[Code of Federal Regulations]

[Title 43, Volume 1]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 43CFR10.10]



[Page 237-239]

 

                    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 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



[[Page 238]]



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 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 Manager, National NAGPRA Program 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



[[Page 239]]



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; 71 

FR 16501, Apr. 3, 2006]