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CULTURAL RESOURCES MANAGEMENT CODE
Received: August 2004

 
Table of Contents

More Detailed Table of Contents

General
Cultural Resources Management Department
Cultural Plants
Cultural Sites
Cultural Remains
Cultural Records
Cultural Research
Violations
Enforcement and Review



General

Section 101. Title

Section 102. Authority of the Tribal Government

(a) Inherent authority over Cultural Resources.
(b) Tribal laws apply to Cultural Resources to the maximum extent
(c) Authority of Council to enter into negotiated agreements to implement Code
(d) Cultural Resources presently owned by tribal members.
(e) Other rights and powers not abrogated by authority over Cultural Resources

Section 103. Findings, Intents and Purposes, and Declarations of Policy

(a) Findings
(b) Intents and Purposes
(c) Declarations of Policy

Section 104. Jurisdiction

(a) Personal Jurisdiction
(b) Subject Matter Jurisdiction
(c) Territorial Jurisdiction

Section 105. Definitions

(a) Activity
(b) Adverse effect
(c) ARPA
(d) Code
(e) Committee
(f) Cultural Patrimony Objects
(g) Cultural Plants
(h) Cultural Records
(i) Cultural Remains
(j) Cultural Research
(k) Cultural Resources
(l) Cultural Sites
(m) Department
(n) Director
(o) Discovery
(p) Elders Advisory Group
(q) Endangered
(r) ESA
(s) Exclusion
(t) Funerary Objects
(u) In situ
(v) Land Use and Environment Commission
(w) NAGPRA
(x) NHPA
(y) Person
(z) Record
(aa) Reinterment
(bb) Remains
(cc) Repatriation
(dd) Research
(ee) Reservation
(ff) Sicangu Oyate Land Office
(gg) Site
(hh) Threatened
(ii) Tribal Council
(jj) Tribal Forestry Department
(kk) Tribal Government
(ll) Tribal Game, Fish, and Parks Department
(mm) Tribal Police
(nn) Tribal Territory
(oo) Tribe

Section 106. Construction of Tense Used

Section 107. Masculine Gender Inclusive

Section 108. Reference to Code Includes Amendments

Section 109. Severability

Section 110. Repeal of Inconsistent Laws

Cultural Resources Management Department

Section 201. Tribal Council

(a) Tribal Council to be governing and policy determining body of Department
(b) Committee
(c) Elders Advisory Group

Section 202. Department

(a) Establishment
(b) Director
(c) Office, files, and records
(d) Staff
(e) Fees
(f) Reports
(g) Information and communication
(h) Cooperation with and coordination of tribal programs, services, and activities
(i) Investigations
(j) Planning
(k) Rules and regulations
(l) Liaison
(m) Consultations
(n) Cooperative agreements
(o) Consultants
(p) Acquisitions
(q) Budgets
(r) Funding
(s) Funds expenditure
(t) Fiscal management
(u) Enforcement assistance

Cultural Plants

Section 301. Cultural Plants

(a) Cultural Plants Program
(b) Professional staff
(c) General Duties and Responsibilities
(d) Inventory
(e) Classification
(f) Coordination with Land Use and Zoning Codes
(g) Access
(h) Adverse effects
(i) Recovery plans

Cultural Sites

Section 401. Cultural Sites

(a) Cultural Sites Program
(b) Professional staff
(c) General Duties and Responsibilities
(d) Survey
(e) Inventory
(f) Activity Permits
(g) Adverse effects
(h) Federal Permits
(i) Inspection
(j) Tribal Historic Preservation Program
(k) Restoration plans

Cultural Remains

Section 501.

(a) Cultural Remains Program
(b) Professional staff
(c) General Duties and Responsibilities
(d) Discovery
(e) Repatriation
(f) Disposition
(g) Reinterment
(h) Adverse effects

Cultural Records

Section 601. Cultural Records

(a) Cultural Records Program
(b) Professional Staff
(c) General Duties and Responsibilities
(d) Tribal Archivist
(e) Cultural Records Advisory Board

Cultural Research

Section 701. Cultural Research

(a) Cultural Research Office
(b) Professional Staff
(c) General Duties and Responsibilities
(d) Research Permits
(e) Notice to other programs
(f) Permit Review Protocol
(g) Permit Review Process
(h) Conditions
(i) Fees
(j) Non-transferability
(k) Research Contracts
(l) Reports
(m) Substantial Changes
(n) Confidentiality
(o) Involvement of Tribe
(p) Copies to Tribe
(q) Research Review Committee
(r) Exempt Research
(s) Rules and Regulations

Violations

Section 801. Violations

(a) Disclosure
(b) Notice
(c) Expenditures
(d) Activities
(e) Permits
(f) Sales
(g) Regulations
(h) Solicitations

Enforcement and Review

Section 901. Enforcement

Section 1001. Judicial Review

(a) Court Jurisdiction
(b) Review
(c) Civil Actions
(d) Civil Remedies
(e) Criminal Actions 56
(f) Criminal Penalties 56
(g) Monetary Damages and Penalties to Tribal Treasury
(h) Sovereign Immunity not Waived




FINAL (09/10/03)

ROSEBUD SIOUX TRIBE
CULTURAL RESOURCES MANAGEMENT CODE


GENERAL


Section 101. Title. This Title is the Cultural Resources Management Code of the Rosebud Sioux Tribe and it may be cited as the Tribal Cultural Resources Management Code.


Section 102. Authority of the Tribal Government

(a) Inherent authority over Cultural Resources. By virtue of its aboriginal rights, treaty guarantees, and sovereign status, the Tribal Government has the power and the duty to exercise its inherent authority over Cultural Resources, by enacting and implementing a Cultural Resources Management Code applicable to Cultural Resources.

(b) Tribal laws apply to Cultural Resources to the maximum extent. The codes, ordinances, and other laws of the Tribe apply to Cultural Resources to the maximum extent of the jurisdiction of the Tribe.

(c) Authority of Council to enter into negotiated agreements to implement Code. As provided in the Tribal Constitution, art. IV, sec. 1(a), the Tribal Council is empowered to enter into any negotiated agreements with the federal, state, and other tribal governments to implement the provisions of this Code.

(d) Cultural Resources presently owned by tribal members. There is no authority or intent in this Title for the Tribal Government to regulate or take any Cultural Resources that are presently and legally owned by tribal members and used solely for valid personal, family, or spiritual use.

(e) Other rights and powers not abrogated by authority over Cultural Resources. In exercising its authority over Cultural Resources, the Tribal Government does not sanction or cause any abrogation of the rights of the Tribe or tribal members based upon inherent sovereignty or federal law, nor does it diminish any trust responsibility of the federal government, including but not limited to obligations set forth in the Treaty of Fort Laramie of 1868.

Section 103. Findings, Intents and Purposes, and Declarations of Policy

(a) Findings. The Tribal Council finds that:

(1) The Tribe, through its Department of Tourism, in the years 2000-2003, conducted inventories of Cultural Resources; surveyed the views and needs of tribal communities regarding cultural resources management by the Tribe; and, prepared a Tourism Needs Assessment that will form the basis of a Five-Year Strategic Plan for Economic Development Consistent with Cultural Resources Management;

(2) The inventories, surveys, and assessment affirm that the Tribe has many Cultural Resources, including Cultural Plants, Cultural Sites, Cultural Remains, and Cultural Records;

(3) The inventories, surveys, and assessment affirm that Cultural Resources are fundamental to the ancestors, present peoples, future generations, culture, land base, traditions, and sovereignty of the Tribe;

(4) The inventories, surveys, and assessment affirm that many Cultural Resources are invaluable, irreplaceable, and endangered or threatened, largely due to misuse, misappropriation, misconduct, and economic growth and development without adequate protection or concern;

(5) Several federal laws, including ARPA, NHPA, and NAGPRA, expressly recognize the inherent sovereign powers of Indian tribes over their Cultural Resources;

(6) The Tribe currently has no comprehensive regulatory code or management policy governing Cultural Resources;

(7) The Tribe has carefully balanced the need for a comprehensive regulatory code governing Cultural Resources with the interests of the non-tribal society to learn about, access, and use Cultural Resources; and

(8) A comprehensive Cultural Resources Management Code is a legitimate and necessary function of the Tribal Government, and will require the expenditure of tribal funds.

(b) Intents and Purposes. It is the intent and purpose of this Code to preserve, protect, and manage Cultural Resources in a manner that:

(1) perpetuates the culture, traditions, and sovereignty of the Tribe;

(2) is based on policy, statutory regulation, and research; and

(3) is consistent with appropriate tribal economic development, including tourism, marketing, and investment.

(c) Declarations of Policy. It is hereby declared to be the policy of the Tribe that:

(1) All Cultural Resources are the communal property of the Tribe and must be treated with respect as living, spiritual beings;

(2) The Tribal Government will take primary responsibility for and show leadership in the proper management of Cultural Resources;

(3) The regulation and management of Cultural Resources as provided for in this Code is in the best interests of the Tribe and of the world;

(4) All persons within Tribal Territory will be sufficiently informed about this Code and Cultural Resources;

(5) Adverse effects to Cultural Resources inconsistent with this Code will not be tolerated by the Tribe;

(6) All persons knowing of any adverse effects to Cultural Resources should promptly notify the Department;

(7) All persons located within, adjacent to, or near Tribal Territory are encouraged to adhere to the Code provisions with respect to cultural resources located on their own private properties;

(8) All tribal members are encouraged to respect Cultural Resources regardless of the location of the Cultural Resources; and

(9) The Tribal Council will seek negotiated agreements with the federal, state, and other tribal governments that are necessary or advisable to implement the provisions of this Code.


Section 104. Jurisdiction

(a) Personal Jurisdiction. This Code applies to all persons within the Territorial Jurisdiction of the Tribe.

(b) Subject Matter Jurisdiction. This Code applies to all Cultural Resources within the Territorial Jurisdiction of the Tribe.

(c) Territorial Jurisdiction. For purposes of this Code, the Territorial Jurisdiction of the Tribe includes:

(1) all land held in trust or restricted status by the federal government for either the Tribe or tribal members within the original boundaries for the tribe's land base as set forth by the Act of March 2, 1889, 25 Stat. 896, and the Treaty of Fort Laramie of April 29, 1868, 15 Stat. 635, without regard to whether those boundaries have been judicially held or otherwise declared to have been "disestablished";

(2) all land owned in fee simple by the Tribe within the boundaries of the Reservation; and

(3) all other land or geographic areas declared under federal law to be subject to the jurisdiction, sovereignty, or rights of the Tribe.

Section 105. Definitions

(a) Activity. "Activity" or "Activities" means any action, certificate, construction, contract, development, easement, lease, license, permit, policy, program, project, transaction, or undertaking that can have an adverse effect on Cultural Sites if any Cultural Sites are located in the area of potential effects.

(b) Adverse effect. "Adverse effect" or "Adverse effects" means any direct, indirect, or cumulative abuse, alteration, appropriation, change, collection, curtailment, cutting, damage, defacement, degradation, demolishment, desecration, destruction, deterioration, digging, diminishment, disinterment, disruption, disturbance, encroachment, excavation, exposing, gathering, harm, harvest, impairment, injury, interference, jeopardizing, loss, misuse, modification, molestation, mutilation, neglect, removal, taking, transporting, or waste.

(c) ARPA. "ARPA" means the Archaeological Resources Protection Act, Pub. L. No. 96-95, 93 Stat. 721, 16 U.S.C. §§ 470aa-470mm, and all amendments thereto.

(d) Code. "Code" means the Tribal Cultural Resources Management Code.

(e) Committee. "Committee" means the Land and Natural Resources Committee of the Tribal Council.

(f) Cultural Patrimony Objects. "Cultural Patrimony Objects" means any objects, artifacts, or materials with ceremonial, cultural, historical, sacred, spiritual, or traditional value to the Tribe.

(g) Cultural Plants. "Cultural Plants" means any plant, tree, shrub, or herb, including any part thereof, with ceremonial, cultural, historical, sacred, spiritual, or traditional value to the Tribe.

(h) Cultural Records. "Cultural Records" means any Record with archaeological, cultural, historical, or traditional value to the Tribe.

(i) Cultural Remains. "Cultural Remains" means any Remains with archaeological, cultural, historical, sacred, spiritual, or traditional value to the Tribe, and also includes, but is not limited to, Cultural Patrimony Objects and Funerary Objects.

(j) Cultural Research. "Cultural Research" means any Research of Cultural Resources.

(k) Cultural Resources. "Cultural Resources" means Cultural Plants, Cultural Records, Cultural Remains, and Cultural Sites.

(l) Cultural Sites. "Cultural Sites" means any sites of archaeological, ceremonial, cultural, historical, sacred, spiritual, or traditional value to the Tribe, and includes tribal ancestral burial grounds, cemeteries, and graves, whether marked or unmarked.

(m) Department. "Department" means the Cultural Resources Management Department of the Tribe.

(n) Director. "Director" means the Director of the Department.

(o) Discovery. "Discovery" means any encounter, exhumation, finding, or unearthing, whether intentional or not.

(p) Elders Advisory Group. "Elders Advisory Group" means any elders of the Tribe identified or selected to advise under this Code.

(q) Endangered. "Endangered" means in danger of extinction.

(r) ESA. "ESA" means the Endangered Species Act, Pub. L. No. 93-205, 87 Stat. 884, 16 U.S.C. §§ 1531-1544, and all amendments thereto.

(s) Exclusion. Means the permanent or temporary expulsion of a person from Tribal Territory pursuant to the exclusionary powers of the Tribe.

(t) Funerary Objects. "Funerary Objects" means any objects, artifacts, or materials which are reasonably believed to have been placed with a deceased individual in burial as part of a tribal cultural ceremony or rite.

(u) In situ. "In situ" means any undisturbed intact Remains or portions thereof in their original site and setting at the time of burial.

(v) Land Use and Environment Commission. "Land Use and Environment Commission" means the Land Use and Environment Commission of the Tribe.

(w) NAGPRA. "NAGPRA" means the Native American Graves Protection and Repatriation Act, Pub. L. No. 101-601, 104 Stat. 3048, 25 U.S.C. §§ 3001-3013, and 18 U.S.C. § 1170, and all amendments thereto.

(x) NHPA. "NHPA" means the National Historic Preservation Act, Pub. L. No. 89-665, 80 Stat. 915, 16 U.S.C. §§ 470-470h-5, and all amendments thereto.

(y) Person. "Person" or "Persons" means any individual, estate of a natural person, corporation, partnership, trust, or any other private entity, association, institution, organization, or society.

(z) Record. "Record" or Records" means all tangible materials including, but not limited to: treaties, laws, rules, regulations, reports, studies, articles, theses, documents, papers, books, volumes, periodicals, pamphlets, newspapers, newspaper clippings, manuscripts, diaries, letters, correspondence, ledgers, journals, church records, government records, administrative records, inventories, catalogs, maps, surveys, plats, deeds, permits, receipts, contracts, photographs, slides, negatives, portraits, sketches, drawings, models, films, sound or video recordings, audio tapes, microforms, micrographics, reproductions, electronic data, computer data bases, computer discs, printouts, research, field notes, and inventories, and intangible things such as oral histories and interviews.

(AA) Reinterment. "Reinterment" means the tribal ceremonial or ritual aspect of reburial of disinterred Cultural Remains.

(bb) Remains. "Remains" means the physical remains, articulated or unarticulated bones and bone fragments, and the surrounding soil matrix at any stage of decomposition of any deceased human or animal, including any prehistoric human or animal.

(cc) Repatriation. "Repatriation" means the physical return of any Cultural Remains to the Tribe.

(DD) Research. "Research" means any academic, agricultural, agronomical, anthropological, archaeological, behavioral, biogenetic, botanical, clinical, cultural, demographic, ecological, educational, environmental, ethnographical, genetic, historical, linguistic, medical, neurological, orthographical, photographic, psychological, scientific, sociological, theological, toxicological, or videographical study, investigation, analysis, or recordation that is not conducted by the Tribe, whether involving human subjects or not.

(EE) Reservation. "Reservation" means the geographic area whose exterior boundaries are contiguous with Todd County, South Dakota.

(ff) Sicangu Oyate Land Office. "Sicangu Oyate Land Office" means the Land Office of the Tribe.

(gg) Site. "Site" means: (1) a natural, physical, geographic area, place, or location, whether on, below, or above the surface of the earth; or, (2) a building, structure, facility, or landscape made, prepared, or produced by humans.

(hh) Threatened. "Threatened" means likely to become endangered within the foreseeable future.

(ii) Tribal Council. "Tribal Council" means the Tribal Council of the Tribe.

(jj) Tribal Forestry Department. "Tribal Forestry Department" means the Department of Forestry of the Tribe.

(kk) Tribal Government. "Tribal Government" means the authorized government of the Tribe.

(ll) Tribal Game, Fish, and Parks Department. "Tribal Game, Fish, and Parks Department" means the Game, Fish, and Parks Department of the Tribe.

(mm) Tribal Police. "Tribal Police" means any law enforcement personnel duly authorized by the Tribal Government to enforce the laws of the Tribe.

(nn) Tribal Territory. "Tribal Territory" means all land and geographic areas within the Territorial Jurisdiction of the Tribe as defined by this Code.

(oo) Tribe. "Tribe" or "tribal" means the Rosebud Sioux Tribe, also known as the Sicangu Lakota Oyate.


Section 106. Construction of Tense Used. In construing the provisions of this Code, the present tense includes the past and future tenses, and the future tense includes the present tense.


Section 107. Masculine Gender Inclusive. In construing the provisions of this Code, the masculine gender includes the feminine and the neuter genders.


Section 108. Reference to Code Includes Amendments.
When reference is made to any portion of this Code, the reference shall apply to all amendments and additions made hereafter.


Section 109. Severability. If any part of this Code is invalidated by a court of competent jurisdiction, all valid parts that are severable from the invalid part remain in effect. If a part of this Code is invalid in one or more of its applications, that part remains in effect in all valid applications that are severable from the invalid application(s).


Section 110. Repeal of Inconsistent Laws. All codes, ordinances, resolutions, and other laws of the Tribe inconsistent with this Code are hereby repealed. To the extent that this Code provides other than any other tribal law regarding Cultural Resources, this Code shall govern.


CULTURAL RESOURCES MANAGEMENT DEPARTMENT


Section 201. Tribal Council

(a) Tribal Council to be governing and policy determining body of Department. The Tribal Council shall be the governing and policy determining body of the Department. As the governing and policy determining body, the Tribal Council shall:

(1) Employ a Director of the Department;

(2) Provide a suitable office on the Reservation for the Department, and provide funding for facilities, equipment, and supplies for the Department as deemed necessary or advisable to meet the intents, purposes, and policies of this Code;

(3) Require and review at least annual comprehensive reporting by the Department on the conditions, needs, and improvement of Cultural Resources;

(4) Regularly consider the conditions, needs, and improvement of Cultural Resources and enact or reject such additional legislation or changes in existing legislation as may be necessary or advisable;

(5) Actively promote and assist in the coordination of tribal programs, services, and activities that affect Cultural Resources;

(6) Approve or disapprove plans and goals regarding Cultural Resources;

(7) Adopt or reject rules or regulations recommended by the Director, or delegate rule making authority to the Director;

(8) Approve or disapprove cooperative agreements regarding Cultural Resources with the federal, state, and other tribal governments;

(9) Approve or disapprove contracts and agreements with consultants regarding Cultural Resources;

(10) Approve or disapprove Department appropriations and operating budgets;

(11) Seek federal, state, and private funding and grants for the Department and for Cultural Resources;

(12) Use and rely on the Committee to provide legislative and policy oversight for the Department and to serve the Tribal Council on all legislative and policy matters related to Cultural Resources; provided that, the Tribal Council may delegate other duties and responsibilities to the Committee as it deems necessary or advisable; and,

(13) Establish advisory committees on Cultural Resources to serve the Tribal Council and the Department as deemed necessary or advisable to meet the intents, purposes, and policies of this Code.


(b) Committee. The Committee shall provide legislative and policy oversight for the Department and shall serve the Tribal Council on all legislative and policy matters related to Cultural Resources. If the Tribal Council delegates any other duties or responsibilities to the Committee, the Committee shall exercise such authority only in a manner consistent with tribal and federal law.

(c) Elders Advisory Group. If and when identified or selected, the Elders Advisory Group shall serve in an advisory capacity to the Tribal Council, the Committee, and the Department as deemed necessary or advisable to implement this Code.


Section 202. Department

(a) Establishment. There is hereby established in the Tribal Government a Tribal Cultural Resources Management Department.

(b) Director. The Director of the Department has the power and duty to exercise all powers, duties, and responsibilities of the Department as set forth in this Code or other tribal law. The Director shall be the principal administrator of this Code, and shall oversee the administration of the Code and the operation of Department operations, functions, programs, services, and activities. The Director shall maintain current knowledge of the law, policies, and procedures relative to Cultural Resources. The Director shall serve as the principal administrative advisor to the Tribal Council on all matters relative to this Code and Cultural Resources.

(c) Office, files, and records. The Director shall maintain an office provided by the Tribal Council on the Reservation. In the office, the Director shall keep organized files of all papers, reports, documents, correspondence, data, and other information or materials generated or received by the Department. In the office, the Director shall keep accurate records of all matters pertaining to the Department.

(d) Staff. Subject to the approval of the Committee or the Personnel Office of the Tribe, the Director may employ qualified professional, technical, clerical, and other employees as may be necessary or advisable for the administration of this Code. The Director shall plan and direct the duties and responsibilities of the Department staff and shall ensure that the Department staff is qualified and receive appropriate training.

(e) Fees. Subject to the approval of the Tribal Council, the Director is authorized to develop a process to charge reasonable fees for all permits and other documents required or developed under this Code. All such fees validly collected shall be deposited in the Tribal Treasury and shall be used solely to implement this Code.

(f) Reports. The Director shall prepare and submit reports to the Tribal Council as provided for in this Code. Such reports shall detail:

(1) the conditions, needs, and improvement of Cultural Resources;

(2) the operation, functions, programs, services, and activities of the Department;

(3) any and all receipts, expenditures, and use by the Department of funds;

(4) recommendations regarding necessary or advisable tribal or non-tribal legislation or other governmental action on behalf of Cultural Resources; and

(5) recommendations regarding any cooperative agreements with the federal, state, and other tribal governments and their agencies or political subdivisions that further the intents, purposes, and policies of this Code.

(g) Information and communication

(1) There is hereby established within the Department an "Information Office." Subject to available funding, the Director may develop and operate a formal program of information and education or training for the Tribe about the intents, purposes, and policies of this Code; the functions, programs, services, and activities of the Department; and, Cultural Resources. Also subject to available funding, the Director may develop and operate a formal program of information and education or training for the general public as deemed necessary or advisable about the intents, purposes, and policies of this Code; the functions, programs, services, and activities of the Department; and, Cultural Resources. Reasonable charges may be made for the dissemination of any such information and education.

(2) Subject to available funding, the Director may develop and operate a formal program of information and education for the Tribe and the general public about cultural resource related matters such as the Indian Arts and Crafts Act, 25 U.S.C. §§ 305 - 310 and 18 U.S.C. §§ 1158 - 1159, and federal and state intellectual property laws, including trademark, copyright, and patent laws. Subject to approval of the Tribal Council, the Director may investigate and make recommendations to the Tribal Council about alleged violations of the Indian Arts and Crafts Act and any other federal or state intellectual property laws. Reasonable charges may be made for the dissemination of any such information and education.

(3) Notwithstanding any other provisions of this subsection regarding an Information Office, the Director shall communicate or otherwise provide general information to other tribal departments, agencies, offices, and entities about the intents, purposes, and policies of this Code, and the functions, programs, services, and activities of the Department. The Director shall work cooperatively with other tribal departments, agencies, offices and entities to inform and educate non-tribal governments, departments, agencies, offices, and entities about the intents, purposes, and policies of this Code, and the functions, programs, services, and activities of the Department. The Director shall provide information to the general public as deemed necessary or advisable about the intents, purposes, and policies of this Code, and the functions, programs, services, and activities of the Department.

(4) The Department shall cooperate with the Tribal Education Department and Sinte Gleska University regarding the development of tribal curricula pertaining to Cultural Resources.

(h) Cooperation with and coordination of tribal programs, services, and activities. Consistent with the provisions of this Code, the Director shall cooperate with the programs, services, and activities of other departments, agencies, offices, and entities of the Tribe as they may affect Cultural Resources. The Director may coordinate or facilitate the coordination of the programs, services, and activities of other departments, agencies, offices, and entities of the Tribe to ensure that the intents, purposes, and policies of this Code are pursued.

(i) Investigations. The Director is authorized to make and shall make necessary or advisable investigations regarding Cultural Resources.

(j) Planning. Subject to the approval of the Tribal Council, the Director shall develop a multi-year comprehensive strategic plan for the effective management of Cultural Resources consistent with this Code. The plan shall contain goals consistent with this Code.

(k) Rules and regulations. The Director shall develop and recommend to the Tribal Council such rules or regulations as may be deemed necessary or advisable to administer this Code and to meet the needs or improve the conditions of Cultural Resources; provided, that such rules and regulations are ineffective unless and until approved by the Tribal Council unless the Council otherwise provides. If the Tribal Council delegates rule making authority to the Director, the Director shall exercise that authority only in a manner not inconsistent with this Code or other tribal law or federal law.

(l) Liaison. The Director shall act as a continuous liaison for the Tribe on this Code and Cultural Resources. This shall include interactions with tribal community, spiritual, and traditional leaders; the federal, state, and other tribal governments; and, museums, institutions of higher education, and private and professional organizations and entities. In addition, the Director shall serve on tribal and non-tribal cultural resource committees, boards, and work groups as directed by the Tribal Council.

(m) Consultations. The Director shall keep current on federal consultations and rule making regarding Cultural Resources. Subject to approval of the Tribal Council, the Director shall participate in federal consultations and shall comment on or otherwise participate in federal rule making processes concerning Cultural Resources.

(n) Cooperative agreements. The Director shall identify and report to the Tribal Council on a regular basis the need for any cooperative agreements with the federal, state, and other tribal governments and their agencies or political subdivisions that further the intents, purposes, and policies of this Code. The Director may seek cooperative agreements with the federal, state, and other tribal governments and their agencies or political subdivisions that further the intents, purposes, and policies of this Code. If authorized by the Tribal Council, the Director may negotiate such cooperative agreements; provided, that any cooperative agreement is ineffective unless and until approved by the Tribal Council.

(o) Consultants. Subject to the approval of the Tribal Council, the Director may hire or contract with such consultants as deemed necessary or advisable to administer this Code.

(p) Acquisitions. Subject to the approval of the Tribal Council, the Director may acquire Cultural Resources in the name of the Tribe.

(q) Budgets. The Director shall annually prepare a written budget for the operation of the Department. The budget shall include but not be limited to costs for: salaries, travel and travel expenses, training, facilities, equipment, supplies, files, records, consultants, and reports. The Director shall timely submit the budget along with a written justification to the Tribal Council or the appropriate tribal committee or office. The Director shall make any necessary presentations and attend any necessary hearings regarding the budget. The Director shall participate in the preparation of budgets for other Cultural Resources needs as directed by the Tribal Council.

(r) Funding. Subject to approval of the Tribal Council, the Director shall seek funding from federal, state, and private sources for the Department and for Cultural Resources. The Director is authorized to receive funding from tribal, federal, state, and private sources for the Department.

(s) Funds expenditure. The Director is authorized to expend funds authorized and appropriated for the purposes of carrying out the intents and purposes of this Code.

(t) Fiscal management. The Director shall be responsible for the proper management of all funding for the Department. The Director shall adhere to established tribal policies in the receipt and expenditure of such funding. The Director shall maintain regular contact with the Tribal Treasurer on accounting matters, and shall cooperate with auditors during audits as required by law. The Director shall be responsible for all tribal properties assigned to the Department and the proper use thereof.

(u) Enforcement assistance. The Department is authorized to recommend and seek the assistance of the Tribal Game, Fish, and Parks Department, the Tribal Forestry Department, the Sicangu Oyate Land Use Office, the Tribal Land Use and Environment Commission, the Tribal Police, the Tribal Attorney, the Tribal Prosecutor, the U.S. Attorney, and any other duly authorized law enforcement agency or official to address potential violations of the provisions of this Code.

CULTURAL PLANTS


Section 301. Cultural Plants

(a) Cultural Plants Program. There is hereby established within the Department a Cultural Plants Program.

(b) Professional staff. The Professional Staff of the Cultural Plants Program shall have knowledge of and experience with traditional tribal and current methods and techniques for identifying, preserving, protecting, and improving Cultural Plants.

(c) General Duties and Responsibilities. The Cultural Plants Program:

(1) Shall serve as the principal advisor to the Department and the Tribal Council about the identification, preservation, protection, and improvement of Cultural Plants;

(2) Shall prepare reports on Cultural Plants as directed by the Department;

(3) Shall encourage training and education of and may provide training, education, and technical assistance to employees of the Tribe and to tribal members on the Cultural Plants Program;

(4) Shall encourage tribal members to become informed about and involved in the Cultural Plants Program;

(5) Subject to the approval of the Department, may publicly post all or any part of this Code regarding Cultural Plants, and any policies, procedures, or other measures regarding Cultural Plants developed and approved under this Code;

(6) Shall recommend to the Department any cooperative agreements regarding Cultural Plants with the federal, state, and other tribal governments or their agencies or political subdivisions that are necessary or advisable to implement the provisions of this Code; and,

(7) Shall develop and recommend to the Department any policies, procedures, or other measures to preserve, protect, and manage Cultural Plants consistent with this Code.

(d) Inventory. The Cultural Plants Program:

(1) Shall develop an inventory, which may be an electronic data base, of all Cultural Plants within Tribal Territory. In developing such inventory, the Cultural Plants Program may use tribal community, spiritual, and traditional leaders, and tribal healers and medicine people. In developing such inventory, the Cultural Plants Program may use oral tradition. The inventory shall refer to Cultural Plants by their common names and scientific names;

(2) Shall develop a map, which may be electronically generated, that shows the general location, distribution, or range of all Cultural Plants in the inventory;

(3) Shall regularly retain, maintain, and keep current the inventory, map, and any supporting data thereto;

(4) Shall provide copies of the inventory and map to all tribal departments, agencies, offices, and entities;

(5) Subject to the approval of the Department, may limit or prohibit access by the general public to the inventory, map, and any other information about Cultural Plants, including their location and meaning, if such limitation or prohibition is in the interest of preserving, protecting, or managing Cultural Plants consistent with this Code, or is otherwise in the interest of the Tribe; and,

(6) Subject to the approval of the Department, may file petitions for listing of Cultural Plants under the ESA.

(e) Classification. The Cultural Plants Program:

(1) Subject to the approval of the Department, shall develop three classification categories for Cultural Plants: Category One shall include all Cultural Plants which are endangered; Category Two shall include all Cultural Plants which are threatened; and, Category Three shall include all other Cultural Plants; and,

(2) Shall classify all Cultural Plants on the Inventory into one of the three classification categories. The Cultural Plants Program shall retain, maintain, and keep current the classification and categorization.

(f) Coordination with Land Use and Zoning Codes

(1) Subject to the approval of the Department, the Cultural Plants Program shall make timely recommendations to the appropriate tribal departments, agencies, offices, and entities regarding necessary or advisable zoning and land use decisions or other action under applicable tribal law and policy. In making such recommendations, the Cultural Plants Program may use the inventory and classification categories developed under this Code.

(2) The Cultural Plants Program shall notify promptly the Tribal Council in writing of any recommendations made regarding land use and zoning, and shall timely provide copies of this written notice to other appropriate tribal departments, agencies, offices, and entities.

(g) Access

(1) To the extent consistent with applicable tribal land use and zoning codes, and subject to the approval of the Department, the Cultural Plants Program shall develop a process for issuing permits that provide access to Cultural Plants. The permit process shall ensure:

(A) that access to Category One Cultural Plants is limited to traditional tribal healers and medicine people or their designated assistants;

(B) that access to Category Two Cultural Plants is limited to traditional tribal healers, medicine people, and spiritual leaders, or their designated assistants; and,

(C) that access to Category Three Cultural Plants is limited to tribal members, including tribal healers, medicine people, spiritual leaders, and their designated assistants.

(2) The Cultural Plants Program may develop written rules and regulations to implement the access to Cultural Plants provisions in this Section; provided, that any such rules and regulations are ineffective unless approved by the Tribal Council or the Department pursuant to a valid delegation of rule making authority on this matter.

(3) Rules and regulations to implement the access to Cultural Plants provisions in this Section may include but shall not be limited to:

(A) permit applications; authorized permit fees; permit duration; permit exemptions; and, conditions for modifying, suspending, or revoking permits;

(B) limits and prohibitions on the manner, means, and methods of gathering, collecting, and harvesting Cultural Plants;

(C) limits and prohibitions on the location, season, and the length or time of day for gathering, collecting, and harvesting Cultural Plants;

(D) limitations and prohibitions on the size and quantity of Cultural Plants gathered, collected, and harvested; and,

(E) limitations and prohibitions on the commercial use, sale, trade, barter, or other for-profit transaction of Cultural Plants.

(4) In exercising their access rights under this Section, tribal members shall respect the private property rights of landowners.

(h) Adverse effects

(1) The Cultural Plants Program shall receive and review all notices of proposed activities received from the Cultural Sites Program. The Cultural Plants Program shall promptly determine whether the proposed activity will have any adverse effect on Cultural Plants. The Cultural Plants Program shall promptly report the results of this determination to the Cultural Sites Program. The Cultural Plants Program may make recommendations consistent with the intents and purposes of this Code to the Cultural Sites Program about tribal activity permits, including terms and conditions thereto, issued under the Cultural Sites Program.

(2) Tribal members shall exercise their hunting, fishing, gathering, camping, recreational, farming, grazing, pasturing, forestry, and other land use rights only in a manner consistent with the provisions of this Code regarding Cultural Plants.

(3) All persons knowing of any adverse effects to Cultural Plants shall promptly report such knowledge to the Cultural Plants Program.

(4) The Cultural Plants Program shall investigate all reports of adverse effects to Cultural Plants. All such investigations shall be documented in writing.

(5) Subject to the approval of the Department, the Cultural Plants Program may recommend and seek the assistance of the Tribal Police, the Tribal Natural Resources Department, the Tribal Forestry Department, the Sicangu Oyate Land Use Office, the Tribal Land Use and Environment Commission, the Tribal Attorney, and the US Attorney to address potential adverse effects to Cultural Plants.

(i) Recovery plans. Subject to the approval of the Department, the Cultural Plants Program may develop and implement recovery plans for the preservation, protection, and management of tribal Cultural Plants. In developing and implementing such recovery plans, the Cultural Plants Program shall give priority to endangered and threatened tribal Cultural Plants. In developing and implementing such recovery plans, the Cultural Plants Program shall take advantage of federal plant protection and related programs open to tribes through federal agencies including but not limited to the Department of the Interior, the Department of Agriculture, and the Environmental Protection Agency.


CULTURAL SITES


Section 401. Cultural Sites

(a) Cultural Sites Program. There is hereby established within the Department a Cultural Sites Program.

(b) Professional staff. The Professional Staff of the Cultural Sites Program shall have knowledge of and experience with traditional tribal and current methods and techniques for identifying, preserving, protecting, restoring, improving, and maintaining Cultural Sites.

(c) General Duties and Responsibilities. The Cultural Sites Program:

(1) Shall serve as the principal advisor to the Department and the Tribal Council about the identification, preservation, protection, restoration, improvement, and maintenance of Cultural Sites;

(2) Shall prepare reports on Cultural Sites as directed by the Department;

(3) Shall encourage training and education of and may provide training, education, and technical assistance to employees of the Tribe and to tribal members on the Cultural Sites Program;

(4) Shall encourage tribal members to become informed about and involved in the Cultural Sites Program;

(5) Subject to the approval of the Department, may publicly post all or any part of this Code regarding Cultural Sites, and any policies, procedures, or other measures regarding Cultural Sites developed and approved under this Code;

(6) Shall recommend to the Department any cooperative agreements regarding Cultural Sites with the federal, state, and other tribal governments or their agencies or political subdivisions that are necessary or advisable to implement the provisions of this Code; and,

(7) Shall develop and recommend to the Department any policies, procedures, or other measures to preserve, protect, and manage Cultural Sites consistent with this Code.

(d) Survey. The Cultural Sites Program:

(1) Shall develop plans for surveying Tribal Territory to determine the nature and extent of Cultural Sites within Tribal Territory;

(2) Shall prepare a schedule for surveying lands within Tribal Territory that are likely to contain Cultural Sites;

(3) Shall conduct surveys of lands within Tribal Territory to determine whether and where any Cultural Sites exist;

(4) May use as a guide but shall not be bound by any state survey standards in planning, scheduling, and conducting the surveys provided for in this Section, and may use as a guide but shall not be bound by any federal survey standards in planning, scheduling, and conducting the surveys unless required by federal law; and,

(5) May use qualified consultants in planning, scheduling, and conducting the surveys provided for in this Section.

(e) Inventory. The Cultural Sites Program:

(1) Shall develop an inventory, which may be an electronic data base, of all Cultural Sites within Tribal Territory. In developing such inventory, the Cultural Sites Program shall rely on the surveys provided for by this Section and may use tribal community, spiritual, or traditional leaders. In developing such inventory, the Cultural Sites Program may use oral tradition;

(2) Shall develop a map, which may be electronically generated, that shows the location of all Cultural Sites in the inventory;

(3) Shall retain, maintain, and keep current the inventory, map, and any supporting data thereto;

(4) Shall provide copies of the inventory and the map to all tribal departments, agencies, offices, and entities;

(5) Subject to the approval of the Department, may limit or prohibit access by the general public to the inventory, map, and any other information about Cultural Sites, including their location and meaning, if such limitation or prohibition is in the interest of preserving, protecting, or managing Cultural Sites consistent with this Code or is otherwise in the interest of the Tribe;

(6) Shall be familiar with the American Indian Religious Freedom Act, Pub. L. No. 95-341, 92 Stat. 469, 42 U.S.C. § 1996, and all amendments thereto, and Executive Order No. 13007, entitled Indian Sacred Sites, 61 Fed. Reg. 26, 771 (May 24, 1996), and shall ensure that tribal members and tribal employees engaged in official business have access to Cultural Sites;

(7) May erect and maintain markers to identify or commemorate Cultural Sites;

(8) May develop rules and regulations to restrict access by the general public to Cultural Sites; provided, that any such rules and regulations are ineffective unless approved by the Tribal Council or the Department pursuant to a valid delegation of rule making authority on this matter; and,

(9) Subject to the approval of the Department, may make nominations of Cultural Sites for inclusion in the National Register of Historic Places under the NHPA.

(f) Activity Permits

(1) Subject to the approval of the Department, the Cultural Sites Program shall develop notice, response, application, permit, progress report, and any other administrative forms to be used under this Section.

(2) All persons and all tribal departments, agencies, offices, and entities shall take into consideration the possible effects of proposed activities on Cultural Sites before initiating or conducting the activities.

(3) All persons and all tribal departments, agencies, offices, and entities shall give notice in writing to the Cultural Sites Program of proposed activities which may affect Cultural Sites before initiating or conducting such activities. The Cultural Sites Program shall promptly notify the Department of any and all notices received under this Section. In addition, the Cultural Sites Program shall promptly notify the Cultural Plants Program and the Cultural Remains Program of any and all notices received under this Section. During this time, no activity shall occur.

(4) The Cultural Sites Program shall receive and investigate promptly any proper notices of proposed activities under this Section. The Cultural Sites Program shall also review any determinations made by the Cultural Plants Program and the Cultural Remains Program regarding notices of proposed activities. The Cultural Sites Program shall coordinate its investigation and review with any investigations and reviews required under other authority of tribal law or federal law as appropriate.

(5) Within thirty (30) days of proper notice given under this Section, the Cultural Sites Program must respond in writing to the Department and the notice giver about whether a permit under this Section is required for an activity; provided, that the Cultural Sites Program may seek up to an additional thirty (30) days if it determines that:

(A) a proposed activity may affect land or an area within Tribal Territory that has not been surveyed pursuant to this Section; or,

(B) an opportunity for comment from tribal members, communities, or spiritual or traditional leaders is necessary or advisable.

During this time, no activity shall occur.

(6) Subject to the approval of the Department, the Cultural Sites Program may direct an emergency and prompt survey of the land or area within Tribal Territory that a proposed activity may affect. During this time, no activity shall occur. Upon conclusion of the emergency survey, the Cultural Sites Program shall give prompt notice in writing to the Department and the notice giver about whether a permit under this Section is required for an activity.

(7) If the Cultural Sites Program responds in writing to a notice giver that a permit under this Section is not required for an activity, because no Cultural Sites will be adversely affected, the notice giver has no further obligations under this Section, but shall comply with all other applicable provisions of this Code.

(8) After giving proper notice, and after a proper response from the Cultural Sites Program that it has determined that an activity requires a permit under this Section, all persons and all tribal departments, agencies, offices, and entities have thirty (30) days within which to file an application with the Cultural Sites Program for a permit under this Section. The Cultural Sites Program shall promptly notify the Department of all completed applications received under this Section. During this time, no activity shall occur.

(9) The Cultural Sites Program shall review all completed applications filed under this Section. During this time, no activity shall occur.

(10) Within ten (10) days of receipt of a completed application, the Cultural Sites Program shall determine whether to issue a permit under this Section. Denials of permits shall be made in writing to the applicant.

(11) Subject to the approval of the Department, the Cultural Sites Program may attach written conditions consistent with this Code to permits issued under this Section before a permit is issued. Such conditions may include the use of tribal members to serve on activities, when and how activities may be conducted, and any other means or alternatives to avoid, minimize, or mitigate adverse effects to Cultural Sites. No activity shall occur unless and until a permit is received.

(12) Permits issued under this Section are good for one year from the date of issuance unless the permit otherwise provides.

(13) Permits issued under this Section are non-transferrable to any other person or any other tribal department, agency, office, or entity.

(14) After receiving proper notice under this Section, and subject to the approval of the Department, the Cultural Sites Program may grant temporary permits for up to sixty (60) days, during which time activities may be initiated or conducted.

(15) All persons and all tribal departments, agencies, offices, or entities granted a permit or a temporary permit under this Section must report in writing every thirty (30) days to the Cultural Sites Program on the progress of the activity for which a permit or temporary permit was issued and on compliance with the permit, any terms or conditions attached thereto, and this Code.

(16) Subject to the approval of the Department, the Cultural Sites Program may modify, suspend, or revoke in writing permits issued under this Section for good cause shown after providing notice in writing to the permit holder and a reasonable opportunity for the permit holder to respond.

(17) The Cultural Sites Program may issue a written emergency suspension of any permit or temporary permit issued under this Section without notice or an opportunity to respond if the Cultural Sites Program determines that continuation of activities under the permit is not in the best interests of the Tribe. The Department shall promptly review any emergency suspensions and shall report promptly the results of such review to the Tribal Council.

(18) The following activities are exempt from the permit provisions of this Section unless otherwise determined by the Cultural Sites Program with the approval of the Department:

(A) The legitimate practice by tribal members of traditional tribal ceremonial, religious, sacred, or spiritual activities;

(B) Maintenance of existing roads, driveways, rights-of-ways, and easements such as grading, snow plowing, and cleaning and clearing;

(C) Additions or improvements to existing homes, buildings, and structures that are less than five hundred square feet in area; and,

(D) Landscaping, gardening, and fencing of home sites of 2.5 acres or less in area, or business sites of 10 acres or less in area.

(19) This Code is intended to regulate the excavation and removal of archaeological resources on Indian lands as provided in ARPA such that the Tribal Activity Permit provisions replace the federal permit provisions.

(20) The Cultural Sites Program may develop written rules and regulations to implement this permit Section; provided, that such rules and regulations are ineffective unless and until approved by the Tribal Council or by the Department pursuant to a valid delegation of rule making authority on this matter.

(g) Adverse effects

(1) The use of metal detectors or similar devices or collection methods is hereby deemed to irreparably and adversely affect Cultural Sites, and the use of such detectors, devices, or methods is prohibited.

(2) Tribal members shall exercise their hunting, fishing, gathering, camping, recreational, farming, grazing, pasturing, forestry, and other land use rights only in a manner consistent with the provisions of this Code regarding Cultural Sites.

(3) All persons knowing of any adverse effects to Cultural Sites shall promptly report such knowledge to the Cultural Sites Program.

(4) The Cultural Sites Program shall investigate promptly all reports of adverse effects to Cultural Sites. All such investigations shall be documented in writing.

(5) Subject to the approval of the Department, the Cultural Sites Program may recommend and seek the assistance of the Tribal Police, the Tribal Natural Resources Department, the Tribal Forestry Department, the Sicangu Oyate Land Use Office, the Tribal Land Use and Environment Commission, and the Tribal Attorney or Tribal Prosecutor to address potential violations of the provisions of this Code regarding Cultural Sites.

(h) Federal Permits

(1) The Cultural Sites Program shall understand ARPA and NHPA and shall support the administration and enforcement of ARPA and NHPA.

(2) The Cultural Sites Program shall receive and review all federal permits applied for or issued under ARPA or NHPA for activities within Tribal Territory or that otherwise affect Cultural Resources. Subject to the approval of the Department, the Cultural Sites Program shall actively participate in the ARPA and NHPA permitting processes and shall ensure that potential permittees, permittees, and federal officials comply with ARPA and NHPA with respect to notice to the Tribe and requests for tribal consent.

(3) When a valid request for tribal consultation or tribal consent for a permit under ARPA or NHPA is received, the Cultural Sites Program shall timely recommend to the Department whether tribal consultation should occur and whether tribal consent should be granted, and whether any terms or conditions should be attached thereto. The Department shall seek approval of the Tribal Council to tribal consent, and no tribal consent shall be effective unless and until approved by the Tribal Council.

(i) Inspection. The Cultural Sites Program shall regularly inspect Cultural Sites for preservation, maintenance, and improvement.

(j) Tribal Historic Preservation Program. Subject to the approval of the Department, the Cultural Sites Program may establish a Tribal Historic Preservation Program to assume the functions of a State Historic Preservation Program under the NHPA, and may designate a Tribal Historic Preservation Officer to administer the Tribal Historic Preservation Program consistent with this Code and the NHPA.

(k) Restoration plans. In addition to and notwithstanding the provisions of this Section regarding a Tribal Historic Preservation Program, subject to the approval of the Department, the Cultural Sites Program may develop and implement restoration plans for the preservation, improvement, and management of Cultural Sites. If such plans are developed, the Cultural Sites Program shall review them annually and revise them accordingly.


CULTURAL REMAINS


Section 501.

(a) Cultural Remains Program. There is hereby established within the Department a Cultural Remains Program.

(b) Professional staff. The Professional Staff of the Cultural Remains Program shall have knowledge of and experience with traditional tribal and current methods and techniques for identifying, preserving, protecting, and repatriating Cultural Remains. The Professional Staff of the Cultural Remains Program also shall be familiar with NAGPRA and all amendments thereto.

(c) General Duties and Responsibilities. The Cultural Remains Program:

(1) Shall serve as the principal advisor to the Department and the Tribal Council about the identification, preservation, protection, and repatriation of Cultural Remains;

(2) Shall prepare reports on Cultural Remains as directed by the Department;

(3) Shall encourage training and education of and may provide training, education, and technical assistance to employees of the Tribe and tribal members on the Cultural Remains Program;

(4) Shall encourage tribal members to become informed about the Cultural Remains Program. Such encouragement shall include but not be limited to encouraging tribal members possessing Cultural Remains to return them to Tribe in the form of a donation in order to prevent the dispersion and loss of tribal culture;

(5) Subject to the approval of the Department, may publicly post all or any part of this Code regarding Cultural Remains, and any policies, procedures, or other measures regarding Cultural Remains developed and approved under this Code;

(6) Shall recommend to the Department any cooperative agreements regarding Cultural Remains with the federal, state, and other tribal governments, and with private entities, including private landowners, that are necessary or advisable to implement the provisions of this Code; and,

(7) Shall develop and recommend to the Department any policies, procedures, or other measures to identify, preserve, protect, and repatriate Cultural Remains consistent with this Code.

(d) Discovery

(1) Subject to the approval of the Department, the Cultural Remains Program shall develop report, notice, claim, and any other administrative forms to be used under this Section.

(2) All persons and all tribal departments, agencies, offices, and entities shall report promptly to the Cultural Remains Program the discovery of any Cultural Remains. The Cultural Remains Program shall promptly notify the Department of any and all reports of discovery received under this Section.

(3) The Cultural Resources Program shall receive all notices to the Tribe of discovery of Cultural Remains under NAGPRA. The Cultural Remains Program shall promptly notify the Department of any and all notices of discovery received under NAGPRA.

(4) The Cultural Remains Program shall investigate promptly any Cultural Remains reported to be discovered under this Section or under NAGPRA. The Cultural Remains Program shall document in writing this investigation.

(5) If adverse effect or the threat of adverse effect to discovered Cultural Remains is immediate, the Cultural Remains Program, subject to the approval of the Department, may take emergency measures to protect the Cultural Remains, including their removal. Other than such emergencies, the Cultural Remains Program shall not engage in or allow any handling, study, or photographs of, or any adverse effects to, discovered Cultural Remains.

(6) Subject to the approval of the Department, the Cultural Remains Program may modify, suspend, or halt any and all activities that might adversely affect discovered Cultural Remains. If necessary or advisable, the Cultural Remains Program shall coordinate with the Cultural Sites Program on this matter.

(7) The Cultural Remains Program shall make reasonable and good faith efforts to determine whether discovered Cultural Remains are ancestors of the Tribe. If discovered Cultural Remains are not or appear not to be ancestors of the Tribe, the Cultural Remains Program shall contact the federal, state, or any other tribal government to report the discovered Cultural Remains.

(8) If discovered Cultural Remains are or appear to be ancestors of the Tribe, the Cultural Remains Program shall make reasonable and good faith efforts to identify any known living descendants or relatives of the discovered Cultural Remains, and shall provide prompt and adequate written notice to any known living descendants or relatives of the discovered Cultural Remains. If these efforts and notice fail, the Cultural Remains Program may give written notice to tribal members generally regarding discovered Cultural Remains.

(9) Within thirty (30) days after receipt of proper notice under this Section, tribal members, descendants, or relatives may assert in writing to the Cultural Remains Program a claim of individual ownership for discovered Cultural Remains.

(10) Within sixty (60) days after receipt of a proper claim of individual ownership under this Section, and subject to the approval of the Department, the Cultural Remains Program shall determine in writing the validity of any individual ownership claim for discovered Cultural Remains.

(11) Cultural Remains determined to be of valid individual ownership shall be returned promptly to the claiming tribal members, descendants, or relatives.

(12) Cultural Remains unclaimed under this Section or determined not to be of valid individual ownership shall be deemed the property of the Tribe.

(e) Repatriation. The Cultural Remains Program:

(1) Shall understand NAGPRA and shall support the administration and enforcement of NAGPRA;

(2) Shall develop tribal rules and regulations to implement NAGPRA, including, but not limited to, rules and regulations:

(A) to request Cultural Remains inventories;

(B) for tribal consultation with federal agencies, the governments of other tribes, and other appropriate entities regarding Cultural Remains;

(C) to establish cultural affiliation of Cultural Remains; and,

(D) to establish right of possession of Cultural Remains;

provided, that any rules and regulations are ineffective unless and until approved by the Tribal Council or the Department pursuant to a valid delegation of rule making authority;

(3) Shall receive all notices and inventories of Cultural Remains, and shall promptly notify the Department of receipt of such notices and inventories;

(4) Shall review and monitor all inventories of all Cultural Remains. In reviewing such inventories, the Cultural Remains Program may use tribal community, spiritual, or traditional leaders;

(5) Shall investigate the possibility of repatriation any Cultural Remains, and, subject to the approval of the Department, shall determine whether any Cultural Remains should be requested for return and shall request such return;

(6) May provide technical assistance to individual tribal members in their repatriation claims;

(7) Shall coordinate and supervise the return of all Cultural Remains;

(8) Shall determine, in accordance with the provisions of the Section of this Code regarding Discovery, whether any of the returned Cultural Remains are of valid individual ownership, and if so, shall return such Cultural Remains promptly to the claiming tribal members, descendants, or relatives; and,

(9) Subject to the approval of the Department, may recommend and seek the assistance of the Tribal Attorney or the US Attorney to initiate administrative or legal action to enforce NAGPRA and the provisions of this Code.

(f) Disposition. Subject to the approval of the Department, the Cultural Resources Program shall develop procedures for the proper disposition, placement, and curation, of any unclaimed Cultural Remains, and may prepare an internal plan for the adequate custody, safekeeping, and maintenance by the Tribe of unclaimed Cultural Remains. In developing such procedures and plan, the Cultural Remains Program may use tribal community, spiritual, and traditional leaders.

(g) Reinterment

(1) If conditions favor preservation of unclaimed Cultural Remains in situ, then the Department shall coordinate reinterment in situ.

(2) If conditions do not favor preservation of unclaimed Cultural Remains in situ, then the Department may coordinate the removal of the remains and their reinterment elsewhere.

(3) Tribal community, spiritual, and traditional leaders may assist any reinterment of unclaimed Cultural Remains.

(4) Reinterment of unclaimed Cultural Remains shall occur as soon as reasonably possible, but, to avoid mistakes or misjudgment, reinterment shall not be rushed.

(5) Reinterment shall keep all unclaimed Cultural Remains together as much as possible.

(h) Adverse effects

(1) The Cultural Remains Program shall receive and review all notices of proposed activities received from the Cultural Sites Program. The Cultural Remains Program shall promptly determine whether the proposed activity will have any adverse effect on Cultural Remains. The Cultural Remains Program shall promptly report the results of this determination to the Cultural Sites Program. The Cultural Remains Program may make recommendations consistent with the intents and purposes of this Code to the Cultural Sites Program about tribal activity permits, including terms and conditions thereto, issued under the Cultural Sites Program.

(2) The use of metal detectors or similar devices or collection methods is hereby deemed to irreparably and adversely affect Cultural Remains, and the use of such detectors, devices, or methods is prohibited.

(3) All persons knowing of any adverse effects to Cultural Remains shall promptly report such knowledge to the Cultural Remains Program.

(4) The Cultural Remains Program shall investigate all reports of adverse effects to Cultural Remains. All such investigations shall be documented in writing.

(5) Subject to the approval of the Department, the Cultural Remains Program may recommend and seek the assistance of the Tribal Police or the Tribal Attorney to address potential violations of the provisions of this Code regarding Cultural Remains.


CULTURAL RECORDS


Section 601. Cultural Records

(a) Cultural Records Program. There is hereby established within the Department a Cultural Records Program.

(b) Professional Staff. The Professional Staff of the Cultural Records Program shall have knowledge of and experience with current methods and techniques for identifying, collecting, preserving, managing, and making available Cultural Records.

(c) General Duties and Responsibilities. The Cultural Records Program:

(1) Shall serve as the principal advisor to the Department and the Tribal Council about the identification, collection, preservation, management, and availability of Cultural Records;

(2) Shall prepare reports on Cultural Records as directed by the Department;

(3) Shall encourage training and education of and may provide training, education, and technical assistance to employees of the Tribe and to tribal members on the Cultural Records Program;

(4) Shall encourage tribal members to become informed about and involved in the Cultural Records Program;

(5) Subject to the approval of the Department, may publicly post all or any part of this Code regarding Cultural Records, and any policies, procedures, or other measures regarding Cultural Records developed and approved under this Code;

(6) Shall recommend to the Department any cooperative agreements regarding Cultural Records with the federal, state, and other tribal governments or their agencies or political subdivisions that are necessary or advisable to implement the provisions of this Code; and,

(7) Shall develop and recommend to the Department any policies, procedures, or other measures to preserve, protect, and manage Cultural Records consistent with this Code.

(d) Tribal Archivist

(1) There is hereby established within the Department's Cultural Records Program a position of Tribal Archivist. The Tribal Archivist shall be the official custodian and coordinator of Cultural Records, and shall administer the Cultural Records Program. The Tribal Archivist shall be a person qualified by recognized training or experience in Cultural Records administration and management.

(2) The duties of the Tribal Archivist shall include but not be limited to:

(A) collecting and acquiring Cultural Records;

(B) receiving and accepting Cultural Records for custody, including gifts and transfers of Cultural Records;

(C) arranging, classifying, and cataloging Cultural Records;

(D) storing, maintaining, and managing Cultural Records;

(E) developing and maintaining a Cultural Records inventory;

(F) repairing, servicing, and reproducing Cultural Records;

(G) making available and encouraging the use of Cultural Records;

(H) publishing and distributing publications of public interest about Cultural Records;

(I) developing a strategic plan that includes goals and recommendations for Cultural Records;

(J) developing Cultural Records use and loan policies;

(K) lending Cultural Records to libraries, museums, and educational institutions, and,

(L) seeking grants and other funding for Cultural Records projects.

(3) Subject to the approval of the Department or the Cultural Records Advisory Board, the Tribal Archivist is authorized to establish restrictions or prohibitions to the access and on the use of Cultural Records that are necessary or advisable to meet the intents, purposes, and policies of this Code.

(4) Subject to the approval of the Department or the Cultural Records Advisory Board, the Tribal Archivist is authorized to adopt an official seal and to authenticate and certify by the official seal copies or reproductions of Cultural Records. The Tribal Archivist is authorized to charge reasonable fees for the costs of such copies, reproductions, authentication, and certification.

(5) Subject to the approval of the Department or the Cultural Records Advisory Board, the Tribal Archivist is authorized to recommend and seek the assistance of the Tribal Police or the Tribal Attorney to address potential violations of the provisions of this Code regarding Cultural Records.

(6) The Tribal Archivist, the Cultural Records Program, the Cultural Records Advisory Board, the Department, and the Tribe are not liable for any infringement of copyright or analogous rights arising out of the custody, use, or reproduction of Cultural Records.

(e) Cultural Records Advisory Board

(1) There is hereby established a Cultural Records Advisory Board. The Cultural Records Advisory Board shall assist the Tribal Archivist in carrying out the purposes of this Section. The Cultural Records Advisory Board shall consist of at least seven members, including the Tribal Archivist, who shall chair the Board. Subject to the approval of the Tribal Council, the Tribal Archivist and the Department shall determine the membership of the Cultural Records Advisory Board. The members of the Board shall have knowledge of or experience with Cultural Records. Board Members shall receive no compensation for their service, but shall be reimbursed for their actual and necessary expenses incurred in the performance of their duties.

(2) The Cultural Records Advisory Board shall assist in carrying out the purposes of this Section by:

(A) adopting written procedures to govern its activities;

(B) calling and conducting at least annual meetings;

(C) advising the Tribal Archivist on Cultural Records conditions, needs, planning, and goal setting;

(D) seeking funding for Cultural Records projects, including reviewing or developing grant proposals for such projects;

(E) advising the Tribal Archivist on Cultural Records projects and publications;

(F) reviewing reports by the Tribal Archivist;

(G) coordinating and facilitating cooperation among the Cultural Records Program and other tribal departments, agencies, offices, and entities; and,

(H) promoting public understanding of the role and value of Cultural Records.


CULTURAL RESEARCH


Section 701. Cultural Research

(a) Cultural Research Office. There is hereby established within the Department a Cultural Research Office.

(b) Professional Staff. The Professional Staff of the Cultural Research Office shall have knowledge of and experience with developing and administering research policies.

(c) General Duties and Responsibilities. The Cultural Research Office:

(1) Shall serve as the principal advisor to the Department and the Tribal Council about Cultural Research;

(2) Shall prepare reports on Cultural Research as directed by the Department;

(3) Shall encourage training and education of and may provide training, education, and technical assistance to employees of the Tribe and to tribal members on the policies of the Cultural Research Office;

(4) Shall encourage tribal members to become informed about the policies of the Cultural Research Office;

(5) Subject to the approval of the Department, may publicly post all or any part of this Code regarding Cultural Research, and any policies, procedures, or other measures regarding Cultural Research developed and approved under this Code;

(6) Shall recommend to the Department any cooperative agreements regarding Cultural Research with the federal, state, and other tribal governments or their agencies or political subdivisions that are necessary or advisable to implement the provisions of this Code; and,

(7) Shall develop and recommend to the Department any policies, procedures, or other measures regarding Cultural Research consistent with this Code.

(d) Research Permits. All persons proposing to conduct Cultural Research within Tribal Territory shall first apply for and obtain a permit from the Cultural Research Office. Subject to the approval of the Department, the Cultural Research Office shall develop appropriate application, permit, progress report, and any other administrative forms to be used under this Section. At a minimum, the following information shall be provided by an applicant researcher in support of an application for a Research Permit:

(1) Name(s), addresses, and contact information of any and all researchers;

(2) Effective start and ending dates of the research project;

(3) Description of the nature of the research being proposed, including the project hypothesis, intent, methodology, goals, and objectives; the type of information that will be sought from individuals; other participation involving individuals; the type of information that will be sought concerning Cultural Resources; and, where and how any information sought will be obtained, including the disclosure of any intended or possible use of photographic, video, sound, and any other recording devices;

(4) Description of other related research proposed or previously conducted;

(5) Description of research funding or other financial support or sponsorship received or sought from any and all public or private sources, and an explanation of any limits on confidentiality of research results as a result of such funding;

(6) Justification why the Cultural Research should be conducted at this time;

(7) How the Cultural Research will be disclosed or explained to tribal communities and individuals participating in or affected by the research;

(8) Expected benefits of the proposed Cultural Research, including immediate and long range benefits to: the science or discipline represented in the research; the human subjects or participants of the research; and, the Tribe;

(9) Risks associated with or inherent in the Cultural Research, including risks to the physical or psychological well-being of individual human subjects or participants; risks of adverse effects to Cultural Resources; and, a detailed explanation of the steps that will be taken to minimize the risks, and the ameliorative and curative steps that will be taken in the event the research causes actual harm to participants or others or causes adverse effects to Cultural Resources;

(10) Assurances of confidentiality as appropriately applied to individuals, tribal communities, the Tribe, and Cultural Resources, including but not limited to: assurances of confidentiality for the life of the project; how confidentiality will be protected after the project and for how long; where raw data and other materials will be deposited and stored at the completion of the project; and, the circumstances in which confidentiality may be limited or breached by legal or contractual obligations of the researcher; and,

(11) How and where the Cultural Research will be used, presented, and disseminated, including whether the research will be used for commercial or for profit purposes.

(e) Notice to other programs. The Cultural Research Office shall promptly notify the Cultural Plants Program, the Cultural Sites Program, the Cultural Remains Program, and the Department of proposed Cultural Research which may affect Cultural Plants, Cultural Sites, or Cultural Remains. The Cultural Plants Program, the Cultural Sites Program, and the Cultural Remains Program shall have a reasonable opportunity to comment on Research Permit applications before a Research Permit is issued.

(f) Permit Review Protocol. Subject to the approval of the Department, the Cultural Research Office shall develop a Protocol for reviewing Cultural Research permit applications. In developing the Protocol, the Cultural Research Office may use tribal community, spiritual, and traditional leaders and a Research Review Committee. To the extent consistent with the Confidentiality provisions and other provisions of this Code, the Protocol should be available upon request from the Cultural Research Office to those who apply for Cultural Research permits.

(g) Permit Review Process. The Cultural Research Office shall review all completed applications for Research Permits in accordance with the Protocol. The Cultural Research Office shall also review any determinations or comments by the Cultural Plants Program, the Cultural Sites Program, and the Cultural Remains Program made on Research Permit applications. In reviewing Research Permit applications, the Cultural Research Office may use tribal community, spiritual, and traditional leaders and a Research Review Committee. Within a reasonable time, the Cultural Research Office shall notify applicants in writing whether a Research Permit has been granted or denied.

(h) Conditions. Subject to the approval of the Department, the Cultural Research Office may attach written conditions consistent with this Code to Research Permits issued under this Section before a permit is issued. Such conditions may include the use of tribal members to assist with research, when and how research may be conducted, and any other means or alternatives to avoid, minimize, or mitigate adverse effects to Cultural Resources.

(i) Fees. Subject to the approval of the Department, the Cultural Research Office is authorized to charge reasonable fees in connection with the Cultural Research Permit and Review process.

(j) Non-transferability. Research Permits issued under this Section are non-transferable to any other person.

(k) Research Contracts. Notwithstanding and in addition to the provisions of this Section regarding Research Permits, researchers may be required to sign a Research Contract as a condition of conducting Cultural Research. Subject to approval of the Department, the Cultural Resources Office is authorized to develop and negotiate such Research Contracts; provided, that no Research Contract shall be effective unless and until approved by the Tribal Council.

(l) Reports. Researchers conducting Cultural Research shall provide regular written reports to the Cultural Research Office on the progress of the research, and shall provide copies of all draft and final research products to the Cultural Research Office. The Cultural Research Office shall have a reasonable opportunity to review and comment on all Cultural Research progress reports, draft products, and final products.

(m) Substantial changes. Research Permit holders must promptly notify the Cultural Research Office of any substantial changes in research projects. The Cultural Research Office has the right to modify, suspend, or revoke Research Permits where substantial changes are made in research projects. The Cultural Research Office shall notify Research Permit holders in writing of any modifications, suspensions, or revocations of permits.

(n) Confidentiality. The Cultural Research Office has the right to exclude from publication and / or to have kept confidential any information concerning Cultural Resources.

(o) Involvement of Tribe. All Cultural Research shall provide appropriate employment, training, and other involvement opportunities for tribal departments, agencies, offices, entities, and members.

(p) Copies to Tribe. All researchers must agree in writing to provide copies of all Cultural Research to the Cultural Research Office. Complete copies of all Cultural Research, including any records pertaining thereto, shall be provided to the Cultural Research Office. The Cultural Research Office shall work with the Cultural Records Program to properly manage copies of all Cultural Research.

(q) Research Review Committee. Subject to the approval of the Department, the Cultural Research Office may establish a Research Review Committee to assist it in implementing the provisions of this Section of this Code.

(r) Exempt research. Cultural Research proposed or conducted by tribal members which involves family history, tribal history, or which is solely for personal or family use and not for profit is exempt from the provisions of this Section of this Code.

(s) Rules and regulations. The Cultural Research Office may develop written rules and regulations to implement this Section; provided, that such rules and regulations are ineffective unless and until approved by the Tribal Council or by the Department pursuant to a valid delegation of rule making authority on this matter.


VIOLATIONS


Section 801. Violations. The following are violations of this Code which may be addressed by civil remedies or criminal penalties as allowed by law.

(a) Disclosure. No person and no tribal department, agency, office, or entity shall disclose the nature, location of, or any other information about Cultural Resources in violation of this Code.

(b) Notice. No person and no tribal department, agency, office, or entity shall fail to notify the Department as required by this Code regarding any adverse effect or any potential adverse effect on Cultural Resources.

(c) Expenditures. Neither the Tribal Council nor any tribal departments, agencies, offices, and entities shall authorize the expenditure of any funds for any activity unless and until the activity is in compliance with this Code.

(d) Activities. No person and no tribal department, agency, office, or entity shall initiate or conduct any activity for which a permit is required unless and until a proper permit has been issued by the Department. No person or any tribal department, agency, office, or entity shall otherwise cause any adverse effect to any Cultural Resources.

(e) Permits. No person and no tribal department, agency, office, or entity shall fail to fully comply with all permits properly issued by the Department, including any terms or conditions attached thereto. No person and no tribal department, agency, office, or entity shall knowingly disobey, disregard, or not comply with a permit modified, revoked, or suspended by the Department.

(f) Sales. No person and no tribal department, agency, office or entity shall sell, purchase, use for profit, acquire, barter, conceal, deliver, exchange, possess, receive, ship, traffic, transfer, transport, or offer to sell, purchase, or exchange any Cultural Resources of the Tribe..

(g) Regulations. No person and no tribal department, agency, office, or entity shall violate any rule or regulation promulgated pursuant to authority of this Code.

(h) Solicitations. No person and no tribal department, agency, office, or entity shall solicit another person or any tribal department, agency, office, or entity to commit or otherwise cause to be committed any violation defined in this Code.


ENFORCEMENT AND REVIEW


Section 901. Enforcement. The provisions of this Code and any rules, regulations, or permits validly issued pursuant hereto, shall be enforced by the Department, the Tribal Game, Fish, and Parks Department, the Tribal Forestry Department, the Sicangu Oyate Land Use Office, the Tribal Land Use and Environment Commission, the Tribal Police, the Tribal Attorney, the Tribal Prosecutor, the US Attorney, or any other law enforcement agency or official duly authorized to enforce this Code.


Section 1001. Judicial Review

(a) Court Jurisdiction. The Tribal Court shall have original civil and criminal jurisdiction over any actions arising under this Code. The Tribal Court shall have the authority to issue such orders as may be necessary to enforce the provisions of this Code.

(b) Review. All discretionary decisions of the Department are subject to review by the Tribal Court within thirty (30) days of final decision. In event of judicial review, the Tribal Council shall provide the Department with qualified and independent legal counsel.

(c) Civil Actions. The Tribe may bring a civil action against any person who is alleged to have violated this Code. There is no intent in this Code to create a private right of action.

(d) Civil Remedies. After notice and an opportunity to be heard, any person found by a court of competent jurisdiction to have violated this Code may be subject to the following civil remedies:

(1) the modification, suspension, or revocation of any permit issued under this Code; provided that, the Tribe shall not be liable for the payment of any compensation, reimbursement, or damages in connection with the modification, suspension, or any revocation of any permit issued under this Code;

(2) restraining orders, injunctions, and mandamus, including but not limited to the forfeiture, return, and restoration of Cultural Resources adversely affected;

(3) damages, including costs of enforcement proceedings and the return, restoration, or disposition of Cultural Resources involved;

(4) exclusion from Tribal Territory;

(5) attorneys' fees and costs to the prevailing party; and,

(6) all other non-punitive remedial relief.

(e) Criminal Actions. The Tribal Prosecutor shall be responsible for criminal prosecutions under this Code.

(f) Criminal Penalties. Tribal members and non-member Indians who knowingly violate this Code shall, upon conviction, be fined not more than $1000.00 or imprisoned for not more than one year, or both, per violation. Each violation of this Code shall be a separate offense. Criminal offenders may also be subject to civil remedies set forth in this Code.

(g) Monetary Damages and Penalties to Tribal Treasury. All monetary damages and penalties assessed under this Code shall be deposited in the Tribal Treasury and shall be used solely to implement this Code.

(h) Sovereign Immunity not Waived. Nothing in this Code is intended to be nor shall it be construed as a waiver of tribal sovereign immunity from suit.

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