(a) Purpose. The Native American Graves Protection and Repatriation Act (Act) of November 16, 1990, recognizes the rights of lineal descendants, Indian Tribes, and Native Hawaiian organizations in Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony.

(1) The Act and these regulations provide systematic processes to:

(i) Protect Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony; and

(ii) Restore Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony to lineal descendants, Indian Tribes, and Native Hawaiian organizations.

(2) The Act and these regulations require consultation with lineal descendants, Indian Tribes, and Native Hawaiian organizations.

(3) Consistent with the Act, these regulations require deference to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations.

(b) Applicability. These regulations pertain to Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony.

(1) These regulations require certain actions by:

(i) Any institution or State or local government agency (including any institution of higher learning) within the United States that receives Federal funds and has possession or control of a holding or collection;

(ii) Any Federal agency that has possession or control of a holding or collection or that has responsibilities on Federal or Tribal lands;

(iii) Indian Tribes on Tribal lands in Alaska and the continental United States; and

(iv) The State of Hawai`i Department of Hawaiian Home Lands (DHHL) on Tribal lands in Hawai`i.

(2) Lineal descendants, Indian Tribes, and Native Hawaiian organization may, but are not required to, consult, submit claims for disposition, or submit requests for repatriation.

(c) Accountability. These regulations are applicable to and binding on all museums, Federal agencies, and DHHL for implementing the systematic processes for disposition and repatriation of human remains or cultural items under this part.

(d) Duty of care. These regulations require a museum, Federal agency, or DHHL to care for, safeguard, and preserve any human remains or cultural items in its custody or in its possession or control. A museum, Federal agency, or DHHL must:

(1) Consult with lineal descendants, Indian Tribes, or Native Hawaiian organizations on the appropriate storage, treatment, or handling of human remains or cultural items;

(2) Make a reasonable and good-faith effort to incorporate and accommodate the Native American traditional knowledge of lineal descendants, Indian Tribes, or Native Hawaiian organizations in the storage, treatment, or handling of human remains or cultural items; and

(3) Obtain free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations prior to allowing any exhibition of, access to, or research on human remains or cultural items. Research includes, but is not limited to, any study, analysis, examination, or other means of acquiring or preserving information about human remains or cultural items. Research of any kind on human remains or cultural items is not required by the Act or these regulations.

(e) Delivery of written documents. These regulations require written documents to be sent, such as requests for repatriation, claims for disposition, invitations to consult, or notices for publication.

(1) Written documents must be sent by one of the following:

(i) Email, with proof of receipt,

(ii) Personal delivery with proof of delivery date,

(iii) Private delivery service with proof of date sent, or

(iv) Certified mail.

(2) Communication to the Manager, National NAGPRA Program, must be sent electronically to [email protected]. If electronic submission is not possible, physical delivery may be sent to 1849 C Street NW, Mail Stop 7360, Washington, DC 20240. If either of these addresses change, a notice with the new address must be published in the Federal Register no later than 7 days after the change.

(f) Deadlines. These regulations require certain actions be taken by a specific date. Unless stated otherwise in these regulations:

(1) Days mean calendar days. If a deadline falls on a Saturday, Sunday, or Federal holiday, the action is deemed timely if taken no later than the next calendar day that is not a Saturday, Sunday, or Federal holiday. For purposes of this part, Federal holidays include any days during which the Federal government is closed because of a Federal holiday, lapse in appropriations, or other reasons.

(2) Written documents are deemed timely based on the date sent, not the date received.

(3) Parties sending or receiving written documents under these regulations must document the date sent or date received, as appropriate, when these regulations require those parties to act based on the date sent or date received.

(g) Failure to make a claim or a request. Failure to make a claim for disposition or a request for repatriation before disposition, repatriation, transfer, or reinterment of human remains or cultural items under this part is deemed an irrevocable waiver of any right to make a claim or a request for the human remains or cultural items once disposition, repatriation, transfer, or reinterment of the human remains or cultural items has occurred.

(h) Judicial jurisdiction. The United States district courts have jurisdiction over any action by any person alleging a violation of the Act or this part.

(i) Final agency action. For purposes of the Administrative Procedure Act (5 U.S.C. 704), any of the following actions by a Federal agency constitutes a final agency action under this part:

(1) A final determination making the Act or this part inapplicable;

(2) A final denial of a claim for disposition or a request for repatriation; and

(3) A final disposition or repatriation determination.

(j) Information collection. The information collection requirements contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned control number 1024-0144. A Federal agency may not conduct or sponsor, and you are not required to respond to, the collection of information under this part unless the Federal agency provides a currently valid OMB control number.

(k) Severability. If a court holds any provisions of the regulations in this part or their applicability to any person or circumstances invalid, the remainder of the regulations and their applicability to other people or circumstances are intended to continue to operate to the fullest possible extent.

Act means the Native American Graves Protection and Repatriation Act.

Ahupua'a (singular and plural) means a traditional land division in Hawai'i usually extending from the uplands to the sea.

Appropriate official means any representative authorized by a delegation of authority within an Indian Tribe, Native Hawaiian organization, Federal agency, or Department of Hawaiian Home Lands (DHHL) that has responsibility for human remains or cultural items on Federal or Tribal lands.

ARPA means the Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 470aa-mm) and the relevant Federal agency regulations implementing that statute.

ARPA Indian lands means lands of Indian Tribes, or individual Indians, which are either held in trust by the United States Government or subject to a restriction against alienation imposed by the United States Government, except for any subsurface interests in lands not owned or controlled by an Indian Tribe or an individual Indian.

ARPA Public lands means lands owned and administered by the United States Government as part of:

(1) The national park system;

(2) The national wildlife refuge system;

(3) The national forest system; and

(4) All other lands the fee title to which is held by the United States Government, other than lands on the Outer Continental Shelf and lands which are under the jurisdiction of the Smithsonian Institution.

Assistant Secretary means the official of the Department of the Interior designated by the Secretary of the Interior as responsible for exercising the Secretary of the Interior's authority under the Act.

Consultation or consult means the exchange of information, open discussion, and joint deliberations made between all parties in good-faith and in order to:

(1) Seek, discuss, and consider the views of all parties;

(2) Strive for consensus, agreement, or mutually acceptable alternatives; and

(3) Enable meaningful consideration of the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations.

Cultural affiliation means there is a reasonable connection between human remains or cultural items and an Indian Tribe or Native Hawaiian organization based on a relationship of shared group identity. Cultural affiliation may be identified clearly by the information available or reasonably by the geographical location or acquisition history of the human remains or cultural items.

Cultural items means a funerary object, sacred object, or object of cultural patrimony according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization.

Custody means having an obligation to care for the object or item but not a sufficient interest in the object or item to constitute possession or control. In general, custody through a loan, lease, license, bailment, or other similar arrangement is not a sufficient interest to constitute possession or control, which resides with the loaning, leasing, licensing, bailing, or otherwise transferring museum or Federal agency.

Discovery means exposing, finding, or removing human remains or cultural items whether intentionally or inadvertently on Federal or Tribal lands without a written authorization for an excavation under § 10.6 of this part.

Disposition means an appropriate official recognizes a lineal descendant, Indian Tribe, or Native Hawaiian organization has ownership or control of human remains or cultural items removed from Federal or Tribal lands.

Excavation means intentionally exposing, finding, or removing human remains or cultural items on Federal or Tribal lands with a written authorization under § 10.6 of this part.

Federal agency means any department, agency, or instrumentality of the United States Government. This term does not include the Smithsonian Institution.

Federal lands means any lands other than Tribal lands that are controlled or owned by the United States Government. For purposes of this definition, control refers to lands not owned by the United States Government, but in which the United States Government has a sufficient legal interest to permit it to apply these regulations without abrogating a person's existing legal rights. Whether the United States Government has a sufficient legal interest to control lands it does not own is a legal determination that a Federal agency must make on a case-by-case basis. Federal lands include:

(1) Any lands selected by, but not yet conveyed to, an Alaska Native Corporation organized under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.);

(2) Any lands other than Tribal lands that are held by the United States Government in trust for an individual Indian or lands owned by an individual Indian and subject to a restriction on alienation by the United States Government; and

(3) Any lands subject to a statutory restriction, lease, easement, agreement, or similar arrangement containing terms that grant to the United States Government indicia of control over those lands.

Funerary object means any object reasonably believed to have been placed intentionally with or near human remains. A funerary object is any object connected, either at the time of death or later, to a death rite or ceremony of a Native American culture according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. This term does not include any object returned or distributed to living persons according to traditional custom after a death rite or ceremony. Funerary objects are either associated funerary objects or unassociated funerary objects.

(1) Associated funerary object means any funerary object related to human remains that were removed and the location of the human remains is known. Any object made exclusively for burial purposes or to contain human remains is always an associated funerary object regardless of the physical location or existence of any related human remains.

(2) Unassociated funerary object means any funerary object that is not an associated funerary object and is identified by a preponderance of the evidence as one or more of the following:

(i) Related to human remains but the human remains were not removed, or the location of the human remains is unknown,

(ii) Related to specific individuals or families,

(iii) Removed from a specific burial site of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization, or

(iv) Removed from a specific area where a burial site of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization is known to have existed, but the burial site is no longer extant.

Holding or collection means an accumulation of one or more objects, items, or human remains for any temporary or permanent purpose, including:

(1) Academic interest;

(2) Accession;

(3) Catalog;

(4) Comparison;

(5) Conservation;

(6) Education;

(7) Examination;

(8) Exhibition;

(9) Forensic purposes;

(10) Interpretation;

(11) Preservation;

(12) Public benefit;

(13) Research;

(14) Scientific interest; or

(15) Study.

Human remains means any physical part of the body of a Native American individual. This term does not include human remains to which a museum or Federal agency can prove it has a right of possession.

(1) Human remains reasonably believed to be comingled with other materials (such as soil or faunal remains) may be treated as human remains.

(2) Human remains incorporated into a funerary object, sacred object, or object of cultural patrimony are considered part of the cultural items rather than human remains.

(3) Human remains incorporated into an object or item that is not a funerary object, sacred object, or object of cultural patrimony are considered human remains.

Indian Tribe means any Tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)), recognized as eligible for the special programs and services provided by the United States Government to Indians because of their status as Indians by its inclusion on the list of recognized Indian Tribes published by the Secretary of the Interior under the Act of November 2, 1994 (25 U.S.C. 5131).

Inventory means a simple itemized list of any human remains and associated funerary objects in a holding or collection that incorporates the results of consultation and makes determinations about cultural affiliation.

Lineal descendant means:

(1) A living person tracing ancestry, either by means of traditional Native American kinship systems, or by the common-law system of descent, to a known individual whose human remains, funerary objects, or sacred objects are subject to this part; or

(2) A living person tracing ancestry, either by means of traditional Native American kinship systems, or by the common-law system of descent, to all the known individuals represented by comingled human remains (example: the human remains of two individuals have been comingled, and a living person can trace ancestry directly to both of the deceased individuals).

Manager, National NAGPRA Program, means the official of the Department of the Interior designated by the Secretary of the Interior as responsible for administration of the Act and this part.

Museum means any institution or State or local government agency (including any institution of higher learning) that has possession or control of human remains or cultural items and receives Federal funds. The term does not include the Smithsonian Institution.

Native American means of, or relating to, a Tribe, people, or culture that is indigenous to the United States. To be considered Native American under this part, human remains or cultural items must bear some relationship to a Tribe, people, or culture indigenous to the United States.

(1) A Tribe is an Indian Tribe.

(2) A people comprise the entire body of persons who constitute a community, Tribe, nation, or other group by virtue of a common culture, history, religion, language, race, ethnicity, or similar feature. The Native Hawaiian Community is a “people.”

(3) A culture comprises the characteristic features of everyday existence shared by people in a place or time.

Native American traditional knowledge means knowledge, philosophies, beliefs, traditions, skills, and practices that are developed, embedded, and often safeguarded by or confidential to individual Native Americans, Indian Tribes, or the Native Hawaiian Community. Native American traditional knowledge contextualizes relationships between and among people, the places they inhabit, and the broader world around them, covering a wide variety of information, including, but not limited to, cultural, ecological, linguistic, religious, scientific, societal, spiritual, and technical knowledge. Native American traditional knowledge may be, but is not required to be, developed, sustained, and passed through time, often forming part of a cultural or spiritual identity. Native American traditional knowledge is expert opinion.

Native Hawaiian organization means any organization that:

(1) Serves and represents the interests of Native Hawaiians, who are descendants of the indigenous people who, before 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawai`i;

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

(3) Has expertise in Native Hawaiian affairs, and includes but is not limited to:

(i) The Office of Hawaiian Affairs established by the constitution of the State of Hawai`I;

(ii) Native Hawaiian organizations (including `ohana) who are registered with the Secretary of the Interior's Office of Native Hawaiian Relations; and

(iii) Hawaiian Homes Commission Act (HHCA) Beneficiary Associations and Homestead Associations as defined under 43 CFR 47.10.

Object of cultural patrimony means an object that has ongoing historical, traditional, or cultural importance central to a Native American group, including any constituent sub-group (such as a band, clan, lineage, ceremonial society, or other subdivision), according to the Native American traditional knowledge of an Indian Tribe or Native Hawaiian organization. An object of cultural patrimony may have been entrusted to a caretaker, along with the authority to confer that responsibility to another caretaker. The object must be reasonably identified as being of such importance central to the group that it:

(1) Cannot or could not be alienated, appropriated, or conveyed by any person, including its caretaker, regardless of whether the person is a member of the group, and

(2) Must have been considered inalienable by the group at the time the object was separated from the group.

'Ohana (singular and plural) means a group of people who are not asserting that they are lineal descendants but comprise a Native Hawaiian organization whose members have a familial or kinship relationship with each other.

Person means:

(1) An individual, partnership, corporation, trust, institution, association, or any other private entity; or

(2) Any representative, official, employee, agent, department, or instrumentality of the United States Government or of any Indian Tribe or Native Hawaiian organization, or of any State or subdivision of a State.

Possession or control means having a sufficient interest in an object or item to independently direct, manage, oversee, or restrict the use of the object or item. A museum or Federal agency may have possession or control regardless of the physical location of the object or item. In general, custody through a loan, lease, license, bailment, or other similar arrangement is not a sufficient interest to constitute possession or control, which resides with the loaning, leasing, licensing, bailing, or otherwise transferring museum or Federal agency.

Receives Federal funds means an institution or State or local government agency (including an institution of higher learning) directly or indirectly receives Federal financial assistance after November 16, 1990, including any grant; cooperative agreement; loan; contract; use of Federal facilities, property, or services; or other arrangement involving the transfer of anything of value for a public purpose authorized by a law of the United States Government. This term includes Federal financial assistance provided for any purpose that is received by a larger entity of which the institution or agency is a part. For example, if an institution or agency is a part of a State or local government or a private university, and the State or local government or private university receives Federal financial assistance for any purpose, then the institution or agency receives Federal funds for the purpose of these regulations. This term does not include procurement of property or services by and for the direct benefit or use of the United States Government or Federal payments that are compensatory.

Repatriation means a museum or Federal agency relinquishes possession or control of human remains or cultural items in a holding or collection to a lineal descendant, Indian Tribe, or Native Hawaiian organization.

Review Committee means the advisory committee established under the Act.

Right of possession means possession or control obtained with the voluntary consent of a person or group that had authority of alienation. Right of possession is given through the original acquisition of:

(1) An unassociated funerary object, a sacred object, or an object of cultural patrimony from an Indian Tribe or Native Hawaiian organization with the voluntary consent of a person or group with authority to alienate the object; or

(2) Human remains or associated funerary objects which were exhumed, removed, or otherwise obtained with full knowledge and consent of the next of kin or, when no next of kin is ascertainable, the official governing body of the appropriate Indian Tribe or Native Hawaiian organization.

Sacred object means a specific ceremonial object needed by a traditional religious leader for present-day adherents to practice traditional Native American religion, according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. While many items might be imbued with sacredness in a culture, this term is specifically limited to an object needed for the observance or renewal of a Native American religious ceremony.

Summary means a written description of a holding or collection that may contain an unassociated funerary object, sacred object, or object of cultural patrimony.

Traditional religious leader means a person needed to practice traditional Native American religion, according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization.

Tribal lands means:

(1) All lands that are within the exterior boundaries of any Indian reservation;

(2) All lands that are dependent Indian communities; and

(3) All lands administered by the Department of Hawaiian Home Lands (DHHL) under the Hawaiian Homes Commission Act of 1920 (HHCA, 42 Stat. 108) and Section 4 of the Act to Provide for the Admission of the State of Hawai'i into the Union (73 Stat. 4), including “available lands” and “Hawaiian home lands.”

Tribal lands of an NHO means Tribal lands in Hawai'i that are under the stewardship of a Native Hawaiian organization through a lease or license issued under HHCA section 204(a)(2), second paragraph, second proviso, or section 207(c)(1)(B).

Unclaimed human remains or cultural items means human remains or cultural items removed from Federal or Tribal lands whose disposition has not occurred under this part.

United States means the 50 States and the District of Columbia.

Throughout this part, cultural affiliation ensures that disposition or repatriation of human remains or cultural items is based on a reasonable connection with an Indian Tribe or Native Hawaiian organization. Cultural affiliation must be determined by the information available, including information provided by an Indian Tribe or Native Hawaiian organization. Cultural affiliation does not require exhaustive studies, additional research, or continuity through time. Cultural affiliation is not precluded solely because of reasonable gaps in the information available.

(a) Step 1: Collect information available. A museum, Federal agency, or DHHL must collect information it holds about human remains or cultural items, including, but not limited to, records, catalogues, relevant studies, and other pertinent data. Additional information may be provided by an Indian Tribe or Native Hawaiian organization.

(1) One or more of the following equally relevant types of information about human remains or cultural items may be available:

(i) Anthropological;

(ii) Archaeological;

(iii) Biological;

(iv) Folkloric;

(v) Geographical;

(vi) Historical;

(vii) Kinship;

(viii) Linguistic;

(ix) Oral Traditional; or

(x) Other relevant information or expert opinion, including Native American traditional knowledge.

(2) A lack of any type of information does not preclude a determination of cultural affiliation. One type of information may be used to determine cultural affiliation when no other relevant information is available.

(b) Step 2: Identify the required criteria. Using the information available, including information provided by an Indian Tribe or Native Hawaiian organization, a museum, Federal agency, or DHHL must identify the three criteria for cultural affiliation.

(1) Each of the following criteria must be identified in the information available:

(i) One or more earlier groups connected to the human remains or cultural items;

(ii) One or more Indian Tribes or Native Hawaiian organizations; and

(iii) A relationship of shared group identity between the earlier group and the Indian Tribe or Native Hawaiian organization that can be reasonably traced through time.

(2) One type of information may be sufficient to reasonably identify the required criteria when no other relevant information is available. For example, geographical information about human remains or cultural items may identify:

(i) The earlier groups of people connected to a geographical location;

(ii) The Indian Tribe or Native Hawaiian organization connected to a geographical location; and

(iii) A relationship of shared group identity between the two traced through time.

(c) Step 3: Make a determination of cultural affiliation. A museum, Federal agency, or DHHL must make a written record of its determination of cultural affiliation that briefly describes the information available under paragraph (a) of this section and the criteria identified under paragraph (b) of this section.

(1) The determination must be one of the following:

(i) Cultural affiliation is identified clearly by the information available,

(ii) Cultural affiliation is identified reasonably by the geographical location or acquisition history, or

(iii) Cultural affiliation cannot be clearly or reasonably identified.

(2) Cultural affiliation of human remains or cultural items may be with more than one Indian Tribe or Native Hawaiian organization. For example, an identifiable earlier group may have a relationship to more than one Indian Tribe or Native Hawaiian organization, or two or more earlier groups may be connected to human remains or cultural items and a relationship may be reasonably traced to two or more Indian Tribes or Native Hawaiian organizations that do not themselves have a shared group identity. In Hawai`i, two or more Native Hawaiian organizations may be part of the same Native Hawaiian Community, but may have distinct beliefs, protocols, and other cultural practices passed down through different familial, cultural, and geographical lineages.

(d) Joint disposition or repatriation. When a museum, Federal agency, or DHHL determines cultural affiliation of human remains or cultural items with two or more Indian Tribes or Native Hawaiian organizations, any Indian Tribe or Native Hawaiian organization with cultural affiliation may submit a claim for disposition or a request for repatriation. Any Indian Tribe or Native Hawaiian organization with cultural affiliation may agree to joint disposition or joint repatriation of the human remains or cultural items. Claims or requests for joint disposition or joint repatriation of human remains or cultural items are considered a single claim or request and not competing claims or requests. A single claim or request may be on behalf of multiple Indian Tribes or Native Hawaiian organizations. Disposition or repatriation statements required under this part must identify all joint claimants or requestors.

(e) Competing claims or requests. When there are competing claims for disposition or competing requests for repatriation of human remains or cultural items, a museum, Federal agency, or DHHL must determine the Indian Tribe or Native Hawaiian organization with the closest cultural affiliation. In support of a competing claim or request, each claimant or requestor may provide information to show by a preponderance of the evidence that it has a stronger relationship of shared group identity to the human remains or cultural items.

(1) The Indian Tribe with the closest cultural affiliation, in the following order, is:

(i) The Indian Tribe whose cultural affiliation is clearly identified by the information available.

(ii) The Indian Tribe whose cultural affiliation is reasonably identified by the geographical location and acquisition history of the human remains or cultural items.

(iii) The Indian Tribe whose cultural affiliation is reasonably identified by only the geographical location of the human remains or cultural items.

(iv) The Indian Tribe whose cultural affiliation is reasonably identified by only the acquisition history of the human remains or cultural items.

(2) The Native Hawaiian organization with the closest cultural affiliation, in the following order, is:

(i) The 'ohana that can trace an unbroken connection of named individuals to one or more of the human remains or cultural items, but not necessarily to all the human remains or cultural items from a specific site.

(ii) The 'ohana that can trace a relationship to the ahupua`a where the human remains or cultural items were removed and a direct kinship to one or more of the human remains or cultural items, but not necessarily an unbroken connection of named individuals.

(iii) The Native Hawaiian organization with cultural affiliation only to the earlier occupants of the ahupua`a where the human remains or cultural items were removed, and not to the earlier occupants of any other ahupua`a.

(iv) The Native Hawaiian organization with cultural affiliation to either:

(A) The earlier occupants of the ahupua`a where the human remains or cultural items were removed, as well as to the earlier occupants of other ahupua`a on the same island, but not to the earlier occupants of all ahupua`a on that island, or to the earlier occupants of any other island of the Hawaiian archipelago; or

(B) The earlier occupants of another island who accessed the ahupua`a where the human remains or cultural items were removed for traditional or customary practices and were buried there.

(v) The Native Hawaiian organization with cultural affiliation to the earlier occupants of all ahupua`a on the island where the human remains or cultural items were removed, but not to the earlier occupants of any other island of the Hawaiian archipelago.

(vi) The Native Hawaiian organization with cultural affiliation to the earlier occupants of more than one island in the Hawaiian archipelago that has been in continuous existence from a date prior to 1893.

(vii) Any other Native Hawaiian organization with cultural affiliation.