[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: 43CFR10.2]



[Page 222-226]

 

                    TITLE 43--PUBLIC LANDS: INTERIOR

 

PART 10_NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS

--Table of Contents

 

                         Subpart A_Introduction

 

Sec.  10.2  Definitions.



    In addition to the term Act, which means the Native American Graves



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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



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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 make 

available a list of Indian tribes and Indian tribal officials for the 

purposes of carrying out this statute through the Manager, National 

NAGPRA Program.

    (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 M[amacr]lama I N[amacr] K[umacr]puna '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) 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 addressed to: Manager, 

National NAGPRA Program, National Park Service (2253), 1849 C Street 

NW., Washington, DC 20240.

    (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.



[[Page 225]]



    (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



[[Page 226]]



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 

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.



[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]