[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: 43CFR10.6]

[Page 224-226]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 10_NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS
--Table of Contents
 
Subpart B_Human Remains, Funerary Objects, Sacred Objects, or Objects of 
             Cultural Patrimony From Federal or Tribal Lands
 
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

[[Page 225]]

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 
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

[[Page 226]]

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]