43 C.F.R. § 10.4

General

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Each Indian Tribe, Native Hawaiian organization, Federal agency, and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) that has responsibility for Federal or Tribal lands must comply with the requirements of this subpart. Any permit, license, lease, right-of-way, or other authorization issued for an activity on Federal or Tribal lands must include a requirement to report any discovery of human remains or cultural items under § 10.5 of this part. Prior to any excavation of human remains or cultural items on Federal or Tribal lands, a written authorization is required under § 10.6 of this part. When human remains or cultural items are removed from Federal or Tribal lands, a disposition statement is required under § 10.7 of this part.

(a) Appropriate official. To ensure compliance with the Act, the Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL that has responsibility for Federal or Tribal lands must designate one or more appropriate officials to carry out the requirements of this subpart, as shown in table 1 of this paragraph (a).

Table 1 to § 10.4(a)—Appropriate Official
For human remains or cultural items on . . .	the appropriate official is a representative for the . . .
Federal lands in the United States	Federal agency with primary management authority.
Tribal lands in Alaska and the continental United States	Indian Tribe.
Tribal lands in Hawai'i	DHHL.
Tribal lands of an NHO	DHHL or a Native Hawaiian organization that has agreed in writing to be responsible for its Tribal lands.

(b) Plan of action. When a Federal agency or DHHL has responsibility for a discovery or excavation on Federal or Tribal lands, a plan of action is required. A plan of action is not required when an Indian Tribe or Native Hawaiian organization has responsibility for a discovery or excavation on Tribal lands. The Federal agency or DHHL must prepare a plan of action before any planned activity that is likely to result in a discovery or excavation of human remains or cultural items. The likelihood of a discovery or excavation must be based on previous studies, discoveries, or excavations in the general proximity of the planned activity and in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization. If not part of a planned activity, a plan of action is required after a discovery of human remains or cultural items. After consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization, the Federal agency or DHHL must approve and sign a plan of action.

(1) Step 1—Initiate consultation. Before a planned activity or after a discovery, the Federal agency or DHHL must identify consulting parties and invite the parties to consult.

(i) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential cultural affiliation.

(ii) An invitation to consult must be in writing and must include:

(A) A description of the planned activity or discovery and its geographical location by county and State;

(B) The names of all consulting parties; and

(2) Step 2—Consult on the plan of action. The Federal agency or DHHL must respond to any consulting party, regardless of whether the party has received an invitation to consult. Consultation on the plan of action may continue until the Federal agency or DHHL sends a disposition statement to a claimant under § 10.7(c)(5) of this subpart.

(i) In response to a consulting party, the Federal agency or DHHL must ask for the following information, if not already provided:

(A) Preferences on the proposed timeline and method for consultation; and

(B) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leader, and known lineal descendant who may participate in consultation.

(ii) Consultation must address the content of the plan of action under paragraph (b)(3) of this section.

(iii) The Federal agency or DHHL must prepare a record of consultation that describes the concurrence, disagreement, or nonresponse of the consulting parties to the content of the plan of action.

(3) Step 3—Approve and sign the plan of action. Before a planned activity or after a discovery, the Federal agency or DHHL must approve and sign a plan of action and must provide a copy to all consulting parties. At a minimum, the written plan of action must include:

(i) A description of the planned activity or discovery and its geographical location by county and State;

(ii) A list of all consulting parties under paragraph (b)(1) of this section;

(iii) A record of consultation under paragraph (b)(2) of this section;

(iv) The preference of consulting parties for:

(A) Stabilizing, securing, and covering human remains or cultural items in situ, or

(B) Protecting, securing, and relocating human remains or cultural items, if removed;

(v) The duty of care under § 10.1(d) for any human remains or cultural items; and

(vi) The timeline and method for:

(A) Informing all consulting parties of a discovery;

(B) Evaluating the potential need for an excavation; and

(c) Comprehensive agreement. A Federal agency or DHHL may develop a written comprehensive agreement for all land managing activities on Federal or Tribal lands, or portions thereof, under its responsibility. The written comprehensive agreement must:

(1) Be developed in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization identified under paragraph (b)(1) of this section;

(2) Include, at minimum, a plan of action under paragraph (b)(3) of this section;

(3) Be consented to by a majority of consulting parties under paragraph (b)(2) of this section. Evidence of consent means the authorized representative's signature on the agreement or by official correspondence to the Federal agency or DHHL; and

(4) Be signed by the Federal agency or DHHL.

(d) Federal agency coordination with other laws. To manage compliance with the Act, a Federal agency may coordinate its responsibility under this subpart with its responsibilities under other relevant Federal laws. Compliance with this subpart does not relieve a Federal agency of the responsibility for compliance with the National Historic Preservation Act (54 U.S.C. 306108, commonly known as Section 106) or the Archeological and Historic Preservation Act (54 U.S.C. 312501-312508).

Notes of Decisions

Cited in 7 cases, 1997–2003 · leading case: Yankton Sioux Tribe v. United States Army Corps of Engineers

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Yankton Sioux Tribe v. United States Army Corps of Engineers (2002) sdd · cites it 16× “§ 3002 (d) and 43 C.F.R. §§ 10.4 (d)(1), 10.3(b), 10.5 and 10.”

Yankton Sioux Tribe v. United States Army Corps of Engineers (2002) sdd · cites it 7× “See 43 C.F.R. § 10.4 (d)(1). In this case, the Corps is the federal agency with primary management authority over the land on which the human remains were discovered.”

Yankton Sioux Tribe v. United States Army Corps of Engineers (2000) sdd · cites it 8× “43 C.F.R. § 10.4 (d)(1). Assuming that the exposed bones at St.”

San Carlos Apache Tribe v. United States (2003) azd “43 C.F.R. § 10.4 (d)(1). Plaintiffs’ claim that the draw-down of the Lake is an intentional excavation or removal of archaeological resources requiring an ARPA permit lacks merit.”

Bonnichsen v. United States (2002) ord “See, 43 CFR §§ 10.4 , 10.5 (federal agency to notify tribal organizations likely to be culturally affiliated with human remains; agency must share variety of information pertaining to resolution of cultural affiliation determination).”

Bonnichsen v. United States, Department of the Army (1997) ord “Defendants also asserted during oral argument that "there is a responsibility under NAGPRA 43 C.F.R. 10.4 that requires anybody that has knowledge of an inadvertent discovery on federal lands to notify the agency.”

Yankton Sioux Tribe v. United States Army Corps of Engineers (2003) sdd “§ 3003 (d)(1), 43 C.F.R. § 10.4 (c), (d)(1). Area B, however, has been examined by the State’s Archeologist, James Donohue, and he has opined that there are no human remains, funerary objects, sacred objects *1033 or objects of cultural patrimony in Area B.”

— 43 C.F.R. § 10.4(d)(1) — 1 case

Yankton Sioux Tribe v. United States Army Corps of Engineers (2002) sdd “§ 3002 (d) and 43 C.F.R. §§ 10.4 (d)(1), 10.3(b), 10.5 and 10.”

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