On November 5, 2015, the Department of the Interior published a final rule on the disposition of unclaimed Native American human remains and other cultural items excavated or removed from federal lands after November 16, 1990, the date of enactment of the Native American Graves Protection and Repatriation Act (NAGPRA). 80 Fed. Reg. 68465 (copy attached). The final rule implements section 3(b) of NAGPRA, 25 U.S.C. § 3002(b), which directs the Secretary of Interior to promulgate regulations for the disposition of unclaimed cultural items, a term that, in addition to Native American human remains, also includes funerary objects, sacred objects, and objects of cultural patrimony.
Applicability. The rule applies to items removed from federal lands and not to items removed from tribal lands because, under NAGPRA, cultural items found on tribal lands are subject to the control of the relevant tribe (except that, for human remains and funerary objects, lineal descendants, if there are any, have a higher priority in stating a claim).
Summary. The final rule gives federal agencies that have such unclaimed cultural items discretion to transfer the items to an Indian tribe or Native Hawaiian organization (NHO) that is not a potential claimant, i.e., a tribe or NHO that cannot make a claim based on the priorities listed in section 3 of NAGPRA. 25 U.S.C. § 3002. If the tribe or NHO agrees to accept the transfer, then they must treat the items in accordance with their laws and customs, i.e., those of the receiving tribe or NHO. The final rule also gives federal agencies that have unclaimed Native American human remains or funerary objects discretion to reinter such items. For the most part, the new regulatory text will be codified in a new section 10.7 of the NAGPRA regulations. 43 C.F.R. part 10. In addition, in section 10.2 there is a new definition of the term “Unclaimed cultural items” and a new clause in the definition of “Disposition.”
Prior to making a transfer or reinterment, the federal agency is required to submit a list of the items to the Manager of the National NAGPRA Program, a list that describes the general place of discovery or excavation and removal, the nature of the cultural items, and a summary of consultation efforts under the NAGPRA regulations (43 C.F.R. § 10.5). The federal agency is also required to publish notice of the proposed transfer or reinterment in a newspaper of general circulation in the area from which the items were removed and, if the agency has identified any potential claimant that no longer resides in the area where the items were removed, in a newspaper of general circulation in the area where any such potential claimant now resides.
If, in response to the notice, a tribe or NHO makes a valid claim for the cultural items, they would no longer be treated as unclaimed, and disposition would proceed under other provisions of the NAGPRA regulations.
Key Differences Between the Proposed Rule and the Final Rule. The proposed rule was published on October 29, 2013. (See our General Memorandum 13-097 of November 1, 2013.) The FEDERAL REGISTER notice includes a discussion of the changes that have been made in response to comments on the proposed rule. One such change is in the definition of the term “unclaimed cultural items” (to be codified at 43 C.F.R. § 10.2(h)). The definition still begins with “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, and sets out two circumstances which can render such items “unclaimed,” either: (i) no potential claimant (tribe, NHO, or lineal descendant) has filed a written claim; or (ii) the federal agency could not reasonably identify a potential claimant. In the final rule, the wording of each of these circumstances has been expanded by adding deadlines.
For the first circumstance, the term “unclaimed” becomes applicable one year after publication of the notice required by section 10.6(c) of the regulations, i.e., the notice that a federal agency is required to publish after it has engaged in efforts to determine which tribe, NHO, or lineal descendant has the right to take custody of the cultural items. This one-year deadline applies to cultural items that already meet the definition of “unclaimed cultural items” as of the effective date of the final rule.
For the second circumstance, the definition of “unclaimed cultural items” becomes applicable two years after the federal agency knows or has reason to know that it could not reasonably identify a potential claimant. This deadline generally applies to items that do not meet the definition of “unclaimed cultural items” as of the effective date of the final rule, including items that are discovered and removed after that date. This deadline gives the federal agency time to engage in efforts to determine whether there is a tribe, NHO, or lineal descendant with the right to take custody of the cultural items as required by section 10.6 of the regulations.
These deadlines are also incorporated into section 10.7(b) of the final rule, the section that requires each federal agency that has unclaimed cultural items to provide a list to the National NAGPRA Program. In the proposed rule, agencies would have had two years to provide their lists. The final rule shortens this to one year. The National NAGPRA Program will post the information on its web site.
If we may be of assistance regarding the final rule for disposition of unclaimed Native American human remains and other cultural items, please let us know.