[Title 25 CFR L]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter L - HERITAGE PRESERVATION]
[From the U.S. Government Printing Office]


25INDIANS12004-04-012004-04-01falseHERITAGE PRESERVATIONLSUBCHAPTER LINDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
                   SUBCHAPTER L_HERITAGE PRESERVATION




PART 262_PROTECTION OF ARCHAEOLOGICAL RESOURCES--Table of Contents



Sec.
262.1 Purpose, scope and information collection.
262.2 Definitions.
262.3 Consultation to determine need for a permit.
262.4 Activities by Indian tribes or individuals that require a permit.
262.5 Application for permits.
262.6 Landowner consent by the Secretary.
262.7 Notice to Indian tribes of possible harm to cultural or religious 
          sites.
262.8 Custody of archaeological resources.

    Authority: 16 U.S.C. 470aa-11.

    Cross Reference: For uniform regulations issued by the Departments 
of Agriculture, Defense, and the Interior and the Tennessee Valley 
Authority pertaining to the protection of archaeological resources, and 
for supplemental regulations issued by the Department of the Interior 
pertaining to the same, see 43 CFR part 7, subparts A and B.

    Source: 58 FR 65249, Dec. 13, 1993, unless otherwise noted.



Sec. 262.1  Purpose, scope and information collection.

    (a) Purpose and scope. The purpose of this part is to implement 
certain provisions of the Archaeological Resources Protection Act (Act) 
of 1979 (16 U.S.C. 470aa-11), in accordance with section 10(b) and 
consistent with uniform regulations promulgated under section 10(a) by 
the Secretaries of the Interior, Agriculture, and Defense and the 
Chairman of the Board of the Tennessee Valley Authority (43 CFR part 7, 
36 CFR part 296, 32 CFR parts 229 and 1312) on February 6, 1984. This 
part shall provide guidance to officials of the Bureau of Indian Affairs 
(BIA) on the implementation of the Act as it pertains to this agency.
    (b) Information collection. The information collection requirements 
contained in Sec. 262.5 do not require approval by the Office of 
Management and Budget under 44 U.S.C. 3501 et seq.



Sec. 262.2  Definitions.

    As used for purposes of this part:
    (a) Funerary objects means objects that, as a part of the death rite 
or ceremony of a culture, are reasonably believed to have been placed 
with human remains of Indians either at the time of death or later, or 
to have been made exclusively for burial purposes or to contain such 
remains.
    (b) Sacred objects means specific ceremonial objects that are needed 
by traditional Indian religious leaders for the practice of traditional 
Indian religions by their present day adherents.
    (c) Object of cultural patrimony means an object having ongoing 
historical, traditional, or cultural importance central to an Indian 
tribe itself and that shall have been considered inalienable by the 
tribe at the time the object was separated therefrom.
    (d) Indian individual means:
    (1) Any person who is an enrolled member of a Federally recognized 
Indian tribe;
    (2) Any person who is a descendent of such a member and was, on June 
1, 1934, physically residing within the present boundaries of any Indian 
reservation; or
    (3) Any other person of one-half or more Indian blood of tribes 
indigenous to the United States.
    (e) Lands of Indian tribes means land or any interest therein:
    (1) The title to which is held in trust by the United States for an 
Indian tribe; or
    (2) The title to which is held by an Indian tribe, but which cannot 
be alienated or encumbered by the owner without the approval of the 
Secretary because of limitations contained in the conveyance instrument 
pursuant to Federal law or because of a Federal law directly imposing 
such restrictions.
    (f) Lands of Indian individuals means land or any interest therein:
    (1) The title to which is held in trust by the United States for the 
benefit of Indian individuals; or
    (2) The title to which is held by Indian individuals, but which 
cannot be alienated or encumbered by the owner without the approval of 
the Secretary because of limitations contained in the conveyance 
instrument pursuant to Federal law or because of a Federal law directly 
imposing such restrictions.

[[Page 671]]



Sec. 262.3  Consultation to determine need for a permit.

    (a) Any person, except as provided in the uniform regulations at 43 
CFR 7.5(b) through (d), who proposes to excavate or remove 
archaeological resources on Indian lands or on properties owned or 
administered by the BIA must first apply for and secure a permit under 
the Act. Procedures relating thereto are set forth in Sec. 262.5 of 
this part.
    (b) No permit under the Act, nor any other Federally issued license 
or authorization, is required for archaeological investigations that do 
not involve the excavation or removal of archaeological resources on 
these lands, except for BIA consent on properties that it owns or 
administers. Notwithstanding, persons other than those covered under 43 
CFR 7.5(b) through (d) shall, before engaging in such investigations:
    (1) Write to the head of each tribal government having jurisdiction 
over the lands where investigations are to be conducted and request that 
he or she provide, within 30 days, written information on any permit, 
license or other form of authorization the tribe might require for the 
work proposed; and
    (2) Provide the BIA Area Director with a copy of the tribe's written 
response (or a copy of the request to the tribe if 30 days have elapsed 
without any response) plus a brief but clear written description of the 
proposed work and obtain his or her written determination as to whether 
or not a permit under the Act is required. Area Directors shall provide 
determinations within 10 working days after receiving such 
documentation.



Sec. 262.4  Activities by Indian tribes or individuals that require a permit.

    (a) No Indian tribe may, without a permit under the Act, excavate or 
remove archaeological resources on:
    (1) Lands of another Indian tribe; or
    (2) Lands of Indian individuals, except those on which the law of 
that tribe regulates such activity.
    (b) No individual Indian may, without a permit under the Act, 
excavate or remove archaeological resources on any Indian lands 
(including his or her own) other than those on which the law of the 
tribe of which he or she is a member regulates such activity.
    (c) No person, as an employee, consultant, advisor or in any other 
capacity as an agent for any Indian tribe, shall be exempt from the 
permit requirements of the Act, except in the cases listed below:
    (1) No permit shall be required if a person is a member of the tribe 
having jurisdiction over the resources in question and the law of that 
tribe regulates the excavation or removal of archaeological resources on 
its lands.
    (2) Tribal employees need not submit permit applications to the BIA 
if:
    (i) The proposed excavation or removal of archaeological resources 
is within the normal scope of their duties or otherwise carried out by 
direction of the tribal government;
    (ii) The work is on Indian lands of the tribe or on which the law of 
that tribe regulates the excavation or removal of archaeological 
resources;
    (iii) The tribe ensures that the provisions for permit issuance in 
this part and at 43 CFR part 7 have been met by other documented means; 
and
    (iv) Before beginning the work, the tribe notifies the Area Director 
about the nature and location of the proposed work and allows 10 working 
days after mailing a notification or 5 working days after an oral 
notification (provided this is documented) for the Area Director to 
respond. The Area Director need only respond when action is required 
under Sec. 262.7 of this part, and may do so either in writing or, if 
documented, orally.
    (3) Consultants, advisors, and others serving by contractual 
agreement as agents for Indian tribes may use the provisions in Sec. 
262.5(f) of this part to expedite the process of obtaining a permit.
    (4) Persons serving as agents for Indian tribes as employees or by 
contractual agreement may abbreviate the consultation required in Sec. 
262.3(b) of this part by disregarding the requirement to consult first 
with the tribe and, provided the communication is documented, by 
consulting with the Area Director orally. In these cases, the Area 
Director need only respond when a permit is deemed necessary and

[[Page 672]]

may do so either orally or in writing. If a response is not received 
within 3 working days after an oral description of the proposed work is 
made or within 7 working days after a written description is mailed to 
the Area Director, the work may proceed.



Sec. 262.5  Application for permits.

    (a) Permits from the BIA shall be issued when an applicant meets the 
requirements set out in 43 CFR 7.8, and may be conditioned, modified, 
suspended, or revoked by the Area Director. Area Directors may delegate 
this authority to Agency Superintendents, but only on a permit-by-permit 
basis and only to those who have adequate professional support 
available.
    (b) Prospective applicants may obtain details on how to apply for a 
permit by contacting the Area Director, at BIA Area Offices in: 
Aberdeen, SD; Albuquerque, NM; Anadarko, OK; Arlington, VA; Billings, 
MT; Gallup, NM; Juneau, AK; Minneapolis, MN; Muskogee, OK; Phoenix, AZ; 
Portland, OR; or Sacramento, CA; or by writing to the Deputy 
Commissioner of Indian Affairs, Department of the Interior, Washington, 
DC 20240.
    (c) Permit applications proposing the excavation or removal of 
archaeological resources on Indian lands shall include the following 
consent documents:
    (1) Written permission from the Indian landowner and from the tribe, 
if any, having jurisdiction over those lands. This must contain such 
terms and conditions as the landowner or tribe may request be included 
in the permit. Where the permission is from a tribe, it should either 
state that no religious or cultural site will be harmed or destroyed by 
the proposed work or specify terms and conditions that the permit must 
include in order to safeguard against such harm or destruction.
    (i) For lands of Indian tribes, permission must be granted by the 
tribe.
    (ii) For lands of Indian individuals not under tribal jurisdiction, 
permission must be granted by the owner(s), except as provided in Sec. 
262.6.
    (iii) For lands of Indian individuals under tribal jurisdiction, 
permission must be granted by both the owner(s), except as provided in 
Sec. 262.6, and the tribe having such jurisdiction. Where an applicant 
is the owner, consent must still be obtained from the tribe.
    (iv) Where the ownership of lands of Indian individuals is multiple, 
permission must be granted by the owners of a majority of interests, 
except as provided in Sec. 262.6. The same shall apply where the 
applicant is one of the owners.
    (v) Where the terms and conditions a tribe or landowner requests be 
included in a permit are in conflict with the provisions of this or any 
other Act, with Federal regulations, or with each other, the Area 
Director may negotiate with the requestor to eliminate the conflict. If 
the conflict remains, the permit may not be issued.
    (2) Copies of any permits required by tribal law for archaeological 
work on lands under tribal jurisdiction. This may serve as written 
consent from the tribe for the purposes of Sec. 262.5(c)(1).
    (3) Written agreement by the Indian landowner(s) to release 
archaeological resources for curation or study, as specified in Sec. 
262.8(b).
    (d) Permits issued by the BIA shall include the following or similar 
condition: ``Human remains of Indians, funerary objects, sacred objects, 
and objects of cultural patrimony may not be excavated or removed unless 
the permittee has obtained the written consent of the Area Director. In 
order to obtain consent, the permittee shall present to the Area 
Director written evidence of prior consultation with the appropriate 
Indian tribe. If the lands containing the remains or objects are tribal 
lands, the permittee shall first obtain the written consent of the tribe 
having jurisdiction over the lands.'' Determination as to which tribe is 
the appropriate tribe shall be made in accordance with Sec. 262.8(a). 
Area Director consent shall be based on the scientific appropriateness 
of the research objectives and provisions for recovery, recording, and 
analysis and may, if documented, be oral. This condition may be omitted 
from the permit when such excavation or removal is proposed, and the 
requirements of the condition are met, in the permit application.
    (e) Information and assistance in contacting Indian tribes and 
individual

[[Page 673]]

Indian landowners for the purpose of requesting the consent documents 
listed under paragraph (c) of this section or of seeking the 
consultation and consent required under paragraph (d) of this section 
may be obtained from the BIA office to which the permit application is 
submitted.
    (f) Contractual agreements with the BIA or Indian tribes and permits 
issued by Indian tribes may be accepted as support documents for permit 
applications. They may also double as permit documents, if they 
demonstrate that the provisions for permit issuance in this part and at 
43 CFR part 7 have been met and they are attached to a Department of the 
Interior permit form. This form must be signed by the Area Director, but 
need only contain the following or similar statement: ``This permit is 
issued to the person(s) named, and in accordance with the terms and 
conditions in the attached (contractual agreement/tribal permit).''
    (g) Area Directors shall respond to permit applications within 15 
working days of receipt.



Sec. 262.6  Landowner consent by the Secretary.

    The Secretary of the Interior, or delegate thereof, may, on behalf 
of the owner(s) of lands of Indian individuals, grant consent for the 
purposes in Sec. 262.5(c)(1) and (3) when the Secretary or his or her 
delegate finds that such consent will not result in any injury to the 
land or owner(s) and when one or more of the following conditions exist:
    (a) The owner is a minor or a person non compos mentis;
    (b) The heirs or devisees of a deceased owner have not been 
determined;
    (c) The whereabouts of the owner are unknown;
    (d) Multiple owners are so numerous that the Secretary or his or her 
delegate finds, after documenting his or her efforts to do so, that it 
would be impractical to obtain their consent, as prescribed in Sec. 
262.5(c)(1)(iv) and provided the Secretary or his or her delegate also 
notifies, in writing, the tribe, if any, having jurisdiction over the 
land and allows 15 working days from the date of mailing date for 
response; or
    (e) The owner has given the Secretary or his or her delegate written 
authority to grant such consent on his or her behalf.



Sec. 262.7  Notice to Indian tribes of possible harm to cultural or 
religious sites.

    When consent by an Indian tribe to proposed excavation or removal of 
archaeological resources from Indian lands it owns or over which it has 
jurisdiction contains all of the information written as prescribed and 
advised in Sec. 262.5(c)(1), it may be taken to mean that subject to 
such terms and conditions as the tribe might specify, issuance of a 
permit for the proposed work will not result in harm to, or destruction 
of, any site of religious or cultural importance. No further 
notification is necessary, unless the Area Director has reason to 
believe that the proposed work might harm or destroy a site of religious 
or cultural importance to another tribe or Native American group. He or 
she shall then follow the notification procedures at 43 CFR 7.7. Those 
procedures must also be followed when proposed work might affect lands 
of Indian individuals over which there is no tribal jurisdiction or 
public lands owned or administered by the BIA.



Sec. 262.8  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from Indian lands, 
except for human remains of Indians, funerary objects, sacred objects 
and objects of cultural patrimony, remain the property of the Indian 
tribe or individual(s) having rights of ownership over such lands. 
Ownership and right of control over the disposition of the excepted 
items shall be in accordance with the order of priority provided in the 
Native American Graves Protection and Repatriation Act (Pub. L. 101-
601), adapted for the purpose of this rule as follows:
    (1) In the case of human remains of Indians and funerary objects, in 
the lineal descendants of the Indian; or
    (2) In any case in which such lineal descendants cannot be 
ascertained, and in the case of sacred objects and objects of cultural 
patrimony:

[[Page 674]]

    (i) In the Indian tribe on whose tribal lands, or on the individual 
Indian lands of whose members, such remains or objects are discovered;
    (ii) In the Indian tribe recognized as aboriginally occupying the 
public lands owned or administered by the BIA on which such remains or 
objects are discovered, if upon notice, that tribe states a claim for 
those remains or objects; or
    (iii) Where it can be so demonstrated by a preponderance of 
evidence, in the tribe other than that in paragraph (a)(2)(i) or (ii) of 
this section having the strongest cultural relationship with such 
remains or objects, if, upon notice, that tribe states a claim for those 
remains or objects.
    (iv) The Area Director shall provide the required notice to any 
Indian tribe identified under paragraph (a)(2)(ii) or (iii) of this 
section, in writing, within 5 working days after such identification has 
been documented and confirmed, and shall at the same time submit a copy 
of the notice for publication in the Federal Register. This notice shall 
include a description of the remains or objects; of where, how, and why 
they were excavated or removed; and of the evidence used to identify the 
tribe being notified. The remains or objects in question shall be 
considered the property of the pertinent tribe under paragraph (a)(2)(i) 
of this section or, in the case of paragraph (a)(2)(ii) of this section, 
held and administered by the BIA until or unless a claim is stated.
    (b) No permit for the excavation or removal of archaeological 
resources on Indian lands may be issued without the written consent of 
the Indian landowner(s) either to grant custody of the resources 
recovered (other than human remains of Indians, funerary objects, sacred 
objects or objects of cultural patrimony) to a curatorial facility that 
meets the requirements of 36 CFR part 79 or to allow the permittee a 
reasonable period of time to hold or have ready access to them at an 
appropriate location for study. The excepted remains and objects are 
covered under Sec. 262.5(d) of this part which, in general, permits 
their excavation or removal only when the research objectives and 
provisions for recovery, recording, and analysis are scientifically 
appropriate. Written consent to custody by a curatorial facility may 
include terms and conditions regarding curation (e.g., cleaning, 
viewing, loaning, studying, etc.), provided these are consistent with 36 
CFR part 79.
    (1) On lands of Indian tribes, consent must be obtained from the 
tribe.
    (2) On lands of Indian individuals, consent must be obtained from 
the owner of the land or the owners of a majority of interests therein, 
except as provided in Sec. 262.6.
    (3) Where consent is by the owners of a majority of interests, it 
must, if the archaeological resources are to be retained by or returned 
after study to the interest holders, designate a representative to 
receive those resources. Whether and how these are subsequently 
distributed among themselves is a matter for the interest holders to 
decide.
    (c) The Area Director may, after notifying the tribe (if any) having 
jurisdiction over such lands and allowing 15 working days for response, 
decline to issue a permit for lands of Indian individuals if he or she 
has any verifiable reason to believe that archaeological resources 
retained by the landowner(s) after being studied will be sold or 
exchanged other than to the tribe having jurisdiction or to a curatorial 
facility that meets the requirements of 36 CFR part 79. The basis for 
decline shall be that excavation or removal of resources under such 
circumstances would not be in the public interest and would thus be 
contrary to the purposes of the Act.
    (d) The landowner(s) alone may grant custody of archaeological 
resources (except for human remains, funerary objects, sacred objects 
and objects of cultural patrimony, which are subject to the provisions 
of paragraph (a) of this section) excavated or removed from lands of 
Indian individuals that are under tribal jurisdiction to a curatorial 
facility that meets the requirements of 36 CFR part 79. When, however, 
such consignment constitutes the ultimate disposition of these 
resources, the tribe having jurisdiction must also grant its consent. 
Any subsequent exchange or disposition by the facility

[[Page 675]]

must have the consent of both the landowner(s) and the tribe.



PART 265_ESTABLISHMENT OF ROADLESS AND WILD AREAS ON INDIAN RESERVATIONS
--Table of Contents



Sec.
265.1 Definition of roadless area.
265.3 Roads prohibited.

    Cross Reference: For general regulations pertaining to the 
construction of roads, see part 170 of this chapter.



Sec. 265.1  Definition of roadless area.

    A roadless area has been defined as one which contains no provision 
for the passage of motorized transportation and which is at least 
100,000 acres in extent. Under this definition the Secretary of the 
Interior ordered (3 FR 609, Mar. 22, 1938) certain roadless areas 
established on Indian reservations. The following is the only presently 
existing roadless area:

Name of area--Wind River Reserve.
Reservation--Shoshone.
State--Wyoming.
Approximate acreage--180,387

    (a) The boundaries of the Wind River Reserve roadless area are as 
follows:

                        Wind River Meridian, Wyo.

    Starting at the SW corner of sec. 22, T. 2 S., R. 3 W., on the south 
boundary of the Wind River Indian Reservation, thence north six (6) 
miles to the NE corner of sec. 28, T. 1 S., R. 3 W., thence west three 
(3) miles to the SW corner of sec. 19, T. 1 S., R. 3 W., thence north 
four (4) miles along range line to the Wind River Base Line, thence west 
one (1) mile along Wind River Base Line to the SW corner of Sec. 36, T. 
1 N., R. 4 W., thence north six (6) miles to the NW corner of sec. 1, T. 
1 N., R. 4 W., thence west five (5) miles along township line to the NE 
corner of sec. 1, T. 1 N., R. 5 W., thence north four and one-half (4\1/
2\) miles along range line to the NE corner of the SE \1/4\ of sec. 12, 
T. 2 N., R. 5 W., thence west one and one-half (1\1/2\) miles to the 
center of sec. 11, T. 2 N., R. 5 W., thence on a straight line in a 
northwesterly direction to the top of Bold Mountain, thence on a 
straight line to the SE corner of sec. 35, T. 4 N., R. 6 W., thence west 
one (1) mile along township line to the SW corner of sec. 35, T. 4 N., 
R. 6 W., thence north two (2) miles to the NW corner of sec. 26, T. 4 
N., R. 6 W., thence on a straight line in a northwesterly direction to 
the point where the north line of sec. 15, T. 4 N., R. 6 W. intersects 
the west boundary of the reservation, thence south, southeasterly and 
east along the reservation boundary to point of beginning.

(5 U.S.C. 301)

[30 FR 9813, Aug. 6, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 265.3  Roads prohibited.

    (a) Within the boundaries of this officially designated roadless 
area it will be the policy of the Interior Department to refuse consent 
to the construction or establishment of any routes passable to motor 
transportation, including in this restriction highways, roads, truck 
trails, work roads, and all other types of ways constructed to make 
possible the passage of motor vehicles either for transportation of 
people or for the hauling of supplies and equipment, unless the 
requirements of fire protection, commercial use for the Indians' benefit 
or actual needs of the Indians clearly demand otherwise.
    (b) Foot trails and horse trails are not barred. The Superintendent 
of the Wind River Reservation on which this roadless area has been 
established will be held strictly accountable for seeing that the area 
is maintained in a roadless condition. Elimination of this area or any 
part thereof from the restriction of this order will be made only upon a 
written showing of an actual and controlling need.

(5 U.S.C. 301)

[30 FR 9814, Aug. 6, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]

    Cross Reference: For rights-of-way for highways over Indian lands, 
see part 169 of this chapter.

[[Page 676]]