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[Federal Register: December 4, 1995 (Volume 60, Number 232)]
[Rules and Regulations]
[Page 62133-62169]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 62133]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
43 CFR Part 10
Native American Graves Protection and Repatriation Act Regulations;
Final Rule
[[Page 62134]]
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 10
RIN 1024-AC07
Native American Graves Protection and Repatriation Act
Regulations
AGENCY: Department of the Interior.
ACTION: Final rule.
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SUMMARY: This final rule establishes definitions and procedures for
lineal descendants, Indian tribes, Native Hawaiian organizations,
museums, and Federal agencies to carry out the Native American Graves
Protection and Repatriation Act of 1990. These regulations develop a
systematic process for determining the rights of lineal descendants,
Indian tribes, and Native Hawaiian organizations to certain Native
American human remains, funerary objects, sacred objects, or objects of
cultural patrimony with which they are affiliated.
EFFECTIVE DATE: This final rule will take effect on January 3, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. Francis P. McManamon, Departmental
Consulting Archeologist, Archeological Assistance Division, National
Park Service, Box 37127, Washington DC 20013-7127. Telephone: (202)
343-4101. Fax: (202) 523-1547.
SUPPLEMENTARY INFORMATION:
Background
On November 16, 1990, President George Bush signed into law the
Native American Graves Protection and Repatriation Act, hereafter
referred to as the Act. The Act addresses the rights of lineal
descendants, Indian tribes, and Native Hawaiian organizations to
certain Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony with which they are
affiliated. Section 13 of the Act requires the Secretary of the
Interior to publish regulations to carry out provisions of the Act.
Preparation of the Rulemaking
The proposed rule (43 CFR Part 10) for carrying out the Act was
published in the Federal Register on May 28, 1993 (58 FR 31122). Public
comment was invited for a 60-day period, ending on July 27, 1993.
Copies of the proposed rule were sent to the chairs or chief executive
officers of all Indian tribes, Alaska Native villages and corporations,
Native Hawaiian organizations, national Indian organizations and
advocacy groups, national scientific and museum organizations, and
State and Federal agency Historic Preservation Officers and chief
archeologists.
Eighty-two written comments were received representing 89 specific
organizations and individuals. These included thirteen Indian tribes,
ten Native American organizations, nine museums, seven universities,
three national scientific and museum organizations, eleven state
agencies, nineteen Federal agencies, nine other organizations, and
eight individuals. Several letters represent more than one
organization. Comments addressed nearly all sections and appendices of
the proposed rule. All comments were fully considered when revising the
proposed rule for publication as a final rulemaking.
Given the volume of comments, it is impractical to respond in
detail in the preamble to every question raised or suggestion offered.
Some commenters pointed out errors in spelling, syntax, and minor
technical matters. Those errors were corrected and are not mentioned
further in the preamble. In addition, many commenters made similar
suggestions or criticisms, or repeated the same suggestion for
different sections of the proposed rule. In the interest of reducing
the length of the text, comments that are similar in nature are grouped
and discussed in the most relevant section in the preamble. Some
comments pointed out vague and unclear language. Clarifying and
explanatory language was added to the rule and preamble.
Changes in Response to Public Comment
Section 10.1
This section outlines the purpose and applicability of the
regulations. Three commenters recommended including specific reference
to the applicability of the rule to provisions of the United States
Code regarding illegal trafficking. Section 4 of the Act, which deals
with illegal trafficking in ``Native American Human Remains and
Cultural Items,'' is incorporated directly into Chapter 53 of title 18,
United States Code, and does not require implementing regulations. For
that reason, a section regarding section 4 of the Act has not been
included in these regulations.
One commenter recommended including language to guarantee ``that
these collections will remain intact and always be available to
qualified researchers...'' Another commenter recommended amending the
regulations to preclude the removal of prehistoric skeletal and
cultural materials from the nation's museums. The drafters consider the
proposed changes contrary to the intent of the Act as reflected in
statutory language and legislative history.
One commenter recommended additional language addressing Federal
trust responsibilities and tribal sovereignty. These regulations are
consistent with the United States' trust responsibilities to Indian
tribes.
Three commenters recommended amending the rule to apply to
territories of the United States. The rule of statutory construction
stipulates that Federal law applies to United States territories only
when specifically indicated. No such reference is indicated in either
the statute or its legislative history. It is inappropriate to use
regulations to extend applicability to areas not defined in the Act.
Section 10.2
This section defines terms used throughout the regulations. One
commenter recommended listing the definitions alphabetically instead of
thematically under the present categories of ``participants,'' ``human
remains and cultural items,'' ``cultural affiliation,'' ``location,''
and ``procedures.'' A thematic organization has been retained. However,
the subsections have been retitled and reorganized. The new subsections
are (a) who must comply with these regulations?; (b) who has standing
to make a claim under these regulations?; (c) who is responsible for
carrying out these regulations?; (d) what objects are covered by these
regulations?; (e) what is cultural affiliation?; (f) what types of
lands do the excavation and discovery provisions of these regulations
apply to?; and (g) what procedures are required by these regulations?
Subsection 10.2 (a) includes definitions of those persons or
organizations who must comply with these regulations.
One commenter asked for clarification as to whether all Federal
agencies as defined in Sec. 10.2 (a)(4) (renumbered as Sec. 10.2
(a)(1)) must comply with provisions of the Act. All Federal agencies,
except the Smithsonian Institution, are responsible for completing
summaries and inventories of collections in their control and with
ensuring compliance regarding inadvertent discoveries and intentional
excavations conducted as part of activities on Federal or tribal lands.
Three commenters and the Review Committee authorized under section 8 of
the Act requested clarification of the exclusion of the Smithsonian
Institution as a Federal agency. Sections 2 (4) and 2 (8) of the Act
specifically exclude the
[[Page 62135]]
Smithsonian Institution from having to comply with the provisions of
the Act. The legislative history of the Act is silent as to the reason
for this exclusion. The exclusion is likely to have been based on prior
passage of the National Museum of the American Indian Act in 1989 that
included provisions requiring the repatriation of human remains from
all of the Smithsonian Institution's constituent museums.
Seven commenters requested clarification of the definition of
Federal agency official in Sec. 10.2 (a)(5) (renumbered as Sec. 10.2
(a)(2)). One commenter recommended changing the term to Federal land
manager. The definition included in the proposed rule applies to both
individuals with authority for the management of Federal lands and
individuals with responsibility for the management of Federal
collections that may contain human remains, funerary objects, sacred
objects, or objects of cultural patrimony. Since responsibility for the
latter task may fall to Federal agency officials who do not manage
land, the recommended change has not been made. Four commenters
recommended changes in the definition of Federal agency official to
reflect that a Federal agency may have more than one delegated
authority. The definition was rewritten to reflect this concern. One
commenter recommended stipulation of a specific date by which each
agency must delegate individuals to perform the duties relating to
these regulations. Such a deadline is unnecessary as all Federal
agencies have already named their contacts. A listing of Federal agency
officials for each agency is available from the Departmental Consulting
Archeologist.
Seven commenters requested clarification of the definition of
museum in Sec. 10.2 (a)(6) (renumbered Sec. 10.2 (a)(3)). One commenter
recommended replacing the term ``human remains or cultural items'' with
``Native American artifacts'' to reflect the expanded reporting of
``collections that may contain unassociated funerary objects, sacred
objects, or objects of cultural patrimony'' in the summaries required
in Sec. 10.8. The specific focus of the Act and the rule remains
limited to Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony, and not the broader
category of Native American artifacts.
One commenter recommended providing a definition of the term
``possession of, or control over'' in the first sentence of the
definition. One commenter recommended requiring museums take
responsibility for all human remains, funerary objects, sacred objects,
or objects of cultural patrimony in their possession that were
originally excavated intentionally or discovered inadvertently by
Federal agencies on non-Federal lands. All museums or Federal agencies
with Native American collections should consider carefully whether they
have possession or control of human remains, funerary objects, sacred
objects, or objects of cultural patrimony as defined in Sec. 10.2
(a)(3)(i) and (a)(3)(ii).
Eleven commenters recommended changes to the definitions of
possession in Sec. 10.2 (e)(5) (renumbered Sec. 10.2 (a)(3)(i)) and
control in Sec. 10.2 (e)(6) (renumbered Sec. 10.2 (a)(3)(ii)). One
commenter recommended giving both terms their ordinary and customary
meaning in the regulations. Two commenters objected to use of ``legal
interest'' in both definitions on the grounds that under common law,
museums and Federal agencies do not have sufficient legal interest in
human remains to do anything with them. Two commenters questioned
including items on loan to a museum in a summary or inventory since the
items are not the property of the museum. One commenter recommended
deleting the definition of control as it would require Federal
bureaucrats and museum officials to make complicated legal
determinations. Examples designed to clarify the uses of possession and
control have been added to these sections to address the concerns
reflected in these comments. Two commenters questioned whether
``control'' applied to museum collections or to Federal lands. The term
applies to human remains, funerary objects, sacred objects, or objects
of cultural patrimony in museum or Federal agency collections or
excavated intentionally or discovered inadvertently on Federal or
tribal lands. One commenter recommended that the definition
specifically address Federal agency responsibilities for collections
from Federal lands being held by non-governmental repositories. Federal
agencies are responsible for the appropriate treatment and care of such
collections.
One commenter requested clarification of the exclusion of
procurement contracts from ``Federal funds'' in Sec. 10.2 (a)(6)
(renumbered Sec. 10.2 (a)(3)(iii)). Procurement contracts are not
considered a form of Federal-based aid but are provided to a contractor
in exchange for a specific service or product. One commenter requested
deletion of the last two sentences of the definition that clarify the
applicability of the rule to museums that are part of a larger entity
that receives Federal funds, questioning if the legislative history
supports such an interpretation. One commenter supported the present
definition of institutions receiving Federal funds. Application of
Federal laws to institutions that receive Federal funds is common,
being used with such recent legislation as the Americans with
Disabilities Act. These laws typically are interpreted to apply to
organizations that are part of larger entities that receive Federal
funds. Two commenters recommended specifying the applicability of the
rule to museums affiliated with certified local governments and Indian
tribal museums. The rule applies to museums that are part of certified
local governments. A tribal museum is covered by the Act if the Indian
tribe of which it is part receives Federal funds through any grant,
loan, or contract (other than a procurement contract).
Subsection 10.2(b) includes definitions of those persons or
organizations that have standing to make a claim under these
regulations.
Eight commenters recommended changes in the definition of lineal
descendant in Sec. 10.2 (a)(14) (renumbered Sec. 10.2 (b)(1)). Two
commenters identified the definition as too restrictive. The drafters
realize that claims of lineal descent require a high standard but feel
that this standard is consistent with the preference for repatriation
to lineal descendants required by the Act. Another commenter presented
a statistical argument to indicate that all members of Indian tribes
might be recognized as lineal descendants of human remains over 1,000
year old. Regardless of the statistical possibilities that someone
might be related to another, the definition of lineal descent requires
that the human remains, funerary objects, or sacred objects under
consideration be from a known individual. It is highly unlikely that
the identity of an individual that lived 1,000 years ago is known, or
that it is possible to trace descent directly and without interruption
from that known individual to a living individual. One commenter
recommended replacing the ``known Native American individual'' from
which lineal descent is traced with ``known individual of a tribe.''
The term Indian tribe as used in these regulations refers only to those
contemporary tribes, bands, nations, or other organized Indian groups
or communities that are recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians. Requiring the known individual to have been a member
of the
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same Federally recognized Indian tribe as their lineal descendant would
limit repatriation to only the most recent human remains, funerary
objects, or sacred objects and is not supported by the statutory
language or legislative history. One commenter recommended deleting
reference to use of the ``traditional kinship system.'' Reference to
traditional kinship systems is designed to accommodate the different
systems that individual Indian tribes use to reckon kinship. One
commenter recommended that the definition should also allow more
conventional means of reckoning kinship. The definition has been
amended to include the common law system of descendance as well as the
traditional kinship system of the appropriate Indian tribe or Native
Hawaiian organization. One commenter recommended defining an additional
class of ``lineage members'' or ``kindred''--individuals that are not
lineal descendants in the biological sense of the term but are related
by the traditional kinship system--and then giving these individuals a
secondary priority for making a claim after lineal descendants but
before culturally affiliated Indian tribes. Determinations of priority
between blood descendants and descendants by some other traditional
kinship system are more properly resolved in specific situations rather
than through general regulations.
One commenter recommended clarifying the definition of Indian tribe
in Sec. 10.2 (a)(9) (renumbered Sec. 10.2 (b)(2)) to ensure timely
notification. Seventeen commenters recommended expanding the definition
to include a broader spectrum of Indian groups than those recognized by
the Bureau of Indian Affairs (BIA). Several commenters identified
specific groups they felt should have standing, including: various
bands or tribes in California, Washington, and Ohio; Native American
organizations such as the American Indian Movement; Native American
groups that ``would be eligible for recognition by the BIA if they so
chose to be''; and ``bands recognized by other Federal agencies.''
Section 12 of the Act makes it clear that Congress based the Act upon
the unique relationship between the United States government and Indian
tribes. That section goes on to state that the Act should not be
construed to establish a precedent with respect to any other individual
or organization. The statutory definition of Indian tribe, which
specifies that such tribes must be ``recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians,'' precludes extending applicability
of the Act to Indian tribes that have been terminated, that are current
applicants for recognition, or have only State or local jurisdiction
legal status.
As was explained in the preamble of the proposed regulations, the
definition of Indian tribe used in the Act was drawn explicitly from an
earlier version of the bill (H.R. 5237, 101th Congress, 2nd Sess. sec.
2 (7), (July 10, 1990)) using a specific statutory reference. The final
language of the Act is verbatim from the American Indian Self
Determination and Education Act (25 U.S.C. 450b). The earlier statute
has been carried out since 1976 by the BIA to apply to a specific list
of eligible Indian tribes which has been published in the Federal
Register.
Four commenters found this interpretation unduly narrow and
recommended interpreting the statutory definition to apply to Indian
tribes that are recognized as eligible for benefits for the special
programs and services provided by ``any'' agency of the United States
to Indians because of their status as Indians. The Review Committee
concurred with this recommendation. Based on the above recommendations,
the definition of Indian tribe included in the regulations was amended
by deleting all text describing the process for obtaining recognition
from the BIA. In place of this text, the final regulations include a
statement identifying the Secretary as responsible for creating and
distributing a list of Indian tribes for the purpose of carrying out
the Act. This list is currently available from the Departmental
Consulting Archeologist and will be updated periodically.
One commenter recommended deleting the reference to Alaska Native
corporations in the definition of Indian tribe. The American Indian
Self Determination and Education Act, the source for the definition of
Indian tribe in the Act, explicitly applies to Alaska Native
corporations and, as such, supports their inclusion under the Act.
Alaska Native corporations are generally considered to have standing
under these regulations if they are recognized as eligible for a self-
determination contract under 25 U.S.C. 450b.
Two commenters recommended deleting the final line of the
definition of Indian tribe in which Native Hawaiian organizations are
subsumed for purposes of the regulations. The Review Committee
concurred with this recommendation. The final sentence has been deleted
and the applicability of the regulations to Native Hawaiian
organizations has been specified where appropriate throughout the text.
The term Indian tribe official defined in Sec. 10.2 (b)(4) has not been
changed, though the drafters wish to stress the term's applicability to
the representatives of both Indian tribes and Native Hawaiian
organizations.
Two commenters recommended changes to the definition of Native
Hawaiian organization in Sec. 10.2 (a)(11) (renumbered Sec. 10.2
(b)(3)). One commenter recommended specifying that such organizations
should have a primary and stated purpose of the ``preservation of
Hawaiian history,'' and have expertise in Native Hawaiian ``cultural''
affairs. Two commenters recommended requiring a Native Hawaiian
organization verify that more than 50% of its membership is Native
Hawaiian. The statutory definition of Native Hawaiian organization in
section 2 (11) of the Act precludes expansion of the criteria for
identifying Native Hawaiian organizations. An earlier version of the
bill (S. 1980, 101st Cong. 2nd sess. section 3 (6)(c), (September 10,
1990)) that eventually became the Act included a provision requiring
Native Hawaiian organization to have ``a membership of which a majority
are Native Hawaiian.'' This provision was not included in the Act. The
legislative history confirms that Congress considered the additional
criterion and decided not to include it in the Act.
One commenter recommended rewriting the definition of Native
Hawaiian in Sec. 10.2 (a)(10) (renumbered Sec. 10.2 (b)(3)) to include
Pacific Islanders. The statutory definition of Native Hawaiian in
section 2 (10) of the Act precludes expansion of this definition to
include Pacific Islanders who are not descendants of the aboriginal
people who, prior to 1778, occupied and exercised sovereignty in the
area that now constitutes the State of Hawaii.
Three commenters recommended changes to the definition of Indian
tribe official in Sec. 10.2 (a)(12) (renumbered Sec. 10.2 (b)(4)). One
commenter recommended specifying that Indian tribe official means the
tribal chair or officially designated individual. One commenter
recommended allowing designation by the governing body of an Indian
tribe ``or as otherwise provided by tribal code, policy, or
procedure.'' One commenter recommended that the designated person need
not be a member of that Indian tribe. The definition of Indian tribe
official was amended to identify the principal leader or the individual
officially designated or otherwise provided by tribal code, policy or
established procedure. This person need not necessarily be a member of
the particular Indian tribe.
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Subsection 10.2 (c) includes definitions of those persons or
organizations that are responsible for carrying out these regulations.
One commenter requested clarification of the role of the
Departmental Consulting Archeologist defined in Section 10.2 (a)(3)
(renumbered Sec. 10.2 (c)(3)). The Departmental Consulting Archeologist
was delegated by the Secretary of the Interior with responsibilities
for drafting regulations, providing staff support to the Review
Committee, administering grants, and providing technical aid under the
Act.
Subsection 10.2 (d) includes definitions of the objects covered by
these regulations.
One commenter recommended that the definition of Native American in
Sec. 10.2 (a)(8) (renumbered Sec. 10.2 (d)) specifically include Native
Hawaiians. The definition already includes Native Hawaiians. To clarify
the applicability of the rule, the definition of Native American was
rewritten to specifically include tribes, people, or cultures
indigenous to the United States, ``including Alaska and Hawaii.'' The
drafters point out that ``Native American'' is used in the Act and in
these rules only to refer to particular human remains, funerary
objects, sacred objects, or objects of cultural patrimony and not to
any living individual or group of individuals.
Thirteen commenters recommended changes to the definition of human
remains in Sec. 10.2 (b)(1) (renumbered Sec. 10.2 (d)(1)). One
commenter recommended expanding the definition to include all human
remains, not just those of Native Americans. The Act is designed
specifically to address the disposition or repatriation of Native
American human remains, funerary objects, sacred objects, or objects of
cultural patrimony and not to cover all human remains. Three commenters
recommended excluding disarticulated and unassociated human remains,
such as isolated teeth and finger bones, from repatriation. Two
commenters recommended amending the definition to include only those
human remains ``associated with the body at the time of death,'' to
eliminate such things as extracted or lost teeth, cut finger nails,
coprolites, blood residues, and tissue samples taken by coroners. One
commenter recommending deleting the exemplary clause--``including but
not limited to bones, teeth, hair, ashes, or mummified or otherwise
soft tissue''--as being overly limiting. The Act makes no distinction
between fully-articulated burials and isolated bones and teeth.
Additional text has been added excluding ``naturally shed'' human
remains from consideration under the Act. This exclusion does not
include any human remains for which there is evidence of purposeful
disposal or deposition. The exemplary clause has been deleted. One
commenter requested clarification as to whether the regulations would
apply to blood sold or given to a blood bank by an individual of Native
American ancestry. The blood bank would not be subject to repatriation
having been freely given. One commenter supported considering human
remains that had been incorporated into a sacred object or object of
cultural patrimony be considered as part of that cultural item for the
purpose of determining cultural affiliation. Two commenters recommended
excluding human remains incorporated into cultural items from
repatriation since, as one said, they were ``objectified by their
original makers and owners, not the institutions that might house them
now.'' One commenter requested clarification regarding the status of
human remains that were not freely given but that have been
incorporated into objects that are not cultural items as defined in
these regulations. The legislative history is silent on this issue.
Determination of the proper disposition of such human remains must
necessarily be made on a case-by-case basis. One commenter recommended
deleting reference to human remains that have been incorporated into a
funerary object, sacred object, or object of cultural patrimony, in
that any change in the character of the human remains, including the
definition, would only further their dishonor. Three commenters asked
for clarification in how to determine whether human remains
incorporated into a funerary object, sacred object, or object of
cultural patrimony were freely given. The provision regarding
determination of the cultural affiliation of human remains that had
been incorporated into a funerary object, sacred object, or object of
cultural patrimony was recommended by the Review Committee to preclude
the destruction of items that might be culturally affiliated with one
Indian tribe that incorporate human remains culturally affiliated with
another Indian tribe.
Two commenters recommended changing the definition of cultural
items in Sec. 10.2 (b)(2). One commenter recommended broadening the
definition to include any and all objects deemed to have cultural
significance by an Indian tribe. Cultural items are defined in the Act
to include human remains, funerary objects, sacred objects, and objects
of cultural patrimony. The term was redefined in the proposed
regulations to include funerary objects, sacred objects, and objects of
cultural patrimony, and not human remains to address the objections
some individuals had expressed over referring to human remains as
``cultural items.'' Two commenters recommended retaining the statutory
definition. The term has been changed to read ``human remains, funerary
object, sacred object, or object of cultural patrimony'' throughout the
rule to ensure clarity. The definition of ``cultural item'' has been
deleted throughout the text.
One commenter recommended combining the definitions of associated
funerary object in Sec. 10.2 (b)(3) and unassociated funerary object in
Sec. 10.2 (b)(4) into a single definition of funerary object. The two
definitions have been combined in Sec. 10.2 (d)(2).
Ten commenters recommended changes to the definition of associated
funerary object in Sec. 10.2 (b)(3) and unassociated funerary object in
Sec. 10.2 (b)(4) (combined and renumbered Sec. 10.2 (d)(2)). One
commenter recommended rewriting both definitions to make a distinction
between objects associated with individual human remains and objects
for which a funerary context is suspected, but association with
individual human remains is not possible. Another commenter objected to
what he considered an overly rigorous standard of proof. The statutory
language makes it clear that only those objects that are associated
with individual human remains are considered funerary objects. The
distinction between associated and unassociated funerary objects is
based on whether the individual human remains are in the possession or
control of a museum or Federal agency. One commenter recommended
deleting the word ``intentionally'' in Sec. 10.2 (b)(3)(i) and
Sec. 10.2 (b)(4) since the term does not occur in the statutory
language. The term is included to emphasize the intentional nature of
death rites or ceremonies. Items that inadvertently came into proximity
or contact with human remains are not considered funerary objects. One
commenter questioned whether any objects excavated intentionally or
discovered inadvertently on Federal or tribal land after November 16,
1990, would fit these definitions, since it requires the objects be in
the possession or control of a Federal agency, and section 3 of the Act
seems to preclude Federal ownership of such objects. Possession of
funerary objects excavated intentionally or discovered inadvertently on
Federal or
[[Page 62138]]
tribal land is sufficient to apply the provisions of the statute to
such intentional excavations or inadvertent discoveries.
Two commenters recommended deletion of the clause ``or near'' from
Sec. 10.2 (b)(3) (renumbered Sec. 10.2 (d)(2)), indicating that it
would require museums to enter into debates about the proximity of
objects to human remains. The clause was included to accommodate
variations in Native American death rites or ceremonies. Some Indian
tribes, particularly those from the northern plains, have ceremonies in
which objects are placed near, but not with, the human remains at the
time of death or later. The drafters consider these funerary objects.
One commenter recommended clarifying Sec. 10.2 (b)(3)(i)
(renumbered Sec. 10.2 (d)(2)(i)) by specifying that funerary objects
are ``associated'' even when another institution has possession or
control of the human remains. The drafters consider the statutory
definition, which is repeated in the rule, to support this
interpretation without any additional modification. One commenter
recommended clarifying Sec. 10.2 (a)(3)(ii) [renumbered Sec. 10.2
(d)(2)(i)] by specifying that items made exclusively for burial
purposes are considered as associated funerary objects even if there
are no associated human remains. Items made exclusively for burial
purposes are considered associated funerary objects even if there are
no associated human remains. Four commenters recommended deleting the
final sentence of the definition of unassociated funerary object in
Sec. 10.2 (b)(4) [renumbered Sec. 10.2 (d)(2)], objecting to the
requirement that such human remains were removed from a ``specific''
burial site. Another commenter recommended deleting reference to the
``preponderance of the evidence'' in the same sentence, because it
implies an adversarial context which is inappropriate for the process
of identifying unassociated funerary objects. In both of these
instances, the text of the regulations reflects exactly the statutory
text and has not been modified. The final sentence of this section was
drawn from an explanation of the definition in House Report 101-877
(1990: page 2) and is taken to represent Congressional intent. Another
commenter recommended deleting ``reasonably believed to have been''
from Sec. 10.2 (b)(2)(ii). The phrase has been deleted.
One commentor recommended clarifying the definition of unassociated
funerary objects in Sec. 10.2 (b)(4) to exempt items exhibited
intentionally with individual human remains but subsequently returned
or distributed to living descendants or other individuals. The
recommended language has been added to Sec. 10.2 (d)(2)(ii).
Ten commenters recommended changes to the definition of sacred
objects in Sec. 10.2 (b)(5) (renumbered Sec. 10.2 (d)(3)). One
commenter recommended broadening the definition to include any and all
objects deemed to have sacred significance by Indian tribes and not
just those objects needed by traditional Native American religious
leaders for the practice of traditional Native American religions by
their present-day adherents. Another commenter recommended broadening
the definition to include specific objects or geological features
identified by traditional Native American practitioners as endowed with
sacredness due to the object's past role in traditional Native American
religious ceremony or on the basis of similar objects having
contemporaneous religious significance or function in the continued
observance or renewal or a ceremony. The statutory language and
legislative history indicate that this definition was written carefully
and precisely. Expanding the definition to include the types of items
identified above in the comments runs counter to Congressional intent.
Four commenters recommended changes in the definition of
traditional religious leader in Sec. 10.2 (a)(13) (renumbered Sec. 10.2
(d)(3)). Two commenters recommended replacing the phrase allowing such
leaders to be recognized ``by members of that Indian tribe'' with
``that Indian tribe.'' The drafters realize that allowing members of an
Indian tribe or Native Hawaiian organization to recognize traditional
religious leaders may result in conflicting claims. However, such
issues are best resolved by the members of the Indian tribe or Native
Hawaiian organization themselves. One commenter recommended replacing
the word ``or'' at the end of Sec. 10.2(a)(13)(i) with ``and.'' The two
criteria listed are intended as alternative methods for identifying
traditional religious leaders and not as cumulative criteria. Another
commenter recommended specifying that an individual's leadership role
must be based on ``traditional'' religious practices. The drafters
consider whether or not an individual's leadership in a religion is
based upon traditional practice an inappropriate concern for Federal
regulations.
Two commenters recommended deleting the word ``current'' from the
first line of the definition of sacred object since the term was not
included in the statutory text. The term was deleted. One commenter
objected to ``use'' being the measure to decide whether an object
should be repatriated, suggesting instead right of possession as the
relevant standard. The necessity of an object for use by present day
adherents of a traditional Native American religion is critical in
identifying a sacred object, while determination of right of possession
is necessary to determine whether the sacred object must be repatriated
to the Indian tribe or Native Hawaiian organization or may be retained
by the museum or Federal agency.
One commenter recommended deleting the second sentence of the
definition of sacred object which he considers to depart in major ways
from the statutory definition. The second sentence of the definition
was drawn from the Senate Select Committee Report (S.R. 101-473: p. 7)
and helps clarify the precise, limited use of this category intended by
Congress.
One commenter recommended including clarification in the definition
that: 1) sacred objects can not be associated with human remains, as
they would then be funerary objects, and 2) only in rare circumstances
can prehistoric items be sacred objects. While this usually may be so,
blanket exclusion of any funerary object from also being a sacred
object is not considered appropriate in that the categories are not
mutually exclusive. Similarly, identification of sacred objects from
prehistoric contexts must be made on a case-by-case basis.
One commenter agreed with the inclusion of sacred objects that have
religious significance or function in the continued observance or
renewal of a traditional Native American religious ceremony or ritual.
Another commenter recommended deleting reference to ``renewal'' in the
second sentence, stating that the issue was debated during the
legislative process and final statutory language does not include
reference to renewal of a traditional Native American religious
ceremony. Language specifying the inclusion of objects that function in
the continued observance or renewal of a traditional Native American
religious ceremony as sacred objects was drawn from the Senate Select
Committee Report (S.R. 101-473: p. 7) and is thought to reflect
Congressional intent.
Three commenters requested clarification as to who is responsible
for making the determination that a particular item fits the definition
of sacred object. In all cases, the museum or Federal agency official
has the initial responsibility for deciding whether an object in its
possession or control fits
[[Page 62139]]
the definition of sacred object. However, if an Indian tribe or Native
Hawaiian organization does not agree with this decision, it has
recourse to challenge directly the decision of the museum or Federal
agency. The Indian tribe or Native Hawaiian organization may seek the
involvement of the Review Committee if it is unsuccessful in its direct
appeal to the museum or Federal agency.
Six commenters recommended changes to the definition of objects of
cultural patrimony in Sec. 10.2 (b)(6) (renumbered Sec. 10.2 (d)(4)])
One commenter recommended deleting the word ``cultural'' from the term
``cultural items'' in the first sentence, in that the current phrasing
is circular. The word has been deleted. One commenter cautioned that
the definition does not recognize that internal disagreements may occur
within an Indian tribe or Native Hawaiian organization about the
importance of an object of cultural patrimony. Another commenter
recommended broadening the definition to include those objects of
ongoing historical, traditional, or cultural importance central to any
sub-group of an Indian tribe, such as a band, clan, lineage, ceremonial
society, or other subdivisions. Claims for human remains, funerary
objects, sacred objects, or objects of cultural patrimony by such sub-
groups must be made through an Indian tribe or Native Hawaiian
organization.
One commenter requested clarification of the example of the Zuni
War Gods that appear to be both objects of cultural patrimony and
sacred objects. An object can fit both categories depending upon the
nature of the traditional religion and the system of property rights
used by a particular Indian tribe or Native Hawaiian organization. Zuni
War Gods present such a case. In other cases, sacred objects may have
been owned privately and, thus, are not considered objects of cultural
patrimony. One commenter requested clarification as to who is
responsible for making the determination that a particular item fits
the definition of object of cultural patrimony. In all cases, the
museum or Federal agency official has the initial responsibility for
deciding whether an object in its possession or control fits the
definition of object of cultural patrimony. However, if an Indian tribe
or Native Hawaiian organization does not agree with this decision, it
has recourse to challenge directly the decision with the museum or
Federal agency.
Section 10.2 (e) includes the definition of cultural affiliation.
One commenter recommended deleting reference to Native Hawaiian
organizations as they are included under the definition of Indian tribe
in Sec. 10.2 (b)(2). The text has been changed to read ``Indian tribe
or Native Hawaiian organization'' throughout the regulations. One
commenter requested inclusion of a short characterization of the
threshold criteria applicable to determining cultural affiliation. A
second sentence clarifying this threshold has been added to the
definition. Three commenters requested additional clarification of the
definition of cultural affiliation. Procedures for determining cultural
affiliation are included in Sec. 10.14 (c).
Section 10.2 (f) includes definitions of the types of lands that
the excavation and discovery provisions of these regulations apply.
Six commenters asked for clarification regarding the applicability
of statutory provisions for intentional excavation or inadvertent
discovery of human remains, funerary objects, sacred objects, or
objects of cultural patrimony to private lands. Unlike provisions of
the National Historic Preservation Act (NHPA) that are applicable to
Federal undertakings regardless of who owns the land on which the
project is being conducted, the intentional excavation and inadvertent
discovery provisions of these regulations apply only to Federal and
tribal lands.
Five commenters recommended changes to the definition of Federal
lands in Sec. 10.2 (d)(1) (renumbered Sec. 10.2 (f)(1)). One commenter
recommended deleting the definition of ``control'' as it will require
Federal bureaucrats to make complicated legal determinations as to what
is ``a sufficient legal interest to permit it to apply these
regulations without abrogating the rights of a person.'' Another
commenter recognized the need for a definition of Federal ``control,''
but suggested that the present definition fails to clarify the issue.
Another commenter requested clarification whether Federal control, and
thus the intentional excavation and inadvertent discovery provisions of
these regulations, extends to the Wetlands Reserve Program or to the
Forest Legacy Program. One commenter requested clarification of the
applicability of Federal control to real property instruments such as
easements, rights-of-way, and rights-of-entry for performance of
specific activities. One commenter requested clarification of the
applicability of Federal control to private lands through issuance of a
Federal permit, license, or funding. One commenter recommended
including the existence of a long term lease by a Federal agency or an
interest under which the land owner has authorized the United States to
undertake intentional excavation or other land disturbance as under
Federal control. As indicated above, the intentional excavation and
inadvertent discovery provisions of the Act apply only to Federal and
tribal lands. Whether Federal control of programs such as those
mentioned above is sufficient to apply these regulations to the lands
covered by the program depends on the circumstances of the Federal
agency authority and on the nature of state and local jurisdiction.
Such determinations must necessarily be made on a case-by-case basis.
Generally, however, a Federal agency will only have sufficient legal
interest to ``control'' lands it does not own when it has some other
form of property interest in the land such as a lease or easement. The
fact that a Federal permit is required to undertake and activity on
non-Federal land generally is not sufficient legal interest in and of
itself to ``control'' the land within the meaning of these regulations
and the Act. In situations when two or more Federal agencies share
regulatory or management jurisdiction over Federal land, the Federal
agency with primary management authority will generally have control
for purposes of implementing the Act.
Nineteen commenters recommended changes to the definition of tribal
lands in Sec. 10.2 (c)(2) (renumbered Sec. 10.2 (f)(2)). One commenter
recommended broadening the exclusion of privately owned lands within
the exterior boundaries of an Indian reservation to encompass state and
Federal land holdings. Thirteen commenters objected to the exclusion of
privately owned lands within the exterior boundaries of an Indian
reservation and recommended returning to the statutory language. The
proposed exclusion was intended to rectify a contradiction between the
statutory definition of tribal lands in section 2 (15) of the Act and
the guarantee in section 2 (13) of the Act that no taking of property
without compensation within the meaning of the Fifth Amendment of the
United States Constitution is intended. The drafters concur with the
majority of commenters that the blanket exclusion of private lands
within the exterior boundaries of an Indian reservation from the
intentional excavation and inadvertent discovery provisions of the
regulations is overly broad. The exclusion was deleted and a new
subsection added at Sec. 10.2 (f)(2)(iv) stating that the regulations
will not apply to tribal lands to the extent that any particular action
[[Page 62140]]
authorized or required will result in a taking of property without just
compensation within the meaning of the Fifth Amendment to the United
States Constitution.
Three commenters recommended broadening the definition of tribal
lands to apply to allotments held in trust for Indian tribes or
individuals, regardless of whether the allotments are inside or outside
the boundaries of an Indian reservation. This suggestion is
inconsistent with the Act's definition of tribal lands. One commenter
stated that the reference to 18 U.S.C. 1151 in Sec. 10.2 (d)(2)(ii)
(renumbered Sec. 10.2 (f)(2)(ii)) does not clarify the nature of
dependent Indian community. Dependent Indian communities, as defined in
18 U.S.C. 1151 (b), include those Indian communities under Federal
protection that were neither ``reserved'' formally, nor designated
specifically as a reservation. Cohen, in The Field of Indian Law
(1982:38) concludes that ``it is apparent that Indian reservations and
dependent Indian communities are not two distinct definitions of place
but rather definitions which largely overlap. All Indian reservations
are also dependent Indian communities unless they are uninhabited.'' In
addition to Indian reservations, dependent Indian communities also
include patented parcels of land and rights-of-way within residential
Indian communities under Federal protection. One commenter recommend
joining Sec. 10.2 (d)(2)(i), (ii), and (iii) (renumbered Sec. 10.2
(f)(2)(i), (ii), and (iii)) with ``or'' at the end of the first two
lines. This change has been made.
Nine commenters recommended changes to the definition of aboriginal
lands in Sec. 10.2 (c)(3). Four commenters challenged use of Indian
Claims Commission judgements to determine aboriginal territories. One
commenter recommended using Native American origin stories and
anthropological evidence instead. A second commenter recommended that
the limits of aboriginal territory must come directly from the Indian
tribe itself. A third commenter recommended expanding the definition to
include all ceded lands and all lands traditionally used by an Indian
tribe, regardless of whether there may have been overlapping usage by
neighboring Indian tribes. The Indian Claims Commission was established
in 1949 specifically to adjudicate tribal land claims against the
United States. Over 200 cases were settled between 1949 and 1978 when
the Commission was terminated. Since 1978, Indian land claims have been
adjudicated by the United States Court of Claims. The Commission and
the Court have considered a wide range of information, including oral
history and anthropological evidence, in reaching their decisions.
Section 3 (a)(1)(C) of the Act specifically gives Indian tribes the
right to claim human remains, funerary objects, sacred objects, or
objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal land that is recognized by a final judgement
of the Indian Claims Commission or United States Court of Claims as
part of their aboriginal land. The drafters consider the final
judgements of the Indian Claims Commission a valuable tool for
identifying area occupied aboriginally by a present-day Indian tribe.
Other sources of information regarding aboriginal occupation should
also be consulted. The definition has been deleted from the rule.
One commenter questioned whether provisions of the Act regarding
intentional excavation or inadvertent discovery of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
apply to all aboriginal lands, or just to that portion of an Indian
tribe's aboriginal territory that is now in Federal ownership or
control. These regulations apply to claims for human remains, funerary
objects, sacred objects, or objects of cultural patrimony excavated
intentionally or discovered inadvertently on Federal lands. One
commenter requested reference information for final judgements by the
Court of Claims. One commenter stated that the map of aboriginal lands
included with the final report of the Indian Claims Commission is out
of print, out of date, and difficult to use as neither counties nor
detailed geographic indicators are provided. The United States
Geological Survey has recently republished the 1978 map. Efforts are
underway to update the map to include land claims settled since 1978.
One commenter inquired about the status of Indian tribes that have
filed a land claim for a particular area, but for which a court
judgement or ruling from the court has been made. An Indian tribe's
status to make a claim under the Act based upon aboriginal occupation
of an area is recognized when a favorable court judgement or ruling has
been made. However, this situation will only affect the disposition of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony excavated intentionally or discovered inadvertently on
Federal land where no lineal descendants or culturally affiliated
Indian tribe has made a claim.
Subsection 10.2 (g) includes definitions of procedures required to
carry out these regulations. Two commenters asked for clarification of
the difference between the items included on the summary in Sec. 10.2
(e)(1) (renumbered Sec. 10.2 (g)(1)) and the items on the inventory in
Sec. 10.2 (e)(2) (renumbered Sec. 10.2 (g)(2)). Summaries are written
general descriptions of collections or portions of collections that may
contain unassociated funerary objects, sacred objects, and objects of
cultural patrimony. Inventories are item-by-item descriptions of human
remains and associated funerary objects. The distinction between the
documents reflects not only their subject matter, but also their detail
(brief overview vs. item-by-item list), and place within the process.
Summaries represent an initial exchange of information prior to
consultation while inventories are documents completed in consultation
with Indian tribe officials and representing a decision by the museum
official or Federal agency official about the cultural affiliation of
human remains and associated funerary objects.
One commenter recommended including a definition of
``repatriation'' in the regulations. The rules of statutory
construction require interpreting undefined terms according to their
common meaning. Repatriation means the return of someone or something
to its nation of origin.
One commenter recommended inclusion of a definition for
``appropriate care and treatment'' of human remains, funerary objects,
sacred objects, or objects of cultural patrimony. The appropriateness
of particular types of care and treatment will necessarily depend on
the nature of the particular human remains, funerary objects, sacred
objects, or objects of cultural patrimony under consideration and the
concerns of any lineal descendants or affiliated Indian tribes or
Native Hawaiian organizations.
Three commenters recommended changes to the definition of
intentional excavation in 10.2 (e)(3) (renumbered Sec. 10.2 (g)(3)).
One commenter recommended deleting the word ``planned'' from the
definition to embrace all kinds of archeological removal, whether
planned or occasioned by an encounter with human remains, funerary
objects, sacred objects, or objects of cultural patrimony during
construction or land use. One commenter recommended expanding the
definition to include intentional excavations on private lands. One
commenter recommended replacing the definition with ``means intentional
removal for the purposes of discovery, study, or removal of such
items'' from section 3 (c) of the statute. These
[[Page 62141]]
changes are unnecessary or inappropriate and were not made.
Two commenters recommended changes to the definition of inadvertent
discovery in 10.2 (e)(4) (renumbered Sec. 10.2 (g)(4)). One commenter
recommended replacing ``inadvertent'' with ``accidental, unintended,
unpredictable, or unexpected in spite of all precaution,'' to avoid any
presumption that such discoveries were made without forethought or
through negligence. Another commenter recommended expanding the
definition to include inadvertent discoveries on private lands. These
changes are unnecessary or not appropriate and were not made.
Section 10.3
This section carries out section 3 (c) of the Act regarding the
custody of human remains, funerary objects, sacred objects, or objects
of cultural patrimony that are excavated intentionally from Federal or
tribal lands after November 16, 1990. One commenter recommended stating
explicitly that the section applies only to Native American human
remains and not to non-Native American human remains such as mountain
men or early settler burials. The language has not been changed as all
provisions of these regulations apply only to Native American human
remains, funerary objects, sacred objects or objects of cultural
patrimony. One commenter requested reviewing use of the term
``intentional excavation'' throughout the section to ensure consistency
with the statutory language. Section 3 (c) of the Act applies to the
``intentional removal from or excavation of Native American [human
remains and] cultural items from Federal or tribal lands for the
purposes of discovery, study, or removal.'' This definition includes
scientific archeological excavations for independent research, public
interpretation, or as part of planned removal of human remains during
land-disturbing activities such as construction projects.
One commenter recommended the regulations focus on ``more
protection of archeological sites ... for research by the scientific
community.'' The Act certainly has as one goal improved protection of
in situ archeological sites. However, this protection is afforded not
simply to allow for more scientific study. Rather, the intent is to
preserve and protect Native American graves, allowing for their
scientific examination only as necessary and appropriate.
Two commenters requested clarification of the clause ``if otherwise
required'' regarding the necessity for obtaining a permit issued
pursuant to the Archeological Resources Protection Act (ARPA) in
Sec. 10.3 (b)(1). The clause has been deleted. The Review Committee
recommended additional clarification in Sec. 10.3 (b)(1) regarding
issuance of ARPA permits on private holdings within the exterior
boundaries of Indian reservations and on lands administered for the
benefit of Native Hawaiians pursuant to the Hawaiian Homes Commission
Act. Language regarding issuance of permits on these lands has been
included.
One commenter recommended requiring the consent of culturally
affiliated Indian tribes and Native Hawaiian organizations for
intentional excavations on both Federal and tribal lands. Another
commenter recommended requiring the consent of traditional religious
leaders for intentional excavations on both Federal and tribal lands.
These changes have not been made. Section 3 (c)(2) of the Act
authorizes excavation or removal of human remains, funerary objects,
sacred objects, or objects of cultural patrimony only after
consultation with or, in the case of tribal lands, consent of the
appropriate Indian tribe or Native Hawaiian organization. One commenter
recommended that Sec. 10.3 (b)(4) not be ``the only requisite for
intentional excavation.'' The requirements of Sec. 10.3 (b)(1) through
(4) must all be met before conducting an intentional excavation.
One commenter recommended changing the title of Sec. 10.3 (c) from
``Procedures'' to ``Disturbances during authorized land use.'' The
procedures outlined in this subsection apply to intentional removal or
excavation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony from Federal or tribal land and not
disturbance during authorized land use, which is dealt with under
Sec. 10.4 regarding inadvertent discovery of human remains, funerary
objects, sacred objects, or objects of cultural patrimony on Federal or
tribal lands. One commenter suggested that Sec. 10.3 (c)(1) confuses
the issue of who -- ``any person'' or the Federal official -- is
responsible for complying with the provisions of the regulations
regarding intentional excavations, and recommended deleting the
section. Two commenters requested clarification of an ``activity'' as
referred to in the first sentence of Sec. 10.3 (c)(1). The subsection
has been deleted and subsequent subsections renumbered.
One commenter requested clearly defining ``responsible Federal
agency.'' The Federal agency with the responsibility for issuing
approvals or permits on actions within their designated Federal lands
is the responsible Federal agency under the Act. In situations when two
or more Federal agencies share regulatory or management jurisdiction of
Federal land, the Federal agency with primary management authority will
have control for purposes of carrying out these regulations unless
otherwise agreed.
One commenter recommended requiring any person who proposes to
undertake an activity on Federal or tribal lands that may result in the
intentional excavation of human remains, funerary objects, sacred
objects, or objects of cultural patrimony to notify all affected
parties, including culturally affiliated Indian tribes and Native
Hawaiian organizations. The Federal agency official -- and not a person
proposing to undertake an activity on Federal lands -- is responsible
for the management of lands under his or her control and is the
appropriate person to notify Indian tribes and Native Hawaiian
organizations of intentional excavations. The Federal agency official,
once notified by a person of such an activity, is required to take
reasonable steps to determine whether the planned activity may result
in the intentional excavation of human remains, funerary objects,
sacred objects, or objects of cultural patrimony. Prior to issuing any
approvals or permits, the Federal agency official must notify in
writing the Indian tribe or Native Hawaiian organizations that are
likely to be affiliated with any excavated items. A person proposing to
undertake an activity on tribal lands should contact the appropriate
tribal official directly.
One commenter recommended requiring the Federal official identified
in the first sentence of Sec. 10.3 (c)(2) (renumbered Sec. 10.3 (c)(1))
to meet the Secretary's standards for persons conducting ethnohistoric
research. There currently are no Secretary's standards for
ethnohistoric research. Each agency is responsible for ensuring that
their employees are qualified to conduct the work required of them. One
commenter recommended clarifying the ``reasonable steps'' required of
Federal officials to explicitly include completion of Stage I surveys
for of all planned ground-disturbing activities as required under
section 106 of the NHPA. The type of steps taken by a Federal agency
official are expected of vary from case-to-case and have not been
specified in these regulations.
One commenter recommended requiring Federal officials to take
reasonable steps regarding planned activities ``or Federal actions.''
The recommended language has not been
[[Page 62142]]
added as it might be interpreted to refer to Federal actions on non-
Federal lands. Provisions of the Act regarding intentional excavations
and inadvertent discoveries apply only to activities occurring on
Federal and tribal lands.
One commenter questioned whether the responsible Federal agency
official need be notified regarding planned activities for which there
is no indication that disturbance of human remains, funerary objects,
sacred objects, or objects of cultural patrimony is likely. These
regulations do not require notification of the responsible Federal
agency official regarding planned activities for which intentional
excavation or removal of human remains, funerary objects, sacred
objects, or objects of cultural patrimony is not anticipated. Human
remains, funerary objects, sacred objects, or objects of cultural
patrimony discovered inadvertently during such an activity would
require cessation of activity for thirty (30) days while the Federal
official consults with affiliated Indian tribes and Native Hawaiian
organizations.
One commenter questioned whether the phrase ``otherwise required by
law'' in the second sentence of Sec. 10.3 (c)(2) (renumbered Sec. 10.3
(c)(1)) referred to ``approvals or permits'' or to ``activities.'' The
sentence has been rewritten as ``required approvals or permits for
activities.'' One commenter recommended including language requiring
Federal agency officials to notify both Indian tribe officials and
traditional religious leaders and obtaining that written approval from
the traditional leaders prior to issuance of required approvals or
permits. The Act requires Federal agency officials to consult with
Indian tribes and Native Hawaiian organizations regarding the
disposition of human remains, funerary objects, sacred objects, or
objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal or tribal lands. Consultation with traditional
religious leaders is required regarding the identification of cultural
items in museum or Federal agency collections. The consent of
traditional religious leaders prior to the issuance of approvals or
permits is not required by the Act. One commenter recommended inclusion
of provisions requiring a minimum of at least ten days advance warning
of any proposed meeting in the Federal agency official's notification
to culturally affiliated Indian tribes or Native Hawaiian
organizations. The recommended requirement could needlessly delay
consultation between Federal and tribal officials. Federal officials
should include adequate advance notice of upcoming meetings, but the
necessary time will vary according to the situation and existing
relationship between the Federal agency and the Indian tribes or Native
Hawaiian organizations. The text has not been changed.
One commenter questioned the necessity of distinguishing in the
third sentence of Sec. 10.3 (c)(2) (renumbered Sec. 10.3 (c)(1))
between culturally affiliated Indian tribes and those Indian tribes
that aboriginally occupied an area. The priority order for evaluating
claims of human remains, funerary objects, sacred objects, or objects
of cultural patrimony excavated intentionally or discovered
inadvertently on Federal or tribal lands, provided in Section 3 of Act,
includes Indian tribes that are recognized as aboriginally occupying
the area in which the objects were identified. The regulatory language
ensures that those Indian tribes that aboriginally occupied an area are
notified of planned activities that may result in the intentional
excavation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony. Another commenter recommended including
state-recognized intertribal councils in the notification process.
Section 12 of the Act makes clear the special relationship between the
Federal government and Indian tribes. Federal officials are thus
directed to consult directly with Indian tribes. Indian tribes may
however, delegate their consultation responsibilities to other
organizations, including state inter-tribal councils. One commenter
recommended following written notification by telephone contact if
there is no response in 15 days. Language to that effect has been
inserted as the second to last line of the section. One commenter
recommended that, after consultation, Federal officials are required to
complete a written plan of action as described in Sec. 10.5 (e) and to
execute the actions called for in the plan of action. The recommended
text has been inserted as Sec. 10.3 (c)(2) and all subsequent
subsections renumbered.
Two commenters objected to Sec. 10.3 (c)(3) on the grounds that by
exhorting Federal agencies to coordinate activities required by these
regulations with the compliance procedures for section 106 of the NHPA,
the regulations give the impression that human remains, funerary
objects, sacred objects, or objects of cultural patrimony would be
eligible for the National Register of Historic Places. Four other
commenters recommended the subsection either be left as is, or edited
to require such coordination to ensure consistency between and among
Federal agencies. One commenter recommended excluding such ``secondary
agencies as the State Historic Preservation Officers'' from the
consultation process. The subsection is intended to remind Federal
agencies of similarities between the two consultation processes while
providing the necessary latitude for designing effective and situation-
specific procedures. The text has not been changed.
Two commenters objected to identification in Sec. 10.3 (c)(4) of
the Indian tribe as being responsible for compliance with provisions of
the Act regarding intentional excavations on their lands. Section 3
(a)(2)(A) of the Act makes it clear that Indian tribes have preference
regarding custody of human remains, funerary objects, sacred objects,
or objects of cultural patrimony excavated intentionally or discovered
inadvertently on their tribal lands second only to lineal descendants.
The regulatory text is consistent with Federal recognition of an Indian
tribe's sovereignty regarding administration of their lands and has not
been changed. Another commenter requested clarification of whether the
intentional excavation provisions apply to lands exchanged by Indian
tribes. In general, the provisions regarding intentional excavations
and inadvertent discoveries apply to Federal lands and those lands
currently held in trust by the United States for an Indian tribe. Lands
outside the exterior boundary of an Indian reservation that are held in
trust by the United States for an Indian tribe do not meet the
statutory definition of tribal lands. These lands are under Federal
control, and the provisions for intentional excavation and inadvertent
discovery on Federal lands apply. The provisions of these regulations
do not apply to lands owned by an Indian tribe that have not been
accepted into trust by the United States. Another commenter requested
clarification regarding which Federal agency would have primary
responsibility for compliance with the intentional excavation and
inadvertent discovery provisions of these regulations for proposed or
existing coal mining operations on tribal lands. Any person who
proposes to undertake an activity on tribal lands that may result in
the intentional excavation of human remains, funerary objects, sacred
objects, or objects of cultural patrimony must immediately notify in
writing the responsible Indian tribe official. The tribal official then
decides what, if any, steps to take. One commenter recommended
including a deadline for Indian tribe response to notification of
[[Page 62143]]
an activity planned for tribal lands. A deadline for Indian tribal
response regarding proposed intentional excavations on tribal land is
not considered appropriate as section 3 (c)(2) of the Act makes it
clear that any intentional excavation or removal of human remains,
funerary objects, sacred objects, or objects of cultural patrimony on
tribal land requires the consent of the appropriate Indian tribe or
Native Hawaiian organization. Another commenter recommended clarifying
that the Indian tribe should take appropriate steps to make certain
that the ``treatment and disposition'' of human remains, funerary
objects, sacred objects, or objects of cultural patrimony be carried
out. The recommended language has been included.
Section 10.4
This section carries out section 3 (d) of the Act regarding the
custody of human remains, funerary objects, sacred objects, or objects
of cultural patrimony that are discovered inadvertently on Federal or
tribal lands after November 16, 1990. One commenter requested
replacement of the word ``inadvertent'' in the section title with
``unintended.'' Section 3 (d) of the Act addresses the inadvertent
discovery of human remains, funerary objects, sacred objects, or
objects of cultural patrimony as part of approved work projects as well
as other, unintentional discoveries on Federal or tribal lands. The
statutory term covers both meanings adequately and has been retained in
the title and throughout the text.
One commenter felt the entire section needed to be more specific.
One commenter recommended editing the general statement in Sec. 10.4
(a) to state explicitly that the provisions apply only to ``Native
American'' human remains, funerary objects, sacred objects, or objects
of cultural patrimony. The definition of human remains, funerary
objects, sacred objects, or objects of cultural patrimony in Sec. 10.2
(d) make it clear that these regulations only apply to Native American
human remains, funerary objects, sacred objects, or objects of cultural
patrimony.
One commenter requested clarification in the regulations regarding
treatment of disarticulated and unassociated human remains. Section
10.4 of the Act covers the treatment and disposition of such human
remains under ``Inadvertent Discoveries.''
Two commenters recommended revising the first sentence of Sec. 10.4
(b) to require the person making an inadvertent discovery, and not just
anyone that knows of an inadvertent discovery, to notify the
responsible Federal official. The phrase has been revised to more
closely reflect the statutory language. Another commenter recommended
that the notification of the responsible Federal official be immediate,
via telephone or fax, to ensure that the activity is ceased as soon as
possible. The text has been modified to require immediate telephone
notification of the inadvertent discovery with written confirmation
following. One commenter recommended inclusion of language in this
subsection restating that determination of lineal descent or cultural
affiliation usually require physical anthropological study, laboratory
analysis, radiocarbon dating, and other study to make a legally
defendable statement. The criteria for determining lineal descent and
cultural affiliation, which may include these kinds of examinations,
are contained in Sec. 10.14, and apply throughout these regulations;
they have not been repeated in this section. Another commenter
recommended requiring professional investigation sufficient to complete
an accurate identification of the nature of the inadvertent discovery
prior to notifying the responsible Federal agency official or Indian
tribe official to ensure that the procedures are not carried out
unnecessarily. The drafters consider requiring the complete
professional identification of inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony
prior to notification of the responsible Federal or Indian tribe
officials inconsistent with the statutory language and the legislative
history. One commenter requested clarification of the responsibilities
of the person making an inadvertent discovery for notifying other
agencies, such as the local police, coroner, and the State Historic
Preservation Officer. Requirements for notification of local or state
officials vary by jurisdiction and have not been addressed in this
rule. Subsection 10.4 (f) of these regulations suggests Federal land
managers coordinate their responsibilities under this section with
their emergency discovery responsibilities under section 106 of the
NHPA which includes notification of the State Historic Preservation
Officer. One commenter recommended modifying the text to require
Federal agency employees working on tribal lands to immediately notify
their supervisor, who in turn will notify the Indian tribe official.
Section 3 (d)(1) of the Act requires notification of Indian tribe
officials regarding inadvertent discoveries on tribal lands. Federal
agency officials conducting activities on tribal lands should ensure
that their employees are familiar with the notification procedures of
these regulations. One commenter recommended expanding this subsection
to include provisions to ensure that a Federal agency documents and
acts on reported inadvertent discoveries. Federal agency officials are
required to comply with the provisions of these regulations.
One commenter recommended applying the cessation of activity
following inadvertent discovery of human remains, funerary objects,
sacred objects, or objects of cultural patrimony on Federal or tribal
lands in Sec. 10.4 (c) only to burials in areas that will not be
disturbed and in emergency discovery situations. This suggestion runs
counter to the statutory requirements and the regulatory language has
not been changed. Two commenters requested clarification of the phrases
``in the area of the discovery'' and a ``reasonable effort'' regarding
protection of human remains, funerary objects, sacred objects, or
objects of cultural patrimony following inadvertent discovery. The
terms have not been precisely defined in recognition of the variability
of site locations and types. In general, the terms are interpreted in a
fashion that adequately protects the human remains, funerary objects,
sacred objects, or objects of cultural patrimony from additional
damage.
One commenter recommended editing and renumbering Sec. 10.4 (a),
(e), and (f) to more accurately reflect the distinctions between
procedures on Federal lands and those for tribal lands. The text of
Sec. 10.4 (d) has been renumbered Sec. 10.4 (d)(1) and Sec. 10.4 (e)
has been renumbered as Sec. 10.4 (d)(2).
Two commenters recommended including additional text in Sec. 10.4
(d)(1) (renumbered section 10.4 (d)(1)(i)) directing Federal agencies
to establish a process for certifying the receipt of inadvertent
discovery notifications and training personnel responsible for such
certifications by a specific date. Certification procedures for the
receipt of notifications -- such as those resulting from inadvertent
discoveries -- are already in place with all land management Federal
agencies and need only be modified to the specifics of these
regulations. One commenter recommended including additional examples of
steps to secure and protect inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony --
such as fencing, 24-hour surveillance in populated areas -- in
Sec. 10.4 (d)(2) (renumbered section 10.4 (d)(1)(i)). Specific steps to
secure and protect inadvertently discovered human
[[Page 62144]]
remains, funerary objects, sacred objects, or objects of cultural
patrimony will vary from site-to-site and have not been specified in
this rule.
Seven commenters recommended extending the one (1) day deadline for
notification of affiliated Indian tribes by Federal agency officials in
Sec. 10.4 (d)(3), with suggestions ranging anywhere from three to ten
days. The one (1) day deadline was designed to ensure that Federal
agency officials and Indian tribe officials maximize the amount of time
available for consultation regarding the treatment and disposition of
inadvertently discovered human remains, funerary objects, sacred
objects, or objects of cultural patrimony. The Act requires that the
thirty (30)-day cessation of the activity begins with the Federal
agency official certifying receipt of notification from the inadvertent
discoverer of the human remains, funerary objects, sacred objects, or
objects of cultural patrimony. As a result, any additional time
provided the Federal agency official to contact the appropriate Indian
tribe official is time taken away from the consultation process. In
recognition of the inherent notification difficulties, the drafters
have modified the initial notification requirements to require the
person making the inadvertent discovery to provide immediate telephone
notification with written confirmation to the Federal official.
Certification of the notification by the Federal official and the
required notification of the Indian tribe official occurs upon receipt
of the written confirmation, thus providing the Federal agency official
with some additional time between the telephone call and receipt of the
written notice to identify the appropriate Indian tribe officials. The
one (1) day notification deadline has been extended to three (3)
working days. One commenter requested clarification for the phrase
``Indian tribe or tribes known or likely to be affiliated.'' It should
be noted that this initial contact is designed to notify those Indian
tribes or Native Hawaiian organizations that are ``likely'' to be
affiliated with the inadvertently discovered human remains, funerary
objects, sacred objects, or objects of cultural patrimony. Federal
agencies are encouraged to compile a listing of the appropriate Indian
tribes or Native Hawaiian organizations and their officials as soon as
possible to facilitate rapid notification when an inadvertent discovery
is made. Determination of the specific affiliation of the inadvertently
discovered human remains, funerary objects, sacred objects, or objects
of cultural patrimony can be made during the thirty (30) day cessation
of activity. Two commenters requested clarification of the phrase ``if
known'' in Sec. 10.4 (d)(3) (renumbered Sec. 10.4 (d)(1)(iii))
regarding the required notification of Indian tribes which aboriginally
occupied the area in which human remains, funerary objects, sacred
objects, or objects of cultural patrimony have been discovered
inadvertently. Information regarding the aboriginal lands of Indian
tribes is readily available to Federal agency officials from the
results of Indian Land Claims Commission and Court of Claims decisions.
``If known'' has been deleted.
One commenter recommended suspending the initiation of consultation
required in Sec. 10.4 (d)(4) (renumbered Sec. 10.4(d)(1)(ii)) for up to
thirty (30) days in cases of illegal excavation or violation of Federal
law, specifically in cases where confidential criminal investigation
are being conducted. As the likely custodians of illegally excavated
human remains, funerary objects, sacred objects, or objects of cultural
patrimony pursuant to section 3 of the Act, the appropriate Indian
tribe or Native Hawaiian organization should be notified of the
inadvertently discovery and consulted as part of any ongoing
investigation. The responsibility to pursue ARPA investigations does
not devolve from the land manager's law enforcement agency merely
because consultation is required under this Act. If an ARPA
investigation is under way, the law enforcement agents involved should
immediately notify their superiors and other Federal agency officials
involved in NAGPRA consultation if any aspect of NAGPRA consultation is
likely to interfere with the investigation.
Six commenters recommended changing the length of the required
cessation of activities in Sec. 10.4 (e) (renumbered Sec. 10.4 (d)(2)).
Four commenters recommended reducing the period -- to fifteen (15)
days, seven (7) days, or deleted entirely -- while two commenters
recommended extending the period until the affiliated Indian tribe or
Native Hawaiian organization consents to continuation of the project.
The thirty (30) day period for cessation of activities in the area of
an inadvertent discovery is stipulated in section 5 (d) of the Act and
has not been changed. Three commenters requested clarification of the
stipulation that activity may resume after thirty (30) days, ``if the
resumption of the activity is otherwise lawful.'' The phrase is used to
acknowledge that provisions of other statutes, such as section 106 of
the NHPA, may also apply to a particular inadvertent discovery and the
resumption of activities in the area of the inadvertent discovery must
comply with other legal requirements as well as those of these
regulations.
Four commenters requested clarification of the procedures following
the thirty (30)-day cessation of activity. After consulting with the
affiliated Indian tribe or Native Hawaiian organization during the
thirty day (30) cessation of activity, the Federal agency official must
make a decision regarding the treatment, excavation, and disposition of
any inadvertently discovered human remains, funerary objects, sacred
objects, or objects of cultural patrimony. The options may include
preservation in situ or excavation of the human remains, funerary
objects, sacred objects, or objects of cultural patrimony. This
decision must be informed by the consultation process, but obviously
will take into account other considerations as well. One commenter
requested clarification regarding the responsibility for costs incurred
during the required work cessation. Responsibility for costs incurred
during the required work cessation will depend upon the nature of the
contract drawn between the Federal agency and the appropriate
contractor. One commenter recommended additional language indicating
that resumption of an activity in the area of inadvertent discovery can
occur only after the human remains, funerary objects, sacred objects,
or objects of cultural patrimony have been removed or treated.
Determining the disposition of human remains, funerary objects, sacred
objects, or objects of cultural patrimony discovered inadvertently on
Federal and tribe land can only occur after consultation with
affiliated Indian tribes and Native Hawaiian organizations. The
drafters consider it premature to stipulate the outcomes.
One commenter recommended accompanying the written, binding
agreement between the Federal agency and the affiliated Indian tribes
or Native Hawaiian organizations in the second sentence of Sec. 10.4
(e) (renumbered 10.4 (d)(2)) by a letter from the appropriate Indian
tribe official expressing agreement with a proposed course of action.
The nature of agreements between Federal agencies and Indian tribes and
Native Hawaiian organizations will depend upon the specific situation
and have not been defined precisely in these regulations. Four
commenters recommended clarifying the phrase ``necessary parties.'' The
phrase has been replaced with ``Federal agency and the affiliated
Indian tribes or Native Hawaiian
[[Page 62145]]
organizations.'' One commenter inquired whether a memorandum of
agreement signed and executed under the NHPA prior to any inadvertent
discovery would take priority standing. Such an agreement might apply
if the agreement specifies the plan for the removal, treatment, and
disposition of the human remains, funerary objects, sacred objects, or
objects of cultural patrimony; the agreement is considered binding by
both the Federal agency and the affiliated Indian tribes or Native
Hawaiian organizations; and, the agreement is consistent with the
requirements of the Act and these regulations.
One commenter identified Sec. 10.4 (f) (renumbered section 10.4
(e)) as an ``absurd attempt to fob off the Federal agency's
responsibilities onto the tribes.'' Requiring a Federal agency to act
as intermediary between the person inadvertently discovering human
remains, funerary objects, sacred objects, or objects of cultural
patrimony and the Indian tribe on whose land the human remains,
funerary objects, sacred objects, or objects of cultural patrimony have
been discovered inadvertently is counter to the goal of the statute, as
expressed in the legislative history, of facilitating direct dialogue.
One commenter recommended inclusion in this subsection of a listing of
those actions required of Indian tribe officials under the Act. The
subsection has been amended to include the recommended text. One
commenter recommended inclusion of a specified deadline for an Indian
tribe to respond following notification of the inadvertent discovery of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony. The drafters consider it inappropriate to impose a deadline
for Indian tribe response following notification. One commenter
recommended inclusion of a section regarding the resumption of activity
on tribal lands. The recommended section has been included as Sec. 10.4
(e)(2).
One commenter identified Sec. 10.4 (g) (renumbered Sec. 10.4 (f))
as serving only to confuse requirements and procedures stemming from
distinct laws with distinct purposes and recommended deleting the
subsection. Other commenters identified Sec. 10.4 (g) as being most
welcome, but recommended omitting the specific regulatory citations in
light of current efforts to amend regulations for the NHPA. The
citations have been retained to facilitate cross-referencing. One
commenter recommended clarifying the subsection to indicate that the
inadvertent discovery of human remains, funerary objects, sacred
objects, or objects of cultural patrimony does not necessarily require
an agreement under section 106 of the NHPA. Not all human remains,
funerary objects, sacred objects, or objects of cultural patrimony are
deemed eligible for the National Register of Historic Places and thus
do not fall within the purview of the NHPA. Their inadvertent discovery
would thus not require such an agreement. Two commenters recommended
including specific language to outline the relationship between
provisions of the Act and those of ARPA, NHPA, and the American Indian
Religious Freedom Act (AIRFA). The details of how Federal agencies
coordinate their responsibilities under the various statutes will
depend on their procedures and specific situations; the text has not
been modified. However, section 110 (a)(2)(E)(iii) of the NHPA requires
Federal agencies to provide for the disposition of Native American
human remains, funerary objects, sacred objects, and objects of
cultural patrimony in a manner consistent with the Act. Further,
section 112 (b)(3) and (b)(4) require the Secretary of the Interior to
publish guidelines to encourage private owners as well as Federal,
state, and tribal governments to protect Native American human remains,
funerary objects, sacred objects, and object of cultural patrimony.
One commenter recommended including language at Sec. 10.4 (g)
requiring all authorizations to carry out land use activities on
Federal lands or tribal lands, including all leases and permits, to
include a requirement for the holder of the authorization to notify the
appropriate Federal or tribal official immediately upon the discovery
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony. The language is included in the text.
Section 10.5
This section establishes requirements for consultation as part of
the intentional excavation or inadvertent discovery of human remains,
funerary objects, sacred objects, or objects of cultural patrimony on
Federal lands. One commenter objected to the implication in the first
sentence of the section that consultation is necessarily ``part of''
the intentional excavation or inadvertent discovery process. The Act
requires consultation as part of intentional excavation and inadvertent
discovery situations. The language has been retained. One commenter
recommended replacing the phrase ``Federal lands'' with ``land in the
United States, its territories, or possessions.'' Provisions of section
3 of the Act are clearly limited to Federal and tribal lands. The
language has been retained. One commenter recommended that ``a minimum
set of standards be identified for the scientific study of human
remains and associated grave goods.'' Section 5 (a)(2) of the Act
precludes using the Act as an authorization for the initiation of new
scientific studies of human remains and associated funerary objects.
The recommended language has not been included.
Two commenters recommended revising the first sentence of Sec. 10.5
(a) to coordinate contact with traditional religious leaders through
the appropriate Indian tribe. The most appropriate method for
contacting traditional religious leaders will vary between Indian
tribes. The language has been retained to provide this necessary
flexibility. Another commenter recommended clarifying that consultation
must be conducted without regard to state boundaries. The widespread
relocation of Indian tribes during the eighteenth and nineteenth
centuries means that consultation may often require contact with Indian
tribes that are no long resident in the area of the intentional
excavation or inadvertent discovery. Lineal descendants and affiliated
Indian tribes and Native Hawaiian organizations must be contacted and
consulted with regardless of where they are living presently.
One commenter recommended inserting ``the'' before ``human
remains'' in Sec. 10.5 (a)(1) to make it clear that the consulting
parties may vary from case-to-case. The text has been changed. One
commenter recommended changing the ``and'' between Sec. 10.5 (a)(1) and
(a)(2) to ``or.'' The original text has been retained to emphasize the
necessity of consulting with Indian tribes that are or are likely to be
culturally affiliated with the human remains, funerary objects, sacred
objects, or objects of cultural patrimony as well as the Indian tribe
on whose aboriginal lands the human remains, funerary objects, sacred
objects, or objects of cultural patrimony have been located or are
expected to be found and the Indian tribe or Native Hawaiian
organization have a demonstrated cultural relationship with the human
remains, funerary objects, sacred objects, or objects of cultural
patrimony. One commenter recommended deleting Sec. 10.5 (a)(2) in that
it assumes a relationship between prehistoric archeological sites and
historic use of an area. Section 3 of the Act makes it clear that
Indian tribes on whose aboriginal lands human remains, funerary
objects, sacred objects, or objects of cultural
[[Page 62146]]
patrimony have been or are likely to be located need not be culturally
affiliated with those human remains, funerary objects, sacred objects,
or objects of cultural patrimony to be considered their legitimate
custodian. One commenter recommended substituting ``excavation'' for
``activity'' in Sec. 10.5 (a)(2). The term ``activity'' in this
sentence refers to ``an activity on Federal or tribal lands that may
result in the excavation of human remains or cultural items'' as
defined in Sec. 10.3 (c). The text has been modified to incorporate
this clarification.
One commenter recommended deleting ``likely'' cultural affiliation
in the first sentence of Sec. 10.5 (b) since the term is not defined in
either the Act or these regulations. The term has been deleted. One
commenter recommended replacing the term ``objects'' in the same
sentence with ``human remains, funerary objects, sacred objects, or
objects of cultural patrimony.'' The term has been replaced. One
commenter recommended deleting the phrase ``other Indian tribes that
may have a relationship...'' in the second sentence. The existing
phrase is drawn from section 3 (a)(2)(C)(2) of the Act and has been
retained. One commenter recommended provisions that require the notice
include information regarding the proposed time and place for meetings
and the Federal agency's proposed treatment and disposition of the
intentionally excavated or inadvertently discovered human remains,
funerary objects, sacred objects, or objects of cultural patrimony. The
suggested language has been included in the text. One commenter
recommended revising the last sentence of Sec. 10.5 (b) to require
traditional religious leaders be consulted and their recommendations
followed. The requested revision runs counter to the requirements of
the Act and has not been included in the text.
Two commenters requested further clarification of the type of
activities that constitute consultation. Additional text has been added
throughout Sec. 10.5 to clarify the consultation process.
One commenter recommended inclusion of additional language in
Sec. 10.5 (c) requiring Federal agencies to provide in writing
information regarding the nature and general location of any
inadvertent discovery or proposed activity. The recommended text has
been added. One commenter recommended rewriting Sec. 10.5 (c)(2) to
indicate that additional documentation will be supplied if it has been
used to identify the cultural affiliation of human remains, funerary
objects, sacred objects, or objects of cultural patrimony. The proposed
language has been included in the text.
One commenter recommended amending Sec. 10.5 (d) to indicate that
failure to respond to the Federal agency's request for information
could be taken to signify an Indian tribe's voluntary withdrawal from
standing under these sections. Indian tribes or Native Hawaiian
organizations that have been duly notified of an intentional excavation
or inadvertent discovery are not required to respond to the Federal
agency's request for information. One commenter recommended including
language to insure that information provided to Federal agency
officials will, at the request of the Indian tribe or Native Hawaiian
organization, be held in confidence. The Act provides no specific
exemptions from provisions for the Freedom of Information Act for
culturally sensitive information. However, Federal agency officials
may, at the request of an Indian tribe or Native Hawaiian organization
official, take such steps as are considered necessary pursuant to
otherwise applicable law to ensure that information of a particularly
sensitive nature is not made available to the general public. One
commenter recommended changing ``collections'' in Sec. 10.5 (d)(3) to
``human remains, funerary objects, sacred objects, or objects of
cultural patrimony.'' The recommended change has been made. Two
commenters identified Sec. 10.5 (d)(5) as being too broad and unlikely
to give useful guidance and recommended deleting the subsection.
Although not determinant, information about the kinds of cultural items
that the Indian tribe or Native Hawaiian organization considers as
funerary objects, sacred objects, or objects of cultural patrimony is
important and useful for Federal agency officials to make decisions
required of them under these regulations. The subsection has been
retained.
One commenter recommended tying the requirements in Sec. 10.5 (e)
explicitly to the coordinated preparation of individual environmental
and cultural resource management plans for projects, facilities, and
land units. Integration of the requirements of these regulations with
those of other statutes and policies has been left to the discretion of
each affected Federal agency. One commenter considered Sec. 10.5 (e)
fine as it stands. One commenter recommended requiring the completion
of a written plan of action as a result of consultation. The text has
been rewritten to make it clear that completion of a written plan of
action, approved and signed by the Federal agency official, is
required. One commenter recommended requiring the approval and
signature of the written plan of action by the affiliated Indian tribe
officials. While the approval and signature of Indian tribe officials
and other parties is desirable, the concurrence of these officials to
the written plan of action is not required. One commenter recommended
the written plan of action include in situ preservation to offset what
the commenter perceived as a bias toward ``excavation, analysis and
recordation of imbedded materials,'' and too narrow a definition of
custodial interest in imbedded materials. One commenter requested
clarification of the term ``treatment'' as used in Sec. 10.5 (e)(3) and
(e)(7). The term is used throughout these regulations according to its
common meaning, that is, a specific manner of dealing with human
remains, funerary objects, sacred objects, or objects of cultural
patrimony. The specifics of treatment must be considered as part of the
consultation process. Two commenters recommended including in situ
preservation specifically as a treatment option in Sec. 10.5 (e)(3).
Preservation of human remains, funerary objects, sacred objects, or
objects of cultural patrimony in place should be considered whenever
possible. Because case-by-case examples have not been provided, the
option has not been added to the regulatory text. Three commenters
recommended including language under Sec. 10.5 (e)(4) to indicate that
archeological recording must comply with certain standards. Any
archeological activity conducted on Federal or tribal lands, including
the intentional excavation or removal of human remains, funerary
objects, sacred objects, or objects of cultural patrimony, must meet
the standards provided by ARPA. One commenter recommended requiring
radiocarbon dating as part of the archeological reporting. Determining
the necessity of radiocarbon or other types of analysis must be on a
case-by-case basis. One commenter recommended deleting Sec. 10.5 (e)(5)
since analysis should only be permitted in the rare circumstance where
the cultural affiliation of human remains, funerary objects, sacred
objects, or objects of cultural patrimony is not clear. The subsection
has been retained to ensure that analysis is discussed thoroughly
during the consultation process. One commenter recommended specifying
the steps to be followed to contact traditional religious leaders
should under Sec. 10.5 (e)(6). The Act does not require consultation
between Federal agency officials and traditional religious leaders
regarding the
[[Page 62147]]
intentional excavation or inadvertent discovery of human remains,
funerary objects, sacred objects, or objects of cultural patrimony.
Identification of traditional religious leaders and the recommended
steps in contacting them is left to the discretion of Indian tribe
officials. Three commenters recommended specification of a deadline for
completion of the written plan of action. Written plans of action
should generally be completed during the thirty (30) day consultation
period following an inadvertent discovery or prior to issuance of an
ARPA permit for intentional excavations.
Three commenters recommended changing the title of Sec. 10.5 (f)
from ``Programmatic agreements'' to ``Comprehensive agreements'' to
avoid confusion between agreements developed regarding the treatment
and disposition of human remains, funerary objects, sacred objects, or
objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal lands and programmatic agreements developed
pursuant to provisions of the NHPA. The term ``programmatic
agreements'' has been changed in the title and throughout the
subsection to ``comprehensive agreements.'' Two commenters identified
such agreements as ``an awkward means of accomplishing the intent of
the law,'' and recommended deleting the subsection. Comprehensive
agreements are intended to provide Federal agency officials and Indian
tribe officials with an efficient means of ensuring intentionally
excavated and inadvertently discovered human remains, funerary objects,
sacred objects, or objects of cultural patrimony receive the
appropriate treatment and disposition. The subsection has been
retained. One commenter objected to the reference to ``specific'' human
remains, funerary objects, sacred objects, or objects of cultural
patrimony referenced in the first section of Sec. 10.5 (f) on the
grounds that such agreements should define proactively the procedures
and criteria for the treatment and disposition of any human remains,
funerary objects, sacred objects, or objects of cultural patrimony
excavated intentionally or discovered inadvertently. The term has been
deleted from the text. One commenter recommended that comprehensive
agreements address not only Federal agency land management activities,
but Federal agency regulatory responsibilities as well. These
regulations address Federal agency responsibilities under the Act.
While Federal agency responsibilities under other statutory,
regulatory, and policy mandates need to be considered in preparation of
such documents, the inclusion of such requirements in these rules is
not appropriate. One commenter recommended including language requiring
the consent of traditional religious leaders to any comprehensive
agreements in the text. The Act does not require consultation between
Federal agency officials and traditional religious leaders regarding
the treatment or disposition of human remains, funerary objects, sacred
objects, or objects of cultural patrimony excavated intentionally or
discovered inadvertently on Federal lands. One commenter recommended
modifying the last sentence of the subsection to indicate that the
``signed'' comprehensive agreement should be considered proof of
consultation. The text has been edited as recommended.
One commenter recommended requiring Indian tribe officials to
consult with and make recommendations following the advice of
traditional religious leaders. The Act does not require consultation
between Indian tribe officials and traditional religious leaders
regarding the intentional excavation or inadvertent discovery of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony. Consultation with traditional religious leaders is left to
the discretion of Indian tribe officials.
Section 10.6
This section carries out section 3 (a) of the Act, subject to the
limitations in Sec. 10.15, regarding custody of human remains, funerary
objects, sacred objects, or objects of cultural patrimony excavated
intentionally or discovered inadvertently on Federal or tribal lands
after November 16, 1990. One commentor objected to the terms ``legal
interest in'' and ``ownership'' as applied to human remains, funerary
objects, and objects of cultural patrimony; and recommended replacing
the terms with ``custodial responsibility.'' The terms have been
changed to ``custody'' throughout the text. This change, however, is
only editorial and does not alter the requirements of the Act. One
commenter recommended deleting reference to the limitations in
Sec. 10.15 from this section. Limitations on the custodial criteria
presented in section 3 (a) of the Act are drawn from section 7 (b),
(c), and (e) of the Act. Both Sec. 10.15 and the cross-reference in
this section have been retained. One commenter recommended setting
limits in this section on just how temporally and culturally far afield
claims of custody can be extended reasonably. Applicability of the
custody criteria in this section is dependant on the facts of each case
and will vary. The type of limits recommended by the commenter are
considered inappropriate to such a case-by-case evaluation process. One
commenter recommended including language in this section to identify
the party responsible for substantiating claims. Lineal descendants or
Indian tribes or Native Hawaiian organizations must provide information
to substantiate their claims as outlined in Sec. 10.10 (a) and (b).
One commenter recommended concluding the search for the custodian
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony excavated intentionally or discovered inadvertently
on Federal or tribal lands with the first legitimate claimant
identified under Sec. 10.6 (a) that declines to make and substantiate a
claim. One commenter recommended limiting custody of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
found on tribal lands to those human remains, funerary objects, sacred
objects, or objects of cultural patrimony dating after establishment of
the reservation. Two commenters recommended reversing the order of the
custody criteria in Sec. 10.6 (a)(2)(i) and (a)(2)(ii) so that
culturally affiliated Indian tribes or Native Hawaiian organizations
are given preference over tribal land owners. Another commenter
recommended giving culturally affiliated Indian tribes preference over
tribal land owners in claims for sacred objects or objects of cultural
patrimony found on tribal lands. One commenter recommended deleting the
custody criteria in Sec. 10.6 (a)(2)(ii) and (a)(2)(iii) and instead
have human remains, funerary objects, sacred objects, or objects of
cultural patrimony found on Federal lands revert to the United States.
One commenter recommended including language under Sec. 10.6
(a)(2)(iii)(A) that would restrict any Indian tribe making a claim
based upon its aboriginal occupation of Federal land from any action
that would irreparably damage the interests of another Indian tribe who
might have a superior claim. The custody criteria in Sec. 10.6 (a) are
taken virtually verbatim from section 3 (a) of the Act. All of the
above recommendations run counter to those ownership criteria
established by the Act and have not been included in the text.
Three commenters requested clarification in Sec. 10.6 (b) of how
the custody criteria effect Federal responsibilities under NHPA and
ARPA. To the extent that any conflicts among those laws may exist, it
is a general rule
[[Page 62148]]
of statutory construction that newer and more specific legislation
takes precedence over older or more general laws. The custody of human
remains, funerary objects, sacred objects, or objects of cultural
patrimony excavated intentionally or discovered inadvertently on
Federal or tribal lands is as specified in Sec. 10.6 (a).
One commenter stated that the obvious purpose of Sec. 10.6 (c) is
to create disputes between Indian tribes or between Native Hawaiian
organizations regarding the custody of human remains, funerary objects,
sacred objects, or objects of cultural patrimony excavated
intentionally or discovered inadvertently on Federal lands, and
recommended deleting the subsection. One commenter recommended
inclusion of language in this subsection indicating that an identified
individual, Indian tribe, or Native Hawaiian organization custodian has
decision-making authority regarding the treatment and disposition of
human remains, funerary objects, sacred objects, or objects of cultural
patrimony excavated intentionally or discovered inadvertently on
Federal lands. Individual, Indian tribe, or Native Hawaiian custodians
of human remains, funerary objects, sacred objects, or objects of
cultural patrimony gain complete decision-making authority regarding
the treatment and disposition of human remains, funerary objects,
sacred objects, or objects of cultural patrimony upon the transfer of
those human remains, funerary objects, sacred objects, or objects of
cultural patrimony from the Federal agency. One commenter recommended
deleting the word ``traditional'' from the second sentence of Sec. 10.6
(c). Another commenter recommended adding the phrase ``of the specific
Indian tribe in each instance'' at the end of the same sentence for
clarification. The recommended language has been added to the text. Two
commenters requested clarification of the purpose and nature of the
public notices required in the third sentence of Sec. 10.6 (c). Three
commenters recommended the publication of notices regarding the
disposition of human remains, funerary objects, sacred objects, or
objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal lands in the tribal or local newspapers of
those Indian tribes that have standing to make a claim under Sec. 10.6
(a), as well as in a newspaper of general circulation in the area in
which the human remains, funerary objects, sacred objects, or objects
of cultural patrimony were excavated intentionally or discovered
inadvertently. Another commenter recommended requiring publication of
the notices within seven (7) days of determination of which Indian
tribe or Native Hawaiian organization has custodial rights. Another
commenter objected to the public notice requirement in that it might
offend the sensibilities of those Indian tribes or Native Hawaiian
organizations involved. This subsection outlines procedures to ensure
due process in the transfer of human remains, funerary objects, sacred
objects, or objects of cultural patrimony excavated intentionally or
discovered inadvertently on Federal lands to their proper individual,
Indian tribe, or Native Hawaiian organization custodian. Notices need
only provide information adequate to allow potentially interested
lineal descendants, Indian tribes, or Native Hawaiian organizations to
determine their interest in claiming custody under these regulations.
The requirements regarding publication of public notices have been
rewritten for clarity and include provisions for publication in local
and tribal newspapers of general circulation in the areas in which
culturally affiliated Indian tribes or Native Hawaiian organizations
now reside.
Section 10.7
This section has been reserved for procedures for the disposition
of unclaimed human remains, funerary objects, sacred objects, or
objects of cultural patrimony excavated intentionally or discovered
inadvertently on Federal lands or tribal lands after November 16, 1990.
One commenter recommended developing this section with input from
Indian tribes and Native Hawaiian organizations. Section 3 (b) of the
Act requires that regulations regarding the disposition of unclaimed
human remains, funerary objects, sacred objects, or objects of cultural
patrimony excavated intentionally or discovered inadvertently on
Federal or tribe lands be published by the Secretary in consultation
with the Review Committee, and representatives of Indian tribes, Native
Hawaiian organizations, museums and the scientific community.
Section 10.8
This section carries out Section 6 of the Act related to conducting
summaries of collections in the possession or control of museums that
receive Federal funding or Federal agencies which may contain
unassociated funerary objects, sacred objects, and objects of cultural
patrimony. Four commenters objected to use of the phrase ``collections
that may include...'' in Sec. 10.8 (a) and throughout the section as
overstepping the statutory authorization and giving the mistaken
impression that these regulations apply to entire collections and not
to specific unassociated funerary objects, sacred objects, and objects
of cultural patrimony. The statutory language is unclear whether
summaries should include only those unassociated funerary objects,
sacred objects, or objects of culturally affiliated with a particular
Indian tribe or Native Hawaiian organization, or the entire collection
which may include these cultural items. The legislative history and
statutory language does make it clear that the summary is intended as
an initial step in bringing an Indian tribe and Native Hawaiian
organization into consultation with a museum or Federal agency.
Consultation between a museum or Federal agency and an Indian tribe or
Native Hawaiian organization is not required until after completion of
the summary. Identification of specific sacred objects or objects of
cultural patrimony must be done in consultation with Indian tribe
representatives and traditional religious leaders since few, if any,
museums or Federal agencies have the necessary personnel to make such
identifications. Further, identification of specific unassociated
funerary objects, sacred objects, and objects of cultural patrimony
would require a museum or Federal agency to complete an item-by-item
listing first. The drafters opted for the more general approach to
completing summaries of collections that may include unassociated
funerary objects, sacred objects, or objects of cultural patrimony
rather than the itemized list required for the inventories in hopes of
enhancing the dialogue between museums, Federal agencies, Indian
tribes, and Native Hawaiian organizations required under the Act. One
commenter requested clarification of the deadlines and funding
responsibility of this section. Section 10.8 (c) of these regulations
clearly states that summaries under this