Title 43-Public Lands: Interior
Subtitle A-Office of the Secretary of the Interior

Part 10-NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT
REGULATIONS (DRAFT THREE 4/21/92)

Subpart A-Introduction

Sec.
10.1 Purpose
10.2 Authority
10.3 Applicability
10.4 Definitions
10.5 Consultation

Subpart B-Cultural Items in Museums or Federal Collections

10.6 Procedures for Consultation
10.7 Procedures for Determining Right of Possession
10.8 Procedures for Conducting Inventories and Developing Written Summaries
10.9 Procedures for Repatriation and Disposition

Subpart C-Cultural Items Recovered from Federal or Tribal Lands

10.10 Procedures for Consultation
10.11 Procedures for Determining Ownership
10.12 Procedures for Intentional Excavation
10.13 Procedures for Inadvertent Discovery

Subpart D-Administration

10.14 Dispute Resolution Procedures
10.15 Review Committee
10.16 Grant Procedures
10.17 Penalties

Subpart E-Appendices

10.18 Sample Memorandum of Understanding Regarding Collection Use,
      Treatment, and Right of Possession
10.19 Sample Memorandum of Understanding Regarding Graves Protection and/or
      Disturbance
10.20 Sample Repatriation Agreement involving Disposition of Federal
      Property
10.21 Review Committee Charter
Authority: 25 U.S.C. 3001

Subpart A-Introduction

10.1 Purpose

These regulations implement provisions of the Native American Graves
Protection and Repatriation Act of 1990 (25 U.S.C. 3001-3013), which affirms
the ownership rights of Native Americans to cultural items with which they
are affiliated by descent or culture. These regulations establish uniform
definitions, standards, procedures, and guidelines required of Federal
agencies, museums receiving Federal funds, and Indian tribes and Native
Hawaiian organizations while:

(a) conducting inventories and developing written summaries of Native
American cultural items that in the past have been controlled by Federal
agencies and museums receiving Federal funds in preparation for
deliberations concerning repatriation;

(b) establishing lineal descent or cultural affiliation between modern
Native American individuals, or Indian tribes and Native Hawaiian
organizations and Native American cultural items;

(c) undertaking appropriate repatriation or other disposition of these
cultural items;

(d) excavating and appropriately disposing of Native American cultural items
found on Federal or tribal lands whenever in situ preservation and
protection of the items is not feasible; and

(e) establish a committee to monitor and review the implementation of the
inventory and identification process and the repatriation activities
required by the statute.

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10.2 Authority

These regulations are promulgated pursuant to Section 13 of the Native
American Graves Protection and Repatriation Act of 1990 (25 U.S.C. 3011).
The authority to develop regulations affecting all Federal agencies, museums
receiving Federal funds, and Indian tribes and Native Hawaiian organizations
is assigned to the Secretary of the Interior.

10.3 Applicability

The regulations in this part apply to Native American human remains and
other kinds of cultural items as defined in Section 2 of the Act and Section
10.4(b) of these regulations. Such remains and objects may have been, or
will be, excavated or removed from Federal or tribal lands, or inadvertently
discovered pursuant to the authorities of the Antiquities Act (16 U.S.C.
431-433), the Reservoir Salvage Act (16 U.S.C. 469-469c), the National
Historic Preservation Act (16 U.S.C. 470h-2), or the Archeological Resources
Protection Act (16 U.S.C. 470aa-mm). Federal agencies and museums receiving
Federal funds must comply with the Act and these regulations for all
cultural items as defined by Section 4.4(b) of these regulations, in their
holdings or under their control as of the date of enactment, regardless of
whether or how or when these items were taken from Federal or tribal lands,
or from lands owned by others, if certain provisions contained in the
definitions given in Section 4 of these regulations apply. In the event that
items were removed from Federal lands which later were transferred from the
administrative control of one agency to another, the agency managing the
lands at the time of the removal is responsible for complying with the
provisions of this Act with respect to those items, unless the ownership of
said cultural items has been otherwise conveyed.

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10.4 Definitions

Definitions in this section have been grouped according to whether they are
affected parties, cultural items, provenience, ownership criteria, and
procedures:

(a) Affected parties applies to persons or entities who implement or are
impacted by the requirements and provisions of the Act. As used in these
regulations, the term:

(1) "Secretary" means Secretary of the Interior.
(2) "Federal agency" means any department, agency, or instrumentality of the
United States. Such term does not include the Smithsonian Institution.

(3) "Federal agency official" means the head of a Federal agency or designee
responsible for carrying out the provisions of the Act.

(4) "museum" means any institution or State or local government agency
(including any institution of higher learning) that receives Federal funds
and has possession of, or control over, Native American cultural items. Such
term does not include the Smithsonian Institution or any other government
agency.

(5) "museum official" means the museum director or designee responsible for
carrying out the provisions of the Act.

(6) "Native American" means of, or relating to, a tribe, people, or culture
indigenous to the United States.

(7) "Indian tribe" means any tribe, band, nation, or other organized Indian
group or community of Indians, including any Alaska Native village (as
defined in or established pursuant to, the Alaska Native Claims Settlement
Act), which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as Indians.

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(8) "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.

(9) "Native Hawaiian organization" means any organization that:

(i) serves and represents the interests of Native Hawaiians;

(ii) has as a primary and stated purpose the provision of services to Native
Hawaiians;and

(iii) has expertise in Hawaiian Affairs, and shall include the Office of
Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei.

(10) "Native American representative" means an individual who represents an
Indian tribe or Native Hawaiian organization, as designated by the governing
body for the purposes of carrying out the provisions of the Act.

(11) "traditional religious leader" means a individual member of an Indian
tribe or Native Hawaiian organization who is recognized by members of the
group as an expert in the group's traditional religious beliefs and
practices.

(b) Cultural items apply to specific objects or remains. For the purposes of
this part, the term:

(1) "human remains" means the physical remains of the human body, including
but not limited to bones, teeth, hair, ashes, mummified or otherwise
preserved soft tissues.

(2) "associated funerary objects" means:

(i) cultural items that, as part of the death rite or ceremony of a culture,
are reasonably believed to have been placed with individual human remains
either at the time of death or later, or

(ii) other cultural items reasonably believed to have been made exclusively
for burial purposes or to contain human remains.

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(3) "unassociated funerary objects" means cultural items that, as a part of
the death rite or ceremony of a culture, are reasonably believed to have
been placed with individual human remains, either at the time of death or
later, but for which the associated human remains are not in the possession
or control of the Federal agency or museum. These cultural items must be
identified by a preponderance of the evidence as having been removed from a
specific burial site of an individual culturally affiliated with a
particular Indian tribe or Native Hawaiian organization, or as being related
to specific individuals or families or to known human remains.

(4) "sacred objects" means specific ceremonial objects which are needed by
traditional Native American religious leaders for the practice of
traditional Native American religions by their present day adherents. The
definition includes both objects needed for ceremonies currently practiced
by traditional Native American religious practitioners and objects needed to
renew ceremonies that are part of traditional religions. The operational
part of the definition is that there must be "present day adherents" in
either instance. While many items might be imbued with sacredness in the
eyes of an individual, from ancient pottery sherds to arrowheads, provisions
of the statute are specifically limited to objects that were devoted to a
traditional Native American religious ceremony or ritual and which has
religious significance or function in the continued observance or renewal of
such ceremony.

(5) "objects of cultural patrimony" means objects having ongoing historical,
traditional, or cultural importance central to the Native American group or
culture itself, rather than property owned by an individual Native American.
These objects are of such central importance that they may not be alienated,
appropriated, or conveyed by any individual group member. Such object shall
have been considered inalienable by such Native American group at the time
the object was separated from such group. Objects of Native American
cultural patrimony include items such as Zuni War

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Gods, the Wampum belts of the Iroquois, and other objects of similar
character and significance to the Indian tribe as a whole.

(6) "unclaimed cultural items" means objects for which a known lineal
descendent or culturally affiliated Indian tribe or Native Hawaiian
organization is established but which are not claimed for a period of five
years following notification.

(7) "unaffiliated cultural items" means objects for which no lineal
descendants or culturally affiliated groups have been identified during or
after the inventory process.

(c) Provenience applies to locations or places. As used in this part the
term:

(1) "Federal lands" means any land other than tribal lands which are
controlled or owned by the United States, including lands selected by but
not yet conveyed to Alaska Native Corporations and groups organized pursuant
to the Alaska Native Claims Settlement Act of 1971.

(2) "tribal land" means:

(i) all lands within the exterior boundaries of any Indian reservation;

(ii) all dependent Indian communities as defined under 18 U.S.C. 1151.

(iii) any lands administered for the benefit of Native Hawaiians pursuant to
the Hawaiian Homes Commission Act, 1920, and section 4 of Public Law 86-3.

(3) "aboriginal land" means Federal land that is recognized by a final
judgment of the Indian Claims Commission or the United States Court of
Claims as having been used exclusively and occupied by some Indian tribe.

(4) "archeological site" means a location that contains or may contain
burial sites or human remains or other cultural items as defined in the Act.

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(5) "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, human remains have been
deposited.

(7) "repository" means a facility such as a museum, archeological center,
laboratory or storage facility managed by a university, college, museum,
other educational or scientific institution, a Federal, State, or local
Government agency or Indian tribe that can provide professional, systematic
and accountable curatorial services on a long term basis.

(d) Ownership is established by considering the following criteria. As used
in this part, the term:

(1) "right of possession" means possession obtained with the voluntary
consent of an individual or group that had authority of alienation.

(2) "lineal descendent" means an individual tracing his or her ancestry
directly and without interruption to the individual whose remains and
associated funerary objects are being claimed under the Act.

(3) "cultural affiliation" means that there is a relationship of shared
group identity which can reasonably be traced historically or
prehistorically between a present day Indian tribe or Native Hawaiian
organization and an identifiable earlier group.

(4) "prior ownership or control" means legitimate possession by an
identifiable individual or group from which contemporary Native American
individuals, Indian tribes or Native Hawaiian organizations are descendent.

(e) Procedures and required documents apply to processes that are required
while implementing the provisions of the Act. As used in this part, the
term:

(1) "inventory plan" means a written document, prepared by a Federal agency
or museum receiving Federal funding, that identifies the activities,
personnel, funding needs, and schedule that

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will be used by a Federal agency or museum to complete the inventory of its
Native American human remains and associated funerary objects.

(2) "inventory report" means an itemized list, prepared by a Federal agency
or museum receiving Federal funding, that describes individual Native
American human remains and associated funerary objects contained in a
collection and establishing the lineal decent, cultural affiliation, or lack
of either between the remains and objects and a modern individual, Indian
tribe, or Native Hawaiian organization, based upon the geographical origin,
acquisition, accession, and other readily available information about the
human remains and associated funerary objects.

(3) "summary" means a written description, prepared using available
information, of the scope of a collection containing unassociated funerary
objects, sacred objects, or objects of cultural patrimony, and including
descriptive information about the kinds of objects included, the
geographical location from which the items originally were removed, the
means and period of their acquisition and the known or likely cultural
affiliation of the items in cases for which it is readily ascertainable.

(4) "consultation" means an exchange of written and/or oral communication
regarding a proposed activity for purposes of achieving mutual understanding
and agreement.

(5) "notification" means the formal and legal written processes of informing
lineal descendents or groups for which cultural affiliation is established
or likely of the completion of an inventory or of an inadvertent discovery.

(6) "intentional excavation" means the planned archeological removal of
Native American human remains and other cultural items from previously
identified or expected burial or archeological sites on Federal or tribal
lands.

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(7) "inadvertent discovery" means the unanticipated encounter detection of
Native American human remains or cultural items from previously unidentified
or unknown burial or archeological sites.

(8) "advice of discovery" means any written communication, submitted by a
person who has discovered human remains or other cultural items, to a
Federal agency official, and, as appropriate, to the landowning Native
American group.

(9) "inadvertent discovery agreement" means a course of action developed in
consultation with appropriate Indian tribes and Native Hawaiian
organizations, that identifies the care, treatment, and disposition of
specific cultural items that are inadvertently discovered.
(10) "cultural item recovery plan" means a plan developed in consultation
prior to an undertaking, that identifies the care, treatment, handling, and
disposition of cultural items that may be encountered in undertaking a
project on Federal or tribal lands.

(11) "treatment" means the methods and techniques of archeological
excavation, analysis, and recording to which cultural items are subjected in
planned excavation and inadvertent discovery situations.

(12) "disposition" means the relinquishment of control by Federal agencies
to the lineal descendents or culturally affiliated Indian tribe or Native
Hawaiian organization of cultural items following their treatment.

10.5 Consultation

Each Federal agency and museum responsible for compliance with the Act
shall:

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(a) make a reasonable and good faith effort to identify potential lineal
descendents and the Indian tribes and Native Hawaiian organizations that are
culturally affiliated with the cultural items that are affected by actions
that the Federal agency or museum proposes to undertake;

(b) provide reasonable opportunities for potential lineal descendents and
culturally affiliated Indian tribes and Native Hawaiian organizations to
identify themselves;

(c) seek the assistance of potential lineal descendents and culturally
affiliated Indian tribes and Native Hawaiian organizations, and other
sources of expertise, including, but not limited to, academic institutions
and State agencies responsible for Native American concerns, to identify
traditional religious leaders who should be consulted;

(d) define consultation procedures that take into account the cultural
values of the pertinent tribes and organizations;

(e) ensure that Indian tribe and Native Hawaiian organization
representatives and traditional religious leaders have reasonable and timely
opportunities to learn about, comment upon, and consult regarding actions
that the Federal agency or museum may carry out while implementing the
provisions of the Act;

(f) initiate and carry out consultation in accordance with such procedures
at the earliest feasible stage in planning an action that may affect Native
American cultural items, providing all pertinent information to potential
consulting parties and affording such parties reasonable opportunities to
respond and otherwise to participate in consultation;

(g) strive to reach agreement among consulting parties on a course of
action; and

(h) maintain complete and adequate records of consultations.

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Subpart B-Cultural Items in Museums or Federal Collections

10.6 Procedures for Consultation

Federal agency and museum officials are responsible for consulting with
Indian tribe and NativeHawaiian organization officials and traditional
religious leaders in developing and completing the inventory of Native
American human remains and associated funerary objects in cultural items
museum or Federal collections. This consultation must be conducted in
accordance with the general provisions of Section 10.5 of these regulations.

(a) Required Consultation. Federal agency and museum representatives shall
consult with:

(1) Native American representatives and traditional religious leaders of all
applicable Indian tribes and Native Hawaiian organizations:

(i) from whose lands cultural items originated;

(ii) from whose judicially established aboriginal lands cultural items
originated;

(iii) that can reasonably be assumed to be culturally associated with the
cultural item; and, (2) in the case of cultural items believed to be
affiliated with Native Hawaiians, both the Office of Hawaiian Affairs and
Hui Malama I Na Kupuna O Hawai'i Nei.

(b) Initiation of Consultation. Federal agency and museum officials shall
begin consultation at the earliest possible opportunity, but no later than
the first of the following to occur:

(1) the point in the inventory process when the cultural affiliation of
human remains and associated funerary objects is being investigated
actively, or

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(2) upon provision of the written summary of unassociated funerary objects,
sacred objects  and objects of cultural patrimony to potentially affiliated
tribes and Native Hawaiian organizations, or

(3) five years from the date of enactment of the Act.

(c) Provision of Information. Federal agency and museum officials must
provide the following information in writing to potentially culturally
affiliated Indian tribes and Native Hawaiian organizations:

(1) general requirements:

(i) a list of other potentially culturally affiliated Indian tribes or
Native Hawaiian  organizations (if any) that may be, or have been, consulted
regarding the same cultural items;

(ii) indication that upon request and in a reasonable manner to be agreed
upon by all parties, they may have access to the cultural items, records,
catalogues, relevant studies or other pertinent data for the limited
purposes of determining geographic origin, cultural affiliation, and basic
facts surrounding the acquisition and accession of cultural items currently
in the collection;

(2) additional requirements for inventories:

(i) a general description of how they plan to conduct the inventory;

(ii) the projected time frame for conducting the inventory;

(iii) indication that documentation used to identify cultural affiliation
will be sent upon request in addition to the inventory lists;

(d) Requests for Information. Federal agency and museum officials shall
request the following information from the appropriate Indian tribe and
Native Hawaiian organization representatives:

(1) general requirements:

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(i) name and address of the individual officially designated by the Indian
tribe or Native Hawaiian organization as its representative in consultations
on matters related to these cultural items;

(ii) names and addresses of traditional religious leaders who should be
consulted regarding the collections;

(iii) how the Indian tribe or Native Hawaiian organization would like the
consultation to proceed;

(iv) a list of individuals or other tribes who should be contacted to
participate in the consultation process.

(v) a list of the kinds of cultural items that the tribe considers to be
sacred or objects of cultural patrimony.

(2) for inventories, the names and addresses of potential lineal descendants
of the individual remains and associated cultural items under consideration
are also required.

10.7 Procedures for Determining Right of Possession

This section identifies procedures to be followed in order to establish
lineal descent, cultural affiliation, and prior ownership or control of
cultural items in museum or Federal collections. Federal agencies or museums
must apply these criteria during the inventory or summary development
process, or Indian tribes or Native Hawaiian organizations must apply them
in order to demonstrate a connection with cultural items.

(a) Human Remains and Associated Funerary Objects. The right of possession
of Native American human remains and associated funerary objects is assigned
in priority order to:

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(1) the Federal agency or museum, when the original acquisition was
accomplished with the full knowledge and consent of the next of kin or the
official governing body of the appropriate culturally affiliated Indian
tribe or Native Hawaiian organization,

(2) the lineal descendants,
(3) the Indian tribe or Native Hawaiian organization which has the closest
cultural affiliation with such remains or objects and which, upon notice,
states a claim for such remains or objects.

(b) Unassociated Funerary Objects, Sacred Objects, and Objects of Patrimony.
The right of possession of unassociated funerary objects, sacred objects,
and objects of cultural patrimony is assigned in priority order to:

(1) the Federal agency or museum, when the original acquisition was
accompanied with the voluntary consent of an individual or group with
authority to alienate such objects,

(2) the lineal descendants of the individual who previously owned or
controlled the object,

(3) a requesting Indian tribe or Native Hawaiian organization which can show
that the sacred object was formerly owned or controlled by a member.

(c) Lineal Descent. Lineal descent between a claimant or group of claimants
and an individual's remains, associated funerary object, or object formerly
under that individual's ownership or control shall be established by a
direct and uninterrupted relationship between the claimants and the
individual in question.

(d) Cultural Affiliation. Cultural affiliation between a present-day Indian
tribe or Native Hawaiian organization and an individual's remains and
associated funerary objects shall be established through some combination of
geographical, kinship, biological, archeological, anthropological,
linguistic, folklore, oral tradition, historical or other relevant
information or expert opinion.

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(1) cultural affiliation of an Indian tribe or Native Hawaiian organization
to Native American human remains or cultural items shall be established by a
simple preponderance of the evidence. Claimants do not have to establish
cultural affiliation with absolute certainty.

(2) determination of a cultural affiliation between a present-day Indian
tribe or Native Hawaiian organization and the human remains and cultural
items of an earlier group must satisfy all of the following criteria:

(i) existence of an identifiable present-day group. Evidence to support this
claim can include:
(A) Federally recognized tribes are automatically included as present-day
groups.

(B) copy of a current governing document that describes membership criteria
and procedures governing the affairs of the Indian tribe or Native Hawaiian
organization, and/or

(C) a listing of all current members and their addresses, establishing that
a substantial portion of the membership constitutes a present-day community,
and/or

(D) evidence that the present-day Indian tribe or Native Hawaiian
organization is essentially distinct from any other Indian tribe or Native
Hawaiian organization.

(ii) existence of an identifiable earlier group. Evidence to support this
claim must:

(A) establishes the existence of the earlier group as a biologically
distinct population, or

(B) documents distinct patterns of material culture manufacture and
distribution for the earlier group, or

(C) establishes the identity and cultural characteristics of the earlier
group.

(iii) existence of a shared group identity which can be reasonably traced
between the present-day Indian tribe or Native Hawaiian organization and the
earlier group. Evidence to support

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this claim must demonstrate that a present-day group has been identified
from historical times to the
present, on a substantially continual basis, as descending from members of
the earlier group.

(3) in the case of conflicting claims, degrees of cultural affiliation shall
be (with priority given in the order listed):

(i) in the group who has inhabited the specific area prehistorically and/or
historically and who continues to do so, who can demonstrate through a
preponderance of the evidence that they have an exclusive shared
relationship with the individuals represented by the human remains or with
the group who owned or controlled the items in question.

(ii) in the group who prehistorically and/or historically inhabited the
specific area but moved away as a group to a reservation or similar type of
settlement, who can demonstrate through a simple preponderance of the
evidence that they have an exclusive shared relationship with the individual
represented by the human remains or with the group who owned or controlled
the items in question.

(iii) in the group who once inhabited the specific area contemporaneously
with other groups at the time during which human remains or cultural items
were made or deposited through a simple preponderance of the evidence that
they have a shared, yet not necessarily exclusive, relationship with the
individuals represented by the human remains or with the group who owned or
controlled the items in question.

(4) Available documentation may fail to establish reasonably cultural
affiliation between present-day American Indian tribes or Native Hawaiian
organizations and specific cultural items. Such studies as are necessary to
collect new information that will or are likely to demonstrate cultural
affiliation:

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(i) may commence without agreement between the repository and the potential
claimant, only if the result is expected to bear upon cultural affiliation
that is otherwise in doubt;
(ii) will be limited to the sole purpose of determining cultural
affiliation;
(iii) will be conducted in conjunction with the inventory process;
(iv) will not be used solely as an impediment to the return of said cultural
items; and
(v) will be paid for by the Federal agency or museum unless otherwise
agreed.

(e) Prior Ownership or Control. Prior ownership or control shall be
established by a preponderance of geographical, kinship, biological,
archeological, anthropological, linguistic, folkloric, oral traditional,
historical, or other relevant information or expert opinion demonstrating
legitimate possession of a sacred object or object of cultural patrimony by
an identifiable individual or group from which contemporary individuals or
groups are descendent.

(f) Determination of lineal descent, cultural affiliation, or prior
ownership or control can be established either:

(1) during the inventory or summary process activities that are carried out
by museums or Federal agencies, or

(2) through a preponderance of the evidence that is presented by a
descendent or affiliated Indian tribe or Native Hawaiian organization.

 10 8 Procedures for Conducting Inventories and Developing Written
Summaries

This section identifies the procedures that Federal agencies and museums
receiving Federal funds
must follow in order to identify, describe, and evaluate Native American
human remains and other

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cultural items that may be included in their holdings. The procedural
requirements vary according to the kind of cultural item being considered.

(a) Inventory for Human Remains and Associated Funerary Objects.

(1) Inventory Flexibility. The inventory process must be flexible in
recognition of the varying size and scope of holdings and the quality of
documentation among the nation's repositories.

(2) Standards for Inventory Content. Museum or Federal agency officials
shall conduct an inventory of the human remains and associated funerary
objects for which they are responsible.

(i) Basic description of human remains shall consist of the following:
nature of the remains (e.g. cremation, skeleton, isolated bone, or partial
skeleton), basic descriptive information by individual, or by skeletal
elements when individuals cannot be identified, geographic origin, cultural
affiliation or absence of cultural affiliation, and the basis for
establishing cultural affiliation or its absence.

(ii) Basic description of the associated funerary objects shall include the
inventory designation of the human remains with which the object is
associated, object type, basic descriptive information of each object,
geographic origin, cultural affiliation, and the basis for establishing
cultural affiliation.
(3) The product of inventory activities is an inventory report. An inventory
report shall consist of the descriptions and evaluations outlined in section
10.8(a)(2).

(4) Required Inventory Procedure

(i) Inventory and identification requirements. Each museum or Federal agency
should develop an understanding of the scope of its holdings of human
remains and associated funerary objects. Of major concern are
thegeographical origins and Native American cultural groups known or likely
to be represented in the collections of human remains and associated
funerary objects. Once

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each repository has identified the geographical origins of its holdings and
potential or established cultural affiliations that may be represented in
the collections, museum and Federal agency officials shall consult with the
lineal descendants, tribal government and Native Hawaiian organization
officials, and traditional religious leaders from all potentially affiliated
groups.

(ii) Each museum and Federal agency shall develop an inventory and
identification plan that outlines the activities, schedule, and funding
required to complete the inventory and identification of the it's holdings
of Native American human remains and associated funerary objects
within the time period required by the statute.

(iii) Requirement to supply available documentation in addition to
geographical and cultural affiliation. Each repository shall examine
accession files, catalogues, research reports, field notes, photographs, and
other related documentation, to determine what additional documentation
exists related to human remains and associated funerary objects in the
collection. Upon request by the official representative of an Indian tribe
or Native Hawaiian organization which receives or should have received
notice, a museum or Federal agency shall supply additional available
documentation to supplement the basic descriptions required by subsection
a(2).

To meet this requirement, museums and Federal agencies shall summarize
existing records for the limited purpose of determining the geographical
origin, cultural affiliation, and basic facts surrounding acquisition and
accession of Native American human remains and associated funerary objects.
Data required in addition to the basic fields identified in subsection a(2)
include the site designation (for reference purposes), acquisition type
(e.g. gift, field collection, etc.), acquisition date and relevant studies
and reports. Specific information on site location that could lead to
looting or vandalism shall not be released pursuant to the Archaeological
Resources Protection Act (16 U.S.C. 470aa-mm) .

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(iv) Notification. Within six months of completion of the inventory, the
museum or Federal agency official shall notify appropriate Indian tribal and
Native Hawaiian organization officials of the Native American human remains
and associated funerary objects in their collections with which they are or
may be affiliated. Notification shall consist of a certified letter, with
return receipt requested, which includes a list of the human remains and
associated funerary objects. Whenever known, the circumstances of
acquisition shall be provided for each entry. If appropriate given the
nature of the holdings, two lists shall be provided:

(A) lists of human remains or associated funerary objects that are clearly
identifiable as being affiliated with the notified Indian tribe or Native
Hawaiian organization; and

(B) lists of human remains and associated funerary objects that may be
reasonably believed to be the remains or funerary objects affiliated with
the notified Indian tribe or Native Hawaiian organization.

A copy of each certified notification letter shall be sent to the Secretary
of the Interior who shall publish each notice in the Federal Register.

(4) Extension of the deadline may be requested by any museum that has been
unable to complete the inventory and identification process within the
required time period. The Secretary of the Interior may extend statutory
time requirements upon finding that the museum has undertaken a good faith
effort. An indication of good faith shall include the development of a
written plan to carry out the inventory and identification process. Minimum
components of an inventory plan are: definition of the steps required, the
position title(s) of the persons responsible for each step, the planned
schedule of implementation of the plan, and funding required to implement
the plan.

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(b) Summary for Unassociated Funerary Objects, Sacred Objects, and Objects
of Cultural Patrimony.

(1) General Requirements. Based on available information, each museum or
Federal agency official shall provide a written summary describing holdings
of unassociated funerary objects, sacred objects, and objects of cultural
patrimony. The summary shall serve in lieu of an object-by-object inventory
for these kinds of cultural items, although if an inventory of such items is
available it may be substituted. The summary shall be completed within the
time frame required by the statute.

(2) Standards for Summary Content. The written summary shall contain
information on the scope of each kind of object within the repository's
holdings. For each kind of object covered by the summary, it shall also
contain an estimated number of objects, reference to geographical location,
the means and period of acquisition, and observations about lineal descent
or cultural affiliation, where readily ascertainable.

(3) Requirement for access to records. In a reasonable manner to be agreed
upon by all parties, official representatives of Indian tribes and Native
Hawaiian organizations shall have access to records, catalogues, relevant
studies or other pertinent data for the limited purposes of determining
the geographic origin, cultural affiliation and basic facts surrounding
acquisition and accession of Native American unassociated funerary objects,
sacred objects, and cultural patrimony.

10.9 Procedures for Repatriation and Disposition

(a) Human Remains and Associated Funerary Objects.

(1) Evidence of lineal descent or cultural affiliation shall be based upon:
(i) the Federal agency and museum's inventory process, or

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(ii) where the claimant can show lineal descent or cultural affiliation by a
preponderance of the evidence based upon geographical, kinship, biological,
archaeological, anthropological, linguistic, folkloric, oral tradition,
historical, or other relevant information or expert opinion.

(2) Once it is established that lineal descent or cultural affliation exists
between an individual, Indian tribe, or Native Hawaiian organization and
particular Native American human remains or associated funerary objects the
Federal agency official or museum official shall, upon request of the lineal
descendent or culturally affiliated Indian tribe or Native Hawaiian
organization, return those cultural items as expeditiously as possible.

(b) Unassociated Funerary Objects, Sacred Objects, and Objects of Cultural
Patrimony.

(1) Federal agency and museum officials shall attempt to identify lineal
descendents of former owners or cultural affiliation for unassociated
funerary objects, sacred objects, or objects of cultural patrimony. A
potential lineal descendent or culturally affiliated Indian tribe or Native
Hawaiian organization may provide evidence on their own behalf to support a
claim of lineal descent or cultural affiliation.

(2) The Federal agency or museum official shall expeditiously return sacred
objects and objects of cultural patrimony upon request where the following
conditions exist:

(i) the items conform to the definition for an unassociated funerary object,
sacred object, or object of cultural patrimony; and

(ii) evidence presented by the claimant exists which, if standing alone
before the introduction of evidence to the contrary, would support a finding
that the Federal agency or museum did not have the right of possession to
such object; and

(iii) the items had been:
(A) in the claimant's ownership or control; or

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(B) in the ownership or control of an individual from which the claimant is
a lineal descendent; or

(C) in the ownership or control of the Native American group from which the
claiming Indian tribe or Native Hawaiian organization is a descendent.

(3) Repatriation of unassociated funerary object, sacred object, or object
of cultural patrimony is not required when the Federal agency or museum
official can establish the right of possession. However, Federal agencies
and museums may, on their own authority, return or repatriate Native
American cultural items to Indian tribes, Native Hawaiian organizations, or
individuals.

(d) Scientific and Medical Study. For purposes of the application of these
regulations, there are three kinds of study pertaining to cultural items.
(1) Studies ongoing at the date of enactment. Cultural items may be a part
of a specific scientific study that was ongoing or incomplete as of the date
of enactment. If repatriation of such items is requested by a lineal
descendent, Native American tribe, or Native Hawaiian organization, then
those items must be expeditiously returned, unless:
(i) the items are indispensable to the completion of the scientific study;
and
(ii) the outcome of such study would be of major benefit to the United
States.

(2) Studies necessary to determine the cultural affiliation of human remains
or other cultural items. In some cases, it may be necessary to conduct new
scientific study for the sole purposes of determining cultural affiliation
between a modern Indian tribe or Native Hawaiian organization and specific
cultural items. The provisions attending such studies shall be as specified
in Section 6(d)(4) of these regulations.

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(3) Other future studies. For any and all other studies which do not have as
a stated objective the determination of cultural affiliation, consent from
the lineal descendent or culturally affiliated Native American tribe or
Native Hawaiian organization is required. Such consent is to be
derived through consultation and development of a written plan that
considers the kind of study, treatment, and handling of cultural items, as
well as who bears the financial responsibility.

(4) In all cases, cultural items retained for study must be returned to the
requesting lineal descendent or culturally affiliated Indian tribe or Native
Hawaiian organization within 90 days of the completion of the specific
study.

(e) Sharing of Information. Reports and other records held by Federal
agencies and museums often contain information that is not published or
common knowledge, but may be of interest to lineal descendants, American
Indian tribes, or Native Hawaiian organizations. Such information shall
be shared with descendants and potential affiliates in order to assist them
in demonstrating valid claims for cultural items, subject to the
requirements of the Archaeological Resources Protection Act and its
implementing regulations regarding disclosure of protected archaeological
site location information. Federal agencies and museums also may share such
information with each other to assist in the identification of appropriate
lineal descendants or cultural affiliation. The Federal agency official or
museum official shall ensure that sensitive or confidential information
about cultural items is provided only to those who may assist in such
lineage or affiliation identification.

(f) Multiple Requests for Repatriation. Where there is more than one request
for repatriation of any cultural item(s) and the Federal agency official or
museum official cannot determine clearly which requesting party is the most
appropriate claimant, the Federal agency official or museum official may
retain such item(s) until the requesting parties agree upon the disposition
of the item(s) in question.

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If the competing parties cannot reach agreement on the appropriate
disposition of an item(s), then they may request the Review Committee
facilitate the resolution of the dispute.

(g) Liability of Claims. Any museum and museum official that repatriates any
cultural item(s) in good faith as prescribed by Section 7 (f) of the Act and
these regulations, shall not be held liable for claims by an aggrieved party
or for claims of breach of fiduciary duty, public trust, or violations of
state law that are inconsistent with the provisions of the Act.

(h) Disposition of Federal property as part of a repatriation action.
Federal agency officials are authorized by this Act to transfer human
remains, associated funerary objects, unassociated funerary objects, sacred
objects, and objects of cultural patrimony to identified lineal descendents
or culturally affiliated American Indian tribes, or Native Hawaiian
organizations. Federal agency officials shall insure that internal agency
procedures are adequate to maintain adequate records to permanently document
all repatriation actions including what property was transferred and to whom
at what
(i) Relinquishment. Nothing in these regulations shall prevent a lineal
descendent or the governing body of an American Indian tribe or Native
Hawaiian organization from expressly relinquishing title to, right of
possession, or control over any Native American human remain, funerary
object, sacred object, or object of cultural patrimony.

(k) Unaffiliated Human Remains and Unclaimed Cultural Items.

(1) Unaffiliated human remains. If lineal descent or cultural affiliation of
human remains and other cultural items cannot be established during the
inventory process or through subsequent claims by individuals, American
Indian tribes or Native Hawaiian organizations, items shall be considered
unaffiliated. Federal agency officials and museum officials shall report the
inventory information about such remains in their holdings to the Secretary.
The Secretary will transmit this information

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to the Review Committee. The Committee is responsible for compiling an
inventory of unaffiliated human remains in the possession or control of each
Federal agency and museum, and for recommending to the Secretary specific
actions for developing a process for the disposition of such human remains.

(2) Unclaimed cultural items. Native American cultural items for which
lineal descendents or culturally affiliated American Indian tribes or Native
Hawaiian organizations have been identified that are not claimed within five
(5) years of consultation under section 3 of the statute, or notification
under section 7 of the statute, shall be considered unclaimed. Federal
agency officials and museum officials shall report on the presence of such
cultural items in their holdings to the Secretary. Federal agencies and
museums shall continue to curate these items following accepted professional
standards.

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Subpart C-Cultural Items Recovered from Federal or Tribal Lands

10.10 Procedures for Consultation

Federal agency officials shall consult with the appropriate Indian tribe or
Native Hawaiian organization officials prior to any undertaking which may
effect Native American human remains or cultural items, or upon discovery of
cultural items on Federal or tribal lands.

(a) Whenever possible, Federal agencies should enter into programmatic
agreements with appropriate Indian tribes or Native Hawaiian organizations
that have claimed, or are likely to claim, cultural items found on Federal
lands or as a result of Federal agency activities on tribal lands. Such
agreements should address all agency land management activities that could
result in the excavation or discovery of cultural items that are covered by
provisions of the statute. Consultation should lead to the establishment of
terms and conditions for effectively implementing Section 3 (c) and (d) of
Act, which address the treatment and disposition of cultural items uncovered
either as a result of intentional excavation or through inadvertent
discovery.

(b) The Federal agency official shall be cognizant that Native American
officials may need to confer with traditional, non-official leaders or
elders of the tribe prior to rendering a decision regarding agreement.

(c) The Federal agency official shall attempt to accommodate the wishes of
culturally affiliated Indian tribes and Native Hawaiian organizations
regarding the treatment of any Native American human remains and other
cultural items.

(d) The Federal agency official shall follow the wishes of the affiliated
Indian tribe or Native Hawaiian organization regarding the disposition of
any Native American human remains and other cultural items.

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(e) Written Agreement. The consultation should result in a document, signed
by the appropriate Federal agency official and official Native American
representatives. The document shall condition the issuance of a permit under
section 4 of the Archaeological Resources Protection Act of 1979 (93 Stat.
721; 16 U.S.C. 470aa et seq.), which is required for the removal of cultural
items pursuant to Section 3(c)(1) of the Act. At minimum, consultation
should document the understanding between lineal descendents or culturally
affiliated tribes or Native Hawaiian organizations and Federal agency
officials responsible for the undertaking on the following:

(1) The application of the statutory definitions of each kind of cultural
item;

(2) The treatment, care, and handling of any cultural items recovered;

(3) The kinds of scientific analysis that is appropriate for each kind of
cultural item;

(4) The nature of the dissemination/distribution of scientific or medical
reports prepared on the cultural items;

(S) The ultimate disposition of each kind of cultural item.

10.11 Procedures for Determining Ownership

(a) Human Remains and Associated Funerary Objects. The ownership or control
of Native American human remains and associated funerary objects is assigned
in priority order to:

(1) the lineal descendants,

(2) whichever of the following can demonstrate right of possession through a
preponderance of the evidence showing a cultural affiliation with the
remains and associated funerary objects:

(i) the Indian tribe or Native Hawaiian organization on whose tribal land
such objects or remains were discovered, or

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(ii) the Indian tribe or Native Hawaiian organization which has the closest
cultural affiliation with such remains or objects and which, upon notice,
states a claim for such remains or objects, or

(iii) the Indian tribe that is recognized as aboriginally occupying the area
in which the objects were discovered by a final judgment of the Indian
Claims Commission or the United States Court of Claims.

(b) Unassociated Funerary Objects, Sacred Objects, and Objects of Cultural
Patrimony. The right of possession of unassociated funerary objects, sacred
objects, and objects of cultural patrimony shallbe assigned to which ever of
the following which can demonstrate a preponderance of the evidence showing
a cultural affiliation with the objects:

(1) the Indian tribe or Native Hawaiian organization on whose tribal land
such objects or remains were discovered, or

(2) the Indian tribe or Native Hawaiian organization which has the closest
cultural affiliation with such remains or objects and which, upon notice,
states a claim for such remains or objects, or

(3) the Indian tribe that is recognized as aboriginally occupying the area
in which the objects were discovered by a final judgment of the Indian
Claims Commission or the United States Court of Claims.

(c) Lineal Descent. Lineal descent between a claimant or group of claimants
and an individual's remains or associated funerary objects shall be
established by a direct and uninterrupted relationship between the
claimant(s) and the individual in question.

(d) Tribal Land. Claims based upon the provenience of cultural items on
tribal land shall be established through geographical information
establishing the discovery of said items within the boundaries established
in section 10.4(c)(2).

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(e) Cultural Affiliation. Cultural affiliation between a contemporary Indian
tribe or Native Hawaiian organization and an individual's remains and
associated funerary objects shall be established through some combination of
geographical, kinship, biological, archeological, anthropological,
linguistic, folklore, oral tradition, historical or other relevant
information or expert opinion which meets the requirements outlined in
section 10.7(d).

(f) Aboriginal Land. Claims based upon the provenience of cultural items
within the aboriginal land of an identified Indian tribe or Native Hawaiian
organization shall be established through geographical information
establishing the discovery of said items within Federal land that is
recognized by a final judgment of Indian Claims Commission or the United
States Court of Claims as the aboriginal land of some Indian tribe.

(g) If the ownership of cultural items is in dispute, the cultural items may
be held by the Federal agency pending resolution of the dispute.

(h) Relinquishment. Nothing in this section shall prevent the governing body
of an Indian tribe or Native Hawaiian organization from expressly
relinquishing control over any native American human remains, or title to or
control over any funerary object, sacred object, or object of cultural
patrimony.

10.12 Procedures for Intentional Excavation

(a) In the absence of any previous formal agreement between the agency and
the appropriate American Indian tribe or Native Hawaiian organization
regarding the provisions of the Act, the Federal agency official or the
non-Federal users of Federal or tribal lands through the agency, shall
determine whether a proposed activity such as agency operations,
development, or archaeological

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research might or will result in the disturbance of Native American burial
sites or the burial locations within archaeological sites, or encounter
cultural items as defined in Section 4 of these regulations.

(b) If it is determined that disturbance of such items on Federal lands may
occur, the Federal agency official shall inform appropriate American Indian
tribe or Native Hawaiian organization in writing of agency intentions, and
that the agency desires to consult for the purposes of reaching agreement
with official representatives of the tribe(s) or organization(s) to
determine appropriate treatment and disposition of such items.

(c) This communication shall:

(1) describe the proposed activity and its general location, including how
the agency has determined that Native American burial or cultural items may
be affected by the project and what prudent and feasible steps have been
taken to avoid or minimize possible disturbance to such sites or areas;

(2) describe the agency's proposed treatment of cultural items recovered
through archeological excavation in advance of the project;

(3) propose a specific course of action to be followed should human remains
or other cultural items be encountered from burial or archeological sites
that have not been identified prior to the initiation of project execution,
and

(4) propose a time and place for meetings or consultations should such be
needed to resolve further issues and reach agreement.

(d) Proof of Consultation. Written agreements as described above, once
signed by both parties, or evidence of notification and attempts to consult,
also demonstrate proof of consultation.

(e) Specific Pro-visions for Projects on Federal Lands.

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(1) If after good faith consultation the Federal agency and Native American
owners cannot reach agreement on the treatment and disposition of the
cultural items from Federal lands, cultural items will be returned to the
appropriate American Indian tribe or Native Hawaiian organization after
a period not to exceed one (1) year following project completion, unless
otherwise agreed.

(2) If there is a dispute between American Indian tribes or Native Hawaiian
organizations over the appropriate disposition of the cultural items that
may be recovered from Federal lands, the
hierarchy of ownership set forth in Section 3(a) of the Act shall prevail.
(f) Specific Provisions for Projects on Tribal Lands.

(1) For undertakings occurring on tribal lands, consent must be obtained
from the tribe on a plan for treatment and disposition of cultural items
that will be disturbed by the agency's activities.

(2) If, in spite of a good faith consultation effort, there is no consent
from the American Indian tribe or Native Hawaiian organization whose tribal
land is being impacted concerning the treatment and disposition of such
cultural items as may be affected during project implementation,
the project may proceed only if it is possible to avoid burial sites or
archeological sites containing cultural items.

10.13 Procedures for Inadvertent Discovery

(a) Any person who knows, or has reason to know, that Native American human
remains or cultural items have been discovered on Federal or tribal lands
must notify, in writing, the responsible Federal agency official or
appropriate Indian tribe or Native Hawaiian organization of the discovery.
This notice is termed advice of discovery.

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(b) If the discovery occurs in connection with an on-going activity on
Federal or tribal lands, the Federal agency official responsible for the
activity shall ensure that activity in the vicinity of the discovery ceases
immediately. Further, the Federal agency official shall also:

(1) take immediate steps to secure and protect discovered human remains and
other cultural items, including as appropriate, stabilization, covering or
reburial; and

(2) immediately notify by certified, return receipt letter, the appropriate
Indian tribe or Native Hawaiian organization of the discovery, and include
pertinent information as to kind of material, condition, and the
circumstances surrounding the discovery.

(c) The activity may resume:

(1) On Federal lands, 30 days after the Federal agency official receives the
returned receipt from the certified notification letter.

(2) On Tribal or Native Hawaiian lands, only after consent by the Indian
tribe or Native Hawaiian organization that it concurs with a discovery plan
for the removal, treatment, and disposition of the cultural items.

(3) Upon reaching agreement with the appropriate Tribes, the activity may
resume immediately on Federal or Tribal lands, even if 30 days have not
expired.
(d) Thirty Day Consultation Period for Inadvertent Discoveries on Federal
and Tribal lands. The purpose of the 30 day consultation period is to
provide the culturally affiliated Indian tribes and Native Hawaiian
organizations, who are the owners of cultural items, the opportunity to
reclaim the human remains and other cultural items from federal lands.
Indian tribes and Native Hawaiian organizations will determine the ultimate
disposition of cultural items on their lands. During this period:

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(1) The Federal agency official shall notify within 24 hours the appropriate
Indian tribe or Native Hawaiian organization believed to be owners of said
cultural items.

(2) This notification must consist of all available information on the
discovery situation, including the kinds of cultural items discovered, their
apparent age and condition and propose a treatment plan. The Federal agency
official shall request consultation with the tribe on the disposition of the
discovered cultural items.

(3) Within thirty (30) days of notification, the Tribe must either concur in
the proposed plan, propose an alternative treatment and disposition plan for
the cultural items, or forfeit its consultation rights regarding removal,
disposition and treatment.

(4) If the Tribe does not respond, the Federal agency may authorize removal
of the items only from federal lands in accordance with its treatment and
disposition plan and the terms and provisions of the ARPA permit. The
cultural items shall considered unclaimed and disposed of to the appropriate
tribe after a period not to exceed one year following section 10.9(k) of
these regulations.

(5) If the Tribe concurs in the Federal agency's plan, such plan shall be
implemented.

(6) If after good faith consultation, the agency and the Tribe cannot reach
agreement on the treatment of the discovered items the material may be
removed and the cultural items returned to the Tribe after a period not to
exceed one year following project completion.
(e) Special Provisions for Inadvertent Discovery on Tribal Lands. As owners
of cultural items found on its lands, an Indian tribe or Native Hawaiian
organization must consent prior to the implementation of any plan calling
for the removal of the cultural items. In the absence of agreement on a
plan, the Federal agency must either continue consultation until an
agreement is reached or, avoid and preserve the cultural items in place.

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Subpart D-Administration

10.14 Dispute Resolution Procedures

(a) Kinds of potential disputes. The following decisions shall be subject to
the dispute resolution procedures set forth in this section:

(1) character of the items or objects;

(2) determination of cultural affiliation;

(3) determination of right of possession;

(4) appropriate disposition of human remains and other cultural items.

(b) Hierarchy of dispute resolution forums. Disputes among lineal
descendant, Indian tribes, or Native Hawaiian organizations and Federal
agencies or museums related to the determination of cultural affiliation,
right of possession or the character of cultural items, or disputes as to
the appropriate disposition of human remains or cultural items shall be
resolved in compliance with the Administrative Dispute Resolution Act (PL
101-552, 104 Stat. 2736) and Executive Order 12778 regarding Civil Justice
Reform, and with priority given in the order listed:

(1) whenever feasible, through informal discussions, negotiations and
settlements rather than through any formal or structured process or court
proceeding,

(2) through formal or structured Alternative Dispute Resolution (ADR)
processes, including negotiation, mediation, or related techniques when use
of ADR techniques or processes shall be deemed warranted in the context of a
particular claim or claims, and that such use will contribute materially to
the prompt, fair, and efficient resolution of the claims. The Federal agency
official shall

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neither seek nor agree to the use of binding arbitration or any other
equivalent ADR technique which precludes exercise of that agency's
discretion.

(3) through litigation in Federal court. The United States district courts
shall have jurisdiction over any action brought by any person alleging a
violation of this Act and shall have the authority to issue such orders as
may be necessary to enforce the provision of this Act.
(c) Review Committee Role

(1) The Native American Graves Protection and Repatriation Act Review
Committee may become involved in facilitating the resolution of disputes
that cannot be resolved at local or regional levels among lineal
descendants, Indian tribes, or Native Hawaiian organizations, and Federal
agencies or museums. Review Committee actions may include:

(i) participation in discussions between Indian tribes or Native Hawaiian
organizations and Federal agencies or museums in the development of
agreements,

(ii) convening the parties to the dispute,

(iii) reviewing the facts of the dispute and making a finding,

(iv) after consultation with the Secretary, recommending a settlement of the
dispute to the disputing parties.

(2) The Review Committee shall serve as an advisory body only. Findings
related to the resolution of disputes shall not be binding on the disputing
parties or the Secretary.

(d) Retention of Cultural Items. The Federal agency, museum or Indian tribe
shall retain Native American cultural items until the requesting parties
agree upon their disposition or the dispute is otherwise resolved pursuant
to the provisions of this Act or by a court of competent jurisdiction.

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10.15 Review Committee

(a) Membership:
(1) Selection Procedures:

(i) Composition. The Secretary shall appoint the seven members of the Review
Committee according to the following formula:

(A) 3 from nominations submitted by American Indian tribes, Native Hawaiian
organizations, and traditional Native religious leaders with at least two of
such persons being traditional Indian religious leaders.

(B) 3 from nominations submitted by national museum organizations and
scientific organizations, and

(C) 1 from a list of persons developed and consented to by all of the
members appointed to subparagraphs (A) and (B).

(ii) Vacancies. In the event vacancies shall occur, such vacancies shall be
filled by the Secretary in the same manner as the original appointment
within 90 days of the occurrence of such vacancy.

(iii) The Secretary shall not appoint Federal officers or employees to the
committee.

(2) Reimbursement. Review Committee members shall serve without pay, but
shall be reimbursed at a rate equal to the daily rate for GS-18 of the
General Schedule for each working day (including travel time), plus travel
expenses, including per diem in lieu of subsistence, in accordance with
section 5702 and 5703 of title 5, United States Code.

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(b) Duties. The Review Committee shall:

(1) develop a list of mutually agreed upon persons from which the Secretary
shall appoint the seventh Review Committee member.

(2) designate one Review Committee member as chairman.

(3) consult with:

(i) Indian tribes and Native Hawaiian organizations and museums on matters
within the scope of the work of the committee affecting such tribes or
organizations, including the development of agreements which provide for the
disposition of Native American human remains, funerary objects, sacred
objects or objects of cultural patrimony, and
(ii) the Secretary in the development of regulations to carry out this Act,
and such other related functions as the Secretary may assign to the
committee,

(4) monitor the inventory and establishment of cultural affiliation process
to ensure a fair, objective, and consistent consideration and assessment of
all available relevant information and evidence,

(5) compile an inventory of culturally unidentifiable human remains that are
in the possession or control of each Federal agency and museum and
recommending specific actions for developing a process for disposition of
such remains. The committee shall make theses recommendations in
consultation with Indian tribes and Native Hawaiian organizations and
appropriate scientific and museum groups.

(6) facilitate the resolution of any disputes among Indian tribes, Native
Hawaiian organizations, or lineal descendants and Federal agencies or
museums relating to the return of such items including convening the parties
to the dispute if deemed desirable as to the determination of cultural
affiliations, right of possession or the character of the items or remains
or objects.

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(7) review and make findings. Findings will not be binding on the parties
but that the review committee shall be an advisory committee which make
recommendations to the Secretary and helps facilitate resolution of disputes
regarding the provisions of this Act. Findings will be restricted to:
(i) the identity or cultural affiliation of cultural items,
(ii) the return of such items,
(iii) extensions of time for the completion of the inventory process,
(iv) future care of cultural items which are to be repatriated.

(8) submit:

(i) an annual report to the Congress on the progress made and any problems
encountered in implementing the inventory and repatriation provisions of
this Act during the previous year,

(ii) other reports to the Secretary or Congress as the Committee considers
appropriate,
(9) terminate at the end of the 120-day period beginning on the day the
Secretary certifies, in a report submitted to Congress, that the work of the
committee has been completed.
(c) staff support and documentation

(1) The Secretary shall establish such rules and regulations for the
committee as may be necessary.

(2) The Secretary shall provide reasonable administrative and staff support
necessary for the deliberations of the committee.

(3) Any records and findings made by the review committee pursuant to this
Act relating to the identity or cultural affiliation of any cultural items
and the return of such items may be admissible in any action brought under
section 15 of the Act.

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10.16 Grant Procedures

(a) The Native American Grave Protection and Repatriation Act Grant Program.
The Act provides for the Secretary to establish a grant program to provide
Federal financial assistance to Indian tribes, Native Hawaiian organizations
and museums in order to comply with certain provision of the Act.

(b) Eligibility. The following are eligible to apply for grants under the
Native American Graves Protection and Repatriation Act Grants Program:

(1) Indian tribes that are recognized as eligible for the special for the
special programs and services provided by the United States because of their
status as Indians;

(2) Native Hawaiian organizations that represent the interests of Native
Hawaiians, have as their stated purpose the provision of services to Native
Hawaiians, and have expertise in Native
Hawaiian affairs;

(3) institutions, state and local government agencies (including
institutions of higher learning, that receive Federal funds and have
possession of, or control over, Native American cultural items.

(c) Applicable Regulations. The following regulations apply to the Indian
tribe, Native Hawaiian organization, or museum that applies for a grant
under the Native American Graves Protection and Repatriation Act Grants
Program:

(d) Appropriate Activities. The Secretary is authorized to provide Federal
financial assistance under this program to conduct one or more of the
following projects:

(1) Indian Tribe or Native Hawaiian organization.

(i) for the costs associated with consulting with Federal agencies or
museums concerning inventories, written summaries, and cultural items in the
holdings of those organizations;

(ii) for the costs associated with repatriating cultural items;

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(iii) for the costs of curating cultural items that have been repatriated
under the Act.

(2) Museum. For the purpose of assisting the museums in conducting the
inventories and establishing cultural affiliation as required under the Act.

(e) Application. To be considered for a grant under this program, an Indian
tribe, Native Hawaiian organization, or museum must submit to the Secretary
an application containing the following:

(1) Information showing that the application is:

(i) An Indian tribe, as defined in (b)(1) above; or

(ii) An organization primarily serving and representing Native Hawaiians; or

(iii) a museum, as defined by the Act, which receives Federal funds and has
possession of, or control over, Native American cultural items.

(2) A description of the project or projects-from among those listed in
(d)-the applicant proposes to conduct under its grant.

(3) A description of how the proposed project is likely to aid the Indian
tribe, Hawaiian organization, or museum in carrying out the provisions of
the Act.

(4) For additional information on the status of the grants program and
additional applications procedures interested Indian tribes, Native Hawaiian
organizations, and museums should contact the Departmental Consulting
Archeologist, Archeological Assistance Division, National Park Service, P.O.
Box 37127, U.S. Department of the Interior, Washington D.C. 20013-7127.
(f) Evaluation Criteria. The Secretary awards a grant to an applicant if:

(1) The applicant meets the requirements of eligibility in (b); and

(2) The Secretary determines that the application meets the requirement at
(d).

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10.17 Penalties

(a) Prohibited acts.

(1) No person may sell, purchase, use for profit, or transport for sale or
profit, the human remains of a Native American without the right of
possession to those remains as provided in the Act.

(2) No person may sell, purchase, use for profit, or transport for sale or
profit any Native American cultural items obtained in violation of the Act.

(3) No museum that receives Federal funds and has possession of, or control
over, Native American cultural items, may fail to comply with the
requirement of this Act.

(b) Criminal penalties. Whoever knowingly sells, purchases, uses for profit,
or transports for sale or profit the human remains of a Native American
without the right of possession to those remains as provided in the Act or
Native American cultural items obtained in violation of the Act shall be
fined in accordance with chapter 53 of title 18 of the United States Code,
or imprisoned not more than 12 months, or both, and in the case of a second
or subsequent violation, be fined in accordance with chapter 53 of title 18
of the United States Code, or imprisoned not more than 5 years, or both.

(c) Civil penalties

(1) The Secretary may assess a civil penalty against any museum which has
failed to comply with the requirements of this Act.

(2) Notice of failure to comply. The Secretary shall serve a notice of
failure to comply upon any museum believed to be subject to a civil penalty,
either in person or by registered or certified mail (return receipt
requested). The Secretary shall include in the notice:

(i) A concise statement of the facts believed to show failure to comply;
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(ii) A specific reference to the provision(s) of this part which allegedly
have not been complied with;

(iii) The amount of penalty proposed to be assessed, including any initial
proposal to mitigate or remit where notice of a proposed penalty amount will
be served after the damages associated with the alleged failure to comply
have been ascertained;

(iv) Notification of the right to file a petition for relief pursuant to
paragraph (4) of this section, or to await the Secretary's notice of
assessment, and to request a hearing in accordance with paragraph (7) of
this section. The notice shall also inform the person of the right to seek
judicial review of any final administrative decision assessing a civil
penalty.

(3) The museum served with a notice of failure to comply shall have 45
calendar days from the date of its service (or the date of service of a
proposed penalty amount, if later) in which to respond. During this time the
museum may:

(i) Seek informal discussions with the Secretary;

(ii) File a petition for relief in accordance with paragraph (4) of this
section;

(iii) Take no action and await the Secretary's notice of assessment;

(iv) Accept in writing or by payment the proposed penalty, or any mitigation
or remission offered in the notice. Acceptance of the proposed penalty or
mitigation or remission shall be deemed a waiver to the notice of assessment
and of the right to request a hearing under paragraph (7) of this section.

(4) Petition of relief. The museum served with a notice of failure to comply
may request that no penalty be assessed or that the amount be reduces, by
filing a petition for relief with the Secretary within 45 calendar days of
the date of service of the notice of failure to comply (or of a proposed
penalty amount, if later). The petition shall be in writing and signed by a
official authorized

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to sign such documents. The petition shall set forth in full the legal or
factual basis for the requested  relief.

(5) Assessment of penalty.

(i) The Secretary shall assess the civil penalty upon expiration of the
period for filing a petition for relief, upon completion of review of any
petition filed, or upon completion of informal discussions, whichever is
later.

(ii) The Secretary shall take into consideration all available information,
including information provided pursuant to paragraphs (3) and (4) of this
section or furnished upon further request by the Secretary.

(iii) If the facts warrant a conclusion that the museum has complied, the
Secretary shall so notify the museum served with a notice of failure to
comply, and no penalty shall be assessed.

(iv) If the facts warrant a conclusion that a failure to comply has
occurred, the Secretary shall determine a penalty in accordance with section
(11).

(6) Notice of assessment. The Secretary shall notify the museum served with
a notice of failure to comply of the penalty amount assessed by serving a
written notice of assessment, either in person or by registered or certified
mail (return receipt requested). The Secretary shall include in the notice
of assessment:

(i) The facts and conclusions from which it was determined that provisions
of the Act were not complied with;

(ii) The basis in paragraph (11) for determining the penalty amount assessed
and/or any offer to mitigate or remit the penalty; and

(iii) Notification of the right to request a hearing, including the
procedures to be followed, and to seek judicial review of any final
administrative decision assessing a civil penalty.

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(7) Hearings

(i) Any museum wishing to request a hearing on a notice of assessment of
civil penalty may file a written, dated request for a hearing with the
Hearing Division, Office of Hearings and Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203-1923. The
respondent shall enclose a copy of the notice of failure to comply and the
notice of assessment. The request shall state the relief sought, the basis
for challenging the facts used as the basis for charging the failure to
comply and fixing the assessment, and the respondent's preference
as to the place and date for a hearing. A copy of the request shall be
served upon the Solicitor of the Department of the Interior personally or by
registered or certified mail (return receipt requested), at the address
specified in the notice of assessment. Hearings shall be conducted in
accordance with 43 CFR Part 4, Subparts A and B.

(ii) Waiver of right to a hearing. Failure to file a written request for a
hearing within 45 days to the date of service of a notice of assessment
shall be deemed a waiver of the right to a hearing.

(iii) Commencement of hearing procedures. Upon receipt of a request for a
hearing, the Hearing Division shall assign an administrative law judge to
the case. Notice of assignment shall be given promptly to the parties, and
thereafter, all pleadings, papers, and other documents in the proceeding
shall be filed directly with the administrative law judge, with copies
served on the opposing party.

(iv) Appearance and practice.

(A) Subject to the provisions of 43 CFR 1.3, the respondent may appear in
person, by representative, or by counsel, and may participate fully in those
proceedings. If respondent fails to appear and the administrative law judge
determines such failure is without good

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cause, the administrative law judge may, in his/her discretion, determine
that such failure shall constitute a waiver of the right to a hearing and
consent to the making of a decision on the record
made at the hearing.

(B) Departmental counsel, designated by the Solicitor of the Department,
shall represent the Secretary in the proceedings. Upon notice to the
Secretary of the assignment of an administrative law judge to the case, said
counsel shall enter his/her appearance on behalf of the Secretary and shall
file all petitions and correspondence exchanges by the Secretary and the
respondent pursuant to subpart (c) of this part which shall become part of
the hearing record. Thereafter, service upon the Secretary shall be made to
his/her counsel.

(v) Hearing administration.

(A) The administrative law judge shall have all powers accorded by law and
necessary to preside over the parties and the proceedings and to make
decisions in accordance with 5 U.S.C. 554-557.

(B) The transcript of testimony, the exhibits, and all papers, documents and
requests filed in the proceedings shall constitute the record for decision.
The administrative law judge shall render a written decision upon the
record, which shall set forth his/her findings of fact and conclusions of
law, and the reasons and basis therefore, and an assessment of a penalty, if
any.

(C) Unless notice of appeal is filed in accordance with paragraph (6) of
this section, the administrative law judge's decision shall constitute the
final administrative determination of the Secretary in the matter and shall
become effective 30 calendar days from this decision.

(D) In such a hearing, the amount of civil penalty assessed shall be
determined in accordance with this part, and shall not be limited by the
amount assessed by the Secretary or any offer of mitigation or remission
made by the Secretary.

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(vi) Appeal

(A) Either the respondent or the Secretary may appeal the decision of an
administrative law judge by the filing of a "Notice of Appeal" with the
Director, Office of Hearings and Appeals, U.S. Department of Interior, 4015
Wilson Boulevard, Arlington, Virginia 22203-1923, within 30 calendar days of
the date of the administrative law judge's decision. Such notice shall be
accompanied by proof of service on the administrative law judge and the
opposing party.

(B) Upon receipt of such a notice, the Director, Office of Hearings and
Appeals, shall appoint an ad hoc appeals board to hear and decide an appeal.
To the extent they are not inconsistent herewith, the provision of the
Department of Hearings and Appeals Procedures in 43 CFR Part 4, Subpart A,
B, and G shall apply to appeal proceedings under this subpart. The decision
of the board on the appeal shall be in writing and shall become effective as
the final administrative determination of the Secretary in the proceeding on
the date it is rendered, unless otherwise specified therein.
(vii) Report Service. Copies of decisions in civil penalty proceedings
instituted under the Act may be obtained by letter of request addressed to
the Director, Office of Hearings and Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203-1923.
Fees for this service shall be as established by the Director of that
Office.
(8) Final administrative decision

(i) Where the museum served with a notice of violation has accepted the
penalty pursuant to paragraph (c)(4) of this section, the notice of
violation shall constitute the final administrative decision;

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(ii) Where the museum served with a notice of assessment has not filed a
timely request for a hearing pursuant to paragraph (g)(1) of this section,
the notice of assessment shall constitute the final administrative decision.

(iii) Where the museum served with a notice of assessment has filed a timely
request for a hearing pursuant to paragraph (g)(1) of this section, the
decision resulting from the hearing or any applicable administrative appeal
therefrom shall constitute the final administrative decision.

(9) Payment of penalty.

(i) The museum assessed a civil penalty shall have 45 calendar days from the
date of issuance of the final administrative decision in which to make full
payment of the penalty assessed, unless a timely request for appeal has been
filed with a U.S. District Court as provided in section (7)(i) of the Act.

(ii) Upon failure to pay the penalty, the Secretary may request the Attorney
General to institute a civil action to collect the penalty in the U.S.
district court for the district in which the museum assessed a civil penalty
is found. Where the Secretary is not represented by the Attorney General, a
civil action may be initiated directly by the Secretary. In such action, the
validity and amount of the penalty shall not be subject to review.

(10) Other remedies not waived. Assessment of a penalty under this section
shall not be deemed a waiver of the right to pursue other available legal or
administrative remedies.

(11) Civil penalty amounts.

(i) Maximum amount of penalty

(A) Where the museum being assessed a civil penalty has not committed any
previous violation of any prohibition in section (a), the maximum amount of
the penalty shall be the

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full archeological, historical, or commercial value of the item(s) involved
plus any damages suffered, both economic and noneconomic, by the aggrieved
party.

(B) Where the museum being assessed a civil penalty has committed any
previous violation of any prohibition in section (a), the maximum amount of
the penalty shall be double the full archeological, historical, or
commercial value of the item involved plus any damages suffered, both
economic and noneconomic, by the aggrieved party.

(C) In addition, any museum that fails to comply with the relevant
provisions of the Act shall be ineligible to receive Federal funding during
the period of non-compliance.

(ii) Determination of penalty amount, mitigation, and remission. The
Secretary may assess a penalty amount less than the maximum amount of
penalty and may offer to mitigate or remit the penalty.

(A) Determination of the penalty amount and/or a proposal to mitigate or
remit the penalty may be based upon any of the following factors:

(1) Agreement by the museum being assessed a civil penalty to provide an
inventory of all human remains and associated funerary objects and a summary
of all unassociated funerary objects, sacred objects, and cultural
patrimony, and;

(2) Agreement by the museum being assessed a civil penalty to repatriate
human remains and other cultural items to the appropriate lineal
descendants, Indian tribes or Native Hawaiian organizations, or;

(3) Demonstration of hardship or inability to pay, provided that this factor
shall only be considered when the museum being assessed a civil penalty has
not been found to have previously violated the regulations in this part, or;

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(4) Determination that the museum being assessed a civil penalty did not
willfully fail to comply, or;

(S) Determination that the proposed penalty would constitute excessive
punishment under the circumstances.

(B) The Secretary shall consult with and consider the interests of the
appropriate lineal descendants, Indian tribes or Native Hawaiian
organizations prior to proposing to mitigate or remit the penalty.

(C) All civil penalty monies and any item forfeited under the provisions of
this section shall be transferred to the appropriate Native American
individual, Indian tribe, or Native Hawaiian organization.

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Subpart E-Appendices

§ 10.18 Sample Memorandum of Understanding Regarding Collection Use,
Treatment, and Right of Possession

§ 10.19 Sample Memorandum of Understanding Regarding Graves Protection
and/or Disturbance

§ 10.20 Sample Repatriation Agreement involving Disposition of Federal
Property

§ 10.21 Review Committee Charter