C.F.R. » Title 43 » PART 10—NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS › Subpart B—Protection of Human Remains or Cultural Items on Federal or Tribal Lands

43 C.F.R. § 10.6

Excavation

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When an excavation of human remains or cultural items on Federal or Tribal lands is needed, the appropriate official must comply with this section when authorizing the excavation. A permit under Section 4 of ARPA (16 U.S.C. 470cc) is required when the excavation is on Federal or Tribal lands that are also ARPA Indian lands or ARPA Public lands, and there is no applicable permit exception or exemption under the ARPA uniform regulations at 18 CFR part 1312, 32 CFR part 229, 36 CFR part 296, or 43 CFR part 7. When the excavation is on Federal or Tribal lands that are not ARPA Indian lands or ARPA Public lands, an equivalent permit from the relevant jurisdiction is required, if applicable.

(a) On Tribal lands. Before an excavation of human remains or cultural items may occur, the Indian Tribe or Native Hawaiian organization must consent in writing by providing a written authorization for the excavation.

(1) At minimum, the written authorization must document:

(i) The reasonable steps taken to evaluate the potential need for an excavation of human remains or cultural items; and

(ii) Any permit that the Indian Tribe or Native Hawaiian organization legally requires.

(2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for authorizing the excavation to the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraph (b) of this section.

(3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for excavations on its Tribal lands and then must provide written authorizations under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for excavations, DHHL is responsible for completing the requirements in paragraph (b) of this section for any excavations on those Tribal lands of an NHO.

(b) On Federal or Tribal lands. When a Federal agency or DHHL has responsibility for an excavation on Federal or Tribal lands, a plan of action and a written authorization are required. When an Indian Tribe or Native Hawaiian organization has responsibility for an excavation on Tribal lands, no plan of action is required and the Indian Tribe or Native Hawaiian organization must comply with paragraph (a) of this section.

(1) Approve and sign a plan of action. Prior to authorizing an excavation, the Federal agency or DHHL, in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization, must approve and sign a plan of action under § 10.4(b). The Federal agency or DHHL must carry out the plan of action for any human remains or cultural items that are excavated and removed.

(i) This requirement does not apply if, prior to authorizing the excavation, the Federal agency or DHHL signed:

(A) A plan of action under § 10.4(b); or

(B) A comprehensive agreement under § 10.4(c).

(ii) For an excavation on Tribal lands, the plan of action must include written consent to the excavation by the appropriate Indian Tribe or Native Hawaiian organization.

(2) Authorize an excavation. At minimum, the written authorization must include:

(i) A copy of the signed plan of action or comprehensive agreement with redaction of any confidential or sensitive information,

(ii) The reasonable steps taken to evaluate the potential need for an excavation of human remains or cultural items, and

(iii) Any permit that the Federal agency or DHHL legally requires.

Notes of Decisions
Cited in 6 cases (1 in the last 5 years), 1997–2022 · leading case: San Carlos Apache Tribe v. United States
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San Carlos Apache Tribe v. United States (2003) azd · cites it 2× “3 (b) (governing intentional excavation or removal) if the cultural items must be excavated or removed, and (6) ensure that the disposition of the cultural items is carried out following 43 C.F.R. § 10.6 (governing custody of Native American cultural items).”
Yankton Sioux Tribe v. United States Army Corps of Engineers (2002) sdd · cites it 5× “See 43 C.F.R. § 10.6 . The intentional excavation or removal of Native American human remains and objects from federal or tribal lands is governed by NAGPRA.”
Bonnichsen v. United States, Department of the Army (1997) ord · cites it 3× “2 (b) (“Who has standing to make a claim under these regulations?”); 43 C.F.R. § 10.6 (a). None of the plaintiffs are an Indian tribe or Native American, nor do any of them claim to be a direct lineal descendant of the man.”
Yankton Sioux Tribe v. United States Army Corps of Engineers (2000) sdd · cites it 3× “43 C.F.R. § 10.6 . The Act also governs the intentional excavation or removal of Native American human remains and objects from federal or tribal lands.”
Yankton Sioux Tribe v. United States Army Corps of Engineers (2002) sdd “3 (b) (governing intentional excavation or removal) if the cultural items must be excavated or removed; and (6) ensure that the disposition of the cultural items is carried out following 43 C.F.R. § 10.6 (governing custody of Native American cultural items).”
Rosales v. United States Department of Interior (2022) caed “…(alleging plaintiffs enjoyed protections of 25 U.S.C. § 3001 (13), 25 U.S.C. § 3002 , 43 C.F.R. 2 § 10.2(d)(1) & (2), 43 C.F.R. §10.6 (a)(1), 43 C.F.R. § 10.15 (a)(1), California Health & Safety 3 Code §§ 7001 & 7100, and California Public Resources Code §§ 5097.9–5097.994). 4…”
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