[Federal Register: June 20, 1995 (Volume 60, Number 118)]
[Notices]
[Page 32163-32165]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn95-68]
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DEPARTMENT OF THE INTERIOR
Draft Recommendations Regarding the Disposition of Culturally
Unidentifiable Human Remains and Associated Funerary Objects
AGENCY: National Park Service, Interior.
ACTION: Notice and request for comments.
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SUMMARY:
The Native American Graves Protection and Repatriation Act (25
U.S.C. 3007(c)(5).) 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 are publishing
this draft in the Federal Register for broad public comment.
EFFECTIVE DATES:
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.
Please note that we will not accept any comments in electronic form.
ADDRESS FOR 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
Dated: June 14, 1995
Veletta Canouts,
Acting, Departmental Consulting Archeologist
Acting Chief, Archeological Assistance Division
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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. [[Page 32164]]
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 25 U.S.C. 3006 (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 25
U.S.C. 3006 (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 [[Page 32165]] 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.
[FR Doc. 95-14999 Filed 6-19-95; 8:45 am]
BILLING CODE 4310-70-F
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