reduced annual costs exceed the total 

increase in costs from the first five 

years. We estimate that this would occur 

after 17 years (for undiscounted costs 

and benefits), 21 years (for 3% 

discounting), or 47 years (for 7% 

discounting). Across the horizon of 50 

years, the net savings in costs of the 

final regulatory action totals $99.3 

million (for undiscounted costs and 

benefits), $31.2 million (for 3% 

discounting), or $0.4 million (for 7% 

discounting). Therefore, the results of 

this cost-benefit analysis indicate that 

positive net benefits will be generated 

by implementing the final regulatory 

action. Given that, NPS concludes that 

the benefits associated with the final 

regulatory action justify the associated 

costs. Further, this final regulatory 

action is not expected to have an annual 

economic effect of $100 million. 

Most of the state, local, and private 

museums required to report under 

NAGPRA are large not-for-profit 

enterprises, part of a university or 

college, or state or local government 

entities. The Small Business 

Administration size standard for 

museums is $34 million in average 

annual receipts (see https://

www.sba.gov/document/support-tablesize-standards, accessed 12/1/2023). 

However, using available information, 

NPS analyzed the 1,388 museums 

reporting under NAGPRA and 

determined that 419 are classified as 

state entities, 382 as local government 

entities, and 587 as private museums. Of 

the private museums, 141 are classified 

as universities or colleges, 18 as large 

urban museums, 42 as large historical 

societies, 247 as not-for profit museums 

or organizations that are large or 

dominant in the field, and the 

remaining 139 entities would be 

considered small museums, historical 

societies, or nature parks. We received 

1 comment on the proposed rule from 

a small entity which was generally 

supportive of the changes. 

Based on this analysis, we estimate 

that the average annual cost per small 

entity is $2,191 under baseline 

conditions, $5,844 under the final 

action in years one through five, and 

$916 beginning in year six. For each 

small entity, this is an increase in years 

one through five of $3,653 per year and 

a decrease beginning in year six of 

$1,275 per year compared to baseline 

conditions. The impact on these small 

entities aligns with their normal duties 

of collections management. In an effort 

to reduce respondent burden, we 

provide templates and technical 

assistance to direct inquiries by phone 

and email. We assist many small entities 

directly with drafting and completing 

the notice requirements, which 

generally fall outside the scope of 

normal collections management duties. 

The increase in costs associated with 

the new requirements is temporary and 

will not exist after the small entities 

complete the required inventory 

updates which is expected to happen 

within five years of implementation. 

We assume the majority of small 

entities impacted by this rule also have 

a small number of employees. 

According to the available data 

summarized in Table 12 below, smaller 

firms also have smaller payroll costs. 

Even in the most extreme scenario 

(establishments with less than 5 

employees) the annual costs of 

compliance during the first five years of 

the final regulatory action would be no 

more than 10% the average entities 

payroll costs. 

TABLE 12—MUSEUMS NAICS 712110: EMPLOYMENT SIZES AND PAYROLL * 

Employment size Number of 

establishments 

Annual payroll 

($1,000) **

Mean 

payroll per 

establishment 

($1,000) 

All establishments .............................................................................................................. 5,297 $3,346,074 $632 

Less than 5 employees ..................................................................................................... 3,188 194,629 61 

5 to 9 employees ............................................................................................................... 910 197,668 217 

10 to 19 employees ........................................................................................................... 551 294,715 535 

20 to 49 employees ........................................................................................................... 372 507,049 1,363 

50 to 99 employees ........................................................................................................... 141 468,509 3,323 

100 to 249 employees ....................................................................................................... 102 772,161 7,570 


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TABLE 12—MUSEUMS NAICS 712110: EMPLOYMENT SIZES AND PAYROLL *—Continued 

Employment size Number of 

establishments 

Annual payroll 

($1,000) **

Mean 

payroll per 

establishment 

($1,000) 

250 to 499 employees ....................................................................................................... 27 506,069 18,743 

500 to 999 employees ....................................................................................................... 5 257,054 51,411 

* 2021 Economic Census Business Survey, https://data.census.gov/table/CBP2021.CB2100CBP?q=712110:%20Museums, accessed 12/1/ 

2023. 

** Sales data are not available by employment size. 

The U.S. Census Bureau has a 

Quarterly Services Survey that reports 

on revenues for NAICS 712 ‘‘Museums, 

historical sites, and similar 

institutions.’’ For 2022, total revenue 

(Q1–Q4) was $21,468 million. Dividing 

this by 7,062 (the total number of 

employer firms in the 3-digit NAICS 

code 712), the mean annual revenue per 

firm is $3 million. While we recognize 

there may be a wide range of revenues 

at the individual firm level, this data 

suggest that for the average firm in this 

category, compliance costs will be small 

when compared to annual revenue. We 

do not have data that would allow a 

more rigorous analysis. 

D. Congressional Review Act (CRA) 

This rule does not meet the criteria set 

forth in 5 U.S.C. 804(2), the CRA. This 

rule: 

(a) Does not have an annual effect on 

the economy of $100 million or more; 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions; and 

(c) Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

E. 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. 

F. Takings (Executive Order 12630) 

This rule does not affect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630. A takings implication 

assessment is not required. 

G. Federalism (Executive Order 13132) 

Under the criteria in Section 1 of 

Executive Order 13132, this rule does 

not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. A federalism summary 

impact statement is not required. 

H. 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. 

I. Consultation With Indian Tribes 

(Executive Order 13175 and Department 

Policy) 

The Department strives to strengthen 

its government-to-government 

relationship with Indian Tribes through 

a commitment to consultation with 

Indian Tribes and recognition of their 

right to self-governance and Tribal 

sovereignty. We have evaluated this rule 

under the Department’s consultation 

policy and under the criteria in 

Executive Order 13175 and have 

identified direct Tribal implications. 

Accordingly, we have developed this 

final rule after consulting with federally 

recognized Indian Tribes. In addition, 

we developed this final rule in 

consultation with the Native American 

Graves Protection and Repatriation 

Review Committee, which includes 

members nominated by Indian Tribes. 

From March to July of 2011, the 

Department consulted with Indian 

Tribes and the Review Committee, as 

well as others, on full revisions to the 

regulations implementing the Act. In 

April 2012 (77 FR 12378), the 

Department published a proposed rule 

to revise the regulations for accuracy 

and consistency based on some of those 

comments. Additional comments on 

that proposed rule requested changes 

that went beyond the scope of accuracy 

and consistency. 

Since 2012, the Department has heard 

repeatedly from Indian Tribes, NHOs, 

museums, and Federal agencies on the 

implementation of the Act through the 

regulations. From 2012 to 2019 at 21 

meetings of the Review Committee, 

public commenters have highlighted 

concerns with the regulations or 

challenges in implementing its 

procedures. The Review Committee has 

heard frequently that the regulations 

themselves pose barriers to successful 

and expedient repatriation. 

As a result of previous consultation, 

public comment, and input from the 

Review Committee, the Department 

developed a draft text of regulatory 

revisions and on July 8, 2021, invited 

Indian Tribes to consult on the draft 

text. Along with the draft text, the 

Department provided a summary of the 

2011 consultation with Indian Tribes 

and how the draft text was responsive 

to that input. The Department hosted 

virtual consultation sessions with 

Indian Tribes on August 9, 13, and 16, 

2021. In addition, the Department 

accepted written input until September 

30, 2021. In total, we received 71 

individual comment letters, which 

when combined with oral comments 

from consultation sessions, yielded over 

700 specific comments on sections of 

the draft text. The Department reviewed 

each comment provided during 

consultation and in writing and, 

wherever possible, adjusted the 

proposed regulations to address them. 

In a separate document available in the 

docket for the proposed rule, the 

Department provided a summary of 

each comment and specific detailed 

responses. 

During the comment period on the 

proposed rule, the Department 

scheduled Review Committee meetings, 

Tribal consultation sessions, Native 

Hawaiian consultation sessions, and 

public listening sessions. Review 

Committee meetings were held virtually 

on January 5 and 10, 2023, from 2 p.m. 

to 6 p.m. ET. Tribal consultation 

sessions were held virtually on 


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86516 Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations 

December 15, 2022, from 3 p.m. to 5 

p.m. EST, and December 19, 2022, from 

1 p.m. to 4 p.m. EST, and in person on 

January 12, 2023, from 10 a.m. to 1 p.m. 

MST in Phoenix, Arizona. Native 

Hawaiian consultation sessions were 

held virtually on January 9, 2023, from 

9 a.m. to 11 a.m. HST and on January 

10, 2023, from 6 p.m. to 8 p.m. HST. 

At all sessions, the Department 

provided a short overview of the 

proposed regulation, highlighted the 

major changes, and provided an 

opportunity for questions. The 

Department provided additional 

resources related to the proposed 

regulations on the National NAGPRA 

Program website. Review Committee 

meetings, Tribal Consultation sessions, 

and Native Hawaiian Consultation 

sessions were recorded and transcribed 

to ensure a record of all comments were 

available to the Department in preparing 

the final rule. All of the oral comments 

received during the meetings and 

consultation sessions were repeated in 

the written comments submitted by the 

Review Committee and Indian Tribes 

and are summarized in this document. 

J. Paperwork Reduction Act (PRA) (44 

U.S.C. 3501 et seq.) 

1. Overview 

The Paperwork Reduction Act (PRA) 

provides that an agency may not 

conduct or sponsor, and a person is not 

required to respond to, a ‘‘collection of 

information,’’ unless it displays a 

currently valid OMB control number. 

Collections of information include any 

request or requirement that persons 

obtain, maintain, retain, or report 

information to an agency, or disclose 

information to a third party or to the 

public (44 U.S.C. 3502(3) and 5 CFR 

1320.3(c)). These final regulations 

contain existing and new information 

collection requirements that are subject 

to review by OMB under the PRA. OMB 

previously reviewed and approved 

information collection related to 43 CFR 

part 10 and assigned the following OMB 

control number 1024–0144 (expires 4/ 

30/2025). 

The information collection activities 

in these final regulations are described 

below along with estimates of the 

annual burdens. These activities, along 

with annual burden estimates, do not 

include activities that are considered 

usual and customary industry practices. 

Included in the burden estimates are the 

time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

each component of the proposed 

information collection requirements. 

The Department of the Interior 

requests comment on any aspect of this 

information collection, including: 

a. Whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

b. The accuracy of the estimate of the 

burden for this collection of 

information, including the validity of 

the methodology and assumptions used; 

c. Ways to enhance the quality, 

utility, and clarity of the information to 

be collected; and 

d. How the agency might minimize 

the burden of the collection of 

information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, e.g., permitting 

electronic submission of response. 

2. Summary of Information Collection 

Requirements 

Title of Collection: Native American 

Graves Protection and Repatriation 

Regulations. 

OMB Control Number: 1024–0144. 

Form Number: None. 

Type of Review: Revision of a 

currently approved collection. 

Respondents/Affected Public: Any 

person, any affected party, lineal 

descendants, Indian Tribes, Native 

Hawaiian organizations, and State and 

local governments, universities, and 

museums, that receive Federal funds 

and have possession or control of Native 

American human remains and cultural 

items. 

Respondent’s Obligation: Mandatory, 

voluntary, and required to obtain or 

retain a benefit. 

Frequency of Collection: On occasion. 

Total Estimated Number of Annual 

Responses: 3,008. 

Estimated Completion Time per 

Response: Varies from 1 hour to 270 

hours depending on respondent and/or 

activity. 

Total Estimated Number of Annual 

Burden Hours: 161,195. 

Total Estimated Annual Non Hour 

Burden Cost: None. 

Subpart Information 

collections Respondents 

Subpart A—General ............................................................................................................................. 0 None. 

Subpart B—Protection of Human Remains or Cultural Items on Federal or Tribal Lands ................. 1 

6 

Any person 

Indian Tribes or NHOs. 

Subpart C—Repatriation of Human Remains or Cultural Items by Museums or Federal Agencies ... 1 

2 

Any person. 

Lineal descendants. 

2 Indian Tribes/NHOs. 

14 Museums. 

Subpart D—Review Committee ............................................................................................................ 1 Any affected party. 

Subpart A—General does not contain 

any information collection requirements 

subject to the PRA. References to 

written documents in this Subpart refer 

to the specific information collection 

requirements in the three subparts 

below. 

Subpart B—Protection of Human 

Remains or Cultural Items on Federal or 

Tribal Lands contains seven information 

collection requirements subject to the 

PRA. On Federal or Tribal lands, any 

person who knows or has reason to 

know of the discovery of human 

remains or cultural items must provide 

specified information to third parties. 

On Federal lands, an Indian Tribe or 

NHO may participate in consultation or 

submit a claim for disposition by 

disclosing specified information to third 

parties. On Tribal lands, an Indian Tribe 

or NHO must maintain specified records 

related to discoveries, excavations, and 

dispositions. 

Subpart C—Repatriation of Human 

Remains or Cultural Items by Museums 

or Federal Agencies contains 19 

information collection requirements 

subject to the PRA. State and local 

governments, universities, and 

museums that receive Federal funds and 

have possession or control of Native 

American human remains, funerary 

objects, sacred objects, or objects of 

cultural patrimony must submit 

information to the Federal government, 

maintain specified records, and disclose 

specified information to third parties. 

Lineal descendants, Indian Tribes, or 


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Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / Rules and Regulations 86517 

NHOs may participate in consultation 

and submit a request for repatriation by 

disclosing specified information to third 

parties. Any person alleging a failure to 

comply may voluntarily submit 

information to the Federal government. 

Museums may respond to a civil penalty 

action by submitting information to the 

Federal government. 

Subpart D—Review Committee 

contains one information collection 

requirements subject to the PRA. Any 

affected party may voluntarily submit 

information to the Federal government. 

Information collection requirement Final regulations 

New information collection requirements in Subpart B 

Participate in consultation .................................................................................................................................. § 10.4(b)(2). 

Report a discovery on Federal or Tribal lands .................................................................................................. § 10.5(a)–(b). 

Respond to a discovery ..................................................................................................................................... § 10.5(c)(1) and § 10.5(e). 

Consent to an excavation .................................................................................................................................. § 10.6(a). 

Submit a claim for disposition ............................................................................................................................ § 10.7(c)(3). 

Delegate or accept responsibility on Tribal land ............................................................................................... § 10.5(c); § 10.6(a); § 10.7(b). 

Complete a disposition statement ...................................................................................................................... § 10.7(b). 

Currently approved information collections requirements in Subpart C 

New Summary/Inventory .................................................................................................................................... § 10.9(a) and § 10.10(d). 

Updated Inventory Data ..................................................................................................................................... § 10.10(d). 

Notices for publication in the Federal Register ................................................................................................ § 10.9(f) and § 10.10(e). 

Updated Summary Data .................................................................................................................................... Removed. 

Notify Tribes and Request Information .............................................................................................................. Removed. 

Response to requests for information ................................................................................................................ Removed. 

New information collection requirements in Subpart C 

Conduct consultation .......................................................................................................................................... § 10.9(c) and § 10.10(c) 

Participate in consultation .................................................................................................................................. § 10.9(c) and § 10.10(c). 

Submit a request for repatriation ....................................................................................................................... § 10.9(d) and § 10.10(f). 

Document physical transfer ............................................................................................................................... § 10.9(g) and § 10.10(h). 

File an allegation of failure to comply ................................................................................................................ § 10.11(a). 

Respond to a civil penalty action ....................................................................................................................... § 10.11(e), (h), (i), and (k). 

Submit statements describing holdings or collection ......................................................................................... § 10.8(c)–(d). 

Make a record of consultation ........................................................................................................................... § 10.9(c)(3) and § 10.10(c)(3). 

Respond to a request for repatriation ................................................................................................................ § 10.9(e) and § 10.10(g). 

Send a repatriation statement ............................................................................................................................ § 10.9(g) and § 10.10(h). 

Evaluate competing requests and resolve stays of repatriation ........................................................................ § 10.9(h)–(i); § 10.10(i)–(j). 

Transfer or reinter human remains and associated funerary objects ............................................................... § 10.10(k). 

New information collection requirements in Subpart D 

Request assistance of the Review Committee .................................................................................................. § 10.12(c). 

3. Information That Is Not an 

Information Collection Subject to the 

PRA 

Lineal descendants, Indian Tribes, 

and Native Hawaiian organizations may 

take certain actions that are not 

information collections subject to the 

PRA. Requesting to consult is an 

acknowledgement that entails no 

burden other than that necessary to 

identify the respondent, the date, the 

respondent’s address, and the nature of 

the consultation. 

Federal agencies and the Department 

of Hawaiian Home Lands (DHHL) must 

take certain actions that are not 

information collections subject to the 

PRA. The Hawaiian Homes Commission 

Act, 1920 (HHCA), 42 Stat. 108, is a 

cooperative federalism statute, a 

compound of interdependent Federal 

and State law that establishes a Federal 

law framework but also provides for 

implementation through State law (see 

81 FR 29777 and 29787, May 13, 2016, 

43 CFR 47 and 48, Land Exchange 

Procedures and Procedures to Amend 

the Hawaiian Homes Commission Act, 

1920). These written documents are 

required by employees of the Federal 

government or DHHL when acting 

within the scope of their employment. 

Indian Tribes, Native Hawaiian 

organizations, traditional religious 

leaders, national museum organizations, 

and national scientific organizations 

may take certain actions that are not 

information collections subject to the 

PRA. These actions are generally 

solicited through a notice in the Federal 

Register, impact fewer than ten persons, 

and occur less often than annually. 

4. Burden Estimates 

The Department has identified 27 

information collections in the final 

regulations. In total, we estimate that we 

will receive, annually, 3,008 responses 

totaling 161,195 annual hour burden. 

We estimate the annual dollar value is 

$10,786,570 (rounded). We estimate the 

frequency of response for each of the 

information collections is once per year, 

but the number of respondents may not 

be the same as the number of responses, 

depending on the type of information 

collected. In our estimate, we have only 

used the number of responses to 

simplify our estimate and remain 

consistent across the types of 

information collected. For some 

information collections, the time per 

response varies widely because of 

differences in activity, size, and 

complexity. 


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5. Written Comments or Additional 

Information 

Written comments and suggestions on 

the information collection requirements 

should be submitted by the date 

specified above in DATES to https://

www.reginfo.gov/public/do/PRAMain. 

Find this information collection by 

selecting ‘‘Currently under Review— 

Open for Public Comments’’ or by using 

the search function. Please provide a 

copy of your comments to the NPS 

Information Collection Clearance Officer 

(ADIR–ICCO), 13461 Sunrise Valley 

Drive, (MS–242) Reston, VA 20191 

(mail); or phadrea_ponds@nps.gov 

(email). Please include OMB Control 

Number 1024–0144 in the subject line of 

your comments. 

To request additional information 

about this ICR, contact Melanie O’Brien, 

Manager, National NAGPRA Program by 

email at melanie_o’brien@nps.gov, or by 

telephone at (202) 354–2204. 

Individuals in the United States who are 

deaf, deafblind, hard of hearing, or have 

a speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. You may 

also view the ICR at https://

www.reginfo.gov/public/do/PRAMain. 

K. National Environmental Policy Act 

(NEPA) 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment. A 

detailed statement under the National 

Environmental Policy Act of 1969 is not 

required because the rule is covered by 

a categorical exclusion under 43 CFR 

46.210(i): ‘‘Policies, directives, 

regulations, and guidelines: that are of 

an administrative, financial, legal, 

technical, or procedural nature; or 

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-bycase.’’ 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. 

L. Effects on the Energy Supply 

(Executive Order 13211) 

This rulemaking is not a significant 

energy action under the definition in 

Executive Order 13211; the rule is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy, and the rule has not otherwise 

been designated by the Administrator of 

OIRA as a significant energy action. A 

Statement of Energy Effects in not 

required. 

Drafting Information 

This final rule was prepared by staff 

of the National NAGPRA Program, 

National Park Service; Office of 

Regulations and Special Park Uses, 

National Park Service; Office of Native 

Hawaiian Relations; Office of Regulatory 

Affairs & Collaborative Action, Office of 

the Assistant Secretary—Indian Affairs; 

Office of the Assistant Secretary for Fish 

and Wildlife and Parks; and Office of 

the Solicitor, Division of Parks and 

Wildlife and Division of Indian Affairs, 

Department of the Interior. This final 

rule was prepared in consultation with 

the Native American Graves Protection 

and Repatriation Review Committee 

under the Act (25 U.S.C. 3006(c)(7)). 

List of Subjects in 43 CFR Part 10 

Administrative practice and 

procedure, Alaska, Cemeteries, 

Citizenship and naturalization, Colleges 

and universities, Hawaiian Natives, 

Historic preservation, Human remains, 

Indians, Indians—claims, Indians—law, 

Indians—lands, Museums, Penalties, 

Public lands, Reporting and 

recordkeeping requirements, Treaties. 

■ In consideration of the foregoing, the 

Department of the Interior revises 43 

CFR part 10 to read as follows: 

PART 10—NATIVE AMERICAN 

GRAVES PROTECTION AND 

REPATRIATION REGULATIONS 

Sec. 

Subpart A—General 

10.1 Introduction. 

10.2 Definitions for this part. 

10.3 Determining cultural affiliation. 

Subpart B—Protection of Human Remains 

or Cultural Items on Federal or Tribal Lands 

10.4 General. 

10.5 Discovery. 

10.6 Excavation. 

10.7 Disposition. 

Subpart C—Repatriation of Human Remains 

or Cultural Items By Museums or Federal 

Agencies 

10.8 General. 

10.9 Repatriation of unassociated funerary 

objects, sacred objects, or objects of 

cultural patrimony. 

10.10 Repatriation of human remains or 

associated funerary objects. 

10.11 Civil penalties. 

Subpart D—Review Committee 

10.12 Review Committee. 

Authority: 25 U.S.C. 3001 et seq. and 25 

U.S.C. 9. 

Subpart A—General 

§ 10.1 Introduction. 

(a) Purpose. The Native American 

Graves Protection and Repatriation Act 

(Act) of November 16, 1990, recognizes 

the rights of lineal descendants, Indian 

Tribes, and Native Hawaiian 

organizations in Native American 

human remains, funerary objects, sacred 

objects, and objects of cultural 

patrimony. 

(1) The Act and these regulations 

provide systematic processes to: 

(i) Protect Native American human 

remains, funerary objects, sacred 

objects, and objects of cultural 

patrimony; and 

(ii) Restore Native American human 

remains, funerary objects, sacred 

objects, and objects of cultural 

patrimony to lineal descendants, Indian 

Tribes, and Native Hawaiian 

organizations. 

(2) The Act and these regulations 

require consultation with lineal 

descendants, Indian Tribes, and Native 

Hawaiian organizations. 

(3) Consistent with the Act, these 

regulations require deference to the 

Native American traditional knowledge 

of lineal descendants, Indian Tribes, 

and Native Hawaiian organizations. 

(b) Applicability. These regulations 

pertain to Native American human 

remains, funerary objects, sacred 

objects, and objects of cultural 

patrimony. 

(1) These regulations require certain 

actions by: 

(i) Any institution or State or local 

government agency (including any 

institution of higher learning) within the 

United States that receives Federal 

funds and has possession or control of 

a holding or collection; 

(ii) Any Federal agency that has 

possession or control of a holding or 

collection or that has responsibilities on 

Federal or Tribal lands; 

(iii) Indian Tribes on Tribal lands in 

Alaska and the continental United 

States; and 

(iv) The State of Hawai‘i Department 

of Hawaiian Home Lands (DHHL) on 

Tribal lands in Hawai‘i. 

(2) Lineal descendants, Indian Tribes, 

and Native Hawaiian organization may, 

but are not required to, consult, submit 

claims for disposition, or submit 

requests for repatriation. 

(c) Accountability. These regulations 

are applicable to and binding on all 

museums, Federal agencies, and DHHL 

for implementing the systematic 

processes for disposition and 


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repatriation of human remains or 

cultural items under this part. 

(d) Duty of care. These regulations 

require a museum, Federal agency, or 

DHHL to care for, safeguard, and 

preserve any human remains or cultural 

items in its custody or in its possession 

or control. A museum, Federal agency, 

or DHHL must: 

(1) Consult with lineal descendants, 

Indian Tribes, or Native Hawaiian 

organizations on the appropriate 

storage, treatment, or handling of 

human remains or cultural items; 

(2) Make a reasonable and good-faith 

effort to incorporate and accommodate 

the Native American traditional 

knowledge of lineal descendants, Indian 

Tribes, or Native Hawaiian 

organizations in the storage, treatment, 

or handling of human remains or 

cultural items; and 

(3) Obtain free, prior, and informed 

consent from lineal descendants, Indian 

Tribes, or Native Hawaiian 

organizations prior to allowing any 

exhibition of, access to, or research on 

human remains or cultural items. 

Research includes, but is not limited to, 

any study, analysis, examination, or 

other means of acquiring or preserving 

information about human remains or 

cultural items. Research of any kind on 

human remains or cultural items is not 

required by the Act or these regulations. 

(e) Delivery of written documents. 

These regulations require written 

documents to be sent, such as requests 

for repatriation, claims for disposition, 

invitations to consult, or notices for 

publication. 

(1) Written documents must be sent 

by one of the following: 

(i) Email, with proof of receipt, 

(ii) Personal delivery with proof of 

delivery date, 

(iii) Private delivery service with 

proof of date sent, or 

(iv) Certified mail. 

(2) Communication to the Manager, 

National NAGPRA Program, must be 

sent electronically to nagpra_info@

nps.gov. If electronic submission is not 

possible, physical delivery may be sent 

to 1849 C Street NW, Mail Stop 7360, 

Washington, DC 20240. If either of these 

addresses change, a notice with the new 

address must be published in the 

Federal Register no later than 7 days 

after the change. 

(f) Deadlines. These regulations 

require certain actions be taken by a 

specific date. Unless stated otherwise in 

these regulations: 

(1) Days mean calendar days. If a 

deadline falls on a Saturday, Sunday, or 

Federal holiday, the action is deemed 

timely if taken no later than the next 

calendar day that is not a Saturday, 

Sunday, or Federal holiday. For 

purposes of this part, Federal holidays 

include any days during which the 

Federal government is closed because of 

a Federal holiday, lapse in 

appropriations, or other reasons. 

(2) Written documents are deemed 

timely based on the date sent, not the 

date received. 

(3) Parties sending or receiving 

written documents under these 

regulations must document the date sent 

or date received, as appropriate, when 

these regulations require those parties to 

act based on the date sent or date 

received. 

(g) Failure to make a claim or a 

request. Failure to make a claim for 

disposition or a request for repatriation 

before disposition, repatriation, transfer, 

or reinterment of human remains or 

cultural items under this part is deemed 

an irrevocable waiver of any right to 

make a claim or a request for the human 

remains or cultural items once 

disposition, repatriation, transfer, or 

reinterment of the human remains or 

cultural items has occurred. 

(h) Judicial jurisdiction. The United 

States district courts have jurisdiction 

over any action by any person alleging 

a violation of the Act or this part. 

(i) Final agency action. For purposes 

of the Administrative Procedure Act (5 

U.S.C. 704), any of the following actions 

by a Federal agency constitutes a final 

agency action under this part: 

(1) A final determination making the 

Act or this part inapplicable; 

(2) A final denial of a claim for 

disposition or a request for repatriation; 

and 

(3) A final disposition or repatriation 

determination. 

(j) Information collection. 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, the collection of 

information under this part unless the 

Federal agency provides a currently 

valid OMB control number. 

(k) Severability. If a court holds any 

provisions of the regulations in this part 

or their applicability to any person or 

circumstances invalid, the remainder of 

the regulations and their applicability to 

other people or circumstances are 

intended to continue to operate to the 

fullest possible extent. 

§ 10.2 Definitions for this part. 

Act means the Native American 

Graves Protection and Repatriation Act. 

Ahupua1a (singular and plural) means 

a traditional land division in Hawai1i 

usually extending from the uplands to 

the sea. 

Appropriate official means any 

representative authorized by a 

delegation of authority within an Indian 

Tribe, Native Hawaiian organization, 

Federal agency, or Department of 

Hawaiian Home Lands (DHHL) that has 

responsibility for human remains or 

cultural items on Federal or Tribal 

lands. 

ARPA means the Archaeological 

Resources Protection Act of 1979, as 

amended (16 U.S.C. 470aa–mm) and the 

relevant Federal agency regulations 

implementing that statute. 

ARPA Indian lands means lands of 

Indian Tribes, or individual Indians, 

which are either held in trust by the 

United States Government or subject to 

a restriction against alienation imposed 

by the United States Government, 

except for any subsurface interests in 

lands not owned or controlled by an 

Indian Tribe or an individual Indian. 

ARPA Public lands means lands 

owned and administered by the United 

States Government as part of: 

(1) The national park system; 

(2) The national wildlife refuge 

system; 

(3) The national forest system; and 

(4) All other lands the fee title to 

which is held by the United States 

Government, other than lands on the 

Outer Continental Shelf and lands 

which are under the jurisdiction of the 

Smithsonian Institution. 

Assistant Secretary means the official 

of the Department of the Interior 

designated by the Secretary of the 

Interior as responsible for exercising the 

Secretary of the Interior’s authority 

under the Act. 

Consultation or consult means the 

exchange of information, open 

discussion, and joint deliberations made 

between all parties in good-faith and in 

order to: 

(1) Seek, discuss, and consider the 

views of all parties; 

(2) Strive for consensus, agreement, or 

mutually acceptable alternatives; and 

(3) Enable meaningful consideration 

of the Native American traditional 

knowledge of lineal descendants, Indian 

Tribes, and Native Hawaiian 

organizations. 

Cultural affiliation means there is a 

reasonable connection between human 

remains or cultural items and an Indian 

Tribe or Native Hawaiian organization 

based on a relationship of shared group 

identity. Cultural affiliation may be 

identified clearly by the information 

available or reasonably by the 

geographical location or acquisition 


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history of the human remains or cultural 

items. 

Cultural items means a funerary 

object, sacred object, or object of 

cultural patrimony according to the 

Native American traditional knowledge 

of a lineal descendant, Indian Tribe, or 

Native Hawaiian organization. 

Custody means having an obligation 

to care for the object or item but not a 

sufficient interest in the object or item 

to constitute possession or control. In 

general, custody through a loan, lease, 

license, bailment, or other similar 

arrangement is not a sufficient interest 

to constitute possession or control, 

which resides with the loaning, leasing, 

licensing, bailing, or otherwise 

transferring museum or Federal agency. 

Discovery means exposing, finding, or 

removing human remains or cultural 

items whether intentionally or 

inadvertently on Federal or Tribal lands 

without a written authorization for an 

excavation under § 10.6 of this part. 

Disposition means an appropriate 

official recognizes a lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization has ownership or control of 

human remains or cultural items 

removed from Federal or Tribal lands. 

Excavation means intentionally 

exposing, finding, or removing human 

remains or cultural items on Federal or 

Tribal lands with a written 

authorization under § 10.6 of this part. 

Federal agency means any 

department, agency, or instrumentality 

of the United States Government. This 

term does not include the Smithsonian 

Institution. 

Federal lands means any lands other 

than Tribal lands that are controlled or 

owned by the United States 

Government. For purposes of this 

definition, control refers to lands not 

owned by the United States 

Government, but in which the United 

States Government has a sufficient legal 

interest to permit it to apply these 

regulations without abrogating a 

person’s existing legal rights. Whether 

the United States Government has a 

sufficient legal interest to control lands 

it does not own is a legal determination 

that a Federal agency must make on a 

case-by-case basis. Federal lands 

include: 

(1) Any lands selected by, but not yet 

conveyed to, an Alaska Native 

Corporation organized under the Alaska 

Native Claims Settlement Act (43 U.S.C. 

1601 et seq.); 

(2) Any lands other than Tribal lands 

that are held by the United States 

Government in trust for an individual 

Indian or lands owned by an individual 

Indian and subject to a restriction on 

alienation by the United States 

Government; and 

(3) Any lands subject to a statutory 

restriction, lease, easement, agreement, 

or similar arrangement containing terms 

that grant to the United States 

Government indicia of control over 

those lands. 

Funerary object means any object 

reasonably believed to have been placed 

intentionally with or near human 

remains. A funerary object is any object 

connected, either at the time of death or 

later, to a death rite or ceremony of a 

Native American culture according to 

the Native American traditional 

knowledge of a lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization. This term does not include 

any object returned or distributed to 

living persons according to traditional 

custom after a death rite or ceremony. 

Funerary objects are either associated 

funerary objects or unassociated 

funerary objects. 

(1) Associated funerary object means 

any funerary object related to human 

remains that were removed and the 

location of the human remains is 

known. Any object made exclusively for 

burial purposes or to contain human 

remains is always an associated 

funerary object regardless of the 

physical location or existence of any 

related human remains. 

(2) Unassociated funerary object 

means any funerary object that is not an 

associated funerary object and is 

identified by a preponderance of the 

evidence as one or more of the 

following: 

(i) Related to human remains but the 

human remains were not removed, or 

the location of the human remains is 

unknown, 

(ii) Related to specific individuals or 

families, 

(iii) Removed from a specific burial 

site of an individual or individuals with 

cultural affiliation to an Indian Tribe or 

Native Hawaiian organization, or 

(iv) Removed from a specific area 

where a burial site of an individual or 

individuals with cultural affiliation to 

an Indian Tribe or Native Hawaiian 

organization is known to have existed, 

but the burial site is no longer extant. 

Holding or collection means an 

accumulation of one or more objects, 

items, or human remains for any 

temporary or permanent purpose, 

including: 

(1) Academic interest; 

(2) Accession; 

(3) Catalog; 

(4) Comparison; 

(5) Conservation; 

(6) Education; 

(7) Examination; 

(8) Exhibition; 

(9) Forensic purposes; 

(10) Interpretation; 

(11) Preservation; 

(12) Public benefit; 

(13) Research; 

(14) Scientific interest; or 

(15) Study. 

Human remains means any physical 

part of the body of a Native American 

individual. This term does not include 

human remains to which a museum or 

Federal agency can prove it has a right 

of possession. 

(1) Human remains reasonably 

believed to be comingled with other 

materials (such as soil or faunal 

remains) may be treated as human 

remains. 

(2) Human remains incorporated into 

a funerary object, sacred object, or object 

of cultural patrimony are considered 

part of the cultural items rather than 

human remains. 

(3) Human remains incorporated into 

an object or item that is not a funerary 

object, sacred object, or object of 

cultural patrimony are considered 

human remains. 

Indian Tribe means any Tribe, band, 

nation, or other organized group or 

community of Indians, including any 

Alaska Native village (as defined in, or 

established pursuant to, the Alaska 

Native Claims Settlement Act (43 U.S.C. 

1601 et seq.)), recognized as eligible for 

the special programs and services 

provided by the United States 

Government to Indians because of their 

status as Indians by its inclusion on the 

list of recognized Indian Tribes 

published by the Secretary of the 

Interior under the Act of November 2, 

1994 (25 U.S.C. 5131). 

Inventory means a simple itemized 

list of any human remains and 

associated funerary objects in a holding 

or collection that incorporates the 

results of consultation and makes 

determinations about cultural 

affiliation. 

Lineal descendant means: 

(1) A living person tracing ancestry, 

either by means of traditional Native 

American kinship systems, or by the 

common-law system of descent, to a 

known individual whose human 

remains, funerary objects, or sacred 

objects are subject to this part; or 

(2) A living person tracing ancestry, 

either by means of traditional Native 

American kinship systems, or by the 

common-law system of descent, to all 

the known individuals represented by 

comingled human remains (example: 

the human remains of two individuals 

have been comingled, and a living 

person can trace ancestry directly to 

both of the deceased individuals). 


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Manager, National NAGPRA Program, 

means the official of the Department of 

the Interior designated by the Secretary 

of the Interior as responsible for 

administration of the Act and this part. 

Museum means any institution or 

State or local government agency 

(including any institution of higher 

learning) that has possession or control 

of human remains or cultural items and 

receives Federal funds. The term does 

not include the Smithsonian Institution. 

Native American means of, or relating 

to, a Tribe, people, or culture that is 

indigenous to the United States. To be 

considered Native American under this 

part, human remains or cultural items 

must bear some relationship to a Tribe, 

people, or culture indigenous to the 

United States. 

(1) A Tribe is an Indian Tribe. 

(2) A people comprise the entire body 

of persons who constitute a community, 

Tribe, nation, or other group by virtue 

of a common culture, history, religion, 

language, race, ethnicity, or similar 

feature. The Native Hawaiian 

Community is a ‘‘people.’’ 

(3) A culture comprises the 

characteristic features of everyday 

existence shared by people in a place or 

time. 

Native American traditional 

knowledge means knowledge, 

philosophies, beliefs, traditions, skills, 

and practices that are developed, 

embedded, and often safeguarded by or 

confidential to individual Native 

Americans, Indian Tribes, or the Native 

Hawaiian Community. Native American 

traditional knowledge contextualizes 

relationships between and among 

people, the places they inhabit, and the 

broader world around them, covering a 

wide variety of information, including, 

but not limited to, cultural, ecological, 

linguistic, religious, scientific, societal, 

spiritual, and technical knowledge. 

Native American traditional knowledge 

may be, but is not required to be, 

developed, sustained, and passed 

through time, often forming part of a 

cultural or spiritual identity. Native 

American traditional knowledge is 

expert opinion. 

Native Hawaiian organization means 

any organization that: 

(1) Serves and represents the interests 

of Native Hawaiians, who are 

descendants of the indigenous people 

who, before 1778, occupied and 

exercised sovereignty in the area that 

now constitutes the State of Hawai‘i; 

(2) Has as a primary and stated 

purpose the provision of services to 

Native Hawaiians; and 

(3) Has expertise in Native Hawaiian 

affairs, and includes but is not limited 

to: 

(i) The Office of Hawaiian Affairs 

established by the constitution of the 

State of Hawai‘I; 

(ii) Native Hawaiian organizations 

(including ‘ohana) who are registered 

with the Secretary of the Interior’s 

Office of Native Hawaiian Relations; 

and 

(iii) Hawaiian Homes Commission Act 

(HHCA) Beneficiary Associations and 

Homestead Associations as defined 

under 43 CFR 47.10. 

Object of cultural patrimony means an 

object that has ongoing historical, 

traditional, or cultural importance 

central to a Native American group, 

including any constituent sub-group 

(such as a band, clan, lineage, 

ceremonial society, or other 

subdivision), according to the Native 

American traditional knowledge of an 

Indian Tribe or Native Hawaiian 

organization. An object of cultural 

patrimony may have been entrusted to 

a caretaker, along with the authority to 

confer that responsibility to another 

caretaker. The object must be reasonably 

identified as being of such importance 

central to the group that it: 

(1) Cannot or could not be alienated, 

appropriated, or conveyed by any 

person, including its caretaker, 

regardless of whether the person is a 

member of the group, and 

(2) Must have been considered 

inalienable by the group at the time the 

object was separated from the group. 

1Ohana (singular and plural) means a 

group of people who are not asserting 

that they are lineal descendants but 

comprise a Native Hawaiian 

organization whose members have a 

familial or kinship relationship with 

each other. 

Person means: 

(1) An individual, partnership, 

corporation, trust, institution, 

association, or any other private entity; 

or 

(2) Any representative, official, 

employee, agent, department, or 

instrumentality of the United States 

Government or of any Indian Tribe or 

Native Hawaiian organization, or of any 

State or subdivision of a State. 

Possession or control means having a 

sufficient interest in an object or item to 

independently direct, manage, oversee, 

or restrict the use of the object or item. 

A museum or Federal agency may have 

possession or control regardless of the 

physical location of the object or item. 

In general, custody through a loan, 

lease, license, bailment, or other similar 

arrangement is not a sufficient interest 

to constitute possession or control, 

which resides with the loaning, leasing, 

licensing, bailing, or otherwise 

transferring museum or Federal agency. 

Receives Federal funds means an 

institution or State or local government 

agency (including an institution of 

higher learning) directly or indirectly 

receives Federal financial assistance 

after November 16, 1990, including any 

grant; cooperative agreement; loan; 

contract; use of Federal facilities, 

property, or services; or other 

arrangement involving the transfer of 

anything of value for a public purpose 

authorized by a law of the United States 

Government. This term includes Federal 

financial assistance provided for any 

purpose that is received by a larger 

entity of which the institution or agency 

is a part. For example, if an institution 

or agency is a part of a State or local 

government or a private university, and 

the State or local government or private 

university receives Federal financial 

assistance for any purpose, then the 

institution or agency receives Federal 

funds for the purpose of these 

regulations. This term does not include 

procurement of property or services by 

and for the direct benefit or use of the 

United States Government or Federal 

payments that are compensatory. 

Repatriation means a museum or 

Federal agency relinquishes possession 

or control of human remains or cultural 

items in a holding or collection to a 

lineal descendant, Indian Tribe, or 

Native Hawaiian organization. 

Review Committee means the advisory 

committee established under the Act. 

Right of possession means possession 

or control obtained with the voluntary 

consent of a person or group that had 

authority of alienation. Right of 

possession is given through the original 

acquisition of: 

(1) An unassociated funerary object, a 

sacred object, or an object of cultural 

patrimony from an Indian Tribe or 

Native Hawaiian organization with the 

voluntary consent of a person or group 

with authority to alienate the object; or 

(2) Human remains or associated 

funerary objects which were exhumed, 

removed, or otherwise obtained with 

full knowledge and consent of the next 

of kin or, when no next of kin is 

ascertainable, the official governing 

body of the appropriate Indian Tribe or 

Native Hawaiian organization. 

Sacred object means a specific 

ceremonial object needed by a 

traditional religious leader for presentday adherents to practice traditional 

Native American religion, according to 

the Native American traditional 

knowledge of a lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization. While many items might 

be imbued with sacredness in a culture, 

this term is specifically limited to an 

object needed for the observance or 


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renewal of a Native American religious 

ceremony. 

Summary means a written description 

of a holding or collection that may 

contain an unassociated funerary object, 

sacred object, or object of cultural 

patrimony. 

Traditional religious leader means a 

person needed to practice traditional 

Native American religion, according to 

the Native American traditional 

knowledge of a lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization. 

Tribal lands means: 

(1) All lands that are within the 

exterior boundaries of any Indian 

reservation; 

(2) All lands that are dependent 

Indian communities; and 

(3) All lands administered by the 

Department of Hawaiian Home Lands 

(DHHL) under the Hawaiian Homes 

Commission Act of 1920 (HHCA, 42 

Stat. 108) and Section 4 of the Act to 

Provide for the Admission of the State 

of Hawai1i into the Union (73 Stat. 4), 

including ‘‘available lands’’ and 

‘‘Hawaiian home lands.’’ 

Tribal lands of an NHO means Tribal 

lands in Hawai1i that are under the 

stewardship of a Native Hawaiian 

organization through a lease or license 

issued under HHCA section 204(a)(2), 

second paragraph, second proviso, or 

section 207(c)(1)(B). 

Unclaimed human remains or 

cultural items means human remains or 

cultural items removed from Federal or 

Tribal lands whose disposition has not 

occurred under this part. 

United States means the 50 States and 

the District of Columbia. 

§ 10.3 Determining cultural affiliation. 

Throughout this part, cultural 

affiliation ensures that disposition or 

repatriation of human remains or 

cultural items is based on a reasonable 

connection with an Indian Tribe or 

Native Hawaiian organization. Cultural 

affiliation must be determined by the 

information available, including 

information provided by an Indian Tribe 

or Native Hawaiian organization. 

Cultural affiliation does not require 

exhaustive studies, additional research, 

or continuity through time. Cultural 

affiliation is not precluded solely 

because of reasonable gaps in the 

information available. 

(a) Step 1: Collect information 

available. A museum, Federal agency, or 

DHHL must collect information it holds 

about human remains or cultural items, 

including, but not limited to, records, 

catalogues, relevant studies, and other 

pertinent data. Additional information 

may be provided by an Indian Tribe or 

Native Hawaiian organization. 

(1) One or more of the following 

equally relevant types of information 

about human remains or cultural items 

may be available: 

(i) Anthropological; 

(ii) Archaeological; 

(iii) Biological; 

(iv) Folkloric; 

(v) Geographical; 

(vi) Historical; 

(vii) Kinship; 

(viii) Linguistic; 

(ix) Oral Traditional; or 

(x) Other relevant information or 

expert opinion, including Native 

American traditional knowledge. 

(2) A lack of any type of information 

does not preclude a determination of 

cultural affiliation. One type of 

information may be used to determine 

cultural affiliation when no other 

relevant information is available. 

(b) Step 2: Identify the required 

criteria. Using the information available, 

including information provided by an 

Indian Tribe or Native Hawaiian 

organization, a museum, Federal 

agency, or DHHL must identify the three 

criteria for cultural affiliation. 

(1) Each of the following criteria must 

be identified in the information 

available: 

(i) One or more earlier groups 

connected to the human remains or 

cultural items; 

(ii) One or more Indian Tribes or 

Native Hawaiian organizations; and 

(iii) A relationship of shared group 

identity between the earlier group and 

the Indian Tribe or Native Hawaiian 

organization that can be reasonably 

traced through time. 

(2) One type of information may be 

sufficient to reasonably identify the 

required criteria when no other relevant 

information is available. For example, 

geographical information about human 

remains or cultural items may identify: 

(i) The earlier groups of people 

connected to a geographical location; 

(ii) The Indian Tribe or Native 

Hawaiian organization connected to a 

geographical location; and 

(iii) A relationship of shared group 

identity between the two traced through 

time. 

(c) Step 3: Make a determination of 

cultural affiliation. A museum, Federal 

agency, or DHHL must make a written 

record of its determination of cultural 

affiliation that briefly describes the 

information available under paragraph 

(a) of this section and the criteria 

identified under paragraph (b) of this 

section. 

(1) The determination must be one of 

the following: 

(i) Cultural affiliation is identified 

clearly by the information available, 

(ii) Cultural affiliation is identified 

reasonably by the geographical location 

or acquisition history, or 

(iii) Cultural affiliation cannot be 

clearly or reasonably identified. 

(2) Cultural affiliation of human 

remains or cultural items may be with 

more than one Indian Tribe or Native 

Hawaiian organization. For example, an 

identifiable earlier group may have a 

relationship to more than one Indian 

Tribe or Native Hawaiian organization, 

or two or more earlier groups may be 

connected to human remains or cultural 

items and a relationship may be 

reasonably traced to two or more Indian 

Tribes or Native Hawaiian organizations 

that do not themselves have a shared 

group identity. In Hawai‘i, two or more 

Native Hawaiian organizations may be 

part of the same Native Hawaiian 

Community, but may have distinct 

beliefs, protocols, and other cultural 

practices passed down through different 

familial, cultural, and geographical 

lineages. 

(d) Joint disposition or repatriation. 

When a museum, Federal agency, or 

DHHL determines cultural affiliation of 

human remains or cultural items with 

two or more Indian Tribes or Native 

Hawaiian organizations, any Indian 

Tribe or Native Hawaiian organization 

with cultural affiliation may submit a 

claim for disposition or a request for 

repatriation. Any Indian Tribe or Native 

Hawaiian organization with cultural 

affiliation may agree to joint disposition 

or joint repatriation of the human 

remains or cultural items. Claims or 

requests for joint disposition or joint 

repatriation of human remains or 

cultural items are considered a single 

claim or request and not competing 

claims or requests. A single claim or 

request may be on behalf of multiple 

Indian Tribes or Native Hawaiian 

organizations. Disposition or 

repatriation statements required under 

this part must identify all joint 

claimants or requestors. 

(e) Competing claims or requests. 

When there are competing claims for 

disposition or competing requests for 

repatriation of human remains or 

cultural items, a museum, Federal 

agency, or DHHL must determine the 

Indian Tribe or Native Hawaiian 

organization with the closest cultural 

affiliation. In support of a competing 

claim or request, each claimant or 

requestor may provide information to 

show by a preponderance of the 

evidence that it has a stronger 

relationship of shared group identity to 

the human remains or cultural items. 


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(1) The Indian Tribe with the closest 

cultural affiliation, in the following 

order, is: 

(i) The Indian Tribe whose cultural 

affiliation is clearly identified by the 

information available. 

(ii) The Indian Tribe whose cultural 

affiliation is reasonably identified by the 

geographical location and acquisition 

history of the human remains or cultural 

items. 

(iii) The Indian Tribe whose cultural 

affiliation is reasonably identified by 

only the geographical location of the 

human remains or cultural items. 

(iv) The Indian Tribe whose cultural 

affiliation is reasonably identified by 

only the acquisition history of the 

human remains or cultural items. 

(2) The Native Hawaiian organization 

with the closest cultural affiliation, in 

the following order, is: 

(i) The 1ohana that can trace an 

unbroken connection of named 

individuals to one or more of the human 

remains or cultural items, but not 

necessarily to all the human remains or 

cultural items from a specific site. 

(ii) The 1ohana that can trace a 

relationship to the ahupua‘a where the 

human remains or cultural items were 

removed and a direct kinship to one or 

more of the human remains or cultural 

items, but not necessarily an unbroken 

connection of named individuals. 

(iii) The Native Hawaiian organization 

with cultural affiliation only to the 

earlier occupants of the ahupua‘a where 

the human remains or cultural items 

were removed, and not to the earlier 

occupants of any other ahupua‘a. 

(iv) The Native Hawaiian organization 

with cultural affiliation to either: 

(A) The earlier occupants of the 

ahupua‘a where the human remains or 

cultural items were removed, as well as 

to the earlier occupants of other 

ahupua‘a on the same island, but not to 

the earlier occupants of all ahupua‘a on 

that island, or to the earlier occupants 

of any other island of the Hawaiian 

archipelago; or 

(B) The earlier occupants of another 

island who accessed the ahupua‘a 

where the human remains or cultural 

items were removed for traditional or 

customary practices and were buried 

there. 

(v) The Native Hawaiian organization 

with cultural affiliation to the earlier 

occupants of all ahupua‘a on the island 

where the human remains or cultural 

items were removed, but not to the 

earlier occupants of any other island of 

the Hawaiian archipelago. 

(vi) The Native Hawaiian organization 

with cultural affiliation to the earlier 

occupants of more than one island in 

the Hawaiian archipelago that has been 

in continuous existence from a date 

prior to 1893. 

(vii) Any other Native Hawaiian 

organization with cultural affiliation. 

Subpart B—Protection of Human 

Remains or Cultural Items on Federal 

or Tribal Lands 

§ 10.4 General. 

Each Indian Tribe, Native Hawaiian 

organization, Federal agency, and the 

State of Hawai‘i Department of 

Hawaiian Home Lands (DHHL) that has 

responsibility for Federal or Tribal lands 

must comply with the requirements of 

this subpart. Any permit, license, lease, 

right-of-way, or other authorization 

issued for an activity on Federal or 

Tribal lands must include a requirement 

to report any discovery of human 

remains or cultural items under § 10.5 of 

this part. Prior to any excavation of 

human remains or cultural items on 

Federal or Tribal lands, a written 

authorization is required under § 10.6 of 

this part. When human remains or 

cultural items are removed from Federal 

or Tribal lands, a disposition statement 

is required under § 10.7 of this part. 

(a) Appropriate official. To ensure 

compliance with the Act, the Indian 

Tribe, Native Hawaiian organization, 

Federal agency, or DHHL that has 

responsibility for Federal or Tribal lands 

must designate one or more appropriate 

officials to carry out the requirements of 

this subpart, as shown in table 1 of this 

paragraph (a). 

TABLE 1 TO § 10.4(a)—APPROPRIATE OFFICIAL

For human remains or cultural items on . . . the appropriate official is a representative for the . . . 

Federal lands in the United States ........................................................... Federal agency with primary management authority. 

Tribal lands in Alaska and the continental United States ........................ Indian Tribe. 

Tribal lands in Hawai1i .............................................................................. DHHL. 

Tribal lands of an NHO ............................................................................ DHHL or a Native Hawaiian organization that has agreed in writing to 

be responsible for its Tribal lands. 

(b) Plan of action. When a Federal 

agency or DHHL has responsibility for a 

discovery or excavation on Federal or 

Tribal lands, a plan of action is 

required. A plan of action is not 

required when an Indian Tribe or Native 

Hawaiian organization has 

responsibility for a discovery or 

excavation on Tribal lands. The Federal 

agency or DHHL must prepare a plan of 

action before any planned activity that 

is likely to result in a discovery or 

excavation of human remains or cultural 

items. The likelihood of a discovery or 

excavation must be based on previous 

studies, discoveries, or excavations in 

the general proximity of the planned 

activity and in consultation with the 

lineal descendant, Indian Tribe, or 

Native Hawaiian organization. If not 

part of a planned activity, a plan of 

action is required after a discovery of 

human remains or cultural items. After 

consultation with the lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization, the Federal agency or 

DHHL must approve and sign a plan of 

action. 

(1) Step 1—Initiate consultation. 

Before a planned activity or after a 

discovery, the Federal agency or DHHL 

must identify consulting parties and 

invite the parties to consult. 

(i) Consulting parties are any lineal 

descendant and any Indian Tribe or 

Native Hawaiian organization with 

potential cultural affiliation. 

(ii) An invitation to consult must be 

in writing and must include: 

(A) A description of the planned 

activity or discovery and its 

geographical location by county and 

State; 

(B) The names of all consulting 

parties; and 

(C) A proposed timeline and method 

for consultation. 

(2) Step 2—Consult on the plan of 

action. The Federal agency or DHHL 

must respond to any consulting party, 

regardless of whether the party has 

received an invitation to consult. 

Consultation on the plan of action may 

continue until the Federal agency or 

DHHL sends a disposition statement to 

a claimant under § 10.7(c)(5) of this 

subpart. 

(i) In response to a consulting party, 

the Federal agency or DHHL must ask 

for the following information, if not 

already provided: 


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(A) Preferences on the proposed 

timeline and method for consultation; 

and 

(B) The name, phone number, email 

address, or mailing address for any 

authorized representative, traditional 

religious leader, and known lineal 

descendant who may participate in 

consultation. 

(ii) Consultation must address the 

content of the plan of action under 

paragraph (b)(3) of this section. 

(iii) The Federal agency or DHHL 

must prepare a record of consultation 

that describes the concurrence, 

disagreement, or nonresponse of the 

consulting parties to the content of the 

plan of action. 

(3) Step 3—Approve and sign the plan 

of action. Before a planned activity or 

after a discovery, the Federal agency or 

DHHL must approve and sign a plan of 

action and must provide a copy to all 

consulting parties. At a minimum, the 

written plan of action must include: 

(i) A description of the planned 

activity or discovery and its 

geographical location by county and 

State; 

(ii) A list of all consulting parties 

under paragraph (b)(1) of this section; 

(iii) A record of consultation under 

paragraph (b)(2) of this section; 

(iv) The preference of consulting 

parties for: 

(A) Stabilizing, securing, and covering 

human remains or cultural items in situ, 

or 

(B) Protecting, securing, and 

relocating human remains or cultural 

items, if removed; 

(v) The duty of care under § 10.1(d) 

for any human remains or cultural 

items; and 

(vi) The timeline and method for: 

(A) Informing all consulting parties of 

a discovery; 

(B) Evaluating the potential need for 

an excavation; and 

(C) Completing disposition, to include 

publication of a notice of intended 

disposition, under § 10.7 of this part. 

(c) Comprehensive agreement. A 

Federal agency or DHHL may develop a 

written comprehensive agreement for all 

land managing activities on Federal or 

Tribal lands, or portions thereof, under 

its responsibility. The written 

comprehensive agreement must: 

(1) Be developed in consultation with 

the lineal descendant, Indian Tribe, or 

Native Hawaiian organization identified 

under paragraph (b)(1) of this section; 

(2) Include, at minimum, a plan of 

action under paragraph (b)(3) of this 

section; 

(3) Be consented to by a majority of 

consulting parties under paragraph 

(b)(2) of this section. Evidence of 

consent means the authorized 

representative’s signature on the 

agreement or by official correspondence 

to the Federal agency or DHHL; and 

(4) Be signed by the Federal agency or 

DHHL. 

(d) Federal agency coordination with 

other laws. To manage compliance with 

the Act, a Federal agency may 

coordinate its responsibility under this 

subpart with its responsibilities under 

other relevant Federal laws. Compliance 

with this subpart does not relieve a 

Federal agency of the responsibility for 

compliance with the National Historic 

Preservation Act (54 U.S.C. 306108, 

commonly known as Section 106) or the 

Archeological and Historic Preservation 

Act (54 U.S.C. 312501–312508). 

§ 10.5 Discovery. 

When a discovery of human remains 

or cultural items on Federal or Tribal 

lands occurs, any person who knows or 

has reason to know of the discovery 

must inform the appropriate official for 

the Indian Tribe, Native Hawaiian 

organization, Federal agency, or DHHL 

and the additional point of contact. The 

appropriate official must respond to a 

discovery and, if applicable, certify 

when an activity may resume. 

(a) Report any discovery. Any person 

who knows or has reason to know of a 

discovery of human remains or cultural 

items on Federal or Tribal lands must: 

(1) Immediately report the discovery 

in person or by telephone to the 

appropriate official and any additional 

point of contact shown in table 1 of this 

paragraph (a). 

TABLE 1 TO § 10.5(a)(1)—REPORT A DISCOVERY ON FEDERAL OR TRIBAL LANDS

Where the discovery is on . . . the appropriate official is the representative 

for the . . . and the additional point of contact is the . . . 

Federal lands in the United States * .................. Federal agency with primary management authority.Any Indian Tribe or Native Hawaiian organization with potential cultural affiliation, if 

known. 

Tribal lands in Alaska and the continental 

United States.

Indian Tribe ...................................................... Bureau of Indian Affairs or the Federal agency with primary management authority, if 

any. 

Tribal lands in Hawai1i ........................................ DHHL ............................................................... Any Native Hawaiian organization with potential cultural affiliation, if known. 

* Federal lands in Alaska selected but not yet 

conveyed under the Alaska Native Claims 

Settlement Act (ANCSA, 43 U.S.C. 1601).

Bureau of Land Management or Federal 

agency with primary management authority.

Alaska Native Corporation organized under 

ANCSA. 

(2) Make a reasonable effort to secure 

and protect the human remains or 

cultural items, including, as 

appropriate, stabilizing or covering the 

human remains or cultural items; and 

(3) No later than 24 hours after the 

discovery, send written documentation 

of the discovery to the appropriate 

official and the additional point of 

contact shown in Table 1 to paragraph 

(a)(1) of this section stating: 

(i) The geographical location by 

county and State; 

(ii) The contents of the discovery; and 

(iii) The steps taken to secure and 

protect the human remains or cultural 

items. 

(b) Cease any nearby activity. If a 

discovery is related to an activity 

(including but not limited to 

construction, mining, logging, or 

agriculture), the person responsible for 

the activity must: 

(1) Immediately stop any activity that 

could threaten the discovery; 

(2) Report the discovery according to 

paragraph (a) of this section; and 

(3) In the written documentation of 

the discovery required under paragraph 

(a)(3) of this section include: 

(i) The related activity and any 

potential threats to the discovery; and 

(ii) Confirmation that all activity 

around the discovery has stopped and 

must not resume until the date in a 

written certification issued under 

paragraph (e) of this section. 

(c) Respond to a discovery. No later 

than three days after receiving written 

documentation of a discovery, the 

appropriate official must respond to a 


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discovery. The appropriate official must 

comply with the requirements of this 

section immediately upon learning of 

the discovery even if the discovery has 

not been properly reported. 

(1) The appropriate official must make 

a reasonable effort to: 

(i) Secure and protect the human 

remains or cultural items; 

(ii) Verify that any activity around the 

discovery has stopped; and 

(iii) Notify the additional point of 

contact shown in table 1 to paragraph 

(a)(1) of this section. 

(2) On Tribal lands in Alaska and the 

continental United States, the Indian 

Tribe may delegate its responsibility for 

the discovery to the Bureau of Indian 

Affairs or the Federal agency with 

primary management authority. If both 

the Federal agency and the Indian Tribe 

consent in writing, the Bureau of Indian 

Affairs or the Federal agency with 

primary management authority is 

responsible for completing the 

requirements in paragraphs (d) and (e) 

of this section. 

(3) On Tribal lands of an NHO, the 

Native Hawaiian organization may agree 

in writing to be responsible for 

discoveries on its Tribal lands and then 

must respond to any discovery under 

this paragraph. If the Native Hawaiian 

organization has not agreed in writing to 

be responsible for discoveries, DHHL is 

responsible for completing the 

requirements in paragraph (d) and (e) of 

this section for any discoveries on those 

Tribal lands of an NHO. 

(d) Approve and sign a plan of action. 

When a Federal agency or DHHL has 

responsibility for a discovery on Federal 

or Tribal lands, a plan of action is 

required. A plan of action is not 

required when an Indian Tribe or Native 

Hawaiian organization has 

responsibility for a discovery on Tribal 

lands. The Federal agency or DHHL 

must carry out the plan of action for any 

human remains or cultural items that 

are removed. 

(1) No later than 30 days after 

receiving written documentation of a 

discovery, the Federal agency or DHHL, 

in consultation with the lineal 

descendant, Indian Tribe, or Native 

Hawaiian organization, must approve 

and sign a plan of action under 

§ 10.4(b). 

(2) This requirement does not apply 

if, before receiving written 

documentation of the discovery, the 

Federal agency or DHHL signed: 

(i) A plan of action under § 10.4(b); or 

(ii) A comprehensive agreement under 

§ 10.4(c). 

(e) Certify when an activity may 

resume. No later than 30 days after 

receiving written documentation of a 

discovery, the appropriate official must 

send a written certification if the 

discovery is related to an activity 

(including but not limited to 

construction, mining, logging, or 

agriculture). Written certification must 

be sent to the person responsible for the 

activity and the additional point of 

contact shown in table 1 to paragraph 

(a)(1) of this section. The written 

certification must provide: 

(1) A copy of the signed plan of action 

or comprehensive agreement with 

redaction of any confidential or 

sensitive information; 

(2) Instructions for protecting, 

securing, stabilizing, or covering the 

human remains or cultural items, if 

appropriate; and 

(3) The date (no later than 30 days 

after the date of the written certification) 

on which lawful activity may resume 

around the discovery. 

§ 10.6 Excavation. 

When an excavation of human 

remains or cultural items on Federal or 

Tribal lands is needed, the appropriate 

official must comply with this section 

when authorizing the excavation. A 

permit under Section 4 of ARPA (16 

U.S.C. 470cc) is required when the 

excavation is on Federal or Tribal lands 

that are also ARPA Indian lands or 

ARPA Public lands, and there is no 

applicable permit exception or 

exemption under the ARPA uniform 

regulations at 18 CFR part 1312, 32 CFR 

part 229, 36 CFR part 296, or 43 CFR 

part 7. When the excavation is on 

Federal or Tribal lands that are not 

ARPA Indian lands or ARPA Public 

lands, an equivalent permit from the 

relevant jurisdiction is required, if 

applicable. 

(a) On Tribal lands. Before an 

excavation of human remains or cultural 

items may occur, the Indian Tribe or 

Native Hawaiian organization must 

consent in writing by providing a 

written authorization for the excavation. 

(1) At minimum, the written 

authorization must document: 

(i) The reasonable steps taken to 

evaluate the potential need for an 

excavation of human remains or cultural 

items; and 

(ii) Any permit that the Indian Tribe 

or Native Hawaiian organization legally 

requires. 

(2) On Tribal lands in Alaska and the 

continental United States, the Indian 

Tribe may delegate its responsibility for 

authorizing the excavation to the Bureau 

of Indian Affairs or the Federal agency 

with primary management authority. If 

both the Federal agency and the Indian 

Tribe consent in writing, the Bureau of 

Indian Affairs or the Federal agency 

with primary management authority is 

responsible for completing the 

requirements in paragraph (b) of this 

section. 

(3) On Tribal lands of an NHO, the 

Native Hawaiian organization may agree 

in writing to be responsible for 

excavations on its Tribal lands and then 

must provide written authorizations 

under this paragraph. If the Native 

Hawaiian organization has not agreed in 

writing to be responsible for 

excavations, DHHL is responsible for 

completing the requirements in 

paragraph (b) of this section for any 

excavations on those Tribal lands of an 

NHO. 

(b) On Federal or Tribal lands. When 

a Federal agency or DHHL has 

responsibility for an excavation on 

Federal or Tribal lands, a plan of action 

and a written authorization are required. 

When an Indian Tribe or Native 

Hawaiian organization has 

responsibility for an excavation on 

Tribal lands, no plan of action is 

required and the Indian Tribe or Native 

Hawaiian organization must comply 

with paragraph (a) of this section. 

(1) Approve and sign a plan of action. 

Prior to authorizing an excavation, the 

Federal agency or DHHL, in 

consultation with the lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization, must approve and sign a 

plan of action under § 10.4(b). The 

Federal agency or DHHL must carry out 

the plan of action for any human 

remains or cultural items that are 

excavated and removed. 

(i) This requirement does not apply if, 

prior to authorizing the excavation, the 

Federal agency or DHHL signed: 

(A) A plan of action under § 10.4(b); 

or 

(B) A comprehensive agreement under 

§ 10.4(c). 

(ii) For an excavation on Tribal lands, 

the plan of action must include written 

consent to the excavation by the 

appropriate Indian Tribe or Native 

Hawaiian organization. 

(2) Authorize an excavation. At 

minimum, the written authorization 

must include: 

(i) A copy of the signed plan of action 

or comprehensive agreement with 

redaction of any confidential or 

sensitive information, 

(ii) The reasonable steps taken to 

evaluate the potential need for an 

excavation of human remains or cultural 

items, and 

(iii) Any permit that the Federal 

agency or DHHL legally requires. 

§ 10.7 Disposition. 

When human remains or cultural 

items are removed from Federal or 


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Tribal lands, as soon as possible (but no 

later than one year) after the discovery 

or excavation of the human remains or 

cultural items, the appropriate official 

must identify the lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization that has priority for 

disposition of human remains or 

cultural items using this section. 

(a) Priority for disposition. The 

disposition of human remains or 

cultural items removed from Federal or 

Tribal lands must be in the following 

priority order: 

(1) The known lineal descendant, if 

any, for human remains or associated 

funerary objects; 

(2) The Indian Tribe or Native 

Hawaiian organization from whose 

Tribal lands the human remains or 

cultural items were removed; 

(3) The Indian Tribe or Native 

Hawaiian organization with the closest 

cultural affiliation according to the 

priority order at § 10.3(e) of this part; 

(4) On Federal land that is recognized 

by a final judgment of the Indian Claims 

Commission or the United States Court 

of Claims as the aboriginal land of some 

Indian Tribe, the Indian Tribe with the 

strongest relationship to the human 

remains or cultural items, which is: 

(i) The Indian Tribe recognized as 

aboriginally occupying the geographical 

location where the human remains or 

cultural items were removed; or 

(ii) A different Indian Tribe who 

shows by a preponderance of the 

evidence a stronger relationship to the 

human remains or cultural items; or 

(5) Any Indian Tribe or Native 

Hawaiian organization that requests 

transfer of the human remains or 

cultural items as unclaimed under 

paragraph (d) of this section. 

(b) On Tribal lands. The Indian Tribe 

or Native Hawaiian organization from 

whose Tribal lands the human remains 

or cultural items were removed must 

identify the lineal descendant, Indian 

Tribe, or Native Hawaiian organization 

with priority for disposition under 

paragraph (a) of this section. 

(1) The Indian Tribe or Native 

Hawaiian organization must complete 

and retain a written disposition 

statement to recognize: 

(i) A lineal descendant (whose name 

may be withheld) has ownership or 

control of the human remains or 

associated funerary objects removed 

from Tribal lands; or 

(ii) A lineal descendant could not be 

ascertained, and the Indian Tribe or 

Native Hawaiian organization has 

ownership or control of the human 

remains or cultural items removed from 

Tribal lands. 

(2) On Tribal lands in Alaska and the 

continental United States, the Indian 

Tribe may delegate its responsibility for 

disposition of human remains or 

cultural items to the Bureau of Indian 

Affairs or the Federal agency with 

primary management authority. If both 

the Federal agency and the Indian Tribe 

consent in writing, the Bureau of Indian 

Affairs or the Federal agency with 

primary management authority is 

responsible for completing the 

requirements in paragraph (c) of this 

section. 

(3) On Tribal lands of an NHO, the 

Native Hawaiian organization may agree 

in writing to be responsible for 

disposition of human remains or 

cultural items from its Tribal lands and 

then must provide written disposition 

statements under this paragraph. If the 

Native Hawaiian organization has not 

agreed in writing to be responsible for 

dispositions, DHHL is responsible for 

completing the requirements in 

paragraph (c) of this section for any 

dispositions from those Tribal lands of 

an NHO. 

(4) After completing a disposition 

statement, nothing in the Act or this 

part: 

(i) Limits the authority of an Indian 

Tribe or Native Hawaiian organization 

to enter into any agreement with the 

lineal descendant or another Indian 

Tribe or Native Hawaiian organization 

concerning the human remains or 

cultural items; 

(ii) Limits any procedural or 

substantive right which may otherwise 

be secured to the lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization; or 

(iii) Prevents the governing body of an 

Indian Tribe or Native Hawaiian 

organization from expressly 

relinquishing its ownership or control of 

human remains, funerary objects, or 

sacred objects. 

(c) On Federal or Tribal lands. When 

a Federal agency or DHHL has 

responsibility for disposition of human 

remains or cultural items from Federal 

or Tribal lands, the Federal agency or 

DHHL must inform and notify the lineal 

descendant, Indian Tribe, or Native 

Hawaiian organization with priority for 

disposition under paragraph (a) of this 

section. 

(1) Step 1—Inform consulting parties. 

As soon as possible but no later than six 

months after removal of human remains 

or cultural items from Federal or Tribal 

lands, the Federal agency or DHHL must 

send a written document informing all 

consulting parties listed in the plan of 

action under § 10.4(b)(3) of this part. 

Consultation on disposition of human 

remains or cultural items may continue 

until the Federal agency or DHHL sends 

a disposition statement to a claimant 

under paragraph (c)(5) of this section. 

(i) The written document must 

include: 

(A) A description of the human 

remains or cultural items, including the 

date and geographical location by 

county and State of removal; and 

(B) The lineal descendant (whose 

name may be withheld), Indian Tribe, or 

Native Hawaiian organization identified 

as having priority for disposition of the 

human remains or cultural items. 

(ii) For human remains or cultural 

items removed from Federal or Tribal 

lands whose disposition is not complete 

prior to January 12, 2024, the Federal 

agency or DHHL must: 

(A) Identify the lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization with priority for 

disposition under paragraph (a) of this 

section; and 

(B) No later than July 12, 2024, send 

a written document under paragraph 

(c)(1)(i) of this section. 

(iii) If the Federal agency or DHHL 

cannot identify any lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization with priority for 

disposition of human remains or 

cultural items, the Federal agency or 

DHHL must report the human remains 

or cultural items as unclaimed under 

paragraph (d) of this section. 

(2) Step 2—Submit a notice of 

intended disposition. No earlier than 30 

days and no later than six months after 

informing consulting parties, the 

Federal agency or DHHL must submit a 

notice of intended disposition. If the 

human remains or cultural items are 

evidence in an ongoing civil or criminal 

action under ARPA or a criminal action 

under NAGPRA, the deadline for the 

notice is extended until the conclusion 

of the ARPA or NAGPRA case. 

(i) A notice of intended disposition 

must be sent to any consulting parties 

and to the Manager, National NAGPRA 

Program, for publication in the Federal 

Register. 

(ii) A notice of intended disposition 

must conform to the mandatory format 

of the Federal Register and include: 

(A) An abstract of the information in 

the written document under paragraph 

(c)(1)(i) of this section; 

(B) The name, phone number, email 

address, and mailing address of the 

appropriate official for the Federal 

agency or DHHL who is responsible for 

receiving claims for disposition; 

(C) The date (to be calculated by the 

Federal Register 30 days from the date 

of publication) after which the Federal 

agency or DHHL may send a disposition 

statement to a claimant; and 


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(D) The date (to be calculated by the 

Federal Register one year from the date 

of publication) on which the human 

remains or cultural items become 

unclaimed human remains or cultural 

items if no claim for disposition is 

received from a lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization. 

(iii) No later than 21 days after 

receiving a notice of intended 

disposition, the Manager, National 

NAGPRA Program, must: 

(A) Approve for publication in the 

Federal Register any submission that 

conforms to the requirements under 

paragraph (c)(2)(ii) of this section; or 

(B) Return to the Federal agency or 

DHHL any submission that does not 

conform to the requirements under 

paragraph (c)(2)(ii) of this section. No 

later than 14 days after the submission 

is returned, the Federal agency or DHHL 

must resubmit the notice of intended 

disposition. 

(3) Step 3—Receive and consider a 

claim for disposition. After publication 

of a notice of intended disposition in 

the Federal Register, any lineal 

descendant, Indian Tribe, or Native 

Hawaiian organization may submit to 

the appropriate official for the Federal 

agency or DHHL a written claim for 

disposition of human remains or 

cultural items. 

(i) A claim for disposition of human 

remains or cultural items must be 

received by the Federal agency or DHHL 

before a disposition statement for the 

human remains or cultural items is sent 

to a claimant under paragraph (c)(5) of 

this section or the transfer or 

reinterment of the human remains or 

cultural items under paragraph (d)(4) of 

this section. A claim for disposition 

received by the Federal agency or DHHL 

before the publication of the notice of 

intended disposition is dated the same 

date the notice was published. 

(ii) Claims from two or more lineal 

descendants, Indian Tribes, or Native 

Hawaiian organizations who agree to 

joint disposition of the human remains 

or cultural items are considered a single 

claim and not competing claims. 

(iii) A claim for disposition must 

satisfy one of the following criteria: 

(A) The claimant is identified in the 

notice of intended disposition with 

priority for disposition; or 

(B) The claimant is not identified in 

the notice of intended disposition, but 

the claim for disposition shows that the 

claimant is a lineal descendant, Indian 

Tribe, or Native Hawaiian organization 

with priority for disposition under 

paragraph (a) of this section. 

(iv) One year after publishing a notice 

of intended disposition under paragraph 

(c)(2) of this section, if no lineal 

descendant, Indian Tribe, or Native 

Hawaiian organization has submitted a 

claim for disposition, the Federal 

agency or DHHL must report the human 

remains or cultural items as unclaimed 

under paragraph (d) of this section. 

(4) Step 4—Respond to a claim for 

disposition. No earlier than 30 days after 

publication of a notice of intended 

disposition but no later than 90 days 

after receiving a claim for disposition, 

the Federal agency or DHHL must send 

a written response to the claimant with 

a copy to any other party identified in 

the notice of intended disposition with 

priority for disposition. 

(i) In the written response, the Federal 

agency or DHHL must state one of the 

following: 

(A) The claim meets the criteria under 

paragraph (c)(3) of this section. The 

Federal agency or DHHL must send a 

disposition statement to the claimant 

under paragraph (c)(5) of this section, 

unless the Federal agency or DHHL 

receives additional, competing claims 

for disposition of human remains or 

cultural items. 

(B) The claim does not meet the 

criteria under paragraph (c)(3) of this 

section. The Federal agency or DHHL 

must provide a detailed explanation 

why the claim does not meet the criteria 

and an opportunity for the claimant to 

provide additional information to meet 

the criteria. 

(C) The Federal agency or DHHL has 

received competing claims for 

disposition of the human remains or 

cultural items that meet the criteria and 

must determine the most appropriate 

claimant using the procedures and 

deadlines under paragraph (c)(4)(ii) of 

this section. 

(ii) At any time before sending a 

disposition statement for human 

remains or cultural items under 

paragraph (c)(5) of this section, the 

Federal agency or DHHL may receive 

additional, competing claims for 

disposition of the human remains or 

cultural items that meet the criteria 

under paragraph (c)(3) of this section. 

The Federal agency or DHHL must 

determine the most appropriate 

claimant using the priority for 

disposition under paragraph (a) of this 

section and the following procedures 

and deadlines: 

(A) No later than 14 days after 

receiving a competing claim, the Federal 

agency or DHHL must send a written 

letter to each claimant identifying all 

claimants and the date each claim was 

received. In response, the claimants may 

provide additional information to show 

by a preponderance of the evidence that 

the claimant has a stronger relationship 

to the human remains or cultural items. 

(B) No later than 180 days after 

informing the claimants of competing 

claims, the Federal agency or DHHL 

must send a written determination to 

each claimant identifying the most 

appropriate claimant(s). 

(C) No earlier than 30 days but no 

later than 90 days after sending a 

determination of the most appropriate 

claimant(s), the Federal agency or DHHL 

must send a disposition statement to the 

most appropriate claimant(s) under 

paragraph (c)(5) of this section. 

(5) Step 5—Disposition of the human 

remains or cultural items. No later than 

90 days after responding to a claim for 

disposition that meets the criteria, the 

Federal agency or DHHL must send a 

written disposition statement to the 

claimant(s) and a copy to the Manager, 

National NAGPRA Program. A 

disposition statement must recognize 

the claimant(s) has ownership or control 

of the human remains or cultural items. 

In the case of joint claims for 

disposition, a disposition statement 

must identify and be sent to all 

claimants. 

(i) After sending a disposition 

statement, the Federal agency or DHHL 

must: 

(A) Consult with the claimant(s) on 

custody and physical transfer; 

(B) Document any physical transfer; 

and 

(C) Protect sensitive information, as 

identified by the claimant(s), from 

disclosure to the general public to the 

extent consistent with applicable law. 

(ii) After a disposition statement is 

sent, nothing in the Act or this part: 

(A) Limits the authority of the Federal 

agency or DHHL to enter into any 

agreement with the lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization concerning the human 

remains or cultural items; 

(B) Limits any procedural or 

substantive right which may otherwise 

be secured to the lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization; or 

(C) Prevents the governing body of an 

Indian Tribe or Native Hawaiian 

organization from expressly 

relinquishing its ownership or control of 

human remains, funerary objects, or 

sacred objects. 

(d) Unclaimed human remains or 

cultural items removed from Federal or 

Tribal lands. When a Federal agency or 

DHHL has custody of unclaimed human 

remains or cultural items, the Federal 

agency or DHHL must report the human 

remains or cultural items. 

(1) Step 1—Submit a list of unclaimed 

human remains or cultural items. No 


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later than January 13, 2025, the Federal 

agency or DHHL must submit to the 

Manager, National NAGPRA Program, a 

list of any unclaimed human remains or 

cultural items in its custody. The 

Federal agency or DHHL must submit 

updates to its list of unclaimed human 

remains or cultural items by December 

31 each year. 

(i) Human remains or cultural items 

are unclaimed when: 

(A) One year after publishing a notice 

of intended disposition under paragraph 

(c)(2) of this section, no lineal 

descendant, Indian Tribe, or Native 

Hawaiian organization submits a written 

claim for disposition; or 

(B) One year after discovery or 

excavation of the human remains or 

cultural items, the Federal agency or 

DHHL did not identify any lineal 

descendant, Indian Tribe, or Native 

Hawaiian organization with priority for 

disposition under paragraph (a) of this 

section. 

(ii) A list of unclaimed human 

remains or cultural items must include: 

(A) A description of the human 

remains or cultural items, including the 

date and geographical location by 

county and State of removal; 

(B) The names of all consulting 

parties; 

(C) If unclaimed under paragraph 

(d)(1)(i)(A) of this section, the name of 

each Indian Tribe or Native Hawaiian 

organization with priority for 

disposition under paragraph (a) of this 

section; and 

(D) If unclaimed under paragraph 

(d)(1)(i)(B) of this section, the 

information considered under § 10.3(a) 

of this part and the criteria identified 

under § 10.3(b) of this part to explain 

why no Indian Tribe or Native Hawaiian 

organization with cultural affiliation 

could be identified. 

(2) Step 2—Agree to transfer or decide 

to reinter human remains or cultural 

items. At the discretion of the Federal 

agency or DHHL, a Federal agency or 

DHHL may: 

(i) Agree in writing to transfer 

unclaimed human remains or cultural 

items to an Indian Tribe or Native 

Hawaiian organization; 

(ii) Decide in writing to reinter 

unclaimed human remains or cultural 

items according to applicable laws and 

policies; or 

(iii) At any time before transferring or 

reinterring human remains or cultural 

items under paragraph (d)(4) of this 

section, the Federal agency or DHHL 

may receive a claim for disposition of 

the human remains or cultural items 

and must evaluate whether the claim 

meets the criteria under paragraph (c)(3) 

of this section. Any agreement to 

transfer or decision to reinter the human 

remains or cultural items under this 

paragraph is stayed until the claim for 

disposition is resolved under paragraph 

(c) of this section. 

(A) If the claim meets the criteria 

under paragraph (c)(3) of this section 

and a notice of intended disposition was 

published under paragraph (c)(2) of this 

section, the Federal agency or DHHL 

must respond in writing under 

paragraph (c)(4) and proceed with 

disposition under (c)(5) of this section. 

(B) If the claim meets the criteria 

under paragraph (c)(3) of this section 

but no notice of intended disposition 

was published, the Federal agency or 

DHHL must submit a notice of intended 

disposition under paragraph (c)(2), 

respond in writing under paragraph 

(c)(4), and proceed with disposition 

under (c)(5) of this section. 

(C) If the claim does not meet the 

criteria under paragraph (c)(3) of this 

section, the Federal agency or DHHL 

must respond in writing under 

paragraph (c)(4) and may proceed with 

transfer or reinterment under paragraph 

(d)(3) of this section. 

(3) Step 3—Submit a notice of 

proposed transfer or reinterment. No 

later than 30 days after agreeing to 

transfer or deciding to reinter the 

human remains or cultural items, the 

Federal agency or DHHL must submit a 

notice of proposed transfer or 

reinterment. 

(i) A notice of proposed transfer or 

reinterment must be sent to any 

consulting parties and to the Manager, 

National NAGPRA Program, for 

publication in the Federal Register. 

(ii) A notice of proposed transfer or 

reinterment must conform to the 

mandatory format of the Federal 

Register and include: 

(A) An abstract of the information in 

the list of unclaimed human remains or 

cultural items under paragraph (d)(1)(ii) 

of this section; 

(B) The Indian Tribe or Native 

Hawaiian organization requesting 

transfer of the human remains or 

cultural items or a statement that the 

Federal agency or DHHL agrees to 

reinter the human remains or cultural 

items; 

(C) The name, phone number, email 

address, and mailing address of the 

appropriate official for the Federal 

agency or DHHL who is responsible for 

receiving claims for disposition; and 

(D) The date (to be calculated by the 

Federal Register 30 days from the date 

of publication) after which the Federal 

agency or DHHL may proceed with the 

transfer or reinterment of the human 

remains or cultural items. 

(iii) No later than 21 days after 

receiving a notice of proposed transfer 

or reinterment, the Manager, National 

NAGPRA Program, must: 

(A) Approve for publication in the 

Federal Register any submission that 

conforms to the requirements under 

paragraph (d)(3)(ii) of this section; or 

(B) Return to the Federal agency or 

DHHL any submission that does not 

conform to the requirements under 

paragraph (d)(3)(ii) of this section. No 

later than 14 days after the submission 

is returned, the Federal agency or DHHL 

must resubmit the notice of proposed 

transfer or reinterment. 

(4) Step 4—Transfer or reinter the 

human remains or cultural items. No 

earlier than 30 days and no later than 90 

days after publication of a notice of 

proposed transfer or reinterment, the 

Federal agency or DHHL must transfer 

or reinter the human remains or cultural 

items and send a written statement to 

the Manager, National NAGPRA 

Program, that the transfer or reinterment 

is complete. 

(i) After transferring or reinterring, the 

Federal agency or DHHL must: 

(A) Document the transfer or 

reinterment of the human remains or 

cultural items, and 

(B) Protect sensitive information 

about the human remains or cultural 

items from disclosure to the general 

public to the extent consistent with 

applicable law. 

(ii) After transfer or reinterment 

occurs, nothing in the Act or this part: 

(A) Limits the authority of the Federal 

agency or DHHL to enter into any 

agreement with the requestor 

concerning the human remains or 

cultural items; 

(B) Limits any procedural or 

substantive right which may otherwise 

be secured to the lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization; or 

(C) Prevents the governing body of an 

Indian Tribe or Native Hawaiian 

organization from expressly 

relinquishing its ownership or control of 

human remains, funerary objects, or 

sacred objects. 

Subpart C—Repatriation of Human 

Remains or Cultural Items by 

Museums or Federal Agencies 

§ 10.8 General. 

Each museum and Federal agency that 

has possession or control of a holding or 

collection that may contain human 

remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

must comply with the requirements of 

this subpart, regardless of the physical 

location of the holding or collection. 


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Each museum and Federal agency must 

identify one or more authorized 

representatives who are responsible for 

carrying out the requirements of this 

subpart. 

(a) Museum holding or collection. A 

museum must comply with this subpart 

for any holding or collection under its 

possession or control that may contain 

human remains or cultural items, 

including a new holding or collection or 

a previously lost or previously unknown 

holding or collection. 

(1) A museum must determine 

whether it has sufficient interest in a 

holding or collection to constitute 

possession or control on a case-by-case 

basis given the relevant information 

about the holding or collection. 

(i) A museum may have custody of a 

holding or collection but not possession 

or control. In general, custody of a 

holding or collection through a loan, 

lease, license, bailment, or other similar 

arrangement is not sufficient interest to 

constitute possession or control, which 

resides with the loaning, leasing, 

licensing, bailing, or otherwise 

transferring museum or Federal agency. 

(ii) If a museum has custody of a 

holding or collection, the museum may 

be required to report the holding or 

collection under paragraphs (c) or (d) of 

this section. 

(2) Any museum that sends a 

repatriation statement for human 

remains or cultural items or that 

transfers or reinters human remains or 

associated funerary objects in good faith 

under this subpart 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 the Act or this part. 

(b) Federal agency holding or 

collection. A Federal agency must 

comply with this subpart for any 

holding or collection in its possession or 

control that may contain human 

remains or cultural items, including a 

previously lost or previously unknown 

holding or collection. 

(1) A Federal agency must determine, 

given the relevant information, if a 

holding or collection: 

(i) Was in its possession or control on 

or before November 16, 1990; or 

(ii) Came into its possession or control 

after November 16, 1990, and was 

removed from: 

(A) An unknown location; or 

(B) Lands that are neither Federal nor 

Tribal lands as defined in this part. 

(2) A Federal agency may have 

custody of a holding or collection that 

was removed from Federal or Tribal 

lands after November 16, 1990, and 

must comply with § 10.7(c) of this part. 

(c) Museums with custody of a 

Federal agency holding or collection. No 

later than January 13, 2025, each 

museum that has custody of a Federal 

agency holding or collection that may 

contain Native American human 

remains or cultural items must submit a 

statement describing that holding or 

collection to the authorized 

representatives of the Federal agency 

most likely to have possession or 

control and to the Manager, National 

NAGPRA Program. 

(1) No later than 180 days following 

receipt of a museum’s statement, the 

Federal agency must respond to the 

museum and the Manager, National 

NAGPRA Program, with a written 

acknowledgement of one of the 

following: 

(i) The Federal agency has possession 

or control of the holding or collection; 

(ii) The Federal agency does not have 

possession or control of the holding or 

collection; or 

(iii) The Federal agency and the 

museum agree that they have joint 

possession or control of the holding or 

collection. 

(2) Failure to issue such a 

determination by the deadline 

constitutes acknowledgement that the 

Federal agency has possession or 

control. The Federal agency is 

responsible for the requirements of this 

subpart for any holdings or collections 

under its possession or control, 

regardless of the physical location of the 

holdings or collection. 

(d) Museums with custody of other 

holdings or collections. No later than 

January 13, 2025, each museum that has 

custody of a holding or collection that 

may contain Native American human 

remains or cultural items and for which 

it cannot identify any person, 

institution, State or local government 

agency, or Federal agency with 

possession or control of the holding or 

collection, must submit a statement 

describing that holding or collection to 

the Manager, National NAGPRA 

Program. 

(e) Contesting actions on repatriation. 

An affected party under § 10.12(c)(1)(ii) 

who wishes to contest actions made by 

museums or Federal agencies under this 

subpart is encouraged to do so through 

informal negotiations to achieve a fair 

resolution of the matter. Informal 

negotiations may include requesting the 

assistance of the Manager, National 

NAGPRA Program, or the Review 

Committee under § 10.12. 

§ 10.9 Repatriation of unassociated 

funerary objects, sacred objects, or objects 

of cultural patrimony. 

Each museum and Federal agency that 

has possession or control of a holding or 

collection that may contain an 

unassociated funerary object, sacred 

object, or object of cultural patrimony 

must follow the steps in this section. 

The purpose of this section is to provide 

general information about a holding or 

collection to lineal descendants, Indian 

Tribes, and Native Hawaiian 

organizations to facilitate repatriation. 

(a) Step 1—Compile a summary of a 

holding or collection. Based on the 

information available, a museum or 

Federal agency must compile a 

summary describing any holding or 

collection that may contain 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony. 

Depending on the scope of the holding 

or collection, a museum or Federal 

agency may organize its summary into 

sections based on geographical area, 

accession or catalog name or number, or 

other defining attributes. A museum or 

Federal agency must ensure the 

summary is comprehensive and covers 

any holding or collection relevant to 

this section. 

(1) A summary must include: 

(i) The estimated number and a 

general description of the holding or 

collection, including any potential 

cultural items; 

(ii) The geographical location 

(provenience) by county or State where 

the potential cultural items; 

(iii) The acquisition history 

(provenance) of the potential cultural 

items; 

(iv) Other information relevant for 

identifying: 

(A) A lineal descendant or an Indian 

Tribe or Native Hawaiian organization 

with cultural affiliation, and 

(B) Any object as an unassociated 

funerary object, sacred object, or object 

of cultural patrimony; and 

(v) The presence of any potentially 

hazardous substances used to treat any 

of the unassociated funerary objects, 

sacred objects, or objects of cultural 

patrimony, if known. 

(2) After January 12, 2024, a museum 

or Federal agency must submit a 

summary to the Manager, National 

NAGPRA Program, by the deadline in 

Table 1 of this paragraph (a)(2). 


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TABLE 1 TO § 10.9(a)(2)—DEADLINES FOR COMPILING A SUMMARY

If a museum or Federal agency . . . . . . a summary must be submitted . . . 

acquires possession or control of unassociated funerary objects, sacred objects, or objects of cultural patrimony.6 months after acquiring possession or control of the unassociated funerary objects, sacred objects, or objects of cultural patrimony. 

locates previously lost or unknown unassociated funerary objects, sacred objects, or objects of cultural patrimony.6 months after locating the unassociated funerary objects, sacred objects, or objects of cultural patrimony. 

receives Federal funds for the first time after January 12, 2024, and 

has possession or control of unassociated funerary objects, sacred 

objects, or objects of cultural patrimony.

3 years after receiving Federal funds for the first time after January 12, 

2024. 

(3) After January 12, 2024, when a 

holding or collection previously 

included in a summary is transferred to 

a museum or Federal agency, the 

museum or Federal agency acquiring 

possession or control of the holding or 

collection may rely on the previously 

compiled summary. 

(i) No later than 30 days after 

acquiring the holding or collection, the 

museum or Federal agency must send 

the previously compiled summary to the 

Manager, National NAGPRA Program. 

(ii) No later than the deadline in Table 

1 to paragraph (a)(2) of this section, the 

museum or Federal agency must 

compile a summary under paragraph 

(a)(1) of this section based on the 

previously compiled summary and 

additional information available. The 

museum or Federal agency must submit 

the summary to the Manager, National 

NAGPRA Program, and must initiate 

consultation under paragraph (b) of this 

section. 

(4) Prior to January 12, 2024, a 

museum or Federal agency must have 

submitted a summary to the Manager, 

National NAGPRA Program: 

(i) By November 16, 1993, for 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony 

subject to the Act; 

(ii) By October 20, 2007, for 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony 

acquired or located after November 16, 

1993; 

(iii) By April 20, 2010, for 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony 

in the possession or control of a 

museum that received Federal funds for 

the first time after November 16, 1993; 

(iv) After October 20, 2007, six 

months after acquiring or locating 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony; 

or 

(v) After April 20, 2010, three years 

after receiving Federal funds for the first 

time. 

(b) Step 2—Initiate consultation. No 

later than 30 days after compiling a 

summary, a museum or Federal agency 

must identify consulting parties based 

on information available and invite the 

parties to consult. 

(1) Consulting parties are any lineal 

descendant and any Indian Tribe or 

Native Hawaiian organization with 

potential cultural affiliation. 

(2) An invitation to consult must be 

in writing and must include: 

(i) The summary described in 

paragraph (a)(1) of this section; 

(ii) The names of all consulting 

parties; and 

(iii) A proposed method for 

consultation. 

(3) When a museum or Federal agency 

identifies a new consulting party under 

paragraph (b)(1) of this section, the 

museum or Federal agency must invite 

the party to consult. An invitation to 

consult under paragraph (b)(2) of this 

section must be sent: 

(i) No later than 30 days after 

identifying a new consulting party 

based on new information; or 

(ii) No later than six months after the 

addition of a Tribal entity to the list of 

federally recognized Indian Tribes 

published in the Federal Register 

pursuant to the Act of November 2, 1994 

(25 U.S.C. 5131). 

(c) Step 3—Consult on cultural items. 

A museum or Federal agency must 

respond to any consulting party, 

regardless of whether the party has 

received an invitation to consult. 

Consultation on an unassociated 

funerary object, sacred object, or object 

of cultural patrimony may continue 

until the museum or Federal agency 

sends a repatriation statement for that 

object to a requestor under paragraph (g) 

of this section. 

(1) In response to a consulting party, 

a museum or Federal agency must ask 

for the following information, if not 

already provided: 

(i) Preferences on the proposed 

timeline and method for consultation; 

and 

(ii) The name, phone number, email 

address, or mailing address for any 

authorized representative, traditional 

religious leader, and known lineal 

descendant who may participate in 

consultation. 

(2) Consultation must address 

identification of: 

(i) Lineal descendants; 

(ii) Indian Tribes or Native Hawaiian 

organizations with cultural affiliation; 

(iii) The types of objects that might be 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony; 

and 

(iv) The duty of care under § 10.1(d) 

for unassociated funerary objects, sacred 

objects, or objects of cultural patrimony. 

(3) The museum or Federal agency 

must prepare a record of consultation 

that describes the concurrence, 

disagreement, or nonresponse of the 

consulting parties to the identifications 

in paragraph (c)(2) of this section. 

(4) At any time before a museum or 

Federal agency sends a repatriation 

statement for an unassociated funerary 

object, sacred object, or object of 

cultural patrimony to a requestor under 

paragraph (g) of this section, the 

museum or Federal agency may receive 

a request from a consulting party for 

access to records, catalogues, relevant 

studies, or other pertinent data related 

to the holding or collection. A museum 

or Federal agency must provide access 

to the additional information in a 

reasonable manner and for the limited 

purpose of determining cultural 

affiliation, including the geographical 

location or acquisition history, of the 

unassociated funerary object, sacred 

object, or object of cultural patrimony. 

(d) Step 4—Receive and consider a 

request for repatriation. After a 

summary is compiled, any lineal 

descendant, Indian Tribe, or Native 

Hawaiian organization may submit to 

the museum or Federal agency a written 

request for repatriation of an 

unassociated funerary object, sacred 

object, or object of cultural patrimony. 

(1) A request for repatriation of an 

unassociated funerary object, sacred 

object, or object of cultural patrimony 

must be received by the museum or 

Federal agency before the museum or 

Federal agency sends a repatriation 

statement for that unassociated funerary 

object, sacred object, or object of 

cultural patrimony to a requestor under 

paragraph (g) of this section. A request 

for repatriation received by the museum 

or Federal agency before the deadline 


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for compiling a summary in table 1 to 

paragraph (a)(2) of this section is dated 

the same date as the deadline for 

compiling the summary. 

(2) Requests from two or more lineal 

descendants, Indian Tribes, or Native 

Hawaiian organizations who agree to 

joint repatriation of the unassociated 

funerary object, sacred object, or object 

of cultural patrimony are considered a 

single request and not competing 

requests. 

(3) A request for repatriation must 

satisfy the following criteria: 

(i) Each unassociated funerary object, 

sacred object, or object of cultural 

patrimony being requested meets the 

definition of an unassociated funerary 

object, a sacred object, or an object of 

cultural patrimony; 

(ii) The request is from a lineal 

descendant or an Indian Tribe or Native 

Hawaiian organization with cultural 

affiliation; and 

(iii) The request includes information 

to support a finding that the museum or 

Federal agency does not have right of 

possession to the unassociated funerary 

object, sacred object, or object of 

cultural patrimony. 

(e) Step 5—Respond to a request for 

repatriation. No later than 90 days after 

receiving a request for repatriation, a 

museum or Federal agency must send a 

written response to the requestor with a 

copy to any other consulting party. 

Using the information available, 

including relevant records, catalogs, 

existing studies, and the results of 

consultation, a museum or Federal 

agency must determine if the request for 

repatriation satisfies the criteria under 

paragraph (d) of this section. In the 

written response, the museum or 

Federal agency must state one of the 

following: 

(1) The request meets the criteria 

under paragraph (d) of this section. The 

museum or Federal agency must submit 

a notice of intended repatriation under 

paragraph (f) of this section. 

(2) The request does not meet the 

criteria under paragraph (d) of this 

section. The museum or Federal agency 

must provide a detailed explanation 

why the request does not meet the 

criteria and an opportunity for the 

requestor to provide additional 

information to meet the criteria. 

(3) The request meets the criteria 

under paragraph (d)(3)(i) and (ii) of this 

section, but the museum or Federal 

agency asserts a right of possession to 

the unassociated funerary object, sacred 

object, or object of cultural patrimony 

and refuses repatriation of the requested 

object to the requestor. The museum or 

Federal agency must provide 

information to prove that the museum 

or Federal agency has a right of 

possession to the unassociated funerary 

object, sacred object, or object of 

cultural patrimony. 

(4) The museum or Federal agency 

has received competing requests for 

repatriation of the unassociated funerary 

object, sacred object, or object of 

cultural patrimony that meet the criteria 

and must determine the most 

appropriate requestor using the 

procedures and deadlines under 

paragraph (h) of this section. 

(f) Step 6—Submit a notice of 

intended repatriation. No later than 30 

days after responding to a request for 

repatriation that meets the criteria, a 

museum or Federal agency must submit 

a notice of intended repatriation. The 

museum or Federal agency may include 

in a single notice any unassociated 

funerary objects, sacred objects, or 

objects of cultural patrimony with the 

same requestor. 

(1) A notice of intended repatriation 

must be sent to all requestors, any 

consulting parties, and to the Manager, 

National NAGPRA Program, for 

publication in the Federal Register. 

(2) A notice of intended repatriation 

must conform to the mandatory format 

of the Federal Register and include: 

(i) An abstract of the information 

compiled under paragraph (a) of this 

section; 

(ii) The total number and brief 

description of the unassociated funerary 

objects, sacred objects, or objects of 

cultural patrimony (counted separately 

or by lot); 

(iii) The lineal descendant (whose 

name may be withheld), Indian Tribe, or 

Native Hawaiian organization 

requesting repatriation of the 

unassociated funerary objects, sacred 

objects, or objects of cultural patrimony; 

(iv) The name, phone number, email 

address, and mailing address for the 

authorized representative of the 

museum or Federal agency who is 

responsible for receiving requests for 

repatriation; and 

(v) The date (to be calculated by the 

Federal Register 30 days from the date 

of publication) after which the museum 

or Federal agency may send a 

repatriation statement to the requestor. 

(3) No later than 21 days after 

receiving a notice of intended 

repatriation, the Manager, National 

NAGPRA Program, must: 

(i) Approve for publication in the 

Federal Register any submission that 

conforms to the requirements under 

paragraph (f)(2) of this section; or 

(ii) Return to the museum or Federal 

agency any submission that does not 

conform to the requirements under 

paragraph (f)(2) of this section. No later 

than 14 days after the submission is 

returned, the museum or Federal agency 

must resubmit the notice of intended 

repatriation. 

(5) At any time before sending a 

repatriation statement for an 

unassociated funerary object, sacred 

object, or object of cultural patrimony 

under paragraph (g) of this section, the 

museum or Federal agency may receive 

additional, competing requests for 

repatriation of that object that meet the 

criteria under paragraph (d) of this 

section. The museum or Federal agency 

must determine the most appropriate 

requestor using the procedures and 

deadlines under paragraph (h) of this 

section. 

(g) Step 7—Repatriation of the 

unassociated funerary object, sacred 

object, or object of cultural patrimony. 

No earlier than 30 days and no later 

than 90 days after publication of a 

notice of intended repatriation, a 

museum or Federal agency must send a 

written repatriation statement to the 

requestor and a copy to the Manager, 

National NAGPRA Program. In a 

repatriation statement, a museum or 

Federal agency must relinquish 

possession or control of the 

unassociated funerary object, sacred 

object, or object of cultural patrimony to 

the lineal descendant, Indian Tribe, or 

Native Hawaiian organization. In the 

case of joint requests for repatriation, a 

repatriation statement must identify and 

be sent to all requestors. 

(1) After sending a repatriation 

statement, the museum or Federal 

agency must: 

(i) Consult with the requestor on 

custody and physical transfer; 

(ii) Document any physical transfer; 

and 

(iii) Protect sensitive information, as 

identified by the requestor, from 

disclosure to the general public to the 

extent consistent with applicable law. 

(2) After a repatriation statement is 

sent, nothing in the Act or this part 

limits the authority of the museum or 

Federal agency to enter into any 

agreement with the requestor 

concerning the unassociated funerary 

object, sacred object, or object of 

cultural patrimony. 

(h) Evaluating competing requests for 

repatriation. At any time before sending 

a repatriation statement for an 

unassociated funerary object, sacred 

object, or object of cultural patrimony 

under paragraph (g) of this section, a 

museum or Federal agency may receive 

additional, competing requests for 

repatriation of that object that meet the 

criteria under paragraph (d) of this 

section. The museum or Federal agency 


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must determine the most appropriate 

requestor using this paragraph. 

(1) For an unassociated funerary 

object or sacred object, in the following 

priority order, the most appropriate 

requestor is: 

(i) The lineal descendant, if any; or 

(ii) The Indian Tribe or Native 

Hawaiian organization with the closest 

cultural affiliation according to the 

priority order at § 10.3(e) of this part. 

(2) For an object of cultural 

patrimony, the most appropriate 

requestor is the Indian Tribe or Native 

Hawaiian organization with the closest 

cultural affiliation according to the 

priority order at § 10.3(e) of this part. 

(3) No later than 14 days after 

receiving a competing request, a 

museum or Federal agency must send a 

written letter to each requestor 

identifying all requestors and the date 

each request was received. In response, 

the requestors may provide additional 

information to show by a preponderance 

of the evidence that the requestor has a 

stronger relationship of shared group 

identity to the cultural items. 

(4) No later than 180 days after 

informing the requestors of competing 

requests, a museum or Federal agency 

must send a written determination to 

each requestor and the Manager, 

National NAGPRA Program. The 

determination must be one of the 

following: 

(i) The most appropriate requestor has 

been determined and the competing 

requests were received before the 

publication of a notice of intended 

repatriation. The museum or Federal 

agency must: 

(A) Identify the most appropriate 

requestor and explain how the 

determination was made; 

(B) Submit a notice of intended 

repatriation in accordance with 

paragraph (f) of this section no later 

than 30 days after sending the 

determination; and 

(C) No earlier than 30 days and no 

later than 90 days after publication of 

the notice of intended repatriation, the 

museum or Federal agency must send a 

repatriation statement to the most 

appropriate requestor under paragraph 

(g) of this section; 

(ii) The most appropriate requestor 

has been determined and a notice of 

intended repatriation was previously 

published. The museum or Federal 

agency must: 

(A) Identify the most appropriate 

requestor and explain how the 

determination was made; and 

(B) No earlier than 30 days and no 

later than 90 days after sending a 

determination of the most appropriate 

requestor, the museum or Federal 

agency must send a repatriation 

statement to the most appropriate 

requestor under paragraph (g) of this 

section; or 

(iii) The most appropriate requestor 

cannot be determined, and repatriation 

is stayed under paragraph (i)(2) of this 

section. The museum or Federal agency 

must briefly describe the information 

considered and explain how the 

determination was made. 

(i) Stay of repatriation. Repatriation 

under paragraph (g) of this section is 

stayed if: 

(1) A court of competent jurisdiction 

has enjoined the repatriation. When 

there is a final resolution of the legal 

case or controversy in favor of a 

requestor, the museum or Federal 

agency must: 

(i) No later than 14 days after a 

resolution, send a written statement of 

the resolution to each requestor and the 

Manager, National NAGPRA Program; 

(ii) No earlier than 30 days and no 

later than 90 days after sending the 

written statement, the museum or 

Federal agency must send a repatriation 

statement to the requestor under 

paragraph (g) of this section, unless a 

court of competent jurisdiction directs 

otherwise. 

(2) The museum or Federal agency 

has received competing requests for 

repatriation and, after complying with 

paragraph (h) of this section, cannot 

determine the most appropriate 

requestor. When a most appropriate 

requestor is determined by an agreement 

between the parties, binding arbitration, 

or means of resolution other than 

through a court of competent 

jurisdiction, the museum or Federal 

agency must: 

(i) No later than 14 days after a 

resolution, send a written determination 

to each requestor and the Manager, 

National NAGPRA Program; 

(ii) No earlier than 30 days and no 

later than 90 days after sending the 

determination, the museum or Federal 

agency must send a repatriation 

statement to the requestor under 

paragraph (g) of this section. 

(3) Before the publication of a notice 

of intended repatriation under 

paragraph (f) of this section, the 

museum or Federal agency has both 

requested and received the Assistant 

Secretary’s written concurrence that the 

unassociated funerary object, sacred 

object, or object of cultural patrimony is 

indispensable for completion of a 

specific scientific study, the outcome of 

which is of major benefit to the people 

of the United States. 

(i) To request the Assistant Secretary’s 

concurrence, the museum or Federal 

agency must send to the Manager, 

National NAGPRA Program, a written 

request of no more than 10 doublespaced pages. The written request must: 

(A) Be on the letterhead of the 

requesting museum or Federal agency 

and be signed by an authorized 

representative; 

(B) Describe the specific scientific 

study, the date on which the study 

commenced, and how the study is of 

major benefit to the people of the United 

States; 

(C) Explain why retention of the 

unassociated funerary object, sacred 

object, or object of cultural patrimony is 

indispensable for completion of the 

study; 

(D) Describe the steps required to 

complete the study, including any 

destructive analysis, and provide a 

completion schedule and completion 

date; 

(E) Provide the position titles of the 

persons responsible for each step in the 

schedule; 

(F) Affirm that the study has in place 

the requisite funding; and 

(G) Provide written documentation 

showing free, prior, and informed 

consent from lineal descendants, Indian 

Tribes, or Native Hawaiian 

organizations to the study. 

(ii) In response to the request, the 

Assistant Secretary must: 

(A) Consult with lineal descendants, 

Indian Tribes, or Native Hawaiian 

organizations that consented to the 

study; 

(B) Send a written determination of 

concurrence or denial to the museum or 

Federal agency with a copy to the 

consulting parties; and 

(C) If the Assistant Secretary concurs, 

specify in the written determination the 

date by which the scientific study must 

be completed. 

(iii) No later than 30 days after the 

completion date in the Assistant 

Secretary’s determination, the museum 

or Federal agency must submit a notice 

of intended repatriation in accordance 

with paragraph (f) of this section. 

(iv) No earlier than 30 days and no 

later than 90 days after publication of 

the notice of intended repatriation, the 

museum or Federal agency must send a 

repatriation statement to the requestor 

under paragraph (g) of this section. 

§ 10.10 Repatriation of human remains or 

associated funerary objects. 

Each museum and Federal agency that 

has possession or control of a holding or 

collection that may contain human 

remains or associated funerary objects 

must follow the steps in this section. 

The purpose of this section is to provide 

notice of determinations, following 

consultation, about human remains or 


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associated funerary objects to lineal 

descendants, Indian Tribes, and Native 

Hawaiian organizations to facilitate 

repatriation. 

(a) Step 1—Compile an itemized list 

of any human remains and associated 

funerary objects. Based on information 

available, a museum or Federal agency 

must compile a simple itemized list of 

any human remains and associated 

funerary objects in a holding or 

collection. Depending on the scope of 

the holding or collection, a museum or 

Federal agency may organize its 

itemized list into sections based on 

geographical area, accession or catalog 

name or number, or other defining 

attributes. A museum or Federal agency 

must ensure the itemized list is 

comprehensive and covers all holdings 

or collections relevant to this section. 

The simple itemized list must include: 

(1) The number of individuals 

identified in a reasonable manner based 

on the information available. No 

additional study or analysis is required 

to identify the number of individuals. If 

human remains are in a holding or 

collection, the number of individuals is 

at least one; 

(2) The number of associated funerary 

objects and types of objects (counted 

separately or by lot); 

(3) The geographical location 

(provenience) by county or State where 

the human remains or associated 

funerary objects were removed; 

(4) The acquisition history 

(provenance) of the human remains or 

associated funerary objects; 

(5) Other information available for 

identifying a lineal descendant or an 

Indian Tribe or Native Hawaiian 

organization with cultural affiliation; 

and 

(6) The presence of any potentially 

hazardous substances used to treat any 

of the human remains or associated 

funerary objects, if known. 

(b) Step 2—Initiate consultation. As 

soon as possible after compiling an 

itemized list, a museum or Federal 

agency must identify consulting parties 

based on information available and 

invite the parties to consult. 

(1) Consulting parties are any lineal 

descendant and any Indian Tribe or 

Native Hawaiian organization with 

potential cultural affiliation. 

(2) An invitation to consult must be 

in writing and must include: 

(i) The itemized list described in 

paragraph (a) of this section; 

(ii) The names of all consulting 

parties; and 

(iii) A proposed timeline and method 

for consultation. 

(3) When a museum or Federal agency 

identifies a new consulting party under 

paragraph (b)(1) of this section, the 

museum or Federal agency must invite 

the party to consult. An invitation to 

consult under paragraph (b)(2) of this 

section must be sent: 

(i) No later than 30 days after 

identifying a new consulting party 

based on new information; or 

(ii) No later than two years after the 

addition of a Tribal entity to the list of 

federally recognized Indian Tribes 

published in the Federal Register 

pursuant to the Act of November 2, 1994 

(25 U.S.C. 5131). 

(c) Step 3—Consult on human 

remains or associated funerary objects. 

A museum or Federal agency must 

respond to any consulting party, 

regardless of whether the party has 

received an invitation to consult. 

Consultation on human remains or 

associated funerary objects may 

continue until the museum or Federal 

agency sends a repatriation statement 

for those human remains or associated 

funerary objects to a requestor under 

paragraph (h) of this section. 

(1) In the response to a consulting 

party, a museum or Federal agency must 

ask for the following information, if not 

already provided: 

(i) Preferences on the proposed 

timeline and method for consultation; 

and 

(ii) The name, phone number, email 

address, or mailing address for any 

authorized representative, traditional 

religious leader, and known lineal 

descendant who may participate in 

consultation. 

(2) Consultation must address 

identification of: 

(i) Lineal descendants; 

(ii) Indian Tribes or Native Hawaiian 

organizations with cultural affiliation; 

(iii) The types of objects that might be 

associated funerary objects, including 

any objects that were made exclusively 

for burial purposes or to contain human 

remains; and 

(iv) The duty of care under § 10.1(d) 

for human remains or associated 

funerary objects. 

(3) The museum or Federal agency 

must prepare a record of consultation 

that describes the concurrence, 

disagreement, or nonresponse of the 

consulting parties to the identifications 

in paragraph (c)(2) of this section. 

(4) At any time before the museum or 

Federal agency sends a repatriation 

statement for human remains or 

associated funerary objects to a 

requestor under paragraph (h) of this 

section, a museum or Federal agency 

may receive a request from a consulting 

party for access to records, catalogues, 

relevant studies, or other pertinent data 

related to those human remains or 

associated funerary objects. A museum 

or Federal agency must provide access 

to the additional information in a 

reasonable manner and for the limited 

purpose of determining cultural 

affiliation, including the geographical 

location or acquisition history, of the 

human remains or associated funerary 

objects. 

(d) Step 4—Complete an inventory of 

human remains or associated funerary 

objects. Based on information available 

and the results of consultation, a 

museum or Federal agency must submit 

to all consulting parties and the 

Manager, National NAGPRA Program, 

an inventory of any human remains and 

associated funerary objects in the 

holding or collection. 

(1) An inventory must include: 

(i) The names of all consulting parties 

and dates of consultation; 

(ii) The information, updated as 

appropriate, from the itemized list 

compiled under paragraph (a) of this 

section; 

(iii) For each entry in the itemized 

list, a determination identifying one of 

the following: 

(A) A known lineal descendant 

(whose name may be withheld); 

(B) The Indian Tribe or Native 

Hawaiian organization with cultural 

affiliation that is clearly identified by 

the information available about the 

human remains or associated funerary 

objects; 

(C) The Indian Tribe or Native 

Hawaiian organization with cultural 

affiliation that is reasonably identified 

by the geographical location or 

acquisition history of the human 

remains or associated funerary objects; 

or 

(D) No lineal descendant or any 

Indian Tribe or Native Hawaiian 

organization with cultural affiliation can 

be clearly or reasonably identified. The 

inventory must briefly describe the 

information considered under § 10.3(a) 

of this part and the criteria identified 

under § 10.3(b) of this part to explain 

how the determination was made. 

(2) After January 12, 2024, a museum 

or Federal agency must submit an 

inventory to all consulting parties and 

the Manager, National NAGPRA 

Program, by the deadline in table 1 of 

the paragraph (d)(2). 


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TABLE 1 TO § 10.10(d)(2)—DEADLINES FOR COMPLETING AN INVENTORY

If a museum or Federal agency . . . an inventory must be submitted . . . 

acquires possession or control of human remains or associated funerary objects.2 years after acquiring possession or control of human remains or associated funerary objects. 

locates previously lost or unknown human remains or associated funerary objects.2 years after locating the human remains or associated funerary objects. 

receives Federal funds for the first time after January 12, 2024, and 

has possession or control of human remains or associated funerary 

objects.

5 years after receiving Federal funds for the first time after January 12, 

2024. 

(3) No later than January 10, 2029, for 

any human remains or associated 

funerary objects listed in an inventory 

but not published in a notice of 

inventory completion prior to January 

12, 2024, a museum or Federal agency 

must: 

(i) Initiate consultation as described 

under paragraph (b) of this section; 

(ii) Consult with consulting parties as 

described under paragraph (c) of this 

section; 

(iii) Update its inventory under 

paragraph (d)(1) of this section and 

ensure the inventory is comprehensive 

and covers all holdings or collections 

relevant to this section; and 

(iv) Submit an updated inventory to 

all consulting parties and the Manager, 

National NAGPRA Program. 

(4) After January 12, 2024, when a 

holding or collection previously 

included in an inventory is transferred 

to a museum or Federal Agency, subject 

to the limitations in 18 U.S.C. 1170(a), 

the museum or Federal agency acquiring 

possession or control of the holding or 

collection may rely on the previously 

completed or updated inventory. 

(i) No later than 30 days after 

acquiring the holding or collection, the 

museum or Federal agency must send 

the previously completed or updated 

inventory to initiate consultation under 

paragraph (b) of this section and notify 

the Manager, National NAGPRA 

Program. 

(ii) No later than the deadline in Table 

1 to paragraph (d)(2) of this section, the 

museum or Federal agency must 

complete an inventory under paragraphs 

(d)(1) and (d)(2) of this section based on 

the previously completed or updated 

inventory, additional information 

available, and the results of 

consultation. 

(5) Any museum may request an 

extension to complete or update its 

inventory if it has made a good faith 

effort but is unable to do so by the 

appropriate deadline. A request for an 

extension must be submitted to the 

Manager, National NAGPRA Program, 

before the appropriate deadline. The 

Manager, National NAGPRA Program 

must publish in the Federal Register a 

list of any museum who request an 

extension and the Assistant Secretary’s 

determination on the request. A request 

for an extension must include: 

(i) Information showing the initiation 

of consultation; 

(ii) The names of all consulting 

parties and consent to the extension 

request from a majority of consulting 

parties, evidenced by a signed 

agreement or official correspondence to 

the museum; 

(iii) The estimated number of human 

remains and associated funerary objects 

in the holding or collection; and 

(iv) A written plan for completing or 

updating the inventory, which includes, 

at minimum: 

(A) The specific steps required to 

complete or update the inventory; 

(B) A schedule for completing each 

step and estimated inventory 

completion or update date; 

(C) Position titles of the persons 

responsible for each step in the 

schedule; and 

(D) A proposal to obtain any requisite 

funding needed to complete or update 

the inventory. 

(6) Prior to January 12, 2024, a 

museum or Federal agency must have 

submitted an inventory to all consulting 

parties and the Manager, National 

NAGPRA Program: 

(i) By November 16, 1995, for human 

remains or associated funerary objects 

subject to the Act; 

(ii) By April 20, 2009, for human 

remains or associated funerary objects 

acquired or located after November 16, 

1995; 

(iii) By April 20, 2012, for human 

remains or associated funerary objects 

in the possession or control of a 

museum that received Federal funds for 

the first time after November 16, 1995; 

(iv) After April 20, 2009, two years 

after acquiring or locating the human 

remains or associated funerary objects; 

or 

(v) After April 20, 2012, five years 

after receiving Federal funds for the first 

time after April 20, 2012. 

(e) Step 5—Submit a notice of 

inventory completion. No later than six 

months after completing or updating an 

inventory under paragraph (d) of this 

section, a museum or Federal agency 

must submit a notice of inventory 

completion for all human remains or 

associated funerary objects in the 

inventory. The museum or Federal 

agency may include in a single notice 

any human remains or associated 

funerary objects having the same 

determination under paragraph 

(d)(1)(iii) of this section. 

(1) A notice of inventory completion 

must be sent to any consulting parties 

and to the Manager, National NAGPRA 

Program, for publication in the Federal 

Register. 

(2) A notice of inventory completion 

must conform to the mandatory format 

of the Federal Register and include the 

following for all human remains or 

associated funerary objects in the notice: 

(i) An abstract of the information 

compiled under paragraph (d)(1)(ii) of 

this section; 

(ii) The determination under 

paragraph (d)(1)(iii) of this section; 

(iii) The total number of individuals 

and associated funerary objects (counted 

separately or by lot); 

(iv) The name, phone number, email 

address, and mailing address for the 

authorized representative of the 

museum or Federal agency who is 

responsible for receiving requests for 

repatriation; and 

(v) The date (to be calculated by the 

Federal Register 30 days from the date 

of publication) after which the museum 

or Federal agency may send a 

repatriation statement to a requestor. 

(3) No later than 21 days after 

receiving a notice of inventory 

completion, the Manager, National 

NAGPRA Program, must: 

(i) Approve for publication in the 

Federal Register any submission that 

conforms to the requirements under 

paragraph (e)(2) of this section; or 

(ii) Return to the museum or Federal 

agency any submission that does not 

conform to the requirements under 

paragraph (e)(2) of this section. No later 

than 14 days after the submission is 

returned, the museum or Federal agency 

must resubmit the notice of inventory 

completion. 


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(f) Step 6—Receive and consider a 

request for repatriation. After 

publication of a notice of inventory 

completion in the Federal Register, any 

lineal descendant, Indian Tribe, or 

Native Hawaiian organization may 

submit to the museum or Federal agency 

a written request for repatriation of 

human remains or associated funerary 

objects. 

(1) A request for repatriation of 

human remains or associated funerary 

objects must be received by the museum 

or Federal agency before the museum or 

Federal agency sends a repatriation 

statement for those human remains or 

associated funerary objects under 

paragraph (h) of this section. A request 

for repatriation received by the museum 

or Federal agency before the publication 

of the notice of inventory completion is 

dated the same date the notice was 

published. 

(2) Requests from two or more lineal 

descendants, Indian Tribes, or Native 

Hawaiian organizations who agree to 

joint repatriation of the human remains 

or associated funerary objects are 

considered a single request and not 

competing requests. 

(3) A request for repatriation must 

satisfy one of the following criteria: 

(i) The requestor is identified in the 

notice of inventory completion, or 

(ii) The requestor is not identified in 

the notice of inventory completion, and 

the request shows, by a preponderance 

of the evidence, that the requestor is a 

lineal descendant or an Indian Tribe or 

Native Hawaiian organization with 

cultural affiliation. 

(g) Step 7—Respond to a request for 

repatriation. No earlier than 30 days 

after publication of a notice of inventory 

completion but no later than 90 days 

after receiving a request for repatriation, 

a museum or Federal agency must send 

a written response to the requestor with 

a copy to any other party identified in 

the notice of inventory completion. 

Using the information available, 

including relevant records, catalogs, 

existing studies, and the results of 

consultation, a museum or Federal 

agency must determine if the request 

satisfies the criteria under paragraph (f) 

of this section. 

(1) In the written response, the 

museum or Federal agency must state 

one of the following: 

(i) The request meets the criteria 

under paragraph (f) of this section. The 

museum or Federal agency must send a 

repatriation statement to the requestor 

under paragraph (h) of this section, 

unless the museum or Federal agency 

receives additional, competing requests 

for repatriation. 

(ii) The request does not meet the 

criteria under paragraph (f) of this 

section. The museum or Federal agency 

must provide a detailed explanation 

why the request does not meet the 

criteria, and an opportunity for the 

requestor to provide additional 

information to meet the criteria. 

(iii) The museum or Federal agency 

has received competing requests for 

repatriation that meet the criteria and 

must determine the most appropriate 

requestor using the procedures and 

deadlines under paragraph (i) of this 

section. 

(2) At any time before sending a 

repatriation statement for human 

remains or associated funerary objects 

under paragraph (h) of this section, the 

museum or Federal agency may receive 

additional, competing requests for 

repatriation of those human remains or 

associated funerary objects that meet the 

criteria under paragraph (f) of this 

section. The museum or Federal agency 

must determine the most appropriate 

requestor using the procedures and 

deadlines under paragraph (i) of this 

section. 

(h) Step 8—Repatriation of the human 

remains or associated funerary objects. 

No later than 90 days after responding 

to a request for repatriation that meets 

the criteria, a museum or Federal agency 

must send a written repatriation 

statement to the requestor and a copy to 

the Manager, National NAGPRA 

Program. In a repatriation statement, a 

museum or Federal agency must 

relinquish possession or control of the 

human remains or associated funerary 

objects to a lineal descendant, Indian 

Tribe, or Native Hawaiian organization. 

In the case of joint requests for 

repatriation, a repatriation statement 

must identify and be sent to all 

requestors. 

(1) After sending a repatriation 

statement, the museum or Federal 

agency must: 

(i) Consult with the requestor on 

custody and physical transfer, 

(ii) Document any physical transfer, 

and 

(iii) Protect sensitive information, as 

identified by the requestor, from 

disclosure to the general public to the 

extent consistent with applicable law. 

(2) After a repatriation statement is 

sent, nothing in the Act or this part 

limits the authority of the museum or 

Federal agency to enter into any 

agreement with the requestor 

concerning the human remains or 

associated funerary objects. 

(i) Evaluating competing requests for 

repatriation. At any time before sending 

a repatriation statement for human 

remains or associated funerary objects 

under paragraph (h) of this section, a 

museum or Federal agency may receive 

additional, competing requests for 

repatriation of those human remains or 

associated funerary objects that meets 

the criteria under paragraph (f) of this 

section. The museum or Federal agency 

must determine the most appropriate 

requestor using this paragraph. 

(1) In the following priority order, the 

most appropriate requestor is: 

(i) The known lineal descendant, if 

any; or 

(ii) The Indian Tribe or Native 

Hawaiian organization with the closest 

cultural affiliation according to the 

priority order at § 10.3(e) of this part. 

(2) No later than 14 days after 

receiving a competing request, a 

museum or Federal agency must send a 

written letter to each requestor 

identifying all requestors and the date 

each request for repatriation was 

received. In response, requestors may 

provide additional information to show 

by a preponderance of the evidence that 

the requestor has a stronger relationship 

of shared group identity to the human 

remains or associated funerary objects. 

(3) No later than 180 days after 

informing the requestors of competing 

requests, a museum or Federal agency 

must send a written determination to 

each requestor and the Manager, 

National NAGPRA Program. The 

determination must be one of the 

following: 

(i) The most appropriate requestor has 

been determined. The museum or 

Federal agency must: 

(A) Identify the most appropriate 

requestor and explain how the 

determination was made; 

(B) No earlier than 30 days and no 

later than 90 days after sending a 

determination of the most appropriate 

requestor, the museum or Federal 

agency must send a repatriation 

statement to the most appropriate 

requestor under paragraph (h) of this 

section. 

(ii) The most appropriate requestor 

cannot be determined, and repatriation 

is stayed under paragraph (j)(2) of this 

section. The museum or Federal agency 

must briefly describe the information 

considered and explain how the 

determination was made. 

(j) Stay of repatriation. Repatriation 

under paragraph (h) of this section is 

stayed if: 

(1) A court of competent jurisdiction 

has enjoined the repatriation. When 

there is a final resolution of the legal 

case or controversy in favor of a 

requestor, the museum or Federal 

agency must: 

(i) No later than 14 days after a 

resolution, send a written statement of 


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the resolution to each requestor and the 

Manager, National NAGPRA Program; 

(ii) No earlier than 30 days and no 

later than 90 days after sending the 

written statement, the museum or 

Federal agency must send a repatriation 

statement to the requestor under 

paragraph (h) of this section, unless a 

court of competent jurisdiction directs 

otherwise. 

(2) The museum or Federal agency 

has received competing requests for 

repatriation and, after complying with 

paragraph (i) of this section, cannot 

determine the most appropriate 

requestor. When a most appropriate 

requestor is determined by an agreement 

between the parties, binding arbitration, 

or means of resolution other than 

through a court of competent 

jurisdiction, the museum or Federal 

agency must: 

(i) No later than 14 days after a 

resolution, send a written determination 

to each requestor and the Manager, 

National NAGPRA Program; 

(ii) No earlier than 30 days and no 

later than 90 days after sending the 

determination, the museum or Federal 

agency must send a repatriation 

statement to the requestor under 

paragraph (h) of this section. 

(3) Before the publication of a notice 

of inventory completion under 

paragraph (e) of this section, the 

museum or Federal agency has both 

requested and received the Assistant 

Secretary’s written concurrence that the 

human remains or associated funerary 

objects are indispensable for completion 

of a specific scientific study, the 

outcome of which is of major benefit to 

the people of the United States. 

(i) To request the Assistant Secretary’s 

concurrence, the museum or Federal 

agency must send to the Manager, 

National NAGPRA Program, a written 

request of no more than 10 doublespaced pages. The written request must: 

(A) Be on the letterhead of the 

requesting museum or Federal agency 

and be signed by an authorized 

representative; 

(B) Describe the specific scientific 

study, the date on which the study 

commenced, and how the study is of 

major benefit to the people of the United 

States; 

(C) Explain why retention of the 

human remains or associated funerary 

objects is indispensable for completion 

of the study; 

(D) Describe the steps required to 

complete the study, including any 

destructive analysis, and provide a 

completion schedule and completion 

date; 

(E) Provide the position titles of the 

persons responsible for each step in the 

schedule; 

(F) Affirm that the study has in place 

the requisite funding; and 

(G) Provide written documentation 

showing free, prior, and informed 

consent from lineal descendants, Indian 

Tribes, or Native Hawaiian 

organizations to the study. 

(ii) In response to the request, the 

Assistant Secretary must: 

(A) Consult with lineal descendants, 

Indian Tribes, or Native Hawaiian 

organizations that consented to the 

study; 

(B) Send a written determination of 

concurrence or denial to the museum or 

Federal agency with a copy to the 

consulting parties; and 

(C) If the Assistant Secretary concurs, 

specify in the written determination the 

date by which the scientific study must 

be completed. 

(iii) No later than 30 days after the 

completion date in the Assistant 

Secretary’s concurrence, the museum or 

Federal agency must submit a notice of 

inventory completion in accordance 

with paragraph (e) of this section. 

(iv) No earlier than 30 days after 

publication of the notice of inventory 

completion and no later than 90 days 

after responding to a request for 

repatriation, the museum or Federal 

agency must send a repatriation 

statement to the requestor under 

paragraph (h) of this section. 

(k) Transfer or reinter human remains 

or associated funerary objects. For 

human remains or associated funerary 

objects with no lineal descendant or no 

Indian Tribe or Native Hawaiian 

organization with cultural affiliation, a 

museum or Federal agency, at its 

discretion, may agree to transfer or 

decide to reinter the human remains or 

associated funerary objects. The 

museum or Federal agency must ensure 

it has initiated consultation under 

paragraph (b) of this section before 

taking any of the following steps. 

(1) Step 1—Agree to transfer or decide 

to reinter. A museum or Federal agency 

may: 

(i) Agree in writing to transfer the 

human remains or associated funerary 

objects to an Indian Tribe or Native 

Hawaiian organization; 

(ii) Decide in writing to reinter the 

human remains or associated funerary 

objects according to applicable laws and 

policies; or 

(iii) Receive a request for repatriation 

of the human remains or associated 

funerary objects at any time before 

transfer or reinterment and must 

evaluate whether the request meets the 

criteria under paragraph (f) of this 

section. 

(A) If the request for repatriation 

meets the criteria under paragraph (f) of 

this section, the museum or Federal 

agency must respond in writing under 

paragraph (g) of this section and 

proceed with repatriation under 

paragraph (h) of this section. 

(B) If the request does not meet the 

criteria under paragraph (f) of this 

section, the museum or Federal agency 

must respond in writing under 

paragraph (g) of this section and may 

proceed with transfer or reinterment 

after publication of a notice. 

(2) Step 2—Submit a notice of 

proposed transfer or reinterment. No 

later than 30 days after agreeing to 

transfer or deciding to reinter the 

human remains or associated funerary 

objects, the museum or Federal agency 

must submit a notice of proposed 

transfer or reinterment. 

(i) A notice of proposed transfer or 

reinterment must be sent to all 

consulting parties and to the Manager, 

National NAGPRA Program, for 

publication in the Federal Register. 

(ii) A notice of proposed transfer or 

reinterment must conform to the 

mandatory format of the Federal 

Register and include: 

(A) An abstract of the information 

compiled under paragraph (d)(1)(ii) of 

this section; 

(B) The total number of individuals 

and associated funerary objects (counted 

separately or by lot); 

(C) The determination under 

paragraph (d)(1)(iii)(D) of this section 

that no lineal descendant or any Indian 

Tribe or Native Hawaiian organization 

with cultural affiliation can be clearly or 

reasonably identified. The notice must 

briefly describe the information 

considered and explain how the 

determination was made. 

(D) The names of all consulting 

parties identified under paragraph (b) of 

this section; 

(E) The Indian Tribe or Native 

Hawaiian organization requesting the 

human remains or associated funerary 

objects or a statement that the museum 

or Federal agency agrees to reinter the 

human remains or associated funerary 

objects; 

(F) The name, phone number, email 

address, and mailing address for the 

authorized representative of the 

museum or Federal agency who is 

responsible for receiving requests for 

repatriation; and 

(G) The date (to be calculated by the 

Federal Register 30 days from the date 

of publication) after which the museum 

or Federal agency may proceed with the 


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transfer or reinterment of the human 

remains or associated funerary objects. 

(iii) No later than 21 days after 

receiving a notice of proposed transfer 

or reinterment, the Manager, National 

NAGPRA Program, must: 

(A) Approve for publication in the 

Federal Register any submission that 

conforms to the requirements under 

paragraph (k)(2)(ii) of this section; or 

(B) Return to the museum or Federal 

agency any submission that does not 

conform to the requirements under 

paragraph (k)(2)(ii) of this section. No 

later than 14 days after the submission 

is returned, the museum or Federal 

agency must resubmit the notice of 

proposed transfer or reinterment. 

(3) Step 3—Transfer or reinter the 

human remains or associated funerary 

objects. No earlier than 30 days and no 

later than 90 days after publication of a 

notice of proposed transfer or 

reinterment, the museum or Federal 

agency must transfer or reinter the 

human remains or associated funerary 

objects and send a written statement to 

the Manager, National NAGPRA 

Program, that the transfer or reinterment 

is complete. 

(i) After transferring or reinterring, the 

museum or Federal agency must: 

(A) Document the transfer or 

reinterment of the human remains or 

associated funerary objects, and 

(B) Protect sensitive information from 

disclosure to the general public to the 

extent consistent with applicable law. 

(ii) After transfer or reinterment 

occurs, nothing in the Act or this part 

limits the authority of the museum or 

Federal agency to enter into any 

agreement with the requestor 

concerning the human remains or 

associated funerary objects. 

§ 10.11 Civil penalties. 

Any museum that fails to comply 

with the requirements of the Act or this 

subpart may be assessed a civil penalty 

by the Assistant Secretary. This section 

does not apply to Federal agencies, but 

a Federal agency’s failure to comply 

with the requirements of the Act or this 

part may be subject to other remedies 

under Federal law. Each instance of 

failure to comply constitutes a separate 

violation. The Assistant Secretary must 

serve the museum with a written notice 

of failure to comply under paragraph (d) 

of this section or a notice of assessment 

under paragraph (g) of this section by 

personal delivery with proof of delivery 

date, certified mail with return receipt, 

or private delivery service with proof of 

delivery date. 

(a) File an allegation. Any person may 

file an allegation of failure to comply by 

sending a written allegation to the 

Manager, National NAGPRA Program. 

Each allegation: 

(1) Must include the name and 

contact information (either a mailing 

address, telephone number, or email 

address) of the person alleging the 

failure to comply; 

(2) Must identify the specific 

provision or provisions of the Act or 

this subpart that the museum is alleged 

to have violated; 

(3) May enumerate the separate 

violations alleged, including facts to 

support the number of separate 

violations. The number of separate 

violations is determined by establishing 

relevant factors such as: 

(i) The number of lineal descendants, 

Indian Tribes, or Native Hawaiian 

organizations determined to be 

aggrieved by the failure to comply; or 

(ii) The number of individuals or the 

number of funerary objects, sacred 

objects, or objects of cultural patrimony 

involved in the failure to comply; 

(4) May include information showing 

that the museum has possession or 

control of human remains or cultural 

items involved in the alleged failure to 

comply; and 

(5) May include information showing 

that the museum receives Federal funds. 

(b) Respond to an allegation. No later 

than 90 days after receiving an 

allegation, the Assistant Secretary must 

determine if the allegation meets the 

requirements of paragraph (a) of this 

section and respond to the person 

alleging the failure to comply. 

(1) The Assistant Secretary may 

request any additional relevant 

information from the person making the 

allegation, the museum, or other parties. 

The Assistant Secretary may conduct 

any investigation that is necessary to 

determine whether an alleged failure to 

comply is substantiated. The Assistant 

Secretary may also investigate 

appropriate factors for justifying an 

increase or reduction to any penalty 

amount that may be calculated. 

(2) If the allegation meets the 

requirements of paragraph (a) of this 

section, the Assistant Secretary, after 

reviewing all relevant information, must 

determine one of the following for each 

alleged failure to comply: 

(i) The alleged failure to comply is 

substantiated, the number of separate 

violations is identified, and a civil 

penalty is an appropriate remedy. The 

Assistant Secretary must calculate the 

proposed penalty amount under 

paragraph (c) of this section and notify 

the museum under paragraph (d) of this 

section; 

(ii) The alleged failure to comply is 

substantiated, the number of separate 

violations is identified, but a civil 

penalty is not an appropriate remedy. 

The Assistant Secretary must notify the 

museum under paragraph (d) of this 

section; or 

(iii) The alleged failure to comply is 

unsubstantiated. The Assistant 

Secretary must send a written 

determination to the person making the 

allegation and to the museum. 

(c) Calculate the penalty amount. If 

the Assistant Secretary determines 

under paragraph (b)(2)(i) of this section 

that a civil penalty is an appropriate 

remedy for a substantiated failure to 

comply, the Assistant Secretary must 

calculate the amount of the penalty in 

accordance with this paragraph. The 

penalty for each separate violation must 

be calculated as follows: 

(1) The base penalty amount is 

$7,475, subject to annual adjustments 

based on inflation under the Federal 

Civil Penalties Inflation Adjustment Act 

Improvements Act of 2015 (Pub. L. 114– 

74). 

(2) The base penalty amount may be 

increased after considering: 

(i) The ceremonial or cultural value of 

the human remains or cultural items 

involved, as identified by any aggrieved 

lineal descendant, Indian Tribe, or 

Native Hawaiian organization; 

(ii) The archaeological, historical, or 

commercial value of the human remains 

or cultural items involved; 

(iii) The economic and non-economic 

damages suffered by any aggrieved 

lineal descendant, Indian Tribe, or 

Native Hawaiian organization, including 

expenditures by the aggrieved party to 

compel the museum to comply with the 

Act or this subpart; 

(iv) The number of prior violations by 

the museum that have occurred; or 

(v) Any other appropriate factor 

justifying an increase. 

(3) The base penalty amount may be 

reduced if: 

(i) The museum comes into 

compliance; 

(ii) The museum agrees to mitigate the 

violation in the form of an actual or an 

in-kind payment to an aggrieved lineal 

descendant, Indian Tribe, or Native 

Hawaiian organization; 

(iii) The penalty constitutes excessive 

punishment under the circumstances; 

(iv) The museum is unable to pay the 

full penalty and the museum has not 

previously been found to have failed to 

comply with the Act or this subpart. 

The museum has the burden of proving 

it is unable to pay by providing 

verifiable, complete, and accurate 

financial information to the Assistant 

Secretary. The Assistant Secretary may 

request that the museum provide such 

financial information that is adequate 

and relevant to evaluate the museum’s 


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financial condition, including the value 

of the museum’s cash and liquid assets; 

ability to borrow; net worth; liabilities; 

income tax returns; past, present, and 

future income; prior and anticipated 

profits; expected cash flow; and the 

museum’s ability to pay in installments 

over time. If the museum does not 

submit the requested financial 

information, the museum is presumed 

to have the ability to pay the civil 

penalty; or 

(v) Any other appropriate factor 

justifies a reduction. 

(d) Notify a museum of a failure to 

comply. If the Assistant Secretary 

determines under paragraph (b)(2)(i) or 

(b)(2)(ii) of this section that an alleged 

failure to comply is substantiated, the 

Assistant Secretary must serve the 

museum with a written notice of failure 

to comply and send a copy of the notice 

to each person alleging the failure to 

comply and any lineal descendant, 

Indian Tribe, or Native Hawaiian 

organization named in the notice of 

failure to comply. The notice of failure 

to comply must: 

(1) Provide a concise statement of the 

facts believed to show a failure to 

comply; 

(2) Specifically reference the 

provisions of the Act and this subpart 

with which the museum has failed to 

comply; 

(3) Include the proposed penalty 

amount calculated under paragraph (c) 

of this section; 

(4) Include, where appropriate, any 

initial proposal to reduce or increase the 

penalty amount or an explanation of the 

determination that a penalty is not an 

appropriate remedy; 

(5) Identify the options for responding 

to the notice of failure to comply under 

paragraph (e) of this section; and 

(6) Inform the museum that the 

Assistant Secretary may assess a daily 

penalty amount under paragraph (m)(1) 

of this section if the failure to comply 

continues after the date the final 

administrative decision of the Assistant 

Secretary takes effect. 

(e) Respond to a notice of failure to 

comply. No later than 45 days after 

receiving a notice of failure to comply, 

a museum may file a written response 

to the notice of failure to comply or take 

no action and await service of a notice 

of assessment under paragraph (g) of 

this section. A response which is not 

timely filed must not be considered. 

Any written response must be signed by 

an authorized representative of the 

museum and must be sent to the 

Assistant Secretary. In the written 

response, a museum may: 

(1) Seek an informal discussion of the 

failure to comply; 

(2) Request either or both of the 

following forms of relief, with a full 

explanation of the legal or factual basis 

for the requested relief: 

(i) That the Assistant Secretary 

reconsider the determination of a failure 

to comply, or 

(ii) That the Assistant Secretary 

reduce the proposed penalty amount; or 

(3) Accept the determination of a 

failure to comply and agree in writing, 

which constitutes an agreement between 

the Assistant Secretary and the 

museum, that the museum must: 

(i) Pay the proposed penalty amount, 

if any; 

(ii) Complete the mitigation required 

to reduce the penalty, if offered in the 

notice; and 

(iii) Waive any right to receive notice 

of assessment under paragraph (g) of 

this section and to request a hearing 

under paragraph (i) of this section. 

(f) Assess the civil penalty. After 

serving a notice of failure to comply, the 

Assistant Secretary may assess a civil 

penalty and must consider all available, 

relevant information related to the 

failure to comply, including information 

timely provided by the museum during 

any informal discussion or request for 

relief, furnished by another party, or 

produced upon the Assistant Secretary’s 

request. 

(1) The assessment of a civil penalty 

is made after the latter of: 

(i) The 45-day period for a response 

has expired and the museum has taken 

no action; 

(ii) Conclusion of informal discussion, 

if any; 

(iii) Review and consideration of a 

petition for relief, if any; or 

(iv) Failure to meet the terms of an 

agreement established under paragraph 

(e)(3) of this section. 

(2) If a petition for relief or informal 

discussion warrants a conclusion that 

no failure to comply has occurred, the 

Assistant Secretary must send written 

notification to the museum revoking the 

notice of failure to comply. No penalty 

is assessed. 

(g) Notify the museum of an 

assessment. If the Assistant Secretary 

determines to assess a civil penalty, the 

Assistant Secretary must serve the 

museum with a notice of assessment. 

Unless the museum seeks further 

administrative remedies under this 

section, the notice of assessment is the 

final administrative decision of the 

Assistant Secretary. The notice of 

assessment must: 

(1) Specifically reference the 

provisions of the Act or this subpart 

with which the museum has not 

complied; 

(2) Include the final amount of any 

penalty calculated under paragraph (c) 

of this section and the basis for 

determining the penalty amount; 

(3) Include, where appropriate, any 

increase or reduction to the penalty 

amount or an explanation of the 

determination that a penalty is not an 

appropriate remedy; 

(4) Include the daily penalty amount 

that the Assistant Secretary may assess 

under paragraph (m)(1) of this section if 

the failure to comply continues after the 

date the final administrative decision of 

the Assistant Secretary takes effect. The 

daily penalty amount for each 

continuing violation shall not exceed 

$1,496 per day, subject to annual 

adjustments based on inflation under 

the Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (Pub. L. 114–74); 

(5) Identify the options for responding 

to the notice of assessment under 

paragraph (h) of this section; and 

(6) Notify the museum that it has the 

right to seek judicial review of the final 

administrative decision of the Assistant 

Secretary only if it has exhausted all 

administrative remedies under this 

section, as set forth in paragraph (l) of 

this section. 

(h) Respond to an assessment. No 

later than 45 days after receiving a 

notice of assessment, a museum must do 

one of the following: 

(1) Accept the assessment and pay the 

penalty amount by means of a certified 

check made payable to the U.S. 

Treasurer, Washington, DC, sent to the 

Assistant Secretary. By paying the 

penalty amount, the museum waives the 

right to request a hearing under 

paragraph (i) of this section. 

(2) File a written request for a hearing 

under paragraph (i) of this section to 

contest the failure to comply, the 

penalty assessment, or both. If the 

museum does not file a written request 

for a hearing in 45 days, the museum 

waives the right to request a hearing 

under paragraph (i) of this section. 

(i) Request a hearing. The museum 

may file a written request for a hearing 

with the Departmental Cases Hearings 

Division (DCHD), Office of Hearings and 

Appeals (OHA), U.S. Department of the 

Interior, at the mailing address specified 

in the OHA Standing Orders on Contact 

Information, or by electronic means 

under the terms specified in the OHA 

Standing Orders on Electronic 

Transmission. A copy of the request 

must be served on the Solicitor of the 

Department of the Interior at the address 

specified in the OHA Standing Orders 

on Contact Information. The Standing 

Orders are available on the Department 

of the Interior OHA’s website at https:// 

www.doi.gov/oha. The request for 

hearing and any document filed 


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thereafter with the DCHD under 

paragraphs (i) or (j) of this section are 

subject to the rules that govern the 

method and effective date of filing and 

service under the subparts applicable to 

DCHD in 43 CFR part 4. The request for 

a hearing must: 

(1) Include a copy of the notice of 

failure to comply and the notice of 

assessment; 

(2) State the relief sought by the 

museum; and 

(3) Include the basis for challenging 

the facts used to determine the failure 

to comply or the penalty assessment. 

(j) Hearings. Upon receiving a request 

for a hearing, DCHD must assign an 

administrative law judge to the case and 

promptly give notice of the assignment 

to the parties. Thereafter, each filing 

must be addressed to the administrative 

law judge and a copy served on each 

opposing party or its counsel. 

(1) To the extent they are not 

inconsistent with this section, the rules 

in the subparts applicable to DCHD in 

43 CFR part 4 apply to the hearing 

process. 

(2) Subject to the provisions of 43 CFR 

1.3, a museum may appear by 

authorized representative or by counsel 

and may participate fully in the 

proceedings. If the museum does not 

appear and the administrative law judge 

determines that this absence is without 

good cause, the administrative law 

judge may, at his or her discretion, 

determine that the museum has waived 

the right to a hearing and consents to 

the making of a decision on the record. 

(3) The Department of the Interior 

counsel is designated by the Office of 

the Solicitor of the Department of the 

Interior. No later than 20 days after 

receipt of its copy of the written request 

for hearing, Departmental counsel must 

file with the DCHD an entry of 

appearance on behalf of the Assistant 

Secretary and the following: 

(i) Any written communications 

between the Assistant Secretary and the 

museum during any informal 

discussions under paragraph (e)(1) of 

this section; 

(ii) Any petition for relief submitted 

under paragraph (e)(2); and 

(iii) Any other information considered 

by the Assistant Secretary in reaching 

the decision being challenged. 

(4) After Departmental counsel files 

an entry of appearance with DCHD, the 

museum must serve each document 

filed with the administrative law judge 

on Departmental counsel. 

(5) In a hearing on the penalty 

assessment, the amount of the penalty 

assessment must be determined in 

accordance with paragraph (c)(2) of this 

section and may not be limited to the 

amount originally assessed or by any 

previous reduction, increase, or offer of 

mitigation. 

(6) The administrative law judge has 

all powers necessary to conduct a fair, 

orderly, expeditious, and impartial 

hearing process, and to render a 

decision, under 5 U.S.C. 554–557 and 

25 U.S.C. 3007. 

(7) The administrative law judge must 

render a written decision. The decision 

must set forth the findings of fact and 

conclusions of law, and the reasons and 

basis for them. 

(8) The administrative law judge’s 

decision takes effect as the final 

administrative decision of the Assistant 

Secretary 31 days from the date of the 

decision unless the museum files a 

notice of appeal as described in 

paragraph (k) of this section. 

(k) Appealing the administrative law 

judge’s decision. Any party who is 

adversely affected by the decision of the 

administrative law judge may appeal the 

decision by filing a written notice of 

appeal no later than 30 days after the 

date of the decision. The notice of 

appeal must be filed with the Interior 

Board of Indian Appeals (IBIA), Office 

of Hearings and Appeals (OHA), U.S. 

Department of the Interior, at the 

mailing address specified in the OHA 

Standing Orders on Contact 

Information, or by electronic means 

under the terms specified in the OHA 

Standing Orders on Electronic 

Transmission. The Standing Orders are 

available on the Department of the 

Interior OHA’s website at https://

www.doi.gov/oha. The notice of appeal 

must be accompanied by proof of 

service on the administrative law judge 

and the opposing party. The notice of 

appeal and any document filed 

thereafter with the IBIA are subject to 

the rules that govern the method and 

effective date of filing under 43 CFR 

4.310. 

(1) To the extent they are not 

inconsistent with this section, the 

provisions of 43 CFR part 4, subpart D, 

apply to the appeal process. The appeal 

board’s decision must be in writing and 

takes effect as the final penalty 

assessment and the final administrative 

decision of the Assistant Secretary on 

the date that the appeal board’s decision 

is rendered, unless otherwise specified 

in the appeal board’s decision. 

(2) OHA decisions in proceedings 

instituted under this section are posted 

on OHA’s website. 

(l) Exhaustion of administrative 

remedies. A museum has the right to 

seek judicial review, under 5 U.S.C. 704, 

of the final administrative decision of 

the Assistant Secretary only if it has 

exhausted all administrative remedies 

under this section. No decision, which 

at the time of its rendition is subject to 

appeal under this section, shall be 

considered final so as to constitute 

agency action subject to judicial review. 

The decision being appealed shall not 

be effective during the pendency of the 

appeal. 

(m) Failure to pay penalty or 

continuing failure to comply. (1) If the 

failure to comply continues after the 

date the final administrative decision of 

the Assistant Secretary takes effect, as 

described in paragraphs (g), (j)(6), or 

(k)(1) of this section, or after a date 

identified in an agreement under 

paragraph (e)(3) of this section, the 

Assistant Secretary may assess an 

additional daily penalty amount for 

each continuing violation not to exceed 

$1,496 per day, subject to annual 

adjustments based on inflation under 

the Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (Pub. L. 114–74). In determining 

the daily penalty amount, the Assistant 

Secretary must consider the factors in 

paragraph (c)(2) of this section. This 

penalty starts to accrue on the day after 

the effective date of the final 

administrative decision of the Assistant 

Secretary or on the date identified in an 

agreement under paragraph (e)(3) of this 

section. 

(2) If the museum fails to pay the 

penalty, the Attorney General of the 

United States may institute a civil 

action to collect the penalty in an 

appropriate U.S. District Court. In such 

action, the validity and amount of the 

penalty are not subject to review by the 

court. 

(n) Additional remedies. The 

assessment of a penalty under this 

section is not deemed a waiver by the 

Department of the Interior of the right to 

pursue other available legal or 

administrative remedies. 

Subpart D—Review Committee 

§ 10.12 Review Committee. 

The Review Committee advises the 

Secretary of the Interior and Congress 

on matters relating to sections 3003, 

3004, and 3005 of the Act and other 

matters as specified in section 3006 of 

the Act. The Review Committee is 

subject to the Federal Advisory 

Committee Act (FACA, 5 U.S.C. App.). 

(a) Recommendations. Any 

recommendation, finding, report, or 

other action of the Review Committee is 

advisory only and not binding on any 

person. Any records and findings made 

by the Review Committee may be 

admissible as evidence in actions 

brought by persons alleging a violation 

of the Act. Findings and 


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recommendations made by the Review 

Committee must be published in the 

Federal Register no later than 90 days 

after making the finding or 

recommendation. 

(b) Nominations. The Review 

Committee consists of seven members 

appointed by the Secretary of the 

Interior. 

(1) Three members are appointed from 

nominations submitted by Indian 

Tribes, Native Hawaiian organizations, 

and traditional religious leaders. At 

least two of these members must be 

traditional Indian religious leaders. A 

traditional Indian religious leader is a 

person who an Indian Tribe identifies as 

serving it in the practice of traditional 

Native American religion. 

(2) Three members are appointed from 

nominations submitted by national 

museum organizations or national 

scientific organizations. An organization 

that is created by, is a part of, and is 

governed in any way by a parent 

national museum or scientific 

organization must submit a nomination 

through the parent organization. 

National museum organizations and 

national scientific organizations are 

organizations that: 

(i) Focus on the interests of museums 

and science disciplines throughout the 

United States, as opposed to a lesser 

geographical scope; 

(ii) Offer membership throughout the 

United States, although such 

membership need not be exclusive to 

the United States; and 

(iii) Are organized under the laws of 

the United States Government. 

(3) One member is appointed from a 

list of more than one person developed 

and consented to by all other appointed 

members specified in paragraphs (b)(1) 

and (b)(2) of this section. 

(c) Findings of fact or disputes on 

repatriation. The Review Committee 

may assist any affected party through 

consideration of findings of fact or 

disputes related to the inventory, 

summary, or repatriation provisions of 

the Act. One or more of the affected 

parties may request the assistance of the 

Review Committee or the Secretary of 

the Interior may direct the Review 

Committee to consider a finding of fact 

or dispute. Requests for assistance must 

be made before repatriation of the 

human remains or cultural items has 

occurred. 

(1) An affected party is either a: 

(i) Museum or Federal agency that has 

possession or control of the human 

remains or cultural items; or 

(ii) Lineal descendant, or an Indian 

Tribe or Native Hawaiian organization 

with potential cultural affiliation to the 

human remains or cultural items. 

(2) The Review Committee may make 

an advisory finding of fact on questions 

related to: 

(i) The identity of an object as human 

remains or cultural items; 

(ii) The cultural affiliation of human 

remains or cultural items; or 

(iii) The repatriation of human 

remains or cultural items. 

(3) The Review Committee may make 

an advisory recommendation on 

disputes between affected parties. To 

facilitate the resolution of disputes, the 

Review Committee may: 

(i) Consider disputes between an 

affected party identified in paragraph 

(c)(1)(i) of this section and an affected 

party identified in paragraph (c)(1)(ii) of 

this section; 

(ii) Not consider disputes among 

lineal descendants, Indian Tribes, and 

Native Hawaiian organizations; 

(iii) Not consider disputes among 

museums and Federal agencies; 

(iv) Request information or 

presentations from any affected party; 

and 

(v) Make advisory recommendations 

directly to the affected parties or to the 

Secretary of the Interior. 

Matthew J. Strickler, 

Deputy Assistant Secretary Exercising the 

Delegated Authority of the Assistant Secretary 

for Fish and Wildlife and Parks. 

[FR Doc. 2023–27040 Filed 12–7–23; 4:15 pm] 

BILLING CODE 4312–52–P 


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