Monday, 

March 15, 2010 

Part III 

Department of the 

Interior 

43 CFR Part 10 

Native American Graves Protection and 

Repatriation Act Regulations—Disposition 

of Culturally Unidentifiable Human 

Remains; Final Rule 


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DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

43 CFR Part 10 

RIN 1024–AD68 

Native American Graves Protection 

and Repatriation Act Regulations— 

Disposition of Culturally Unidentifiable 

Human Remains 

AGENCY: Office of the Secretary, Interior. 

ACTION: Final rule with request for 

comments. 

SUMMARY: This final rule implements 

the Native American Graves Protection 

and Repatriation Act by adding 

procedures for the disposition of 

culturally unidentifiable Native 

American human remains in the 

possession or control of museums or 

Federal agencies. This rule also amends 

sections related to purpose and 

applicability of the regulations, 

definitions, inventories of human 

remains and related funerary objects, 

civil penalties, and limitations and 

remedies. 

DATES: This rule is effective May 14, 

2010. Comments must be received by 

May 14, 2010. 

ADDRESSES: You may submit comments 

on this final rule, identified by the 

number 1024–AD68, by any of the 

following methods: 

• Federal rulemaking portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail or hand delivery: Sherry Hutt, 

Manager, National NAGPRA Program, 

National Park Service, 1201 Eye Street, 

NW., 8th Floor, Washington, DC 20005. 

FOR FURTHER INFORMATION CONTACT: 

Sherry Hutt, Manager, National 

NAGPRA Program, National Park 

Service, 1201 Eye Street, NW., 8th 

Floor, Washington, DC 20005, 

Telephone: (202) 354–1479, Fax: (202) 

371–5197. 

SUPPLEMENTARY INFORMATION: 

Background 

The Native American Graves 

Protection and Repatriation Act of 1990 

(the Act) addresses the rights of lineal 

descendants, Indian tribes, and Native 

Hawaiian organizations to certain 

Native American human remains, 

funerary objects, sacred objects and 

objects of cultural patrimony. Among 

other things, the Act: 

—Established the Native American 

Graves Protection and Repatriation 

Review Committee, composed of 

representatives from museum and 

scientific organizations and from 

Indian tribes and Native Hawaiian 

organizations (the Review Committee) 

to monitor and review inventory, 

identification, and repatriation 

activities. 

—Required the Review Committee to 

consult with the Secretary of the 

Interior in developing regulations to 

implement the Act. 

—Charged the Review Committee with 

compiling an inventory of culturally 

unidentifiable human remains in 

museums or Federal agencies and 

recommending actions for disposition 

of these remains. 

In 1995, during initial development of 

the regulations to implement the Act, 

the Department decided to reserve 

several sections for later development. 

This decision ensured that development 

of more complex provisions would not 

delay implementation of the basic 

regulations needed to guide compliance 

with impending deadlines for inventory 

submissions. We are implementing this 

long-term publication plan as follows: 

—We published the first rules to 

implement the Act on December 4, 

1995 (43 CFR part 10, 60 FR 62158). 

—We published rules for assessing civil 

penalties under the Act on April 3, 

2003 (43 CFR 10.12, 68 FR 16354). 

—We published rules for new 

collections and continuing obligations 

for compliance on March 21, 2007 (43 

CFR 10.13, 72 FR 13189). 

—We are publishing this rule today. 

—We are developing additional rules to 

cover disposition of unclaimed Native 

American human remains and 

cultural items from Federal and 

Indian lands (future 43 CFR 10.7). 

Publication of this rule furthers the 

Department’s goal of publication in 

phases. 

On October 16, 2007, we published in 

the Federal Register the proposed rule 

to specify procedures for disposition of 

culturally unidentifiable human 

remains in the possession or control of 

museums or Federal agencies. At that 

time, we invited public comment for a 

90-day period, ending on January 14, 

2008, and posted the proposed rule on 

the National NAGPRA Program Web 

site. 

During the comment period, we 

received 138 written comments from 51 

Indian tribes, 19 Indian organizations, 

30 museums, 12 museum or scientific 

organizations, 3 Federal entities, 15 

members of the public, and the Review 

Committee. The comments addressed all 

sections of the proposed rule. We fully 

considered all of these comments and 

this final rule includes extensive 

revisions that we have made response to 

the concerns raised by commenters. 

As required by the Act, the Review 

Committee sent comments to the 

Secretary in 2000, 2003, and 2008. 

During its January 2008 teleconference, 

the Review Committee suggested that 

the Department extend the comment 

period for the proposed rule or reissue 

a revised proposed rule for further 

comment. After the close of the 

comment period, we worked with the 

Office of the Solicitor to prepare a draft 

final rule and preamble responding to 

comments. The following brief 

chronology outlines the reviews that 

have occurred since we developed the 

rule: 

—The Assistant Secretary—Fish and 

Wildlife and Parks and the Assistant 

Secretary—Indian Affairs reviewed 

the draft final rule and considered the 

recommendations of the Review 

Committee. 

—The Assistant Secretaries determined 

that the draft final rule and preamble 

were responsive to comments, and 

that, given the lengthy comment 

period, there was no need or basis to 

extend the comment period or to 

repropose the rule. 

—The Department identified a 

procedural problem with publication 

of the final rule relating to the 

Paperwork Reduction Act, which 

resulted in additional delays totaling 

6 months. 

—With the change of administration, 

the Department’s management 

conducted additional review by the 

Assistant Secretary—Fish and 

Wildlife and Parks and the Assistant 

Secretary—Indian Affairs. 

As the preceding summary illustrates, 

this final rule has undergone extensive 

review in multiple administrations. 

Each of these reviews was conducted 

independently, and both the current and 

previous administrations agreed that 

this rule is appropriate for 

implementation. In addition to the 

opportunities for comment that we have 

already offered, we are accepting 

comments on this rule until May 14, 

2010. 

The current Assistant Secretary—Fish 

and Wildlife and Parks and the current 

Assistant Secretary—Indian Affairs have 

determined that this final rule and 

preamble are fully responsive to the 

comments received on the proposed 

rule and that the ten-year process of 

developing the rule, as well as the 

substantive provisions of the rule, fit 

well with the Administration’s goals of 

transparency in decision making and 

open consultation with Indian tribes. 

Comments to this rule covered myriad 

issues that have arisen in the 20 years 

since NAGPRA became law. Although 


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many of the comments went beyond the 

scope of this rulemaking, the preamble 

to this rule provides detailed responses 

to each of the comments. 

In brief, this rule pertains to those 

human remains, in collections, 

determined by museums and Federal 

agencies to be Native American, but for 

whom no relationship of shared group 

identity can be reasonably traced, 

historically or prehistorically, between a 

present day Indian tribe or Native 

Hawaiian organization and an 

identifiable earlier group. These 

individuals are listed on inventories as 

culturally unidentifiable Native 

American human remains. The rule 

requires consultation on the culturally 

unidentifiable human remains by the 

museum or Federal agency with Indian 

tribes and Native Hawaiian 

organizations whose tribal lands or 

aboriginal occupancy areas are in the 

area where the remains were removed. 

If cultural affiliation still cannot be 

determined and repatriation achieved, 

then the Indian tribe or Native Hawaiian 

organization may request disposition of 

the remains. The museum or Federal 

agency would then publish a notice and 

transfer control to the tribe, without first 

being required to appear before the 

Review Committee to seek a 

recommendation for disposition 

approval from the Secretary of the 

Interior. Disposition requests, which do 

not meet the parameters of the rule, 

would still require approval from the 

Secretary, who may request a 

recommendation from the Review 

Committee. 

Therefore, the Department is issuing 

this final rule to be effective May 14, 

2010. 

Summary of Comments 

The proposed rule to specify 

procedures for the disposition of 

culturally unidentifiable human 

remains in the possession or control of 

museums or Federal agencies was 

published in the Federal Register on 

October 16, 2007 (72 FR 58582). Public 

comment was invited for a 90-day 

period, ending on January 14, 2008. The 

proposed rule was also posted on the 

National NAGPRA Program Web site. 

The Review Committee commented on 

the proposed rule at its January 8, 2008 

public teleconference. In addition, 138 

written comments were received during 

the comment period, representing 51 

Indian tribes, 19 Indian organizations, 

30 museums, 12 museum or scientific 

organizations, 3 Federal entities, 15 

members of the public, and the Review 

Committee. Comments addressed all 

sections of the proposed rule. All 

comments were fully considered when 

revising the proposed rule as a final 

rulemaking. 

General Comments 

Authority 

Comment 1: Fifteen commenters 

stated that the Department of the 

Interior does not have the authority to 

promulgate regulations governing the 

disposition of culturally unidentifiable 

human remains and associated funerary 

objects and that Congressional action is 

necessary to effect the disposition of 

such remains and objects. Eleven 

commenters stated that the Department 

of the Interior does have authority to 

promulgate such regulations. 

Our Response: In section 13 of the Act 

(25 U.S.C. 3011), Congress explicitly 

authorized the Secretary of the Interior 

to promulgate regulations implementing 

the Act. As an initial matter, 

consideration of all Native American 

human remains and associated funerary 

objects, including those that are 

culturally unidentifiable, is within the 

scope of the statute. Section 5 of the Act 

(25 U.S.C. 3003) requires Federal 

agencies and museums that have 

possession or control over holdings or 

collections of Native American human 

remains and associated funerary objects 

to compile an inventory of such items 

and, to the extent possible based on 

information possessed by each museum 

or Federal agency, identify the 

geographical and cultural affiliation of 

such items. Congress anticipated that 

not all items could be geographically or 

culturally affiliated and, in section 8 of 

the Act (25 U.S.C. 3006), assigned the 

role of recommending specific actions 

for developing a process for the 

disposition of culturally unidentifiable 

human remains to the Review 

Committee. Congress intended that the 

Review Committee be an advisory 

committee which makes 

recommendations to the Secretary 

(Senate Report 101–473 at 13). An 

earlier version of the bill that preceded 

the final version of NAGPRA directed 

the Review Committee to provide its 

recommendations regarding the 

disposition of culturally unidentifiable 

human remains to the Secretary and to 

the Congress (H.R. 5237, Section (7)(d), 

July 10, 1990). However, the provision 

regarding Congress was ultimately 

stricken from the version of the bill that 

was signed into law. The sequence of 

changes in a statute prior to enactment 

provides strong evidence of the meaning 

of the enacted statute (INS v. CardozaFonseca, 480 U.S. 421 (1987)). It would 

thus appear that while Congress may 

have considered limiting the Secretary’s 

authority to promulgate regulations 

regarding the disposition of culturally 

unidentifiable human remains, this 

restriction was ultimately rejected. This 

regulation, promulgated in the exercise 

of Congress’ delegated authority, 

implements many of the Review 

Committee’s recommendations and 

effectuates the goals of the Act. Even if 

Congress may not have expressly 

delegated authority or responsibility to 

implement a particular provision of the 

Act or fill a particular gap in the law, 

it can still be apparent from an agency’s 

generally conferred authority and other 

statutory directives that Congress would 

expect the agency to be able to speak 

with the force of law when the agency 

addresses ambiguities in the statute or 

fills a gap in the enacted law (United 

States v. Mead, 533 U.S. 218 (2001)). 

Comment 2: Five commenters 

consider the rule to be contrary to the 

plain language of the Act and against 

the original intent of Congress. 

Our Response: Typically, the 

Congress expects the Federal agency 

charged with the implementation of a 

statute to establish the specific process 

by which the statute’s objectives are to 

be achieved. By regulation, the 

Department directed each museum and 

Federal agency to complete ‘‘a listing of 

all culturally unidentifiable human 

remains and associated funerary objects 

for which no culturally affiliated 

present-day Indian tribe or Native 

Hawaiian organization can be 

determined’’ (43 CFR 10.9(d)(2)), and, 

after considering the Review 

Committee’s recommendations, the 

Secretary proposed these regulations to 

address the Congressional silence with 

respect to procedures for disposition of 

the culturally unidentifiable human 

remains and associated funerary objects. 

Under Chevron v. Natural Resources 

Defense Council (467 U.S. 837 (1984)), 

if a statute is silent or ambiguous with 

respect to a particular issue, then 

deference is accorded to the agency’s 

interpretation of the provisions of the 

Act so long as the agency’s 

interpretation is not arbitrary, 

capricious, or manifestly contrary to the 

statute. As discussed above, the 

promulgation of regulations for the 

disposition of culturally unidentifiable 

human remains and associated funerary 

objects is consistent with the plain 

language and intent of the Act. 

Culturally unidentifiable human 

remains and associated funerary objects 

were previously addressed in the 

regulations promulgated by the 

Department in December 1995 (60 FR 

62134). 43 CFR 10.9(e)(6) requires 

Federal agencies and museums to 

provide a list of culturally 

unidentifiable human remains and 


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associated funerary objects to the 

Department and to retain possession of 

such items pending promulgation of this 

rule unless legally required to do 

otherwise or the Secretary recommends 

otherwise. Promulgation of this rule 

provides for additional treatment and 

ultimate disposition of culturally 

unidentifiable human remains and 

associated funerary objects, and fills the 

regulatory gap contemplated by the 

current regulations. 

Comment 3: Two commenters stated 

that Congress intended to allow study of 

ancient, unaffiliated remains. 

Our Response: The Act does not draw 

a distinction between ‘‘ancient’’ and 

more recent remains. The Act covers 

historic or prehistoric ‘‘Native 

American’’ human remains. ‘‘Native 

American’’ means of, or relating to, a 

tribe, people, or culture that is 

indigenous to the United States’’ (25 

U.S.C. 3001(9)). The statute states that 

the Act shall not be construed to be an 

authorization for the initiation of new 

scientific studies of Native American 

human remains and associated funerary 

objects or other means of acquiring or 

preserving additional scientific 

information from such remains and 

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

Comment 4: One commenter 

indicated that the proposed rule 

bypasses the language of the Act as the 

Review Committee is given the role of 

making recommendations regarding 

culturally unidentifiable remains. 

Our Response: In section 8(c)(5) of the 

Act (25 U.S.C. 3006(c)(5)), Congress 

assigned the Review Committee the role 

of recommending specific actions for 

developing a process for disposition of 

culturally unidentifiable human 

remains. Congress also authorized the 

Review Committee to consult with the 

Secretary in the development of 

regulations to carry out the Act. The 

Secretary has interpreted the intent of 

Congress in this section as authorizing 

the Secretary to promulgate regulations 

governing the disposition of culturally 

unidentifiable human remains after 

considering the Review Committee’s 

recommendations on these matters. This 

interpretation is reflected in the 

Department of the Interior’s regulations 

at § 10.9(6) which states, ‘‘Section 10.11 

of these regulations will set forth 

procedures for disposition of culturally 

unidentifiable human remains of Native 

American origin. Museums or Federal 

Agencies must retain possession of such 

human remains pending promulgation 

of § 10.11 unless legally required to do 

otherwise, or recommended to do 

otherwise by the Secretary. 

Recommendations regarding the 

disposition of culturally unidentifiable 

human remains may be requested prior 

to final promulgation of § 10.11.’’ Prior 

to the completion of § 10.11, the 

Secretary has referred such individual 

requests to the Review Committee, as 

authorized under section 8(c)(8) of the 

Act (25 U.S.C. 3006(c)(8)) (‘‘performing 

such other related functions as the 

Secretary may assign to the committee’’) 

and has requested the Review 

Committee’s advice before making 

recommendations on the disposition of 

human remains. 

Constitutionality 

Comment 5: One commenter was 

concerned that compliance with the 

proposed rule could place a museum in 

violation of unspecified state statutes. 

Our Response: NAGPRA is Federal 

law, and, as such, under the Supremacy 

Clause of the Constitution (Art. VI, cl. 2; 

Lorillard Tobacco Co. v. Reilly, 533 US 

525 (2001)) preempts any state law on 

the same subject matter. This is 

especially true in the field of Federal 

Indian law, where the United States has 

plenary and exclusive power (U.S. 

Constitution, Art. I, Sec. 8, cl. 3; 

Worcester v. Georgia, 31 US 515, 6 Pet 

515 (1832)). Moreover, in section 7(f) of 

the Act (25 U.S.C. 3005(f)), Congress 

specifically provided that ‘‘[a]ny 

museum which repatriates any item in 

good faith pursuant to this chapter shall 

not be liable for claims by an aggrieved 

party or for claims of breach of fiduciary 

duty, public trust, or violations of state 

law that are inconsistent with the 

provisions of this chapter.’’ 

Comment 6: Two commenters alleged 

that the proposed regulations would 

violate the Establishment Clause of the 

First Amendment to the Constitution, 

focusing on a sentence in the preamble 

to the proposed regulations which 

suggests that the voluntary repatriation 

by a museum or Federal agency of 

funerary objects associated with 

culturally unidentifiable human 

remains would be consistent with 

‘‘customary religious and spiritual 

beliefs.’’ The commenters stated that this 

suggestion demonstrated 

unconstitutional special treatment for 

the ‘‘creationist viewpoint’’ of many 

Indian people and that such beliefs are 

not evidence of a cultural relationship 

or cultural affiliation under the Act. 

Our Response: The commenters have 

misconstrued and misapplied the 

sentence in the preamble. First, the use 

of religious or spiritual beliefs is not 

being invoked to determine whether a 

specific group of human remains is 

Native American. The rule allows a 

museum or Federal agency to 

voluntarily repatriate associated 

funerary objects with human remains 

(which it has already determined to be 

Native American). Considerations of a 

religious or spiritual belief system are 

not used to determine the origin of the 

human remains and are not relevant to 

such a voluntary determination by the 

museum or Federal agency. Further, 

‘‘funerary objects’’ are defined by both 

the NAGPRA statute and current 

regulations as ‘‘items that, as part of the 

death rite or ceremony of a culture, are 

reasonably believed to have been placed 

intentionally at the time of death or 

later’’ (43 CFR 10.2(d)(2)). This 

definition is taken from the definition of 

‘‘associated funerary objects’’ in the Act 

(25 U.S.C. 3001(3)(A)). The statement 

referred to by commenters in the 

preamble to the proposed rule is a 

recognition that ‘‘the death rite or 

ceremony of a culture’’ is an inherently 

spiritual or religious act, whether the 

belief system involved is traditionally 

Indian or Christian (also broadly 

represented in Indian country), or 

another belief system. Such a 

recognition in the context of a voluntary 

action by a museum or Federal agency 

(to which the commenters did not 

object) does not constitute support of a 

particular religious point of view or 

excessive entanglement with religion in 

the context of the Establishment Clause 

(Walz v. Tax Commission of the City of 

New York, 397 U.S. 664 (1970)). 

Comment 7: Three commenters stated 

that the proposed rule, if finalized, 

would constitute a ‘‘taking’’ by the 

United States of the property of 

museums in violation of the Fifth 

Amendment to the United States 

Constitution. 

Our Response: To determine whether 

a governmental procedure has deprived 

a party of its rights without due process, 

the first inquiry must be whether that 

party has protected property or liberty 

interests (American Manufacturing 

Mutual Insurance Co. v. Sullivan, 526 

U.S. 40, 59 (1999), and Federal Lands 

Legal Consortium v. United States, 195 

F.3d 1190 (10th Cir. 1999)). Under the 

common law, however, human remains 

are not ‘‘property’’ (See, e.g., 2 William 

Blackstone, Commentaries, 429). Thus, a 

museum would not have a property 

interest in culturally unidentifiable 

human remains that could be ‘‘taken,’’ 

unless the museum has received the 

right to possess the remains from a 

person or entity with authority to confer 

that right on the museum. The next of 

kin of the deceased (25 U.S.C. 3001(13)) 

(see Whaley v. Tuscola, 58 F.3d 1111, 

1117 (6th Cir. 1995); Brotherton v. 

Cleveland, 923 F.2d 477, 482 (6th Cir. 

1991)) and the official governing body of 

the appropriate Indian tribe or Native 

Hawaiian organization (25 U.S.C. 


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3001(13) and (3002(e)) are the only 

parties who possess such a property 

right for purposes of the Fifth 

Amendment. If a museum could prove, 

therefore, that the human remains were 

‘‘excavated, exhumed, or otherwise 

obtained with full knowledge and 

consent of the next of kin or the official 

governing body of the appropriate 

culturally affiliated Indian tribe or 

Native Hawaiian organization’’ (25 

U.S.C. 3001(13)), or were remains for 

which ‘‘the governing body of an Indian 

tribe or Native Hawaiian organization 

[has] expressly relinquished control’’ (25 

U.S.C. 3002(e)), it may have a property 

right that could be protected. That is the 

purpose of the definition of right of 

possession under the Act (25 U.S.C. 

3001(13)), and, to the extent that a 

museum can prove a right of possession 

for culturally unidentifiable human 

remains, that right is protected by 

§ 10.11(c)(1) of the regulations as well as 

the Constitution. 

Comment 8: Two commenters 

asserted that the proposed rule, if 

finalized, would violate the Equal 

Protection clause of the Fourteenth 

Amendment to the United States 

Constitution. One of these commenters 

noted that the requirement in 

§ 10.11(b)(2) to consult with ‘‘all Indian 

tribes and Native Hawaiian 

organizations’’ with certain connections 

to land (which, in the commenter’s 

view, would include Indian groups that 

are not federally-recognized) would 

violate the Act’s insulation from equal 

protection challenges based on the 

government-to-government relationship 

between the United States and federallyrecognized Indian tribes. The other 

commenter asserted that the proposed 

rule illegally favored one ‘‘cultural 

lineage’’ over others. 

Our Response: The first commenter’s 

concern raises an issue common to 

many of the comments on the proposed 

rule. When agencies publish proposed 

and final rules in the Federal Register 

that are amending existing regulations, 

the agency is only required to publish 

the portion of the regulations that would 

change. Unless the agency states 

otherwise, all portions of existing 

regulations that are not proposed for 

change in the notice of proposed 

rulemaking remain the same, and still 

apply. Thus, when this proposed rule 

refers to ‘‘Indian tribes,’’ the drafters are 

using the existing definition of that 

term, which is not proposed for 

changes. That definition, at § 10.2(b)(2), 

only refers to federally-recognized 

Indian tribes. The drafters of the 

proposed rule have been very careful to 

distinguish tribes that are not federallyrecognized Indian groups when those 

groups are included in a provision of 

the rule in order to maintain a clear 

distinction. The only mandatory 

consultation or disposition in the rule, 

consistent with the Act, is to Indian 

tribes (i.e., federally-recognized) or 

Native Hawaiian organizations. This 

preference in both the regulations and 

the statute is based not on ‘‘cultural 

lineage’’ but on the plenary power of 

Congress to ‘‘regulate commerce * * * 

with the Indian Tribes’’ (U.S. 

Constitution Art. I, Sec. 8, cl. 3), and the 

unique government-to-government 

relationship between the United States 

and Indian tribes (Morton v. Mancari, 

417 U.S. 535, 551–52 (1974)). 

Statutory Amendment 

Comment 9: Three commenters 

recommended that Congress consider 

amending the statute. Two commenters 

recommended expanding who has a 

right to claim cultural items under the 

Act from lineal descendants, Indian 

tribes, and Native Hawaiian 

organizations to also include state 

recognized Indian groups, Indian groups 

currently seeking Federal 

acknowledgement, and indigenous 

groups located beyond the boundaries of 

the United States. One commenter 

recommended amending the statute to 

apply to collections held by the 

Smithsonian Institution. One 

commenter recommended that the 

composition of the Review Committee 

be changed to ensure a ratio of no less 

than two Native American members for 

each non-Native American member. 

Our Response: Statutory amendments 

are the exclusive purview of the 

Congress. 

Compliance With Other Statutes and 

Policies 

Comment 10: The preamble of the 

proposed rule states that the rule does 

not impose an unfunded mandate on 

State, local, or tribal governments or the 

private sector of more than $100 million 

per year. Fifteen commenters projected 

that the financial burden of consultation 

and disposition on museums will be 

‘‘tremendous,’’ ‘‘onerous,’’ ‘‘impossible,’’ 

‘‘overwhelming,’’ ‘‘ruinous,’’ or 

‘‘significant.’’ Two commenters 

predicted that the rule will result in 

costly litigation. Seven commenters 

estimated that the cost of implementing 

the proposed rule will exceed $100 

million per year. One commenter 

recalled that some museums raised 

similar financial concerns prior to 

passage of the Act in 1990, but noted 

that the claims have never been 

substantiated in fact. Two commenters 

recommended that the Department of 

the Interior provide detailed cost 

estimates. 

Our Response: Costs to comply with 

this rule will be seen in the costs of 

consultation and decision-making. 

Museums and Federal agencies are only 

required to consult upon receipt of a 

claim from an Indian tribe or Native 

Hawaiian organization. In the last five 

years, there have been approximately 14 

requests per year for Review Committee 

consideration of claims for disposition 

of culturally unidentifiable Native 

American human remains. Although 

there are numerous human remains 

subject to this rule, it is reasonable to 

assume that tribes will make requests at 

a constant rate, given the capacity of 

tribes to do so. A single claim may 

involve many human remains from one 

site, requiring one notice. Absent a 

claim, a museum or Federal agency may 

also voluntarily offer to transfer control. 

The costs of decision making include 

exchange of information between 

museums and tribes, and preparation of 

a notice by a museum. Using current 

rates of compensation for museum 

clerical, curator and executive staffs, 

there is a weighted cost average for their 

efforts of $30.00 an hour. Assuming 

approximately 100 hours of information 

exchange and six hours to prepare a 

notice, the cost per claim is less than 

$5,000 on average and the annual cost 

of all claims in a year, subject to this 

rule, is less than $100,000. Since there 

are no deadlines for claims or for 

offering to transfer control, the required 

consultations will likely extend over 

multiple year periods, thus reducing the 

total cost of consultation in any 

particular year. Since 1994, Congress 

has provided grant funds for 

consultation and repatriation activities 

of approximately $2 million dollars per 

year to account for NAGPRA 

compliance, including this rule. Since 

NAGPRA became law in 1990, there 

have been almost 40,000 Native 

American human remains accounted for 

in notices and no indication that a 

single museum has suffered 

overwhelming or ruinous consequences 

from compliance with the law. 

There are also cost savings in the 

reduction of inventory maintenance 

costs and elimination of the pre-rule 

need to present matters at Review 

Committee meetings, which may 

involve travel costs. Under current 

regulations, museums and Federal 

agencies must retain possession of 

culturally unidentifiable human 

remains, with all of the attendant 

curatorial costs estimated in the 

millions of dollars per year (S. Terry 

Childs and Karolyn Kinsey, Costs for 

Curating Archeological Collections: A 


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Study of Repository Fees in 2002 and 

1997/1998. National Park Service 

(2003)). Museums and Federal agencies 

that wish to effect the disposition of 

culturally unidentifiable human 

remains under current regulations must 

either request a recommendation from 

the Secretary of the Interior, which 

involves preparation of materials and 

presentations before the Review 

Committee, or request involvement in 

proceedings before a United States 

District Court. 

Comment 11: One commenter 

requested that the Department of the 

Interior consider the rule significant 

under Executive Order 12866 on the 

grounds that it raises novel legal or 

policy issues. 

Our Response: The Office of 

Management and Budget has 

determined that this rule is significant 

under EO 12866. 

Comment 12: One commenter stated 

that Federal agencies should be required 

to conduct review under the National 

Environmental Policy Act (NEPA) (42 

U.S.C. 4321, et seq.), for each 

disposition of culturally unidentifiable 

human remains, with or without 

associated funerary objects, under the 

final rule. 

Our Response: NAGPRA does not 

exempt Federal agencies from the 

requirements of any other statutes that 

may be applicable, such as NEPA. The 

appropriate level of NEPA review 

required would depend on the NEPA 

procedures of the agency proposing the 

disposition. 

Relationships to Other Sections of These 

Regulations 

Comment 13: One commenter 

requested clarification as to whether the 

proposed rule applies to culturally 

unidentifiable human remains and 

associated funerary objects excavated or 

removed from Federal or tribal lands 

after November 16, 1990. 

Our Response: Neither the proposed 

rule nor this final rule apply to 

culturally unidentifiable human 

remains and associated funerary objects 

excavated or removed from Federal or 

tribal lands after November 16, 1990. 

This final rule applies to human 

remains in museum and Federal agency 

collections for which no lineal 

descendant or culturally affiliated 

Indian tribe or Native Hawaiian 

organization has been identified. For 

museums, these human remains may 

have been acquired either before or after 

1990 when the statute was enacted. For 

Federal agencies, disposition of human 

remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

removed from Federal lands after 

November 16, 1990 is effected pursuant 

to section 3 of the Act (25 U.S.C. 3002), 

and §§ 10.3–10.7 of the existing 

regulations. Culturally unidentifiable 

human remains acquired by a Federal 

agency after November 16, 1990 from 

other than Federal or tribal lands would 

be covered by the provisions of this 

rule. 

Comment 14: One commenter 

recommended that the terms 

‘‘unclaimed’’ and ‘‘culturally 

unidentifiable’’ be clearly distinguished. 

Our Response: There may be some 

confusion between the terms ‘‘culturally 

unidentifiable’’ and ‘‘unclaimed.’’ As 

specified in section 8(c)(5) of the Act (25 

U.S.C. 3006(c)(5) and these regulations, 

‘‘culturally unidentifiable’’ refers to 

Native American human remains and 

associated funerary objects in museum 

or Federal agency collections for which 

no lineal descendant or culturally 

affiliated Indian tribe or Native 

Hawaiian organization has been 

determined. ‘‘Unclaimed’’ only refers to 

Native American human remains, 

funerary objects, sacred objects, or 

objects of cultural patrimony excavated 

or discovered on Federal or tribal lands 

after November 16, 1990 and not 

claimed under section 3(a) of the Act 

(25 U.S.C. 3002(a)). A proposed rule 

regarding the disposition of unclaimed 

cultural items is currently under 

development (43 CFR 10.7). 

Comment 15: One commenter 

recommended that unclaimed human 

remains which can reasonably be 

associated with a recognized tribe 

should be returned to that Indian tribe. 

Our Response: Unclaimed remains are 

governed under section 3(a) of the Act 

(25 U.S.C. 3002(a). A separate proposed 

rule regarding the disposition of 

unclaimed cultural items is currently 

under development (43 CFR 10.7). 

Please see Comment 14 for a related 

response. 

Development Process 

Comment 16: Ten commenters 

recommended adopting the Review 

Committee’s 2000 recommendations in 

lieu of the proposed rule. Three 

commenters recommended adopting the 

Review Committee’s 2002 

recommendations in lieu of the 

proposed rule. Five commenters 

recommended taking the Review 

Committee’s 2000 and 2002 

recommendations into account in 

revising the proposed rule. Three 

commenters rejected the Review 

Committee’s 2000 recommendations. 

Our Response: There appears to be 

some confusion regarding the Review 

Committee’s involvement in the 

development of the proposed 

regulations. Sections 8(c)(5) and (c)(7) of 

the Act (25 U.S.C. 3006(c)(5) and (c)(7)), 

authorize the Review Committee to 

recommend specific actions for 

developing a process for the disposition 

of culturally unidentifiable human 

remains and consulting with the 

Secretary of the Interior in the 

development of regulations to carry out 

the Act. After circulating three drafts for 

public comment and considering 

specific case-by-case requests, the 

Review Committee developed its final 

recommendations regarding the 

disposition of culturally unidentifiable 

human remains in May 2000. These 

recommendations were reported in 

detail in the preamble to the 2007 

proposed rule. The Review Committee 

also considered drafts of the proposed 

rule at its May 31–June 2, 2002 and 

November 8–9, 2002 meetings. Meeting 

minutes are available at: http:// 

www.nps.gov/history/nagpra/REVIEW/ 

meetings/MINUTES.HTM. 

At its November 8–9, 2002 meeting, 

the Review Committee specifically 

compared the draft regulatory text with 

the text of its 2000 recommendations 

and recommended several changes, 

most of which, though purely advisory, 

were reflected in the 2007 proposed 

rule. The drafters gave full 

consideration to the Review 

Committee’s final recommendations 

regarding the disposition of culturally 

unidentifiable human remains (2000) as 

well as to the Review Committee’s 

review of drafts of the proposed rule on 

May 31–June 2, 2002 and November 8– 

9, 2002, and the actual proposed rule on 

January 8, 2008. 

Comment 17: Fourteen commenters 

made general or specific 

recommendations regarding the 

establishment or composition of 

‘‘regional consortia.’’ 

Our Response: The concept of 

‘‘regional consortia’’ was proposed in the 

Review Committee’s 2000 final 

recommendations regarding the 

disposition of culturally unidentifiable 

human remains (65 FR 36462). 

According to the Review Committee, 

such regional consortia would consist of 

Federal agencies, museums, Indian 

tribes, and Native Hawaiian 

organizations within a given geographic 

area that would consult together and 

propose a framework and schedule for 

the disposition of culturally 

unidentifiable human remains. The 

drafters recognize the establishment of 

such regional consortia as a potentially 

useful step in arriving at generally 

applicable disposition agreements. 

However, the establishment or 

composition of such consortia are 

clearly matters to be determined by 


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those who elect to be participants in a 

consortium. As a result, the concept was 

not addressed in the proposed rule. 

Indian tribes may choose to participate 

in such regional consortia, but it is not 

required. 

Administration 

Comment 18: One commenter 

recommended that the National Park 

Service establish a permanent office to 

focus specifically on the disposition of 

the culturally unidentifiable human 

remains and associated funerary objects. 

One commenter recommended that the 

National Park Service establish training 

for museums and Federal agencies on 

how to determine cultural affiliation. 

Our Response: The National NAGPRA 

Program will continue to provide 

technical assistance and training to 

museums, Federal agencies, lineal 

descendants, Indian tribes, and Native 

Hawaiian organizations regarding the 

disposition of culturally unidentifiable 

human remains and associated funerary 

objects, as well as other aspects of the 

Act. 

Comment 19: Seventeen commenters 

recommended providing additional 

funds to museums and Indian tribes to 

assist in the disposition of culturally 

unidentifiable human remains. 

Our Response: All activities required 

under the proposed rule are eligible for 

Federal grants authorized under section 

10 of the Act. The Review Committee 

has asked Congress to consider the 

appropriation of additional funding. 

Comment 20: One commenter 

recommended that Federal funds be 

appropriated to assist Indian tribes with 

the protection of Indian cemeteries, 

historic sites, and artifacts during or 

after an emergency. 

Our Response: The scope of grants 

authorized under section 10 of the Act 

(25 U.S.C. 3008) is limited to assisting 

museums in conducting the required 

inventories and identification and to 

assisting Indian tribes and Native 

Hawaiian organizations in the 

repatriation of human remains, funerary 

objects, sacred objects, or objects of 

cultural patrimony (25 U.S.C. 3008). 

Funds for the protection of Indian 

cemeteries, historical sites, and artifacts 

are available through other Federal 

programs. 

Comment 21: One commenter 

recommended that the rule address the 

need to expand existing tribal and 

family cemeteries. 

Our Response: The Act addresses the 

protection of current Native American 

burial sites on Federal or tribal lands 

that are inadvertently discovered or 

intentionally excavated and the 

repatriation of cultural items in museum 

or Federal agency collections or 

holdings. The Act does not address the 

creation of new burial sites or the 

expansion of existing sites. 

Comment 22: One commenter 

recommended that forensic audits of all 

Federal agency inventories be 

conducted by the General Accounting 

Office to ensure that this requirement of 

the Act has been fulfilled. 

Our Response: The Review Committee 

has asked Congress to have the 

Government Accountability Office 

review Federal compliance with the 

Act. 

Comment 23: One commenter 

recommends that State governments be 

given the authority to supervise and 

issue directives to the federallyrecognized Indian tribes in returning 

Native American human remains back 

to Mother Earth. 

Our Response: Authorizing State 

governments to direct the actions of 

federally-recognized Indian tribes is 

beyond the Secretary’s jurisdiction and 

inconsistent with both the plenary 

power of Congress to ‘‘regulate 

commerce * * * with the Indian 

Tribes’’ (U.S. Constitution Art. I, Sec. 8, 

cl. 3), and the unique government-togovernment relationship between the 

United States and Indian tribes (Morton 

v. Mancari, 417 U.S. 535, 551–52 

(1974)). 

Section 10.1(b)(3) Final Determinations 

Section 10.1(b)(3) describes decision 

points throughout the regulations which 

constitute ‘‘final determinations.’’ The 

proposed rule added one sentence to 

provide clarification to Federal agencies 

as to when a determination constitutes 

‘‘final agency action’’ as used in the 

Administrative Procedure Act (5 U.S.C. 

704). 

Comment 24: Eight commenters 

generally supported this proposed 

revision with some modification. One 

commenter recommended revising the 

section to stipulate that failure to 

affirmatively respond to a request 

within a specified time period would be 

considered a denial of the request for 

purposes of judicial review, unless the 

museum or agency extends the time 

period in writing for good cause and 

specifies a specific and reasonable 

timetable. Five commenters 

recommended clarifying that ‘‘an agency 

denial of such a request is final when 

the lineal descendant, Indian tribe or 

Native Hawaiian organization has 

exhausted any required administrative 

appeals within the agency. Neither the 

fact that the Review Committee may 

review the matter nor the fact that an 

agency denial is subject to 

reconsideration upon submission of 

new information affects its status as 

final agency action under the 

Administrative Procedure Act. After a 

final agency denial, a lineal descendant, 

Indian tribe or Native Hawaiian 

organization may make a new request 

for repatriation or disposition of human 

remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

under the Act on the basis of the 

findings or recommendations of the 

Review Committee or new information.’’ 

Our Response: Congress did not 

provide that requests would be deemed 

denied based on a failure to respond. 

The drafters agree that the language 

suggested by the five commenters is 

consistent with case law, but consider 

that the proposed revision adequately 

addresses when a determination 

constitutes a final agency action as used 

in the Administrative Procedure Act (5 

U.S.C. 704). The drafters have also 

added the text previously proposed in 

§ 10.1(b)(3) into § 10.15(c) to reiterate 

that the final denial of a request of a 

lineal descendant, Indian tribe, or 

Native Hawaiian organization for the 

repatriation or disposition of human 

remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

constitutes final agency action under the 

Administrative Procedure Act. 

Section 10.2(e)(1) Definition of Cultural 

Affiliation 

Section 10.2(e)(1) revises the 

definition of ‘‘cultural affiliation’’ to 

include ‘‘anthropological’’ evidence. The 

term, which is specifically included in 

section 7(a)(4) of the Act (25 U.S.C. 

3005(a)(7)), was inadvertently omitted 

from the previous regulatory text. Two 

commenters agreed with the proposed 

revision of the definition of ‘‘cultural 

affiliation.’’ 

Comment 25: One commenter 

recommended including the phrase 

‘‘cultural or geographic relationship’’ 

within the list of evidence relevant to 

determining cultural affiliation in the 

second sentence of § 10.2(e)(1). 

Our Response: Both geographical and 

anthropological (cultural) evidence are 

already specifically identified as 

relevant to determining cultural 

affiliation (25 U.S.C. 3005(a)(4)). 

Comment 26: One commenter 

recommended that human remains 

should not be returned without clear, 

indisputable physical (archeological) 

linkage to a present-day Indian tribe or 

Native Hawaiian organization. 

Our Response: Archeological 

evidence is one of several types of 

relevant information or expert opinion 

that must be considered in determining 

whether cultural affiliation can be 

established (25 U.S.C. 3005(a)(4)). 


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Culturally affiliation must be 

‘‘reasonably traced’’ (25 U.S.C. 3001(2)). 

Requiring an ‘‘indisputable linkage’’ 

would be inconsistent with the Act. 

Comment 27: One commenter 

recommended including language in 

§ 10.2(e)(1) stipulating that ambiguities 

in determining cultural affiliation must 

be resolved in the favor of Indian tribes. 

Our Response: The Act was enacted 

for the benefit of Indians, therefore the 

canon of construction applies that 

statutes ‘‘are to be construed liberally in 

favor of the Indians, with ambiguous 

provisions interpreted to their benefit’’ 

(Yankton Sioux Tribe v. United States 

Army Corps of Engineers, 83 F. Supp 2d 

1047, 1056 (D.S.D. 2000)). These 

regulations are subject to the same 

canon of construction. ‘‘The trust 

relationship and its application to all 

Federal agencies that may deal with 

Indians necessarily requires the 

application of a similar canon of 

construction to the interpretation of 

Federal regulations’’ (HRI, Inc. v. EPA, 

198 F.3d 1224, 1245 (10th Cir. 2000)). 

This principle of Indian law is so wellestablished, however, that the drafters 

consider additional regulatory text 

unnecessary. 

Comment 28: One commenter 

questioned whether the proposed 

change would impact the American 

Indian Religious Freedom Act. 

Our Response: The proposed change 

revised the regulatory definition of 

cultural affiliation to reflect the 

statutory text and has no implications 

related to the American Indian Religious 

Freedom Act. 

Section 10.2(e)(2) Definition of 

Culturally Unidentifiable 

Section 10.2(e)(2) defines the term 

‘‘culturally unidentifiable.’’ 

Comment 29: One commenter 

objected to the term ‘‘unidentifiable’’ 

given the likelihood that in many cases, 

cultural affiliation can be determined 

through additional consultation with 

Indian tribes. The commenter stated that 

the term thus places a false sense that 

there is no existing Native American 

group legitimately related to prehistoric 

human beings. Another commenter felt 

the term limits tribal sovereign rights 

and misappropriates the Federal trust 

responsibility to American Indians. 

Three commenters recommended 

including separate definitions of 

‘‘unidentifiable’’ and ‘‘unidentified.’’ 

Our Response: Section 8 of the Act 

(25 U.S.C. 3006) directs the Review 

Committee to compile an inventory of 

‘‘culturally unidentifiable’’ human 

remains. The drafters recognize that 

additional considerations (e.g., 

consultation and disposition as required 

by this rule) may result in the 

determination of cultural affiliation for 

some of these human remains. 

Provisions to carry out the repatriation 

of human remains and associated 

funerary objects previously determined 

to be culturally unidentifiable are 

included at §§ 10.11(b)(6), 10.9(e) and 

10.10(b) of the existing regulations, as 

amended by this rule. 

Comment 30: One commenter 

recommended specifying in the 

definition of ‘‘culturally unidentifiable’’ 

that such identifications are made 

through the inventory process. 

Our Response: The phrase ‘‘ * * * 

through the inventory process’’ has been 

added to the end of this definition. 

Comment 31: Three commenters 

recommended deleting the phrase ‘‘and 

associated funerary objects’’ from the 

definition of culturally unidentifiable. 

Our Response: While disposition of 

funerary objects associated with 

culturally unidentifiable human 

remains is voluntary, § 10.9(d)(2) of 

these regulations requires museums and 

Federal agencies to prepare an inventory 

of both human remains and associated 

funerary objects that cannot be 

identified as affiliated with a particular 

individual, Indian tribe, or Native 

Hawaiian organization. The phrase ‘‘and 

associated funerary objects’’ has been 

retained. 

Comment 32: One commenter 

recommended redefining ‘‘culturally 

unidentifiable’’ to refer ‘‘to human 

remains for which a relationship of 

shared group identity cannot be 

reasonably traced historically or 

prehistorically between members of 

present-day Indian tribe or Native 

Hawaiian organization and an 

identifiable earlier group.’’ 

Our Response: The drafters consider 

the recommended text less clear than 

the proposed rule text because it omits 

reference to associated funerary objects, 

lineal descendants, and museum and 

Federal agency collections, all necessary 

elements of this definition. 

Comment 33: One commenter 

recommended including reference in 

the definition of ‘‘culturally 

unidentifiable’’ at § 10.2(e)(2) that claims 

could be made for these human remains 

based on tribal land, aboriginal land, or 

cultural relationship. 

Our Response: The basis for 

disposition of culturally unidentifiable 

human remains are set forth at 

§ 10.11(c)(1) of this rule. 

Comment 34: One commenter was 

concerned that the proposed definition 

of ‘‘culturally unidentifiable’’ at 

§ 10.2(e)(2) would require museum staff 

to make judgment calls without 

adequate professional expertise. 

Our Response: Current regulations 

require museum and Federal agency 

officials to ‘‘prepare a listing of all 

culturally unidentifiable human 

remains and associated funerary objects 

for which no culturally affiliated 

present-day Indian tribe or Native 

Hawaiian organization can be 

determined’’ (43 CFR 10.9(e)(6)). 

Completion of this listing was required 

by November 16, 1995, or a later date 

specifically determined by the Secretary 

on a case-by-case basis. Museum and 

Federal agency officials may wish to 

retain outside professional expertise to 

assist in these determinations, but are 

not required to do so. Museum and 

Federal agency officials are required to 

consult with representatives of Indian 

tribes and Native Hawaiian officials. 

Section 10.2(g) Definition of 

Disposition 

Section 10.2(g)(5) provides a 

definition of disposition and identifies 

procedures to effectuate this process in 

various situations. 

Comment 35: One commenter 

recommended deleting the phrase ‘‘with 

or without associated funerary objects’’ 

from § 10.2(g)(iii). 

Our Response: While disposition of 

funerary objects associated with 

culturally unidentifiable human 

remains is voluntary, the Secretary 

recommends that museums and Federal 

agencies engage in such transfers 

whenever Federal or State law would 

not otherwise preclude them. The 

phrase has been retained. 

Comment 36: Four commenters 

recommended revisions to the 

definition of ‘‘disposition’’ at § 10.2(g)(5) 

to provide museums and Federal 

agencies with the option of retaining 

possession and control of culturally 

unidentifiable human remains. One 

commenter recommended inserting the 

phrase ‘‘or other mutually acceptable 

alternative’’ after ‘‘transfer or control.’’ 

Our Response: Section 8(c)(5) of the 

Act (25 U.S.C. 3006(c)(5)) directs the 

Review Committee to recommend 

specific actions for developing a process 

for disposition of culturally 

unidentifiable human remains. In its 

2000 recommendations, the Review 

Committee specified three types of 

appropriate disposition solutions, 

including transfer of control based on 

the recovery of the human remains from 

a particular Indian tribe or Native 

Hawaiian organization’s tribal land or 

aboriginal land or on a relationship of 

shared group identity between the 

human remains and an Indian group 

which is not federally-recognized (65 FR 

36463, June 8, 2000). The governing 

body of an Indian tribe or Native 


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Hawaiian organization is free to 

relinquish control of human remains or 

negotiate ‘‘other mutually acceptable 

alternatives’’ (25 U.S.C. 3002(e)). 

Comment 37: Five commenters 

recommended reviewing the term 

‘‘control’’ as it relates to the term 

‘‘repatriate,’’ and to consider language 

that holds a museum or Federal agency 

harmless if a right of possession comes 

to light after disposition has been 

effected. 

Our Response: The term ‘‘control’’ 

means having a legal interest in human 

remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

sufficient to lawfully permit the 

museum or Federal agency to treat the 

objects as part of its collection for 

purposes of these regulations whether or 

not the human remains, funerary 

objects, sacred objects or objects of 

cultural patrimony are in the physical 

custody of the museum or Federal 

agency (43 CFR 10.2(a)(3)(ii)). The Act 

and these regulations provide that any 

museum which repatriates or effects the 

disposition of Native American human 

remains in good faith pursuant to the 

Act and these regulations shall not be 

liable for claims by an aggrieved party 

or for claims of breach of fiduciary duty, 

public trust, or violations of state law 

that are inconsistent with these 

provisions (25 U.S.C. 3005(f)). 

Section 10.2 Other Definitions 

Comment 38: One commenter 

recommended defining ‘‘nonfederallyrecognized Indian group’’ in § 10.2. 

Our Response: The Act requires a 

museum or Federal agency to repatriate 

Native American cultural items upon 

receipt of a valid claim from a lineal 

descendant, Indian tribe, or Native 

Hawaiian organization. The latter three 

terms are defined at § 10.2(b)(1), (b)(2), 

and (b)(3), respectively. We have chosen 

to clarify by using the term ‘‘not 

federally-recognized’’ for any Indian 

group that does not meet the definition 

in § 10.2(b)(2). 

Comment 39: Three commenters 

indicated that the proposed rule is 

inconsistent with the Ninth Circuit’s 

opinion in United States v. Bonnichsen 

(357 F.3d 962 (9th Cir. 2004)). 

Our Response: The Court’s opinion in 

Bonnichsen addressed whether the 

remains of ‘‘Kennewick Man’’ 

constituted Native American remains 

within the Act’s definition of that term. 

The proposed rule does not affect the 

definition of ‘‘Native American.’’ The 

proposed rule only applies after a 

determination is made, consistent with 

applicable law, that the human remains 

or associated funerary objects are Native 

American. 

Comment 40: Seven commenters 

recommended inserting the phrase 

‘‘Native American’’ before each 

occurrence of ‘‘human remains’’ 

throughout the regulations. 

Our Response: Since the drafters did 

not propose to modify the definition of 

‘‘human remains’’ at § 10.2(d)(1), the 

meaning of the term throughout these 

regulations remains ‘‘the physical 

remains of a human body of a person of 

Native American ancestry.’’ 

Comment 41: One commenter 

recommended including a definition of 

‘‘preponderance of the evidence.’’ 

Our Response: Determinations within 

the Act are based on standard rules of 

civil procedure. Museums and Federal 

agencies are initially required to 

determine by a reasonable belief if 

human remains and associated funerary 

objects are culturally affiliated with an 

Indian tribe or Native Hawaiian 

organization (25 U.S.C. 3003(d)(2)). 

Thereafter, human remains and 

associated funerary objects must be 

expeditiously repatriated where an 

Indian tribe or Native Hawaiian 

organization can demonstrate cultural 

affiliation by the preponderance of the 

evidence (25 U.S.C. 3005(a)(4)). The 

preponderance of the evidence generally 

means that a decision maker must be 

persuaded that the evidence is sufficient 

to make it more likely than not that the 

fact the claimant seeks to prove is true. 

Section 10.9(e)(2) Content of Notice of 

Inventory Completion 

Section 10.9(e)(2) details the contents 

of notices of inventory completion. 

Additional text was proposed at 

§ 10.9(e)(2)(v) to clarify that such 

notices must include information 

regarding culturally unidentifiable 

human remains, with or without 

associated funerary objects, that may be 

transferred under § 10.11. 

Comment 42: One commenter 

recommended deleting the phrase ‘‘with 

or without associated funerary objects’’ 

from § 10.9(e)(2)(v). 

Our Response: While disposition of 

funerary objects associated with 

culturally unidentifiable human 

remains is voluntary, the Secretary 

recommends that museums and Federal 

agencies engage in such transfers 

whenever Federal or State law would 

not otherwise preclude such transfers. 

The phrase has been retained. 

Comment 43: One commenter 

recommended replacing the phrase ‘‘that 

may be transferred under § 10.11’’ at the 

end of § 10.9(e)(2)(v) with ‘‘that are 

subject to disposition under § 10.11.’’ 

Our Response: The recommended 

change is consistent with the language 

in section 8(c)(5) of the Act (25 U.S.C. 

3006(c)(5)) and § 10.2(g)(5)(iii) of these 

regulations. The regulations have been 

changed as suggested. 

Comment 44: Two commenters 

recommended that the listing of 

culturally unidentifiable human 

remains and associated funerary objects 

specify whether they are: (1) Those for 

which cultural affiliation could be 

determined but that the appropriate 

Indian group is not federally-recognized 

as an Indian tribe; (2) those that 

represent an identifiable earlier group, 

but for which no present-day Indian 

tribe has been identified by the museum 

or Federal agency; and (3) those for 

which the museum or Federal agency 

believes that evidence is insufficient to 

identify an earlier group. Another 

commenter specifically recommended 

that these categories should not be used. 

Our Response: The suggested 

categories of culturally unidentifiable 

human remains are derived from the 

Review Committee’s 2000 

recommendations (65 FR 36463). 

However, the Review Committee 

recommendations did not make any 

distinction regarding disposition of any 

of the three categories. The three 

categories were not used in the 

proposed rule and no comments were 

received recommending different 

dispositions on that basis. 

Comment 45: Two commenters 

recommended that the inventory or 

notice of inventory completion include 

a ‘‘record of origin’’ or ‘‘basis of 

reasoning’’ for determining that human 

remains are Native American and 

culturally unidentifiable. 

Our Response: The contents of the 

inventory (10.9(d)) and notice of 

inventory completion (43 CFR 10.9(e)) 

apply only to human remains already 

determined to be ‘‘Native American’’ 

under 43 CFR 10.2(d)(1) and the Act. 

The inventory includes a summary of 

the evidence used to determine cultural 

affiliation. By definition in 43 CFR 

10.2(e)(2), remains for which no lineal 

descendant or culturally affiliated 

Indian tribe or Native Hawaiian 

organization has been identified through 

the inventory process are considered 

culturally unidentifiable and, thus, do 

not require a further basis of reasoning 

when included on the notice of 

inventory completion as culturally 

unidentifiable. 

Section 10.9(e)(5) Additional 

Documentation 

Section 10.9(e)(5) directs museums or 

Federal agencies to supply additional 

available documentation upon the 

request of an Indian tribe or Native 

Hawaiian organization. Additional text 

was proposed for inclusion in 


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§ 10.9(e)(5)(ii) to clarify that such 

documentation when supplied by a 

Federal agency or to a Federal agency 

shall be considered a public record 

subject to disclosure except when 

exempted under applicable law, such as 

the Freedom of Information Act and the 

Privacy Act. Further, as required by 

section 5(b)(2) of the Act (25 U.S.C. 

3003(b)(2)), neither a request for such 

documentation nor any provisions of 

the regulations shall be construed as 

authorizing the initiation of new 

scientific studies of such human 

remains and associated funerary objects 

or other means of acquiring or 

preserving additional scientific 

information from such remains and 

objects. 

Comment 46: Six commenters 

recommended deleting § 10.9(e)(5)(A) 

and (e)(5)(B) on the grounds that they 

create a seemingly impossible 

conundrum, would severely hinder the 

scientific study of ancient remains, and 

are ‘‘an obvious attempt to end-run 

Congressional intent and a Federal court 

ruling in the long-fought Kennewick 

Man case.’’ One commenter 

recommended including language 

confirming that ‘‘studies or other means 

of acquiring or preserving information 

are not prohibited, but NAGPRA cannot 

be used as the authorization for them’’ 

or ‘‘additional study may be authorized, 

requested, or otherwise developed as 

part of the consultation and affiliation 

process.’’ One commenter recommended 

adding a new paragraph to read as 

follows: ‘‘In consultation with the tribes 

identified in § 10.11(b)(2), the museum 

or Federal agency may undertake 

additional documentation of human 

remains and associated funerary objects 

prior to their transfer under § 10.11(c). 

This documentation shall be completed 

within two years of an offer to transfer 

culturally unidentifiable human 

remains unless the consulting tribes 

agree that additional time (beyond two 

years) is needed.’’ Eleven commenters 

recommended including language 

specifying that ‘‘culturally 

unidentifiable human remains that have 

not yet been repatriated should be 

treated with great respect and should 

not be subject to any further scientific 

research or used for teaching purposes.’’ 

One commenter recommended that 

museums and Federal agencies should 

upgrade their testing to include total 

DNA, not just patrilineal DNA. 

Our Response: The language in this 

section is drawn directly from the Act 

and thus clearly represents 

Congressional intent. 

Comment 47: Fifteen commenters 

generally supported this section. One 

commenter requested clarification as to 

whether a museum or Federal agency is 

required to provide additional 

documentation upon request of an 

Indian group that is not federallyrecognized. 

Our Response: The Act stipulates that 

a museum or Federal agency must 

supply additional available 

documentation upon request by an 

Indian tribe or Native Hawaiian 

organization (25 U.S.C. 3003(b)(2)). This 

requirement does not apply to requests 

from an Indian group that is not 

federally-recognized. 

A museum or Federal agency may be 

required to supply such documentation 

under other applicable law and is 

encouraged to voluntarily do so if not 

otherwise required. 

Comment 48: Nine commenters 

recommended including language that 

this section is not meant to preclude the 

withholding from the public of 

information that is specifically 

exempted from disclosure under 

applicable law. 

Our Response: The drafters have 

added language to clarify that some 

information may be exempt from 

disclosure under applicable law, such as 

the Freedom of Information Act (5 

U.S.C. 552), Privacy Act (5 U.S.C. 552a), 

Archaeological Resources Protection Act 

(16 U.S.C. 470hh), and National Historic 

Preservation Act (16 U.S.C. 470w–3), 

and any other legal authority exempting 

such information from public 

disclosure. 

Section 10.9(e)(6) Removing Retention 

Requirement 

Section 10.9(e)(6) is rewritten to 

remove the last three sentences that 

required a museum or Federal agency to 

retain possession of culturally 

unidentifiable human remains pending 

promulgation of § 10.11. 

Comment 49: Three commenters 

recommended deleting the phrase ‘‘with 

or without associated funerary objects’’ 

from § 10.9(e)(6). 

Our Response: The phrase occurs 

twice in this paragraph. The first 

sentence refers to associated funerary 

objects that are in the possession or 

control of a museum or Federal agency. 

The last sentence refers to items that are 

subject to disposition under § 10.11. The 

phrase ‘‘with or without associated 

funerary objects’’ is used throughout the 

regulations to indicate that disposition 

of such items, though encouraged, is not 

required. Usage of the term in the last 

sentence of this section is thus 

appropriate. The phrase ‘‘with or 

without’’ has been replaced with ‘‘and’’ 

in the first sentence to make it clear that 

associated funerary objects must be 

included in the inventory of culturally 

unidentifiable human remains provided 

to the Manager, National NAGPRA 

Program. 

Comment 50: One commenter 

recommended revising the text in 

§ 10.9(e)(6) to require a museum or 

Federal agency to provide the listing of 

culturally unidentifiable human 

remains in its possession or control to 

both the Manager, National NAGPRA 

Program and the Departmental 

Consulting Archeologist. 

Our Response: A separate program to 

administer some of the Secretary of the 

Interior’s responsibilities to implement 

the Act was established in 2000. The 

Departmental Consulting Archeologist is 

no longer responsible for those duties, 

as reflected in a technical amendment to 

the regulations published in the Federal 

Register on September 30, 2005 (70 FR 

57177). 

Comment 51: One commenter 

recommended that the inventory of 

culturally unidentifiable human 

remains provided to the Manager, 

National NAGPRA Program and the 

Review Committee pursuant to 

§ 10.9(e)(6) also be made available to all 

interested parties. One commenter 

considered the Review Committee’s 

publicly accessible database to provide 

sufficient notice to all Indian tribes to 

determine their interest in submitting a 

claim. 

Our Response: Current regulations 

require museums and Federal agencies 

to provide a listing of all culturally 

unidentifiable human remains and 

associated funerary objects to the 

manager, National NAGPRA Program, 

who will make this information 

available to the Review Committee. The 

Culturally Unidentifiable Native 

American Human Remains Database is 

publicly posted at http://64.241.25.6/ 

CUI/index.cfm. Although museums and 

Federal agencies are required to consult 

with Indian tribes and Native Hawaiian 

organizations in preparing the list, the 

Database is the primary means by which 

lineal descendants, Indian tribes, and 

Native Hawaiian organizations learn 

that a museum or Federal agency has 

determined particular human remains to 

be culturally unidentifiable. 

Comment 52: One commenter 

recommended clarifying whether the 

requirement at § 10.9(e)(2)(v) that 

notices of inventory completion must 

describe human remains, with or 

without associated funerary objects, that 

are culturally unidentifiable applies 

only after promulgation of the final rule. 

Our Response: Current regulations 

require publication of a notice of 

inventory completion prior to the 

repatriation of culturally affiliated 

human remains and associated funerary 


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objects (43 CFR 10.9(e)(2)). The 

Secretary has also required publication 

of a notice of inventory completion 

prior to the disposition of culturally 

unidentifiable human remains, with or 

without associated funerary objects. The 

proposed text formalizes as regulation 

the administrative notice requirement 

for culturally unidentifiable human 

remains, with or without associated 

funerary objects. This rule will have no 

effect on museums and Federal agencies 

that previously published notices for 

disposition of culturally unidentifiable 

human remains, with or without 

associated funerary objects, pursuant to 

a recommendation from the Secretary. 

Section 10.9 Other General Comments 

Comment 53: Two commenters stated 

that the proposed rule puts museums in 

the position of determining whether 

human remains and associated funerary 

objects are ‘‘Native American.’’ 

Our Response: Under the Act, 

museums and Federal agencies already 

have the role and responsibility of 

determining what constitutes ‘‘Native 

American’’ cultural items in their 

possession or control. While the statute 

contemplates consultation on this 

determination and other topics related 

to cultural items, the final 

determination is the museum or Federal 

agency’s alone. Challenges to such 

determinations may be raised as 

disputes before the Review Committee 

or litigated in a U.S. District Court. 

Comment 54: Two commenters 

requested clarification as to who is 

responsible for determining the 

geographic or cultural affiliation of 

Native American human remains and 

associated funerary objects. 

Our Response: The statute (25 U.S.C. 

3003(a)) and current regulations (43 CFR 

10.9(a)) are clear that each museum or 

Federal agency that has possession or 

control over holdings or collections of 

human remains and associated funerary 

objects must compile an inventory of 

such objects, and, to the fullest extent 

possible based on information possessed 

by the museum or Federal agency, must 

identify the geographical and cultural 

affiliation of each item. While these 

decisions must be made in consultation 

with Indian tribes and Native Hawaiian 

organizations, the museum or Federal 

agency is responsible for identifying the 

geographical and cultural affiliation of 

each item. 

Comment 55: One commenter 

recommended that current inventories 

of culturally unidentifiable human 

remains be reevaluated in light of U.S. 

v. Bonnichsen (357 F.3d 962 (9th Cir. 

2004)). 

Our Response: The proposed rule 

does not change the definition of 

‘‘Native American’’ or ‘‘human remains.’’ 

To come within the scope of the Act, a 

Federal agency or museum must make 

a threshold determination that the 

culturally unidentifiable remains or 

funerary objects are Native American 

before they may include culturally 

unidentifiable human remains or 

funerary objects with which they are 

associated in the inventories that are 

submitted to the Review Committee 

pursuant to § 10.9(d)(2). 

Comment 56: One commenter 

recommended that the regulations 

reaffirm that Federal agencies, like 

museums, must comply with the 

inventory, consultation, and repatriation 

requirements of the Act. 

Our Response: Like museums, Federal 

agencies must comply with the 

summary, inventory, consultation, 

notice, and repatriation process of the 

Act and the regulations. 

Comment 57: Seven commenters 

requested a clear and explicit 

explanation of how the proposed rule 

takes into account the potential interests 

of the public in scientific research and 

education. 

Our Response: The issue of scientific 

research is specifically addressed by 

Congress. Section 5(b)(2) of the Act 

states that ‘‘[Documentation] does not 

mean, and this Act shall not be 

construed to be an authorization for the 

initiation of new scientific studies of 

such remains and associated funerary 

objects or other means of acquiring or 

preserving additional scientific 

information from such remains and 

objects.’’ The rule repeats this language 

at § 10.9(5)(ii). 

Comment 58: Eight comments 

recommended that Indian tribes and 

Native Hawaiian organizations should 

have the primary role in determining 

whether human remains are ‘‘culturally 

unidentifiable.’’ 

Our Response: Museum and Federal 

agency officials, in consultation with 

Indian tribes and Native Hawaiian 

organizations, are required to determine 

the cultural affiliation of all Native 

American human remains and 

associated funerary objects in their 

possession or control (43 CFR 10.9). 

Section 10.11 Disposition of Culturally 

Unidentifiable Human Remains 

This new section fulfills the 

Secretary’s responsibility to promulgate 

regulations under sections 8(c)(5) and 

13 of the Act (25 U.S.C. 3006(c)(5) and 

3011)) and 25 U.S.C. 9 regarding the 

process for the disposition of culturally 

unidentifiable human remains. The 

Department of the Interior developed 

this section after full and careful 

consideration of the Review 

Committee’s recommendations and 

other relevant legislation and policy. 

Comment 59: Thirty-two commenters 

generally supported this section. 

Twenty-four commenters generally 

opposed this section. One commenter 

recommended retaining the term 

‘‘disposition’’ in the title of this section. 

Our Response: The term has been 

retained. 

Comment 60: One commenter 

recommended removing any timelines 

or deadlines from this section. 

Our Response: The proposed rule 

includes only two deadlines. Section 

10.11(b)(1) requires that the museum or 

Federal agency official initiate 

consultation within ninety days of 

receiving a request from an Indian tribe 

or Native Hawaiian organization to 

transfer control of culturally 

unidentifiable human remains or, absent 

such a request, before making any offer 

to transfer control of culturally 

unidentifiable human remains. Section 

10.11(d)(2) requires the manager of the 

National NAGPRA Program to update 

and make accessible the Review 

Committee’s inventory of culturally 

unidentifiable human remains within 30 

days of publishing a notice of inventory 

completion for culturally unidentifiable 

human remains. Both deadlines seem 

reasonable and necessary for the 

effective implementation of this section. 

Comment 61: The preamble to the 

proposed rule specifically requested 

comments regarding the meaning of the 

term ‘‘cultural relationship’’ which is 

used in Section 3 of the Act (25 U.S.C. 

3002) as a basis for the disposition of 

Native American human remains, 

funerary objects, sacred objects or 

objects of cultural patrimony excavated 

or removed from Federal or tribal land 

after 1990 (25 U.S.C. 3002(a)(2)(C)(2)), 

and was included in the proposed rule 

as a basis for consultation (43 CFR 

10.11(b)) and disposition (43 CFR 

10.11(c)) of culturally unidentifiable 

human remains. Only four commenters 

offered specific recommendations on 

how the term should be defined. One 

proposed a definition that is 

indistinguishable from that of cultural 

affiliation—‘‘a relationship that exists 

between federally-recognized tribes and 

earlier Native American groups with 

which those federally-recognized tribes 

have a relationship of shared group 

identity.’’ 

Our Response: As a matter of 

regulatory drafting, different terms 

should not be accorded the same 

meaning when this can be avoided. 

Comment 62: Three other commenters 

recognized that from its context in 


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section 3 of the Act the term ‘‘cultural 

relationship’’ connotes a weaker 

connection than ‘‘cultural affiliation,’’ 

but differed on how the former 

connection should be proved. Two 

commenters recommended that the 

same types of evidence applicable to 

showing cultural affiliation— 

‘‘geographical, kinship, biological, 

archeological, anthropological, 

linguistic, folkloric, oral traditional, 

historical, or other relevant information 

or expert opinion’’ [25 U.S.C. 

3005(a)(4)]—should also be used to 

determine cultural relationship, but at 

some standard less than the 

preponderance of the evidence. Another 

commenter specified additional 

evidence that should be considered in 

determining cultural relationship, 

including habitation, tribal history, 

migration and creation stories, and 

evidence from tribal elders. 

Our Response: The drafters note that 

all of the specified types of evidence for 

‘‘cultural relationship’’ are already 

subsumed under the broader categories 

identified in the Act for ‘‘cultural 

affiliation.’’ 

Comment 63: Three commenters 

generally supported using ‘‘cultural 

relationship’’ as a basis for disposition of 

culturally unidentifiable human 

remains. Seven commenters 

recommended that ‘‘cultural 

relationship’’ be defined prior to 

finalization of the rule. Four 

commenters recommended finalizing 

the rule with a section reserved to 

define ‘‘cultural relationship’’ at a later 

date. One commenter recommended 

that the Review Committee be tasked 

with developing a definition of ‘‘cultural 

relationship.’’ Thirteen commenters 

recommended not defining ‘‘cultural 

relationship’’ by regulation, instead 

allowing museums, Federal agencies, 

Indian tribes, and Native Hawaiian 

organizations to interpret the term on a 

case-by-case basis. Nineteen 

commenters recommended removing 

‘‘cultural relationship’’ from the priority 

structure entirely. 

Our Response: The diversity of 

opinion regarding the meaning of 

‘‘cultural relationship’’ convinced the 

drafters to remove it as a required 

criterion for consultation and 

disposition of culturally unidentifiable 

human remains in § 10.11(b) and 

§ 10.11(c). 

Section 10.11(a) General Intent 

Paragraph (a) states the general intent 

of § 10.11. 

Comment 64: One commenter 

recommended it be made explicit that 

the rule only applies to human remains 

determined to be ‘‘Native American.’’ 

Our Response: Section 10.11(a) has 

been changed to read: ‘‘This section 

implements section 8(c)(5) of the Act 

(25 U.S.C. 3006(c)(5)) and applies to 

human remains previously determined 

to be Native American pursuant to 

§ 10.9, but for which no lineal 

descendant or culturally affiliated 

Indian tribe or Native Hawaiian 

organization has been identified.’’ 

Section 10.11(b) Consultation 

Paragraph (b) establishes procedures 

for consultation regarding the 

disposition of culturally unidentifiable 

human remains. 

Comment 65: Six commenters 

recommended making it very clear that 

the appropriate disposition of culturally 

unidentifiable human remains can only 

occur within the framework of 

consultation and collaboration. 

Our Response: Section 10.11(b) is 

intended to provide such a framework. 

Comment 66: Six commenters were 

concerned that the initial listing of 

culturally unidentifiable human 

remains and associated funerary objects 

was completed without consultation. 

Our Response: Inventory preparation 

under § 10.9 required consultation with 

lineal descendants and Indian tribal 

officials and traditional religious leaders 

(1) from whose tribal lands the human 

remains and associated funerary objects 

originated; (2) that are, or are likely to 

be, culturally affiliated with human 

remains and associated funerary objects; 

and (3) from whose aboriginal lands the 

human remains and associated funerary 

objects originated. Failure to consult 

with all of the above-referenced parties 

constitutes a failure to comply with the 

requirements of the Act and may result 

in assessment of a civil penalty under 

§ 10.12(b)(1)(vii). It is anticipated that 

consultation as required in § 10.11(b) 

will result in determinations that some 

human remains and associated funerary 

objects previously determined to be 

culturally unidentifiable are actually 

culturally affiliated with an Indian tribe 

or Native Hawaiian organization. 

Comment 67: Four commenters 

considered the consultation 

requirements at § 10.11(b) to be 

impractical, burdensome, likely to cause 

irreparable damage to the strong, highly 

productive collaborative relationships 

between Indians and the scientific 

community, and likely to lead to rushed 

decisions regarding disposition of 

culturally unidentifiable human 

remains. Six commenters recommended 

including additional guidance on how 

to conduct meaningful consultation. 

One commenter requested clear 

guidelines on exactly when a particular 

consultation process reaches a definitive 

conclusion. Five commenters 

recommended including a definition of 

‘‘consultation’’ consistent with House 

Report 101–877. 

Our Response: Consultation is a 

critical component of implementing this 

section and the Act as a whole. The 

committee report accompanying the Act 

(House Report 101–877 (October 15, 

1990)) defined consultation as ‘‘a 

process involving the open discussion 

and joint deliberations with respect to 

potential issues, changes, or actions by 

all interested parties.’’ Consultation is 

not defined in the Act itself. These 

regulations require museums and 

Federal agencies to initiate consultation 

within ninety days of receipt of a 

request from an Indian tribe or Native 

Hawaiian organization, or before any 

offer to transfer control of culturally 

unidentifiable human remains and 

associated funerary objects. Required 

consultation would generally conclude 

once control of the culturally 

unidentifiable human remains, with or 

without associated funerary objects, has 

been transferred to the Indian tribe or 

Native Hawaiian organization. 

Section 10.11(b)(1) When To Consult 

Section 10.11(b)(1) identifies when 

museums and Federal agencies must 

initiate consultation regarding the 

disposition of culturally unidentifiable 

human remains and associated funerary 

objects. 

Comment 68: Two commenters 

recommended that § 10.11(b)(1) provide 

clear guidelines for the circumstances 

under which a museum or Federal 

agency must initiate consultation. One 

commenter recommended that a 

museum or Federal agency’s obligation 

to initiate consultation be triggered only 

by receipt of a claim. One commenter 

asked whether a Federal agency should 

invite consultation if no claim is 

received from a federally-recognized 

Indian tribe or Native Hawaiian 

organization. One commenter 

recommended that there be clear 

guidelines on exactly when the 

consultation process may conclude. 

Our Response: This paragraph 

requires a museum or Federal agency 

official to initiate consultation regarding 

the disposition of culturally 

unidentifiable human remains and 

associated funerary objects in two 

separate instances. Consultation must be 

initiated within ninety days of receipt of 

a request from an Indian tribe or Native 

Hawaiian organization to transfer 

control. Absent such a request, 

consultation must also be initiated 

before the museum or Federal agency 

makes any offer to transfer control. 

Required consultation would generally 


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conclude once the control and 

possession of the culturally 

unidentifiable human remains, with or 

without associated funerary objects, has 

been transferred to the Indian tribe or 

Native Hawaiian organization. 

Section 10.11(b)(2) Who To Consult 

Section 10.11(b)(2) identifies who 

must be consulted regarding the 

disposition of culturally unidentifiable 

human remains and associated funerary 

objects. 

Comment 69: Three commenters 

recommended that consultation not be 

required with all of the Indian tribes 

and Native Hawaiian organizations 

specified at § 10.11(b)(2), in part 

because Indian tribes and Native 

Hawaiian organizations will be 

inundated with requests to consult. 

Our Response: The drafters have 

removed the requirement to consult 

with Indian tribes and Native Hawaiian 

organizations with a cultural 

relationship to the region from which 

the human remains and associated 

funerary objects were removed (43 CFR 

10.11(b)(2)(iii)). Museums and Federal 

agencies were already required to 

consult with Indian tribes and Native 

Hawaiian organizations from whose 

tribal lands or aboriginal lands the 

human remains and associated funerary 

objects were removed in preparing their 

initial inventories (43 CFR 10.9(b)). 

Comment 70: One commenter 

recommended that the Department 

compile a list of Native Hawaiian 

organizations that should be consulted 

regarding disposition of culturally 

unidentifiable human remains. 

Our Response: Contact information is 

available for some Native Hawaiian 

organizations from two sources within 

the Department of the Interior. The 

National Park Service, National 

NAGPRA Program maintains the Native 

American Consultation Database 

(http://home.nps.gov/nacd/). The 

Department of the Interior, Office of 

Hawaiian Relations maintains the 

Native Hawaiian Organization List 

(http://www.doi.gov/ohr/). Other 

sources should also be considered. 

Comment 71: One commenter 

considered inclusion of treaties, acts of 

Congress, and Executive Orders at 

§ 10.11(b)(2)(ii), along with final 

determinations of the Indian Claims 

Commission and the U.S. Court of 

Claims to be a fair and equitable way of 

identifying aboriginal lands. Three 

commenters recommended deleting 

treaties, acts of Congress, and Executive 

Orders as a basis for determining 

aboriginal lands. One commenter 

considered the cited documents too 

limiting, and recommended adding the 

‘‘testimony of experts.’’ One commenter 

requested clarification as to who 

determines whether or not a specific 

tribe was the aboriginal occupant of an 

area. 

Our Response: While Section 

3(a)(2)(C) of the Act (25 U.S.C. 

3002(a)(2)(C)) identifies only a final 

judgment of the Indian Claims 

Commission or United States Court of 

Claims as the basis for determining 

aboriginal lands, the drafters intend to 

include the full range of relevant and 

authoritative governmental 

determinations in this section to 

provide additional evidence relating to 

an Indian tribe or Native Hawaiian 

Organization (or, possibly, an Indian 

group that is not federally-recognized) 

with the closest connection to the 

culturally unidentifiable human 

remains. These include final judgments 

of the Indian Claims Commission and 

the United States Court of Claims, as 

well as treaties, Acts of Congress, or 

Executive Orders. Treaties signed before 

the establishment of the United States 

between the various colonial 

governments and Indian tribes may be 

used to identify areas aboriginally 

occupied by Indian tribes. Maps of the 

territory ceded under United States 

treaties were originally published in the 

18th Annual Report of the Bureau of 

American Ethnology to the Secretary of 

the Smithsonian Institution, 1896–1897 

(Government Printing Office, 1899) and 

are available online at http:// 

memory.loc.gov/ammem/amlaw/lwssilc.html. Judgments of the Indian Claims 

Commission are available at http:// 

digital.library.okstate.edu/icc/ 

index.html. The drafters note that 

pursuant to provisions of the Indian 

Claims Commission Act, compromises 

(settlements) have the same effect of 

final judgments of the Indian Claims 

Commission ((605 Stat. 1060, 25 U.S.C. 

70a et seq.). 

Comment 72: Two commenters 

recommended including a mechanism 

at § 10.11(b)(2) requiring notification of 

Indian groups that are not federallyrecognized or foreign based groups that 

may have a shared group identity with 

culturally unidentifiable human 

remains. 

Our Response: The Act and 

regulations require museums and 

Federal agencies to consult with lineal 

descendants, Indian tribes, and Native 

Hawaiian organizations. Museum and 

Federal agencies may consult or provide 

notification to foreign based groups or 

Indian groups that are not federallyrecognized as well. 

Comment 73: One commenter 

considered the § 10.11(b)(2)(iii) 

requirement to consult with Indian 

tribes and Native Hawaiian 

organizations with a cultural 

relationship to the region from which 

culturally unidentifiable human 

remains and associated funerary objects 

were removed to be reasonable and 

appropriate. Three commenters 

recommended deleting the requirement. 

Two commenters recommended 

defining the term ‘‘region.’’ One 

commenter recommended clarifying the 

term ‘‘lacking geographic affiliation.’’ 

One commenter recommended 

including provisions to incorporate 

study results, particularly of the age of 

the human remains, and the results of 

consultation. 

Our Response: The diversity of 

opinion regarding the meaning of 

‘‘cultural relationship’’ convinced the 

drafters to remove it as a required 

criteria for consultation regarding the 

disposition of culturally unidentifiable 

human remains in § 10.11(b)(2)(iii). 

Comment 74: Five commenters 

recommended that Indians must not be 

viewed as simply one voice among 

many, but as the primary voice in 

determining the disposition of 

culturally unidentifiable human 

remains. 

Our Response: These regulations 

require museum and Federal agency 

officials to make certain decisions 

regarding the disposition of culturally 

unidentifiable human remains. While 

the regulations require that these 

decisions are made in consultation with 

Indian tribes and Native Hawaiian 

organizations, the responsibility for 

making the decision remains with the 

museum or Federal agency official. 

Indian tribes and Native Hawaiian 

organizations assume sole responsibility 

for disposition once the museum or 

Federal agency transfers control of 

culturally unidentifiable human 

remains. 

Comment 75: Two commenters 

requested clarification as to whether the 

requirements of § 10.11(b)(1) and (b)(2) 

were independent of each other. 

Our Response: The two sections are 

related. Section 10.11(b)(1) specifies 

when consultation must begin: either 

within 90 days of receipt of a request to 

transfer control or, absent such a 

request, before any offer to transfer 

control. Section 10.11(b)(2) specifies 

who must be consulted in either 

situation. 

Section 10.11(b)(3) Information 

Provided 

Section 10.11(b)(3) outlines the 

information that museum or Federal 

agency officials must provide to all 

consulted Indian tribes and Native 

Hawaiian organizations. 


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Comment 76: One commenter 

recommended revising § 10.11(b)(3) to 

clarify that the specified information 

must be provided to all Indian tribes 

and Native Hawaiian organizations with 

which the museum or Federal agency is 

consulting ‘‘or should have consulted.’’ 

Our Response: Refusing to provide the 

specified information to one of the 

Indian tribes identified in § 10.11(b)(2) 

would constitute a failure to comply 

under § 10.12(b)(vii). 

Comment 77: Two commenters 

suggested that § 10.11(b)(3) require 

museums and Federal agencies to send 

information as part of consultation to 

Indian groups that are not federallyrecognized. Two commenters 

questioned the legal basis for requiring 

a museum or Federal agency to provide 

a list of Indian groups that are not 

federally-recognized that are known to 

have a relationship of shared group 

identity with the particular human 

remains and associated funerary objects. 

Our Response: In the two sections of 

the Act that impose mandatory 

priorities for control or disposition of 

human remains (25 U.S.C. 3002 and 

3005), Congress limited the recipients to 

federally-recognized Indian tribes (in 

addition to lineal descendants and 

Native Hawaiian organizations) in 

recognition of the government-togovernment relationship between such 

tribes and the United States. In 

expanding the possible recipients of 

culturally unidentifiable human 

remains, with or without associated 

funerary objects, the Secretary followed 

the lead of Congress both in assuring 

that such cultural items went to the 

Indian group that had the closest 

cultural connection to the items, even if 

that group is not federally-recognized, 

and in maintaining the priority position 

of the government-to-government 

relationship, by not making such a 

disposition mandatory. In keeping with 

the voluntary nature of such 

disposition, consultation with Indian 

groups that are not federally-recognized 

is at the discretion of the museum or 

Federal agency. 

Comment 78: One commenter 

recommended that the Secretary 

provide a list of Indian groups that are 

not federally-recognized to facilitate the 

consultation efforts of museums and 

Federal agencies. 

Our Response: Museums and Federal 

agencies are not required to consult 

with Indian groups that are not 

federally-recognized. However, they 

may wish to consult with Indian groups 

that are not federally-recognized, 

particularly if such groups are known to 

have a relationship of shared group 

identity with culturally unidentifiable 

human remains and associated funerary 

objects in the possession or control of 

the museum or Federal agency. Section 

10.11(b)(3)(ii) requires museums and 

Federal agencies to provide consulted 

Indian tribes and Native Hawaiian 

organizations with a list of any Indian 

groups that are not federally-recognized 

and is known to have a relationship of 

shared group identity with such human 

remains and associated funerary objects 

in order to facilitate consultation 

regarding appropriate disposition. Thus, 

the museum or Federal agency, and not 

the Secretary, would possess the list of 

such groups on a case by case basis. 

Comment 79: One commenter 

suggested that the Secretary require a 

museum or Federal agency to state its 

reasoning for consultation with an 

Indian group that is not federallyrecognized. 

Our Response: Because the 

regulations do not require such 

consultation, they do not require a 

museum or Federal agency to provide 

the basis for such consultation. 

However, under § 10.11(b)(4)(iv), the 

museum or Federal agency must request 

the names and addresses of Indian 

groups that are not federally-recognized 

during consultation with relevant 

Indian tribes or Native Hawaiian 

organizations. An appropriate subject 

for the consultation in the context of 

such a request would be the reason why 

the museum or Federal agency needs to 

consult with those groups. 

Comment 80: One commenter 

suggested rewording § 10.11(b)(3)(ii) to 

remove the passive voice and clarify 

that the subject list is of the ‘‘Indian 

groups that are not federally-recognized 

that the museum or Federal agency 

knows shares’’ a group identity with the 

particular human remains and 

associated funerary objects. 

Our Response: The drafters agree that, 

generally, any such knowledge would 

be within the museum or Federal 

agency, but prefer to leave the 

requirement in the passive voice to 

allow for other sources, such as the 

general literature. 

Comment 81: One commenter 

requested clarification in 

§ 10.11(b)(3)(ii) of what is a legitimate 

Indian group that is not federallyrecognized and what makes such a 

group ‘‘known.’’ 

Our Response: Consultation with 

Indian groups that are not federallyrecognized is not required by the Act or 

these regulations. Museums and Federal 

agencies are required to provide 

consulted Indian tribes and Native 

Hawaiian organizations with a list of 

any Indian groups that are not federallyrecognized that are known to have a 

relationship of shared group identity 

with particular human remains and 

associated funerary objects. 

Determinations as to whether such a 

relationship of shared group identity 

exists may be done on a case-by-case 

basis relying upon the types of evidence 

outlined at § 10.14 of these regulations. 

Section 10.11(b)(4) Information 

Requested 

Section 10.11(b)(4) outlines the 

information that museum and Federal 

agency officials must request from 

consulted Indian tribes and Native 

Hawaiian organizations. 

Comment 82: One commenter was 

concerned that § 10.11(b)(4)(iii) gives 

Indian tribes and Native Hawaiian 

organizations complete authority to 

determine the criteria to be used in 

identifying groups of human remains 

and associated funerary objects for 

consultation. 

Our Response: Museum and Federal 

agency officials are required to request 

temporal and/or geographic criteria to 

be used to identify groups of human 

remains and associated funerary objects 

for consultation. Additional criteria may 

also be used to identify the focus of 

consultation. 

Comment 83: Two commenters were 

concerned that § 10.11(b)(4)(v) gives 

Indian tribes and Native Hawaiian 

organizations authority to singlehandedly and unilaterally determine the 

consultation schedule and process. 

Our Response: Museum and Federal 

agency officials are required to request 

consultation schedules and process 

preferences from Indian tribes and 

Native Hawaiian organizations. The 

consultation schedule and process that 

is actually used will depend on other 

factors as well. 

Section 10.11(b)(5) Disposition 

Proposals 

Section 10.11(b)(5) directs museum 

and Federal agency officials to seek to 

develop a proposed disposition for 

culturally unidentifiable human 

remains and associated funerary objects 

that is mutually agreeable to the parties 

and consistent with this part. 

Comment 84: Six commenters 

recommended revising § 10.11(b)(5) to 

require the museum or Federal agency 

official to develop a proposed 

disposition for culturally unidentifiable 

human remains and associated funerary 

objects that is mutually agreeable to the 

parties specified in § 10.11(b)(2). One 

commenter recommended that the 

museum or Federal agency official 

should consider proposed dispositions 

developed by and mutually agreeable to 

the parties specified in § 10.11(b)(2). 


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One commenter recommended that this 

paragraph address what would happen 

if the parties do not agree on a proposed 

disposition. One commenter 

recommended that if no agreement is 

reached, the museum or Federal agency 

should be able to determine disposition 

in good faith and be protected from 

liability. 

Our Response: This paragraph 

strongly encourages museum and 

Federal agency officials to seek to 

develop proposed dispositions that are 

mutually agreeable to the parties 

specified in § 10.11(b)(2). It is 

recognized that the interests of the 

various parties may differ and that 

obtaining a mutually agreeable proposal 

is beyond the ability of any single party. 

Comment 85: One commenter 

recommended revising § 10.11(b)(5) to 

clarify that disposition of funerary 

objects associated with culturally 

unidentifiable human remains is 

advised but not required. 

Our Response: Section 10.11(c)(5) 

which has been renumbered as 

§ 10.11(c)(4) clarifies that a museum or 

Federal agency may transfer control of 

funerary objects that are associated with 

culturally unidentifiable human 

remains and that the Secretary 

recommends that museums and Federal 

agencies engage in such transfers 

whenever Federal or State law would 

not otherwise preclude transfers. 

Comment 86: One commenter 

recommended revising § 10.11(b)(5) to 

establish a basis for determining the 

right of claim or strength of relationship 

among the parties specified in 

§ 10.11(b)(2). 

Our Response: The priority of claim is 

established by § 10.11(b)(2). A claim for 

culturally unidentifiable human 

remains made by an Indian tribe or 

Native Hawaiian organization from 

whose tribal land, at the time of the 

excavation or removal, the human 

remains were removed has a higher 

priority than a claim made by an Indian 

tribe that is recognized as aboriginally 

occupying the area from which the 

human remains were removed. 

Comment 87: One commenter was 

concerned that limiting agreement in 

§ 10.11(b)(5) to only those parties 

identified in § 10.11(b)(2) will vitiate the 

careful consideration of evidence 

required by the Act and leave the door 

wide open to transfers of control to 

groups with no significant relationship 

to the human remains. 

Our Response: Museum and Federal 

agency officials are free to consult with 

any party that may help inform the 

development of a proposed disposition. 

However, the parties identified in 

§ 10.11(b)(2) must be consulted and the 

museum or Federal agency official 

should, at a minimum seek to develop 

a proposed disposition for culturally 

unidentifiable human remains and 

associated funerary objects that is 

mutually agreeable to the parties. 

Comment 88: One commenter 

recommended revising § 10.11(b)(5) to 

indicate that a museum or Federal 

agency and involved Indian parties 

should be free to reach any agreement 

as to disposition that is permitted by all 

applicable laws. 

Our Response: Museum and Federal 

agency officials may be bound by other 

Federal, state, or local ordinances 

regarding the disposition of culturally 

unidentifiable human remains and 

associated funerary objects in their 

possession or control. Section 

10.11(b)(5) stipulates that all such 

agreements must be consistent with 

these regulations at a minimum. 

Section 10.11(b)(6) Determinations of 

Lineal Descent or Cultural Affiliation 

Section 10.11(b)(6) stipulates that the 

notification and repatriation provisions 

of §§ 10.9(e) and 10.10(b) apply if 

human remains and associated funerary 

objects previously determined to be 

culturally unidentifiable are actually 

culturally affiliated with an Indian tribe 

or Native Hawaiian organization. 

Comment 89: One commenter 

recommended that the language in 

§ 10.11(b)(6) be clarified to indicate that 

the notification and repatriation 

provisions would also apply if 

consultation resulted in the 

identification of a lineal descendant. 

One commenter recommended 

rephrasing the section for clarity. 

Our Response: The text has been 

revised with additional text indicating 

that the notification and repatriation 

provisions would apply if consultation 

resulted in the identification of a lineal 

descendant. 

Comment 90: One commenter 

objected to what he considered a 

presumption in § 10.11(b)(6) that 

skeletal materials that have not been 

identified with a cultural group can 

never be correctly identified. 

Our Response: The drafters anticipate 

that the consultation process will result 

in decisions that human remains and 

associated funerary objects previously 

determined to be culturally 

unidentifiable are actually culturally 

affiliated with Indian tribes and Native 

Hawaiian organizations. This 

paragraphs makes it clear that the 

notification and repatriation 

requirements of § 10.9(e) and § 10.10(b) 

apply when a determination of cultural 

affiliation is made. 

Section 10.11(c) Disposition 

Paragraph(c) establishes a priority 

listing and procedures for the 

disposition of culturally unidentifiable 

human remains. 

Comment 91: The preamble to the 

proposed rule specifically requested 

comments regarding the appropriateness 

of using a priority structure in 

determining the disposition of 

culturally unidentifiable human 

remains. The priority structure 

proposed in § 10.11(c) was based on the 

similar priority structure in section 3 of 

the Act. Sixteen commenters generally 

supported use of the proposed priority 

structure. Nine commenters objected to 

use of any priority structure based on 

criteria other than lineal descent or 

cultural affiliation. 

Our Response: The Review Committee 

is responsible for recommending 

specific actions for developing a process 

for disposition of culturally 

unidentifiable human remains (25 

U.S.C. 3006 (c)(5)). Since 1992, the 

Review Committee has recommended 

the disposition of specific culturally 

unidentifiable human remains based on 

their removal from the aboriginal land 

of an Indian tribe, their shared group 

identity with an Indian group that is not 

federally-recognized, and reburial 

pursuant to otherwise applicable state 

burial law. The Review Committee’s 

recommendations in these cases have 

been reviewed by the Secretary of the 

Interior and generally endorsed. Such 

dispositions are clearly within the 

Secretary’s authority under current 

regulations. The proposed rule would 

simply authorize museums and Federal 

agencies to effect such dispositions to 

Indian tribes and Native Hawaiian 

organizations without direct reliance 

upon the Secretary. 

Comment 92: Three commenters 

recommended that the ‘‘priority 

structure’’ should not be the only factor 

for determining the disposition of either 

culturally affiliated or culturally 

unidentifiable human remains, such as 

agreements between Indian tribes 

regarding disposition. 

Our Response: Agreements between a 

Federal agency or museum and 

culturally affiliated Indian tribes or 

Native Hawaiian organizations 

regarding the disposition of, or control 

over, Native American human remains, 

funerary objects, sacred objects, or 

objects of cultural patrimony are 

specifically authorized by section 

11(1)(B) of the Act (25 U.S.C. 

3009(1)(B)). Agreements regarding the 

return of culturally unidentifiable 

human remains and associated funerary 

objects to Indian tribes, Native Hawaiian 


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organizations, or individuals are also 

authorized by section 11(1)(A) of the 

Act (25 U.S.C. 3009(1)(A)). The drafters 

have added a new subsection at 

§ 10.11(c)(2)(i) to facilitate such 

voluntary dispositions. 

Comment 93: One commenter urged 

inclusion of guidelines clearly 

specifying the level of effort that will be 

required to determine if culturally 

unidentifiable human remains fit the 

proposed priority categories. 

Our Response: Guidelines specifying 

the level of effort necessary to determine 

the applicability of these, or other 

definitions within the regulations, are 

already provided by the statute and 

regulations. For instance, 

determinations regarding the cultural 

affiliation of human remains, or the lack 

thereof, are to be made, to the extent 

possible, based on information 

possessed by a museum or Federal 

agency (25 U.S.C. 3003(a)). New 

scientific studies of such remains and 

associated funerary objects, or other 

means of acquiring or preserving 

additional scientific information from 

such remains and objects, are not 

required by the statute (25 U.S.C. 

3003(b)(2)). 

Comment 94: One commenter urged 

consideration of a single unified effort 

to specifically identify and map tribal 

and aboriginal lands. 

Our Response: Maps of tribal land, 

Indian Claims Commission decisions, 

and treaty areas are currently posted at: 

http://www.nps.gov/history/nagpra/. 

Comment 95: Three commenters were 

concerned that assigning disposition of 

culturally unidentifiable human 

remains to a particular culture group 

might result in some skeletal remains 

being transferred to a group to which 

they do not belong, including some of 

European, African, and Asian ancestry. 

Our Response: All museums and 

Federal agencies were required to 

compile inventories of human remains 

and associated funerary objects. Each 

museum and Federal agency was 

responsible for determining if the 

human remains and associated funerary 

objects were Native American in the 

first instance. Human remains that were 

not identified as Native American were 

not to be included on the inventory. 

Museums and Federal agencies that 

wish to amend a previous decision may 

do so pursuant to § 10.13(e). 

Section 10.11(c)(1) Required Offers to 

Transfer Control 

Section 10.11(c)(1) requires a museum 

or Federal agency to offer to transfer 

control of culturally unidentifiable 

human remains for which it cannot 

prove right of possession to Indian 

tribes or Native Hawaiian organizations 

according to two priority categories. 

Comment 96: One commenter 

recommended that the ‘‘offer to transfer 

control’’ referred to in § 10.11(c)(1) must 

be developed in consultation with 

Indian tribes and Native Hawaiian 

organizations. 

Our Response: Any offer to transfer 

control must be developed in 

consultation with the Indian tribes and 

Native Hawaiian organizations 

identified in § 10.11(b)(2). 

Comment 97: Two commenters 

recommended that museums and 

Federal agencies should not be required 

to initiate efforts to transfer control of 

culturally unidentifiable human 

remains absent a request from an Indian 

tribe or Native Hawaiian organization 

with the right to make such a claim. 

Our Response: Under § 10.11(b)(1)(i), 

a museum or Federal agency official 

must initiate consultation regarding the 

disposition of culturally unidentifiable 

human remains and associated funerary 

objects within 90 days of receipt of a 

request from an Indian tribe or Native 

Hawaiian organization to transfer 

control of such items. Absent such a 

request, the museum or Federal agency 

official may voluntarily offer to transfer 

control, in which case they must initiate 

consultation prior to making such an 

offer. 

Comment 98: Nine commenters 

supported the proposed provision in 

§ 10.11(c)(1) requiring that a museum or 

Federal agency offer to transfer 

culturally unidentifiable human 

remains to certain classes of Indian 

tribes unless it can prove that it has the 

right of possession to the remains. 

Seven commenters generally opposed 

the same provision, claiming that 

museums and Federal agencies should 

not have to prove that right to keep their 

collections. 

Our Response: The opportunity for a 

museum or Federal agency to assert that 

it has the right of possession to 

culturally unidentifiable human 

remains is consistent with the 

provisions in § 10.15 of the regulations 

concerning repatriation of culturally 

affiliated human remains and the intent 

of Congress to recognize such a right as 

an exception to repatriation of human 

remains under section 7 of the Act (25 

U.S.C. 3003)). The Secretary believes 

that it is appropriate to recognize that 

right as an exception for these remains 

as well. 

Comment 99: One commenter 

questioned the use of the term ‘‘right of 

possession’’ with respect to human 

remains, stating that one person cannot 

own another person, alive or dead. 

Our Response: Although the use of 

this term, as well as the term ‘‘culturally 

unidentifiable’’ is sensitive, Congress 

used both of these terms with specific 

meanings and consequences in the Act, 

so they must be used in the regulations 

with respect to those same meanings 

and consequences. 

Comment 100: Eight commenters 

stated that proving right of possession to 

culturally unidentifiable human 

remains would be ‘‘impossible’’ since 

only a culturally affiliated Indian tribe 

can grant consent. 

Our Response: Under NAGPRA, ‘‘the 

original acquisition of Native American 

human remains and associated funerary 

objects which were excavated, 

exhumed, or otherwise obtained with 

full knowledge and consent of the next 

of kin or the official governing body of 

the appropriate culturally affiliated 

Indian tribe or Native Hawaiian 

organization is deemed to give right of 

possession to those remains’’ (25 U.S.C. 

3001(13)). Further, ‘‘the governing body 

of an Indian tribe or Native Hawaiian 

organization [may] expressly relinquish 

* * * control over any Native American 

human remains’’ acquired pursuant to 

the ownership provisions of the Act (25 

U.S.C. 3002(e)). Thus, Congress has 

defined the right of possession for these 

cultural items, and the Secretary cannot 

change that definition. The Secretary 

does note, however, that the ‘‘full 

knowledge and consent of the next of 

kin’’ would bring freely donated organs 

and other body parts within the right of 

possession. Furthermore, the exception 

listed at § 10.10(c)(3) applies to the 

requirements of § 10.11(c)(1). 

Comment 101: Four commenters 

requested that the final rule be very 

clear that the burden of proof for the 

right of possession of culturally 

unidentifiable human remains is on the 

museum or Federal agency. 

Our Response: The Secretary agrees 

that the burden of proof is on the 

museum or Federal agency, and that, as 

the proposed and final rule states, if a 

museum or Federal agency ‘‘is unable to 

prove that it has right of possession’’, it 

must offer to transfer the remains, with 

or without associated funerary objects 

(25 U.S.C. 3005(c)) upon receipt of a 

request. 

Comment 102: Three commenters 

stated that a museum or Federal agency 

should be presumed to have the legal 

right of possession to its collection, 

unless shown to be otherwise. The 

commenters asserted that such a 

presumption would be consistent with 

the treatment of archaeological 

resources as property of the United 

States under the Archaeological 

Resources Protection Act (ARPA) and 


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with state laws relating to property 

rights and private ownership of human 

remains and artifacts taken from private 

property. Culturally unidentifiable 

human remains should be retained by 

museums and Federal agencies in the 

public trust. 

Our Response: Congress specifically 

chose to change the ownership 

presumption in ARPA when it enacted 

NAGPRA, as evidenced by the 

requirement for a museum or Federal 

agency to prove that it has the right of 

possession to culturally affiliated 

human remains under section 7 of 

NAGPRA. With respect to state property 

laws and presumptions of ownership, 

NAGPRA is Federal law, and, as such, 

under the Supremacy Clause of the 

Constitution (Art. VI, cl. 2; Lorillard 

Tobacco Co. v. Reilly, 533 US 525 

(2001)) would preempt any state law on 

the same subject matter. This is 

especially true in Indian affairs, where 

the United States has plenary and 

exclusive power (Art. I, Sec. 8, cl. 3; 

Worcester v. Georgia, 31 US 515, 6 Pet 

515 (1832)). 

Comment 103: Two commenters 

recommended excluding human 

anatomical collections used by medical 

schools for training. 

Our Response: Though not excluded 

from the inventory provisions, medical 

schools that receive Federal funds 

would not be required to repatriate 

Native American human remains 

obtained with the voluntary consent of 

an individual or group that had 

authority of alienation. 

Comment 104: Six commenters 

supported the provision at 

§ 10.11(c)(1)(i) requiring museums and 

Federal agencies to offer to transfer 

control of culturally unidentifiable 

human remains to the Indian tribe or 

Native Hawaiian organization from 

whose tribal land, at the time of 

excavation or removal, the human 

remains were removed. One commenter 

objected to the provision since it may 

force a museum or Federal agency to 

transfer human remains to an Indian 

tribe or Native Hawaiian organization 

with which they are not culturally 

affiliated. 

Our Response: Disposition of human 

remains, funerary objects, sacred 

objects, and objects of cultural 

patrimony to Indian tribes based on 

criteria other than cultural affiliation 

was clearly anticipated by Congress. 

Section 3(a)(2)(A) of the Act (25 U.S.C. 

3002(a)(2)(A)), which was used as the 

model for the proposed provision, 

specifically authorizes disposition of 

human remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

excavated or discovered on tribal lands 

after November 16, 1990 to the Indian 

tribe or Native Hawaiian organization in 

control of that tribal land. Significantly, 

under section 3 of the Act, ownership or 

control based on tribal land is given a 

higher priority order than cultural 

affiliation. The drafters consider 

disposition of culturally unidentifiable 

human remains to the Indian tribe or 

Native Hawaiian organization from 

whose tribal land, at the time of 

excavation or removal, the human 

remains were removed, to be reasonable 

and appropriate. 

Comment 105: One commenter 

recommended revising § 10.11(c)(1)(i) to 

require an offer to transfer control of 

culturally unidentifiable human 

remains to the Indian tribe or Native 

Hawaiian organization on whose tribal 

land the remains were originally buried, 

and not just to the Indian tribe or Native 

Hawaiian organization from whose 

tribal land the remains were excavated. 

Our Response: The concept of tribal 

land as used in these regulations applies 

to all lands which are currently within 

the exterior boundary of any Indian 

reservation, comprise a dependent 

Indian community, or are administered 

for the benefit of Native Hawaiians 

pursuant to the Hawaiian Homes 

Commission Act (25 U.S.C. 3001 (15)). 

Human remains that were buried on 

tribal land which was subsequently 

transferred to another party are likely to 

be of relatively recent age, making it 

very likely that a lineal descendant or 

culturally affiliated Indian tribe or 

Native Hawaiian organization can be 

determined. 

Comment 106: One commenter 

requested clarification of what 

constitutes ‘‘tribal lands’’ in Oklahoma. 

Our Response: ‘‘Tribal lands’’ are 

defined at § 10.2(f)(2) and include all 

lands which (1) Are within the exterior 

boundaries of any Indian reservation 

including, but not limited to, allotments 

held in trust or subject to a restriction 

on alienation by the United States; (2) 

comprise dependent Indian 

communities; or (3) are administered for 

the benefit of Native Hawaiians 

pursuant to the Hawaiian Homes 

Commission Act. Given the diversity of 

Indian land ownership, the 

determination of whether a particular 

parcel or area is ‘‘tribal lands’’ for 

purposes of this definition is made on 

a case-by-case basis, consistent with 

case law developed by the Supreme 

Court and other Federal courts, for 

example, Alaska v. Native Village of 

Venetie Tribal Government, 522 U.S. 

520 (1998). That determination is 

especially difficult in certain parts of 

the United States, such as Oklahoma 

and California. 

Comment 107: Five commenters 

supported the provision at 

§ 10.11(c)(1)(ii) requiring museums and 

Federal agencies to offer to transfer 

control of culturally unidentifiable 

human remains to the Indian tribe or 

tribes from whose aboriginal land the 

human remains were removed. Two 

commenters opposed such returns that 

are not based on cultural affiliation. 

Our Response: Disposition of human 

remains, funerary objects, sacred 

objects, and objects of cultural 

patrimony to Indian tribes based on 

criteria other than cultural affiliation 

was clearly anticipated by Congress. 

Section 3(a)(2)(C) of the Act (25 U.S.C. 

3002(a)(2)(C)), which was used as the 

model for the proposed provision, 

specifically authorizes disposition of 

human remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

excavated or discovered on aboriginal 

lands after November 16, 1990 to the 

Indian tribe that aboriginally occupied 

the area in which the cultural items 

were discovered. Consistent with the 

terms of the statute, the drafters 

consider disposition of culturally 

unidentifiable human remains to the 

Indian tribe or tribes that are recognized 

as aboriginally occupying the area from 

which the human remains were 

recovered to be reasonable and 

appropriate given that often the 

designation of culturally unidentifiable 

is due to a lack of information 

occasioned by less than optimal 

collection practices. 

Comment 108: One commenter 

recommended changing the phrase 

‘‘Indian tribe or tribes that are 

recognized * * *’’ in § 10.11(c)(1)(ii) to 

‘‘Indian tribe that is recognized * * *’’ 

One commenter requested clarification 

as to whether this provision would 

apply to an Indian group that is not 

federally-recognized. 

Our Response: The drafters included 

both the singular and plural forms of the 

term ‘‘Indian tribe’’ to acknowledge that 

many United States treaties were signed 

by representatives of more than one 

Indian tribe. Regardless, when 

interpreting a statute words importing 

the singular include and apply to 

several persons, parties, or things (1 

U.S.C. 1). When Federal agencies 

publish proposed and final rules in the 

Federal Register that amend existing 

regulations, the agency only publishes 

the portion of the regulations that would 

change. Unless the Federal agency states 

otherwise, all portions of existing 

regulations that are not proposed for 

change in the notice of proposed 

rulemaking remain the same, and still 

apply. Thus, when this final rule refers 

to ‘‘Indian tribes’’, the drafters are using 


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the existing definition of that term, for 

which no change was proposed. That 

definition, at § 10.2(b)(2), only refers to 

federally-recognized Indian tribes. The 

drafters of the final rule were very 

careful to use the term ‘‘Indian group 

that is not federally-recognized’’ when 

those groups were included in a 

provision to try to keep the distinction 

clear. 

Comment 109: One commenter 

objected to authorizing the use of more 

than a final judgment of the Indian 

Claims Commission or United States 

Court of Claims to determine aboriginal 

land in § 10.11 (c)(1)(ii). 

Our Response: While section 3 

(a)(2)(C) of the Act (25 U.S.C. 3002 

(a)(2)(C)) identifies only a final 

judgment of the Indian Claims 

Commission or United States Court of 

Claims as the basis for determining 

aboriginal lands, the drafters intend to 

include the full range of relevant and 

authoritative governmental 

determinations in this section. To 

provide additional evidence relating to 

an Indian tribe or Native Hawaiian 

Organization (or, possibly, an Indian 

group that is not federally-recognized) 

with the closest connection to the 

culturally unidentifiable human 

remains. These include final judgments 

of the Indian Claims Commission and 

the United States Court of Claims, as 

well as treaties, Acts of Congress, or 

Executive Orders. Treaties signed before 

the establishment of the United States 

between the various colonial 

governments and Indian tribes may be 

used to identify areas aboriginally 

occupied by Indian tribes based on the 

acknowledgement of the validity of 

these treaties by the United States. Maps 

of the territory ceded under United 

States treaties were originally published 

in the 18th Annual Report of the Bureau 

of American Ethnology to the Secretary 

of the Smithsonian Institution, 1896– 

1897 (Government Printing Office, 1899) 

and are available online at http:// 

memory.loc.gov/ammem/amlaw/lwssilc.html. Judgments of the Indian Claims 

Commission are available at http:// 

digital.library.okstate.edu/icc/ 

index.html. The drafters note that 

pursuant to provisions of the Indian 

Claims Commission Act, settlements 

have the same effect as final judgments 

of the Indian Claims Commission (605 

Stat. 1060, 25 U.S.C. 70a et seq.). 

Comment 110: One commenter 

recommended provisions be included to 

resolve conflicts over dispositions based 

on aboriginal lands pursuant to 

§ 10.11(c)(1)(ii). 

Our Response: Section 10.11(e) 

addresses the resolution of disputes 

regarding the disposition of culturally 

unidentifiable human remains and 

associated funerary objects, including 

disputes regarding identification of 

aboriginal lands. 

Comment 111: Three commenters 

recommended that determinations of 

aboriginal occupation should not be 

limited to the sources outlined in 

§ 10.11(c)(1)(ii), but should be defined at 

the discretion of the Native 

communities and/or based on the 

‘‘testimony of experts.’’ One commenter 

recommended including provisions 

recognizing final judgments of other 

Federal courts. 

Our Response: The drafters intend to 

include the full range of relevant and 

authoritative governmental 

determinations in this section. These 

may include final judgments from 

Federal Courts, including the United 

States Court of Claims. Museum and 

Federal agency officials may also 

consider other information, such as 

expert testimony, but are not required to 

do so. 

Comment 112: One commenter 

generally supported the disposition of 

culturally unidentifiable human 

remains based on ‘‘cultural 

relationship.’’ Eleven commenters raised 

concerns about using ‘‘cultural 

relationship’’ as the basis for disposition 

of culturally unidentifiable human 

remains. 

Our Response: As noted in the 

response to comment 63 above, the 

diversity of opinion regarding the 

meaning of ‘‘cultural relationship’’ 

convinced the drafters to remove it as a 

required criterion for consultation and 

disposition of culturally unidentifiable 

human remains. 

Comment 113: One commenter was 

concerned that some museums might 

urge Indian tribes and Native Hawaiian 

organizations to accept human remains 

to which they may not have any 

ancestral connection in order to prevent 

turning over such human remains to 

groups with more attenuated ‘‘cultural 

relationships.’’ 

Our Response: The drafters have 

removed the term ‘‘cultural relationship’’ 

as a basis for disposition under 

§ 10.11(c)(1). Consultation may result in 

a determination that human remains 

and associated funerary objects 

previously determined to be culturally 

unidentifiable are actually culturally 

affiliated with an Indian tribe or Native 

Hawaiian organization (43 CFR 

10.11(b)(6)). 

Comment 114: One commenter 

recommended that an Indian tribe’s 

decision regarding the disposition of 

culturally unidentifiable human 

remains should not be contingent upon 

the agreement of other lower priority 

claimants. 

Our Response: Under § 10.11(c)(1), a 

request to transfer control of culturally 

unidentifiable human remains from an 

Indian tribe or Native Hawaiian 

organization from whose tribal land, at 

the time of excavation or removal, the 

human remains were removed is given 

priority and is not contingent upon any 

agreement with another Indian tribe that 

is recognized as aboriginally occupying 

the area from which the human remains 

were removed. 

Comment 115: One commenter 

considered the Review Committee’s 

case-by-case consideration of requests 

for disposition of culturally 

unidentifiable human remains to be 

working well and to be superior to the 

proposed system. 

Our Response: Under current 

regulations (43 CFR 10.9(e)(6)), 

museums must retain possession of 

culturally unidentifiable human 

remains unless legally required to do 

otherwise or recommended to do 

otherwise by the Secretary. For over a 

decade, the Secretary has given full 

consideration to the Review 

Committee’s case-by-case deliberations 

in deciding to make such a 

recommendation. These regulations 

were developed with this case-by-case 

experience in mind, as well as after 

careful consideration of the Review 

Committee’s 2000 final 

recommendations. Dispositions 

involving Indian groups that are not 

federally-recognized or reinterment 

according to State or other law will still 

require a recommendation from the 

Secretary, who may request the Review 

Committee’s advice. 

Section 10.11(c)(2) Voluntary 

Dispositions 

Section 10.11(c)(3) (renumbered as 

§ 10.11(c)(2)) establishes a process for 

the voluntary disposition of culturally 

unidentifiable human remains that are 

not transferred under provisions of 

§ 10.11(c)(1). 

Comment 116: Four commenters 

stated that the claims to culturally 

unidentifiable human remains, with or 

without associated funerary objects, by 

a federally-recognized Indian tribe must 

take priority over any other group. 

Our Response: The Secretary agrees. 

To ensure that the rights of federallyrecognized Indian tribes are protected, a 

museum or Federal agency may only 

transfer control of culturally 

unidentifiable human remains, with or 

without associated funerary objects, to 

an Indian group that is not federallyrecognized after full consultation with 

relevant federally-recognized Indian 


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tribes, with no objection of any of those 

tribes, and upon receiving a 

recommendation from the Secretary. 

Such Indian groups that are not 

federally-recognized would be 

identified through consultation with all 

relevant federally-recognized Indian 

tribes. The Secretary considers that 

these provisions adequately respect and 

protect the sovereignty and rights of 

federally-recognized tribes. 

Comment 117: Seven commenters 

were concerned that any disposition to 

Indian groups that are not federallyrecognized was voluntary and that the 

proposed rule would not force a 

museum or Federal agency to transfer 

control of culturally unidentifiable 

human remains, with or without 

associated funerary objects, to an Indian 

group that is not federally-recognized to 

which the cultural items are clearly 

culturally connected. 

Our Response: In the two sections of 

the Act that impose mandatory 

priorities for control or disposition of 

human remains (Sections 3 and 7), 

Congress limited the recipients to 

federally-recognized Indian tribes (in 

addition to lineal descendants and 

Native Hawaiian organizations) in 

recognition of the government-togovernment relationship between such 

tribes and the United States. In 

expanding the universe of possible 

recipients of culturally unidentifiable 

human remains, with or without 

associated funerary objects, the 

Secretary followed the lead of Congress 

both in assuring that such cultural items 

went to the Indian group that had the 

closest cultural connection to the items, 

even if that group is not federallyrecognized, and in maintaining the 

priority of the government-togovernment relationship, by not making 

such a disposition mandatory to an 

Indian group that is not federallyrecognized. 

Comment 118: Eleven commenters 

were concerned that the provision in 

§ 10.11(c)(3) for voluntary disposition of 

culturally unidentifiable human 

remains, with or without associated 

funerary objects, to an Indian group that 

is not federally-recognized would put a 

museum or Federal agency in the 

position of determining whether a 

particular entity is a ‘‘valid’’ Indian 

group that is not federally-recognized, 

which the commenters asserted that a 

Federal agency or museum lacks the 

authority to make. Some of the 

commenters requested that the Secretary 

define ‘‘an Indian group that is not 

federally-recognized.’’ 

Our Response: Section 10.11(c)(3) has 

been renumbered as § 10.11(c)(2). The 

proposed and final rules do not require 

a museum or Federal agency to make 

such a determination. Rather, during 

consultation, the museum or Federal 

agency supplies relevant federallyrecognized Indian tribes and Native 

Hawaiian organizations with ‘‘a list of 

any Indian groups that are not federallyrecognized that are known to have a 

relationship of shared group identity 

with the particular human remains and 

associated funerary objects’’ (43 CFR 

10.11(b)(3)(ii) (emphasis added), i.e., 

those groups that would be culturally 

affiliated with the human remains and 

associated funerary objects if the group 

was recognized as eligible for the 

special programs and services provided 

by the United States to Indians because 

of their status as Indians. Then, the 

museum or Federal agency requests 

from the federally-recognized Indian 

tribe or Native Hawaiian organization 

‘‘the names and addresses of other * * * 

Indian groups that are not federallyrecognized that should be included in 

the consultations.’’ (43 CFR 

10.11(b)(4)(iv)). Thus, the museum or 

Federal agency must only identify on its 

own any Indian groups that are not 

federally-recognized that the museum or 

Federal agency knows have a 

relationship of shared group identity 

with the culturally unidentifiable 

human remains and associated funerary 

objects. The museum or Federal agency 

can rely on the relevant federallyrecognized Indian tribe or Native 

Hawaiian organization for identification 

of any other relevant groups. A 

definition of ‘‘Indian group that is not 

federally-recognized’’ is not, therefore, 

needed. 

Comment 119: Two commenters 

suggested that Indian groups that are not 

federally-recognized should be required 

to submit a claim for culturally 

unidentifiable human remains, with or 

without associated funerary objects, 

through, or in association with, a 

federally-recognized tribe. 

Our Response: To ensure that the 

rights of federally-recognized Indian 

tribes are protected, a museum or 

Federal agency may only transfer 

control of culturally unidentifiable 

human remains, with or without 

associated funerary objects, to an Indian 

group that is not federally-recognized 

after full consultation with relevant 

federally-recognized Indian tribes, with 

no objection from any of those Indian 

tribes following consultation, and upon 

receiving a recommendation from the 

Secretary. Such Indian groups that are 

not federally-recognized would be 

identified through consultation with all 

relevant federally-recognized Indian 

tribes. The Secretary considers that 

these provisions adequately respect and 

protect the sovereignty and rights of 

federally-recognized tribes. The 

commenters’ suggestion might work in 

some areas of the country, but would be 

less effective in other areas, for example, 

California and parts of the eastern 

United States where the number of 

Indian groups that are not federallyrecognized far exceeds the number of 

federally-recognized Indian tribes. 

Comment 120: One commenter was 

concerned that the consultation with, 

and possible transfer of control to, 

Indian groups that are not federallyrecognized would be used by those 

groups as leverage for Federal 

recognition. Another commenter 

considers requiring each museum and 

Federal agency to prepare and distribute 

a list of Indian groups that are not 

federally-recognized inconsistent with 

the Federal acknowledgement process. 

Our Response: Congress specifically 

stated in the Act that it ‘‘reflects the 

unique relationship between the Federal 

Government and Indian tribes and 

Native Hawaiian organizations and 

should not be construed to establish a 

precedent with respect to any other 

individual, organization or foreign 

government,’’ (25 U.S.C. 3010), which 

would include an Indian group that is 

not federally-recognized. The preamble 

to the proposed rule clearly stated, and 

this preamble again emphasizes, that 

‘‘the Secretary’s recommendation 

regarding the disposition of culturally 

unidentifiable human remains or 

associated funerary objects to an Indian 

group that is not federally-recognized 

does not indicate Federal recognition of 

the group’s status as an Indian tribe or 

the existence of a government-togovernment relationship’’ (72 FR 58586). 

Finally, the Federal acknowledgement 

process addressed in 25 CFR part 83 is 

detailed and rigorous, and it is highly 

unlikely, especially given the 

disclaimers from both Congress and the 

Secretary, that consultation with, or 

possible transfer of control to, an Indian 

group that is not federally recognized 

would satisfy any of the criteria 

required in that process. 

Comment 121: One commenter was 

concerned that transfer of control of 

culturally unidentifiable human 

remains, with or without associated 

funerary objects, to unaffiliated Indian 

tribes or to Indian groups that are not 

federally-recognized would preclude 

future transfer of human remains to 

affiliated tribes and thereby cause injury 

to museums and Federal agencies. 

Our Response: In section 7(f) of the 

Act (25 U.S.C. 3005), Congress 

specifically provided in that ‘‘[a]ny 

museum which repatriates any item in 

good faith pursuant to this chapter shall 


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not be liable for claims by an aggrieved 

party or for claims of breach of fiduciary 

duty, public trust, or violations of state 

law that are inconsistent with the 

provisions of this chapter.’’ To ensure 

that the rights of federally-recognized 

Indian tribes are protected, a museum or 

Federal agency may only transfer 

control of culturally unidentifiable 

human remains, with or without 

associated funerary objects, to an Indian 

group that is not federally-recognized 

after full consultation with relevant 

federally-recognized Indian tribes, with 

no objection of any of those tribes, and 

upon receiving a recommendation from 

the Secretary. Such Indian groups that 

are not federally-recognized would be 

identified through consultation with all 

relevant federally-recognized Indian 

tribes. The Secretary considers that 

these provisions adequately respect and 

protect the sovereignty and rights of 

federally-recognized tribes. 

Comment 122: One commenter 

suggested that Indian groups that are not 

federally-recognized, Indian regional 

organizations, and Indian national 

organizations should be able to make a 

claim for culturally unidentifiable 

human remains, with or without 

associated funerary objects, when no 

federally-recognized Indian tribe does 

so. 

Our Response: In the two sections of 

NAGPRA that impose mandatory 

priorities for control or disposition of 

human remains (Sections 3 and 7), 

Congress intentionally limited the 

recipients to federally-recognized Indian 

tribes (in addition to lineal descendants 

and Native Hawaiian organizations) in 

recognition of the government-togovernment relationship between such 

tribes and the United States. In 

expanding the universe of possible 

recipients of culturally unidentifiable 

human remains, with or without 

associated funerary objects, the 

Secretary followed the lead of Congress 

in making sure that such cultural items 

went to the Indian group that had the 

closest cultural connection to the items, 

even if that group is not federallyrecognized. In recognition of the 

importance of that cultural connection, 

and of tribal sovereignty, the Secretary 

has not expanded the definition or the 

scope of the parties that are eligible to 

make claims to include regional and 

national Indian organizations. The 

ultimate disposition of culturally 

unidentifiable human remains, with or 

without associated funerary objects, 

control of which is not transferred 

under these regulations, is outside the 

scope of these regulations and reserved 

for § 10.15(b). 

Comment 123: Twelve commenters 

generally supported the inclusion in the 

proposed rule of the disposition of 

culturally unidentifiable human 

remains, with or without associated 

funerary objects, to Indian groups that 

are not federally-recognized. Thirteen 

commenters generally opposed the 

proposal to allow for disposition of 

culturally unidentifiable human 

remains, with or without associated 

funerary objects, to Indian groups that 

are not federally-recognized. 

Our Response: As noted in the Review 

Committee’s 2000 Recommendations, 

and reflected in the preamble of the 

proposed rule, one of the categories of 

culturally unidentifiable human 

remains is those remains ‘‘for which 

cultural affiliation could be determined 

except that the appropriate Indian 

organization is not federally-recognized 

as an Indian tribe’’ (65 FR 36462, 36463 

(2000)). In attempting to find a solution 

for the disposition of this category of 

human remains, the Secretary 

considered the overall intent of 

Congress in section 7 of the Act (25 

U.S.C. 3005) to return control of Native 

American human remains in the 

possession of museums and Federal 

agencies to persons or entities with the 

closest cultural connection to those 

remains. While a mandate for return of 

control to Indian groups that are not 

federally-recognized would be contrary 

to the terms of NAGPRA and to the 

government-to-government relationship 

between the United States and federallyrecognized Indian tribes, nothing in the 

Act prohibits the voluntary transfer of 

human remains, with or without 

associated funerary objects, to 

‘‘culturally affiliated’’ Indian groups that 

are not federally-recognized, with 

appropriate safeguards for the rights of 

federally-recognized Indian tribes. 

Comment 124: Seven commenters 

were concerned that disposition of 

culturally unidentifiable human 

remains, with or without associated 

funerary objects, to Indian groups that 

are not federally-recognized would be 

voluntary and recommended that any 

such disposition should be (1) 

addressed through regional tribal 

consultation; and (2) brought before the 

Review Committee. 

Our Response: To ensure that the 

rights of federally-recognized Indian 

tribes are protected, a museum or 

Federal agency may only transfer 

control of culturally unidentifiable 

human remains, with or without 

associated funerary objects, to an Indian 

group that is not federally-recognized 

after full consultation with relevant 

federally-recognized Indian tribes, with 

no objection from any of those tribes, 

and upon receiving a recommendation 

from the Secretary. Although, in respect 

of tribal sovereignty and the 

government-to-government relationship, 

the Secretary cannot mandate that 

museums and Federal agencies consult 

only on a regional basis, tribes may 

make arrangements for such 

consultations. In the past, the Secretary 

has referred requests for the disposition 

of culturally unidentifiable human 

remains to the Review Committee, 

under section 8(c)(8) of the Act (25 

U.S.C. 3006(c)(8)) (‘‘performing such 

other related functions as the Secretary 

may assign to the committee’’) and 

requested the Review Committee’s 

advice before making recommendations 

on the disposition request. In 

formulating his or her recommendation 

concerning a disposition to an Indian 

group that is not federally-recognized, 

the Secretary will decide, on a case-bycase basis, whether the advice of the 

Review Committee would be useful, 

and, if so, will seek that advice. 

Comment 125: Three commenters 

objected to the proposed provision in 

§ 10.11(c)(3)(ii) that provides authority 

for voluntary reinterment under state 

law of culturally unidentifiable human 

remains, with or without associated 

funerary objects, stating that such 

reburial by non-tribal people would be 

considered inappropriate by tribal 

leaders and members. 

Our Response: Section 10.11(c)(3)(ii) 

has been renumbered as § 10.11(c)(ii)(B). 

The Secretary notes that any such 

reinterment would only occur after full 

consultation with relevant federallyrecognized Indian tribes, with no 

objection from any of those tribes, and 

upon receiving a recommendation from 

the Secretary under § 10.11(c)(3). 

Comment 126: One commenter 

suggested that the final rule should 

include a disposition process that 

involves consultation with regional 

consortia and appropriate state agencies, 

citing the California law providing for 

repatriation to federally-recognized 

Indian tribes and Indian groups that are 

not federally-recognized (Health and 

Safety Code 8010, et seq.). Another 

commenter encouraged museums and 

Federal agencies to work with state 

officials since they are the most 

responsive to local needs and issues. 

Our Response: Although, in respect of 

tribal sovereignty and the governmentto-government relationship, the 

Secretary cannot mandate that museums 

and Federal agencies consult on a 

regional basis, tribes may make 

arrangements for such consultations. 

California, Iowa, New Mexico, and 

several other states have put in place or 

are considering state processes similar 


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to NAGPRA. Federal agencies and 

museums are encouraged to consult 

with their appropriate state agencies, 

especially if they propose to voluntarily 

transfer control to an Indian group that 

is not federally-recognized under 

§ 10.11(c)(2)(ii)(A) or reinter culturally 

unidentifiable human remains, with or 

without associated funerary objects, 

pursuant to state law under 

§ 10.11(c)(2)(ii)(B). 

Comment 127: One commenter stated 

that, if culturally unidentifiable human 

remains, with or without associated 

funerary objects, are not claimed, the 

remains should continue to be in the 

care of the museum or Federal agency, 

without precluding future repatriation. 

Our Response: In such a situation, the 

museum or Federal agency may, under 

the final rule, transfer control of the 

remains, with or without the funerary 

objects, to an Indian group that is not 

federally-recognized, reinter them under 

state law, or enter into an agreement 

with a federally-recognized Indian tribe 

for other disposition. The ultimate 

disposition of culturally unidentifiable 

human remains, with or without 

associated funerary objects, control of 

which is not transferred under these 

regulations, is outside the scope of these 

regulations and reserved for Section 

10.15(b). 

Comment 128: One commenter 

recommended clarification that once all 

efforts to transfer control to an Indian 

tribe, Native Hawaiian organization, or 

an Indian group that is not federallyrecognized have been exhausted, the 

museum or Federal agency should 

reinter culturally unidentifiable human 

remains at their place of discovery. 

Our Response: Under 

§ 10.11(c)(2)(ii)(B), museums and 

Federal agencies may reinter culturally 

unidentifiable human remains upon 

receiving a recommendation from the 

Secretary or authorized representative. 

Section 10.11(c)(4) Secretary’s 

Recommendation 

Section 10.11(c)(4) (renumbered as 

§ 10.11(c)(3)) stipulated that the 

Secretary may make a recommendation 

under § 10.11(c)(3) (renumbered as 

§ 10.11(c)(2)) only with the written 

consent of all Indian tribes and Native 

Hawaiian organizations stipulated in 

§ 10.11(c)(1). 

Comment 129: Three commenters 

supported the § 10.11(c)(4) language 

requiring the written consent of all 

Indian tribes and Native Hawaiian 

organizations stipulated in 

§§ 10.11(c)(1) and (c)(2) before the 

Secretary can make a recommendation 

under § 10.11(c)(3). Seven commenters 

stated that § 10.11(c)(4) of the proposed 

rule would create an unfair burden on 

both federally-recognized Indian tribes 

that are not interested in a disposition 

and Indian groups that are not federallyrecognized that may lack the resources 

to meet the requirement of obtaining the 

consent of all relevant federallyrecognized Indian tribes before a 

museum or Federal agency may transfer 

control of culturally unidentifiable 

human remains to a an Indian group 

that is not federally-recognized. Some of 

the commenters suggest that the final 

rule require that the museum or Federal 

agency make a good faith effort to 

consult with all of the relevant 

federally-recognized tribes, and, if no 

federally-recognized tribe has objected, 

then the disposition to the ‘‘culturally 

affiliated’’ Indian group that is not 

federally-recognized should be 

permitted to go forward. 

Our Response: The Secretary agrees 

with these commenters, and has revised 

the final rule to incorporate their 

suggestions. Sections 10.11(c)(2), (c)(3), 

and (c)(4) have been renumbered as 

§ 10.11(c)(6), (c)(2), and (c)(3) 

respectively. 

Comment 130: Four commenters 

stated that § 10.11(c)(4) of the proposed 

rule unduly restricts the flexibility of 

museums and Federal agencies by 

requiring that they receive a 

recommendation from the Secretary 

before transferring control of culturally 

unidentifiable human remains, with or 

without associated funerary objects, to 

an Indian group that is not federallyrecognized or reinterment of the 

remains under State law. 

Our Response: Congress enacted 

NAGPRA in furtherance of the 

government-to-government relationship 

with federally-recognized Indian tribes. 

Also in furtherance of that relationship, 

the Secretary has the obligation to 

ensure that the rights of those tribes 

under the statute and under these 

regulations are fully supported. 

Therefore, in the case of a proposed 

disposition to an Indian group that is 

not federally-recognized or a proposed 

reinterment under State law, the 

recommendation of the Secretary is 

needed to make sure that the museum 

or Federal agency has consulted with 

the relevant federally-recognized Indian 

tribes and none of the tribes have 

objected. This is also consistent with the 

current practice that the Review 

Committee and the Secretary have 

developed for disposition (even to 

federally-recognized tribes) of culturally 

unidentifiable human remains. 

Comment 131: One commenter 

recommended that the Secretary only 

authorize reburial pursuant to State law 

after the museum or Federal agency has 

attempted in good faith to transfer 

control of the culturally unidentifiable 

human remains to an affiliated Indian 

group that is not federally-recognized. 

Our Response: A museum or Federal 

agency may voluntarily transfer control 

of culturally unidentifiable human 

remains to an Indian group that is not 

federally-recognized or reinter 

culturally unidentifiable human 

remains according to state or other law 

only after receiving a recommendation 

from the Secretary or authorized 

representative. The Secretary will 

consider evidence related to both 

options prior to making such a 

recommendation. 

Comment 132: One commenter 

requested that the Secretary offer a 

process for seeking the 

recommendations of the Review 

Committee concerning proposed 

dispositions. 

Our Response: Under section 8(c) of 

the Act (25 U.S.C. 3006(c)), the Review 

Committee is charged with reviewing 

and making findings concerning the 

return of cultural items upon the request 

of any party and with facilitating the 

resolution of any disputes among Indian 

tribes, Native Hawaiian organizations, 

or lineal descendants and Federal 

agencies or museums relating to the 

return of such items including 

convening the parties to the dispute if 

deemed desirable. The process for 

bringing requests and disputes before 

the Review Committee is found on the 

National NAGPRA Web site at http:// 

www.nps.gov/history/nagpra/REVIEW/ 

Procedures.htm. In addition, § 10.11(e) 

specifically identifies the Review 

Committee as a possible forum to assist 

in the informal resolution of disputes 

regarding the disposition of culturally 

unidentifiable human remains and 

associated funerary objects. 

Section 10.11(c)(5) Voluntary Transfer 

of Associated Funerary Objects 

Section 10.11(c)(5), which has been 

renumbered as § 10.11(c)(4), clarifies 

that a museum or Federal agency may 

voluntary transfer control of funerary 

objects that are associated with 

culturally unidentifiable human 

remains. 

Comment 133: Twenty-two 

commenters stated that the disposition 

of culturally unidentifiable associated 

funerary objects should be mandatory. 

Three commenters indicated that 

sufficient legal authority and 

congressional intent exist to require the 

mandatory disposition of culturally 

unidentifiable associated funerary 

objects. Three commenters stated that 

disposition of culturally unidentifiable 

associated funerary objects should be 


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mandatory because different treatment 

of such objects is contrary to American 

common law and Indian funeral 

traditions. One commenter stated that 

disposition of such objects should be 

mandatory because some institutions 

will not voluntarily transfer objects. One 

commenter supported the disposition of 

funerary objects associated with 

culturally unidentifiable human 

remains on a voluntary basis. Three 

commenters recommended deleting 

§ 10.11(c)(5) and amending § 10.11(c)(1) 

to read, ‘‘A museum or Federal agency 

that is unable to prove that it has right 

of possession, as defined at 10.11(a)(2) 

[sic], to culturally unidentifiable human 

remains and associated funerary objects 

must offer to transfer control of the 

human remains and associated funerary 

objects to Indian tribes and Native 

Hawaiian organizations in the following 

priority order * * *’’. 

Our Response: Consideration of all 

Native American human remains and 

associated funerary objects, including 

those that are culturally unidentifiable, 

is within the scope of the statute. In 

section 13 of the Act (25 U.S.C. 3011), 

Congress delegated authority to the 

Secretary of the Interior generally to 

promulgate regulations carrying out the 

Act and carrying the force of law. In 

section 8(c)(5) of the Act (25 U.S.C. 

3006(c)(5)), Congress assigned the role 

of recommending specific actions for 

developing a process for disposition of 

culturally unidentifiable human 

remains to the Review Committee. 

Congress did not indicate the same 

intent regarding culturally 

unidentifiable associated funerary 

objects. Mandatory disposition for this 

category of items raises right of 

possession and takings issues that are 

not clearly resolved in the statute or the 

legislative history. American common 

law generally recognizes that human 

remains cannot be owned. The common 

law regarding associated funerary 

objects that are not culturally 

identifiable is not well established. 

According to the committee report 

accompanying the Senate NAGPRA bill, 

the Senate Committee on Indian Affairs 

intended that the legal framework 

regarding right of possession would 

operate in a manner consistent with 

general property law (S. Report 101–473 

at 8). Considering the lack of precedent 

in the common law and Congress’ 

direction to develop a process only with 

respect to culturally unidentifiable 

human remains, the Secretary does not 

consider it appropriate to make the 

provision to transfer culturally 

unidentifiable associated funerary 

objects mandatory. 

Comment 134: Seven commenters 

recommended deleting § 10.11(c)(5) on 

the grounds that the Secretary does not 

have authority to address funerary 

objects associated with culturally 

unidentifiable human remains. 

Our Response: Section 10.11(c)(5) has 

been renumbered as § 10.11(c)(4). In 

section 13 of the Act (25 U.S.C. 3011), 

Congress delegated authority to the 

Secretary of the Interior generally to 

promulgate regulations carrying out the 

Act and carrying the force of law. 

Consideration of all Native American 

human remains and associated funerary 

objects, including those that are 

culturally unidentifiable, is within the 

scope of the statute. section 5 of the Act 

(25 U.S.C. 3003) requires Federal 

agencies and museums that have 

possession or control over holdings or 

collections of Native American human 

remains and associated funerary objects 

to compile an inventory of such items 

and, to the extent possible based on 

information possessed by such museum 

or Federal agency, identify the 

geographical and cultural affiliation of 

such item. Regulations promulgated in 

1995 initially addressed culturally 

unidentifiable associated funerary 

objects to which there was no public 

objection. 43 CFR 10.9(e)(6) required 

museums and Federal agencies to 

provide notice and a copy of the list of 

culturally unidentifiable human 

remains and associated funerary objects 

to the National Park Service which in 

turn made this information available to 

the Review Committee. Congress 

anticipated that not all items would be 

geographically or culturally affiliated 

and, in section 8(c)(5) of the Act (25 

U.S.C. 3006(c)(5)), assigned the role of 

recommending specific actions for 

developing a process for disposition of 

culturally unidentifiable human 

remains to the Review Committee. 

Congress intended that the Review 

Committee be an advisory committee 

which makes recommendations to the 

Secretary (S. Rep. No. 101–473 at 13). In 

section 8(c)(7) of the Act (25 U.S.C. 

3006(c)(7)), Congress also authorized the 

Review Committee to consult with the 

Secretary in the development of 

regulations to carry out the Act. As part 

of its recommendations under section 

8(c)(5) of the Act (25 U.S.C. 3006(c)(5)), 

the Review Committee addressed 

funerary objects associated with 

culturally unidentifiable remains and 

recommended their transfer along with 

the associated remains. This regulation, 

promulgated in the exercise of Congress’ 

delegated authority, implements many 

of the Review Committee’s 

recommendations made pursuant to 

section 8(c)(5) and 8(c)(7) and 

effectuates the goals of the Act. Even if 

Congress may not have expressly 

delegated authority or responsibility to 

implement a particular provision or fill 

a particular gap, it can still be apparent 

from an agency’s generally conferred 

authority and other statutory 

circumstances that Congress would 

expect the agency to address 

ambiguities in the statute or fill a gap in 

the enacted law, even one about which 

Congress may not have actually had an 

intent as to a particular result (U.S. v. 

Mead, 533 U.S. 218 (2001)). In addition, 

25 U.S.C. 9 authorizes the Secretary to 

make ‘‘such regulations as he may think 

fit for carrying into effect the various 

provisions of any act relating to Indian 

affairs.’’ Because NAGPRA is Indian law 

(Yankton Sioux Tribe v. United States 

Army Corps of Engineers, 83 F. Supp 2d 

1047, 1056 (D.S.D. 2000)), the Secretary 

may promulgate any regulations needed 

to implement it under the broad 

authority to supervise and manage 

Indian affairs given by Congress (United 

States v. Eberhardt, 789 F.2d 1354, 1360 

(9th Cir. 1986)). 

Comment 135: Two commenters 

objected to the ‘‘required’’ disposition of 

funerary objects associated with 

culturally unidentifiable human 

remains. 

Our Response: The subsection 

addressing this category of objects, 

§ 10.11(c)(4), does not require 

disposition. The proposed text states, ‘‘A 

museum or Federal agency may also 

transfer control of funerary objects that 

are associated with culturally 

unidentifiable human remains. The 

Secretary recommends that museums 

and Federal agencies engage in such 

transfers whenever Federal or State law 

would not otherwise preclude them’’ 

(emphasis added). 

Comment 136: One commenter 

requested clarification on whether it is 

discretionary for museums and Federal 

agencies to make disposition of 

culturally unidentifiable associated 

funerary objects. 

Our Response: Subsection 10.11(c)(4) 

does not mandate the transfer of 

culturally unidentifiable associated 

funerary objects. This provision is 

voluntary and any decision to transfer 

such objects is based on the discretion 

of the museum or Federal agency. 

Section 10.11(c) Other Issues 

Comment 137: Two commenters 

suggested the establishment of national 

or regional repositories, controlled by 

Indian tribes, where culturally 

unidentifiable human remains that are 

unclaimed may be voluntarily 

reinterred. 


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Our Response: The Secretary cannot 

mandate that Indian tribes enter into 

such arrangements. Indian tribes may 

make arrangements for such repositories 

on their own. 

Comment 138: Two commenters 

recommended that the statutory 

exemptions to repatriation be explicitly 

identified in this section. 

Our Response: Section 10.10(c) of 

these regulations stipulates four 

exceptions to repatriation, including 

circumstances where (1) Human 

remains and funerary objects are 

indispensible to the completion of a 

specific scientific study, the outcome of 

which is of major benefit to the United 

States; (2) there are multiple requests for 

repatriation of the human remains and 

associated funerary objects and the 

museum or Federal agency cannot 

determine by a preponderance of the 

evidence which requesting party is the 

most appropriate claimant; (3) a court of 

competent jurisdiction has determined 

that the repatriation would result in a 

taking of property without just 

compensation within the meaning of the 

Fifth Amendment of the United States 

Constitution; and (4) the repatriation is 

not consistent with other repatriation 

limitations identified in § 10.15. The 

drafters intend that each of these 

exemptions also apply to claims made 

for the disposition of culturally 

unidentifiable human remains, and 

additional text has been included at 

§ 10.11(c)(5) to that effect. 

Comment 139: Three commenters 

recommended addressing the recourse 

available to museums and Federal 

agencies if they cannot transfer control 

of culturally unidentifiable human 

remains. 

Our Response: Section 10.15(b) of 

these regulations has been reserved to 

address situations where no claim has 

been made. 

Section 10.11(d) Notification 

Paragraph (d) establishes procedures 

to ensure that Indian tribes, Native 

Hawaiian organizations, Indian groups 

that are not federally-recognized, 

museums, and Federal agencies are 

notified of intended dispositions of 

culturally unidentifiable human 

remains and associated funerary objects. 

Comment 140: One commenter 

recommended adding a provision to 

document the final disposition of 

culturally unidentifiable human 

remains. 

Our Response: Section 10.10(f) directs 

museums and Federal agencies to adopt 

internal procedures adequate to 

permanently document the content and 

recipients of all repatriations. 

Comment 141: One commenter 

recommended clarifying that the notice 

requirement for culturally 

unidentifiable human remains would 

commence after consultation (43 CFR 

10.11(b)) and determination (43 CFR 

10.11(c)). 

Our Response: Section 10.11(d) 

stipulates that disposition of culturally 

unidentifiable human remains pursuant 

to § 10.11(c) may not occur until at least 

thirty days after publication of a notice 

of inventory completion. Section 

10.11(b)(1) stipulates that the museum 

or Federal agency official must initiate 

consultation within ninety days of 

receipt of a request for disposition or, 

absent such a request, before any offer 

to transfer control of culturally 

unidentifiable human remains. 

Comment 142: One commenter 

recommended lengthening the 

notification time period from 30 to 60 or 

90 days to allow Indian tribes and 

Native Hawaiian organizations to 

respond before disposition occurs. 

Our Response: The thirty day 

(minimum) period following 

publication of a notice of inventory 

completion during which other lineal 

descendants, Indian tribes, or Native 

Hawaiian organizations may claim 

human remains and associated funerary 

objects has been in effect since 1996 (43 

CFR 10.10(b)(2)). No Indian tribe or 

Native Hawaiian organization 

recommended this change. 

Comment 143: One commenter 

requested clarification of how the 

Review Committee database of 

culturally unidentifiable human 

remains and associated funerary objects 

will be made ‘‘accessible’’ to Indian 

tribes, Native Hawaiian organizations, 

Indian groups that are not federallyrecognized, museums, and Federal 

agencies. 

Our Response: The Culturally 

Unidentifiable Native American 

Inventories Database is available at: 

http://64.241.25.6/CUI/index.cfm. 

Comment 144: Five commenters 

recommended revising the Review 

Committee’s inventory as follows: (1) 

Create and include an online tutorial on 

how to use the database; (2) include 

fields in the main table to discern 

whether the repository is reporting on a 

museum or Federal agency collection; 

(3) update the existing contact 

information, and list contact 

information for each Federal Agency 

NAGPRA Contact; (4) add search 

functions to the database to search/sort 

by keyword e.g. ‘‘Hohokam’’; (5) add 

search functions to the database so that 

it is possible to search/sort by county; 

(6) add search functions to the database 

so that it is possible to search/sort by 

date; (7) separate the collection history, 

age/culture, and associated funerary 

object fields for clarity; (8) link the 

database to the notices of inventory 

completion and notices of intent to 

repatriate. Two commenters 

recommended that the original 

paperwork supporting a published 

notice of inventory completion be 

posted on the Web site as part of the 

Review Committee’s inventory. 

Our Response: The National NAGPRA 

Program will consider implementing 

these recommendations. 

Section 10.11(e) Disputes 

Section 10.11(e) clarifies that disputes 

regarding the disposition of culturally 

unidentifiable human remains may be 

resolved through informal negotiations, 

with the assistance of the Review 

Committee, or before a United States 

District Court. 

Comment 145: One commenter asked 

for clarification of what is meant by 

‘‘informal negotiations.’’ 

Our Response: While the Review 

Committee is specifically charged with 

facilitating the resolution of disputes, 

the Committee also stated that disputes 

among Indian tribes, Native Hawaiian 

organizations, or lineal descendants and 

Federal agencies or museums should be 

resolved at the lowest organizational 

level and at the earliest time possible 

and strongly encourages the use of 

alternative methods of dispute 

resolution (Native American Graves 

Protection and Repatriation Review 

Committee Dispute Procedures, 

September 2006). 

Comment 146: One commenter 

recommended that the Review 

Committee only attempt to facilitate 

disputes regarding the disposition of 

culturally unidentifiable human 

remains when requested by all involved 

parties. 

Our Response: Under the Review 

Committee’s Dispute Procedures, the 

decision to involve the Review 

Committee in a dispute is made only 

after all involved parties have been 

contacted. Disputing parties are under 

no obligation to participate in Review 

Committee meetings. Review Committee 

recommendations are purely advisory. 

Comment 147: One commenter 

recommended that the Review 

Committee’s existing policies and 

procedures be formalized into this final 

regulation. 

Our Response: The Review 

Committee’s Dispute Procedures are 

posted at: http://www.nps.gov/history/ 

nagpra/REVIEW/ 

Dispute_procedures.0609.pdf. 

Formalization of these procedures as 

regulations would likely limit the ability 


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of the Review Committee to generate 

unique and innovative resolutions on a 

case-by-case basis. 

Comment 148: One commenter asked 

for clarification as to whether the 

proposal would give binding legal force 

to Review Committee advisory opinions. 

One commenter asked for clarification 

as to whether the proposal would allow 

lawsuits by any aggrieved person 

against museums ad infinitum. 

Our Response: Review Committee 

findings and recommendations are 

purely advisory in nature. However, any 

records and findings made by the 

Review Committee relating to the 

identity or cultural affiliation of human 

remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

may be admissible in actions brought 

before a Federal court (25 U.S.C. 

3006(d)). While neither Congress nor the 

Secretary can stop anyone from filing a 

lawsuit, in section 7(f) of the Act (25 

U.S.C. 3005), Congress specifically 

provided in that ‘‘[a]ny museum which 

repatriates any item in good faith 

pursuant to this chapter shall not be 

liable for claims by an aggrieved party 

or for claims of breach of fiduciary duty, 

public trust, or violations of state law 

that are inconsistent with the provisions 

of this chapter.’’ 

Section 10.12(b) Definition of ‘‘Failure 

to Comply’’ 

Revisions to this section clarify the 

definition of ‘‘failure to comply’’ in the 

context of the possible assessment of 

civil penalties. 

Comment 149: Fourteen commenters 

generally supported the proposed text at 

§ 10.12(b)(1)(ix) to allow for the 

assessment of civil penalties for failure 

of a museum to offer to transfer control 

of culturally unidentifiable human 

remains for which it cannot prove right 

of possession under § 10.11. Two 

commenters generally opposed the 

proposed text. One commenter urged 

that no civil penalty should be imposed 

on a museum for failing to offer to 

transfer human remains when no group 

has requested a transfer. 

Our Response: The drafters consider 

the recommendation concerning the 

inadvisability of civil penalties when no 

Indian tribe or Native Hawaiian 

organization has requested a transfer to 

be reasonable because, absent a claim, 

the regulations do not specify when a 

museum must offer to transfer control of 

culturally unidentifiable human 

remains to Indian tribe and Native 

Hawaiian organizations. Section 

10.12(b)(ix) has been revised to read 

‘‘Upon receipt of a claim consistent with 

§ 10.11(c)(1), refuses to offer to transfer 

control of culturally unidentifiable 

human remains for which it cannot 

prove right of possession.’’ 

Comment 150: Four commenters 

requested clarification in 

§ 10.12(b)(1)(ix) that the burden of proof 

for right of possession of culturally 

unidentifiable human remains rests 

with the museum or Federal agency. 

Our Response: The burden of proof is 

on the museum or Federal agency, and 

that, as the proposed and final rule 

states, if a museum or Federal agency ‘‘is 

unable to prove that it has right of 

possession’’, it must offer to transfer the 

remains, with or without associated 

funerary objects (43 CFR 10.11(c)(1)). 

Comment 151: One commenter 

recommended revising § 10.12 to 

mandate that Federal agencies comply 

with the Act and its regulations. 

Our Response: Section 9 of the Act 

(25 U.S.C. 3007) authorizes the 

Secretary to assess civil penalties only 

against museums. 

Comment 152: Two commenters 

recommended adding another type of 

failure to comply at § 10.12(b) for 

museums that refuse to provide 

additional available documentation 

upon the request of an Indian tribe or 

Native Hawaiian organization that 

received notice or should have received 

notice and an inventory under 

§ 10.9(e)(1) and (e)(2). 

Our Response: Section 5(b)(2) of the 

Act (25 U.S.C. 3003(b)(2)), requires that 

a museum or Federal agency supply 

additional available documentation 

upon request by an Indian tribe or 

Native Hawaiian organization which 

receives or should have received notice. 

Refusing to provide the specified 

information to one of the Indian tribes 

identified in § 10.11(b)(2) would 

constitute a failure to comply under 

§ 10.12(b)(vii). 

Changes to the Proposed Rule 

Based on the preceding comments 

and responses, the drafters have made 

the following changes to the proposed 

rule language: 

• Section 10.2(e)(2). We have added 

text to clarify that determinations of 

cultural affiliation are made ‘‘through 

the inventory process.’’ Section 

10.9(e)(2)(v). We revised the text to 

clarify that the notice of inventory 

completion must describe those human 

remains, with or without associated 

funerary objects, that are culturally 

unidentifiable but that ‘‘are subject to 

disposition under § 10.11.’’ 

• Section 10.9(e)(5)(ii). We added text 

to provide examples of the type of 

Federal legal authority that exempt 

disclosure of Federal documentation to 

the public. 

• Section 10.9(e)(6). We deleted text 

to make it clear that while disposition 

of funerary objects associated with 

culturally unidentifiable human 

remains is voluntary, museums and 

Federal agencies must provide notice 

and a list of such objects to the Manager, 

National NAGPRA Program. 

• Section 10.11(a). We revised the 

text to clarify that this section applies to 

human remains previously determined 

to be Native American pursuant to 

§ 10.9, but for which no lineal 

descendant or culturally affiliated 

Indian tribe or Native Hawaiian 

organization has been identified. 

• Section 10.11(b)(2)(iii). We deleted 

this section that required consultation 

with all Indian tribes or Native 

Hawaiian organizations with a cultural 

relationship to the region from which 

culturally identifiable human remains 

were removed or, in the case of human 

remains lacking geographic affiliation, 

to the region in which the museum or 

Federal agency repository is located. 

The diversity of opinion regarding the 

meaning of ‘‘cultural relationship’’ 

convinced the drafters to remove the 

term as a required criterion for 

consultation. 

• Section 10.11(b)(6). We added text 

to this paragraph to clarify that the 

notification and repatriation provisions 

of §§ 10.9(e) and 10.10(b) apply if 

human remains previously determined 

to be culturally unidentifiable are 

actually related to a lineal descendant. 

• Section 10.11(c)(1)(iii). We deleted 

this section that required a museum or 

Federal agency that is unable to prove 

it has right of possession to culturally 

unidentifiable human remains to offer to 

transfer control of such remains to the 

Indian tribe or Native Hawaiian 

organization with a cultural relationship 

to the region from which culturally 

identifiable human remains were 

removed or, in the case of human 

remains lacking geographic affiliation, 

to the region in which the museum or 

Federal agency repository is located. 

The diversity of opinion regarding the 

meaning of ‘‘cultural relationship’’ 

convinced the drafters to remove the 

term as a required criterion for 

disposition of culturally unidentifiable 

human remains. 

• Section 10.11(c)(1)(iv). We deleted 

this section that required a museum or 

Federal agency that is unable to prove 

it has right of possession to culturally 

unidentifiable human remains to offer to 

transfer control of such remains to the 

Indian tribe or Native Hawaiian 

organization with a stronger cultural 

relationship with the human remains 

than an entity specified in 

§ 10.11(c)(1)(ii) or (c)(1)(iii). The 


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diversity of opinion regarding the 

meaning of ‘‘cultural relationship’’ 

convinced the drafters to remove the 

term as a required criterion for 

disposition of culturally unidentifiable 

human remains. 

• Section 10.11(c)(2). We moved and 

renumbered this paragraph as 

§ 10.11(c)(6). 

• Section 10.11(c)(3)(i) (renumbered 

as § 10.11(c)(2)(i)). We added text to 

allow a museum or Federal agency to 

voluntarily transfer control of culturally 

unidentifiable human remains to Indian 

tribes or Native Hawaiian organizations 

other than those specified in 

§ 10.11(c)(1). The change is consistent 

with statutory requirements that nothing 

in the Act shall be used to limit the 

authority of any Federal agency or 

museum to return or repatriate Native 

American human remains, funerary 

objects, sacred objects, or objects of 

cultural patrimony to Indian tribes, 

Native Hawaiian organizations, or 

individuals (25 U.S.C. 3009(1)(A)). 

• Section 10.11(c)(4) (renumbered as 

§ 10.11(c)(3)). We revised this provision 

to remove the requirement that all 

relevant Indian tribes and Native 

Hawaiian organizations must consent to 

a proposed disposition to an Indian 

group that is not federally-recognized or 

to a proposed reinterment under State 

law and to require instead that the 

museum or Federal agency prove to the 

Secretary that it has consulted with the 

relevant Indian tribes and Native 

Hawaiian organizations and none of 

them has objected. This change was 

prompted by comments on the proposed 

rule and the Secretary’s effort to be 

sensitive to concerns of Indian tribes 

that may be culturally prohibited from 

discussing or possessing human 

remains. 

• Section 10.11(c)(5) (renumbered as 

§ 10.11(c)(4)). 

• Section 10.11(c)(5). We added this 

new section to clarify that the 

exemptions to repatriation listed at 

§ 10.10(c) also apply to dispositions of 

culturally unidentifiable human 

remains under § 10.11(c)(1). 

• Section 10.12(b)(1)(ix). We added 

text to clarify that upon receipt of a 

claim consistent with § 10.11(c)(1), a 

museum refuses to offer to transfer 

control of culturally unidentifiable 

human remains for which it cannot 

prove right of possession, will be 

considered to have failed to comply 

with the Act. Absent a claim, the 

regulations do not specify when a 

museum must offer to transfer control of 

culturally unidentifiable human 

remains to Indian tribes and Native 

Hawaiian organizations. 

• Section 10.15(c). We inserted text 

previously proposed for inclusion in 

§ 10.1(b)(3) into this paragraph to 

reiterate that the final denial of a request 

of a lineal descendant, Indian tribe, or 

Native Hawaiian organization for the 

repatriation or disposition of human 

remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

constitutes a final agency action under 

the Administrative Procedure Act. 

Compliance With Other Laws and 

Executive Orders 

Regulatory Planning and Review 

(Executive Order 12866) 

This document is a significant rule 

and has been reviewed by the Office of 

Management and Budget under 

Executive Order 12866. 

(1) This rule will not have an effect of 

$100 million or more on the economy. 

It will not adversely affect in a material 

way the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities. 

(2) This rule will not create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency. 

(3) This rule does not materially alter 

the budgetary impact of entitlements, 

grants, user fees, or loan programs, or 

the rights or obligations of their 

recipients. 

(4) OMB has determined that this rule 

raises novel legal or policy issues. 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). The requirement to 

consult with Indian tribes and Native 

Hawaiian organizations is minimal, as 

very few small entities have collections 

of Native American human remains that 

would subject them to this rule. Of 

those having Native American human 

remains, the collections are small. Small 

entities can transfer those human 

remains to large museums having 

NAGPRA obligations and they can 

benefit from the published decisions of 

large museums. Thus, this rule does not 

constitute a significant economic 

burden. This rule will require the 

disposition of only those Native 

American human remains for which the 

controlling entity cannot prove right of 

possession (25 U.S.C. 3005). 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule will not (1) have an annual 

effect on the economy of $100 million 

or more; (2) cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, 

local or tribal government agencies, or 

geographic regions; or (3) have 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local or tribal 

governments, or the private sector. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

Takings (Executive Order 12630) 

In accordance with Executive Order 

12630, the rule does not have significant 

takings implications. A takings 

implication assessment is not required. 

This rule will require the disposition of 

only those Native American human 

remains for which the controlling 

museum or Federal agency cannot prove 

right of possession [25 U.S.C. 3005(c)]. 

Federalism (Executive Order 13132) 

In accordance with Executive Order 

13132, the rule does not have 

sufficiently significant federalism 

implications to warrant the preparation 

of a Federalism Assessment. This final 

rule will not substantially and directly 

affect the relationship between the 

Federal and State governments. To the 

extent that State and local governments 

have a role in NAGPRA activities, this 

final rule will not affect that role. A 

Federalism Assessment is not required. 

Civil Justice Reform (Executive Order 

12988) 

This rule complies with the 

requirements of Executive Order 12988. 

Specifically, this rule: 

(a) Meets the criteria of section 3(a) 

requiring that all regulations be 

reviewed to eliminate errors and 

ambiguity and be written to minimize 

litigation; and 

(b) Meets the criteria of section 3(b)(2) 

requiring that all regulations be written 

in clear language and contain clear legal 

standards. 


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Paperwork Reduction Act 

The Office of Management and Budget 

has approved the information collection 

requirements associated with this rule 

under OMB Control No. 1024–0144. 

The public reporting burden for the 

collection of information for § 10.11 is 

expected to average 20 hours per year, 

for those costs within the scope of the 

Paperwork Reduction Act, as follows: 

(1) Ten state and local museums 

producing notifications and information 

requests to Indian tribes and Native 

Hawaiian organizations at 30 minutes 

for each museum, a total of 5 hours; 

(2) Four private museums producing 

notifications and information requests 

to Indian tribes and Native Hawaiian 

organizations at 30 minutes for each 

museum, a total of 2 hours. 

(3) Response by Indian tribes and 

Native Hawaiian organizations to 

requests for information from museums, 

16 responses (14 to non-Federal 

museums and 2 to Federal museums) at 

48 minutes per response for a total of 13 

hours. 

The reporting burden includes time 

for reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collected 

information. Comments regarding this 

burden estimate or any other aspects of 

this collection of information, including 

suggestions for reducing the burden, 

may be sent to the address in the 

ADDRESSES section and to: Information 

Collection Officer, Attn: Docket No. 

1024–0144, National Park Service, 

Department of Interior Building, 1849 C 

Street NW., Room 3317, Washington, 

DC 20240. 

National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment and 

can be categorically excluded under 43 

CFR 46.210(i), ‘‘Policies, directives, 

regulations, and guidelines that are of 

an administrative, financial, legal, 

technical, or procedural nature and 

whose environmental effects are too 

broad, speculative, or conjectural to 

lend themselves to meaningful analysis 

and will later be subject to the NEPA 

process, either collectively or case-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. Any NEPA 

review required for a disposition of 

culturally unidentifiable human 

remains by a Federal agency will be 

conducted by that agency under its 

NEPA procedures. 

Government-to-Government 

Relationship With Indian Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government to Government Relations 

with Native American Tribal 

Governments’’ [59 FR 22951], Executive 

Order 13175, ‘‘Consultation and 

Coordination with Indian Tribal 

Governments’’ [65 FR 218], and 512 DM 

2, ‘‘Departmental Responsibilities for 

Indian Trust Resources,’’ this rule has a 

potential effect on federally-recognized 

Indian tribes. The proposed rule was 

developed in consultation with the 

Native American Graves Protection and 

Repatriation Review Committee, which 

includes members nominated by Indian 

tribes. The Review Committee consulted 

with Indian tribes in the development of 

the Review Committee’s 

recommendations regarding the 

disposition of culturally unidentifiable 

human remains that form the basis of 

this proposed rule. The Review 

Committee, at the direction of the 

Secretary of the Interior, consulted with 

tribal representatives regarding its 

recommendations on February 16–18, 

1995, in Los Angeles, CA; June 9–11, 

1996, in Billings, MT; June 25–27, 1998, 

in Portland, OR; and May 2–4, 2000, in 

Juneau, AK. Tribal representatives were 

also consulted regarding draft text for 

these regulations at Review Committee 

meetings on May 2–4, 2000, in Juneau, 

AK; May 31–June 2, 2002, in Tulsa, OK; 

and November 8–9, 2002, in Seattle, 

WA. Consultation between tribal 

representatives and the Department also 

occurred during the public comment 

period for the proposed rule. In addition 

to comments from tribes that we 

received through members of the 

Review Committee and at Review 

Committee meetings, we received 

comments from tribes on the proposed 

rule in training sessions and in initial 

consultations on the draft rule that we 

are preparing for 43 CFR 10.7. We will 

conduct ongoing consultation with 

tribes on the implementation of this and 

other NAGPRA regulations through 

semiannual Review Committee 

meetings, outreach and training events 

approximately twenty times annually, 

and formal consultation sessions on 

further amendments to the regulations. 

Public Availability of Comments 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Drafting Information 

The proposed rule was prepared in 

consultation with the Native American 

Graves Protection and Repatriation 

Review Committee as directed by 

section 8(c)(7) of the Act. The principal 

contributors to this final rule are C. 

Timothy McKeown and Sherry Hutt of 

the National NAGPRA Program, 

National Park Service; Carla Mattix and 

Stephen Simpson of the Office of the 

Solicitor, U.S. Department of the 

Interior; Jennifer Lee, Office of the 

Director, National Park Service and 

Philip Selleck, Chief, Regulations and 

Special Park Uses, National Park 

Service. 

List of Subjects in 43 CFR Part 10 

Administrative practice and 

procedure, Hawaiian natives, Historic 

preservation, Indians-claims, Indianslands, Museums, Penalties, Public 

lands, Reporting and recordkeeping 

requirements. 

■ In consideration of the foregoing, 43 

CFR part 10 is amended as follows: 

PART 10—NATIVE AMERICAN 

GRAVES PROTECTION AND 

REPATRIATION REGULATIONS 

■ 1. The authority for part 10 is revised 

to read as follows: 

Authority: 25 U.S.C. 3001 et seq., 16 

U.S.C. 470dd (2), 25 U.S.C. 9. 

■ 2. Amend § 10.1 by revising the 

section heading and paragraph (b)(3), 

and adding paragraph (c) to read as 

follows: 

§ 10.1 Purpose, applicability, and 

information collection. 

* * * * * 

(b) * * * 

(3) Throughout this part are decision 

points which determine how this part 

applies in particular circumstances, e.g., 

a decision as to whether a museum 

‘‘controls’’ human remains and cultural 

objects within the meaning of the 

regulations, or a decision as to whether 

an object is a ‘‘human remain,’’ ‘‘funerary 

object,’’ ‘‘sacred object,’’ or ‘‘object of 

cultural patrimony’’ within the meaning 

of the regulations. Any final 

determination making the Act or this 

part inapplicable is subject to review 

under section 15 of the Act. With 

respect to Federal agencies, the final 

denial of a request of a lineal 

descendant, Indian tribe, or Native 

Hawaiian organization for the 

repatriation or disposition of human 


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remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

brought under, and in compliance with, 

the Act and this part constitutes a final 

agency action under the Administrative 

Procedure Act (5 U.S.C. 704). 

(c) The information collection 

requirements contained in this part have 

been approved by the Office of 

Management and Budget under 44 

U.S.C. 3501 et seq. and assigned control 

number 1024–0144. A Federal agency 

may not conduct or sponsor, and you 

are not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 

■ 3. Amend § 10.2 by revising paragraph 

(e) and adding paragraph (g)(5) to read 

as follows: 

§ 10.2 Definitions. 

* * * * * 

(e)(1) What is cultural affiliation? 

Cultural affiliation means that there is a 

relationship of shared group identity 

that can be reasonably traced 

historically or prehistorically between 

members of a present-day Indian tribe or 

Native Hawaiian organization and an 

identifiable earlier group. Cultural 

affiliation is established when the 

preponderance of the evidence—based 

on geographical, kinship, biological, 

archeological, anthropological, 

linguistic, folklore, oral tradition, 

historical evidence, or other information 

or expert opinion—reasonably leads to 

such a conclusion. 

(2) What does culturally 

unidentifiable mean? Culturally 

unidentifiable refers to human remains 

and associated funerary objects in 

museum or Federal agency collections 

for which no lineal descendant or 

culturally affiliated Indian tribe or 

Native Hawaiian organization has been 

identified through the inventory 

process. 

* * * * * 

(g) * * * 

(5) Disposition means the transfer of 

control over Native American human 

remains, funerary objects, sacred 

objects, and objects of cultural 

patrimony by a museum or Federal 

agency under this part. This part 

establishes disposition procedures for 

several different situations: 

(i) Custody of human remains, 

funerary objects, sacred objects, and 

objects of cultural patrimony excavated 

intentionally from, or discovered 

inadvertently on, Federal or tribal lands 

after November 16, 1990, is established 

under § 10.6. 

(ii) Repatriation of human remains, 

funerary objects, sacred objects, and 

objects of cultural patrimony in 

museum and Federal agency collections 

to a lineal descendant or culturally 

affiliated Indian tribe or Native 

Hawaiian organization is established 

under § 10.10. 

(iii) Disposition of culturally 

unidentifiable human remains, with or 

without associated funerary objects, in 

museum or Federal agency collections is 

established under § 10.11. 

■ 4. Amend § 10.9 by revising 

paragraphs (e)(2), (5), and (6) to read as 

follows: 

§ 10.9 Inventories. 

* * * * * 

(e) * * * 

(2) The notice of inventory 

completion must: 

(i) Summarize the contents of the 

inventory in sufficient detail so as to 

enable the recipients to determine their 

interest in claiming the inventoried 

items; 

(ii) Identify each particular set of 

human remains or each associated 

funerary object and the circumstances 

surrounding its acquisition; 

(iii) Describe the human remains or 

associated funerary objects that are 

clearly culturally affiliated with an 

Indian tribe or Native Hawaiian 

organization and identify the Indian 

tribe or Native Hawaiian organization; 

(iv) Describe the human remains or 

associated funerary objects that are not 

clearly identifiable as culturally 

affiliated with an Indian tribe or Native 

Hawaiian organization, but that are 

likely to be culturally affiliated with a 

particular Indian tribe or Native 

Hawaiian organization given the totality 

of circumstances surrounding 

acquisition of the human remains or 

associated objects; and 

(v) Describe those human remains, 

with or without associated funerary 

objects, that are culturally 

unidentifiable but that are subject to 

disposition under § 10.11. 

* * * * * 

(5) Upon request by an Indian tribe or 

Native Hawaiian organization that has 

received or should have received a 

notice and inventory under paragraphs 

(e)(1) and (e)(2) of this section, a 

museum or Federal agency must supply 

additional available documentation. 

(i) For purposes of this paragraph, 

‘‘documentation’’ means a summary of 

existing museum or Federal agency 

records including inventories or 

catalogues, relevant studies, or other 

pertinent data for the limited purpose of 

determining the geographic origin, 

cultural affiliation, and basic facts 

surrounding the acquisition and 

accession of human remains and 

associated funerary objects. 

(ii) Documentation supplied under 

this paragraph by a Federal agency or to 

a Federal agency is considered a public 

record except as exempted under 

relevant laws, such as the Freedom of 

Information Act (5 U.S.C. 552), Privacy 

Act (5 U.S.C. 552a), Archaeological 

Resources Protection Act (16 U.S.C. 

470hh), National Historic Preservation 

Act (16 U.S.C. 470w–3), and any other 

legal authority exempting the 

information from public disclosure. 

(iii) Neither a request for 

documentation nor any other provisions 

of this part may be construed as 

authorizing either: 

(A) The initiation of new scientific 

studies of the human remains and 

associated funerary objects; or 

(B) Other means of acquiring or 

preserving additional scientific 

information from the remains and 

objects. 

(6) This paragraph applies when a the 

museum or Federal agency official 

determines that it has possession of or 

control over human remains or 

associated funerary objects that cannot 

be identified as affiliated with a lineal 

descendent, Indian tribe, or Native 

Hawaiian organization The museum or 

Federal agency must provide the 

Manager, National NAGPRA Program 

notice of its determination and a list of 

the culturally unidentifiable human 

remains and any associated funerary 

objects. The Manager, National 

NAGPRA Program must make this 

information available to members of the 

Review Committee. Culturally 

unidentifiable human remains, with or 

without associated funerary objects, are 

subject to disposition under § 10.11. 

* * * * * 

■ 5. Add § 10.11 to read as follows: 

§ 10.11 Disposition of culturally 

unidentifiable human remains. 

(a) General. This section implements 

section 8(c)(5) of the Act and applies to 

human remains previously determined 

to be Native American under § 10.9, but 

for which no lineal descendant or 

culturally affiliated Indian tribe or 

Native Hawaiian organization has been 

identified. 

(b) Consultation. (1) The museum or 

Federal agency official must initiate 

consultation regarding the disposition of 

culturally unidentifiable human 

remains and associated funerary objects: 

(i) Within 90 days of receiving a 

request from an Indian tribe or Native 

Hawaiian organization to transfer 

control of culturally unidentifiable 

human remains and associated funerary 

objects; or 


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(ii) If no request is received, before 

any offer to transfer control of culturally 

unidentifiable human remains and 

associated funerary objects. 

(2) The museum or Federal agency 

official must initiate consultation with 

officials and traditional religious leaders 

of all Indian tribes and Native Hawaiian 

organizations: 

(i) From whose tribal lands, at the 

time of the removal, the human remains 

and associated funerary objects were 

removed; and 

(ii) From whose aboriginal lands the 

human remains and associated funerary 

objects were removed. Aboriginal 

occupation may be recognized by a final 

judgment of the Indian Claims 

Commission or the United States Court 

of Claims, or a treaty, Act of Congress, 

or Executive Order. 

(3) The museum or Federal agency 

official must provide the following 

information in writing to all Indian 

tribes and Native Hawaiian 

organizations with which the museum 

or Federal agency consults: 

(i) A list of all Indian tribes and 

Native Hawaiian organizations that are 

being, or have been, consulted regarding 

the particular human remains and 

associated funerary objects; 

(ii) A list of any Indian groups that are 

not federally-recognized and are known 

to have a relationship of shared group 

identity with the particular human 

remains and associated funerary objects; 

and 

(iii) An offer to provide a copy of the 

original inventory and additional 

documentation regarding the particular 

human remains and associated funerary 

objects. 

(4) During consultation, museum and 

Federal agency officials must request, as 

appropriate, the following information 

from Indian tribes and Native Hawaiian 

organizations: 

(i) The name and address of the 

Indian tribal official to act as 

representative in consultations related 

to particular human remains and 

associated funerary objects; 

(ii) The names and appropriate 

methods to contact any traditional 

religious leaders who should be 

consulted regarding the human remains 

and associated funerary objects; 

(iii) Temporal and geographic criteria 

that the museum or Federal agency 

should use to identify groups of human 

remains and associated funerary objects 

for consultation; 

(iv) The names and addresses of other 

Indian tribes, Native Hawaiian 

organizations, or Indian groups that are 

not federally-recognized who should be 

included in the consultations; and 

(v) A schedule and process for 

consultation. 

(5) During consultation, the museum 

or Federal agency official should seek to 

develop a proposed disposition for 

culturally unidentifiable human 

remains and associated funerary objects 

that is mutually agreeable to the parties 

specified in paragraph (b)(2) of this 

section. The agreement must be 

consistent with this part. 

(6) If consultation results in a 

determination that human remains and 

associated funerary objects previously 

determined to be culturally 

unidentifiable are actually related to a 

lineal descendant or culturally affiliated 

with an Indian tribe or Native Hawaiian 

organization, the notification and 

repatriation of the human remains and 

associated funerary objects must be 

completed as required by § 10.9(e) and 

§ 10.10(b). 

(c) Disposition of culturally 

unidentifiable human remains and 

associated funerary objects. (1) A 

museum or Federal agency that is 

unable to prove that it has right of 

possession, as defined at § 10.10(a)(2), to 

culturally unidentifiable human 

remains must offer to transfer control of 

the human remains to Indian tribes and 

Native Hawaiian organizations in the 

following priority order: 

(i) The Indian tribe or Native 

Hawaiian organization from whose 

tribal land, at the time of the excavation 

or removal, the human remains were 

removed; or 

(ii) The Indian tribe or tribes that are 

recognized as aboriginal to the area from 

which the human remains were 

removed. Aboriginal occupation may be 

recognized by a final judgment of the 

Indian Claims Commission or the 

United States Court of Claims, or a 

treaty, Act of Congress, or Executive 

Order. 

(2) If none of the Indian tribes or 

Native Hawaiian organizations 

identified in paragraph (c)(1) of this 

section agrees to accept control, a 

museum or Federal agency may: 

(i) Transfer control of culturally 

unidentifiable human remains to other 

Indian tribes or Native Hawaiian 

organizations; or 

(ii) Upon receiving a recommendation 

from the Secretary or authorized 

representative: 

(A) Transfer control of culturally 

unidentifiable human remains to an 

Indian group that is not federallyrecognized; or 

(B) Reinter culturally unidentifiable 

human remains according to State or 

other law. 

(3) The Secretary may make a 

recommendation under paragraph 

(c)(2)(ii) of this section only with proof 

from the museum or Federal agency that 

it has consulted with all Indian tribes 

and Native Hawaiian organizations 

listed in paragraph (c)(1) of this section 

and that none of them has objected to 

the proposed transfer of control. 

(4) A museum or Federal agency may 

also transfer control of funerary objects 

that are associated with culturally 

unidentifiable human remains. The 

Secretary recommends that museums 

and Federal agencies transfer control if 

Federal or State law does not preclude 

it. 

(5) The exceptions listed at § 10.10(c) 

apply to the requirements in paragraph 

(c)(1) of this section. 

(6) Any disposition of human remains 

excavated or removed from Indian lands 

as defined by the Archaeological 

Resources Protection Act (16 U.S.C. 

470bb (4)) must also comply with the 

provisions of that statute and its 

implementing regulations. 

(d) Notification. (1) Disposition of 

culturally unidentifiable human 

remains and associated funerary objects 

under paragraph (c) of this section may 

not occur until at least 30 days after 

publication of a notice of inventory 

completion in the Federal Register as 

described in § 10.9. 

(2) Within 30 days of publishing the 

notice of inventory completion, the 

National NAGPRA Program manager 

must: 

(i) Revise the Review Committee 

inventory of culturally unidentifiable 

human remains and associated funerary 

objects to indicate the notice’s 

publication; and 

(ii) Make the revised Review 

Committee inventory accessible to 

Indian tribes, Native Hawaiian 

organizations, Indian groups that are not 

federally-recognized, museums, and 

Federal agencies. 

(e) Disputes. Any person who wishes 

to contest actions taken by museums or 

Federal agencies regarding the 

disposition of culturally unidentifiable 

human remains and associated funerary 

objects should do so through informal 

negotiations to achieve a fair resolution. 

The Review Committee may facilitate 

informal resolution of any disputes that 

are not resolved by good faith 

negotiation under § 10.17. In addition, 

the United States District Courts have 

jurisdiction over any action brought that 

alleges a violation of the Act. 

■ 6. Amend § 10.12 by revising 

paragraphs (b)(1)(ii), (iii), and (iv) and 

adding paragraph (b)(1)(ix) to read as 

follows: 

§ 10.12 Civil penalties. 

* * * * * 


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(b) * * * 

(1) * * * 

(ii) After November 16, 1993, or a date 

specified under § 10.13, whichever 

deadline is applicable, has not 

completed summaries as required by the 

Act; or 

(iii) After November 16, 1995, or a 

date specified under § 10.13, or the date 

specified in an extension issued by the 

Secretary, whichever deadline is 

applicable, has not completed 

inventories as required by the Act; or 

(iv) After May 16, 1996, or 6 months 

after completion of an inventory under 

an extension issued by the Secretary, or 

6 months after the date specified for 

completion of an inventory under 

§ 10.13, whichever deadline is 

applicable, has not notified culturally 

affiliated Indian tribes and Native 

Hawaiian organizations; or 

* * * * * 

(ix) Upon receipt of a claim consistent 

with § 10.11(c)(1), refuses to offer to 

transfer control of culturally 

unidentifiable human remains for which 

it cannot prove right of possession. 

* * * * * 

■ 7. Amend § 10.15 by revising 

paragraph (c) to read as follows: 

§ 10.15 Limitations and remedies. 

* * * * * 

(c) Exhaustion of remedies. (1) A 

person’s administrative remedies are 

exhausted only when the person has 

filed a written claim with the 

responsible museum or Federal agency 

and the claim has been duly denied 

under this part. This paragraph applies 

to both: 

(i) Human remains, funerary objects, 

sacred objects, or objects of cultural 

patrimony subject to Subpart B of this 

part; and 

(ii) Federal lands subject to subpart C 

this part. 

(2) A Federal agency’s final denial of 

a repatriation request constitutes a final 

agency action under the Administrative 

Procedure Act (5 U.S.C. 704). As used 

in this paragraph, ‘‘repatriation request’’ 

means the request of a lineal 

descendant, Indian tribe, or Native 

Hawaiian organization for repatriation 

or disposition of human remains, 

funerary objects, sacred objects, or 

objects of cultural patrimony brought 

under the Act and this part. 

* * * * * 

Dated: March 4, 2010. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–5283 Filed 3–12–10; 8:45 am] 

BILLING CODE P 


jlentini on DSKJ8SOYB1PROD with RULES2