[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: 43CFR10.14]



[Page 244-245]

 

                    TITLE 43--PUBLIC LANDS: INTERIOR

 

PART 10_NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS

--Table of Contents

 

                            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.



[[Page 245]]



    (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.