[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR10.10]

[Page 230-232]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 10_NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS
--Table of Contents
 
Subpart C_Human Remains, Funerary Objects, Sacred Objects, or Objects of 
          Cultural Patrimony in Museums and Federal Collections
 
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
    (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

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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, 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

[[Page 232]]

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]