W48(436)
Memorandum
To: Federal Agency and Museum Officials and Indian Tribe
and Native Hawaiian Organizations Representatives
From: Departmental Consulting Archeologist
Subject: Draft Recommendations regarding the Disposition of
Culturally Unidentifiable Human Remains and Associated
Funerary Object.
Section 8 (c)(5) of the Native American Graves Protection and
Repatriation Act (25 U.S.C. 3001 et seq.) requires the Review
Committee to recommend specific actions for developing a process
for the disposition of culturally unidentifiable Native American
human remains. The seven individuals on the committee have given
this matter great thought and have developed the enclosed draft
outlining their position and several options. The enclosed draft
is intended for wide circulation to elicit comments from Indian
tribes, Native Hawaiian organizations, museum, Federal agencies,
and national scientific and museum organizations. We also plan to
publish this draft in the Federal Register for broad public
comment.
Anyone interested in commenting on the committee's draft
recommendations should send written comments to:
The NAGPRA Review Committee
c/o Archeological Assistance Division
National Park Service
Box 37127, Suite 210
Washington DC, 20013-7127
Comments should be received by September 30, 1995 in order for
them to receive the committee's full consideration at their next
scheduled meeting. For additional information, please contact Dr.
C. Timothy McKeown at (202) 343-4101.
Enclosure
Call For Comments
Draft Recommendations By The
N.A.G.P.R.A. Review Committee
On The Disposition Of
Culturally Unidentifiable Native
American Remains
Under NAGPRA (25 U.S.C. 3007 (c)(5)) the Review Committee is
specifically charged with "compiling an inventory of culturally
unidentifiable human remains that are in the possession or
control of each Federal agency and museum and recommending
specific actions for developing a process for disposition of such
remains." What follows below is a draft of recommendations from
the Review
Committee to the Secretary in compliance with the mandate in
NAGPRA. This draft is intended for wide circulation to elicit
the comments, suggestions and opinions of members of Indian
tribes, Native Hawaiian organizations, scientific organizations,
and museums as described under 25 U.S.C. 3007 (e). We wish to
emphasize that these recommendations are preliminary and every
element is open to change depending on the comments of the
public.
In fulfilling their responsibility, the Review Committee makes
the following observations and recommendations:
1. Although the disposition of culturally "unidentifiable human
remains" is left open in NAGPRA, there is a firmly established
principle in the act that assigns responsibility for what happens
to human remains and associated funerary objects to lineal
descendants and culturally affiliated tribes. This general
principle should be followed in determining the disposition of
culturally "unidentifiable human remains" that are known to be
ancestral Native Americans. It is true that there are remains
and associated funerary objects in museums and Federal agencies
for which it is not possible to identify specific cultural
connections to any particular tribe today. However, such remains
and objects, no matter how ancient, are nevertheless Native
American, and they should be treated according to the wishes of
the Native American community. Ultimately, decisions about what
happens to the remains of Native American individuals from
anywhere in the United States and associated funerary objects
should rest in the hands of Native Americans. These decisions
can and should be informed by anthropological, archaeological,
historical, folkloric, biological, linguistic and spiritual
evidence, and nonNative Americans can and should be consulted
when appropriate in the decision making process. However, the
final decision should be made entirely by Native American people.
2. Although the Act specifically mentions only "unidentifiable
human remains", it is consistent with other aspects of the Act to
include in this discussion "associated funerary objects" as well.
Therefore all recommendations on the disposition of
unidentifiable human remains also apply to any funerary objects
that are associated with those remains as those terms are defined
in the Act. It may be that additional legislation will be
required to insure that Native American groups are provided with
the opportunity to repatriate associated funerary objects
accompanying unidentified remains.
3. The Committee has heard extensive testimony from physical
anthropologists and archaeologists as to the broader scientific,
medical, and humanistic values that may be gained from analysis
of Native American skeletal remains from both the recent and
distant path. While the Committee recognizes there may be
potential value in such analyses, such values do not provide or
confer a right of control over Native American human remains that
supersedes the spiritual and cultural concerns of Native American
people who clearly have the closest general affiliation to these
remains. The issue is not whether there is positive benefit to
be gained from analysis of remains, but who has the right and
responsibility to make decisions about whether such analysis
should take place.
It is the responsibility of archaeologists and physical
anthropologists to communicate with Native American tribes and
groups to inform them of the potential values of analysis of
human remains and associated funerary objects and allow the
tribes and groups to use this information as they choose in
making their decisions about the treatment and disposition of
those remains and objects.
4. The term "unidentifiable human remains" can be applied to
three different groups of remains and these should be considered
separately. The three categories include: 1. remains for which
there is cultural affiliation with Native American groups who are
not formally recognized by the BIA; 2. ancient remains for which
there is specific information about the original location and
circumstances of the burial; and 3. remains which may be Native
American but which lack information about their original burial
location.
1. Remains for which there is cultural affiliation with Native
American groups who are not formally recognized by the BIA
There are remains that can be directly traced by a preponderance
of the evidence to tribes, villages, communities of Native
Americans which may not be formally recognized by the Bureau of
Indian Affairs as "Tribes". In these cases, the remains are only
"unidentifiable" because of the wording of the Act. In the Act,
the definition of Indian "Tribe" has been interpreted by the
Department of the Interior to mean only those groups that have
received formal recognition by the BIA as "tribes". There are,
however, many groups in the United States that are "eligible for
the special programs and services provided by the United States
to Indians because of their status as Indians" (25 U.S.C. 3001
(7)), but have not received formal BIA recognition by choice or
other circumstances.
In cases where such groups are able to establish cultural
affiliation with specific remains it is the unequivocal
recommendation of the Review Committee that they should be
accorded the same rights and responsibilities given to BIA
recognized Tribes for the repatriation of those specific remains.
Cultural affiliation in these cases should follow the guidelines
of the Act and be determined by a preponderance of the evidence
based upon geographical, kinship, biological, archaeological,
anthropological, linguistic, folkloric, oral traditional,
historical, or other relevant information or expert opinion (25
U.S.C. 3006. (a)(4)).
The Review Committee would appreciate suggestions on how to
identify and recognize those Native American groups who should be
eligible to claim remains for repatriation but are not on the
Bureau of Indian Affairs list of federally recognized "tribes".
2. Ancient remains for which there is specific information about
the original location and circumstances of the burial
There is a very large number of remains from across the United
States which come from earlier time periods and it is not
possible to trace directly ancestry to any known contemporary
tribe or group. Remains coming from archaeological excavations
at sites that were occupied before the arrival of Europeans will
most commonly fall into this category. From available evidence,
it is often possible to determine that several groups or tribes
may have historical or deeper ancestral ties to the area. In
these cases, it may or may not be possible to establish direct
links between the ancient remains and any specific contemporary
groups or tribes.
In these cases, responsibility for what happens to such remains
rests with those tribes and groups who are able to show an
affinity both to the territory and to the general time period
from which the remains came. Tribes or groups will demonstrate
such geographic and temporal affinity through evidence based on
biological, archaeological, linguistic, folkloric, oral
traditional or other relevant information or expert opinion.
Tribes or groups who are able to demonstrate geographical and
temporal affinity to ancient remains will decide on what happens
to those remains based on consensual agreement. It is the
responsibility of the tribes who claim affiliation to come
forward and state their claim and present their evidence of
affiliation. Based on information in the inventories received
from museums and Federal agencies, the Review Committee will take
responsibility for notifying all tribes who may be potentially
affiliated with particular remains.
The Act anticipates the circumstances of more ancient remains to
some extent in Sec. 7 (e), "Competing Claims". This section
deals with situations in which there are multiple claims for
remains or objects and advises that museums and Federal agencies
retain those remains and objects until the "requesting parties
agree upon its disposition or the dispute is otherwise resolved
pursuant to the provisions of this Act or by a court of competent
jurisdiction." Although the case of "unidentified" remains may
well not involve a dispute, the same general principles should
apply. Specifically, a museum or Federal agency should retain
"culturally unidentified" remains and associated funerary objects
until such time as all potentially affiliated tribes and groups
reach consensual agreement on disposition of the remains and
associated objects.
3. Remains which are likely to be Native American but which lack
information about their original burial location
There are remains in museums and Federal agencies which are known
or appear to be Native American through museum records or simple
visual examination but which lack sufficient information to
identify more specific cultural or geographical affinities.
There are two broad types of remains that may fall in this group.
First, there are remains for which there may be some indication
that they are culturally affiliated with one federally recognized
Tribe or Native Hawaiian group, but there is insufficient
independent evidence to confirm the affiliation. It is possible,
for example, to have remains in museums which are labeled as
belonging to one tribe or group, but with no supporting evidence
of any kind to support that identification. In such cases the
remains may be affiliated with one or more additional groups of
Native Americans or with non-Native Americans. In these cases,
however, the museum or Federal Agency should not have to bear the
responsibility of determining whether the remains should be
returned to a specific group. The Act actually does speak to
this situation to some extent in Sec. 7(a)(4). In this section
there are guidelines for when a museum or federal agency is
unable to establish cultural affiliation of remains in the
inventory process. In these cases, the burden of responsibility
goes to the Tribe to "show cultural affiliation by a
preponderance of the evidence".
In cases such as this, when the museum or Federal agency is
unable to reasonably confirm the cultural affiliation of specific
Native American human remains, the inventory of these remains
should be provided to the Review Committee, along with a summary
made by the museum or Federal agency of whatever limited
information is available that might relate to the identity of the
individuals involved. The Review Committee then has the
opportunity to review available information. The Committee can
either decide there is sufficient evidence to reasonably
determine cultural affiliation or that the remains should
continue to be treated as "unidentifiable."
Another group of remains with limited cultural or geographical
information remains are those for which there is no available
information about their origins or any possible contemporary
descendent Tribes or groups. There are, for example, remains in
museums which are simply identified as "Native American" or
"Indian", with no information about where they came from. In
these cases, there is insufficient evidence to reasonably
identify tribal affiliation either culturally, biologically or
geographically. Although this is likely to be a relatively small
number of individuals, they are no less important than the other
remains held by museums and Federal agencies today.
If it has been determined that these remains are Native American,
then broad regional associations of Native American tribes and
groups may take responsibility for determining the ultimate
disposition of such remains. One possibility that has been
raised is a series of regional cemeteries or mausoleums can be
established on protected lands where these unidentified
individuals can be reburied and protected forever. Other
alternatives to regional cemeteries for the disposition of
unidentifiable Native American remains may also be worked out by
the regional associations.
5. Several groups have stepped forward and made explicit claims
for all those Native American remains for which there are no
identifiable cultural descendants. The sentiment of these groups
expressed in this public commentary is that such remains should
not be left unattended in museums, but should be returned for
reconsecration in the earth. The exact cultural affiliation of
these individuals is not as important as the fact that they were
removed from their final resting places without consent. There
is diverse opinion in the Native American community about the
treatment of individuals without cultural affiliation. The
conditions outlined above for individuals without specific tribal
affiliations should be applied for all so-called "unidentifiable"
individuals.
6. The continuance of a Review Committee is integral to the long-
term resolution of issues and problems related to the ultimate
disposition of culturally unidentified human remains and
associated funerary objects.
7. The Review Committee recognizes that many Native American
tribes and groups have already developed regional and cultural
associations to address the issue of culturally unidentified
remains. These existing associations provide good models for
repatriating and caring for culturally "unidentified" remains (as
defined by the Act) in an expeditious and respectful manner. The
guidelines outlined above are explicitly intended to facilitate
and encourage the efforts of these existing associations.
8. As a means of stimulating discussion, the Review Committee
would like to offer some suggestions about possible alternative
procedures for repatriating unidentifiable human remains. These
are suggestions only and not intended in any way as proposed
regulations. The Committee offers more than one option for
resolving several procedural issues and would like to solicit
comments about the relative desirability of these or other
options.
DRAFT FOR COMMENT ONLY
Possible procedures for deciding the disposition of unidentified
remains
Procedures for identification of potential claimants
Option 1
(1) NPS compiles map of groups and tribes who may be related to
all lands across time in the United States.
(2) NPS sends inventories of unidentifiable remains to groups
with historical or cultural ties to the area from which the
remains were taken, or where they currently reside if their
original location is unknown.
(3) Interested Native American groups determine if there is
evidence of a direct biological or cultural affinity between
them and the remains.
(4) In the absence of such evidence, groups may use geographical
and chronological information to establish an affinity to
the remains.
Option 2
(1) NPS prepares abstracts of the complete national inventories
and sends copies of these abstracts to every tribe and
potentially descendant Native American group in the United
States.
(2) Interested Native American groups review information on
remains from areas where they maintain cultural and
historical affinities.
(3) Interested groups determine if there is evidence of a direct
biological or cultural affinity between them and the
remains.
(4) In the absence of such evidence, groups may use geographical
and chronological information to establish an affinity to
the remains.
Procedures for reviewing claims
Option 1
(1) Tribe(s) or group(s) make a request for repatriation by
providing NPS evidence of their affinity to the remains.
(2) NPS reviews claims for remains and, in consultation with the
NAGPRA review committee, makes determinations of cultural
affinity.
(3) The museum or requesting group may appeal the NPS decision
to the NAGPRA review committee or appropriate courts.
Option 2
(1) Tribe(s) or group(s) requests repatriation by presenting
evidence of an affinity with the collection to the museum or
Federal agency holding the remains.
(2) Museum or Federal agency reviews request for repatriation
and makes determinations of cultural affinity.
(3) If the museum or Federal agency decides an affinity does not
exist, the requesting group may appeal the decision to the
NAGPRA review committee or appropriate courts.
Procedures for making repatriations to Native American groups
without BIA recognition
(1) If it is determined that a Native American group has an
affinity with the remains, a notice of intent to repatriate
is published in the federal register with an appropriate
waiting period to allow other tribes enough time to file
additional claims.
(2) If additional claims for specific remains are filed after
this publication, the NPS will review the case for each
additional request.
(3) If it is determined based on this review that the additional
requesting tribe or group does have an affinity with the
remains no repatriation will occur until all claimants reach
a consensual agreement on the disposition of the remains.
(4) If agreement is reached, the remains will be repatriated to
the requesting groups.
(5) If agreement cannot be resolved through consensual
agreement, the claimants can ask the NAGPRA review committee
to mediate the dispute or appeal to the appropriate courts.
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