NPS National NAGPRA Program'sOpen Comment Period for 10.11 NAGPRA Regulations

This is NATHPO's initial review of the publication of the 43 CFR Part 10 (specifically 10.11), "NAGPRA Regulations-Disposition of Culturally Unidentifiable Human Remains; Final Rule with request for comments, Monday, March 15, 2010, 75 FR 12378."  This rule is proposed to become effective May 14, 2010.  Public comments must be received by May 14, 2010.  (See Federal Register notice for information on how to file comments.)

The document is 28 pages, the last 4 pages of which are the actual regulatory changes and the rest is preamble.  Click here to go directly to the rule.

This link allows you to read the proposed Final rule, submit comments, and read other posted comments.

Several key provisions remain intact from the proposed rule that was published on October 16, 2007:

  • A museum or Federal agency  that is unable to prove that it has right of possession to culturally  unidentifiable human remains must offer to transfer control of the human  remains to Indian tribes and Native Hawaiian organizations.
  • Disposition can be based  strictly on geographic affiliation, including tribal land and aboriginal  occupation.  
  • Evidence of aboriginal  occupation is clarified to include a final judgment of the Indian Claims  Commission or the United States Court of Claims, as well as a treaty, Act  of Congress, or Executive Order. Further, the regulations make it clear  that Indian Claims Commission cases that were resolved by means of a  settlement are evidence of aboriginal occupation.
There were two primary changes from the proposed rule:
  1. The concept of "cultural  relationship" was dropped as a basis for determining the disposition of  culturally unidentifiable human remains. The comments showed considerable  variation in how the concept was interpreted and no one offered a workable  definition.  
  2. The civil penalty section  (10.12) was amended to specifically apply to situations in which, following  receipt of a valid claim, a museum that refuses to offer to transfer control  of culturally unidentifiable human remains for which it cannot prove right of  possession may be assessed a civil penalty.
The net effect of this rule will be that requests for disposition of culturally unidentifiable human remains from Federally recognized Indian tribes and Native Hawaiian organizations will now be handled between the two parties, without having to go to the review committee.  Dispositions to non-federally recognized Indian groups or those based on other provisions such as State law will still need to go to the review committee.  Requesting Indian tribes and Native Hawaiian organizations will need to prepare a valid claim, but will not need to "negotiate" the disposition as they are currently required.

Other issues of note:
  • The addition of a request for  comment in the Final rule is somewhat unusual.
  • The section allowing -- but  not requiring -- museums and Federal agencies to offer to transfer  control of associated funerary objects was a policy decision made by the  Interior Department.  It is inconsistent with United States common law to  allow museums and Federal agencies to keep the associated funerary objects  while requiring them to transfer control of the human remains.  

Links of Interest:

National NAGPRA Online Databases, including the Culturally Unidentifiable Native American Inventories Database

NATHPO Special Project: State Repatriation, Reburial & Grave Protection Laws

NATHPO Draft Template: "Request for Documentation" Adobe Reader Required

Indian Claims Commission:

  1. Native American Consultation Database:  This online searchable database includes the results of Indian Claims Commission determinations of aboriginal land.
  2. Indian Land Areas Judicially Established:  This map, prepared by the Indian Claims Commission, shows the approximate areas covered by ICC determinations.
  3. Indian Claims Commission Decisions:  Searchable compilation of all decisions and files before the Indian Claims Commission.

U.S. Treaties:
  1. Indian Land Cessions in the United States, 1784-1894. These maps document the areas covered by each of the treaties between the United States and Indian tribes. 
  2. Indian Affairs: Laws and Treaties. This searchable compilation includes the text of all treaties between the United States and Indian tribes.

NPS National NAGPRA Program