1. Introduction
  2. I. A. A Brief Overview of NAGPRA
  3. I. B. Repatriating the Shields
  4. II. THE DISCONNECT BETWEEN LAW AND ANTHROPOLOGY
  5. III. INTER-TRIBAL TENSIONS AND COMPETING NAGPRA CLAIMS
  6. IV. Telling NAGPRA Stories
  7. IV. A. Telling Stories as Evidence
  8. IV. Telling NAGPRA Stories
  9. IV. 1. The Navajo Story
  10. IV. 2. The Southern Utes Claim: A Less Persuasive Story
  11. IV. 3. The Ute/Paiute Claim and the Problem of the Unspeakable
  12. CONCLUSION
  13. Statute: PART 10—NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS
  14. NAGPRA NPS
  15. National NAGRA FAQ
  16. NAGPRA Final Rule, 43 CFR 10
  17. Citation
Debora L. Threedy

Claiming The Shields

LAW, ANTHROPOLOGY, AND THE ROLE OF STORYTELLING IN A NAGPRA REPATRIATION CASE STUDY

Claiming The Shields
LAW, ANTHROPOLOGY, AND THE ROLE OF STORYTELLING IN A NAGPRA REPATRIATION CASE STUDY
Introduction

INTRODUCTION

On August 16, 1926, a man named Ephraim Portman Pectol and his wife were out looking for “cliff dwellings” in an area just west of what would become Capitol Reef National Park in south central Utah. As they were starting home at dusk, they rounded a large rock and found the mouth of an alcove, "perhaps 30 feet long and 13 feet wide, and 4 feet high.” [2] He and his wife decided to let their children share in the discovery, so they went home and returned later with them, as well as three neighbors who decided to tag along. Pectol later described what happened next:

We returned, built a bonfire in front of the cave, and at 10 o’clock at night we unearthed three of the most wonderful shields ever seen by man. As we raised the front shield, the design on two shields came to view. For the space of what seemed to me two or three minutes, no one seemed to breathe; we were so astonished. We felt we were in the presence of the one who buried the shields....

[3] 

The three shields had been stacked one on the other, with layers of juniper bark between each of the shields.[4] Beneath the shields was another layer of bark, covering a “cone of earth” [5] on which the shields had been placed to retain their shape. [6] Nothing else was found in the alcove.

The shields are made of bison hide. [7]They are large in size; they would cover the bearer from the shoulder to the knees.[8] All have arm bands or slings by which the shield was held.[9] Because of their size, it is assumed that they were carried while walking, and not by men mounted on horseback.[10] All were originally circular, although all three have in varying degrees been damaged around the edges.[11]All three of the shields have been painted.[12] After some odd twists and turns [13]by the end of the twentieth century the shields were in the possession of Capitol Reef National Park.  At that point, three claims were filed for repatriation of the shields under the auspices of the Native American Graves Protection and Repatriation Act (NAGPRA or the Act).[14]

In this paper, I use the controversy surrounding the repatriation of the three shields as the basis for examining the question of who owns the past. In particular, I examine how the repatriation process under NAGPRA addresses that question. I do this through the methodology of a case study. Because of the fact-intensive inquiry required under NAGPRA, and because NAGPRA repatriation cases are not typically resolved through court litigation,[15] a case study seems an appropriate way to proceed with this examination.[16]

The paper is structured in this way: It begins in Part I with a brief overview of NAGPRA and a recounting of how the dispute moved through the NAGPRA process. Part II focuses on the disconnect between the two disciplines of anthropology and law which is built into the structure of the Act. Part III examines the problem of competing tribal claims of cultural affiliation and the unintended consequence that the Act might create or exacerbate inter-tribal tensions. The final section focuses on the role of storytelling in the repatriation decision, an example of how the metaphoric and literal meanings of owning the past came together in this case.


[1] Judy Shell Busk, E.P. Pectol, http://www.entradainstitute.org/local_history_2.htm (last visited Mar. 12, 2007).

[2] Id.

[3] Id.

[4] Lawrence L. Loendorf & Stuart W. Conner, The Pectol Shields and the Shield-Bearing Warrior Rock Art Motif, 15 J. CAL. & GREAT BASIN ANTHRO. 216, 216 (1993). The source says “cedar bark,” but there are no true cedars in the area, and that name is often applied to juniper trees, which are common in the area and which resemble in some respects cedar trees. 

[5] Id.

[6] Two of the shields are convex; one is concave, at least in its present condition. Id. at 218-19

[7] Lee Ann Kreutzer, The Pectol Collection, Capitol Reef National Park, Utah, 7 UTAH ARCHAEOLOGY 104, 107 (1994).

[8] Id.

[9] Loendorf & Conner, supra note 4, at 218-19.

[10] Id. at 222-23; Kreutzer, supra note 7, at 107.

[11]  Loendorf & Conner, supra note 4, at 218-19.

[12] One shield has been divided into “four roughly equivalent triangular” sections. Id. at 218. One section is painted red, one is rust, one is black, and the last has a design that resembles feathers painted in colors of green, red and black. There is also a figure in the shape of an arch across the center part of the shield.

Another shield was painted on both sides. As this shield also has a tear that was repaired, apparently before it was buried, it has been suggested that the back of this shield was once the front, which would explain why it was painted on both sides. Id. at 219. The current “back” of the shield has red paint with two triangular designs. The “front” is also painted red, with a triangular, fan shaped design with green and red bands on it.

The most complex and impressive pattern appears on the third shield. One part of the shield is covered with unpainted dots on a black background, while the other part is covered with a pattern of alternating rows of green lines and unpainted dots on a rust background. The unpainted dots were formed by painting over a circular stencil with the background color. Id. at 218. The overall effect is dazzling.

[13] In 1932, the federal government received a complaint that individuals in Wayne County, Utah (where the shields were found) were collecting valuable artifacts from public lands, which make up approximately ninety-seven percent of the county. An agent was sent to investigate and Pectol admitted that he had collected the shields from public land. The agent formally “seized” the shields and other artifacts by placing a tag indicating federal ownership on them, but because he judged them of little value (he was a geologist, not an archaeologist) he left them in the physical possession of Pectol. In the late thirties, Pectol lent his collection of Native American artifacts, including the shields, to the Temple Museum in Salt Lake City. In the fifties, the federal government reclaimed the shields and two of them were eventually placed on display in the visitor center at Capitol Reef National Park. A detailed recounting of the shields’ journey from Pectol’s discovery to Capitol Reef National Park is set out in Shane A. Baker, In Search of Relics: The History of the Pectol-Lee Collection from Wayne County, in RELICS REVISITED: THE PECTOL-LEE ARTIFACTS FROM CAPITOL REEF: NEW PERSPECTIVES ON AN EARLY TWENTIETH-CENTURY COLLECTION 21, 28, 36-45 (Marti L. Allen ed., 2002).

[14] 25 U.S.C. §§ 3001-3013 (2006).

[15] The official NAGPRA website lists over a thousand repatriation notices. Conversely, only a handful of repatriation cases have resulted in published judicial opinions. See, e.g., C. Timothy McKeown & Sherry Hutt, In the Smaller Scope of Conscience: The Native American Graves Protection & Repatriation Act Twelve Years After, 21 UCLA J. ENVTL. L. & POL’Y 153, 180 (2002-03) (noting that, to date, nine civil cases involving repatriation had been filed in federal court).

[16] See, e.g., Isaac Moriwake, Critical Excavations: Law, Narrative, and the Debate on Native American and Hawaiian “Cultural Property” Repatriation, 20 U. HAW. L. REV. 261 (1998) (case study of the controversy surrounding repatriation of a wooden spear rest); Christopher S. Byrne, Chilkat Indian Tribe v. Johnson and NAGPRA: Have We Finally Recognized Communal Property Rights in Cultural Objects?, 8 J. ENVTL. L. & LITIG. 109 (1993) (case study of the repatriation dispute over carved wooden posts and rainscreen). 

I. A. A Brief Overview of NAGPRA

REPATRIATING THE SHIELDS UNDER NAGPRA

A. A Brief Overview of NAGPRA

This section will describe the purpose and structure of NAGPRA in very broad terms, as others have provided a thorough history and description of NAGPRA.[1]

For over two hundred years, white Americans have assumed rights of ownership over Native American human remains and other cultural items.[2] In the second half of the nineteenth century, a period described as “America’s Golden Age of Natural History,”[3]  public and private museums collected human remains of all races and ethnicities.[4] Included in these collections were Native American remains. Indeed, government agents, military personnel, and private collectors aggressively sought out Native American remains, recent as well as ancient.

In 1868, the U.S. Surgeon General directed army personnel to collect Indian crania for the Army Medical Museum.[5]  That order resulted in the collection of more than four thousand Native American heads. [6] One army surgeon recounted how he had obtained the skull of an elderly Sioux man:

[The man] died at this post on the seventh day of Jan. 1869 and was buried in his blankets and furs in the ground about a half mile from the Fort, within a few rods of the tippes [sic] occupied by his friends. I secured the head in the night of the day he was buried. From the fact he was buried near these lodges, [I suspected] it was their intention to keep watch over the body. Believing that they would hardly think I would steal his head before he was cold in the grave, I early in the evening with two of my hospital attendants secured this specimen. [7]

Other “specimens” were collected alive. Admiral Peary returned from one of his Arctic explorations with six Eskimos from Greenland. Within a year, four of them had died of tuberculosis.[8] One of the men, Qisuk, had brought his six year old son along. When Qisuk died a funeral was held for him and he was supposedly buried. What his son would learn some ten years later, however, was that the grave contained no body; after Qisuk’s death, an autopsy was performed on his body, his brain was removed and preserved, and his bones were defleshed, numbered and archived in the American Museum of Natural History. [9]

Seventeen years ago Congress took steps to redress this history of cultural insensitivity and abuse by passing NAGPRA. A common misperception is that NAGPRA applies to anything Native American, but this is not the case. Initially, the Act only applies to remains and items found on federal or tribal lands, or held by federal agencies or federally-funded museums. [10] Consequently, the Act does not apply to remains or items found on private property or those that are currently held by private individuals or organizations, unless it can be proven that the individual or organization illegally obtained the items.

[11]

Moreover, the Act only applies to “cultural items,” which includes five categories. The first is human remains.[12] The Act also applies to two classes of “funerary objects,” meaning objects placed with individual human remains as part of a death rite or ceremony. [13]Funerary objects can be either “associated,” which means that the individual is known and the remains are in the custody or control of a federal agency or federally-funded museum, or “unassociated,” which means that, while it can be shown that the items were removed from a specific burial site, the objects have been separated from the individual human remains and the remains are not in the custody or control of a federal agency or federally-funded museum.[14]

The Act also applies to two classes of items not connected with burials. It applies to “sacred objects.” This category is narrowly defined as including only “specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents.”[15]

25 U.S.C. § 3001(3)(c). See also 43 C.F.R. §10.2(d)(3) (defining sacred objects as “[I]tems that are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents. While many items, from ancient pottery shards to arrowheads, might be imbued with sacredness in the eyes of an individual, these regulations are specifically limited to objects that were devoted to a traditional Native American religious ceremony or ritual and which have religious significance or function in the continued observance or renewal of such ceremony”).

The final category is objects of “cultural patrimony.” An object of cultural patrimony is one which has “ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual” and which cannot be “alienated, appropriated, or conveyed by any individual.”[16]

 The operative part of NAGPRA consists of two major sections, one of which is forward looking and one of which addresses the past.[17]The first section, the forward looking section, addresses the ownership of human remains and other cultural objects found on federal or tribal lands after the effective date of the Act, which was November 16, 1990. The second section of the Act, the one looking to the past, addresses the issue of repatriation to Native American claimants of human remains and other cultural objects found prior to the passage of the Act and now held by federal agencies and museums that receive federal funding. The first section, dealing with the ownership of human remains and cultural objects found post-1990, applies to both “intentional excavation,” in which case a permit and consultation are required, and “inadvertent discovery.”[18] In either case, the Act prioritizes claims of ownership. Priority varies depending upon the category of the item claimed and the location of the find. For human remains and associated funerary objects, first priority is given lineal descendants.[19] In the absence of lineal descendants, and in all cases involving unassociated funerary objects, sacred objects, and objects of cultural patrimony, if the remains or objects are found on tribal land, first priority goes to that Native American tribe.[20] Second priority goes to the Native American tribe “which has the closest cultural affiliation.”[21] If the cultural affiliation cannot be “reasonably” ascertained and the cultural items are found on federal land that has been adjudicated the aboriginal land of some Indian tribe, then the next priority is given to that tribe, unless another tribe shows, by a preponderance of the evidence, that it has a “stronger cultural relationship” with the items, in which case that tribe has the next priority.[22]

Claims for repatriation of cultural items obtained prior to 1990 but now held by federal agencies and federally-funded museums are handled differently than claims of ownership of post-1990 discoveries. Initially, to facilitate the making of such claims for repatriation, federal agencies and federally-funded museums are required to compile and disseminate two types of notices. For human remains and associated funerary objects, the agencies and museums are required to produce an item-by-item inventory providing detailed information about each item.[23] For the other categories of cultural items—unassociated funerary objects, sacred objects and objects of cultural patrimony—the agencies and museums are only required to produce a more general summary for each collection.[24]

Once a claim for repatriation is made, NAGPRA provides a much simpler prioritization scheme than that for ownership claims to post-1990 discoveries, although the scheme is not without ambiguities. Where cultural affiliation is established in the process of preparing the inventory or summary, then repatriation of human remains, associated funerary objects, and sacred objects is made to a lineal descendant or to the tribe.[25] In the case of a claim to an unassociated funerary object or object of cultural patrimony, if the survey establishes cultural affiliation with a particular tribe, then repatriation is made to that tribe.[26]

Repatriation gets more complicated if the inventory or summary was not able to establish cultural affiliation. In such cases, repatriation is made to the tribe that “can show cultural affiliation by a preponderance of the evidence” based upon a variety of factors such as geography, linguistics, oral tradition or expert opinion.[27] If there are competing tribal claimants, then a section on competing claims would govern.

In the case of competing claims for repatriation under NAGPRA, the federal agency involved must determine who is the “most appropriate claimant.”[28] Presumably, this means the tribe with the closest cultural affiliation to the cultural item, although the Act does not explicitly set out the standards to be used in making this determination. Regulation 10.14(d) does provide that cultural affiliation should be “based upon an overall evaluation of the totality of the circumstances.”[29] The statute and the implementing regulations also set out the types of evidence to be considered: geographical, kinship, biological, archeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion.[30]  The standard of proof to be applied is that of “a preponderance of the evidence.”[31] The regulations specifically state that a finding of cultural affiliation does not require “scientific certainty.”[32]

The Act does anticipate, however, that there may be cases in which “the Federal agency or museum cannot clearly determine which requesting party is the most appropriate claimant.”[33] In that situation, the Act provides that the agency or museum may retain the item until one of three alternative scenarios occurs: 1) “the requesting parties agree upon its disposition”; 2) “the dispute is otherwise resolved pursuant to the provisions of this chapter”; or 3) the matter is resolved by a court. [34]

Finally, the Act and its implementing regulations do not deal with the situation where cultural items are “culturally unidentifiable.” The legislative history of the Act suggests that the drafters considered the problem but were unable to agree on how to address this situation and so left it for the regulations to address.[35] But to date no regulations on the subject have been adopted. 


[1]  There are over two hundred articles dealing with various aspects of and issues under NAGPRA. Two especially thorough overviews are found in Kelly E. Yasaitis, NAGPRA: A Look Back Through the Legislation, 25 J. LAND, RESOURCES, & ENVTL. L. 259 (2005) (giving legislative history, overview, and summary of major litigation involving NAGPRA), and McKeown & Hutt, supra note 15.

[2] In his 1787 treatise, Notes on the State of Virginia, Thomas Jefferson described what was probably the first scientific archaeological project in the United States: the excavation of an earthen mound on his property that was found to contain human remains. See DAVID HURST THOMAS, SKULL WARS: KENNEWICK MAN, ARCHAEOLOGY, AND THE BATTLE FOR NATIVE AMERICAN IDENTITY 32-35 (2000).

[3] Id. at 56.

[4] Id. at 119. See also James Riding In, Without Ethics and Morality: A Historical Overview of Imperial Archaeology and American Indians, 24 ARIZ. ST. L.J. 11, 17-18 (1992) (discussing craniology and phrenology).

[5] Jack F. Trope & Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act: Background and Legislative History, 24 ARIZ. ST. L.J. 35, 40 (1992).

[6] Id.

[7] THOMAS, supra note 18, at 57.

[8] Id. at 80.

[9] Id. at 77-78.

[10] 25 U.S.C. § 3001.

[11] The limited scope of NAGPRA has been criticized by some. E.g., Rebecca Tsosie, Indigenous Rights and Archaeology, in NATIVE AMERICANS AND ARCHAEOLOGISTS: STEPPING STONES TO COMMON GROUND 64, 71 (Nina Swidler et al., eds., Alta Mira Press) (1997). Indeed, the whole concept of “ownership” as applied to human remains and sacred objects is rejected by some. Id. at 66.

[12] 25 U.S.C. § 3001(3). 2009]

[13] 43 C.F.R. §10.2(d)(2)(2005) (defining funerary objects as “[I]tems 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 with or near individual human remains. Funerary objects must be identified by a preponderance of the evidence as having been removed from a specific burial site of an individual affiliated with a particular Indian tribe or Native Hawaiian organization or as being related to specific individuals or families or to known human remains”).

[14] The definition of unassociated funerary objects is as follows: [T]hose funerary objects for which the human remains with which they were placed intentionally are not in the possession or control of a museum or Federal agency. 43 C.F.R. § 10.2(d)(2)(ii).

[15]  25 U.S.C. § 3001(3)(c). See also 43 C.F.R. §10.2(d)(3) (defining sacred objects as “[I]tems that are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents. While many items, from ancient pottery shards to arrowheads, might be imbued with sacredness in the eyes of an individual, these regulations are specifically limited to objects that were devoted to a traditional Native American religious ceremony or ritual and which have religious significance or function in the continued observance or renewal of such ceremony”).

[16] 25 U.S.C. § 3001(3)(D). See also 43 C.F.R. § 10.2(d)(4) (defining objects of cultural patrimony as “[I]tems having ongoing historical, traditional, or cultural importance central to the Indian tribe or Native Hawaiian organization itself, rather than property owned by an individual tribal or organization member. These objects are of such central importance that they may not be alienated, appropriated, or conveyed by any individual tribal or organization member. Such objects must have been considered inalienable by the culturally affiliated Indian tribe or Native Hawaiian organization at the time the object was separated from the group. Objects of cultural patrimony include such items as Zuni War Gods, the Confederacy Wampum Belts of the Iroquois, and other objects of similar character and significance to the Indian tribe or Native Hawaiian organization as a whole”). To my mind, this category is the most problematic under NAGPRA. The first part of the definition is potentially very broad; almost any archaeological artifact could be said to have historical importance. The second part of the definition, the requirement of inalienability, can be interpreted as a significant narrowing of the category, but it includes background assumptions of concepts of ownership that may or may not be appropriate for Native American groups. The definition has been challenged twice for vagueness, but has so far been upheld. See U.S. v. Corrow, 119 F.3d 796 (10th Cir. 1997) (upholding antiquities dealer’s conviction for selling Navajo ceremonial masks); and U.S. v. Tidwell, 191 F.3d 976 (9th Cir. 1999) (upholding dealer’s conviction for selling Hopi ceremonial masks and robes).

[17] NAGPRA also includes an often overlooked criminal section.

[18] 25 U.S.C. § 3002(c)-(d).

[19] 25 U.S.C. § 3002(a)(1).

[20] 25 U.S.C. § 3002(a)(2)(A).

[21] 25 U.S.C. § 3002(a)(2)(B).

[22] 25 U.S.C. § 3002(a)(2)(C).

[23] 25 U.S.C. § 3003(a).

[24] 25 U.S.C. § 3004(a). 2009]

[25] 25 U.S.C. § 3005(a)(1), (4), (5). But see 43 C.F.R. § 10.10(a)-(b). The regulations provide that all cultural items, including objects of cultural patrimony, may be repatriated to either a lineal descendant or the tribe.

[26] 25 U.S.C. § 3005(a)(2). But see 43 C.F.R. § 10.10(a)-(b), which provide for repatriation to a lineal descendant as well as the tribe. In the case of unassociated funerary objects, it seems appropriate to include lineal descendants, if they can be determined. But as the definition of objects of cultural patrimony states that to qualify as such the object cannot be the personal property of any individual, including lineal descendants as appropriate claimants is problematic.

[27] 25 U.S.C. § 3005(a)(4).

[28] Section 3005(e) of the Act provides, “[W]here there are multiple requests...and...the federal agency or museum cannot clearly determine which...is the most appropriate claimant, the agency or museum may retain such an item until the requesting parties agree...or the dispute is otherwise resolved pursuant to the provisions of this chapter or by a court of competent jurisdiction.” 25 U.S.C. § 3005(e). See also 43 C.F.R. §§ 10.10(c)(2) and 10.17.

[29] The section provides: “A finding of cultural affiliation should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed should not be precluded solely because of some gaps in the record.”

[30] 25 U.S.C. § 3005(a)(4); 43 C.F.R. § 10.14(e).

[31] 25 U.S.C. § 3005(a)(4).

[32] 43 C.F.R. § 10.14(f).

[33] 25 U.S.C. § 3005(e).

[34] Id.

[35] Trope & Echo-Hawk, supra note 21, at 64.

I. B. Repatriating the Shields

REPATRIATING THE SHIELDS UNDER NAGPRA

B. Repatriating the Shields

As the shields were found by Pectol many years prior to the passage of NAGPRA, it is the second section of the Act dealing with repatriation that applies. The shields were not originally included in the Park’s NAGPRA inventory or summary. It was known that they were not found in a burial; thus, they were not funerary objects. They were not considered as either sacred objects or objects of cultural patrimony because it was assumed they comprised an individual’s personal armaments and not a ceremonial object. Thus, the shields remained on display at the Park visitors’ center through the mid-1990s.

The Park archaeologist, however, routinely brought the shields to the attention of Native American consultants and during one consultation it was suggested that the shields might be sacred objects.[1] This prompted the Park to contact representatives of all of the tribes that might have an interest in the shields. [2] A series of consultations with tribal representatives confirmed that there were likely to be competing claims to the shields, so the Park also commissioned three experts to prepare analyses of the cultural affiliation of the shields.[3] Later, a fourth report was commissioned when additional funding became available.[4] The experts did not agree on the cultural affiliation of the shields.

Ultimately, on June 11, 2001, the Navajo Nation formally requested repatriation of the shields. [5]  The Navajo claim alleged that the shields were sacred objects needed for the proper practice of the Protection Way Ceremony, as well as objects of cultural patrimony.[6] The filing of the Navajo claim prompted other tribes to make repatriation requests. Eventually, several of the tribes submitted two additional, collaborative requests. One request came from the Ute Indian Tribe of the Uintah and Ouray agency,[7] the Paiute Tribe of Utah, and the Kaibab Band of Pauite Indians (the “Ute/Paiute claim”).[8] The other claim was made by the Southern Ute Tribe and Ute Mountain Tribe (the “Southern Ute claim”).[9]  Thus, the Park was faced with the problem of resolving competing tribal claims for repatriation of the shields.

Because tribes were making the request for repatriation and not a direct lineal descendant,[10]the Park was required first, to determine whether any of the tribes had a “cultural affiliation” with the shields, and secondly, if more than one tribe did have such a cultural affiliation, to attempt to determine which tribe had the closest cultural affiliation with the shields. On July 1, 2002, the Park archaeologist recommended repatriation to the Navajo Nation.[11] Administrative appeals were taken by the Pectol family[12]  and the Southern Ute claimants.[13]These appeals were denied. In August of 2003, the shields were turned over to the Navajo Nation. It was reported that they are now being stored in a vault in the tribal museum at Window Rock and are available for traditional healers’ use.[14]

The repatriation of the shields reveals three inter-related issues that the remainder of this paper will address. First, the repatriation process in this case reveals a fundamental disconnect between law and archaeology. Second, it highlights an unintended consequence of NAGPRA, the creation or exacerbation of tensions between different Native American groups. Finally, the case presents an opportunity to examine the role of storytelling in the repatriation process.


[1] Email from Lee Ann Kreutzer to author (October 15, 2007).

[2] The Notice of Intent to Repatriate lists thirty-seven tribes that were contacted and or consulted.

[3] Benson L. Lanford, Tribal Attribution of the Pectol Shields, Capitol Reef National Park, Utah (2001) (manuscript on file with author); Lawrence Loendorf, The Pectol Shields: A Repatriation Study (2001) (manuscript on file with author); Barton A. Wright, Professional Evaluation of Cultural Affiliation of Three Buffalo Hide Shields from Capitol Reef National Park, Utah (2001) (manuscript on file with author).

[4] Polly Schaafsma, The Pectol Shields: A Cultural Evaluation (2002) (manuscript on file with author).

[5] Lee Kreutzer, Summary of Historical Research and Evaluation of the Repatriation Request Submitted by the Navajo Nation, for the Capitol Reef Shields 1 (July 1, 2002).

[6] Id. at 2-3.

[7] Although in casual conversation references are often made to the “Utes,” after whom the state of Utah is named, in the mid-1800s there were at least eleven separate bands identified as Ute. Today, there are three separate federally recognized Ute tribes. See T. J. Ferguson, Ethnographic Study of Ten Tribes: Cultural Affiliation with the Uinta and Great Salt Lake Variants of Fremont in Northern Utah 1, 23-25 (2003) (manuscript on file with the author).

[8] Both of these Paiute tribes belong to what anthropologists call the Southern Paiute. Historically, there were sixteen bands within the Southern Paiute. Today, both of these groups are separate, federally recognized tribes. Id. at 26-28.

[9] These are the other two federally recognized Ute tribes.

[10] It appears that John Holiday, the singer or medicine man who provided the oral history in support of the Navajo claim, could have individually requested repatriation, as the administrative decision states that “he has established...that he is a lineal descendant of one of the last owners of [the shields].” Kreutzer, supra note 56, at 39.

[11] Id.

[12] The Pectol family was disturbed by the decision because they wished to see the shields remain in a museum, preferably on display at Capitol Reef National Park. Their progenitor and the finder of the shields, Ephraim Portman Pectol, had lobbied for the creation of the Park. The Pectols requested reconsideration of the decision to repatriate the shields to the Navajo Nation from the Park superintendent and the regional director, both of whom declined to do so. Lee Kreutzer, Consideration of Supplemental Information Concerning the Capitol Reef Shields 1, (June 6, 2003). The Pectols also considered taking the case to the NAGPRA Review Committee, but did not do so after the Review Committee, in another case, determined that only federally recognized tribes, federal agencies, or museums had standing to come before the Review Committee. Id.

[13] Id. at 3-4.

[14] Robert Begay, Navajo Historic Preservation Department, and Timothy Begay, Navajo Cultural Specialist, Relics Revisited Seminar, February 7, 2004. The continued use of fragile artifacts such as the shields gives some preservationists pause. “Objects curated in museums for as long as a century are not likely to hold up to any significant use. For example, a nineteenth century medicine bundle, curated in a temperature and humidity-controlled environment, probably will deteriorate rapidly if put back into active use.” Thomas H. Boyd & Jonathan Haas, The Native American Graves Protection and Repatriation Act: Prospects for New Partnerships Between Museums and Native American Groups, 24 ARIZ. ST. L.J. 253, 265 (1992).

II. THE DISCONNECT BETWEEN LAW AND ANTHROPOLOGY

II. THE DISCONNECT BETWEEN LAW AND ANTHROPOLOGY

The controversy surrounding the repatriation of the shields puts into stark relief the fundamental disconnect between anthropology and law. Anthropologically speaking, it is not possible to assign a cultural affiliation for the shields. Arguably, however, the legal standard for cultural affiliation is less rigorous than that used in anthropology. Under NAGPRA, cultural affiliation need only be established by a preponderance of the evidence. It does not require scientific certainty.

The identity of the makers of the shields has “been the subject of debate since their discovery” in the mid 1920s.[1] Because of his belief in The Book of Mormon, which recounts the story of a pre-Columbian Hebrew people who lived on the American continent,[2] Pectol thought they were about 3,000 years old and perhaps carried by these people from Egypt to Peru, and then to Utah.[3] He attributed religious significance to the designs on the shields: “He interpreted their designs as representing creation, the peopling of the earth, and the conflict between good and evil.”[4]

The first two archaeologists to inspect the shields believed that they were historical, i.e., post-Columbian artifacts.[5] They based this judgment upon several factors: the uniqueness of the shields in the archaeological record; their resemblance to modern Apache shields;[6] and their resemblance to post-Columbian pictographs of shield-bearing warriors that appear with figures of horses at rock art sites in Utah.[7] Later archaeologists disagreed. [8] Several different origins were postulated: one of the Plains tribes; one of the Puebloan tribes; or perhaps the Fremont, who inhabited the area from approximately 1 A.D. to approximately 1300 A.D.[9]

In 1967, one of the shields was radiocarbon-dated and the results indicated that the shields were 300 years old, or from circa 1650, or possibly of even more recent manufacture.[10] This date removed the possibility of the shields being Fremont in origin, using 1300 as the end date for the Fremont life way. Another of the shields was again radiocarbon-dated in 1992 and, while the dates obtained were earlier, circa 1500, the results again indicated the shields were of post-Fremont manufacture, using the generally accepted dates for the Fremont lifeway.[11] It should be pointed out, however, that some researchers argue that the ending date for the Fremont culture might be as recent as 1500, which would overlap with the second set of radiocarbon dates for the shields.[12] Thus, as of the mid-1990s, the issue of the cultural affiliation of the shields remained unresolved.[13]

Two factors primarily contribute to this uncertainty. One factor is the uniqueness of the shields in the anthropological record. There are simply no other shields at all like them, so it is not possible to deduce their origin based on similarities with known equivalent objects—because there are none.

The other factor contributing to this uncertainty is that too little is known about the various groups in the Four Corners area during the period of the shields’ manufacture. The shields have been dated to approximately 1500. That was a time of transition. Up until approximately 1300, southern Utah had been inhabited by two groups, often called the Anasazi and the Fremont.[14] For reasons that are not completely understood, by about 1300 these two groups had abandoned their settlements. At about that same time two separate language groups were entering the area: Athabaskan speakers were migrating into the area from the north and Numic (a branch of the Uto-Aztecan language family) speakers were migrating into the area from the south and west.[15] Eventually, the Athabaskan speakers would form what today we recognize as the separate tribes of Navajo and Apache, but the timing and process for that separation is still unresolved. Similarly, the Numic speakers evolved over time into what we today recognize as the Ute and the Paiute tribes.[16]

In other words, at the time of the shields’ manufacture, the social groupings in the Southwest were in a state of flux, making it impossible, given the incomplete state of our knowledge today, to attribute the shields authoritatively to one group or another. Moreover, there is evidence that these groups intermarried.[17] There is a real possibility that the shields were manufactured by someone who was both Navajo and Ute or Paiute. Given the uncertainties surrounding the cultural affiliation of the shields, the question arises why the Park did not opt to invoke Section 3005(e) of the Act: where there are multiple requests...and...the federal agency or museum cannot clearly determine which...is the most appropriate claimant, the agency or museum may retain such an item until the requesting parties agree...or the dispute is otherwise resolved pursuant to the provisions of this chapter or by a court of competent jurisdiction.[18] The section thus provides a loophole that allows the federal agency or museum in essence to throw up its hands and pass the problem onto someone else.

While at first blush, this provision may appear attractive, especially in a case such as this where the question of cultural affiliation is politically charged due to pre-existing tensions between the claimants,[19] as a practical matter it poses some problems. If the agency or museum cannot determine cultural affiliation, the artifacts will remain in bureaucratic limbo. The agency or museum “may” retain possession, but if it does, it will also retain the expense and liability of storing the artifact.[20] The more fragile and unique the artifact, the more expensive that storage will be. Moreover, due to the sensitive nature of artifacts covered by the Act, the agency or museum most likely will refrain from displaying the item until the repatriation claim is resolved one way or the other. The Act does not require the agency or museum to retain an artifact where the cultural affiliation cannot be determined, but in the politically-charged arena of competing repatriation claims it is hard to imagine that the artifact would be turned over to one of the claimants without that action giving rise to an outcry from the disfavored claimant[21]

In the case of the shields, the Park archaeologist, while acknowledging that the issue could not be definitively resolved, determined that the Navajo Nation’s submission had met the legal standard of establishing them as “clearly” the most appropriate claimant. The repatriation decision provided: “Given the detail and specificity of the Navajo claim, in addition to historical and ethnographical evidence that is consistent with (though not proof of) that claim, I consider the Navajo claim to be clearly superior to the competing claims currently under review.[22]

This decision has been highly controversial.[23] Dissatisfaction with the decision may be related to the critic’s own preferred outcome. Some critics want to see the shields reburied, while others want the shields placed in a museum; both groups are unhappy that the shields have been turned over to the Navajo. To some extent, however, criticism of the decision may reflect a lack of understanding of the differences between an anthropological attribution of cultural affiliation and a legal decision.[24]


[1] Loendorf & Conner, supra note 4, at 218.

[2] See THE BOOK OF MORMON: ANOTHER TESTAMENT OF JESUS CHRIST (Joseph Smith, Jr. trans., Intellectual Reserve, Inc.) (1981) (1830).

[3] Loendorf & Conner, supra note 4, at 216.

[4] Busk, supra note 1.

[5] Loendorf & Conner, supra note 4, at 216.

[6] This noted resemblance with Apache shields is interesting, as Apaches and Navajos are both Athabaskan speakers and it is believed that both tribes descended from the same Athabaskan ancestors. Nancy Maryboy & David Begay, The Navajos in A HISTORY OF UTAH’S AMERICAN INDIANS 265, 271-72 (Forrest S. Cuch, ed., Utah State University Press 2000).

[7] One such site, which has been attributed to Utes, appears in Capitol Reef National Park, within ten miles of the alcove where the shields were found.

[8] Loendorf & Conner, supra note 4, at 216-17.

[9] See, e.g., Richard K. Talbot, In Search of the Ancient Utahns: The Prehistory of the Fremont River Drainage, AD 1-1800, in RELICS REVISITED: THE PECTOL-LEE ARTIFACTS FROM CAPITOL REEF: NEW PERSPECTIVES ON AN EARLY TWENTIETH-CENTURY COLLECTION 1 (Marti L. Allen, ed., 2002). But see Loendorf & Conner, supra note 4, at 223 (arguing for a later ending date of 1500 for the 2009]

[10] Loendorf & Conner, supra note 4, at 217.

[11] Id. at 221-22. 77 Id. at 223. 78 Kreutzer, supra note 7, at 108.

[12] Id. at 223.

[13] Kreutzer, supra note 7, at 108.

[14] Robert S. McPherson, Setting the Stage: Native America Revisited, in A HISTORY OF UTAH’S AMERICAN INDIANS 3, 12-13 (Forrest S. Cuch ed., Utah State University Press 2000).

[15] Id. at 14-16.

[16] RONALD L. HOLT, BENEATH THESE RED CLIFFS: AN ETHNOHISTORY OF THE UTAH PAIUTES 4 (Utah State University Press 2006).

[17] ROBERT S. MCPHERSON, THE NORTHERN NAVAJO FRONTIER 1860-1900: EXPANSION THROUGH ADVERSITY 15-16 (2001) (Ute-Paiute and Paiute-Navajo intermarriages creating weak kinship ties among all three groups).

[18] 25 U.S.C. § 3005(e).

[19] For a discussion of the inter-tribal tensions between the claimants, see text accompanying notes 116-120, infra.

[20] Artifacts composed of organic materials, such as the bison-hide shields, must be stored in temperature, light, and humidity controlled environments. When the shields were removed from display at the Park’s visitor center, the nearest facility capable of providing such storage was outside of Tucson, Arizona.

[21] In the dispute between two Oneida tribes over repatriation of a wampum belt, the belt was left with the Field Museum of Chicago (which had possession of the belt at the time repatriation was requested) until the two claimants could work out a settlement of the dispute. See McKeown & Hutt, supra note 15, at 193; see also, Lawrence Hart, Indigenous Renaissance: Law, Culture & Society in the 21st Century, 10 ST. THOMAS L. REV. 7, 11-13 (1997).

[22] Kreutzer, supra note 56, at 41-42.

[23] See Joe Bauman, Navajo Custody of Shields Fueling Discontent, DESERET MORNING NEWS, Oct. 10, 2005, at B1.

[24] The Park archaeologist on more than one occasion expressed discomfort with her role of mediating the two disparate standards. She referred to the whole experience as “Death by NAGPRA.”

III. INTER-TRIBAL TENSIONS AND COMPETING NAGPRA CLAIMS

III. INTER-TRIBAL TENSIONS AND COMPETING NAGPRA CLAIMS

Up to this point in time, the most notorious case under NAGPRA is that of Kennewick Man, a nearly complete skeleton that has been radio carbon dated at more than 9,000 years of age.[1] The skeleton was discovered eroding out of a bank of the Columbia River and was the subject of a lawsuit, Bonnischen v. Army Corps of Engineers,[2] brought by a group of scientists seeking to prevent repatriation of the skeleton to a coalition of Northwestern tribes, which had stated its intent to rebury the remains.

As a result of the widespread attention paid to this case, it is easy to assume that all NAGPRA controversies are between Native Americans seeking to reaffirm their traditional beliefs and scientists seeking to further the goals of Western knowledge. This assumption, however, would be erroneous. NAGPRA disputes can also arise among competing Native American claimants.[3]

Indeed, this has caused some to criticize the design of NAGPRA. These critiques argue that the concept of “ownership” legalized in NAGPRA is both contrary to Native American beliefs[4] and has the potential to set tribe against tribe.[5]

Three examples not covered by NAGPRA illustrate how goals and attitudes can differ from tribe to tribe. In the GE Mound case, the controversy involved artifacts found on privately owned land.[6] In that case, pothunters had looted a Hopewell burial mound. When many of the artifacts were recovered, the property owner (General Electric) offered to repatriate the items.[7] However, the connection between the Hopewell culture and modern tribes is not currently understood. Various tribes claimed the items; some of them wanted the items reburied while others wanted them placed in a museum. Ultimately, the items were reburied in the mound.

The controversy surrounding Ishi’s brain also implicated tensions within the Native American community. Ishi was the last known member of his tribal group, which anthropologists have called the Yahi. After his death, his brain was removed and preserved, despite his wish to be cremated.[8] In the late 1990s when it was discovered that the Smithsonian still had possession of Ishi’s brain, two different Native American groups sought repatriation, a group from the Maidu and another group claiming descent from the northern Yana. [9]

In the absence of direct lineal descendants, the next priority is the tribe with the closest cultural affiliation, and that is where the controversy arose. Anthropologists have concluded that the Yahi were linguistically related to several other tribal groups called, collectively, the Yana, with subdivisions into northern, central and southern Yana. [10] One group claiming the right to repatriate Ishi’s brainwere descendants of the northern Yana.[11]

But because Ishi lived at a time when his tribal group had been horribly decimated, the possibility exists that one of his parents may have belonged to another nearby group. Ishi recorded a number of songs and stories; most of them were Yahi, but four belonged to the Atsugewi and another four belonged to the Maidu. And when Ishi finally surrendered to the whites, he had left his ancestral territory and was in the territory of the Maidu.[12] The other group claiming the right to repatriate Ishi’s brain were Maidu.[13]

The Maidu, and in particular a man by the name of Art Angle, were the first to seek repatriation, starting in 1997. They knew that Ishi’s ashes were in a cemetery outside of San Francisco (his body had been cremated) but they also knew of a rumor that his brain had been removed and had not been cremated with his other remains. They wanted to bring Ishi “home” to the Sacramento Valley and bury him on his ancestral lands, but they did not want to do that until his brain was reunited with his ashes. Art Angle joined up with Orin Starn, an anthropologist who was researching Ishi’s life and who ultimately tracked down Ishi’s brain at the Smithsonian. The publicity surrounding that event led the Yana descendants to also claim repatriation.

Ultimately, the Smithsonian decided to repatriate to the Yana descendants.[14] This decision has been criticized as ignoring the Smithsonian’s own guidelines, which “allowed for and even encouraged” joint repatriation where multiple claimants had a legitimate basis for repatriation.[15]Unlike the situation in the GE Mound case, both groups wanted the same outcome: reburial. Nevertheless, the Smithsonian’s decision left bad feelings between the two groups.[16] The case seems to confirm the fear that federal involvement in repatriation will only serve to drive a wedge between Indian communities.

In another case, filed in Montana U.S. District Court, self-identified descendants of a group of Native Americans killed at Fort Robinson, Nebraska, opposed the Smithsonian’s repatriation of the remains to the Northern Cheyenne Tribe and sought an injunction prohibiting reburial of the remains.[17]

 Although none of the preceding cases involved NAGPRA, there have been instances of competing tribal claims for repatriation under NAGPRA. For example, in 1994, the Marine Corps Base Hawaii sought to repatriate the remains of some 1,582 individuals which had been recovered from the Mokapu peninsula on the island of O’ahu.[18] The Corps “found the NAGPRA procedures of little help in resolving multiple competing claims from culturally affiliated Native Hawaiian individuals and organizations.” [19] It took over four years “of intensive effort” to bring the twenty-one claimants to agreement on the ultimate disposition, which was reburial on the peninsula. [20]

Another inter-tribal dispute involved an Oneida Wampum Belt that was in the possession of the Field Museum of Chicago. [21] The wampum belt consisted of purple and white shells that had been woven into a panel about three feet long by a half a foot wide, bound with buckskin and having buckskin fringe at each end.[22] In 1995, the Field Museum filed a Notice of Intent to repatriate the belt to the Oneida Nation of New York. That tribe’s right to the belt was contested by the Oneida Tribe of Wisconsin. Historically, both federally recognized tribes had been one nation, the Oneida Nation.[23] The dispute was referred to the NAGPRA Review Committee, which urged the two tribes to work out  a solution. [24] Until that time, the belt would remain in the possession of the Field Museum. [25]

Currently ten tribes have claimed Northern Fremont remains and cultural items that are held by the Bureau of Reclamation in Utah. [26] At present, archaeologists are unsure whether the culture we call “Fremont” was a single group, several groups, or just a regional adaptation of the Anasazi or Ancestral Puebloan culture. Moreover, the relationship between the Fremont (whoever they were) and modern tribes is unclear. In the case of the shields, it would be inaccurate to say that the case created division; rather, it exacerbated existing divisions. Historically, the Navajo and the

Utes have more often been enemies than allies, [27] and both groups have a history of preying upon or exploiting the Paiutes. [28] Southeastern Utah was territory claimed and used by all three tribes,[29] and oral history records many skirmishes and slaving raids involving the tribes.[30] Add to this historical bad blood the fact that the Navajo Nation today is one of the largest, best organized, and most politically powerful Native American tribes and it is easy to understand why the Utes and Paiutes might feel some resentment towards the Navajo.[31] For example, “the Navajo Nation was the first tribe in the country to establish a historic preservation program ..., which has grown to become larger than the historic preservation program of any state.”[32] It established one of the first tribal archaeology programs in the 1950s to prepare for and litigate its claims before the Indian Claims Commission.[33] In 1996, the Navajo Historic Preservation Department had a staff of seventy and an annual budget of more than four million dollars.[34] The Park had to decide the disposition of the shields based on the claims presented to it, and the Navajo claim was the best supported, but the relative resources available to the claimants leads one to wonder if the Utes and Paiutes were simply out-litigated by an opponent with more resources. It is certainly possible that, whether that is the case or not, some might perceive it to be. As the Park archaeologist noted in one of her reports, some tribes, for economic reasons, will always be disadvantaged in multiple-claim NAGPRA disputes.[35]


[1] See THOMAS, supra note 18, at xix-xxi.

[2] 357 F.3d 962 (9th Cir. 2004), amended on reh’g, 367 F.3d 864 (9th Cir. 2004).

[3] See text accompanying notes 107-115, infra.

[4] For example, the Southern Paiutes have argued some cultural items covered by NAGPRA cannot be “owned” by a human, as they belong to the spiritual beings. Kreutzer, supra note 63, at 8. See also Tsosie, supra note 27, at 66.

[5]For example, the Hopi once occupied a much larger area than their current reservation. As a result of actions by the United States, much of their ancestral land lies within the Navajo reservation and it contains thousands of archaeological sites. NAGPRA’s provisions give “ownership rights and the determination of the final treatment and disposition of Hopi ancestral human remains and cultural items to a culturally unrelated tribe.” Kurt E. Dongoske, NAGPRA: A New Beginning, Not the End, for Osteological Analysis – A Hopi Perspective, in REPATRIATION READER: WHO OWNS AMERICAN INDIAN REMAINS? 282, 285 (Devon A. Mihesuah ed., University of Nebraska Press 2000). From a Hopi perspective, this situation is problematic due to tensions between the Navajo and Hopi arising out of a land dispute involving Black Mesa. CHARLES WILKINSON, FIRE ON THE PLATEAU: CONFLICT AND ENDURANCE IN THE AMERICAN SOUTHWEST 287-93 (Island Press 1999) (discussing the Black Mesa land dispute).

[6] Cheryl A. Munson, Marjorie M. Jones, and Robert E. Fry, The GE Mound: An ARPA Case Study, 60 AMERICAN ANTIQUITY 131, 146-54 (1995).

[7] This was a voluntary repatriation, as NAGPRA does not apply to remains and artifacts found on private property. See text accompanying notes 26-27, supra.

[8] THEODORA KROEBER, ISHI IN TWO WORLDS: A BIOGRAPHY OF THE LAST WILD INDIAN IN NORTH AMERICA 234-35 (University of California Press 1961); ORIN STARN, ISHI’S BRAIN: IN SEARCH OF AMERICA’S LAST “WILD” INDIAN 28-29, 158-59, 164, 171 (W.W. Norton & Company 2004).

[9] The Smithsonian’s repatriation obligations are governed, not by NAGPRA, but by a similar, earlier legislative act, which like NAGPRA gives first priority for repatriation of human remains to lineal descendants. Ishi has no known direct descendants, although the possibility exists that there are other descendants of Ishi’s tribal group, as there are historical accounts of Yahi children being adopted by whites and, in one case from the 1880s, being sent to a reservation. STARN, supra note 9, at 207-09.

[10] KROEBER, supra note 97, at 14-17, 24-26 & 28. 100 STARN, supra note 97, at 213-14. 2009]

[11] STARN, supra note 97, at 213-14

[12] Id. at 211.

[13] Id. at 95-96, 187-99.

[14] Id. at 215; see also The Executive Summary of the Repatriation Report, http:/www.nmnh.si.edu/anthro/repatriation/reports/regional/california/ishi.htm (last visited Aug. 9, 2006).

[15] STARN, supra note 97, at 217.

[16] Although not an unbiased observer as he had been helping the Maidu, Starn’s account can be interpreted as hinting that the Smithsonian’s decision may have been affected by personalities. Starn notes that his contact with the Smithsonian’s director of repatriation had been marked by “mutual suspicion”; although Starn doesn’t say this explicitly, perhaps that personality conflict could have influenced the decision against the Maidu with whom Starn was working. Id. at 270.

[17] Sooktis v. Brady, No.93-168 (D. MT. Oct. 16, 1993) (order denying injunction). See also McKeown & Hutt, supra note 15, at 180-81.

[18] James G. Van Ness, Cultural Resource Management in the Department of Defense, ALIABA Federal Lands Law Conference (October 18-19, 2001).

[19] Id.

[20] Id.

[21] The wampum belt consisted of purple and white shells that had been woven into a panel about three feet long by a half a foot wide, bound with buckskin and having buckskin fringe at each end.

[22] See Notice of Intent to Repatriate a Cultural Item in the Possession of the Field Museum of Natural History, Chicago, IL, 60 Fed. Reg. 11,109 (Mar. 1, 1995). See also Hart, supra note 86, at 11-13 (discussing the dispute from the perspective of a Cheyenne Peace Chief and member of the NAGPRA Review Committee).

[23] Id. at 12.

[24] Id. at 13.

[25] McKeown & Hutt, supra note 15, at 193

[26] Ferguson, supra note 58, at 1. This is not the first time, and probably will not be the last, that multiple tribes have claimed cultural affiliation with the Fremont, who inhabited much of Utah and parts of Nevada, Idaho, Wyoming and Colorado from approximately 100 A.D. to 1300-1500 A.D. In 1998, the U.S. Forest Service had determined that there was a shared group identity between the Fremont and the Hopi, Paiute, and Uintah-Ouray Ute tribes, and the Pueblo of Zuni. Id. at 15. Francis P. McManamon, Notice of Inventory Completion for Native American Remains from Gooseberry Valley, Utah in the Control of the Fishlake National Forest, Federal Register 63 (92): 26623. In all, twenty modern tribes claim descent from the Fremont. Marti Allen, Highlights of the Pectol-Lee Collection, at Relics Revisited Seminar, February 7, 2004 (BYU).

[27] MCPHERSON, supra note 82, at 7-11.

[28]  Id. at 7, 11 (noting Ute slave raids against the Paiutes) and 11 (noting that Navajo looked down on Paiutes and bought Paiute children to be used for labor).

[29] Id. at 6-7 (area used by Utes, Navajos and Paiutes).

[30] Id. at 2-19. 2009

[31] The Navajo reservation covers some 250,000 square miles and is the largest in the country, comprising approximately one fourth of all tribal lands in the lower forty-eight states. At approximately 200,000 members, it is also the largest tribe. Alan S. Downer & Alexandra Roberts, The Navajo Experience with the Federal Historic Preservation Program, 10 NAT. RESOURCES & ENV’T 39 (1996).

[32] Id.

[33] Id.

[34] Id.

[35] Kreutzer, supra note 63, at 11.

IV. Telling NAGPRA Stories

The question of who owns the past has both a metaphoric and a literal meaning.[1] We have come to realize that the official version of the past—that is, history—is written by those in power, which for the last two thousand years or so has meant white males. As marginalized groups, such as women and ethnic minorities, have grown in consciousness and political involvement, they have begun the task of reclaiming their histories. This task has involved both rediscovering the ignored history of the marginalized, and rewriting or correcting the official history. Metaphorically, then, “owning the past” has become a way of telling one’s story.

But “owning the past” has a literal meaning as well. It involves the legal and ethical question of who “owns”—that is, has rights of possession and control over—the material remnants of the past, be they human remains or artifacts. Societies have not always agreed on the basic principles that should govern this question.

The case of the shields presents an instance in which the two meanings of “owning the past” come together, the metaphoric “owning” of the past through the telling of one’s story and the literal “owning” of a venerable artifact. The dispute as to the legal ownership of the shields is ultimately resolved on the basis of the persuasiveness of the story the Navajos told about the shields.

This section of the paper will address the role of stories in the context of NAGPRA. First the role of stories as evidence in NAGPRA disputes will be examined. Then, the role of the specific story told by John Holiday, a Navajo elder and singer, or medicine man,[2] is examined in light of the theory that a story’s persuasiveness is evaluated in the context of its internal consistency and its external corroboration. Finally, the other two claims are examined from a narrative perspective.


[1] THOMAS, supra note 18, at xxxvii.

[2] Kreutzer, supra note 56, at 4-5. See also JOHN HOLIDAY & ROBERT MCPHERSON, A NAVAJO LEGACY: THE LIFE AND TEACHINGS OF JOHN HOLIDAY (University of Oklahoma Press 2005).

IV. A. Telling Stories as Evidence

A. Telling Stories as Evidence under NAGPRA

One of the most interesting aspects of thinking about the role of stories under

NAGPRA is that the statute explicitly incorporates storytelling into the adjudicative process. In their influential study of how juries decide cases, Bennett and Feldman offer support for their theory that storytelling is the basis for judgment in our system of adjudication.[1] In other words, they posit that the best description of what goes on in a trial is storytelling. But this is an implicit use of storytelling, as the means of organizing the evidence in a coherent manner.

NAGPRA does something different. The Act lists oral tradition as a relevant category of evidence.[2] In fact, the Act lists oral tradition along with “scientific” evidence, such as linguistic, historical, archaeological, and genetic evidence, with no indication that one type of evidence is worth more weight than any other. The Act thus incorporates as evidence the stories that indigenous peoples tell one another outside of the courtroom.

The Act, by doing this alters a basic rule of evidence in the adversarial system of justice. An axiom of traditional evidentiary hearings is that “hearsay” is excluded and is not considered competent evidence.[3] “Hearsay” is testimony that is based on what someone told the witness out of court, offered to prove the truth of the matter asserted.[4]

The justification for excluding hearsay is that there is no opportunity to test the credibility of the out-of-court speaker. The trier of fact can assess the credibility of the witness, to be assured that the witness is not misrepresenting either intentionally or inadvertently what the witness was told, but the trier of fact cannot assess the credibility of the out-of-court speaker whose speech the witness will recount. Accordingly, A cannot testify that B said, “I saw Johnny do it,” (***) the trier of fact observing A can only assess A’s credibility, that is, whether A is honestly and accurately recounting what B said. But B herself must testify, “I saw Johnny do it,” if the trier of fact is to be able to assess B’s honesty and ability to accurately observe Johnny’s actions.[5]

NAGPRA, however, explicitly incorporates a certain type of hearsay as competent evidence, contrary to the traditional prohibition. NAGPRA provides that, in assessing the strength of a claim of cultural affiliation, the decision maker must consider “oral tradition.” Oral tradition, of necessity, is hearsay. It is information based, not on what the witness saw or experienced first hand, but on what someone else told the witness. Moreover, oral tradition is proffered to prove the truth of the matter asserted. That is, with oral tradition, A testifies as to what B told A for the express purpose of proving that what B said is true.

A fundamental purpose of NAGPRA is to redress historic wrongs done to Native Americans.[6] It has been said that the Act “is concerned not with non Indian science or federal property, but predominantly with Indian civil rights, cultural preservation, and statutory entitlements.”[7] Recognizing oral tradition is a way of respecting the culture of a non-literate people. But does it undermine truth

seeking?

There are two ways of looking at oral tradition and oral history. On the one hand, proponents will argue that oral history “is premised on fact rather than imagination, and that both the nature and necessity of accurate recounting within

oral societies makes these histories invaluable indicators of the past.”[8] On the

other hand, critics will point out that, depending on the age of the oral tradition, it

may have been “conveyed through perhaps hundreds of intermediaries over thousands of years” and that the “opportunity for error increases when information

is conveyed through multiple persons over time.”[9] Such inadvertent errors must

be combined with changes in language that can alter the meaning of the story and

the incorporation of religious beliefs into the narrative that can blur the line

between historical fact and myth, resulting in narratives “of limited reliability.”[10]


[1] W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE (Rutgers University Press 1981).

[2] 25 U.S.C. 3005(a)(4) and 43 C.F.R. §10.14(e). The Act also lists folklore as another category of competent evidence. The difference between oral tradition and folklore is beyond the scope of this paper, as only oral tradition is relevant to the shields controversy, but much of what is said here would be equally applicable to folklore.

[3] FED. R. EVID. 802.

[4] FED. R. EVID. 801. 2009

[5] The hearsay prohibition does not exclude all out-of-court statements, but only those that are proffered to prove the truth of the matter asserted in the out-of-court statement. Thus, in the above example, if A’s statement is proffered, not to prove the truth of the matter asserted, namely, that Johnny did it, but for some other purpose, it may be admissible. For example, it may be admissible to prove that B knows Johnny, if B’s knowledge of Johnny is in dispute. Moreover, there are exceptions to the rule against hearsay in situations where there are other reasons to trust the reliability of the statement. See FED. R. EVID. 803.

[6] “The Act was in part an effort to reverse past injustices towards indigenous minority cultures.” John Alan Cohan, An Examination of Archaeological Ethics and the Repatriation Movement Respecting Cultural Property (Part One), 27 ENVIRONS ENVTL. L. & POL’Y J. 349, 417 (2004).

[7] John W. Ragsdale, Jr., Some Philosophical, Political and Legal Implications of American Archaeological and Anthropological Theory, 70 UMKC L. REV. 1, 47 (2001).

[8] Id.

[9] Cohan, supra note 132, at 396.

[10] Id.

IV. Telling NAGPRA Stories

B. Telling the Story of the Shields

This section will focus on the specific story that was determinative in the decision to repatriate the shields to the Navajo Tribe. The park archaeologist who resolved the repatriation dispute surrounding the shields did so in significant part on the basis of the persuasiveness of the story told by John Holiday. In this section, the story is analyzed in light of two factors that affect credibility and thus persuasiveness: story structure and the existence of corroborating evidence. Moreover, the story told by the Navajo is contrasted with the stories told by the other two groups claiming the shields.

IV. 1. The Navajo Story

1. The Navajo Story

There are actually several slightly different versions of the story, as the teller, John Holiday, has been interviewed on different occasions by different interviewers.[1] Moreover, John Holiday is a traditional Navajo singer or medicine man, speaking in Navajo to Anglo interviewers through an interpreter. He is, however, considered a man of impeccable integrity and highly respected both by Navajos and anthropologists. Here, I am going to focus on the story as told to and understood by the archaeologist who made the repatriation decision, as this was the story that mattered in terms of the outcome of the controversy.[2]

The shields were made by a man called Many Goats White Hair, nine generations ago. The shields were sacred ceremonial objects.[3] When the Navajos were being rounded up by war parties,[4] the shields were in the care of two men, Man Called Rope (perhaps also known as Ropey) and Little Bitter Water Person. Man Called Rope was John Holiday’s grandfather. Concerned about the shields’ safety, the two men decided to hide the shields “in the area we call the Mountain With No Name [Henry Mountains] and Mountain With White Face [Boulder Mountain].”[5] The location of the hidden shields was then lost.[6]

(a) Story Structure

According to Bennett and Feldman, we can assess the persuasiveness of a story by examining its structure.[7] Specifically, the more ambiguities in the connections between the central action of the story and the key symbols for the elements of the story, the less persuasive the story is. “The hypothesis is that as structural ambiguity increases, story credibility decreases.”[8]

In the Navajo’s story, the central action is the shields being hidden. As I understand the authors’ use of the term “key symbols,” it is referring to discrete statements about events in the story, what lawyers might refer to as “facts.” Feldman and Bennett suggest that these symbols can be organized by the elements of a story: scene, agent, act, agency, and purpose. They then suggest examining the connections between the central action and the key symbols surrounding that action, as well as between the various symbols, to assess their internal consistency and completeness. Those connections are labeled ambiguous where there is a lack of consistency or incompleteness. Finally, they posit that ambiguities between peripheral symbols are less significant than ambiguities between the central action and key symbols.

The following figure maps out the connections between the central action and the various story elements:

[IMAGE]

The diagram reveals that there are only three ambiguous connections out of a total of seventeen connections, and that none of the ambiguous connections relate to the central action, which is the hiding of the shields. The ambiguities relate to the exact identity of the Navajos who hid the shields and the reason they could not be found again by Man Called Rope.

What is not ambiguous, however, are the relations between hiding the shields (the central action) and the various other story elements: the Navajos (the agents) do it to protect the shields during the round-up (purpose) because the shields are important ceremonial objects (agency) and they choose the area because it is far from the Army war parties (scene).

As Bennett and Feldman caution, however, determining whether a connection is ambiguous is not an exact science and depends upon the interpretive skills and knowledge of the audience for the story. It could be argued that there is an ambiguous connection involving the central action, and that is the connection with the scene. In other words, it could be argued that there is a lack of information as The shields are hidden By Navajos ceremonial objects made by Many Goats White Hair nine  generations ago Little Bitter Water Man Called Rope who died teller’s grandfather Near Boulder Mtn to keep them safe during the round-up and they couldn’t find them again [? ? ?2009] to why the Boulder Mountain area was chosen over any number of other locales that were also “safe” from the Army search parties. Whether a listener found this connection to be ambiguous may explain why some who heard this story have not been persuaded by it. As will be discussed below, the park archaeologist found this link to be consistent and unambiguous due to external corroboration for Navajo presence in the Capitol Reef area in the 1860s.

In summary, analyzing the story using the methodology proposed by Bennett

and Feldman suggests that the story structure was primarily unambiguous, which

in turn provides an explanation for why the story was persuasive. It must be

pointed out, however, that the research done by Bennett and Feldman also

indicated that there is no necessary correlation between truth and persuasiveness.[9] That is to say, just because a story is persuasive does not mean that it is true and, conversely, a poorly constructed story is not necessarily a false story.

(b) Corroborating Evidence

Bennett and Feldman posit that, in addition to assessing the internal consistency and completeness of a story, listeners will consider whether the story is consistent with what is known about how the world works. In the case of the shields, the question thus becomes whether the Navajo account of the hiding of the shields is consistent with what is known about the Navajos from the anthropological and historical perspectives.

This question is one to which the written decision justifying repatriation to the Navajos devotes much attention. The analysis of anthropological and historical sources to determine whether they corroborate or call into question the Navajo’s story of the shields can be organized around two subsidiary questions: Were there “Navajos” in 1500? Were the Navajos in the area where the shields were hidden in the 1860s?

i. Did the Navajos exist as a tribe in 1500?

The short answer to this question is maybe. According to anthropologists, both Navajos and Apaches are Athabaskan language speakers who are descended from the Northern Athabascans of Canada and Alaska.[10] Recent linguistic analysis suggests the Athabascans reached the Southwest by about 1400 A.D. [11] The archaeological evidence of early Athabascan habitation in the Southwest is meager and there is no consensus as to its interpretation among archaeologists.

The subsidiary question of when these Southern Athabascans split into Navajos and Apaches is also subject to debate. Linguistically, the Navajo dialect may have begun diverging from other Athabascan-speakers around the same time, 1400 A.D.[12]  Historically, the first Spanish reference to the Athabascans may have been in 1541, when a Spanish report referred to the nomadic “Querechos.” By 1608, the Spanish were referring to the nomadic, non-Puebloan inhabitants of the Southwest as “Apaches.” It is not until 1626 that the Spanish distinguish a subgroup of the Apaches; they refer to this sub-group as the “Apaches del Nabaxu,” meaning Apaches of the Cultivated Fields, the source of the tribe’s current name, Navajo.[13]

Thus, due to the unsettled state of current anthropological knowledge, the question of when the Navajos came into existence as a separate tribal group cannot be definitively answered. However, such evidence does not negate the possibility that Navajos or at least the Athabascan ancestors of present-day Navajos were in the area by the time the shields were made. That the makers of the shields may have been Athabascan ancestors of both the Navajo and Apache is irrelevant in this controversy, as none of the Apache tribes filed a claim for the shields.[14]

ii. Were the Navajos in the Capitol Reef Country in the 1860s?

The location of the hidden shields in Wayne County in south-central Utah, just

outside of Capitol Reef National Park, is a primary source of doubt for those who

question the decision to repatriate the shields to the Navajo. The area is not

considered part of the aboriginal or traditional lands occupied by the Navajo,

which are located in the southeast corner of the state, primarily in San Juan

County, and in Arizona and New Mexico. Conversely, the Capitol Reef area is

considered part of the traditional use area of both the Utes and the Paiutes.[15]  There is no prehistoric evidence that conclusively establishes a Navajo presence in the area.          

There is, however, historic evidence that puts Navajos in the Capitol Reef area in the 1860s. From 1863 through 1867, a Ute chief known as Black Hawk led

groups of Ute, Paiute and Navajo warriors on a series of raids against the Mormon

settlers. In 1866-67 a skirmish between Black Hawk’s men and Mormon militiamen occurred less than ten miles from where the shields were buried.[16]

The Navajo story does not claim that the shields were buried in Navajo territory; to the contrary, the story is that the shields were taken away from Navajo

territory for safe-keeping. The historical record tends to corroborate the Navajo claim in that it establishes the transitory presence of Navajo in the area, which is all that the story requires. Moreover, the round-up of the Navajos given in the story as the reason for the hiding of the shields is indisputably supported by the historic record.


[1] See Kreutzer, supra note 56, at 18. See also HOLIDAY & MCPHERSON, supra note 126, at 191- 92 and n. 22 at 352-54 (where two more versions appear). Yet another version of the story appears in Kreutzer, supra note 56, at 19-20, but this version was told by a different speaker, based on his understanding of John Holiday’s story.

[2] This version of the story was based on a personal interview conducted on May 7, 2002, with translation by Timothy Begay and Marklyn Chee. Kreutzer, supra note 56, at 18.

[3] On another occasion John Holiday described the shields this way: “These shields were huge and had strings attached to them on the inside. The earth shield had the mountains and vegetation depicted on it. The mountain shield had lightning, sunrays, and rainbows, while the sky shield had all the heavenly bodies and stars on it. These shields were big, and nothing could penetrate them – neither bullets and arrows, nor evil and witchcraft. They are shields against all things that can harm a person.” HOLIDAY & MCPHERSON, supra note 126, at 352-53 n. 22. I do not know whether this description of the shields was recorded before or after John Holiday viewed the shields.

[4] During the 1860s, the U.S. Army rounded up some 8,000 Navajos (estimated at about half of the tribe) and drove them to Fort Sumner in New Mexico, where they were incarcerated until 1868. MCPHERSON, supra note 82, at 6-11.

[5] Kreutzer, supra note 56, at 18. 2009]

[6] The Capitol Reef archaeologist recounts this version:

“There was some confusion over who actually placed the shields in the cache, but evidently it was Little Bitter Water Person. Before the shields could be recovered, Mr. Holiday said, Little Bitter Water Person grew sick and died. Nobody knew how to find the shields.” Id. In another version told to a historian, John Holiday suggests that “Ropey,” perhaps another version of the name of Man Called Rope, hid the shields: “When he went back to get it, he could not find it, so it was lost.” HOLIDAY & MCPHERSON, supra note 126, at 353 n.22. John Holiday also relates the loss of a sacred buffalo-hide object, which he said acted like a “protective shield.” At one point he refers to it as a “round shield.” Id. at 191-92. It is not clear to me whether this is another way of referring to the three shields or whether it relates to a separate object. This object was in the safe keeping of a man named Yellow Forehead, who had hidden it during the Fort Sumner years near White-Face Mountain but when he went to retrieve it, he could not find it. Id. There is some indication that there were two separate sacred objects, the shields and a “sacred bundle,” which was also lost or stolen near White-Face Mountain during the Fort Sumner years. Id. At 352 n. 19. According to John Holiday, Little Bitter Water and Ropey were suspected of taking this bundle. Id. However, at one point John Holiday seemed to refer to the shields as a sacred bundle. Id at 353 n. 22. So it is ultimately unclear whether there were two instances of sacred objects being lost under similar circumstances, or whether all of these versions are referring only to the shields.

[7] BENNETT & FELDMAN, supra note 127, at Ch. 4

[8] Id. at 72.

[9] BENNETT & FELDMAN, supra note 127, at 89 (“the way in which a story is told will have considerable bearing on its perceived credibility regardless of the actual truth status of the story”).

[10] According to the Navajo, the Northern Athabascans are descended from them. That is, instead of the proto-Navajos splitting off from the Northern Athabascans and migrating south, the Northern Athabascans split off from the Navajo and migrated north. See Kreutzer, supra note 56, at 5-6.

[11] Id. at 6.

[12] Id. at 7.

[13] As the Evaluation notes, the fact that the Spanish were not able to distinguish between Navajo and Apache until the early seventeenth century suggests either that the two groups were not noticeably differentiated, or that the Spanish observers were not particularly discriminating. Id. at 7. Navajo refer to themselves as Diné, meaning “The People.” Maryboy & Begay, supra note 71, at 265.

[14] Interestingly, the Evaluation does not consider the possibility that the shields were made outside of the Southwest, possibly by migrating Athabascans, and later brought with them to the Four Corners area. 

[15] Kreutzer, supra note 56, at 12.

[16] Id. at 14. 2009

IV. 2. The Southern Utes Claim: A Less Persuasive Story

2. The Southern Utes Claim: A Less Persuasive Story

So far the focus has been on the Navajo claim and the oral tradition that made up the basis for that claim. I will now examine the competing claim from the Southern Utes. This claim was based upon several strands of evidence, the strongest of which is that the shields were recovered from traditional Ute territory.[1]

In addition, there was evidence that Utes traditionally used buffalo hide shields in hunting and raiding, and that the design elements of the shields were not inconsistent with Ute traditions. In assessing this claim, the Park archaeologist concluded that the Southern Utes had made a “plausible claim” of cultural affiliation, that the Southern Utes’ claim was “superior” to the Ute/Paiute collaborative claim, and that were the claim the “only” claim the ultimate decision might have been favorable to the Southern Utes.

The tribes’ claim is based on the fact that the dating and location of the shields are consistent with Ute/Paiute occupation, and that some favorable comparisons have been made between the shield motifs and known Ute shield pictographs. No link to particular individuals, groups, or specific ceremonies has been offered. While such generalities might be acceptable were this collaborative claim the only claim for the shields, they do not outweigh the specific and detailed information provided by the Navajo Nation regarding these shields.[2]

Although it had been argued in support of the Southern Utes’ claim that “[t]he lack of Ute oral traditions in regard to the shields means nothing,”[3] and even though the Park archaeologist concurred with that statement to some extent, when contrasted with the detailed and specific oral tradition put forward by the Navajos, the absence of comparable narrative evidence damaged the Southern Ute claim.


[1] Lee Kreutzer, Summary of Historical research and Evaluation of Repatriation request Submitted by the Southern Ute Tribe and the Ute Mountain Tribe, for the Capitol Reef Shields 20 (July 1, 2002).

[2] Id. at 22.

[3] Id. at 19. 

IV. 3. The Ute/Paiute Claim and the Problem of the Unspeakable

3. The Ute/Paiute Claim and the Problem of the Unspeakable

Consideration of the Ute/Paiute story of the shields reveals what I call the problem of the unspeakable. Not all stories can be told. What if a tribe is forbidden to talk about the evidence necessary to document their claim?[1]

A recent highly publicized case from Australia exemplifies the problem. In 1994, under the Aboriginal and Torres Strait Islander Heritage Protection Act,[2] a group of Ngarrindjeri [3] women sought to prevent the construction of a bridge from the Australian mainland over the Murray River to Hindmarsh Island.[4] The women claimed that the island was the site of secret/sacred women’s business.[5]The then Federal Labor Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, was faced with the problem of determining the legitimacy of the Ngarrindjeri claim even though the sacredness of the site precluded the women from discussing the site, except with authorized women.

This was not the first time that Australian legal proceedings had to contend with the problem of the unspeakable. According to some scholars, in land claim hearings and civil suits, there was an established policy of accommodating “the protocols of secrecy associated with Australian sacred sites” through closed hearings and unpublished opinions.[6] Minister Tickner sought to achieve a similar accommodation by commissioning Professor Cheryl Saunders, a law professor, to review the confidential materials in support of the claim and report to him.162[7] He later issued a protective order prohibiting the construction of the bridge for twenty five years.[8]

On appeal by the developers who wanted to build the bridge, the Federal Court quashed the protective order.[9] According to Justice O’Loughlin, if the Aboriginal claimants wanted the protection of the Heritage Act, they had to abide by the requirements of the Act.[10]

The idea that to obtain the protection promised by the government for sacred sites the claimants had to violate the sacredness of the site can be criticized as creating a Hobson’s choice: maintain the secrecy of the sacred knowledge associated with the site and lose the protection of the site itself, or protect the site by disclosing the secret knowledge that makes the site sacred, thereby profaning the sacred. At best, what this conundrum reveals is incommensurability between Western law and indigenous law. The legal system is unable to accept indigenous truth claims on their own terms, without restructuring them according to legal narrative conventions.

A similar conundrum arose with the Ute/Paiute claim to the shields. Originally, the archaeologist investigating the competing claims to the shields was rather dismissive of the Ute/Paiute claim:

The [Ute/Paiute] tribes have constructed a plausible, but not persuasive or even adequate, claim of original Ute/Paiute control of the shields...[T]his claim is seriously lacking in credibility. In fairness to other claimants and the general public, the National Park Service cannot simply accept a tribe’s unexplained, unelaborated, and unjustified request for repatriation. That is where this joint claim stands at present.[11]

After the Park determined to repatriate the shields to the Navajo, and while administrative appeals were proceeding, the Park received further information pertinent to the Ute/Paiute claim to the shields. In late 2002, the Skull Valley Goshute Tribe contacted the Park and in early 2003 submitted a report from Goshute Tribal Historic Preservation Director Melvin Brewster. The Goshutes were not themselves submitting a claim, but they consider themselves closely related to the Paiute and Ute tribes, as all are Numic-speaking groups, and they were supporting the Ute/Paiute claim. Because the report contained sensitive cultural information, however, the tribe did not want to make it part of the public record. The Park resolved the impasse with a process akin to that used by the Minister deciding the Ngarrindjeri claim regarding Hindmarsh Island. The Park archaeologist read the report, made notes, and then returned the document to the Goshute tribe.

The report, according to the archaeologist’s notes, made the argument that the shields were a permanent, on-going prayer offering, and that disinterment interrupted that on-going ceremony. The Goshute information both clarified the Paiute position and illuminated a NAGPRA problem: [***]

Mr. Brewster’s discussion of Punown religious thought clarified for me what Southern Paiute consultants tried to communicate to me earlier in the process. Most would confide no information whatsoever, except that the shields should be repatriated to the Utes and Paiutes; they responded negatively when asked for information that could be weighed against the Navajo claim. For instance, one consultant replied that her people are not Navajos and unlike them do not share any information about their religion. Another consultant, however, told me directly that the shields were not Paiute, Ute, or Navajo…, and needed to be reburied. Whereas I originally thought he was conceding that the shields are not culturally affiliated with the Utes or Paiutes (as affiliation is defined by NAGPRA), I now understand that he was trying to tell me, without divulging confidential details of his religious belief, that objects belonging to the sacred realm cannot legitimately be claimed by any particular tribe or individual... Even though the consultants might be convinced that the shields and offering were created by a direct ancestor, they refuse to objectify or diminish the shields’ spiritual significance by claiming them on that basis.[12]

Added to the refusal to claim ownership of the shields, as they belong to the spirits, is the problem that traditional Paiutes and Utes “may not speak the names of deceased relatives” because they are in a different realm and to do so would be to interfere with that realm.[13] In other words, assuming the Paiutes or Utes knew who manufactured and buried the shields (and also assuming that NAGPRA would recognize such a static offering as either a sacred object or an object of cultural patrimony), that information could not be shared. Both the report and the Park archaeologist note “the drafters of NAGPRA and its implementing regulations do not appear to have taken this kind of complexity into consideration.”[14]


[1] See, e.g., Tsosie, supra note 27, at 72: (process of proving eligibility for protection under NHPA “raises concerns for Native American people who are often held to norms of secrecy and confidentiality when dealing with sacred information”).

[2] Aboriginal and Torres Strait Islander Heritage Protection Act, 1984 (Austl.).

[***]charge of fabrication, despite the fact that the secret/sacred knowledge itself was never put in evidence. Pritchard, supra note 158, at ¶3; Cordova, supra note 158, at 135. 165 Pritchard, supra note 158, at ¶5. 166 Lee Kreutzer, Summary of Historical Research and Evaluation of Collaborative Repatriation Request Submitted by the Paiute Tribe of Utah, Ute Indian Tribe of the Uintah and Ouray Agency, and the Kaibab Band of Paiute Indians, for the Capitol Reef Shields 22-23 (July 1, 2002).

[3] The Ngarrindjeri are an “Australian tribe or language group from the lower Murray area in South Australia.” Stephen Pritchard, Between Fact and Fiction: The Hindmarsh Island ‘Affair’ and the Truth About Secrets, (2000), http://social.chass.ncsu.edu/jouvert/v4i2/spritch.htm (last visited

October 1, 2007). See also Margaret Cordova, The Hindmarsh Island Bridge Case and Matters of Secret Aboriginal “Women’s Business,” 129 COLO. J. INT’L ENVTL. L. & POL’Y 129, 129 (2000).

[4] Hindmarsh Island is a small island in Lake Alexandria on the southern Australian coast. Cordova, supra note 158, at 131.

[5] Id. at 130. See also Ken Gelder & Jane M. Jacobs, Promiscuous Sacred Sites: Reflections on Secrecy and Skepticism in the Hindmarsh Island Affair, AUSTRALIAN HUMANITIES REVIEW (1997), available at http://www.lib.latrobe.edu.au/AHR/archive/Issue-June-1997/gelder.html (last visited Oct. 30, 2007).

[6] Gelder & Jacobs, supra note 160.

[7] Cordova, supra note 158, at 133.

[8] Id. at 133-34.

[9] Meanwhile, allegations had arisen that the claim of sacredness had been fabricated, and a royal commission was appointed to investigate the allegations. The Ngarrindjeri women boycotted the hearings because they refused to divulge the secret/sacred knowledge, even though it had been leaked to the press by the opponents of the Labor Party. Ultimately, the commissioner upheld the 2009

                  [10]

[11]

[12] Kreutzer, supra note 63, at 8.

[13] Id. at 9.

[14] Id. at 7. 2009

CONCLUSION

CONCLUSION

The repatriation dispute surrounding the shields reveals a number of competing stories. From Pectol’s perspective, the story is one of discovery: the finding of these remarkable objects through his own diligence and knowledge of the area. From the perspective of his descendants, however, the story is one of loss. Not the loss of the shields themselves, as the family recognizes that they do not “own” the shields. They mourn, however, the loss of the shields from the public eye, the loss of the opportunity for future generations of visitors to the Capitol Reef area to view the shields and appreciate them culturally and aesthetically, and to appreciate their progenitor’s role in the preservation of the shields. Similarly, some archaeologists see the story of the shields as a loss, of potential information arising from future study of the shields.

The disappointed claimants, the Southern Utes and the Northern Utes and the Paiutes, also understand the story of the shields as a story of loss times two. They lost in the administrative proceedings under NAGPRA, that is, their claims to the shields as part of their culture were ultimately rejected. Moreover, they lost the shields themselves and the right to do with them as they saw fit, whether to rebury them, as the Utes and Paiutes wished to do, or to place them in a museum, as it is rumored the Southern Utes proposed to do.

Conversely, from the Navajo point of view, the story of the shields is a story of redemption and restoration. From this point of view, the shields, or the power embodied in the shields, can be seen as an active participant in the return of the shields, consenting to be found by a man who appreciates their power and preserves them rather than selling them for profit. This story is one of hope for the future, vindicating the sacredness of the shields and their power to protect the People.

Statute: PART 10—NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS

 

ELECTRONIC CODE OF FEDERAL REGULATIONS

e-CFR Data is current as of February 17, 2015

Title 43: Public Lands: Interior


PART 10—NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS


Contents
 

Subpart A—Introduction

§10.1   Purpose, applicability, and information collection.
§10.2   Definitions.
 

Subpart B—Human Remains, Funerary Objects, Sacred Objects, or Objects of Cultural Patrimony From Federal or Tribal Lands

§10.3   Intentional archaeological excavations.
§10.4   Inadvertent discoveries.
§10.5   Consultation.
§10.6   Custody.
§10.7   Disposition of unclaimed human remains, funerary objects, sacred objects, or objects of cultural patrimony. [Reserved]
 

Subpart C—Human Remains, Funerary Objects, Sacred Objects, or Objects of Cultural Patrimony in Museums and Federal Collections

§10.8   Summaries.
§10.9   Inventories.
§10.10   Repatriation.
§10.11   Disposition of culturally unidentifiable human remains.
§10.12   Civil penalties.
§10.13   Future applicability.
 

Subpart D—General

§10.14   Lineal descent and cultural affiliation.
§10.15   Limitations and remedies.
§10.16   Review committee.
§10.17   Dispute resolution.


Authority: 16 U.S.C. 470dd; 25 U.S.C. 9, 3001 et seq.

Source: 60 FR 62158, Dec. 4, 1995, unless otherwise noted.

Subpart A—Introduction

§10.1   Purpose, applicability, and information collection.

(a) Purpose. These regulations carry out provisions of the Native American Graves Protection and Repatriation Act of 1990 (Pub.L. 101-601; 25 U.S.C. 3001-3013;104 Stat. 3048-3058). These regulations develop a systematic process for determining the rights of lineal descendants and Indian tribes and Native Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony with which they are affiliated.

(b) Applicability. (1) These regulations pertain to the identification and appropriate disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony that are:

(i) In Federal possession or control; or

(ii) In the possession or control of any institution or State or local government receiving Federal funds; or

(iii) Excavated intentionally or discovered inadvertently on Federal or tribal lands.

(2) These regulations apply to human remains, funerary objects, sacred objects, or objects of cultural patrimony which are indigenous to Alaska, Hawaii, and the continental United States, but not to territories of the United States.

(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 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.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 75 FR 12402, Mar. 15, 2010]

§10.2   Definitions.

In addition to the term Act, which means the Native American Graves Protection and Repatriation Act as described above, definitions used in these regulations are grouped in seven classes: Parties required to comply with these regulations; Parties with standing to make claims under these regulations; Parties responsible for implementing these regulations; Objects covered by these regulations; Cultural affiliation; Types of land covered by these regulations; and Procedures required by these regulations.

(a) Who must comply with these regulations? (1) Federal agency means any department, agency, or instrumentality of the United States. Such term does not include the Smithsonian Institution as specified in section 2 (4) of the Act.

(2) Federal agency official means any individual authorized by delegation of authority within a Federal agency to perform the duties relating to these regulations.

(3) Museum means any institution or State or local government agency (including any institution of higher learning) that has possession of, or control over, human remains, funerary objects, sacred objects, or objects of cultural patrimony and receives Federal funds.

(i) The term “possession” means having physical custody of human remains, funerary objects, sacred objects, or objects of cultural patrimony with a sufficient legal interest to lawfully treat the objects as part of its collection for purposes of these regulations. Generally, a museum or Federal agency would not be considered to have possession of human remains, funerary objects, sacred objects, or objects of cultural patrimony on loan from another individual, museum, or Federal agency.

(ii) 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. Generally, a museum or Federal agency that has loaned human remains, funerary objects, sacred objects, or objects of cultural patrimony to another individual, museum, or Federal agency is considered to retain control of those human remains, funerary objects, sacred objects, or objects of cultural patrimony for purposes of these regulations.

(iii) The phrase “receives Federal funds” means the receipt of funds by a museum after November 16, 1990, from a Federal agency through any grant, loan, contract (other than a procurement contract), or other arrangement by which a Federal agency makes or made available to a museum aid in the form of funds. Federal funds provided for any purpose that are received by a larger entity of which the museum is a part are considered Federal funds for the purposes of these regulations. For example, if a museum is a part of a State or local government or a private university and the State or local government or private university receives Federal funds for any purpose, the museum is considered to receive Federal funds for the purpose of these regulations.

(4) Museum official means the individual within a museum designated as being responsible for matters relating to these regulations.

(5) Person means an individual, partnership, corporation, trust, institution, association, or any other private entity, or, any official, employee, agent, department, or instrumentality of the United States, or of any Indian tribe or Native Hawaiian organization, or of any State or political subdivision thereof that discovers or discovered human remains, funerary objects, sacred objects or objects of cultural patrimony on Federal or tribal lands after November 16, 1990.

(b) Who has standing to make a claim under these regulations? (1) Lineal descendant means an individual tracing his or her ancestry directly and without interruption by means of the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization or by the common law system of descendance to a known Native American individual whose remains, funerary objects, or sacred objects are being claimed under these regulations.

(2) [Reserved]

(3)(i) Native Hawaiian organization means any organization that:

(A) Serves and represents the interests of Native Hawaiians;

(B) Has as a primary and stated purpose the provision of services to Native Hawaiians; and

(C) Has expertise in Native Hawaiian affairs.

(ii) The term Native Hawaiian means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. Such organizations must include the Office of Hawaiian Affairs and Hui Ma̅lama I Na̅Ku̅puna 'O Hawai'i Nei.

(4) Indian tribe official means the principal leader of an Indian tribe or Native Hawaiian organization or the individual officially designated by the governing body of an Indian tribe or Native Hawaiian organization or as otherwise provided by tribal code, policy, or established procedure as responsible for matters relating to these regulations.

(c) Who is responsible for carrying out these regulations? (1) Secretary means the Secretary of the Interior or a designee.

(2) Review Committee means the advisory committee established pursuant to section 8 of the Act.

(3) Manager, National NAGPRA Program means the official of the Department of the Interior designated by the Secretary as responsible for administration of matters relating to this part. Communications to the Manager, National NAGPRA Program should be sent to the mailing address listed on the National NAGPRA Contact Information Web site,http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM.

(d) What objects are covered by these regulations? The Act covers four types of Native American objects. The termNative American means of, or relating to, a tribe, people, or culture indigenous to the United States, including Alaska and Hawaii.

(1) Human remains means the physical remains of the body of a person of Native American ancestry. The term does not include remains or portions of remains that may reasonably be determined to have been freely given or naturally shed by the individual from whose body they were obtained, such as hair made into ropes or nets. For the purposes of determining cultural affiliation, human remains incorporated into a funerary object, sacred object, or object of cultural patrimony, as defined below, must be considered as part of that item.

(2) Funerary objects means 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 with or near individual human remains. Funerary objects must be identified by a preponderance of the evidence as having been removed from a specific burial site of an individual affiliated with a particular Indian tribe or Native Hawaiian organization or as being related to specific individuals or families or to known human remains. The term burial site means any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which, as part of the death rite or ceremony of a culture, individual human remains were deposited, and includes rock cairns or pyres which do not fall within the ordinary definition of gravesite. For purposes of completing the summary requirements in §10.8 and the inventory requirements of §10.9:

(i) Associated funerary objects means those funerary objects for which the human remains with which they were placed intentionally are also in the possession or control of a museum or Federal agency. Associated funerary objects also means those funerary objects that were made exclusively for burial purposes or to contain human remains.

(ii) Unassociated funerary objects means those funerary objects for which the human remains with which they were placed intentionally are not in the possession or control of a museum or Federal agency. Objects that were displayed with individual human remains as part of a death rite or ceremony of a culture and subsequently returned or distributed according to traditional custom to living descendants or other individuals are not considered unassociated funerary objects.

(3) Sacred objects means items that are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents. While many items, from ancient pottery sherds to arrowheads, might be imbued with sacredness in the eyes of an individual, these regulations are specifically limited to objects that were devoted to a traditional Native American religious ceremony or ritual and which have religious significance or function in the continued observance or renewal of such ceremony. The term traditionalreligious leader means a person who is recognized by members of an Indian tribe or Native Hawaiian organization as:

(i) Being responsible for performing cultural duties relating to the ceremonial or religious traditions of that Indian tribe or Native Hawaiian organization, or

(ii) Exercising a leadership role in an Indian tribe or Native Hawaiian organization based on the tribe or organization's cultural, ceremonial, or religious practices.

(4) Objects of cultural patrimony means items having ongoing historical, traditional, or cultural importance central to the Indian tribe or Native Hawaiian organization itself, rather than property owned by an individual tribal or organization member. These objects are of such central importance that they may not be alienated, appropriated, or conveyed by any individual tribal or organization member. Such objects must have been considered inalienable by the culturally affiliated Indian tribe or Native Hawaiian organization at the time the object was separated from the group. Objects of cultural patrimony include items such as Zuni War Gods, the Confederacy Wampum Belts of the Iroquois, and other objects of similar character and significance to the Indian tribe or Native Hawaiian organization as a whole.

(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.

(f) What types of lands do the excavation and discovery provisions of these regulations apply to? (1) Federal landsmeans any land other than tribal lands that are controlled or owned by the United States Government, including lands selected by but not yet conveyed to Alaska Native Corporations and groups organized pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.). United States “control,” as used in this definition, refers to those lands not owned by the United States but in which the United States has a legal interest sufficient to permit it to apply these regulations without abrogating the otherwise existing legal rights of a person.

(2) Tribal lands means all lands which:

(i) 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; or

(ii) Comprise dependent Indian communities as recognized pursuant to 18 U.S.C. 1151; or

(iii) Are administered for the benefit of Native Hawaiians pursuant to the Hawaiian Homes Commission Act of 1920 and section 4 of the Hawaiian Statehood Admission Act (Pub.L. 86-3; 73 Stat. 6).

(iv) Actions authorized or required under these regulations will not apply to tribal lands to the extent that any action would result in a taking of property without compensation within the meaning of the Fifth Amendment of the United States Constitution.

(g) What procedures are required by these regulations? (1) Summary means the written description of collections that may contain unassociated funerary objects, sacred objects, and objects of cultural patrimony required by §10.8 of these regulations.

(2) Inventory means the item-by-item description of human remains and associated funerary objects.

(3) Intentional excavation means the planned archeological removal of human remains, funerary objects, sacred objects, or objects of cultural patrimony found under or on the surface of Federal or tribal lands pursuant to section 3 (c) of the Act.

(4) Inadvertent discovery means the unanticipated encounter or detection of human remains, funerary objects, sacred objects, or objects of cultural patrimony found under or on the surface of Federal or tribal lands pursuant to section 3 (d) of the Act.

(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.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 70 FR 57179, Sept. 30, 2005; 71 FR 16501, Apr. 3, 2006; 75 FR 12403, Mar. 15, 2010; 76 FR 39009, July 5, 2011; 78 FR 27082, May 9, 2013]

Subpart B—Human Remains, Funerary Objects, Sacred Objects, or Objects of Cultural Patrimony From Federal or Tribal Lands

§10.3   Intentional archaeological excavations.

(a) General. This section carries out section 3 (c) of the Act regarding the custody of human remains, funerary objects, sacred objects, or objects of cultural patrimony that are excavated intentionally from Federal or tribal lands after November 16, 1990.

(b) Specific Requirements. These regulations permit the intentional excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony from Federal or tribal lands only if:

(1) The objects are excavated or removed following the requirements of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa et seq.) and its implementing regulations. Regarding private lands within the exterior boundaries of any Indian reservation, the Bureau of Indian Affairs (BIA) will serve as the issuing agency for any permits required under the Act. For BIA procedures for obtaining such permits, see 25 CFR part 262 or contact the Deputy Commissioner of Indian Affairs, Department of the Interior, Washington, DC 20240. Regarding lands administered for the benefit of Native Hawaiians pursuant to the Hawaiian Homes Commission Act, 1920, and section 4 of Pub. L. 86-3, the Department of Hawaiian Home Lands will serve as the issuing agency for any permits required under the Act, with the Hawaii State Historic Preservation Division of the Department of Land and Natural Resources acting in an advisory capacity for such issuance. Procedures and requirements for issuing permits will be consistent with those required by the ARPA and its implementing regulations;

(2) The objects are excavated after consultation with or, in the case of tribal lands, consent of, the appropriate Indian tribe or Native Hawaiian organization pursuant to §10.5;

(3) The disposition of the objects is consistent with their custody as described in §10.6; and

(4) Proof of the consultation or consent is shown to the Federal agency official or other agency official responsible for the issuance of the required permit.

(c) Procedures. (1) The Federal agency official must take reasonable steps to determine whether a planned activity may result in the excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony from Federal lands. Prior to issuing any approvals or permits for activities, the Federal agency official must notify in writing the Indian tribes or Native Hawaiian organizations that are likely to be culturally affiliated with any human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated. The Federal agency official must also notify any present-day Indian tribe which aboriginally occupied the area of the planned activity and any other Indian tribes or Native Hawaiian organizations that the Federal agency official reasonably believes are likely to have a cultural relationship to the human remains, funerary objects, sacred objects, or objects of cultural patrimony that are expected to be found. The notice must be in writing and describe the planned activity, its general location, the basis upon which it was determined that human remains, funerary objects, sacred objects, or objects of cultural patrimony may be excavated, and, the basis for determining likely custody pursuant to §10.6. The notice must also propose a time and place for meetings or consultations to further consider the activity, the Federal agency's proposed treatment of any human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated, and the proposed disposition of any excavated human remains, funerary objects, sacred objects, or objects of cultural patrimony. Written notification should be followed up by telephone contact if there is no response in 15 days. Consultation must be conducted pursuant to §10.5.

(2) Following consultation, the Federal agency official must complete a written plan of action (described in §10.5(e)) and execute the actions called for in it.

(3) If the planned activity is also subject to review under section 106 of the National Historic Preservation Act (16 U.S.C. 470 et seq.), the Federal agency official should coordinate consultation and any subsequent agreement for compliance conducted under that Act with the requirements of §10.3 (c)(2) and §10.5. Compliance with these regulations does not relieve Federal agency officials of requirements to comply with section 106 of the National Historic Preservation Act (16 U.S.C. 470 et seq.).

(4) If an Indian tribe or Native Hawaiian organization receives notice of a planned activity or otherwise becomes aware of a planned activity that may result in the excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony on tribal lands, the Indian tribe or Native Hawaiian organization may take appropriate steps to:

(i) Ensure that the human remains, funerary objects, sacred objects, or objects of cultural patrimony are excavated or removed following §10.3 (b), and

(ii) Make certain that the disposition of any human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or discovered inadvertently as a result of the planned activity are carried out following §10.6.

§10.4   Inadvertent discoveries.

(a) General. This section carries out section 3 (d) of the Act regarding the custody of human remains, funerary objects, sacred objects, or objects of cultural patrimony that are discovered inadvertently on Federal or tribal lands after November 16, 1990.

(b) Discovery. Any person who knows or has reason to know that he or she has discovered inadvertently human remains, funerary objects, sacred objects, or objects of cultural patrimony on Federal or tribal lands after November 16, 1990, must provide immediate telephone notification of the inadvertent discovery, with written confirmation, to the responsible Federal agency official with respect to Federal lands, and, with respect to tribal lands, to the responsible Indian tribe official. The requirements of these regulations regarding inadvertent discoveries apply whether or not an inadvertent discovery is duly reported. If written confirmation is provided by certified mail, the return receipt constitutes evidence of the receipt of the written notification by the Federal agency official or Indian tribe official.

(c) Ceasing activity. If the inadvertent discovery occurred in connection with an on-going activity on Federal or tribal lands, the person, in addition to providing the notice described above, must stop the activity in the area of the inadvertent discovery and make a reasonable effort to protect the human remains, funerary objects, sacred objects, or objects of cultural patrimony discovered inadvertently.

(d) Federal lands. (1) As soon as possible, but no later than three (3) working days after receipt of the written confirmation of notification with respect to Federal lands described in §10.4 (b), the responsible Federal agency official must:

(i) Certify receipt of the notification;

(ii) Take immediate steps, if necessary, to further secure and protect inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony, including, as appropriate, stabilization or covering;

(iii) Notify any known lineal descendants of a deceased Native American individual whose human remains and associated funerary objects were discovered of such discovery, and, with respect to a discovery of human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony, notify the Indian tribes or Native Hawaiian organizations likely to be culturally affiliated with the cultural items, the Indian tribe or Native Hawaiian organization that aboriginally occupied the area, and any other Indian tribe or Native Hawaiian organization known to have a cultural relationship to the cultural items. This notification must be by telephone with written confirmation and must include information about the kinds of human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony, their condition, and the circumstances of their discovery;

(iv) Initiate consultation on the inadvertent discovery pursuant to §10.5;

(v) If the human remains, funerary objects, sacred objects, or objects of cultural patrimony must be excavated or removed, follow the requirements and procedures in §10.3 (b) of these regulations; and

(vi) Ensure that disposition of all inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony is carried out following §10.6.

(2) Resumption of activity. The activity that resulted in the inadvertent discovery may resume thirty (30) days after certification by the notified Federal agency of receipt of the written confirmation of notification of inadvertent discovery if the resumption of the activity is otherwise lawful. The activity may also resume, if otherwise lawful, at any time that a written, binding agreement is executed between the Federal agency and the affiliated Indian tribes or Native Hawaiian organizations that adopt a recovery plan for the excavation or removal of the human remains, funerary objects, sacred objects, or objects of cultural patrimony following §10.3 (b)(1) of these regulations. The disposition of all human remains, funerary objects, sacred objects, or objects of cultural patrimony must be carried out following §10.6.

(e) Tribal lands. (1) As soon as possible, but no later than three (3) working days after receipt of the written confirmation of notification with respect to Tribal lands described in §10.4 (b), the responsible Indian tribe official may:

(i) Certify receipt of the notification;

(ii) Take immediate steps, if necessary, to further secure and protect inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony, including, as appropriate, stabilization or covering;

(iii) If the human remains, funerary objects, sacred objects, or objects of cultural patrimony must be excavated or removed, follow the requirements and procedures in §10.3 (b) of these regulations; and

(iv) Ensure that disposition of all inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony is carried out following §10.6.

(2) Resumption of Activity. The activity that resulted in the inadvertent discovery may resume if otherwise lawful after thirty (30) days of the certification of the receipt of notification by the Indian tribe or Native Hawaiian organization.

(f) Federal agency officials. Federal agency officials should coordinate their responsibilities under this section with their emergency discovery responsibilities under section 106 of the National Historical Preservation Act (16 U.S.C. 470 (f)et seq.), 36 CFR 800.11 or section 3 (a) of the Archeological and Historic Preservation Act (16 U.S.C. 469 (a-c)). Compliance with these regulations does not relieve Federal agency officials of the requirement to comply with section 106 of the National Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 36 CFR 800.11 or section 3 (a) of the Archeological and Historic Preservation Act (16 U.S.C. 469 (a-c)).

(g) Notification requirement in authorizations. All Federal authorizations to carry out land use activities on Federal lands or tribal lands, including all leases and permits, must include a requirement for the holder of the authorization to notify the appropriate Federal or tribal official immediately upon the discovery of human remains, funerary objects, sacred objects, or objects of cultural patrimony pursuant to §10.4 (b) of these regulations.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 78 FR 27082, May 9, 2013]

§10.5   Consultation.

Consultation as part of the intentional excavation or inadvertent discovery of human remains, funerary objects, sacred objects, or objects of cultural patrimony on Federal lands must be conducted in accordance with the following requirements.

(a) Consulting parties. Federal agency officials must consult with known lineal descendants and Indian tribe officials:

(1) From Indian tribes on whose aboriginal lands the planned activity will occur or where the inadvertent discovery has been made; and

(2) From Indian tribes and Native Hawaiian organizations that are, or are likely to be, culturally affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony; and

(3) From Indian tribes and Native Hawaiian organizations that have a demonstrated cultural relationship with the human remains, funerary objects, sacred objects, or objects of cultural patrimony.

(b) Initiation of consultation. (1) Upon receiving notice of, or otherwise becoming aware of, an inadvertent discovery or planned activity that has resulted or may result in the intentional excavation or inadvertent discovery of human remains, funerary objects, sacred objects, or objects of cultural patrimony on Federal lands, the responsible Federal agency official must, as part of the procedures described in §§10.3 and 10.4, take appropriate steps to identify the lineal descendant, Indian tribe, or Native Hawaiian organization entitled to custody of the human remains, funerary objects, sacred objects, or objects of cultural patrimony pursuant to §10.6 and §10.14. The Federal agency official shall notify in writing:

(i) Any known lineal descendants of the deceased Native American individual whose human remains and associated funerary objects have been or are likely to be excavated intentionally or discovered inadvertently; and

(ii) The Indian tribes or Native Hawaiian organizations that are likely to be culturally affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony that have been or are likely to be excavated intentionally or discovered inadvertently; and

(iii) The Indian tribes which aboriginally occupied the area in which the human remains, funerary objects, sacred objects, or objects of cultural patrimony have been or are likely to be excavated intentionally or discovered inadvertently; and

(iv) The Indian tribes or Native Hawaiian organizations that have a demonstrated cultural relationship with the human remains, funerary objects, sacred objects, or objects of cultural patrimony that have been or are likely to be excavated intentionally or discovered inadvertently.

(2) The notice must propose a time and place for meetings or consultation to further consider the intentional excavation or inadvertent discovery, the Federal agency's proposed treatment of the human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated, and the proposed disposition of any intentionally excavated or inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony.

(3) The consultation must seek to identify traditional religious leaders who should also be consulted and seek to identify, where applicable, lineal descendants and Indian tribes or Native Hawaiian organizations affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony.

(c) Provision of information. During the consultation process, as appropriate, the Federal agency official must provide the following information in writing to the lineal descendants and the officials of Indian tribes or Native Hawaiian organizations that are or are likely to be affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or discovered inadvertently on Federal lands:

(1) A list of all lineal descendants and Indian tribes or Native Hawaiian organizations that are being, or have been, consulted regarding the particular human remains, funerary objects, sacred objects, or objects of cultural patrimony;

(2) An indication that additional documentation used to identify affiliation will be supplied upon request.

(d) Requests for information. During the consultation process, Federal agency officials must request, as appropriate, the following information from Indian tribes or Native Hawaiian organizations that are, or are likely to be, affiliated pursuant to §10.6 (a) with intentionally excavated or inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony:

(1) Name and address of the Indian tribe official to act as representative in consultations related to particular human remains, funerary objects, sacred objects, or objects of cultural patrimony;

(2) Names and appropriate methods to contact lineal descendants who should be contacted to participate in the consultation process;

(3) Recommendations on how the consultation process should be conducted; and

(4) Kinds of cultural items that the Indian tribe or Native Hawaiian organization considers likely to be unassociated funerary objects, sacred objects, or objects of cultural patrimony.

(e) Written plan of action. Following consultation, the Federal agency official must prepare, approve, and sign a written plan of action. A copy of this plan of action must be provided to the lineal descendants, Indian tribes and Native Hawaiian organizations involved. Lineal descendants and Indian tribe official(s) may sign the written plan of action as appropriate. At a minimum, the plan of action must comply with §10.3 (b)(1) and document the following:

(1) The kinds of objects to be considered as cultural items as defined in §10.2 (b);

(2) The specific information used to determine custody pursuant to §10.6;

(3) The planned treatment, care, and handling of human remains, funerary objects, sacred objects, or objects of cultural patrimony recovered;

(4) The planned archeological recording of the human remains, funerary objects, sacred objects, or objects of cultural patrimony recovered;

(5) The kinds of analysis planned for each kind of object;

(6) Any steps to be followed to contact Indian tribe officials at the time of intentional excavation or inadvertent discovery of specific human remains, funerary objects, sacred objects, or objects of cultural patrimony;

(7) The kind of traditional treatment, if any, to be afforded the human remains, funerary objects, sacred objects, or objects of cultural patrimony by members of the Indian tribe or Native Hawaiian organization;

(8) The nature of reports to be prepared; and

(9) The planned disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony following §10.6.

(f) Comprehensive agreements. Whenever possible, Federal Agencies should enter into comprehensive agreements with Indian tribes or Native Hawaiian organizations that are affiliated with human remains, funerary objects, sacred objects, or objects of cultural patrimony and have claimed, or are likely to claim, those human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or discovered inadvertently on Federal lands. These agreements should address all Federal agency land management activities that could result in the intentional excavation or inadvertent discovery of human remains, funerary objects, sacred objects, or objects of cultural patrimony. Consultation should lead to the establishment of a process for effectively carrying out the requirements of these regulations regarding standard consultation procedures, the determination of custody consistent with procedures in this section and §10.6, and the treatment and disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony. The signed agreements, or the correspondence related to the effort to reach agreements, must constitute proof of consultation as required by these regulations.

(g) Traditional religious leaders. The Federal agency official must be cognizant that Indian tribe officials may need to confer with traditional religious leaders prior to making recommendations. Indian tribe officials are under no obligation to reveal the identity of traditional religious leaders.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 78 FR 27083, May 9, 2013]

§10.6   Custody.

(a) Priority of custody. This section carries out section 3 (a) of the Act, subject to the limitations of §10.15, regarding the custody of human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or discovered inadvertently in Federal or tribal lands after November 16, 1990. For the purposes of this section, custody means ownership or control of human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or discovered inadvertently in Federal or tribal lands after November 16, 1990. Custody of these human remains, funerary objects, sacred objects, or objects of cultural patrimony is, with priority given in the order listed:

(1) In the case of human remains and associated funerary objects, in the lineal descendant of the deceased individual as determined pursuant to §10.14 (b);

(2) When a lineal descendant of a deceased Native American individual cannot be ascertained with respect to the human remains and associated funerary objects, and with respect to unassociated funerary objects, sacred objects, and objects of cultural patrimony:

(i) In the Indian tribe on whose tribal land the human remains, funerary objects, sacred objects, or objects of cultural patrimony were excavated intentionally or discovered inadvertently;

(ii) In the Indian tribe or Native Hawaiian organization that has the closest cultural affiliation with the human remains, funerary objects, sacred objects, or objects of cultural patrimony as determined pursuant to §10.14 (c); or

(iii) In circumstances in which the cultural affiliation of the human remains, funerary objects, sacred objects, or objects of cultural patrimony cannot be ascertained and the objects were excavated intentionally or discovered inadvertently on Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of an Indian tribe:

(A) In the Indian tribe aboriginally occupying the Federal land on which the human remains, funerary objects, sacred objects, or objects of cultural patrimony were excavated intentionally or discovered inadvertently, or

(B) If a preponderance of the evidence shows that a different Indian tribe or Native Hawaiian organization has a stronger cultural relationship with the human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony, in the Indian tribe or Native Hawaiian organization that has the strongest demonstrated relationship with the cultural items.

(b) Custody of human remains, funerary objects, sacred objects, or objects of cultural patrimony and other provisions of the Act apply to all intentional excavations and inadvertent discoveries made after November 16, 1990, including those made before the effective date of these regulations.

(c) Final notice, claims and disposition with respect to Federal lands. Upon determination of the lineal descendant, Indian tribe, or Native Hawaiian organization that under these regulations appears to be entitled to custody of particular human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated intentionally or discovered inadvertently on Federal lands, the responsible Federal agency official must, subject to the notice required herein and the limitations of §10.15, transfer custody of the objects to the lineal descendant, Indian tribe, or Native Hawaiian organization following appropriate procedures, which must respect traditional customs and practices of the affiliated Indian tribes or Native Hawaiian organizations in each instance. Prior to any such disposition by a Federal agency official, the Federal agency official must publish general notices of the proposed disposition in a newspaper of general circulation in the area in which the human remains, funerary objects, sacred objects, or objects of cultural patrimony were excavated intentionally or discovered inadvertently and, if applicable, in a newspaper of general circulation in the area(s) in which affiliated Indian tribes or Native Hawaiian organizations members now reside. The notice must provide information as to the nature and affiliation of the human remains, funerary objects, sacred objects, or objects of cultural patrimony and solicit further claims to custody. The notice must be published at least two (2) times at least a week apart, and the transfer must not take place until at least thirty (30) days after the publication of the second notice to allow time for any additional claimants to come forward. If additional claimants do come forward and the Federal agency official cannot clearly determine which claimant is entitled to custody, the Federal agency must not transfer custody of the objects until such time as the proper recipient is determined pursuant to these regulations. The Federal agency official must send a copy of the notice and information on when and in what newspaper(s) the notice was published to the Manager, National NAGPRA Program.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71 FR 16501, Apr. 3, 2006; 78 FR 27083, May 9, 2013]

Description: eturn arrow Back to Top

§10.7   Disposition of unclaimed human remains, funerary objects, sacred objects, or objects of cultural patrimony. [Reserved]

Subpart C—Human Remains, Funerary Objects, Sacred Objects, or Objects of Cultural Patrimony in Museums and Federal Collections

§10.8   Summaries.

(a) General. This section carries out section 6 of the Act. Under section 6 of the Act, each museum or Federal agency that has possession or control over collections which may contain unassociated funerary objects, sacred objects, or objects of cultural patrimony must complete a summary of these collections based upon available information held by the museum or Federal agency. The purpose of the summary is to provide information about the collections to lineal descendants and culturally affiliated Indian tribes or Native Hawaiian organizations that may wish to request repatriation of such objects. The summary serves in lieu of an object-by-object inventory of these collections, although, if an inventory is available, it may be substituted. Federal agencies are responsible for ensuring that these requirements are met for all collections from their lands or generated by their actions whether the collections are held by the Federal agency or by a non-Federal institution.

(b) Contents of summaries. For each collection or portion of a collection, the summary must include: an estimate of the number of objects in the collection or portion of the collection; a description of the kinds of objects included; reference to the means, date(s), and location(s) in which the collection or portion of the collection was acquired, where readily ascertainable; and information relevant to identifying lineal descendants, if available, and cultural affiliation.

(c) Completion. Summaries must be completed not later than November 16, 1993.

(d) Consultation. (1) Consulting parties. Museum and Federal agency officials must consult with Indian tribe officials and traditional religious leaders:

(i) From whose tribal lands unassociated funerary objects, sacred objects, or objects of cultural patrimony originated;

(ii) That are, or are likely to be, culturally affiliated with unassociated funerary objects, sacred objects, or objects of cultural patrimony; and

(iii) From whose aboriginal lands unassociated funerary objects, sacred objects, or objects of cultural patrimony originated.

(2) Initiation of consultation. Museum and Federal agency officials must begin summary consultation no later than the completion of the summary process. Consultation may be initiated with a letter, but should be followed up by telephone or face-to-face dialogue with the appropriate Indian tribe official.

(3) Provision of information. During summary consultation, museum and Federal agency officials must provide copies of the summary to lineal descendants, when known, and to officials and traditional religious leaders representing Indian tribes or Native Hawaiian organizations that are, or are likely to be, culturally affiliated with the cultural items. A copy of the summary must also be provided to the Manager, National NAGPRA Program. Upon request by lineal descendants or Indian tribe officials, museum and Federal agency officials must provide lineal descendants, Indian tribe officials and traditional religious leaders with access to records, catalogues, relevant studies, or other pertinent data for the limited purposes of determining the geographic origin, cultural affiliation, and basic facts surrounding acquisition and accession of objects covered by the summary. Access to this information may be requested at any time and must be provided in a reasonable manner to be agreed upon by all parties. The Review committee also must be provided access to such materials.

(4) Requests for information. During the summary consultation, museum and Federal agency officials must request, as appropriate, the following information from Indian tribes and Native Hawaiian organizations that are, or are likely to be, culturally affiliated with their collections:

(i) Name and address of the Indian tribe official to act as representative in consultations related to particular objects;

(ii) Recommendations on how the consultation process should be conducted, including:

(A) Names and appropriate methods to contact any lineal descendants, if known, of individuals whose unassociated funerary objects or sacred objects are included in the summary;

(B) Names and appropriate methods to contact any traditional religious leaders that the Indian tribe or Native Hawaiian organization thinks should be consulted regarding the collections; and

(iii) Kinds of cultural items that the Indian tribe or Native Hawaiian organization considers to be funerary objects, sacred objects, or objects of cultural patrimony.

(e) Using summaries to determine affiliation. Museum and Federal agency officials must document in the summary the following information. They must use this information in determining, as appropriate, the lineal descendants of a deceased Native American individual with whom unassociated funerary objects and sacred objects are affiliated, and the Indian tribes and Native Hawaiian organizations with which unassociated funerary objects, sacred objects, or objects of cultural patrimony are affiliated:

(1) Accession and catalogue entries;

(2) Information related to the acquisition of unassociated funerary object, sacred object, or object of cultural patrimony, including:

(i) The name of the person or organization from whom the object was obtained, if known;

(ii) The date of acquisition;

(iii) The place each object was acquired, i.e., name or number of site, county, State, and Federal agency administrative unit, if applicable; and

(iv) The means of acquisition, i.e., gift, purchase, or excavation;

(3) A description of each unassociated funerary object, sacred object, or object of cultural patrimony, including dimensions, materials, and photographic documentation, if appropriate, and the antiquity of such objects, if known;

(4) A summary of the evidence used to determine the cultural affiliation of the unassociated funerary objects, sacred objects, or objects of cultural patrimony pursuant to §10.14 of these regulations.

(f) Notification. Repatriation of unassociated funerary objects, sacred objects, or objects of cultural patrimony to lineal descendants, culturally affiliated Indian tribes, or Native Hawaiian organizations as determined pursuant to §10.10 (a), must not proceed prior to submission of a notice of intent to repatriate to the Manager, National NAGPRA Program, and publication of the notice of intent to repatriate in the Federal Register. The notice of intent to repatriate must describe the unassociated funerary objects, sacred objects, or objects of cultural patrimony being claimed in sufficient detail so as to enable other individuals, Indian tribes or Native Hawaiian organizations to determine their interest in the claimed objects. It must include information that identifies each claimed unassociated funerary object, sacred object, or object of cultural patrimony and the circumstances surrounding its acquisition, and describes the objects that are clearly identifiable as to cultural affiliation. It must also describe the objects that are not clearly identifiable as being culturally affiliated with a particular Indian tribe or Native Hawaiian organization, but which, given the totality of circumstances surrounding acquisition of the objects, are likely to be culturally affiliated with a particular Indian tribe or Native Hawaiian organization. The Manager, National NAGPRA Program must publish the notice of intent to repatriate in the Federal Register.Repatriation may not occur until at least thirty (30) days after publication of the notice of intent to repatriate in the Federal Register.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71 FR 16501, Apr. 3, 2006; 78 FR 27083, May 9, 2013]

§10.9   Inventories.

(a) General. This section carries out section 5 of the Act. Under section 5 of the Act, 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. The purpose of the inventory is to facilitate repatriation by providing clear descriptions of human remains and associated funerary objects and establishing the cultural affiliation between these objects and present-day Indian tribes and Native Hawaiian organizations. Museums and Federal agencies are encouraged to produce inventories first on those portions of their collections for which information is readily available or about which Indian tribes or Native Hawaiian organizations have expressed special interest. Early focus on these parts of collections will result in determinations that may serve as models for other inventories. Federal agencies must ensure that these requirements are met for all collections from their lands or generated by their actions whether the collections are held by the Federal agency or by a non-Federal institution.

(b) Consultation—(1) Consulting parties. Museum and Federal agency officials must consult with:

(i) Lineal descendants of individuals whose remains and associated funerary objects are likely to be subject to the inventory provisions of these regulations; and

(ii) Indian tribe officials and traditional religious leaders:

(A) From whose tribal lands the human remains and associated funerary objects originated;

(B) That are, or are likely to be, culturally affiliated with human remains and associated funerary objects; and

(C) From whose aboriginal lands the human remains and associated funerary objects originated.

(2) Initiation of consultation. Museum and Federal agency officials must begin inventory consultation as early as possible, no later in the inventory process than the time at which investigation into the cultural affiliation of human remains and associated funerary objects is being conducted. Consultation may be initiated with a letter, but should be followed up by telephone or face-to-face dialogue.

(3) Provision of information. During inventory consultation, museums and Federal agency officials must provide the following information in writing to lineal descendants, when known, and to officials and traditional religious leaders representing Indian tribes or Native Hawaiian organizations that are, or are likely to be, culturally affiliated with the human remains and associated funerary objects.

(i) A list of all Indian tribes and Native Hawaiian organizations that are, or have been, consulted regarding the particular human remains and associated funerary objects;

(ii) A general description of the conduct of the inventory;

(iii) The projected time frame for conducting the inventory; and

(iv) An indication that additional documentation used to identify cultural affiliation will be supplied upon request.

(4) Requests for information. During the inventory consultation, museum and Federal agency officials must request, as appropriate, the following information from Indian tribes and Native Hawaiian organizations that are, or are likely to be, culturally affiliated with their collections:

(i) Name and address of the Indian tribe official to act as representative in consultations related to particular human remains and associated funerary objects;

(ii) Recommendations on how the consultation process should be conducted, including:

(A) Names and appropriate methods to contact any lineal descendants of individuals whose remains and associated funerary objects are or are likely to be included in the inventory; and

(B) Names and appropriate methods to contact traditional religious leaders who should be consulted regarding the human remains and associated funerary objects.

(iii) Kinds of objects that the Indian tribe or Native Hawaiian organization reasonably believes to have been made exclusively for burial purposes or to contain human remains of their ancestors.

(c) Required information. The following documentation must be included, if available, for all inventories completed by museum or Federal agency officials:

(1) Accession and catalogue entries, including the accession/catalogue entries of human remains with which funerary objects were associated;

(2) Information related to the acquisition of each object, including:

(i) The name of the person or organization from whom the object was obtained, if known;

(ii) The date of acquisition,

(iii) The place each object was acquired, i.e., name or number of site, county, State, and Federal agency administrative unit, if applicable; and

(iv) The means of acquisition, i.e., gift, purchase, or excavation;

(3) A description of each set of human remains or associated funerary object, including dimensions, materials, and, if appropriate, photographic documentation, and the antiquity of such human remains or associated funerary objects, if known;

(4) A summary of the evidence, including the results of consultation, used to determine the cultural affiliation of the human remains and associated funerary objects pursuant to §10.14 of these regulations.

(d) Documents. Two separate documents comprise the inventory:

(1) A listing of all human remains and associated funerary objects that are identified as being culturally affiliated with one or more present-day Indian tribes or Native Hawaiian organizations. The list must indicate for each item or set of items whether cultural affiliation is clearly determined or likely based upon the preponderance of the evidence; and

(2) 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.

(e) Notification. (1) If the inventory results in the identification or likely identification of the cultural affiliation of any particular human remains or associated funerary objects with one or more Indian tribes or Native Hawaiian organizations, the museum or Federal agency, not later than six (6) months after completion of the inventory, must send such Indian tribes or Native Hawaiian organizations the inventory of culturally affiliated human remains and associated funerary objects, including all information required under §10.9 (c), and a notice of inventory completion that summarizes the results of the inventory.

(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.

(3) If the inventory results in a determination that the human remains are of an identifiable individual, the museum or Federal agency official must convey this information to the lineal descendant of the deceased individual, if known, and to the Indian tribe or Native Hawaiian organization of which the deceased individual was culturally affiliated.

(4) The notice of inventory completion and a copy of the inventory must also be sent to the Manager, National NAGPRA Program. These submissions should be sent in both printed hard copy and electronic formats. Information on the proper format for electronic submission and suggested alternatives for museums and Federal agencies unable to meet these requirements are available from the Manager, National NAGPRA Program.

(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.

(7) The Manager, National NAGPRA Program must publish notices of inventory completion received from museums and Federal agencies in the Federal Register.

(f) Completion. Inventories must be completed not later than November 16, 1995. Any museum that has made a good faith effort to complete its inventory, but which will be unable to complete the process by this deadline, may request an extension of the time requirements from the Secretary. An indication of good faith efforts must include, but not necessarily be limited to, the initiation of active consultation and documentation regarding the collections and the development of a written plan to carry out the inventory process. Minimum components of an inventory plan are: a definition of the steps required; the position titles of the persons responsible for each step; a schedule for carrying out the plan; and a proposal to obtain the requisite funding.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71 FR 16501, Apr. 3, 2006; 75 FR 12403, Mar. 15, 2010]

§10.10   Repatriation.

(a) Unassociated funerary objects, sacred objects, and objects of cultural patrimony—(1) Criteria. Upon the request of a lineal descendant, Indian tribe, or Native Hawaiian organization, a museum or Federal agency must expeditiously repatriate unassociated funerary objects, sacred objects, or objects of cultural patrimony if all the following criteria are met:

(i) The object meets the definitions established in §10.2 (d)(2)(ii), (d)(3), or (d)(4); and

(ii) The cultural affiliation of the object is established:

(A) Through the summary, consultation, and notification procedures in §10.14 of these regulations; or

(B) By presentation of a preponderance of the evidence by a requesting Indian tribe or Native Hawaiian organization under section 7(a)(4) of the Act; and

(iii) The known lineal descendant or culturally affiliated Indian tribe or Native Hawaiian organization presents evidence which, if standing alone before the introduction of evidence to the contrary, would support a finding that the museum or Federal agency does not have a right of possession to the objects as defined in §10.10 (a)(2); and

(iv) The agency or museum is unable to present evidence to the contrary proving that it does have a right of possession as defined below; and

(v) None of the specific exceptions listed in §10.10 (c) apply.

(2) Right of possession. For purposes of this section, “right of possession” means possession obtained with the voluntary consent of an individual or group that had authority of alienation. The original acquisition of a Native American unassociated funerary object, sacred object, or object of cultural patrimony from an Indian tribe or Native Hawaiian organization with the voluntary consent of an individual or group with authority to alienate such object is deemed to give right of possession to that object.

(3) Notification. Repatriation must take place within ninety (90) days of receipt of a written request for repatriation that satisfies the requirements of paragraph (a)(1) of this section from a lineal descendent or culturally affiliated Indian tribe or Native Hawaiian organization, provided that the repatriation may not occur until at least thirty (30) days after publication of the notice of intent to repatriate in the Federal Register as described in §10.8.

(b) Human remains and associated funerary objects—(1) Criteria. Upon the request of a lineal descendant, Indian tribe, or Native Hawaiian organization, a museum and Federal agency must expeditiously repatriate human remains and associated funerary objects if all of the following criteria are met:

(i) The human remains or associated funerary object meets the definitions established in §10.2 (d)(1) or (d)(2)(i); and

(ii) The affiliation of the deceased individual to known lineal descendant, present day Indian tribe, or Native Hawaiian organization:

(A) Has been reasonably traced through the procedures outlined in §10.9 and §10.14 of these regulations; or

(B) Has been shown by a preponderance of the evidence presented by a requesting Indian tribe or Native Hawaiian organization under section 7(a)(4) of the Act; and

(iii) None of the specific exceptions listed in §10.10 (c) apply.

(2) Notification. Repatriation must take place within ninety (90) days of receipt of a written request for repatriation that satisfies the requirements of §10.10 (b)(1) from the culturally affiliated Indian tribe or Native Hawaiian organization, provided that the repatriation may not occur until at least thirty (30) days after publication of the notice of inventory completion in the Federal Register as described in §10.9.

(c) Exceptions. These requirements for repatriation do not apply to:

(1) Circumstances where human remains, funerary objects, sacred objects, or objects of cultural patrimony are indispensable to the completion of a specific scientific study, the outcome of which is of major benefit to the United States. Human remains, funerary objects, sacred objects, or objects of cultural patrimony in such circumstances must be returned no later than ninety (90) days after completion of the study; or

(2) Circumstances where there are multiple requests for repatriation of human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony and the museum or Federal agency, after complying with this part, cannot determine by a preponderance of the evidence which competing requesting party is the most appropriate claimant. In these circumstances, the museum or Federal agency may retain the cultural items in question until the competing requesting parties agree upon the appropriate recipient or the dispute is otherwise resolved pursuant to these regulations or by a court of competent jurisdiction; or

(3) Circumstances where a court of competent jurisdiction has determined that the repatriation of the human remains, funerary objects, sacred objects, or objects of cultural patrimony in the possession or control of a museum would result in a taking of property without just compensation within the meaning of the Fifth Amendment of the United States Constitution, in which event the custody of the objects must be as provided under otherwise applicable law. Nothing in these regulations must prevent a museum or Federal agency, where otherwise so authorized, or a lineal descendant, Indian tribe, or Native Hawaiian organization, from expressly relinquishing title to, right of possession of, or control over any human remains, funerary objects, sacred objects, or objects of cultural patrimony.

(4) Circumstances where the repatriation is not consistent with other repatriation limitations identified in §10.15 of these regulations.

(d) Place and manner of repatriation. The repatriation of human remains, funerary objects, sacred objects, or objects of cultural patrimony must be accomplished by the museum or Federal agency in consultation with the requesting lineal descendants, or culturally affiliated Indian tribe or Native Hawaiian organization, as appropriate, to determine the place and manner of the repatriation.

(e) The museum official or Federal agency official must inform the recipients of repatriations of any presently known treatment of the human remains, funerary objects, sacred objects, or objects of cultural patrimony with pesticides, preservatives, or other substances that represent a potential hazard to the objects or to persons handling the objects.

(f) Record of repatriation. (1) Museums and Federal agencies must adopt internal procedures adequate to permanently document the content and recipients of all repatriations.

(2) The museum official or Federal agency official, at the request of the Indian tribe official, may take such steps as are considered necessary pursuant to otherwise applicable law, to ensure that information of a particularly sensitive nature is not made available to the general public.

(g) Culturally unidentifiable human remains. If the cultural affiliation of human remains cannot be established under this part, the human remains must be considered culturally unidentifiable.

(1) Museum and Federal agency officials must report the inventory information regarding these human remains in their holdings to the Manager, National NAGPRA Program, who will send this information to the Review Committee.

(2) The Review Committee will:

(i) Compile an inventory of culturally unidentifiable human remains in the possession or control of each museum and Federal agency; and

(ii) Recommend to the Secretary specific actions for disposition of any human remains not already addressed in §10.11.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997; 71 FR 16501, Apr. 3, 2006; 78 FR 27083, May 9, 2013]

§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

(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 for purposes of this section may be recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims, or by 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 federally-recognized; or

(B) Reinter culturally unidentifiable human remains according to State or other law.

(3) The Secretary may make a recommendation under paragraph (c)(2)(ii) of this section only with proof from the museum or Federal agency that it has consulted with all Indian tribes and Native Hawaiian organizations listed in paragraph (c)(1) of this section and that none of them has objected to the proposed transfer of control.

(4) A museum or Federal agency may also transfer control of funerary objects that are associated with culturally unidentifiable human remains. The Secretary recommends that museums and Federal agencies transfer control if Federal or State law does not preclude it.

(5) The exceptions listed at §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 theFederal 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.

[75 FR 12403, Mar. 15, 2010, as amended at 78 FR 27083, May 9, 2013]

§10.12   Civil penalties.

(a) The Secretary's authority to assess civil penalties. The Secretary is authorized by section 9 of the Act to assess civil penalties on any museum that fails to comply with the requirements of the Act. The Assistant Secretary for Fish and Wildlife and Parks may act on behalf of the Secretary.

(b) Definition of “failure to comply.” (1) Your museum has failed to comply with the requirements of the Act if it:

(i) After November 16, 1990, sells or otherwise transfers human remains, funerary objects, sacred objects, or objects of cultural patrimony contrary to provisions of the Act, including, but not limited to, an unlawful sale or transfer to any individual or institution that is not required to comply with the Act; or

(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

(v) Refuses, absent any of the exemptions specified in §10.10(c) of this part, to repatriate human remains, funerary object, sacred object, or object of cultural patrimony to a lineal descendant or culturally affiliated Indian tribe or Native Hawaiian; or

(vi) Repatriates a human remains, funerary object, sacred object, or object of cultural patrimony before publishing the required notice in the Federal Register;

(vii) Does not consult with lineal descendants, Indian tribe officials, and traditional religious leaders as required; or

(viii) Does not inform the recipients of repatriations of any presently known treatment of the human remains, funerary objects, sacred objects, or objects of cultural patrimony with pesticides, preservatives, or other substances that represent a potential hazard to the objects or to persons handling the objects.

(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.

(2) Each instance of failure to comply will constitute a separate violation.

(c) How to notify the Secretary of a failure to comply. Any person may file an allegation of failure to comply. Allegations are to be sent to the NAGPRA Civil Penalties Coordinator, National NAGPRA Program, at the mailing address listed on the National NAGPRA Contact Information Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. The allegation must be in writing, and should:

(1) Identify each provision of the Act with which there has been a failure to comply by a museum;

(2) Include facts supporting the allegation;

(3) Include evidence that the museum has possession or control of Native American cultural items; and

(4) Include evidence that the museum receives Federal funds.

(d) Steps the Secretary may take upon receiving such an allegation. (1) The Secretary must acknowledge receipt of the allegation in writing.

(2) The Secretary also may:

(i) Compile and review information relevant to the alleged failure to comply. The Secretary may request additional information, such as declarations and relevant papers, books, and documents, from the person making the allegation, the museum, and other parties;

(ii) Identify the specific provisions of the Act with which you have allegedly failed to comply; and

(iii) Determine if the institution of a civil penalty action is an appropriate remedy.

(3) The Secretary must provide written notification to the person making the allegation and the museum if the review of the evidence does not show a failure comply.

(e) How the Secretary notifies you of a failure to comply. (1) If the allegations are verified, the Secretary must serve you with a written notice of failure to comply either by personal delivery or by registered or certified mail (return receipt requested). The notice of failure to comply must include:

(i) A concise statement of the facts believed to show a failure to comply;

(ii) A specific reference to the provisions of the Act and/or these regulations with which you allegedly have not complied; and

(iii) Notification of the right to request an informal discussion with the Secretary or a designee, to request a hearing, as provided below, or to await the Secretary's notice of assessment. The notice of failure to comply also must inform you of your right to seek judicial review of any final administrative decision assessing a civil penalty.

(2) With your consent, the Secretary may combine the notice of failure to comply with the notice of assessment described in paragraph (h) of this section.

(3) The Secretary also must send a copy of the notice of failure to comply to:

(i) Any lineal descendant of a known Native American individual whose human remains, funerary objects, or sacred objects are in question; and

(ii) Any Indian tribes or Native Hawaiian organizations that are, or are likely to be, culturally affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony in question.

(f) Actions you may take upon receipt of a notice of failure to comply. If you are served with a notice of failure to comply, you may:

(1) Seek informal discussions with the Secretary;

(2) Request a hearing. Figure 1 outlines the civil penalty hearing and appeal process. Where the Secretary has issued a combined notice of failure to comply and notice of assessment, the hearing and appeal processes will also be combined.

(3) Take no action and await the Secretary's notice of assessment.

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(g) How the Secretary determines the penalty amount. (1) The penalty amount must be determined on the record;

(2) The penalty amount must be .25 percent of your museum's annual budget, or $5,000, whichever is less, and such additional sum as the Secretary may determine is appropriate after taking into account:

(i) The archeological, historical, or commercial value of the human remains, funerary object, sacred object, or object of cultural patrimony involved; and

(ii) The damages suffered, both economic and non-economic, by the aggrieved party or parties including, but not limited to, expenditures by the aggrieved party to compel the museum to comply with the Act; and

(iii) The number of violations that have occurred at your museum.

(3) An additional penalty of up to $1,000 per day after the date that the final administrative decision takes effect may be assessed if your museum continues to violate the Act.

(4) The Secretary may reduce the penalty amount if there is:

(i) A determination that you did not willfully fail to comply; or

(ii) An agreement by you to mitigate the violation, including, but not limited to, payment of restitution to the aggrieved party or parties; or

(iii) A determination that you are unable to pay, provided that this factor may not apply if you have been previously found to have failed to comply with these regulations; or,

(iv) A determination that the penalty constitutes excessive punishment under the circumstances.

(h) How the Secretary assesses the penalty. (1) The Secretary considers all available information, including information provided during the process of assessing civil penalties or furnished upon further request by the Secretary.

(2) The Secretary may assess the civil penalty upon completing informal discussions or when the period for requesting a hearing expires, whichever is later.

(3) The Secretary notifies you in writing of the penalty amount assessed by serving a written notice of assessment, either in person or by registered or certified mail (return receipt requested). The notice of assessment includes:

(i) The basis for determining the penalty amount assessed and/or any offer to mitigate or remit the penalty; and

(ii) Notification of the right to request a hearing, including the procedures to follow, and to seek judicial review of any final administrative decision that assesses a civil penalty.

(i) Actions that you may take upon receipt of a notice of assessment. If you are served with a notice of assessment, you may do one of the following:

(1) Accept in writing or by payment of the proposed penalty, or any mitigation or remission offered in the notice of assessment. If you accept the proposed penalty, mitigation, or remission, you waive the right to request a hearing.

(2) Seek informal discussions with the Secretary.

(3) File a petition for relief. You may file a petition for relief within 45 calendar days of receiving the notice of assessment. A petition for relief is to be sent to the NAGPRA Civil Penalties Coordinator, National NAGPRA Program, at the mailing address listed on the National NAGRPA Contact Information Web site,http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. Your petition may ask the Secretary not to assess a penalty or to reduce the penalty amount. Your petition must:

(i) Be in writing and signed by an official authorized to sign such documents; and

(ii) Fully explain the legal or factual basis for the requested relief.

(4) Request a hearing. Figure 1 outlines the civil penalty hearing and appeal process.

(i) In addition to the documentation required in paragraph (g) of this section, your request must include a copy of the notice of assessment and must identify the basis for challenging the assessment.

(ii) In this hearing, the amount of the civil penalty assessed must be determined in accordance with paragraph (h) of this section, and will not be limited to the amount assessed by the Secretary or any offer of mitigation or remission made by the Secretary.

(j) How you request a hearing. You may file a written, dated request for a hearing on a notice of failure to comply or notice of assessment with the Departmental Cases Hearings Division, Office of Hearings and Appeals, U.S. Department of the Interior, 405 South Main Street, Suite 400, Salt Lake City, UT 84111. You must also serve a copy of the request on the Solicitor of the Department of the Interior personally or by registered or certified mail (return receipt requested) at the address specified in the notice.

(1) Your request for a hearing must:

(i) Include a copy of the notice of failure to comply or the notice of assessment;

(ii) State the relief sought;

(iii) State the basis for challenging the facts used as the basis for determining the failure to comply or fixing the assessment; and

(iv) State your preferred place and date for a hearing.

(2) Your failure to file a written request for a hearing within 45 days of the date of service of a notice of failure to comply or notice of assessment waives your right to a hearing.

(3) Upon receiving a request for a hearing, the Hearings Division assigns an administrative law judge to the case, gives notice of assignment promptly to the parties, and files all pleadings, papers, and other documents in the proceeding directly with the administrative law judge, with copies served on the opposing party.

(4) Subject to the provisions of 43 CFR 1.3, you may appear by representative or by counsel, and may participate fully in the proceedings. If you fail to appear and the administrative law judge determines that this failure is without good cause, the administrative law judge may, in his/her discretion, determine that this failure waives your right to a hearing and consent to the making of a decision on the record.

(5) Departmental counsel, designated by the Solicitor of the Department of the Interior, represents the Secretary in the proceedings. Upon notice to the Secretary of the assignment of an administrative law judge to the case, this counsel must enter his/her appearance on behalf of the Secretary and must file all petitions and correspondence exchanges by the Secretary and the respondent that become part of the hearing record. Thereafter, you must serve all documents for the Secretary on his/her counsel.

(6) Hearing Administration. Hearings must take place following the procedures in 43 CFR Part 4, Subparts A and B.

(i) The administrative law judge has all powers accorded by law and necessary to preside over the parties and the proceedings and to make decisions under 5 U.S.C. 554-557.

(ii) The transcript of testimony; the exhibits; and all papers, documents, and requests filed in the proceedings constitute the record for decision. The administrative law judge renders a written decision upon the record, which sets forth his/her findings of fact and conclusions of law, and the reasons and basis for them.

(iii) Unless you file a notice of appeal described in these regulations, the administrative law judge's decision constitutes the final administrative determination of the Secretary in the matter and takes effect 30 calendar days from this decision.

(k) How you appeal a decision. (1) Either you or the Secretary may appeal the decision of an administrative law judge by filing a Notice of Appeal. Send your Notice of Appeal to the Interior Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 800 North Quincy Street, Suite 300, Arlington, VA 22203, within 30 calendar days of the date of the administrative law judge's decision. The notice must be accompanied by proof of service on the administrative law judge and the opposing party.

(2) To the extent they are not inconsistent with these regulations, the provisions of the Department of the Interior Hearings and Appeals Procedures in 43 CFR part 4, subpart D, apply to such appeal proceedings. The appeal board's decision on the appeal must be in writing and takes effect as the final administrative determination of the Secretary on the date that the decision is rendered, unless otherwise specified in the decision.

(3) You may obtain copies of decisions in civil penalty proceedings instituted under the Act by sending a request to the Interior Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 800 North Quincy Street, Suite 300, Arlington, VA 22203. Fees for this service are established by the director of that office.

(l) The final administrative decision. (1) When you have been served with a notice of assessment and have accepted the penalty as provided in these regulations, the notice constitutes the final administrative decision.

(2) When you have been served with a notice of assessment and have not filed a timely request for a hearing as provided in these regulations, the notice of assessment constitutes the final administrative decision.

(3) When you have been served with a notice of assessment and have filed a timely request for a hearing as provided in these regulations, the decision resulting from the hearing or any applicable administrative appeal from it constitutes the final administrative decision.

(m) How you pay the penalty. (1) If you are assessed a civil penalty, you have 45 calendar days from the date of issuance of the final administrative decision to make full payment of the penalty assessed to the Secretary, unless you have filed a timely request for appeal with a court of competent jurisdiction.

(2) If you fail to pay the penalty, the Secretary may request the Attorney General of the United States to collect the penalty by instituting a civil action in the U.S. District Court for the district in which your museum is located. In these actions, the validity and amount of the penalty is not subject to review by the court.

(3) Assessing a penalty under this section is not a waiver by the Secretary of the right to pursue other available legal or administrative remedies.

[68 FR 16360, Apr. 3, 2003, as amended at 70 FR 57179, Sept. 30, 2005; 75 FR 12404, Mar. 15, 2010; 75 FR 64670, Oct. 20, 2010; 78 FR 27083, May 9, 2013]

§10.13   Future applicability.

(a) General. This section sets forth the applicability of the Act to museums and Federal agencies after expiration of the statutory deadlines for completion of summaries and inventories.

(b) New holdings or collections.

(1) Any museum or Federal agency that, after completion of the summaries and inventories as required by §§10.8 and 10.9, receives a new holding or collection or locates a previously unreported current holding or collection that may include human remains, funerary objects, sacred objects or objects of cultural patrimony, must:

(i) Within 6 months of receiving a new holding or collection or locating a previously unreported current holding or collection, or within 6 months of the effective date of this rule, whichever is later, provide a summary of the holding or collection as required by §10.8 to any Indian tribe or Native Hawaiian organization that is, or is likely to be, affiliated with the collection; and

(ii) Within 2 years of receiving a new holding or collection or locating a previously unreported current holding or collection, or within 2 years of the effective date of this rule, whichever is later, prepare, in consultation with any affiliated Indian tribe or Native Hawaiian organization, an inventory as required by §10.9 of these regulations. Any museum that has made a good faith effort to complete its inventory, but which will be unable to complete the process by this deadline, may request an extension of the time requirements under §10.9(f).

(2) Additional pieces or fragments of previously repatriated human remains, funerary objects, sacred objects and objects of cultural patrimony may be returned to the appropriate Indian tribe or Native Hawaiian organization without publication of a notice in the Federal Register, as otherwise required under §§10.8(f) and 10.9(e), if they do not change the number or cultural affiliation of the cultural items listed in the previous notice.

(3) A museum or Federal agency that receives a new holding or collection for which a summary or inventory was previously prepared, as required by §§10.8 or 10.9, may rely upon the previously prepared documents. The receiving museum or Federal agency must provide a copy of the previously prepared summary or inventory to all affiliated Indian tribes or Native Hawaiian organizations, along with notification that the receiving museum or Federal agency has assumed possession and control of the holding or collection.

(c) New Indian tribes.

(1) Any museum or Federal agency that has possession or control of human remains, funerary objects, sacred objects, or objects of cultural patrimony that are, or are likely to be, culturally affiliated with a newly Federally recognized Native American tribe, must:

(i) Within 6 months of the publication in the Federal Register of the Native American group's placement on the list of Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, or within 6 months of the effective date of this rule, whichever is later, provide a summary of the collection as required by §10.8 to that Indian tribe; and

(ii) Within 2 years of the publication in the Federal Register of the Native American group's placement on the list of Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, or within 2 years of the effective date of this rule, whichever is later, prepare, in consultation with the newly recognized culturally affiliated Indian tribe an inventory as required by §10.9. Any museum that has made a good faith effort to complete its inventory, but which will be unable to complete the process by this deadline, may request an extension of the time requirements under §10.9(f).

(2) The list of Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs is published in the Federal Register as required by section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1 (2006)).

(d) New Federal funds. Any museum that has possession or control of human remains, funerary objects, sacred objects, or objects of cultural patrimony and receives Federal funds for the first time after expiration of the statutory deadlines for completion of summaries and inventories must:

(1) Within 3 years of the date of receipt of Federal funds, or within 3 years of the effective date of this rule, whichever is later, provide a summary of the collection as required by §10.8 to any Indian tribe or Native Hawaiian organization that is, or is likely to be, culturally affiliated with the collections; and

(2) Within 5 years of the date of receipt of Federal funds, or within 5 years of the effective date of this rule, whichever is later, prepare, in consultation with any affiliated Indian tribe or Native Hawaiian organization, an inventory as required by §10.9.

(e) Amendment of previous decision.

(1) Any museum or Federal agency that has previously published a notice in the Federal Register regarding the intent to repatriate unassociated funerary objects, sacred objects, and objects of cultural patrimony under §10.8(f), or the completion of an inventory of Native American human remains and associated funerary objects as required by §10.9(e), must publish an amendment to that notice if, based on subsequent information, the museum or Federal agency revises its decision in a way that changes the number or cultural affiliation of the cultural items listed.

(2) Repatriation may not occur until at least 30 days after publication of the amended notice in the Federal Register.

(f) All actions taken as required by this section must also comply with all other relevant sections of 43 CFR 10.

[72 FR 13189, Mar. 21, 2007, as amended at 78 FR 27084, May 9, 2013]

Subpart D—General

§10.14   Lineal descent and cultural affiliation.

(a) General. This section identifies procedures for determining lineal descent and cultural affiliation between present-day individuals and Indian tribes or Native Hawaiian organizations and human remains, funerary objects, sacred objects, or objects of cultural patrimony in museum or Federal agency collections or excavated intentionally or discovered inadvertently from Federal lands. They may also be used by Indian tribes and Native Hawaiian organizations with respect to tribal lands.

(b) Criteria for determining lineal descent. A lineal descendant is an individual tracing his or her ancestry directly and without interruption by means of the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization or by the common law system of descendence to a known Native American individual whose remains, funerary objects, or sacred objects are being requested under these regulations. This standard requires that the earlier person be identified as an individual whose descendants can be traced.

(c) Criteria for determining cultural affiliation. Cultural affiliation means a relationship of shared group identity that may be reasonably traced historically or prehistorically between a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group. All of the following requirements must be met to determine cultural affiliation between a present-day Indian tribe or Native Hawaiian organization and the human remains, funerary objects, sacred objects, or objects of cultural patrimony of an earlier group:

(1) Existence of an identifiable present-day Indian tribe or Native Hawaiian organization with standing under these regulations and the Act; and

(2) Evidence of the existence of an identifiable earlier group. Support for this requirement may include, but is not necessarily limited to evidence sufficient to:

(i) Establish the identity and cultural characteristics of the earlier group,

(ii) Document distinct patterns of material culture manufacture and distribution methods for the earlier group, or

(iii) Establish the existence of the earlier group as a biologically distinct population; and

(3) Evidence of the existence of a shared group identity that can be reasonably traced between the present-day Indian tribe or Native Hawaiian organization and the earlier group. Evidence to support this requirement must establish that a present-day Indian tribe or Native Hawaiian organization has been identified from prehistoric or historic times to the present as descending from the earlier group.

(d) A finding of cultural affiliation should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed and should not be precluded solely because of some gaps in the record.

(e) Evidence. Evidence of a kin or cultural affiliation between a present-day individual, Indian tribe, or Native Hawaiian organization and human remains, funerary objects, sacred objects, or objects of cultural patrimony must be established by using the following types of evidence: Geographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historical, or other relevant information or expert opinion.

(f) Standard of proof. Lineal descent of a present-day individual from an earlier individual and cultural affiliation of a present-day Indian tribe or Native Hawaiian organization to human remains, funerary objects, sacred objects, or objects of cultural patrimony must be established by a preponderance of the evidence. Claimants do not have to establish cultural affiliation with scientific certainty.

§10.15   Limitations and remedies.

(a) Failure to claim prior to repatriation. (1) Any person who fails to make a timely claim prior to the repatriation or disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony is deemed to have irrevocably waived any right to claim such items pursuant to these regulations or the Act. For these purposes, a “timely claim” means the filing of a written claim with a responsible museum or Federal agency official prior to the time the particular human remains, funerary objects, sacred objects, or objects of cultural patrimony at issue are duly repatriated or disposed of to a claimant by a museum or Federal agency pursuant to these regulations.

(2) If there is more than one (1) claimant, the human remains, funerary object, sacred object, or objects of cultural patrimony may be held by the responsible museum or Federal agency or person in possession thereof pending resolution of the claim. Any person who is in custody of such human remains, funerary objects, sacred objects, or objects of cultural patrimony and does not claim entitlement to them must place the objects in the possession of the responsible museum or Federal agency for retention until the question of custody is resolved.

(b) Failure to claim where no repatriation or disposition has occurred. [Reserved]

(c) Exhaustion of remedies. (1) A person's administrative remedies are exhausted only when the person has filed a written claim with the responsible Federal agency and the claim has been duly denied under this part. This paragraph applies to both:

(i) Human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony subject to Subpart B of this part; and

(ii) Federal collections subject to Subpart C of 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.

(d) Savings provisions. Nothing in these regulations can be construed to:

(1) Limit the authority of any museum or Federal agency to:

(i) Return or repatriate human remains, funerary objects, sacred objects, or objects of cultural patrimony to Indian tribes, Native Hawaiian organizations, or individuals; and

(ii) Enter into any other agreement with the consent of the culturally affiliated Indian tribe or Native Hawaiian organization as to the disposition of, or control over, human remains, funerary objects, sacred objects, or objects of cultural patrimony.

(2) Delay actions on repatriation requests that were pending on November 16, 1990;

(3) Deny or otherwise affect access to court;

(4) Limit any procedural or substantive right which may otherwise be secured to individuals or Indian tribes or Native Hawaiian organizations; or

(5) Limit the application of any State or Federal law pertaining to theft of stolen property.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997; 75 FR 12405, Mar. 15, 2010; 78 FR 27084, May 9, 2013]

§10.16   Review committee.

(a) General. The Review Committee will advise Congress and the Secretary on matters relating to these regulations and the Act, including, but not limited to, monitoring the performance of museums and Federal agencies in carrying out their responsibilities, facilitating and making recommendations on the resolution of disputes as described further in §10.17, and compiling a record of culturally unidentifiable human remains that are in the possession or control of museums and Federal agencies and recommending actions for their disposition.

(b) Recommendations. Any recommendation, finding, report, or other action of the Review Committee is advisory only and not binding on any person. Any records and findings made by the Review Committee may be admissible as evidence in actions brought by persons alleging a violation of the Act.

§10.17   Dispute resolution.

(a) Formal and informal resolutions. Any person who wishes to contest actions taken by museums, Federal agencies, Indian tribes, or Native Hawaiian organizations with respect to the repatriation and disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony is encouraged to do so through informal negotiations to achieve a fair resolution of the matter. The Review Committee may aid in this regard as described below. In addition, the United States District Courts have jurisdiction over any action brought that alleges a violation of the Act.

(b) Review Committee Role. The Review Committee may facilitate the informal resolution of disputes relating to these regulations among interested parties that are not resolved by good faith negotiations. Review Committee actions may include convening meetings between parties to disputes, making advisory findings as to contested facts, and making recommendations to the disputing parties or to the Secretary as to the proper resolution of disputes consistent with these regulations and the Act.

NAGPRA NPS

The Native American Graves Protection and Repatriation Act (NAGPRA)
Reproduced from Archaeological Method and Theory: An Encyclopedia, edited by Linda Ellis, Garland Publishing Co., New York and London, 2000. Francis P. McManamon

The Native American Graves Protection and Repatriation Act (Public Law 101-601; 25 U.S.C. 3001-3013) describes the rights of Native American lineal descendants, Indian tribes, and Native Hawaiian organizations with respect to the treatment, repatriation, and disposition of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony, referred to collectively in the statute as cultural items, with which they can show a relationship of lineal descent or cultural affiliation. One major purpose of this statute (Sections 5-7) is to require that Federal agencies and museums receiving Federal funds inventory holdings of Native American human remains and funerary objects and provide written summaries of other cultural items. The agencies and museums must consult with Indian Tribes and Native Hawaiian organizations to attempt to reach agreements on the repatriation or other disposition of these remains and objects. Once lineal descent or cultural affiliation has been established, and in some cases the right of possession also has been demonstrated, lineal descendants, affiliated Indian Tribes, or affiliated Native Hawaiian organizations normally make the final determination about the disposition of cultural items. Disposition may take many forms from reburial to long term curation, according to the wishes of the lineal descendent(s) or culturally affiliated Tribe(s).

The second major purpose of the statute is to provide greater protection for Native American burial sites and more careful control over the removal of Native American human remains, funerary objects, sacred objects, and items of cultural patrimony on Federal and tribal lands. NAGPRA requires that Indian tribes or Native Hawaiian organizations be consulted whenever archeological investigations encounter, or are expected to encounter, Native American cultural items or when such items are unexpectedly discovered on Federal or tribal lands (Section 3). Excavation or removal of any such items also must be done under procedures required by the Archaeological Resources Protection Act (Sec. 3 (c)(1)). This NAGPRA requirement is likely to encourage the in situ preservation of archaeological sites, or at least the portions of them that contain burials or other kinds of cultural items. In many situations, it will be advantageous for Federal agencies and Tribes undertaking land-modifying activities on their lands to undertake careful consultations with traditional users of the land and intensive archeological surveys to locate and then protect unmarked Native American graves, cemeteries, or other places where cultural items might be located.

Other provisions of NAGPRA: (1) stipulates that illegal trafficking in human remains and cultural items may result in criminal penalties (Section 4); (2) authorizes the Secretary of the Interior to administer a grants program to assist museums and Indian Tribes in complying with certain requirements of the statute (Section 10); (3) requires the Secretary of the Interior to establish a Review Committee to provide advice and assistance in carrying out key provisions of the statute (Section 8); authorizes the Secretary of the Interior to penalize museums that fail to comply with the statute (Section 9); and, (5) directs the Secretary to develop regulations in consultation with this Review Committee (Section 13).

"Cultural affiliation" is a key concept for implementing this statute; it is a cornerstone for repatriation requests and for asserting claims related to new discoveries on Federal or Tribal land. The statute defines cultural affiliation as

a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian Tribe or Native Hawaiian organization and an identifiable earlier group (Sec. 2(2)).

This implies that contemporary groups of Native Americans of diverse backgrounds who voluntarily associate together for some purpose or purposes are not viewed as proper claimants under the provisions of the statute.

Whether new discoveries from Federal or Tribal land or existing collections are being considered, it is not necessary for the agency, museum, lineal descendent, Indian Tribe, or Native Hawaiian organization to establish beyond all doubt which descendent or Native American group is a proper claimant for purposes of repatriation. This is true in situations involving cultural items in collections as well as when dealing with newly discovered materials.

The types of evidence which may be offered to show cultural affiliation may include, but are not limited to, geographical, kinship, biological, archaeological, anthropological, linguistic, oral tradition, or historical evidence or other relevant information or expert opinion. The requirement of continuity between present day Indian Tribes and materials from historic or prehistoric Indian Tribes is intended to ensure that the claimant has a reasonable connection with the materials. Where human remains and funerary objects are concerned, the Committee is aware that it may be extremely difficult, unfair, or even impossible in many instances for claimants to show an absolute continuity from present day Indian Tribes to older, prehistoric remains without some reasonable gaps in the historic or prehistoric record. In such instances, a finding of cultural affiliation should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed and should not be precluded solely because of gaps in the record (Senate 1990:9).

Executing the provisions of the Graves Protection and Repatriation Act involves three primary participants: Federal agencies, all museums receiving Federal funds (including State, local, and private institutions), and Indian Tribes and Native Hawaiian organizations. Oversight of and directions for the activities required of these three types of organizations are to be provided by the Secretary of the Interior and the NAGPRA Review Committee established by the statute.

The kinds of remains and the artifacts covered by provisions of the statute are: (1) human remains and associated funerary objects; (2) unassociated funerary objects; (3) sacred objects; and (4) objects of cultural patrimony.

"Human remains" are not defined in the statute, and consequently all kinds of Native American human remains are covered. This means isolated human bones, teeth, or other kinds of bodily remains that may have been disturbed from a burial site are still subject to the provisions of this statute.

"Associated funerary objects" are objects reasonably believed to have been placed with human remains as part of a death rite or ceremony. The use of the adjective "associated" refers to the fact that these items retain their association with the human remains with which they were found and that these human remains can be located. It applies to all objects that are stored together as well as objects for which adequate records exist permitting a reasonable reassociation between the funerary objects and the human remains that they were buried with.

It frequently occurs in archeological sites that artifacts seemingly from burials were not placed with the human remains as part of a death rite, rather they have been introduced into the burial later by natural processes or cultural activities unrelated to death rites or ceremonies. These latter objects would not be considered funerary objects.

"Unassociated funerary objects" are items that "...as a part of a death rite or ceremony of a culture are reasonably believed to have been placed with individual human remains either at the time of death or later...", but for which the human remains are not in the possession or control of the museum or Federal agency. These objects also must meet one of two further conditions. They must be identified by a preponderance of the evidence as either "... related to specific individuals or families or to known human remains..." or "...as having been removed from a specific burial site of an individual culturally affiliated with a particular Indian tribe (Sec. 2(3)(B)).

"Sacred objects" are defined in the statute as "...specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents…(Sec. 2(3)(C))" Further discussion of this term is supplied by the Senate Committee report:

There has been some concern expressed that any object could be imbued with sacredness in the eyes of a Native American, from an ancient pottery shard to an arrowhead. The Committee does not intend this result. The primary purpose of the object is that the object must be used in a Native American religious ceremony in order to fall within the protection afforded by the bill (Senate 1990:7).

"Objects of cultural patrimony" are defined in the statute as having "...ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual...(Sec. 2(3)(D))". The key provision in this definition is whether the property was of such central importance to the Tribe or group that it was owned communally. The potential vagueness of this term again produced comment by the Senate Committee:

The Committee intends this term to refer to only those items that have such great importance to an Indian Tribe or to the Native Hawaiian culture that they cannot be conveyed, appropriated or transferred by an individual member. Objects of Native American cultural patrimony would include items such as Zuni War Gods, the Wampum belts of the Iroquois, and other objects of a similar character and significance to the Indian Tribe as a whole (Senate 1990:7-8).

Many objects in archeological or ethnographic collections are not subject to the statute, because they never had a burial, funerary, religious, or cultural patrimonial context in the culture that they were part of. Such objects would be retained in existing repositories with appropriate treatments and care. When archeological investigations or unanticipated discoveries on Federal or Tribal land result in the recovery of such items, they are to be treated and disposed of according the requirements of the appropriate archeological or historic preservation laws.

Further Readings and Links

  • Native American Graves Protection and Repatriation Act (25 U.S. Code 3001 et seq.), statute text.
  • Native American Graves Protection and Repatriation Act Regulations; Final Rule (43 CFR 10), regulation text.
  • National NAGPRA Program, regulation text and legislative history.
  • Managing Archeological Collections: NAGPRA
  • McManamon, Francis P.
    • 1992Managing Repatriation: Implementing the Native American Graves Protection and Repatriation Act. CRM 15(5):9-12.
  • McManamon, Francis P.
    • 1994Changing Relationships Between Native Americans and Archaeologists. Historic Preservation Forum 8(2):15-20.
  • National Park Service
    • 1995Special Report: The Native American Graves Protection and Repatriation Act. Federal Archeology Fall/Winter, 1995. Archeology Program, National Park Service, Washington, DC.
  • National Park Service
    • 1997Special Issue on Consultation. Common Ground 2(¾). Archeology Program, National Park Service, Washington, DC.
  • Pace, Julie A., editor
    • 1992Symposium: The Native American Graves Protection and Repatriation Act of 1990 and State Repatriation-related Legislation. Arizona State Law Journal 24(1):xi-562.
  • United States House of Representatives, Committee on Interior and Insular Affairs
    • 1990House Report 101-877, 101st Congress, 2nd Session. Washington, DC.
  • United States Senate, Select Committee on Indian Affairs
    • 1990Senate Report Number 473, 101st Congress, 2nd Session.

Sources of Information

  • Park NAGPRA Program, National Park Service, Denver, CO. Mary S. Carroll, National Park NAGPRA Program Lead, (303) 969 2300.
  • National NAGPRA Program, Office of the Associate Director, Cultural Resources, National Park Service, Washington, DC. (202) 354-2201.
National NAGRA FAQ

National NAGPRA has developed answers to the most frequently asked questions regarding NAGPRA and its implementing regulations. For additional information on the specialized terms used in NAGPRA, see the NAGPRA Glossary.

What is NAGPRA?
The Native American Graves Protection and Repatriation Act is a Federal law passed in 1990. NAGPRA provides a process for museums and Federal agencies to return certain Native American cultural items -- human remains, funerary objects, sacred objects, or objects of cultural patrimony -- to lineal descendants, and culturally affiliated Indian tribes and Native Hawaiian organizations. NAGPRA includes provisions for unclaimed and culturally unidentifiable Native American cultural items, intentional and inadvertent discovery of Native American cultural items on Federal and tribal lands, and penalties for noncompliance and illegal trafficking. In addition, NAGPRA authorizes Federal grants to Indian tribes, Native Hawaiian organizations, and museums to assist with the documentation and repatriation of Native American cultural items, and establishes the Native American Graves Protection and Repatriation Review Committee to monitor the NAGPRA process and facilitate the resolution of disputes that may arise concerning repatriation under NAGPRA.


Who is responsible for complying with NAGPRA?
All Federal agencies are subject to NAGPRA. All public and private museums that have received Federal funds, other than the Smithsonian Institution, are subject to NAGPRA. (Repatriation by the Smithsonian Institution is governed by the National Museum of the American Indian Act of 1989, 20 U.S.C. 80q.)


What is the repatriation process under NAGPRA?
The principle steps of the NAGPRA repatriation process include --

  • Federal agencies and museums must identify cultural items in their collections that are subject to NAGPRA, and prepare inventories and summaries of the items.
  • Federal agencies and museums must consult with lineal descendants, Indian tribes, and Native Hawaiian organizations regarding the identification and cultural affiliation of the cultural items listed in their NAGPRA inventories and summaries.
  • Federal agencies and museums must send notices to lineal descendants, Indian tribes, and Native Hawaiian organizations describing cultural items and lineal descendancy or cultural affiliation, and stating that the cultural items may be repatriated. The law requires the Secretary of the Interior to publish these notices in the Federal Register.

For more information, go to Law and Regulations.


Who may claim Native American cultural items under NAGPRA?
NAGPRA recognizes claims by lineal descendants, Indian tribes, and Native Hawaiian organizations.

An Indian tribe is any tribe, band, nation, or other organized group or community of Indians that is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. The Department of the Interior has interpreted the definition of "Indian tribe" as applying to approximately 770 Indian tribes and Alaska Native villages that are recognized by the Bureau of Indian Affairs.

A Native Hawaiian organization includes any organization that: (a) serves and represents the interests of Native Hawaiians, (b) has as a primary and stated purpose the provision of services to Native Hawaiians, and (c) has expertise in Native Hawaiian Affairs, and includes the Office of Hawaiian Affairs and Hui Malama I Na Kupuna `O Hawai`i Nei. The Department of the Interior has interpreted this definition to also include the Hawaiian island burial councils and various 'Ohanas (extended families).


We are a nonfederally recognized tribe. May we still participate in the NAGPRA process?
Under NAGPRA, only Federally recognized Native American tribes and Native Hawaiian organizations may claim cultural items. NAGPRA does not require museums and Federal agencies to consult with nonfederally recognized tribes. However, the Native American Graves Protection and Repatriation Review Committee has recognized that there are some cases in which nonfederally recognized tribes may be appropriate claimants for cultural items. Museums, if they wish, may consult with nonfederally recognized tribes. Museums and Federal agencies that wish to return Native American human remains and cultural items to nonfederally recognized tribes must make a request for review of a proposed disposition to the Review Committee.


Our museum has never submitted a NAGPRA inventory or summary, and we are concerned that we may be out of compliance. What should we do?
The National NAGPRA program recognizes that making collections information accessible to lineal descendants, Indian tribes, and Native Hawaiian organizations is an important goal of NAGPRA. The National NAGPRA program provides technical assistance to museums and Federal agencies that need to prepare NAGPRA summaries and inventories for the first time. You may contact National NAGPRA staff by telephone or e-mail, and a staff member will be assigned to work with you. National NAGPRA staff members do not initiate civil penalties investigations.


What do "control" and "possession" mean?
NAGPRA says that museums and Federal agencies must prepare inventories and summaries of cultural items in their control or possession. "Control" means having a sufficient legal interest in human remains, funerary objects, sacred objects, or objects of cultural patrimony to lawfully permit the museum or Federal agency to treat the objects as part of its collection for purposes of NAGPRA, whether or not the museum or Federal agency has physical custody of the human remains or objects.

In other words, control is having a legal interest with or without physical custody, whilepossession is having physical custody. For example, if a museum has physical custody of Native American human remains or cultural items, but lacks legal interest (for example, when a museum is holding a collection on loan from another institution or a private collector), then the museum does not have control of these remains or items for NAGPRA purposes. For more information, see the NAGPRA Glossary and Law and Regulations.


What's the difference between "associated" and "unassociated" funerary objects in NAGPRA?
Both associated and unassociated funerary objects are cultural items that are reasonably believed to have been placed with individual human remains either at the time of death, or later as part of the death rite or ceremony of a culture. Under NAGPRA, funerary objects are considered to be "unassociated" if the human remains with which the objects were placedare not in the possession or control of a museum or Federal agency. Funerary objects are considered to be "associated" if the human remains with which the objects were placed arein the possession or control of a museum or Federal agency.

Note that a funerary object is an associated funerary object if the human remains are in the possession or control of any museum or Federal agency, not necessarily the same museum or agency that has possession or control of the funerary object. Also note that "associated funerary objects" includes those items that were made exclusively for burial purposes or to contain human remains.

For more information, see the NAGPRA Glossary and Law and Regulations.


What's the difference between "repatriation" and "disposition" as used in NAGPRA?
The term repatriation means the transfer of legal interest in Native American human remains and cultural items to lineal descendants, Indian tribes, and Native Hawaiian organizations. The term disposition has been used for the Review Committee development of a process regarding culturally unidentifiable Native American human remains. The rule 43 CFR 10.11 became final March 2010. In effect, transfer of interest in Native American human remains and cultural items is repatriation, regardless of whether they are regarded as culturally affiliated or culturally unidentifiable.

In NAGPRA, the term disposition refers to the return of cultural items excavated or inadvertently discovered on Federal or tribal lands after November 16, 1990, to lineal descendants, Indian Tribes, and Native Hawaiian organizations. 

For more information, see the NAGPRA Glossary and Law and Regulations.


If Native American remains are discovered during a construction project, does NAGPRA apply?
The excavation and inadvertent discovery provisions of NAGPRA apply only to Federal and tribal lands. Under NAGPRA, tribal lands are lands (including private lands) within the exterior boundaries of an Indian reservation. If the burial ground is not on Federal or tribal land, then the excavation and inadvertent discovery provisions of NAGPRA do not apply. However, other State and Federal cultural preservation laws may apply, and State or local cemetery laws may also apply. For information on other State and Federal cultural preservation laws, contact your State Historic Preservation Office. For details on the excavation and inadvertent discovery provisions of NAGPRA, go to Law and Regulations.


We recently completed a repatriation. Can we apply for a NAGPRA repatriation grant to reimburse our costs?
No. Applications for NAGPRA repatriation grants must be submitted well in advance of repatriation activities. National NAGPRA recommends that repatriation grants be submitted at least 6 weeks in advance of the repatriation. For more information, go to Grants.


Our tribe is being overwhelmed by consultation requests related to Federal undertakings and inadvertent discoveries. Are there grant funds available to help?
NAGPRA authorizes the Secretary of the Interior to make grants to Indian tribes and Native Hawaiian organization for the purpose of assisting such tribes and organizations in the repatriation of Native American cultural items. These grants are limited to activities related to the documentation and repatriation of collections from museums, and may not be used to fund consultation and other activities related to undertakings, inadvertent discoveries, and excavations. However, funds may be available through the National Park Service Tribal Preservation program. The Tribal Preservation program administers Historic Preservation Fund Grants to Indian Tribes, Alaskan Natives, and Native Hawaiian Organizations, which may be used for cultural preservation projects.


How many Native American human remains and cultural items have been repatriated since the passage of NAGPRA?
There is no single source for this information. While museums and Federal agencies are required to keep their own record of repatriations, NAGPRA does not require museums and Federal agencies to report repatriations to the Secretary of the Interior or to the National Park Service. Museums and Federal agencies are required, however, to publish notices in the Federal Register when they have determined that Native American human remains, funerary objects, sacred objects, and/or objects of cultural patrimony are culturally affiliated and are eligible for repatriation. The National NAGPRA program compiles statistics yearly on the total number of Native American human remains, funerary objects, sacred objects, and objects of cultural for which Federal Register notices have been published. The current statistics (updated on September 30, 2014) are as follows --

Human remains: 50,518 individuals
Associated funerary objects: 1,185,948 (includes many small items, such as beads)
Unassociated funerary objects: 219,956 (includes many small items, such as beads)
Sacred objects: 4,914
Objects of cultural patrimony: 8,118
Objects that are both sacred and patrimonial: 1,624

Our tribe's contact information in the Native American Consultation Database is incorrect. How can we update the information?
The contact information provided in the Native American Consultation Database (NACD)is based on the list of federally recognized Indian tribes maintained by the Bureau of Indian Affairs. To change your contact information as it appears in NACD, send a letter with the new contact information to National NAGPRA. The letter must be an original (no photocopies, please) on tribal letterhead, signed by an authorized tribal official.


Our museum has cultural items that were originally collected from Federal land. Does our museum have NAGPRA responsibility for these cultural items?
Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony that were originally from Federal lands are usually under the control of the Federal agency that managed or manages the land from which the human remains or other cultural items were removed. In such cases, it is the Federal agency, and not the museum, that has the responsibility for carrying out the NAGPRA process. The museum may wish to contact the appropriate Federal agency to discuss how the NAGPRA process will be completed. Museums should also be aware that Federal archeological collections in nonfederal repositories are also subject to Federal regulation 36 CFR 79, "Curation of Federally-Owned and Administered Archeological Collections." For more information, seeMuseums and the NAGPRA Glossary.


Does NAGPRA apply to cultural items that originate outside of the United States?
No. The NAGPRA regulations "apply to human remains, funerary objects, sacred objects, or objects of cultural patrimony which are indigenous to Alaska, Hawaii, and the continental United States, but not to territories of the United States" [43 CFR 10.1(b)(2)]. For more information, go to International Repatriation.


Our tribe has learned that a museum located in another country has control of cultural items that may be culturally affiliated with us. Does NAGPRA apply to institutions outside the United States?
No. NAGPRA is United States law, and applies to United States museums and Federal agencies. However, the United States does have agreements with many foreign nations regarding the movement of cultural property across borders. For more information, go toInternational Repatriation.

When is a written plan of action (POA) required under NAGPRA with respect to Federal lands? 
Under the NAGPRA regulations (43 C.F.R. 10.3 and 10.5), a Federal agency must prepare, approve, and sign a POA if the agency intends to excavate or remove, or leave in place NAGPRA cultural items when these cultural items are exposed or are found already-exposed, and does not wish for activity in the area of the exposed cultural items to halt. Excavating or removing, or leaving in place cultural items under a POA is known as an "intentional excavation." Exposing or finding already-exposed cultural items without a POA is known as a "discovery." When a discovery occurs, any activity taking place in the area of the discovery must cease for 30 days. Under the regulations at 43 C.F.R. 10.4, the responsible agency official must initiate consultation on a discovery pursuant to section 10.5 of the regulations. Consultation, in turn, must be followed by an approved and signed POA (43 C.F.R. 10.5(e)). The regulations provide no exceptions to this rule. Thus, the  agency must prepare, approve, and sign a POA even if no on-going activity is to occur.  A POA must, at minimum, comply with the requirements at section 10.3(b)(1) of the regulations (which governs an "intentional excavation"). Following the effective date of the POA, exposing or finding already-exposed cultural items within the geographical area covered by the POA will be an "intentional excavation," and will be excavated or removed, or left in place according to the terms of the POA.

For more information, go to Law and Regulations.

NAGPRA Final Rule, 43 CFR 10

Final Rule, 43 CFR 10

October 1, 2003

[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR10]

[Page 213-239]

TITLE 43--PUBLIC LANDS: INTERIOR

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS

Subpart A--Introduction

Sec.
10.1 Purpose and applicability.

10.2 Definitions

Subpart B--Human Remains, Funerary Objects, Sacred Objects, or Objects 
of Cultural Patrimony From Federal or Tribal Lands

10.3 Intentional archaeological excavations.
10.4 Inadvertent discoveries.
10.5 Consultation.
10.6 Custody.
10.7 Disposition of unclaimed human remains, funerary objects, sacred 
objects, or objects of cultural patrimony. [Reserved]

Subpart C--Human Remains, Funerary Objects, Sacred Objects, or Objects 
of Cultural Patrimony in Museums and Federal Collections

10.8 Summaries.
10.9 Inventories.
10.10 Repatriation.
10.11 Disposition of culturally unidentifiable human remains. [Reserved]
10.12 Civil penalties.
10.13 Future applicability. [Reserved]

Subpart D--General

10.14 Lineal descent and cultural affiliation.
10.15 Limitations and remedies.
10.16 Review committee.
10.17 Dispute resolution.

Appendix A to Part 10--Sample Summary.
Appendix B to Part 10--Sample Notice of Inventory Completion.

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

Source: 60 FR 62158, Dec. 4, 1995, unless otherwise noted.

Subpart A--Introduction

Sec. 10.1 Purpose and applicability.

(a) Purpose. These regulations carry out provisions of the Native  American Graves Protection and Repatriation Act of 1990 (Pub.L. 101-601;  25 U.S.C. 3001-3013;104 Stat. 3048-3058). These regulations develop a systematic process for determining the rights of lineal descendants and  Indian tribes and Native Hawaiian organizations to certain Native  American human remains, funerary objects, sacred objects, or objects of  cultural patrimony with which they are affiliated. (b) Applicability. (1) These regulations pertain to the  identification and appropriate disposition of human remains, funerary  objects, sacred objects, or objects of cultural patrimony that are: (i) In Federal possession or control; or (ii) In the possession or control of any institution or State or local government receiving Federal funds; or (iii) Excavated intentionally or discovered inadvertently on Federal  or tribal lands. (2) These regulations apply to human remains, funerary objects,  sacred objects, or objects of cultural patrimony which are indigenous to  Alaska, Hawaii, and the continental United States, but not to territories of the United States. (3) Throughout these regulations are decision points which determine  their applicability 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 these regulations inapplicable  is subject to review pursuant to section 15 of the Act.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Sec. 10.2 Definitions.

In addition to the term Act, which means the Native American Graves Protection and Repatriation Act as described above, definitions used in these regulations are grouped in seven classes: Parties required to comply with these regulations; Parties with standing to make claims under these regulations; Parties responsible for implementing these regulations; Objects covered by these regulations; Cultural affiliation; Types of land covered by these regulations; and Procedures required by these regulations. (a) Who must comply with these regulations? (1) Federal agency means any department, agency, or instrumentality of the United States. Such term does not include the Smithsonian Institution as specified in section 2 (4) of the Act. (2) Federal agency official means any individual authorized by delegation of authority within a Federal agency to perform the duties relating to these regulations. (3) Museum means any institution or State or local government agency (including any institution of higher learning) that has possession of, or control over, human remains, funerary objects, sacred objects, or objects of cultural patrimony and receives Federal funds. (i) The term ``possession'' means having physical custody of human remains, funerary objects, sacred objects, or objects of cultural patrimony with a sufficient legal interest to lawfully treat the objects as part of its collection for purposes of these regulations. Generally, a museum or Federal agency would not be considered to have possession of human remains, funerary objects, sacred objects, or objects of cultural patrimony on loan from another individual, museum, or Federal agency. (ii) 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. Generally, a museum or Federal agency that has loaned human remains, funerary objects, sacred objects, or objects of cultural patrimony to another individual, museum, or Federal agency is considered to retain control of those human remains, funerary objects, sacred objects, or objects of cultural patrimony for purposes of these regulations. (iii) The phrase ``receives Federal funds'' means the receipt of funds by a museum after November 16, 1990, from a Federal agency through any grant, loan, contract (other than a procurement contract), or other arrangement by which a Federal agency makes or made available to a museum aid in the form of funds. Federal funds provided for any purpose that are received by a larger entity of which the museum is a part are considered Federal funds for the purposes of these regulations. For example, if a museum is a part of a State or local government or a private university and the State or local government or private university receives Federal funds for any purpose, the museum is considered to receive Federal funds for the purpose of these regulations.(4) Museum official means the individual within a museum designated as being responsible for matters relating to these regulations.(5) Person means an individual, partnership, corporation, trust, institution, association, or any other private entity, or, any official, employee, agent, department, or instrumentality of the United States, or of any Indian tribe or Native Hawaiian organization, or of any State or political subdivision thereof that discovers or discovered human remains, funerary objects, sacred objects or objects of cultural patrimony on Federal or tribal lands after November 16, 1990. (b) Who has standing to make a claim under these regulations? (1) Lineal descendant means an individual tracing his or her ancestry directly and without interruption by means of the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization or by the common law system of descendance to a known Native American individual whose remains, funerary objects, or sacred objects are being claimed under these regulations.(2) Indian tribe means any tribe, band, nation, or other organized Indian group or community of Indians, including any Alaska Native village or corporation as defined in or established by the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. The Secretary will distribute a list of Indian tribes for the purposes of carrying out this statute through the Departmental Consulting Archeologist. (3)(i) Native Hawaiian organization means any organization that:(A) Serves and represents the interests of Native Hawaiians;(B) Has as a primary and stated purpose the provision of services to Native Hawaiians; and (C) Has expertise in Native Hawaiian affairs.(ii) The term Native Hawaiian means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. Such organizations must include the Office of Hawaiian Affairs and Hui Malama I Na Kupuna 'O Hawai'i Nei.(4) Indian tribe official means the principal leader of an Indian tribe or Native Hawaiian organization or the individual officially designated by the governing body of an Indian tribe or Native Hawaiian organization or as otherwise provided by tribal code, policy, or established procedure as responsible for matters relating to these regulations.(c) Who is responsible for carrying out these regulations? (1) Secretary means the Secretary of the Interior.2) Review Committee means the advisory committee established pursuant to section 8 of the Act.(3) Departmental Consulting Archeologist means the official of the Department of the Interior designated by the Secretary as responsible for the administration of matters relating to these regulations. Communications to the Departmental Consulting Archeologist should be addressed to:

Departmental Consulting Archeologist National Park Service, PO Box 37127 Washington, DC 20013-7127.

(d) What objects are covered by these regulations? The Act covers four types of Native American objects. The term Native American means of, or relating to, a tribe, people, or culture indigenous to the United States, including Alaska and Hawaii.(1) Human remains means the physical remains of the body of a person of Native American ancestry. The term does not include remains or portions of remains that may reasonably be determined to have been freely given or naturally shed by the individual from whose body they were obtained, such as hair made into ropes or nets. For the purposes of determining cultural affiliation, human remains incorporated into a funerary object, sacred object, or object of cultural patrimony, as defined below, must be considered as part of that item.(2) Funerary objects means 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 with or near individual human remains. Funerary objects must be identified by a preponderance of the evidence as having been removed from a specific burial site of an individual affiliated with a particular Indian tribe or Native Hawaiian organization or as being related to specific individuals or families or to known human remains. The term burial site means any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which, as part of the death rite or ceremony of a culture, individual human remains were deposited, and includes rock cairns or pyres which do not fall within the ordinary definition of gravesite. For purposes of completing the summary requirements in Sec. 10.8 and the inventory requirements of Sec. 10.9:(i) Associated funerary objects means those funerary objects for which the human remains with which they were placed intentionally are also in the possession or control of a museum or Federal agency. Associated funerary objects also means those funerary objects that were made exclusively for burial purposes or to contain human remains. (ii) Unassociated funerary objects means those funerary objects for which the human remains with which they were placed intentionally are not in the possession or control of a museum or Federal agency. Objects that were displayed with individual human remains as part of a death rite or ceremony of a culture and subsequently returned or distributed according to traditional custom to living descendants or other individuals are not considered unassociated funerary objects. (3) Sacred objects means items that are specific ceremonial objects  needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents. 

While many items, from ancient pottery sherds to arrowheads, might be imbued with sacredness in the eyes of an individual, these regulations are specifically limited to objects that were devoted to a traditional Native American religious ceremony or ritual and which have religious significance or function in the continued observance or renewal of such ceremony. The term traditional religious leader means a person who is recognized by members of an Indian tribe or Native Hawaiian organization as: (i) Being responsible for performing cultural duties relating to the ceremonial or religious traditions of that Indian tribe or Native Hawaiian organization, or (ii) Exercising a leadership role in an Indian tribe or Native Hawaiian organization based on the tribe or organization's cultural, ceremonial, or religious practices.(4) Objects of cultural patrimony means items having ongoing historical, traditional, or cultural importance central to the Indian tribe or Native Hawaiian organization itself, rather than property owned by an individual tribal or organization member. These objects are of such central importance that they may not be alienated, appropriated, or conveyed by any individual tribal or organization member. Such objects must have been considered inalienable by the culturally affiliated Indian tribe or Native Hawaiian organization at the time the object was separated from the group. Objects of cultural patrimony include items such as Zuni War Gods, the Confederacy Wampum Belts of the Iroquois, and other objects of similar character and significance to the Indian tribe or Native Hawaiian organization as a whole.(e) What is cultural affiliation? Cultural affiliation means that there is a relationship of shared group identity which can reasonably be 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, linguistic, folklore, oral tradition, historical evidence, or other information or expert opinion -- reasonably leads to such a conclusion.(f) What types of lands do the excavation and discovery provisions of these regulations apply to? (1) Federal lands means any land other than tribal lands that are controlled or owned by the United States Government, including lands selected by but not yet conveyed to Alaska Native Corporations and groups organized pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.). United States ``control,'' as used in this definition, refers to those lands not owned by the United States but in which the United States has a legal interest sufficient to permit it to apply these regulations without abrogating the otherwise existing legal rights of a person.(2) Tribal lands means all lands which:(i) 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; or(ii) Comprise dependent Indian communities as recognized pursuant to 18 U.S.C. 1151; or(iii) Are administered for the benefit of Native Hawaiians pursuant to the Hawaiian Homes Commission Act of 1920 and section 4 of the Hawaiian Statehood Admission Act (Pub.L. 86-3; 73 Stat. 6).(iv) Actions authorized or required under these regulations will not apply to tribal lands to the extent that any action would result in a taking of property without compensation within the meaning of the Fifth Amendment of the United States Constitution.(g) What procedures are required by these regulations? (1) Summary means the written description of collections that may contain unassociated funerary objects, sacred objects, and objects of cultural patrimony required by Sec. 10.8 of these regulations.(2) Inventory means the item-by-item description of human remains and associated funerary objects.(3) Intentional excavation means the planned archeological removal of human remains, funerary objects, sacred objects, or objects of cultural patrimony found under or on the surface of Federal or tribal lands pursuant to section 3 (c) of the Act.(4) Inadvertent discovery means the unanticipated encounter or detectionof human remains, funerary objects, sacred objects, or objects of cultural patrimony found under or on the surface of Federal or tribal lands pursuant to section 3 (d) of the Act.[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]Subpart B--Human Remains, Funerary Objects, Sacred Objects, or Objects of Cultural Patrimony From Federal or Tribal Lands Sec. 10.3 Intentional archaeological excavations.(a) General. This section carries out section 3 (c) of the Act regarding the custody of human remains, funerary objects, sacred objects, or objects of cultural patrimony that are excavated intentionally from Federal or tribal lands after November 16, 1990.(b) Specific Requirements. These regulations permit the intentional excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony from Federal or tribal lands only if:(1) The objects are excavated or removed following the requirements of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa et seq.) and its implementing regulations. Regarding private lands within the exterior boundaries of any Indian reservation, the Bureau of Indian Affairs (BIA) will serve as the issuing agency for any permits required under the Act. For BIA procedures for obtaining such permits, see 25 CFR part 262 or contact the Deputy Commissioner of Indian Affairs, Department of the Interior, Washington, DC 20240. Regarding lands administered for the benefit of Native Hawaiians pursuant to the Hawaiian Homes Commission Act, 1920, and section 4 of Pub. L. 86-3, the Department of Hawaiian Home Lands will serve as the issuing agency for any permits required under the Act, with the Hawaii State Historic Preservation Division of the Department of Land and Natural Resources acting in an advisory capacity for such issuance. Procedures and requirements for issuing permits will be consistent with those required by the ARPA and its implementing regulations;(2) The objects are excavated after consultation with or, in the case of tribal lands, consent of, the appropriate Indian tribe or Native Hawaiian organization pursuant to Sec. 10.5;(3) The disposition of the objects is consistent with their custody as described in Sec. 10.6; and(4) Proof of the consultation or consent is shown to the Federal agency official or other agency official responsible for the issuance of the required permit.(c) Procedures. (1) The Federal agency official must take reasonable steps to determine whether a planned activity may result in the excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony from Federal lands. Prior to issuing any approvals or permits for activities, the Federal agency official must notify in writing the Indian tribes or Native Hawaiian organizations that are likely to be culturally affiliated with any human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated. The Federal agency official must also notify any present-day Indian tribe which aboriginally occupied the area of the planned activity and any other Indian tribes or Native Hawaiian organizations that the Federal agency official reasonably believes are likely to have a cultural relationship to the human remains, funerary objects, sacred objects, or objects of cultural patrimony that are expected to be found. The notice must be in writing and describe the planned activity, its general location, the basis upon which it was determined that human remains, funerary objects, sacred objects, or objects of cultural patrimony may be excavated, and, the basis for determining likely custody pursuant to Sec. 10.6. The notice must also propose a time and place for meetings or consultations to further consider the activity, the Federal agency's proposed treatment of any human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated, and the proposed disposition of any excavated human remains, funerary objects, sacred objects,or objects of cultural patrimony. Written notification should be followed up by telephone contact if there is no response in 15 days. 

Consultation must be conducted pursuant to Sec. 10.5. (2) Following consultation, the Federal agency official must 

complete a written plan of action (described in Sec. 10.5(e)) and 
execute the actions called for in it.
(3) If the planned activity is also subject to review under section 
106 of the National Historic Preservation Act (16 U.S.C. 470 et seq.), 
the Federal agency official should coordinate consultation and any 
subsequent agreement for compliance conducted under that Act with the 
requirements of Sec. 10.3 (c)(2) and Sec. 10.5. Compliance with these 
regulations does not relieve Federal agency officials of requirements to 
comply with section 106 of the National Historic Preservation Act (16 
U.S.C. 470 et seq.).
(4) If an Indian tribe or Native Hawaiian organization receives 
notice of a planned activity or otherwise becomes aware of a planned 
activity that may result in the excavation of human remains, funerary 
objects, sacred objects, or objects of cultural patrimony on tribal 
lands, the Indian tribe or Native Hawaiian organization may take 
appropriate steps to:
(i) Ensure that the human remains, funerary objects, sacred objects, 
or objects of cultural patrimony are excavated or removed following 
Sec. 10.3 (b), and
(ii) Make certain that the disposition of any human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
excavated intentionally or discovered inadvertently as a result of the 
planned activity are carried out following Sec. 10.6.

Sec. 10.4 Inadvertent discoveries.

(a) General. This section carries out section 3 (d) of the Act 
regarding the custody of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony that are discovered 
inadvertently on Federal or tribal lands after November 16, 1990.
(b) Discovery. Any person who knows or has reason to know that he or 
she has discovered inadvertently human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal or tribal lands 
after November 16, 1990, must provide immediate telephone notification 
of the inadvertent discovery, with written confirmation, to the 
responsible Federal agency official with respect to Federal lands, and, 
with respect to tribal lands, to the responsible Indian tribe official. 
The requirements of these regulations regarding inadvertent discoveries 
apply whether or not an inadvertent discovery is duly reported. If 
written confirmation is provided by certified mail, the return receipt 
constitutes evidence of the receipt of the written notification by the 
Federal agency official or Indian tribe official.
(c) Ceasing activity. If the inadvertent discovery occurred in 
connection with an on-going activity on Federal or tribal lands, the 
person, in addition to providing the notice described above, must stop 
the activity in the area of the inadvertent discovery and make a 
reasonable effort to protect the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony discovered inadvertently.
(d) Federal lands. (1) As soon as possible, but no later than three 
(3) working days after receipt of the written confirmation of 
notification with respect to Federal lands described in Sec. 10.4 (b), 
the responsible Federal agency official must:
(i) Certify receipt of the notification;
(ii) Take immediate steps, if necessary, to further secure and 
protect inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, including, as appropriate, 
stabilization or covering;
(iii) Notify by telephone, with written confirmation, the Indian 
tribes or Native Hawaiian organizations likely to be culturally 
affiliated with the inadvertently discovered human remains, funerary 
objects, sacred objects, or objects of cultural patrimony, the Indian 
tribe or Native Hawaiian organization which aboriginally occupied the 
area, and any other Indian tribe or Native Hawaiian organization that is 
reasonably known to have a cultural relationship to the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony. This 
notification

[[Page 220]]

must include pertinent information as to kinds of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
discovered inadvertently, their condition, and the circumstances of 
their inadvertent discovery;
(iv) Initiate consultation on the inadvertent discovery pursuant to 
Sec. 10.5;
(v) If the human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be excavated or removed, follow the 
requirements and procedures in Sec. 10.3 (b) of these regulations; and
(vi) Ensure that disposition of all inadvertently discovered human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is carried out following Sec. 10.6.
(2) Resumption of activity. The activity that resulted in the 
inadvertent discovery may resume thirty (30) days after certification by 
the notified Federal agency of receipt of the written confirmation of 
notification of inadvertent discovery if the resumption of the activity 
is otherwise lawful. The activity may also resume, if otherwise lawful, 
at any time that a written, binding agreement is executed between the 
Federal agency and the affiliated Indian tribes or Native Hawaiian 
organizations that adopt a recovery plan for the excavation or removal 
of the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony following Sec. 10.3 (b)(1) of these regulations. The 
disposition of all human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be carried out following Sec. 10.6.
(e) Tribal lands. (1) As soon as possible, but no later than three 
(3) working days after receipt of the written confirmation of 
notification with respect to Tribal lands described in Sec. 10.4 (b), 
the responsible Indian tribe official may:
(i) Certify receipt of the notification;
(ii) Take immediate steps, if necessary, to further secure and 
protect inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, including, as appropriate, 
stabilization or covering;
(iii) If the human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be excavated or removed, follow the 
requirements and procedures in Sec. 10.3 (b) of these regulations; and
(iv) Ensure that disposition of all inadvertently discovered human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is carried out following Sec. 10.6.
(2) Resumption of Activity. The activity that resulted in the 
inadvertent discovery may resume if otherwise lawful after thirty (30) 
days of the certification of the receipt of notification by the Indian 
tribe or Native Hawaiian organization.
(f) Federal agency officials. Federal agency officials should 
coordinate their responsibilities under this section with their 
emergency discovery responsibilities under section 106 of the National 
Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 36 CFR 800.11 
or section 3 (a) of the Archeological and Historic Preservation Act (16 
U.S.C. 469 (a-c)). Compliance with these regulations does not relieve 
Federal agency officials of the requirement to comply with section 106 
of the National Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 
36 CFR 800.11 or section 3 (a) of the Archeological and Historic 
Preservation Act (16 U.S.C. 469 (a-c)).
(g) Notification requirement in authorizations. All Federal 
authorizations to carry out land use activities on Federal lands or 
tribal lands, including all leases and permits, must include a 
requirement for the holder of the authorization to notify the 
appropriate Federal or tribal official immediately upon the discovery of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony pursuant to Sec. 10.4 (b) of these regulations.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Sec. 10.5 Consultation.

Consultation as part of the intentional excavation or inadvertent 
discovery of human remains, funerary objects, sacred objects, or objects 
of cultural patrimony on Federal lands must be conducted in accordance 
with the following requirements.

[[Page 221]]

(a) Consulting parties. Federal agency officials must consult with 
known lineal descendants and Indian tribe officials:
(1) From Indian tribes on whose aboriginal lands the planned 
activity will occur or where the inadvertent discovery has been made; 
and
(2) From Indian tribes and Native Hawaiian organizations that are, 
or are likely to be, culturally affiliated with the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony; and
(3) From Indian tribes and Native Hawaiian organizations that have a 
demonstrated cultural relationship with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony.
(b) Initiation of consultation. (1) Upon receiving notice of, or 
otherwise becoming aware of, an inadvertent discovery or planned 
activity that has resulted or may result in the intentional excavation 
or inadvertent discovery of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal lands, the 
responsible Federal agency official must, as part of the procedures 
described in Sec. Sec. 10.3 and 10.4, take appropriate steps to identify 
the lineal descendant, Indian tribe, or Native Hawaiian organization 
entitled to custody of the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony pursuant to Sec. 10.6 and 
Sec. 10.14. The Federal agency official shall notify in writing:
(i) Any known lineal descendants of the individual whose remains, 
funerary objects, sacred objects, or objects of cultural patrimony have 
been or are likely to be excavated intentionally or discovered 
inadvertently; and
(ii) The Indian tribes or Native Hawaiian organizations that are 
likely to be culturally affiliated with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that have been 
or are likely to be excavated intentionally or discovered inadvertently; 
and
(iii) The Indian tribes which aboriginally occupied the area in 
which the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony have been or are likely to be excavated intentionally 
or discovered inadvertently; and
(iv) The Indian tribes or Native Hawaiian organizations that have a 
demonstrated cultural relationship with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that have been 
or are likely to be excavated intentionally or discovered inadvertently.
(2) The notice must propose a time and place for meetings or 
consultation to further consider the intentional excavation or 
inadvertent discovery, the Federal agency's proposed treatment of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that may be excavated, and the proposed disposition of any 
intentionally excavated or inadvertently discovered human remains, 
funerary objects, sacred objects, or objects of cultural patrimony.
(3) The consultation must seek to identify traditional religious 
leaders who should also be consulted and seek to identify, where 
applicable, lineal descendants and Indian tribes or Native Hawaiian 
organizations affiliated with the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.
(c) Provision of information. During the consultation process, as 
appropriate, the Federal agency official must provide the following 
information in writing to the lineal descendants and the officials of 
Indian tribes or Native Hawaiian organizations that are or are likely to 
be affiliated with the human remains, funerary objects, sacred objects, 
or objects of cultural patrimony excavated intentionally or discovered 
inadvertently on Federal lands:
(1) A list of all lineal descendants and Indian tribes or Native 
Hawaiian organizations that are being, or have been, consulted regarding 
the particular human remains, funerary objects, sacred objects, or 
objects of cultural patrimony;
(2) An indication that additional documentation used to identify 
affiliation will be supplied upon request.
(d) Requests for information. During the consultation process, 
Federal agency officials must request, as appropriate, the following 
information from

[[Page 222]]

Indian tribes or Native Hawaiian organizations that are, or are likely 
to be, affiliated pursuant to Sec. 10.6 (a) with intentionally excavated 
or inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony:
(1) Name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains, 
funerary objects, sacred objects, or objects of cultural patrimony;
(2) Names and appropriate methods to contact lineal descendants who 
should be contacted to participate in the consultation process;
(3) Recommendations on how the consultation process should be 
conducted; and
(4) Kinds of cultural items that the Indian tribe or Native Hawaiian 
organization considers likely to be unassociated funerary objects, 
sacred objects, or objects of cultural patrimony.
(e) Written plan of action. Following consultation, the Federal 
agency official must prepare, approve, and sign a written plan of 
action. A copy of this plan of action must be provided to the lineal 
descendants, Indian tribes and Native Hawaiian organizations involved. 
Lineal descendants and Indian tribe official(s) may sign the written 
plan of action as appropriate. At a minimum, the plan of action must 
comply with Sec. 10.3 (b)(1) and document the following:
(1) The kinds of objects to be considered as cultural items as 
defined in Sec. 10.2 (b);
(2) The specific information used to determine custody pursuant to 
Sec. 10.6;
(3) The planned treatment, care, and handling of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
recovered;
(4) The planned archeological recording of the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
recovered;
(5) The kinds of analysis planned for each kind of object;
(6) Any steps to be followed to contact Indian tribe officials at 
the time of intentional excavation or inadvertent discovery of specific 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony;
(7) The kind of traditional treatment, if any, to be afforded the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony by members of the Indian tribe or Native Hawaiian 
organization;
(8) The nature of reports to be prepared; and
(9) The planned disposition of human remains, funerary objects, 
sacred objects, or objects of cultural patrimony following Sec. 10.6.
(f) Comprehensive agreements. Whenever possible, Federal Agencies 
should enter into comprehensive agreements with Indian tribes or Native 
Hawaiian organizations that are affiliated with human remains, funerary 
objects, sacred objects, or objects of cultural patrimony and have 
claimed, or are likely to claim, those human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated intentionally 
or discovered inadvertently on Federal lands. These agreements should 
address all Federal agency land management activities that could result 
in the intentional excavation or inadvertent discovery of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony. 
Consultation should lead to the establishment of a process for 
effectively carrying out the requirements of these regulations regarding 
standard consultation procedures, the determination of custody 
consistent with procedures in this section and Sec. 10.6, and the 
treatment and disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony. The signed agreements, or the 
correspondence related to the effort to reach agreements, must 
constitute proof of consultation as required by these regulations.
(g) Traditional religious leaders. The Federal agency official must 
be cognizant that Indian tribe officials may need to confer with 
traditional religious leaders prior to making recommendations. Indian 
tribe officials are under no obligation to reveal the identity of 
traditional religious leaders.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

[[Page 223]]

Sec. 10.6 Custody.

(a) Priority of custody. This section carries out section 3 (a) of 
the Act, subject to the limitations of Sec. 10.15, regarding the custody 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony excavated intentionally or discovered inadvertently 
in Federal or tribal lands after November 16, 1990. For the purposes of 
this section, custody means ownership or control of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
excavated intentionally or discovered inadvertently in Federal or tribal 
lands after November 16, 1990. Custody of these human remains, funerary 
objects, sacred objects, or objects of cultural patrimony is, with 
priority given in the order listed:
(1) In the case of human remains and associated funerary objects, in 
the lineal descendant of the deceased individual as determined pursuant 
to Sec. 10.14 (b);
(2) In cases where a lineal descendant cannot be ascertained or no 
claim is made, and with respect to unassociated funerary objects, sacred 
objects, and objects of cultural patrimony:
(i) In the Indian tribe on whose tribal land the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony were 
excavated intentionally or discovered inadvertently;
(ii) In the Indian tribe or Native Hawaiian organization that has 
the closest cultural affiliation with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony as determined 
pursuant to Sec. 10.14 (c); or
(iii) In circumstances in which the cultural affiliation of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony cannot be ascertained and the objects were excavated 
intentionally or discovered inadvertently on Federal land that is 
recognized by a final judgment of the Indian Claims Commission or the 
United States Court of Claims as the aboriginal land of an Indian tribe:
(A) In the Indian tribe aboriginally occupying the Federal land on 
which the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony were excavated intentionally or discovered 
inadvertently, or
(B) If it can be shown by a preponderance of the evidence that a 
different Indian tribe or Native Hawaiian organization has a stronger 
cultural relationship with the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, in the Indian tribe or Native 
Hawaiian organization that has the strongest demonstrated relationship 
with the objects.
(b) Custody of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony and other provisions of the Act apply to 
all intentional excavations and inadvertent discoveries made after 
November 16, 1990, including those made before the effective date of 
these regulations.
(c) Final notice, claims and disposition with respect to Federal 
lands. Upon determination of the lineal descendant, Indian tribe, or 
Native Hawaiian organization that under these regulations appears to be 
entitled to custody of particular human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated intentionally 
or discovered inadvertently on Federal lands, the responsible Federal 
agency official must, subject to the notice required herein and the 
limitations of Sec. 10.15, transfer custody of the objects to the lineal 
descendant, Indian tribe, or Native Hawaiian organization following 
appropriate procedures, which must respect traditional customs and 
practices of the affiliated Indian tribes or Native Hawaiian 
organizations in each instance. Prior to any such disposition by a 
Federal agency official, the Federal agency official must publish 
general notices of the proposed disposition in a newspaper of general 
circulation in the area in which the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony were excavated 
intentionally or discovered inadvertently and, if applicable, in a 
newspaper of general circulation in the area(s) in which affiliated 
Indian tribes or Native Hawaiian organizations members now reside. The 
notice must provide information as to the nature and affiliation of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony and solicit further claims to custody. The notice must be

[[Page 224]]

published at least two (2) times at least a week apart, and the transfer 
must not take place until at least thirty (30) days after the 
publication of the second notice to allow time for any additional 
claimants to come forward. If additional claimants do come forward and 
the Federal agency official cannot clearly determine which claimant is 
entitled to custody, the Federal agency must not transfer custody of the 
objects until such time as the proper recipient is determined pursuant 
to these regulations. The Federal agency official must send a copy of 
the notice and information on when and in what newspaper(s) the notice 
was published to the Departmental Consulting Archeologist.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Sec. 10.7 Disposition of unclaimed human remains, funerary objects, 
sacred objects, or objects of cultural patrimony. [Reserved]

Subpart C--Human Remains, Funerary Objects, Sacred Objects, or Objects 
of Cultural Patrimony in Museums and Federal Collections

Sec. 10.8 Summaries.

(a) General. This section carries out section 6 of the Act. Under 
section 6 of the Act, each museum or Federal agency that has possession 
or control over collections which may contain unassociated funerary 
objects, sacred objects, or objects of cultural patrimony must complete 
a summary of these collections based upon available information held by 
the museum or Federal agency. The purpose of the summary is to provide 
information about the collections to lineal descendants and culturally 
affiliated Indian tribes or Native Hawaiian organizations that may wish 
to request repatriation of such objects. The summary serves in lieu of 
an object-by-object inventory of these collections, although, if an 
inventory is available, it may be substituted. Federal agencies are 
responsible for ensuring that these requirements are met for all 
collections from their lands or generated by their actions whether the 
collections are held by the Federal agency or by a non-Federal 
institution.
(b) Contents of summaries. For each collection or portion of a 
collection, the summary must include: an estimate of the number of 
objects in the collection or portion of the collection; a description of 
the kinds of objects included; reference to the means, date(s), and 
location(s) in which the collection or portion of the collection was 
acquired, where readily ascertainable; and information relevant to 
identifying lineal descendants, if available, and cultural affiliation.
(c) Completion. Summaries must be completed not later than November 
16, 1993.
(d) Consultation. (1) Consulting parties. Museum and Federal agency 
officials must consult with Indian tribe officials and traditional 
religious leaders:
(i) From whose tribal lands unassociated funerary objects, sacred 
objects, or objects of cultural patrimony originated;
(ii) That are, or are likely to be, culturally affiliated with 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony; and
(iii) From whose aboriginal lands unassociated funerary objects, 
sacred objects, or objects of cultural patrimony originated.
(2) Initiation of consultation. Museum and Federal agency officials 
must begin summary consultation no later than the completion of the 
summary process. Consultation may be initiated with a letter, but should 
be followed up by telephone or face-to-face dialogue with the 
appropriate Indian tribe official.
(3) Provision of information. During summary consultation, museum 
and Federal agency officials must provide copies of the summary to 
lineal descendants, when known, and to officials and traditional 
religious leaders representing Indian tribes or Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
the cultural items. A copy of the summary must also be provided to the 
Departmental Consulting Archeologist. Upon request by lineal descendants 
or

[[Page 225]]

Indian tribe officials, museum and Federal agency officials must provide 
lineal descendants, Indian tribe officials and traditional religious 
leaders with access to records, catalogues, relevant studies, or other 
pertinent data for the limited purposes of determining the geographic 
origin, cultural affiliation, and basic facts surrounding acquisition 
and accession of objects covered by the summary. Access to this 
information may be requested at any time and must be provided in a 
reasonable manner to be agreed upon by all parties. The Review committee 
also must be provided access to such materials.
(4) Requests for information. During the summary consultation, 
museum and Federal agency officials must request, as appropriate, the 
following information from Indian tribes and Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
their collections:
(i) Name and address of the Indian tribe official to act as 
representative in consultations related to particular objects;
(ii) Recommendations on how the consultation process should be 
conducted, including:
(A) Names and appropriate methods to contact any lineal descendants, 
if known, of individuals whose unassociated funerary objects or sacred 
objects are included in the summary;
(B) Names and appropriate methods to contact any traditional 
religious leaders that the Indian tribe or Native Hawaiian organization 
thinks should be consulted regarding the collections; and
(iii) Kinds of cultural items that the Indian tribe or Native 
Hawaiian organization considers to be funerary objects, sacred objects, 
or objects of cultural patrimony.
(e) Museum and Federal agency officials must document the following 
information regarding unassociated funerary objects, sacred objects, and 
objects of cultural patrimony in their collections and must use this 
documentation in determining the individuals, Indian tribes, and Native 
Hawaiian organizations with which they are affiliated:
(1) Accession and catalogue entries;
(2) Information related to the acquisition of unassociated funerary 
object, sacred object, or object of cultural patrimony, including:
(i) The name of the person or organization from whom the object was 
obtained, if known;
(ii) The date of acquisition;
(iii) The place each object was acquired, i.e., name or number of 
site, county, State, and Federal agency administrative unit, if 
applicable; and
(iv) The means of acquisition, i.e., gift, purchase, or excavation;
(3) A description of each unassociated funerary object, sacred 
object, or object of cultural patrimony, including dimensions, 
materials, and photographic documentation, if appropriate, and the 
antiquity of such objects, if known;
(4) A summary of the evidence used to determine the cultural 
affiliation of the unassociated funerary objects, sacred objects, or 
objects of cultural patrimony pursuant to Sec. 10.14 of these 
regulations.
(f) Notification. Repatriation of unassociated funerary objects, 
sacred objects, or objects of cultural patrimony to lineal descendants, 
culturally affiliated Indian tribes, or Native Hawaiian organizations as 
determined pursuant to Sec. 10.10 (a), must not proceed prior to 
submission of a notice of intent to repatriate to the Departmental 
Consulting Archeologist, and publication of the notice of intent to 
repatriate in the Federal Register. The notice of intent to repatriate 
must describe the unassociated funerary objects, sacred objects, or 
objects of cultural patrimony being claimed in sufficient detail so as 
to enable other individuals, Indian tribes or Native Hawaiian 
organizations to determine their interest in the claimed objects. It 
must include information that identifies each claimed unassociated 
funerary object, sacred object, or object of cultural patrimony and the 
circumstances surrounding its acquisition, and describes the objects 
that are clearly identifiable as to cultural affiliation. It must also 
describe the objects that are not clearly identifiable as being 
culturally affiliated with a particular Indian tribe or Native Hawaiian 
organization, but

[[Page 226]]

which, given the totality of circumstances surrounding acquisition of 
the objects, are likely to be culturally affiliated with a particular 
Indian tribe or Native Hawaiian organization. The Departmental 
Consulting Archeologist must publish the notice of intent to repatriate 
in the Federal Register. Repatriation may not occur until at least 
thirty (30) days after publication of the notice of intent to repatriate 
in the Federal Register.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Sec. 10.9 Inventories.

(a) General. This section carries out section 5 of the Act. Under 
section 5 of the Act, 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. The purpose of the inventory is to facilitate repatriation 
by providing clear descriptions of human remains and associated funerary 
objects and establishing the cultural affiliation between these objects 
and present-day Indian tribes and Native Hawaiian organizations. Museums 
and Federal agencies are encouraged to produce inventories first on 
those portions of their collections for which information is readily 
available or about which Indian tribes or Native Hawaiian organizations 
have expressed special interest. Early focus on these parts of 
collections will result in determinations that may serve as models for 
other inventories. Federal agencies must ensure that these requirements 
are met for all collections from their lands or generated by their 
actions whether the collections are held by the Federal agency or by a 
non-Federal institution.
(b) Consultation--(1) Consulting parties. Museum and Federal agency 
officials must consult with:
(i) Lineal descendants of individuals whose remains and associated 
funerary objects are likely to be subject to the inventory provisions of 
these regulations; and
(ii) Indian tribe officials and traditional religious leaders:
(A) From whose tribal lands the human remains and associated 
funerary objects originated;
(B) That are, or are likely to be, culturally affiliated with human 
remains and associated funerary objects; and
(C) From whose aboriginal lands the human remains and associated 
funerary objects originated.
(2) Initiation of consultation. Museum and Federal agency officials 
must begin inventory consultation as early as possible, no later in the 
inventory process than the time at which investigation into the cultural 
affiliation of human remains and associated funerary objects is being 
conducted. Consultation may be initiated with a letter, but should be 
followed up by telephone or face-to-face dialogue.
(3) Provision of information. During inventory consultation, museums 
and Federal agency officials must provide the following information in 
writing to lineal descendants, when known, and to officials and 
traditional religious leaders representing Indian tribes or Native 
Hawaiian organizations that are, or are likely to be, culturally 
affiliated with the human remains and associated funerary objects.
(i) A list of all Indian tribes and Native Hawaiian organizations 
that are, or have been, consulted regarding the particular human remains 
and associated funerary objects;
(ii) A general description of the conduct of the inventory;
(iii) The projected time frame for conducting the inventory; and
(iv) An indication that additional documentation used to identify 
cultural affiliation will be supplied upon request.
(4) Requests for information. During the inventory consultation, 
museum and Federal agency officials must request, as appropriate, the 
following information from Indian tribes and Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
their collections:
(i) Name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains and 
associated funerary objects;

[[Page 227]]

(ii) Recommendations on how the consultation process should be 
conducted, including:
(A) Names and appropriate methods to contact any lineal descendants 
of individuals whose remains and associated funerary objects are or are 
likely to be included in the inventory; and
(B) Names and appropriate methods to contact traditional religious 
leaders who should be consulted regarding the human remains and 
associated funerary objects.
(iii) Kinds of objects that the Indian tribe or Native Hawaiian 
organization reasonably believes to have been made exclusively for 
burial purposes or to contain human remains of their ancestors.
(c) Required information. The following documentation must be 
included, if available, for all inventories completed by museum or 
Federal agency officials:
(1) Accession and catalogue entries, including the accession/
catalogue entries of human remains with which funerary objects were 
associated;
(2) Information related to the acquisition of each object, 
including:
(i) The name of the person or organization from whom the object was 
obtained, if known;
(ii) The date of acquisition,
(iii) The place each object was acquired, i.e., name or number of 
site, county, State, and Federal agency administrative unit, if 
applicable; and
(iv) The means of acquisition, i.e., gift, purchase, or excavation;
(3) A description of each set of human remains or associated 
funerary object, including dimensions, materials, and, if appropriate, 
photographic documentation, and the antiquity of such human remains or 
associated funerary objects, if known;
(4) A summary of the evidence, including the results of 
consultation, used to determine the cultural affiliation of the human 
remains and associated funerary objects pursuant to Sec. 10.14 of these 
regulations.
(d) Documents. Two separate documents comprise the inventory:
(1) A listing of all human remains and associated funerary objects 
that are identified as being culturally affiliated with one or more 
present-day Indian tribes or Native Hawaiian organizations. The list 
must indicate for each item or set of items whether cultural affiliation 
is clearly determined or likely based upon the preponderance of the 
evidence; and
(2) 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.
(e) Notification. (1) If the inventory results in the identification 
or likely identification of the cultural affiliation of any particular 
human remains or associated funerary objects with one or more Indian 
tribes or Native Hawaiian organizations, the museum or Federal agency, 
not later than six (6) months after completion of the inventory, must 
send such Indian tribes or Native Hawaiian organizations the inventory 
of culturally affiliated human remains and associated funerary objects, 
including all information required under Sec. 10.9 (c), and a notice of 
inventory completion that summarizes the results of the inventory.
(2) The notice of inventory completion must summarize the contents 
of the inventory in sufficient detail so as to enable the recipients to 
determine their interest in claiming the inventoried items. It must 
identify each particular set of human remains or each associated 
funerary object and the circumstances surrounding its acquisition, 
describe the human remains or associated funerary objects that are 
clearly identifiable as to cultural affiliation, and describe the human 
remains and associated funerary objects that are not clearly 
identifiable as being culturally affiliated with an Indian tribe or 
Native Hawaiian organization, but which, given the totality of 
circumstances surrounding acquisition of the human remains or associated 
objects, are identified as likely to be culturally affiliated with a 
particular Indian tribe or Native Hawaiian organization.
(3) If the inventory results in a determination that the human 
remains are of an identifiable individual, the museum or Federal agency 
official must convey this information to the lineal descendant of the 
deceased individual,

[[Page 228]]

if known, and to the Indian tribe or Native Hawaiian organization of 
which the deceased individual was culturally affiliated.
(4) The notice of inventory completion and a copy of the inventory 
must also be sent to the Departmental Consulting Archeologist. These 
submissions should be sent in both printed hard copy and electronic 
formats. Information on the proper format for electronic submission and 
suggested alternatives for museums and Federal agencies unable to meet 
these requirements are available from the Departmental Consulting 
Archeologist.
(5) Upon request by an Indian tribe or Native Hawaiian organization 
that has received or should have received a notice of inventory 
completion and a copy of the inventory as described above, a museum or 
Federal agency must supply additional available documentation to 
supplement the information provided with the notice. For these purposes, 
the term 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 
geographical origin, cultural affiliation, and basic facts surrounding 
the acquisition and accession of human remains and associated funerary 
objects.
(6) If the museum or Federal agency official determines that the 
museum or Federal agency has possession of or control over human remains 
that cannot be identified as affiliated with a particular individual, 
Indian tribes or Native Hawaiian organizations, the museum or Federal 
agency must provide the Department Consulting Archeologist notice of 
this result and a copy of the list of culturally unidentifiable human 
remains and associated funerary objects. The Departmental Consulting 
Archeologist must make this information available to members of the 
Review Committee. Section 10.11 of these regulations will set forth 
procedures for disposition of culturally unidentifiable human remains of 
Native American origin. Museums or Federal agencies must retain 
possession of such human remains pending promulgation of Sec. 10.11 
unless legally required to do otherwise, or recommended to do otherwise 
by the Secretary. Recommendations regarding the disposition of 
culturally unidentifiable human remains may be requested prior to final 
promulgation of Sec. 10.11.
(7) The Departmental Consulting Archeologist must publish notices of 
inventory completion received from museums and Federal agencies in the 
Federal Register.
(f) Completion. Inventories must be completed not later than 
November 16, 1995. Any museum that has made a good faith effort to 
complete its inventory, but which will be unable to complete the process 
by this deadline, may request an extension of the time requirements from 
the Secretary. An indication of good faith efforts must include, but not 
necessarily be limited to, the initiation of active consultation and 
documentation regarding the collections and the development of a written 
plan to carry out the inventory process. Minimum components of an 
inventory plan are: a definition of the steps required; the position 
titles of the persons responsible for each step; a schedule for carrying 
out the plan; and a proposal to obtain the requisite funding.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

Sec. 10.10 Repatriation.

(a) Unassociated funerary objects, sacred objects, and objects of 
cultural patrimony--(1) Criteria. Upon the request of a lineal 
descendant, Indian tribe, or Native Hawaiian organization, a museum or 
Federal agency must expeditiously repatriate unassociated funerary 
objects, sacred objects, or objects of cultural patrimony if all the 
following criteria are met:
(i) The object meets the definitions established in Sec. 10.2 
(d)(2)(ii), (d)(3), or (d)(4); and
(ii) The cultural affiliation of the object is established:
(A) Through the summary, consultation, and notification procedures 
in Sec. 10.14 of these regulations; or
(B) By presentation of a preponderance of the evidence by a 
requesting Indian tribe or Native Hawaiian organization pursuant to 
section 7(c) of the Act; and

[[Page 229]]

(iii) The known lineal descendant or culturally affiliated Indian 
tribe or Native Hawaiian organization presents evidence which, if 
standing alone before the introduction of evidence to the contrary, 
would support a finding that the museum or Federal agency does not have 
a right of possession to the objects as defined in Sec. 10.10 (a)(2); 
and
(iv) The agency or museum is unable to present evidence to the 
contrary proving that it does have a right of possession as defined 
below; and
(v) None of the specific exceptions listed in Sec. 10.10 (c) apply.
(2) Right of possession. For purposes of this section, ``right of 
possession'' means possession obtained with the voluntary consent of an 
individual or group that had authority of alienation. The original 
acquisition of a Native American unassociated funerary object, sacred 
object, or object of cultural patrimony from an Indian tribe or Native 
Hawaiian organization with the voluntary consent of an individual or 
group with authority to alienate such object is deemed to give right of 
possession to that object.
(3) Notification. Repatriation must take place within ninety (90) 
days of receipt of a written request for repatriation that satisfies the 
requirements of paragraph (a)(1) of this section from a lineal 
descendent or culturally affiliated Indian tribe or Native Hawaiian 
organization, provided that the repatriation may not occur until at 
least thirty (30) days after publication of the notice of intent to 
repatriate in the Federal Register as described in Sec. 10.8.
(b) Human remains and associated funerary objects--(1) Criteria. 
Upon the request of a lineal descendant, Indian tribe, or Native 
Hawaiian organization, a museum and Federal agency must expeditiously 
repatriate human remains and associated funerary objects if all of the 
following criteria are met:
(i) The human remains or associated funerary object meets the 
definitions established in Sec. 10.2 (d)(1) or (d)(2)(i); and
(ii) The affiliation of the deceased individual to known lineal 
descendant, present day Indian tribe, or Native Hawaiian organization:
(A) Has been reasonably traced through the procedures outlined in 
Sec. 10.9 and Sec. 10.14 of these regulations; or
(B) Has been shown by a preponderance of the evidence presented by a 
requesting Indian tribe or Native Hawaiian organization pursuant to 
section 7(c) of the Act; and
(iii) None of the specific exceptions listed in Sec. 10.10 (c) 
apply.
(2) Notification. Repatriation must take place within ninety (90) 
days of receipt of a written request for repatriation that satisfies the 
requirements of Sec. 10.10 (b)(1) from the culturally affiliated Indian 
tribe or Native Hawaiian organization, provided that the repatriation 
may not occur until at least thirty (30) days after publication of the 
notice of inventory completion in the Federal Register as described in 
Sec. 10.9.
(c) Exceptions. These requirements for repatriation do not apply to:
(1) Circumstances where human remains, funerary objects, sacred 
objects, or objects of cultural patrimony are indispensable to the 
completion of a specific scientific study, the outcome of which is of 
major benefit to the United States. Human remains, funerary objects, 
sacred objects, or objects of cultural patrimony in such circumstances 
must be returned no later than ninety (90) days after completion of the 
study; or
(2) Circumstances where there are multiple requests for repatriation 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony and the museum or Federal agency, after complying 
with these regulations, cannot determine by a preponderance of the 
evidence which requesting party is the most appropriate claimant. In 
such circumstances, the museum or Federal agency may retain the human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony until such time as the requesting parties mutually agree upon 
the appropriate recipient or the dispute is otherwise resolved pursuant 
to these regulations or as ordered by a court of competent jurisdiction; 
or
(3) Circumstances where a court of competent jurisdiction has 
determined that the repatriation of the human remains, funerary objects, 
sacred objects,

[[Page 230]]

or objects of cultural patrimony in the possession or control of a 
museum would result in a taking of property without just compensation 
within the meaning of the Fifth Amendment of the United States 
Constitution, in which event the custody of the objects must be as 
provided under otherwise applicable law. Nothing in these regulations 
must prevent a museum or Federal agency, where otherwise so authorized, 
or a lineal descendant, Indian tribe, or Native Hawaiian organization, 
from expressly relinquishing title to, right of possession of, or 
control over any human remains, funerary objects, sacred objects, or 
objects of cultural patrimony.
(4) Circumstances where the repatriation is not consistent with 
other repatriation limitations identified in Sec. 10.15 of these 
regulations.
(d) Place and manner of repatriation. The repatriation of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony must be accomplished by the museum or Federal agency in 
consultation with the requesting lineal descendants, or culturally 
affiliated Indian tribe or Native Hawaiian organization, as appropriate, 
to determine the place and manner of the repatriation.
(e) The museum official or Federal agency official must inform the 
recipients of repatriations of any presently known treatment of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony with pesticides, preservatives, or other substances that 
represent a potential hazard to the objects or to persons handling the 
objects.
(f) Record of repatriation. (1) Museums and Federal agencies must 
adopt internal procedures adequate to permanently document the content 
and recipients of all repatriations.
(2) The museum official or Federal agency official, at the request 
of the Indian tribe official, may take such steps as are considered 
necessary pursuant to otherwise applicable law, to ensure that 
information of a particularly sensitive nature is not made available to 
the general public.
(g) Culturally unidentifiable human remains. If the cultural 
affiliation of human remains cannot be established pursuant to these 
regulations, the human remains must be considered culturally 
unidentifiable. Museum and Federal agency officials must report the 
inventory information regarding such human remains in their holdings to 
the Departmental Consulting Archeologist who will transmit this 
information to the Review Committee. The Review Committee is responsible 
for compiling an inventory of culturally unidentifiable human remains in 
the possession or control of each museum and Federal agency, and, for 
recommending to the Secretary specific actions for disposition of such 
human remains.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997]

Sec. 10.11 Disposition of culturally unidentifiable human remains. 
[Reserved]

Sec. 10.12 Civil penalties.

(a) The Secretary's Authority to Assess Civil Penalties. The 
Secretary is authorized by section 9 of the Act to assess civil 
penalties on any museum that fails to comply with the requirements of 
the Act. As used in this Paragraph, ``failure to comply with 
requirements of the Act'' also means failure to comply with applicable 
portions of the regulations set forth in this Part. As used in this 
Paragraph ``you'' refers to the museum or the museum official designated 
responsible for matters related to implementation of the Act.
(b) Definition of ``failure to comply.'' (1) Your museum has failed 
to comply with the requirements of the Act if it:
(i) After November 16, 1990, sells or otherwise transfers human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony contrary to provisions of the Act, including, but not limited 
to, an unlawful sale or transfer to any individual or institution that 
is not required to comply with the Act; or
(ii) After November 16, 1993, has not completed summaries as 
required by the Act; or
(iii) After November 16, 1995, or the date specified in an extension 
issued by the Secretary, whichever is later, has not completed 
inventories as required by the Act; or

[[Page 231]]

(iv) After May 16, 1996, or 6 months after completion of an 
inventory under an extension issued by the Secretary, whichever is 
later, has not notified culturally affiliated Indian tribes and Native 
Hawaiian organizations; or
(v) Refuses, absent any of the exemptions specified in Sec. 10.10(c) 
of this part, to repatriate human remains, funerary object, sacred 
object, or object of cultural patrimony to a lineal descendant or 
culturally affiliated Indian tribe or Native Hawaiian; or
(vi) Repatriates a human remains, funerary object, sacred object, or 
object of cultural patrimony before publishing the required notice in 
the Federal Register;
(vii) Does not consult with lineal descendants, Indian tribe 
officials, and traditional religious leaders as required; or
(viii) Does not inform the recipients of repatriations of any 
presently known treatment of the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony with pesticides, 
preservatives, or other substances that represent a potential hazard to 
the objects or to persons handling the objects.
(2) Each instance of failure to comply will constitute a separate 
violation.
(c) How to Notify the Secretary of a Failure to Comply. Any person 
may bring an allegation of failure to comply to the attention of the 
Secretary. Allegations must be in writing, and should include 
documentation identifying the provision of the Act with which there has 
been a failure to comply and supporting facts of the alleged failure to 
comply. Documentation should include evidence that the museum has 
possession or control of Native American cultural items, receives 
Federal funds, and has failed to comply with specific provisions of the 
Act. Written allegations should be sent to the attention of the 
Director, National Park Service, 1849 C Street, NW, Washington, D.C. 
20240.
(d) Steps the Secretary may take upon receiving such an allegation. 
(1) The Secretary must acknowledge receipt of the allegation in writing.
(2) The Secretary also may:
(i) Compile and review information relevant to the alleged failure 
to comply. The Secretary may request additional information, such as 
declarations and relevant papers, books, and documents, from the person 
making the allegation, the museum, and other parties;
(ii) Identify the specific provisions of the Act with which you have 
allegedly failed to comply; and
(iii) Determine if the institution of a civil penalty action is an 
appropriate remedy.
(3) The Secretary must provide written notification to the person 
making the allegation and the museum if the review of the evidence does 
not show a failure comply.
(e) How the Secretary notifies you of a failure to comply. (1) If 
the allegations are verified, the Secretary must serve you with a 
written notice of failure to comply either by personal delivery or by 
registered or certified mail (return receipt requested). The notice of 
failure to comply must include:
(i) A concise statement of the facts believed to show a failure to 
comply;
(ii) A specific reference to the provisions of the Act and/or these 
regulations with which you allegedly have not complied; and
(iii) Notification of the right to request an informal discussion 
with the Secretary or a designee, to request a hearing, as provided 
below, or to await the Secretary's notice of assessment. The notice of 
failure to comply also must inform you of your right to seek judicial 
review of any final administrative decision assessing a civil penalty.
(2) With your consent, the Secretary may combine the notice of 
failure to comply with the notice of assessment described in paragraph 
(h) of this section.
(3) The Secretary also must send a copy of the notice of failure to 
comply to:
(i) Any lineal descendant of a known Native American individual 
whose human remains, funerary objects, or sacred objects are in 
question; and
(ii) Any Indian tribes or Native Hawaiian organizations that are, or 
are likely to be, culturally affiliated with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony in question.
(f) Actions you may take upon receipt of a notice of failure to 
comply. If you are

[[Page 232]]

served with a notice of failure to comply, you may:
(1) Seek informal discussions with the Secretary;
(2) Request a hearing. Figure 1 outlines the civil penalty hearing 
and appeal process. Where the Secretary has issued a combined notice of 
failure to comply and notice of assessment, the hearing and appeal 
processes will also be combined.
(3) Take no action and await the Secretary's notice of assessment.

[[Page 233]]

[GRAPHIC] [TIFF OMITTED] TR03AP03.002

(g) How the Secretary determines the penalty amount.
(1) The penalty amount must be determined on the record;
(2) The penalty amount must be .25 percent of your museum's annual 
budget, or $5,000, whichever is less, and such additional sum as the 
Secretary may

[[Page 234]]

determine is appropriate after taking into account:
(i) The archeological, historical, or commercial value of the human 
remains, funerary object, sacred object, or object of cultural patrimony 
involved; and
(ii) The damages suffered, both economic and non-economic, by the 
aggrieved party or parties including, but not limited to, expenditures 
by the aggrieved party to compel the museum to comply with the Act; and
(iii) The number of violations that have occurred at your museum.
(3) An additional penalty of up to $1,000 per day after the date 
that the final administrative decision takes effect may be assessed if 
your museum continues to violate the Act.
(4) The Secretary may reduce the penalty amount if there is:
(i) A determination that you did not willfully fail to comply; or
(ii) An agreement by you to mitigate the violation, including, but 
not limited to, payment of restitution to the aggrieved party or 
parties; or
(iii) A determination that you are unable to pay, provided that this 
factor may not apply if you have been previously found to have failed to 
comply with these regulations; or,
(iv) A determination that the penalty constitutes excessive 
punishment under the circumstances.
(h) How the Secretary assesses the penalty. (1) The Secretary 
considers all available information, including information provided 
during the process of assessing civil penalties or furnished upon 
further request by the Secretary.
(2) The Secretary may assess the civil penalty upon completing 
informal discussions or when the period for requesting a hearing 
expires, whichever is later.
(3) The Secretary notifies you in writing of the penalty amount 
assessed by serving a written notice of assessment, either in person or 
by registered or certified mail (return receipt requested). The notice 
of assessment includes:
(i) The basis for determining the penalty amount assessed and/or any 
offer to mitigate or remit the penalty; and
(ii) Notification of the right to request a hearing, including the 
procedures to follow, and to seek judicial review of any final 
administrative decision that assesses a civil penalty.
(i) Actions that you may take upon receipt of a notice of 
assessment. If you are served with a notice of assessment, you may do 
one of the following:
(1) Accept in writing or by payment of the proposed penalty, or any 
mitigation or remission offered in the notice of assessment. If you 
accept the proposed penalty, mitigation, or remission, you waive the 
right to request a hearing.
(2) Seek informal discussions with the Secretary.
(3) File a petition for relief. You may file a petition for relief 
with the Secretary within 45 calendar days of receiving the notice of 
assessment. Your petition for relief may request the Secretary to assess 
no penalty or to reduce the amount. Your petition must be in writing and 
signed by an official authorized to sign such documents. Your petition 
must set forth in full the legal or factual basis for the requested 
relief.
(4) Request a hearing. Figure 1 outlines the civil penalty hearing 
and appeal process.
(i) In addition to the documentation required in paragraph (g) of 
this section, your request must include a copy of the notice of 
assessment and must identify the basis for challenging the assessment.
(ii) In this hearing, the amount of the civil penalty assessed must 
be determined in accordance with paragraph (h) of this section, and will 
not be limited to the amount assessed by the Secretary or any offer of 
mitigation or remission made by the Secretary.
(j) How you request a hearing. (1) You may file a written, dated 
request for a hearing on a notice of failure to comply or notice of 
assessment with the Hearings Division, Office of Hearings and Appeals, 
U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, VA 
22203-1923. You must enclose a copy of the notice of failure to comply 
or the notice of assessment. Your request must state the relief sought, 
the basis for challenging the facts used as the basis for determining 
the failure to comply or fixing the assessment, and your preference of 
the place and date for a hearing. You must serve a copy of

[[Page 235]]

the request on the Solicitor of the Department of the Interior 
personally or by registered or certified mail (return receipt requested) 
at the address specified in the notice of failure to comply or notice of 
assessment. Hearings must take place following procedures set forth in 
43 CFR part 4, subparts A and B.
(2) Your failure to file a written request for a hearing within 45 
days of the date of service of a notice of failure to comply or notice 
of assessment waives your right to a hearing.
(3) Upon receiving a request for a hearing, the Hearings Division 
assigns an administrative law judge to the case, gives notice of 
assignment promptly to the parties, and files all pleadings, papers, and 
other documents in the proceeding directly with the administrative law 
judge, with copies served on the opposing party.
(4) Subject to the provisions of 43 CFR 1.3, you may appear by 
representative or by counsel, and may participate fully in the 
proceedings. If you fail to appear and the administrative law judge 
determines that this failure is without good cause, the administrative 
law judge may, in his/her discretion, determine that this failure waives 
your right to a hearing and consent to the making of a decision on the 
record.
(5) Departmental counsel, designated by the Solicitor of the 
Department of the Interior, represents the Secretary in the proceedings. 
Upon notice to the Secretary of the assignment of an administrative law 
judge to the case, this counsel must enter his/her appearance on behalf 
of the Secretary and must file all petitions and correspondence 
exchanges by the Secretary and the respondent that become part of the 
hearing record. Thereafter, you must serve all documents for the 
Secretary on his/her counsel.
(6) Hearing administration. (i) The administrative law judge has all 
powers accorded by law and necessary to preside over the parties and the 
proceedings and to make decisions under 5 U.S.C. 554-557.
(ii) The transcript of testimony; the exhibits; and all papers, 
documents, and requests filed in the proceedings constitute the record 
for decision. The administrative law judge renders a written decision 
upon the record, which sets forth his/her findings of fact and 
conclusions of law, and the reasons and basis for them.
(iii) Unless you file a notice of appeal described in these 
regulations, the administrative law judge's decision constitutes the 
final administrative determination of the Secretary in the matter and 
takes effect 30 calendar days from this decision.
(k) How you appeal a decision. (1) Either you or the Secretary may 
appeal the decision of an administrative law judge by filing a ``Notice 
of Appeal'' with the Interior Board of Indian Appeals, U.S. Department 
of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954, within 
30 calendar days of the date of the administrative law judge's decision. 
This notice must be accompanied by proof of service on the 
administrative law judge and the opposing party.
(2) To the extent they are not inconsistent with these regulations, 
the provisions of the Department of the Interior Hearings and Appeals 
Procedures in 43 CFR part 4, subpart D, apply to such appeal 
proceedings. The appeal board's decision on the appeal must be in 
writing and takes effect as the final administrative determination of 
the Secretary on the date that the decision is rendered, unless 
otherwise specified in the decision.
(3) You may obtain copies of decisions in civil penalty proceedings 
instituted under the Act by sending a request to the Interior Board of 
Indian Appeals, Office of Hearings and Appeals, U.S. Department of the 
Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954. Fees for this 
service are established by the director of that office.
(l) The final administrative decision. (1) When you have been served 
with a notice of assessment and have accepted the penalty as provided in 
these regulations, the notice constitutes the final administrative 
decision.
(2) When you have been served with a notice of assessment and have 
not filed a timely request for a hearing as provided in these 
regulations, the notice of assessment constitutes the final 
administrative decision.
(3) When you have been served with a notice of assessment and have 
filed a

[[Page 236]]

timely request for a hearing as provided in these regulations, the 
decision resulting from the hearing or any applicable administrative 
appeal from it constitutes the final administrative decision.
(m) How you pay the penalty. (1) If you are assessed a civil 
penalty, you have 45 calendar days from the date of issuance of the 
final administrative decision to make full payment of the penalty 
assessed to the Secretary, unless you have filed a timely request for 
appeal with a court of competent jurisdiction.
(2) If you fail to pay the penalty, the Secretary may request the 
Attorney General of the United States to collect the penalty by 
instituting a civil action in the U.S. District Court for the district 
in which your museum is located. In these actions, the validity and 
amount of the penalty is not subject to review by the court.
(3) Assessing a penalty under this section is not a waiver by the 
Secretary of the right to pursue other available legal or administrative 
remedies.

[68 FR 16360, Apr. 3, 2003]

Sec. 10.13 Future applicability. [Reserved]

Subpart D--General

Sec. 10.14 Lineal descent and cultural affiliation.

(a) General. This section identifies procedures for determining 
lineal descent and cultural affiliation between present-day individuals 
and Indian tribes or Native Hawaiian organizations and human remains, 
funerary objects, sacred objects, or objects of cultural patrimony in 
museum or Federal agency collections or excavated intentionally or 
discovered inadvertently from Federal lands. They may also be used by 
Indian tribes and Native Hawaiian organizations with respect to tribal 
lands.
(b) Criteria for determining lineal descent. A lineal descendant is 
an individual tracing his or her ancestry directly and without 
interruption by means of the traditional kinship system of the 
appropriate Indian tribe or Native Hawaiian organization or by the 
common law system of descendence to a known Native American individual 
whose remains, funerary objects, or sacred objects are being requested 
under these regulations. This standard requires that the earlier person 
be identified as an individual whose descendants can be traced.
(c) Criteria for determining cultural affiliation. Cultural 
affiliation means a relationship of shared group identity that may be 
reasonably traced historically or prehistorically between a present-day 
Indian tribe or Native Hawaiian organization and an identifiable earlier 
group. All of the following requirements must be met to determine 
cultural affiliation between a present-day Indian tribe or Native 
Hawaiian organization and the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony of an earlier group:
(1) Existence of an identifiable present-day Indian tribe or Native 
Hawaiian organization with standing under these regulations and the Act; 
and
(2) Evidence of the existence of an identifiable earlier group. 
Support for this requirement may include, but is not necessarily limited 
to evidence sufficient to:
(i) Establish the identity and cultural characteristics of the 
earlier group,
(ii) Document distinct patterns of material culture manufacture and 
distribution methods for the earlier group, or
(iii) Establish the existence of the earlier group as a biologically 
distinct population; and
(3) Evidence of the existence of a shared group identity that can be 
reasonably traced between the present-day Indian tribe or Native 
Hawaiian organization and the earlier group. Evidence to support this 
requirement must establish that a present-day Indian tribe or Native 
Hawaiian organization has been identified from prehistoric or historic 
times to the present as descending from the earlier group.
(d) A finding of cultural affiliation should be based upon an 
overall evaluation of the totality of the circumstances and evidence 
pertaining to

[[Page 237]]

the connection between the claimant and the material being claimed and 
should not be precluded solely because of some gaps in the record.
(e) Evidence. Evidence of a kin or cultural affiliation between a 
present-day individual, Indian tribe, or Native Hawaiian organization 
and human remains, funerary objects, sacred objects, or objects of 
cultural patrimony must be established by using the following types of 
evidence: Geographical, kinship, biological, archeological, 
anthropological, linguistic, folklore, oral tradition, historical, or 
other relevant information or expert opinion.
(f) Standard of proof. Lineal descent of a present-day individual 
from an earlier individual and cultural affiliation of a present-day 
Indian tribe or Native Hawaiian organization to human remains, funerary 
objects, sacred objects, or objects of cultural patrimony must be 
established by a preponderance of the evidence. Claimants do not have to 
establish cultural affiliation with scientific certainty.

Sec. 10.15 Limitations and remedies.

(a) Failure to claim prior to repatriation. (1) Any person who fails 
to make a timely claim prior to the repatriation or disposition of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is deemed to have irrevocably waived any right to claim such 
items pursuant to these regulations or the Act. For these purposes, a 
``timely claim'' means the filing of a written claim with a responsible 
museum or Federal agency official prior to the time the particular human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony at issue are duly repatriated or disposed of to a claimant by 
a museum or Federal agency pursuant to these regulations.
(2) If there is more than one (1) claimant, the human remains, 
funerary object, sacred object, or objects of cultural patrimony may be 
held by the responsible museum or Federal agency or person in possession 
thereof pending resolution of the claim. Any person who is in custody of 
such human remains, funerary objects, sacred objects, or objects of 
cultural patrimony and does not claim entitlement to them must place the 
objects in the possession of the responsible museum or Federal agency 
for retention until the question of custody is resolved.
(b) Failure to claim where no repatriation or disposition has 
occurred. [Reserved]
(c) Exhaustion of remedies. No person is considered to have 
exhausted his or her administrative remedies with respect to the 
repatriation or disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony subject to subpart B of these 
regulations, or, with respect to Federal lands, subpart C of these 
regulations, until such time as the person has filed a written claim for 
repatriation or disposition of the objects with the responsible museum 
or Federal agency and the claim has been duly denied following these 
regulations.
(d) Savings provisions. Nothing in these regulations can be 
construed to:
(1) Limit the authority of any museum or Federal agency to:
(i) Return or repatriate human remains, funerary objects, sacred 
objects, or objects of cultural patrimony to Indian tribes, Native 
Hawaiian organizations, or individuals; and
(ii) Enter into any other agreement with the consent of the 
culturally affiliated Indian tribe or Native Hawaiian organization as to 
the disposition of, or control over, human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.
(2) Delay actions on repatriation requests that were pending on 
November 16, 1990;
(3) Deny or otherwise affect access to court;
(4) Limit any procedural or substantive right which may otherwise be 
secured to individuals or Indian tribes or Native Hawaiian 
organizations; or
(5) Limit the application of any State or Federal law pertaining to 
theft of stolen property.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997]

Sec. 10.16 Review committee.

(a) General. The Review Committee will advise Congress and the 
Secretary on matters relating to these regulations and the Act, 
including, but not limited to, monitoring the performance

[[Page 238]]

of museums and Federal agencies in carrying out their responsibilities, 
facilitating and making recommendations on the resolution of disputes as 
described further in Sec. 10.17, and compiling a record of culturally 
unidentifiable human remains that are in the possession or control of 
museums and Federal agencies and recommending actions for their 
disposition.
(b) Recommendations. Any recommendation, finding, report, or other 
action of the Review Committee is advisory only and not binding on any 
person. Any records and findings made by the Review Committee may be 
admissible as evidence in actions brought by persons alleging a 
violation of the Act.

Sec. 10.17 Dispute resolution.

(a) Formal and informal resolutions. Any person who wishes to 
contest actions taken by museums, Federal agencies, Indian tribes, or 
Native Hawaiian organizations with respect to the repatriation and 
disposition of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony is encouraged to do so through informal 
negotiations to achieve a fair resolution of the matter. The Review 
Committee may aid in this regard as described below. In addition, the 
United States District Courts have jurisdiction over any action brought 
that alleges a violation of the Act.
(b) Review Committee Role. The Review Committee may facilitate the 
informal resolution of disputes relating to these regulations among 
interested parties that are not resolved by good faith negotiations. 
Review Committee actions may include convening meetings between parties 
to disputes, making advisory findings as to contested facts, and making 
recommendations to the disputing parties or to the Secretary as to the 
proper resolution of disputes consistent with these regulations and the 
Act.

Appendix A to Part 10--Sample Summary

The following is a generic sample and should be used as a guideline 
for preparation of summaries tailoring the information to the specific 
circumstances of each case.
Before November 17, 1993
Chairman or Other Authorized Official
Indian tribe or Native Hawaiian organization
Street
State
Dear Sir/Madame Chair:
I write to inform you of collections held by our museum which may 
contain unassociated funerary objects, sacred objects, or objects of 
cultural patrimony that are, or are likely to be, culturally affiliated 
with your Indian tribe or Native Hawaiian organization. This 
notification is required by section 6 of the Native American Graves 
Protection and Repatriation Act.
Our ethnographic collection includes approximately 200 items 
specifically identified as being manufactured or used by members of your 
Indian tribe or Native Hawaiian organization. These items represent 
various categories of material culture, including sea and land hunting, 
fishing, tools, household equipment, clothing, travel and 
transportation, personal adornment, smoking, toys, and figurines. The 
collection includes thirteen objects identified in our records as 
``medicine bags.''
Approximately half of these items were collected by John Doe during 
his expedition to your reservation in 1903 and accessioned by the museum 
that same year (see Major Museum Publication, no. 65 (1965).
Another 50 of these items were collected by Jane Roe during her 
expeditions to your reservation between 1950-1960 and accessioned by the 
museum in 1970 (see Major Museum: no. 75 (1975). Accession information 
indicates that several of these items were collected from members of the 
Able and Baker families.
For the remaining approximately 50 items, which were obtained from 
various collectors between 1930 and 1980, additional collection 
information is not readily available.
In addition to the above mentioned items, the museum has 
approximately 50 ethnographic items obtained from the estate of a 
private collector and identified as being collected from the ``northwest 
portion of the State.''
Our archeological collection includes approximately 1,500 items 
recovered from ten archeological sites on your reservation and another 
5,000 items from fifteen sites within the area recognized by the Indian 
Claims Commission as being part of your Indian tribe's aboriginal 
territory.
Please feel free to contact Fred Poe at (012) 345-6789 regarding the 
identification and potential repatriation of unassociated funerary 
objects, sacred objects, or objects of cultural patrimony in this 
collection that are, or are likely to be, culturally affiliated with 
your Indian tribe or Native Hawaiian organization. You are invited to 
review our records, catalogues, relevant studies or other pertinent data 
for the purpose of determining the geographic origin, cultural 
affiliation, and

[[Page 239]]

basic facts surrounding acquisition and accession of these items. We 
look forward to working together with you.
Sincerely,
Museum Official
Major Museum

Appendix B to Part 10--Sample Notice of Inventory Completion

The following is an example of a Notice of Inventory Completion 
published in the Federal Register.
National Park Service
Notice of Inventory Completion for Native American Human Remains and 
Associated Funerary Objects from Hancock County, ME, in the Control of 
the National Park Service.
AGENCY: National Park Service, Interior.
ACTION: Notice.
Notice is hereby given following provisions of the Native American 
Graves Protection and Repatriation Act, 25 U.S.C. 3003(d), of completion 
of the inventory of human remains and associated funerary objects from a 
site in Hancock County, ME, that are presently in the control of the 
National Park Service.
A detailed inventory and assessment of these human remains has been 
made by National Park Service curatorial staff, contracted specialists 
in physical anthropology and prehistoric archeology, and representatives 
of the Penobscot Nation, Aroostook Band of Micmac, Houlton Band of 
Maliseet, and the Passamaquoddy Nation, identified collectively 
hereafter as the Wabanaki Tribes of Maine.
The partial remains of at least seven individuals (including five 
adults, one subadult, and one child) were recovered in 1977 from a 
single grave at the Fernald Point Site (ME Site 43-24), a prehistoric 
shell midden on Mount Desert Island, within the boundary of Acadia 
National Park. A bone harpoon head, a modified beaver tooth, and several 
animal and fish bone fragments were found associated with the eight 
individuals. Radiocarbon assays indicate the burial site dates between 
1035-1155 AD. The human remains and associated funerary objects have 
been catalogued as ACAD-5747, 5749, 5750, 5751, 5752, 5783, 5784. The 
partial remains of an eighth individual (an elderly male) was also 
recovered in 1977 from a second grave at the Fernald Point Site. No 
associated funerary objects were recovered with this individual. 
Radiocarbon assays indicate the second burial site dates between 480-680 
AD. The human remains have been catalogued as ACAD-5748. The human 
remains and associated funerary objects of all nine individuals are 
currently in the possession of the University of Maine, Orono, ME.
Inventory of the human remains and associated funerary objects and 
review of the accompanying documentation indicates that no known 
individuals were identifiable. A representative of the Wabanaki Tribes 
of Maine has identified the Acadia National Park area as a historic 
gathering place for his people and stated his belief that there exists a 
relationship of shared group identity between these individuals and the 
Wabanaki Tribes of Maine. The Prehistoric Subcommittee of the Maine 
State Historic Preservation Office's Archaeological Advisory Committee 
has found it reasonable to trace a shared group identity from the Late 
Prehistoric Period (1000-1500 AD) inhabitants of Maine as an undivided 
whole to the four modern Indian tribes known collectively as the 
Wabanaki Tribes of Maine on the basis of geographic proximity; survivals 
of stone, ceramic and perishable material culture skills; and probable 
linguistic continuity across the Late Prehistoric/Contact Period 
boundary. In a 1979 article, Dr. David Sanger, the archeologist who 
conducted the 1977 excavations at the Fernald Point Site and uncovered 
the abovementioned burials, recognizes a relationship between Maine 
sites dating to the Ceramic Period (2,000 B.P.-1600 A.D.) and present-
day Algonkian speakers generally known as Abenakis, including the 
Micmac, Maliseet, Passamaquoddy, Penboscot, Kennebec, and Pennacook 
groups.
Based on the above mentioned information, officials of the National 
Park Service have determined that, pursuant to 25 U.S.C. 3001 (2), there 
is a relationship of shared group identity which can be reasonably 
traced between these human remains and associated funerary objects and 
the Wabanaki Tribes of Maine.
This notice has been sent to officials of the Wabanaki Tribes of 
Maine. Representatives of any other Indian tribe which believes itself 
to be culturally affiliated with these human remains and associated 
funerary objects should contact Len Bobinchock, Acting Superintendent, 
Acadia National Park, P.O. Box 177, Bar Harbor, ME 04609, telephone: 
(207) 288-0374, before August 31, 1994. Repatriation of these human 
remains and associated funerary objects to the Wabanaki Tribes of Maine 
may begin after that date if no additional claimants come forward.
Dated: July 21, 1994

Francis P. McManamon,
Departmental Consulting Archeologist,
Chief, Archeological Assistance Division.

[Published: August 1, 1994]

Citation

Debora L. Threedy 


University of Utah S.J. Quinney College of Law

2009

Journal of Land, Resources & Environmental Law, Vol. 29, No. 1, p. 91, 2009

© Claiming The Shields, Threedy D., University of Utah 2015, This document is being used by the University of Utah, College of Education as a Capstone Project reference material on the Creatavist platform.

Abstract:      

This article is a case study of a repatriation dispute under the Native American Graves Protection and Repatriation Act (NAGPRA). The dispute arose when different tribal groups claimed a set of three leather shields held by the National Park Service. The article examines in depth the claims of the three groups, focusing on the disconnect between legal and anthropological determinations of cultural affiliation and using storytelling as a lens to evaluate the claims.

Keywords: NAGPRA, Native American Graves Protection and Repatriation Act, law and anthropology, storytelling, sacred object, archaeological artifact, tribe, tribal dispute, repatriation, Indian law, Native American rights

JEL Classification: K11, K30, K32, Q38

Accepted Paper Series