[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR10.14]

[Page 245-246]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 10_NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS--Table 
 
                            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

[[Page 246]]

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.
    (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.