On October 29, 2013, the National Park Service published proposed rules on the disposition of unclaimed Native American human remains and other cultural items excavated or removed from federal lands after the date of enactment of the Native American Graves Protection and Repatriation Act (NAGPRA). 78 Fed. Reg. 64436 (copy attached). The proposed rules will implement section 3(b) of NAGPRA, 25 U.S.C. § 3002(b), which directs the Secretary of the Interior to promulgate regulations, in consultation with the NAGPRA review committee and with “Native American groups, representatives of museums and the scientific community.” The FEDERAL REGISTER notice describes the steps that NPS has taken to carry out the required consultation. The deadline for submitting comments on the proposed rules is December 30, 2013.
The proposed rules define the term “unclaimed cultural items” as “Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony excavated or removed from federal lands after November 16, 1990,” which have not been repatriated pursuant to NAGPRA because either “(i) No identified potential claimant … has exercised its rights to claim ownership or control … or (ii) No potential claimant can reasonably be identified.” The proposed rules apply only to federal lands because, under NAGPRA, new discoveries on tribal lands are subject to the control of the relevant tribe, except when there are known lineal descendants.
The proposed rules also add a new section 10.7 to the regulations implementing NAGPRA. 43 C.F.R. Part 10. Agencies that have unclaimed cultural items must compile a list of such items and submit the list to the National NAGPRA Program; they must care for the items in a manner consistent with the federal regulations governing “Curation of Federally-owned and Administered Archaeological Collections” (36 C.F.R. Part 79); and they must consider and respect the traditions of potential claimants regarding treatment of the items. Agencies would have discretion, after providing notice, to transfer items to an Indian tribe or Native Hawaiian organization, to reinter the items, or to offer the items for disposition in accordance with state or other law.
If we may be of further assistance regarding the proposed rules, please contact us.