2.65.405 CRITERIA FOR DETERMINING LINEAL DESCENT AND CULTURAL AFFILIATION WHEN REVIEWING A REPATRIATION CLAIM
(1) A lineal descendant is an individual tracing his or her ancestry directly and without interruption by:
(a) means of the traditional kinship system of the appropriate tribal or other cultural group; or
(b) the common law system of decendance to a known individual whose human skeletal remains or funerary objects are being requested under these rules.
(2) Cultural affiliation is a relationship of shared group identity that may be reasonably traced historically or anthropologically between a tribal group and an identifiable earlier tribe. It may also include a shared identity that can reasonably be traced historically between an individual and an identifiable individual lineal descendant or next of kin. All of the following requirements must be met to determine cultural affiliation between a claimant and the human remains or funerary objects:
(a) existence of an identifiable present-day Indian tribe; and
(b) evidence of the existence of an identifiable earlier group. Support for this requirement may include, but is not necessarily limited to evidence sufficient to:
(i) establish the identity and cultural characteristics of the earlier group; or
(ii) document distinct patterns of material culture manufacture and distribution methods for the earlier group; and
(c) evidence of the existence of a shared group identity that can be reasonably traced between the present-day Indian tribe and the earlier group. Evidence to support this requirement must establish that a present-day Indian tribe has been identified from prehistoric or historic times to the present as descending from the earlier group.
(3) A finding of cultural affiliation should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed and should not be precluded solely because of some gaps in the record.
(4) Evidence of a kin or cultural affiliation between a present-day individual, Indian tribe, and human remains or funerary objects must be established by using the following types of evidence:
(g) oral tradition;
(h) historical; or
(i) other relevant information or expert opinion.
History: 22-3-904, MCA, IMP, 22-3-903, 22-3-904, 22-3-912, MCA; NEW, 2013 MAR p. 785, Eff. 5/10/13.