[Title 25 CFR L]
[Code of Federal Regulations (annual edition) - April 1, 2002 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]
25INDIANS12002-04-012002-04-01falseHERITAGE 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 693]]
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 694]]
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 695]]
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 696]]
(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 697]]
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 698]]