Disposition of Human Remains or Cultural Items

When human remains or cultural items are removed from Federal or Tribal lands, as soon as possible (but no later than one year) after the discovery or excavation of the human remains or cultural items, the appropriate official must identify the lineal descendant, Indian Tribe, or Native Hawaiian organization that has priority for disposition of human remains or cultural items.

What is the priority order for disposition?

The disposition of human remains or cultural items removed from Federal or Tribal lands must be in the following priority order:

1. The known lineal descendant, if any, for human remains or associated funerary objects;
2. The Indian Tribe or Native Hawaiian organization from whose Tribal lands the human remains or cultural items were removed;
3. The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part;
4. On Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian Tribe, the Indian Tribe with the strongest relationship to the human remains or cultural items, which is:
   i. The Indian Tribe recognized as aboriginally occupying the geographical location where the human remains or cultural items were removed; or
   ii. A different Indian Tribe who shows by a preponderance of the evidence a stronger relationship to the human remains or cultural items; or
5. Any Indian Tribe or Native Hawaiian organization that requests transfer of the human remains or cultural items as unclaimed.

What must be done?

On Tribal lands, the Indian Tribe or Native Hawaiian organization from whose Tribal lands the human remains or cultural items were removed must identify the lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition and must complete and retain a written disposition statement.

On Federal or Tribal lands, when a Federal agency or DHHL has responsibility for disposition of human remains or cultural items from Federal or Tribal lands, the Federal agency or DHHL must complete the following five steps:

Step 1 - Inform consulting parties. No later than six months after removal of human remains or cultural items, send a written document to consulting parties.

Step 2 - Submit a notice of intended disposition. No later than six months after step 1, submit a notice to consulting parties and to [e-mail] for publication in the Federal Register.

Step 3 - Receive and consider a claim for disposition. Within one year of notice publication, any lineal descendant, Indian Tribe, or Native Hawaiian organization may submit a claim for disposition.

Step 4 - Respond to a claim for disposition. No later than 90 days after step 3, send a written response to claimant and any other party identified in the notice.

Step 5- Disposition of the human remains or cultural items. No later than 90 days after step 4, send a written disposition statement to the claimant and a copy to [e-mail].

What happens if no party can be identified or no claim is received?

Human remains or cultural items removed from Federal lands must be reported as unclaimed when:

1. One year after discovery or excavation, the Federal agency or DHHL cannot identify any lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition, or
2. One year after publishing a notice of intended disposition, no lineal descendant, Indian Tribe, or Native Hawaiian organization has submitted a claim for disposition.

25 U.S.C. 3002 - Ownership

(a) Native American human remains and objects

The ownership or control of Native American cultural items which are excavated or discovered on Federal or tribal lands after November 16, 1990, shall be (with priority given in the order listed)—

(1) in the case of Native American human remains and associated funerary objects, in the lineal descendants of the Native American; or

(2) in any case in which such lineal descendants cannot be ascertained, and in the case of unassociated funerary objects, sacred objects, and objects of cultural patrimony—

(A) in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were discovered;

(B) in the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such remains or objects and which, upon notice, states a claim for such remains or objects; or

(C) if the cultural affiliation of the objects cannot be reasonably ascertained and if the objects were discovered on Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian tribe—

(1) in the Indian tribe that is recognized as aboriginally occupying the area in which the objects were discovered, if upon notice, such tribe states a claim for such remains or objects, or

(2) if it can be shown by a preponderance of the evidence that a different tribe has a stronger cultural relationship with the remains or objects than the tribe or organization specified in paragraph (1), in the Indian tribe that has the strongest demonstrated relationship, if upon notice, such tribe states a claim for such remains or objects.

(b) Unclaimed Native American human remains and objects

Native American cultural items not claimed under subsection (a) shall be disposed of in accordance with regulations promulgated by the Secretary in consultation with the review committee established under section 3006 of this title, Native American groups, representatives of museums and the scientific community.