DEPARTMENTAL CONSULTING ARCHEOLOGIST
ARCHEOLOGICAL ASSISTANCE DIVISION
NATIONAL PARK SERVICE
DRAFT--4 JUNE 1991--DRAFT
TABLE OF CONTENTS
I. INTRODUCTION
II. PURPOSE AND APPROACH
III. RESPONSIBLE ORGANIZATIONS
A. Indian Tribes and Native Hawaiian Organizations
1. Cultural Affiliation as Established by the Statute
B. Federally-Funded Museums
C. Federal Agencies
D. Secretary of Interior/Departmental Consulting Archeologist
E. The Native American Graves Protection And Repatriation Review Committee
F. The Advisory Council on Historic Preservation
G. The State Historic Preservation Officers
IV. WHAT IS COVERED: DEFINITIONS OF CULTURAL ITEMS
A. Clarification of Covered Item Definitions
V. RESPONSIBILITIES AND ACTIVITIES
A. Repatriation and Related Activities
1. Repatriation Activities Required of Federal Agencies
and Federally-funded Museums
2. The Inventory Process
3. Summary of Unassociated Funerary Objects, Sacred Objects,
and Items of Cultural Patrimony
B. The Role of Indian Tribes, Native Hawaiian Organizations, and
Traditional Religious Leaders in Repatriation Activities
1. Repatriation
2. Disposition
C. Intentional Excavation and Inadvertent Discovery of Native American
Remains and Objects
1. Intentional Excavation
2. Inadvertent Discovery
D. Discussion: The 30-Day Delay Provision and Proactive Memoranda
E. The Relationship Between NAGPRA's Inadvertent Discovery Provisions
and the NHPA's Section 106 Compliance Provisions
VI. CONCLUDING STATEMENT
I. INTRODUCTION
On November 16, 1990, President Bush signed into law the Native
American Graves Protection and Repatriation Act (P.L. 101-601). This law
recognizes the rights of Indian Tribes and Native Hawaiian organizations as
owners or caretakers of human remains, funerary objects, sacred objects, and
objects of cultural patrimony with which they can demonstrate a reasonable
biological or cultural affiliation. As part of this recognition, this
statute also conveys to such groups the rights to decide disposition or take
possession of such items. Throughout the remainder of this document, P.L.
101-601 is referred to as the Graves Protection Act.
Under the Graves Protection Act, Federal agencies and federally funded
museums are required to inventory some kinds of cultural items and summarize
other kinds that are in the collections they own or control. Following the
completion of the summaries and inventories, agencies and museums must
notify Indian Tribes or Native Hawaiian organizations that appear to be
culturally affiliated of the results. Tribes and Native Hawaiian
organizations may then request the repatriation of cultural items and are
entitled to those with which they can demonstrate reasonable biological or
cultural affiliation.
One of the clearest intentions of the law is the protection of Native
American graves and other cultural items through in situ preservation.
Therefore, it is important for Federal agencies and Tribes undertaking
land-modifying activities on their lands to take special precautions, such
as more intensive archeological activities to locate and then avoid unmarked
Native American graves and cemeteries.On Federal and Tribal lands,
archeological investigations for planning or research purposes, or other
land modifying activities that inadvertently discover such items require the
Federal agency or Tribe involved to consult with affiliated or potentially
affiliated Native Americans.
The act also stipulates that trafficking in human remains and cultural items
is illegal, calling for civil penalties. Furthermore, it authorizes the
Secretary of the Interior to administer a grants program to assist museums
and Indian Tribes in complying with this law, and requires the Secretary of
the Interior to establish a Review Committee to provide advice an carrying
out key provisions of the statute. In addition, the statute directs the
Secretary to develop regulations in consultation with this Review Committee.
The law has generated a great amount of interest among Native Americans,
museum professionals, and Federal agency employees charged with meeting its
requirements. The exact means of implementation must await formal
regulations; however, these guidelines have been developed and are provided
to assist Tribes, museums, and Federal agencies in beginning to implement
the law. The guidelines are intended to supplement the statute; material
provided in the House and Senate Committee Reports is used to clarify
statutory intent on some issues. Anyone using these guidelines is
encouraged to read carefully the text of the Graves Protection Act, as well
as to become familiar with the Reports.
In general, it will be essential for Tribes, museums, and Federal agencies
to work cooperatively. Dialogue between and among these parties will be
extremely important. We recommend that the Tribes, museums, and Federal
agencies begin to develop channels for constuctive dialogue and cooperative
actions as soon as possible.
II. PURPOSE AND APPROACH
The purpose of the Native American Graves Protection and Repatriation Act is
to protect Native American burial sites and control the removal of human
remains, funerary objects, sacred objects, and items of cultural patrimony
on Federal, Indian, and Native Hawaiian lands. It also establishes a
process by which Federal agencies and federally funded museums must
inventory holdings of such remains and objects, and work with Indian Tribes
and Native Hawaiian organizations to reach agreements on the repatriation or
other disposition of these remains and objects (House Report 101-877:8-9).
The effective implementation approach for this statute will require
agreements between Indian Tribes, Federal agencies, and federally funded
museums through continuous dialogue. These discussions will lead to a
better understanding of the historic and cultural values of remains and
objects. Human remains must at all times be treated with dignity and
respect, while museums are recognized as serving an important function in
educating the public and increasing awareness about the nation's history
(Senate Report 101-473:5-6).
The first of two main objectives for this act is to control archeological
excavations using the existing Archeolgical Resources Protecion Act
permitting process, while encouraging in situ preservation whenever possible
and to foster dialogue and agreement. The second objective addresses
collections of human remains and certain kinds of objects currently held by
Federal agencies or federally funded museums. Essentially, the act requires
an inventory process that leads to repatriation or other kinds of
disposition agreed upon by Native Americans, agencies, and museums (House
Report 101-877:9-10).
Consequently, Federal agencies and federally supported museums must seek
consultation with Native American groups actively to address the
requirements of this act, and all parties must participate in meaningful
dialogue that promotes understanding and solutions.
III. RESPONSIBILE ORGANIZATIONS
Executing the provisions of the Graves Protection Act involves three
primary participants: Federal agencies, federally funded museums, and
Indian Tribes and Native Hawaiian organizations. This section summarizes
the roles of each; the following sections describe the activities that are
necessary to carry out statutory provisions. Other potential parties are
the Advisory Council on Historic Preservation and the State Historic
Preservation Officers, whose roles are normally informal except for rare
situations. Nevertheless, they may serve as potential facilitators during
negotiations or consultations.
III. A. Indian Tribes and Native Hawaiian Organizations
The definitions of Indian Tribe and Native Hawaiian organization are
clear in the statute. The statutory definition of Indian Tribe is:
any tribe, band, nation, or other organized group or community of Indians,
including any Alaska Native village (as defined in, or established pursuant
to, the Alaska Native Claims Settlement Act), which is recognized as
eligible for the special programs and services provided by the United States
to Indians because of their status as Indians (Sec. 2(7)).
The Bureau of Indian Affairs maintains a list of formally recognized Tribes
e. g., Federal Register, Vol 53, No. 250:52829-52835 and this list is
regularly augmented. Other Federal agencies also offer benefits
specifically to Indians. Most of these agencies have independently derived
definitions that include, but extend beyond the list of formally recognized
Tribes. For example, the Administration for Native Americans (ANA), a
branch of the Department of Health and Human Services established to, among
other things, administer a grants program to promote the social and economic
development of Native Americans, stipulates that the following organizations
are eligible to apply for grants:
Federally recognized Indian tribes; consortia of Indian tribes; incorporated
non-Federally recognized tribes; incorporated nonprofit multipurpose
community-based Indian organizations; urban Indian centers; public and
nonprofit private agencies serving Native Hawaiians; national or regional
incorporated nonprofit Native American organizations with Native American
community-specific objectives; public and nonprofit private agencies serving
native peoples from Guam, American Samoa, Palau, or the Commonwealth of the
Northern Mariana Islands; Alaskan Native villages as defined in the Alaska
Native Clalims Settlement Act, and/or nonprofit village consortia; nonprofit
Alaska Native Regional Associations in Alaska with village-specific
projects; and nonprofit Alaska Native community entities or tribal governing
bodies as recognized by the Bureau of Indian Affairs (Federal Register Vol.
55, No. 168:35413).
This definition and others used by various Federal agencies expand the term
"Tribe" beyond the list of those formally recognized by the Bureau of Indian
Affairs.
For the purposes of the Graves Protection Act, however, the real issue
is whether or not Indian Tribes and Native Hawaiian organizations are able
to demonstrate a reasonable linkage or cultural affiliation with specific
cultural items, in museums of Federal collections or as yet undiscovered on
Federal or Tribal land.
III. A. 1. Cultural Affiliation as Established by the Statute
Section 3 of the Act defines and establishes a hierarchy for cultural
affiliation, a condition that must be demonstrated if Tribes are to be
consulted with in the case of future excavations or unanticipated
discoveries, or if they are to be successful claimants of cultural items in
repatriation requests. For human remains and associated funerary objects,
affiliation by lineal descent supercedes all other potential claimants.
Lineal descent is not defined in Section 2 of the statute or explained in
the accompanying Committee reports. For the purposes of these interim
guidelines, this term is taken to mean a reasonably established genetic or
familiar tie between generations of an extended family, clan, or lineage.
For any other items, the group of potential cultural affiliation is the
Tribe, both in the statute and in the accompanying Committee reports.
'Cultural affiliation' means that there is a relationship of shared identity
which can be reasonably traced historically or prehistorically between a
present day Indian tribe or Native Hawaiian organization and an identifiable
earlier group (Sec. 2(2)).
This implies that groups of Native Americans of diverse backgrounds who
voluntarily associate together for some purpose or purposes are not viewed
as proper claimants under the provisions of the statute. However, the
members of such organizations may exercise their rights as part of their
Tribe.
For human remains and associated funerary objects, as well as
unassociated funerary objects, sacred objects, and items of cultural
patrimony for which no lineal descendents can be identified, the statute
provides a hierarchy for judging among potentially competing claimants, in
the following priority order:
(1) Indian Tribes or Native Hawaiian organizations on whose Tribal lands
the cultural items are discovered;
(2) Indian Tribes or Native Hawaiian organizations that can show the
closest cultural affiliation to the items; and
(3) if cultural affiliation cannot reasonably be ascertained and if the
items are from Federal land formally recognized by the Indian Claims
Commission or the U.S. Court of Claims, proper claimants may be the Indian
Tribes recognized as aboriginally occupying the area from which the items
were discovered
Regarding (3), if a preponderence of the evidence shows that a different
tribe than the one identified as aboriginally occupying the area has a
stronger demonstrated affiliation with the cultural items, they would be
viewed as proper claimants.
No Tribe needs to establish beyond all doubt that it is a proper
claimant. Language such as "reasonable" and "preponderance of the evidence"
indicate that the intent of this component of the statute is to obviate a
need for total certainty about direct linkages. Many lines of evidence can
be used to support and evaluate claims, among their anthropological and
archeological information, tradition and oral history, and biological ties
or genetics.
III. B. Federally-funded Museums
The Graves Protection Act defines "museum" as follows:
any institution of State or local government agency (including any
institution of higher learning) that receives Federal funds and has
possession of, or control over, Native American cultural items. Such term
does not include the Smithsonian Institution or any other Federal agency
(Sec. 2(8)).
Some museums serve as the repositories for cultural items that were obtained
from Federal or Tribal lands; they may conduct the required inventories or
written summaries for Federal agencies or Tribes. Museums are required to
conduct inventories or written summaries of all cultural items within their
collections regardless of their geographical point of origin.
III. C. Federal Agencies
Except for the Smithsonian Institution, which is covered under a
separate statute (Public Law 101-185), all Federal agencies that manage land
and/or are responsible for archeological collections from their lands or
generated by their activities must comply with the Graves Protection Act.
Federal agencies are responsible for (1) producing inventories and written
summaries of cultural items in their collections, informing Tribes and
Native Hawaiian organizations that may be affiliated with these items of
their holdings, and working with Native Americans in order to proactively
seek groups to identify in the consultation process; and (2) consulting with
Tribes or Native Hawaiian organizations when planned archeological
excavations may encounter cultural items or when cultural items are
discovered inadvertently on Federal or Tribal lands.
III. D. Secretary of the Interior/ Departmental Consulting Archeologist
The statute assigns Federal governmental reponsibility for statute
administration, implementation, and operation to the Secretary of the
Interior. Specifically, the Secretary must:
(1) establish a Review Committee of seven persons to monitor and review
inventory, identification, and repatriation activities;
(2) provide reasonable levels of administrative and staff support for the
Review Committee; and
(3) promulgate regulations for implementing the statute
In addition, the Secretary may do the following:
(1) develop and administer a grants-in-aid program to assist Tribes and
museums in repatriation activities;
(2) review requests from museums for extensions of time to complete
inventories of human remains and funerary objects, and to grant temporal
extensions upon finding a "good faith" effort;
(3) assess civil penalties of any museum that fails to comply with the
statute or its implementing regulations; and
(4) assume the review and consultation responsibilities that would normally
be required of Federal agencies when Native American cultural items are
discovered inadvertently on agency lands.
Staff support for Secretary's responsibilities and for Review Committee
activities will be provided by the Departmental Consulting Archeologist
(DCA) and the Archeological Assistance Division (AAD) in the National Park
Service of the Department of Interior. This office will maintain Committee
files and documents, organize committee meetings and staff committee
activities. The DCA will be the Committee's contact person.
In many cases, responsibilities assigned by statute to the Secretary of the
Interior are delegated to the DCA, including the following:
(1) developing the implementing regulations;
(2) providing guidelines, technical information, training and other programs
that will assist all affected parties in meeting their obligations;
(3) providing administrative and staff support for the committee;
(4) administering the grants-in-aid-program if one is developed;
(5) reviewing requests from museums for extensions of time to meet their
inventory requirements; and
(6) making recommendations to the Secretary concerning any of the foregoing
issues.
III. E. The Native American Graves Protection and Repatriation Act Review
Committee
This Review Committee is established by Section 8 of the statute. It
is an advisory committee that makes recommendations to the Secretary of the
Interior. The Committee's views do not bind the Federal government, but
will be a very important consideration for any action that the Secretary
must take. Since the Committee is chartered, its actions are generally
subject to Freedom of Information Act requests.
To ensure a fair expression of all views, Committee membership is
explicitly stated in the law. Appointment of members is by the Secretary of
the Interior from nominations submitted by Indian Tribes, Native Hawaiian
organizations, and traditional Native American religious leaders, and from
national museum and scientific organizations. Consisting of seven members,
the duties of the Committee are to monitor and review inventory,
identification and repatriation activities. It may also make findings
relating to cultural affiliation and repatriation issues if requested,
facilitate the resolution of disputes, consult with parties, and offer
suggestions about the care of repatriated materials. The regulations that
implement the statute also are to be developed in consultation with the
Committee. The Committee also must compile an inventory of items without
cultural affiliation held by museums and Federal agencies, and recommend
disposition actions. Each year, the Committee is to submit a report to
Congress.
Although the statute assigns many important roles to the Committee,
most matters concerning repatriation, inventory, and potential agreements
attending to excavation are best dealt with locally through agreements
negotiated by agencies, museums, and Native Americans. It is anticipated
that the Committee's role in consulting and dispute resolution will only be
invoked when local agreement is not possible.
The Advisory Council on Historic Preservation
The Advisory Council has no statutory role in carrying out the
provisions of the law. The Council's regulations (36 CFR Part 800,
"Protection of Historic Properties") implementing Section 106 of the
National Historic Preservation Act, however, set forth a consultation
process whereby conflicts between the public values of historic preservation
and the public need for Federal or Federally assisted projects or programs
are resolved. The manner in which Federal agencies meet the requirements of
Section 106, including any mitigation measures agreed upon during this
consultation process, may be directly affected by agency responsibilities
under the Graves Protection Act. Consequently, early coordination and
consultation under Section 106 may be of assistance in meeting some of the
requirements of the Graves Protection Act where consultation is necessary to
reach agreements on how to treat Native American human remains and other
cultural items.
The consultation process embodied in the Council's regulations
generally involves three principal parties: the Federal agency with
jurisdiction over the project or program, the State Historic Preservation
Officer (SHPO) representing the state where the project is located, and the
Council. Consultation with Native Americans, including Tribes,
organizations, and individuals, are specifically required at several points,
however, when (1) identifying historic properties (800.4(a)), (2) resolving
adverse effects (800.5(e)), or (3) undertakings affect Indian lands
(800.1(c)(2)(iii)). In addition, other provisions exist in the Council's
regulations providing for participation by Native Americans as interested
persons.
The Council's Executive Director recently issued a memorandum to the State
Historic Preservation Officers and Federal Preservation Officers on the
relationship between Section 106 and the Graves Protection Act. Developed
in consultation with the DCA, it is included as Appendix A to these interim
guidelines.
The State Historic Preservation Officers
While the law does not assign a formal, statutory function to these
officials, as the representatives of the States in the national historic
preservation program they can play key roles in assisting others to help
meet the provisions of the Graves Protection Act. For example, they may
assist Federal agencies or recipients of Federal assistance in identifying
Native American groups that should be consulted with under the statute,
they are a central source of information on prior and ongoing projects in
their states that may be subject to Graves Protection Act provisions, and
they may curate or be responsible for the curation of cultural items subject
to the statute. Potential roles played by the State Historic Preservation
Officers also are discussed in Appendix A.
IV. WHAT IS COVERED: DEFINITIONS OF CULTURAL ITEMS
The Graves Protection Act commits Federal agencies and federally
supported museums to the repatriation, care, and disposition of human
remains and two groups of four other kinds of cultural items in accordance
with the wishes of the culturally affiliated American Indian Tribes and
Native Hawaiian organizations:
(1) human remains and associated funerary objects; and
(2) unassociated funerary objects, sacred objects, and items of cultural
patrimony
With the exception of human remains, each of the foregoing kinds of cultural
items is defined within Section 2 of the statute. Although this document
restates and provides operational refinements of these definitions, it is
incumbent upon Federal agencies, museums, and American Indian and Native
Hawaiian organizations to study the definitions provided in the statute.
Further refinements may be forthcoming in the final regulations.
IV. A. Clarification of Cultural Item Definitions
Human remains are not defined in the statute, and consequently all
Native American human remains are covered. One of the definitions in the
statute is the term "burial site." There is some operational confusion
among archeologists because some refer to human remains as a "burial." The
statute defines burial site as:
any natural or prepared physical location, whether originally below, on, or
above the surface of the earth, into which as part of the death rite or
ceremony of a culture, individual human remains are deposited (Sec.2).
This definition emphasizes the place from which remains were taken, and is
not synonymous with human remains. This means that whether or not Native
American human remains came from a burial site, such remains are covered by
the statute. In other words, isolated human bones which may have been
disturbed from a burial site are still subject to the provisions of this
statute.
Associated funerary objects are objects reasonably believed to have
been placed with human remains as part of a death rite or ceremony. The use
of the term "associated" refers to the fact that these materials are still
retained in association with the human remains in a museum or other
repository, and that there has been no post-removal separation of the
funerary objects from the human remains.
Unassociated funerary objects are items which are reasonably believed
to have been taken from burial sites, but are no longer in association with
the human remains of the burial. When human remains can be re-associated
with funerary objects in a different repository through adequate
documentation, the human remains and the funerary objects should be
considered together in consultations concerning their treatment or potential
repatriation.
Sacred objects are defined in the statute as:
specific ceremonial objects which are needed by traditional Native American
religious leaders for the practice of traditional Native American religions
by their present-day adherents (Sec.2).
The key provision in this definition is whether the objects are needed to
practice traditional religions. Further language in this area is supplied
by the Senate Committee Report:
There has been some concern expressed that any object could be imbued with
sacredness in the eyes of a Native American, from an ancient pottery shard
to an arrowhead. The Committee does not intend this result....the primary
purpose of the object is that the object must be used in a Native American
religious ceremony in order to fall within the protections afforded by the
bill (Senate Report 101-473:7).
Objects of Cultural Patrimony have:
ongoing historical, traditional, or cultural importance central to the
Native American group or culture itself, rather than property owned by an
individual Native American, and which, therefore, cannot be alienated,
appropriated, or conveyed by any individual...(Sec.2).
The key provision in this definition is whether the property was of such
central importance to the tribe or group that it was owned communally. The
potential vagueness of this term again produced comment by the Senate
Committee:
The Committee intends this term to refer to only those items that have such
great importance to an Indian tribe or to the Native Hawaiian culture that
they cannot be conveyed, appropriated or transferred by an individual
member. Objects of Native American cultural patrimony would include items
such as Zuni War Gods, the Wampum belts of the Iroquois, and other objects
of a similar character and significance to the Indian tribe as a whole
(Senate Report 101-473:7-8).
In contrast to its more general usage, these comments concerning "objects of
cultural patrimony" exclude from this category most but not all items found
in archeological collections. On the other hand, some items found in
museums or collections of Federal agencies might have been inadvertently
acquired from individuals with no rights of alienation or possession. These
must be repatriated if requested by a culturally affiliated tribe or Native
Hawaiians organization.
V. RESPONSIBILITIES AND ACTIVITIES
There are two basic sets of overall activities required by the new
statute. These are (1) repatriation, a complex set of activities that are
described herein; and (2) treatment, care, and disposition of cultural items
recovered on Federal or tribal lands, either by intentional excavations or
by inadvertent discovery after the date of enactment. The remainder of this
section discusses the nature of and processes attending to each of these
activites.
V. A. Repatriation and Related Activities
As in much of this statute, consultation between Federal agencies,
federally funded museums, and appropriate Native American groups is a
critical component of activities leading to repatriation. The statute
places the paramont responsibility for compliance upon Federal agencies and
federally funded museums. In order to initiate this process, agencies and
museums must first identify appropriate American Indian tribes or Native
Hawaiian organizations who have an interest in various components of their
collections. This is because activities preceeding repatriation are to be
executed in consultation with these groups. Once contact has been made, the
statute requires each Federal agency or federally funded museum to carry out
the following actions: (1) inventory human remains and associated funerary
objects, (2) summarize unassociated funerary objects, sacred objects, and
items of cultural patrimony, (3) notify groups of their findings, and (4)
return to lineal descendents or culturally affiliated tribes or Native
Hawaiian organizations requested cultural items.
V. A. 1. Repatriation Activities Required of Federal Agencies and Federally
Funded Museums
Within five years of enactment, Federal agencies and federally funded
museums must complete an inventory of human remains and associated funerary
objects. Consultations with Indian tribes, Native Hawaiian Organizations,
and traditional religious leaders are needed throughout the inventory
process. One of the first steps in the inventory process should be to
identify likely Native American and Native Hawaiian affiliates for the items
to be inventoried. Agencies and museums are encouraged to give considerable
attention to this task, recognizing that current proximity between tribes
and the locations where materials were recovered are not the sole measure of
potential affiliation and that traditional religious leaders are as
important an inclusion as secular tribal governments.
One key factor for Federal agencies and federally supported museums will be
in identification of Federal agency responsibilities for items curated by
museums. For example, many museums retain collections obtained from agency
projects or programs, where the identity of either the lead agency or the
agency owning the materials is unclear. This issue should be resolved prior
to or early during the inventory process.
Agencies must initiate contacts with museums that retain Federal
collections, and must examine in-house records for agency operated
repositories. Federally owned and operated repositories are considered
parts of Federal agencies under the statute. As such, they are not eligible
for grants, nor can they obtain extensions of time for completing their
inventories. This is an important distinction, since agencies probably will
need to increase the allocation of resources to carry out this obligation.
Federally-funded museums, on the other hand, will have access to any
grants program that may be established under the statute. The purpose of
this program is to assist them in completing their inventories.
Requirements for the grants program will be identified during the regulation
writing process; however, museums holding collections that are Federal
property may be able to apply for grants to inventory such materials.
Museums also can request an extension from the Secretary of the Interior if
their inventories are incomplete after five years. Extensions of time for
the inventories may be granted if the museums can show what the statute
defines as a "good-faith effort", at minimum, a plan. If museums do not
comply with the law, they face civil penalties that may be assessed by the
Secretary of Interior.
Many archeological collections that are the responsibility of Federal
agencies are in the care of museums. These non-federal museums must be
contacted during the documentation and inventory process, and agreement
reached between museums and agencies as to who will conduct the work and who
will be responsible for contacting Native American groups. Museums should
contact agencies regarding collections that may be the responsibility of the
Federal agency, even though the agency fails to contact them. It is
recommended that when there is a Federal responsibility, the Federal agency
contact and consult with the Native American group.
Cultural items under scientific study also must be returned expeditiously
upon request, unless by affiliated Native American groups these items are
indispensable for completion of a specific scientific study, the outcome of
which would be of major benefit to the United States (Sec. 7(b)). In any
case, these items must be returned within 90 days of the completion of this
any specific such scientific study.
Until final regulations are available, Federal agencies and museums must be
certain that repatriated materials are returned to the proper claimant
group, a procedure that demands adequate documentation. Statutory
provisions protect museums that have acted in good faith from lawsuits
brought by competing claimants or other parties, no such protection is
offered to Federal agencies. The regulations developed by the Secretary
will provide additional guidance pertaining to disposition. No repatriation
of cultural items should proceed without the formal notification of
potentially affiliated tribes or Native Hawaiian organizations and the
Secretary as required in Section 5(d). This guidance is provided to ensure
that all potentially competing claimants or other parties are aware of the
possible repatriation.
V. A. 2. The Inventory Process
The first step in this process is to establish a means of consulting
with appropriate Indian tribes, Native Hawaiian Organizations, or
traditional religious leaders. Museums and agencies may wish to form a
consultation group of interested parties for each of the various accessions
or components of their collections. Once these groups are established,
tasks include:
(1) develop a repatriation plan. This plan will assist agencies in meeting
their responsibilities under the statute. Such a document will be essential
to plan for funding needed to accomplish the inventory and justify grant
proposals. The development of such a plan is cited in the statute as one
means of justifying an extension of time for inventory completion. The
scope of the Repatriation Plan may be quite variable, based either on
portions of the collection or an agency's entire holdings.
(2) conduct the inventory. The statute defines an inventory as an itemized
list. Inventory listings should contain enough descriptive information to
summarize the cultural items being listed. The listing also should
summarize the documentation available about each items. "Documentation"
means an examination of agency records, any accession records or catalogues,
studies, or other materials that might have a bearing on the (1) geographic
origin, (2) cultural affiliation, and (3) the basic facts concerning the
acquisition of these items. Although it is expected that conducting the
inventory will probably be primarily either an agency or museum function,
the law states that either the consulting Native American groups or the
Review Committee may have broad access to the documentation during this
process. The initiation of studies to acquire new scientific information is
not part of the inventory.
(3) Notify the affiliated Indian Tribes or Native Hawaiian organizations.
Agencies or museums must notify affiliated groups of the inventory results
within 6 months of inventory completion. This notification must identify
each set of human remains and associated funerary objects, and known tribal
origin. Additionally, this notice must specify which items are probably
associated with a tribe or Native Hawaiian organization, if reasonable
evidence exists. A copy of the notice must be sent to the Secretary of the
Interior who will publish it in the Federal Register.
V. A. 3. Summary of Unassociated Funerary Objects, Sacred Objects, and Items
of Cultural Patrimony
Each Federal agency or museum may summarize in writing rather than
provide an object-by-object inventory of unassociated funerary objects,
sacred objects, and items of cultural patrimony. Consultation with tribal
officials, Native Hawaiian Organization officials, and religious leaders
must follow the completion of the summary. This summary must be submitted
within 3 years of enactment, and includes the following information: scope
of collection, kinds of objects included, reference to geographic location,
means and period of acquisition, and cultural affiliation. There is no
provision for a time extension for the completion of summaries.
V. B. The Roles of Indian Tribes, Native Hawaiian Organizations In
Repatriation Activities and Traditional Religious Leaders.
Indian tribes, Native Hawaiian organizations, and traditional religious
leaders may take an active role throughout the repatriation process or they
may choose to await notification from museums and/or agencies of their
findings. One active role would be to identify museums or Federal agencies
that might have ownership, stewardship, or management of tribal cultural
items, and express an interest in consulting about items in these
collections are of interest. Another activity would be to begin to assemble
documentation that will help establish a valid claims to cultural items.
Examples of the kinds of evidence are oral or traditional evidence,
biological, archeological, or anthropological material, or legal documents
pertaining to the Indian Claims Commission or the Federal Court of Claims.
Another activity would be to identify any other potential claimant
tribes or organizations. If any are found, the tribes should attempt to
resolve the claims issue. The statute states that a preponderance of the
evidence will establish the strongest relationship between a tribe and any
affiliated cultural items if cases are brought into court. In dealing with
this issue, potential competing claimants should attempt to resolve it in
conjunction with the definitions of cultural affiliation supplied by the
statute.
Tribes and Native Hawaiian organizations have a role in consulting with
Federal agencies and museums, who will be seeking guidance initially on what
materials are of interest to individual tribes. The statute clearly calls
for early interaction and continual consultation throughout the process.
Tribes are to be provided with access to information regarding collections
at any time during or after the inventory. Indian tribes and Native Hawaiian
organizations may request access to materials, or copies of additional
information from museums or agencies throughout the repatriation process.
In considering making such requests, these groups should keep in mind that
inventories will be an ongoing and time consuming process. Tribes and Naive
Hawaiians organizations should try to work cooperatively with agencies and
museums throughout the process.
Native American groups who are dissatisfied with any of the negotiations
with museums, federal agencies, or other Native American groups may contact
the Native American Graves Protection and Repatriation Act Review Committee.
One of the Committee's functions is to facilitate resolution to such
disputes.
V. B. 1. Repatriation
Under the provisions of this statute, repatriation is the return of
human remains and other cultural items to the Native American groups
affiliated with them. Except for rare situations wherein documentation of a
collection provides clear information, repatriation must follow the
inventory and identification process. The minimal legal and/or technical
information that must be provided in order to effect a repatriation action
includes:
(1) identifying the relevant cultural items in an agency's or a museum's
collection;
(2) identification of potential claimant Native American groups for each
item or groups of items;
(3) the notification of potential Native American claimants.
Once Indian tribes or Native Hawaiian organizations have been notified, the
statute stipulates no specific time requirement for tribal responses to
agencies or museums about claims for repatriation or disposition of cultural
items. Theoretically, years could pass once a Native American group is
contacted. However, the statute only requires repatriation for those items
which meet the definitions and are requested by affiliated tribes. Tribes
and Native Hawaiian organizations may elect not to have items returned. The
statute provides for relinquishment of claims if the affiliated group
wishes.
Agencies or museums may still care for unclaimed items in accordance with
curatorial and museum standards under the following conditions: (1) there
is no response from the Tribe or Native Hawaiian organization, which were
notified; (2) the Tribe or Native Hawaiian organization, acknowledge the
contact, but do not request anything; (3) The Tribe or Native Hawaiian
organization, relinquishes its ownership rights to material; or (4) the
Tribe or Native Hawaiian organization and the agency or museum reach an
agreement that the agency or musemum will continue to curate the items. In
any event, all materials must be treated with dignity and respect at all
times. Exhibitry of human remains, objects of cultural patrimony, and
sacred objects is discouraged unless the appropriate Native American group
seeks such treatment. The regulations will identify ways to dispose of any
items not claimed under the provisions of this statute.
V. B. 2. Disposition
The statute encourages consultation concerning potential disposition, as
well as pursuing collaborative agreements for access, use, care, and
treatment of cultural items, but it is clear that Indian tribes and Native
Hawaiian organizations have the controlling interest. Section 11 (1)(b)
provides for the possibility that dialogue between interested parties may
result in treatments that recognize Native American ownership yet provide
for curation, display, and/or research on some tribal cultural items. An
example of such agreements might be the transfer of ownership to a tribe,
followed by the selection of specific items by tribes for ceremonial use or
reinterrment, followed in turn by the loan of the remaining objects to the
same repository. Under such an arrangement, materials on loan to the
repository from the Native American group might not ever leave the
repository. The Native American Graves Protection and Repatriation Act
Review Committee may assist in agreement negotiation, or provide
recommendations for care, treatment, or access to materials if asked.
Aside from the prohibitions against trafficking in Native American human
remains and cultural items that pertain to all persons and are identified in
Section 4 of this statute, there are no constraints placed upon Native
American groups regarding the use, access, treatment, or care of repatriated
cultural items.
V. C. Intentional Excavation and Inadvertent Discovery of Native American
Remains and Objects
Human remains and other cultural items removed from Federal or Tribal lands
after November 16, 1990 are discussed in this portion of the guideline.
These materials are dealt with in Section 3 of the statute and are discussed
either as the result of intentional excavation or inadvertent discovery.
V. C. 1. Intentional Excavation
The use of this term in the statute is synonymous with planned archeological
activities such as research, including survey. This term also applies to
activities which cannot avoid particular sites and thus require excavations
that may encounter human remains and associated funerary objects at
potential but unspecified locations within those sites. The inclusion of
such situations with intentional excavations strongly encourages Federal
agencies are encouraged strongly to plan undertakings with comprehensive
archeological survey work designed to discover the locations of cultural
items during the early stage of project planning whenever possible.
Discovery of unanticipated cultural items during project execution may be
followed by a 30-day delay under the inadvertent discovery section of the
statute. This archeological survey work should be coupled with an increased
effort to identify Indian tribes and Native Hawaiian organizations,
including traditional religious leaders, who might have an affiliation with
materials likely to be disturbed.
This section of the statute calls for removal of human remains and cultural
objects items only under the following conditions: (1) pursuant to
Archaeological Resources Protection Act permits; (2) following consultation
with tribes in all cases or evidence of attempts to consult on Federal
lands, and the documented consent of appropriate tribes in the case of
tribal lands; (3) under ownership, control, and disposition provisions
stipulated in this statute. Regarding the issue of whether Federal agencies
or employees are required to hold ARPA permits under the Graves Protection
Act, there is nothing in the statute that would modify existent Federal
regulations for issuance of such permits (36 CFR Part 7, Federal Register,
Vol. 49,No. 4:1029-1030). These regulations do not require permits for
Federal employees working in conjunction with their agency duties.
Operationalizing this process requires interaction between the appropriate
Native American group, and Federal agency well in advance of project
execution. Regardless of whether from Federal or tribal lands, materials
recovered would be the property of the appropriate Indian tribe or Native
Hawaiian organization, and the guidelines for inventory, summary, and
disposition presented earlier in this document would apply.
Under Section 106 of the National Historic Preservation Act, Federal
agencies are required to "take into account" the effects of their projects
and programs on properties on or eligible for the National Register of
Historic Places, and then provide the Council a reasonable opportunity to
comment on the undertaking. The Section 106 consultation process noted
previously in this paper is used to determine appropriate treatments for
historic properties that will be affected by Federal of Federally assisted
projects and programs. When Federal or Federally projects and programs will
affect historic properties of value to Native Americans, whether or not they
are located on tribal lands, the Council's regulations (36 CFR 800) require
that they be consulted at various steps in the consultation process.
The Graves Protection Act also requires consultation to determine
appropriate treatments of human remains and other cultural items. The
statute's requirements that Federal agencies, or through the agencies
non-Federal users of Federal lands, formally consult with the appropriate
Native American groups regarding the treatment and disposition of human
remains and other cultural items recovered during archaeological
investigations conducted on Federal and tribal lands, however, while a
compliment to the Section 106 consultation process, is not a substitute for
compliance with Section 106. Likewise, archeological data recovery and
similar mitigative actions developed pursuant to Section 106 must also meet
Graves Protection Act requirements when they occur on Federal or tribal
lands.
As stated in the Council's memorandum (Appendix A), the "normal" 106 process
that leads to binding agreements on how to treat historic properties could
be used to reach agreements under the Graves Protection Act on how to treat
Native American human remains and other cultural items that may be
encountered as a result of a project on Federal or tribal lands. The
specific provisions of the Graves Protection Act can be addressed in the
consultation stage of the Section 106 process, with agreements reached on:
(1) the specific Native American organizations with an ownership interest in
any human remains and other cultural items that may be recovered;
(2) the kinds of artifacts that will be considered to be cultural items as
defined in the Graves Protection Act, including associated and unassociated
funerary objects, sacred objects, or objects of cultural patrimony;
(3) the kinds of analysis and curation to which the material will be
subjected, along with a schedule for any disposition of the material; and/or
(4) a specific course of action to be taken should human remains and other
cultural items be encountered unexpectedly during a project.
Such discussions and any formal agreement must include the Federal agency
and the appropriate Tribe of Native Hawaiian organization. In order to
coordinate any conditions to this agreement with Section 106 requirements,
these parties may wish to include in the discussions the SHPO, the Council
(if participating), and the licensee or permittee (if applicable). These
discussions could lead to an agreement that forms the basis for any ARPA
permit that may be required and could be incorporated (directly or by
reference) into the Section 106 documentation .
V. C. 2. Inadvertent Discovery
The intention of this section of the statute is to deal with cultural items
not anticipated, but discovered, uncovered, or disturbed during undertakings
on Federal or Tribal lands. This includes situations such as finding human
remains or other cultural items in areas where no sites were anticipated or
discovered during archeological surveys done as part of project planning
(i.e., buried sites not visible from surficial examination). If cultural
items are discovered during such activities as construction, logging,
mining, or agriculture, this law requires agencies or non-Federal users to:
cease the activity in the area of the discovery, make a reasonable effort to
protect the items discovered before resuming such activity, and provide
notice (to the appropriate Federal agency or Tribal official)....Upon
certification by the Secretary of the department or the head of any agency
or instrumentality of the United States or the appropriate Indian tribe or
Native Hawaiian organization that notification has been received, the
activity may resume after 30 days of such certification."
This section thus requires that activity in the area shall cease, although
the project may continue elsewhere. Once notification has been received by
the agency or Tribe, the consultation described above in V. C. 1. and
Section 3(C) of the statute must occur and be documented. Preservation of
the cultural items in situ as the preferred orientation in such cases.
Regarding notification, if the project is on Federal lands the notice must
be provided to the appropriate agency, as well as the appropriate Native
American groups. If it is on tribal lands, the appropriate Indian tribe
must be notified. Upon certification that notification has been received,
the activity may proceed following a 30 day delay.
The Council's regulations (36 CFR 800.11) encourage agencies to develop a
plan for dealing with unexpected discoveries of archaeological materials
during a project. Appendix A provides some of the details.
V. D. Discussion: The 30-Day Delay Provision and Proactive Memoranda
The statute implies that the 30-day period is mandatory, although
regulations may permit a shorter cessation of activity if a proactive
Memorandum of Understanding is in place prior to project initiation. Such
memorandaum would identify the nature of the undertaking and identify
methods of treatment, handling, and disposition of cultural items that might
be encountered. Moreover, it would delineate clearly procedures to
streamline the notification, consultation, and agency or tribal response
process. It also would allow for Native American ceremonial, ritual, or
other activity attending the discovery of any human remains or cultural
items.
Although the statute mandates a 30 day delay, the reports accompanying the
statute provide the following expasion or intent.
An Indian tribe or Native Hawaiian organization may, after notification,
determine the appropriate disposition of any remains or objects found on
these lands. Under this notification process, an Indian tribe may determine
the appropriate disposition of any remains or objects without significant
interruption of the activity . "The Committee intends this section to
provide for a process whereby Indian tribes and Native Hawaiian
organizations have an opportunity to intervene in development activity on
Federal or tribal lands in order to safeguard Native American human remains,
funerary objects, sacred objects, or objects of cultural patrimony. Under
this section, Indian tribes and Native Hawaiian organizations would be
afforded 30 days in which to make a determination as to the appropriate
disposition for these human remains or objects. The Committee does not
intend this section to operate as a bar to the development of Federal or
tribal lands on which human remains or objects are found. Nor does the
Committee intend this section to significantly interrupt or impair
development on Federal or tribal lands...(Senate Report 101-473)
Section 11 (1)(B) seems offer the to potential for entering into proactive
Memoranda with respect to inadvertent discovery situations, but its
application may require the development of regulations.
Section 11(1)(B) preserves the right of all parties to enter into other
mutually agreeable arrangements than those provided for in this Act. The
Committee encourages all sides to negotiate in good faith and attempt to
come to agreements, where possible, which would keep certain items available
to all those with legitimate interests (House report 101-877, pg. 16)
The Relationship Between the Graves Protection Act's Inadvertent Discovery
Provisions and the NHPA's Section 106 Compliance Provisions
The Section 106 consultation process offers an operational template for
addressing similar issues under the Graves Protection Act, as well as an
opportunity to initiate a consultation process. However, there are major
statutory differences that preclude completely merging the two consultation
processes.
Section 106 consultations entail the Advisory Council on Historic
Preservation, the State Historic Preservation Officer, Federal agencies, and
Native American tribal governments, and as appropriate, traditional
religious leaders. Rarely, they may involve museums or repositories. The
Graves Protection Act inadvertent discovery consultations involve Federal
agencies and Indian tribes or Native Hawaiian organization. Under the
Graves Protection Act, there is no necessary consultation role for the
Advisory Council or the State Historic Preservation Officer.
Section 106 applies to work done using Federal funds or requiring Federal
permits or licenses. The Graves Protection Act's inadvertent discovery
provision applies only to Federal or tribal lands. Thus, there is no
specific applications link between these two statutes. Appendix A provides
additional detail.
Also, as previously noted, repatriation is not an undertaking as defined by
the Advisory Council's procedures, except under very rare circumstances
wherein objects to be repatriated are listed on the National Register of
Historic Places.
VI. CONCLUDING STATEMENT
All Federal agencies, all federally funded museums, and all Indian tribes
and Native Hawaiian organizations are encouraged to collaborate in
developing creative and mutually respectful solutions to the challenges
posed by this important piece of legislation. Regardless of whether dealing
with materials once viewed as in Federal ownership or museum stewardship,
all citizens of the United States have an interest in this important
component of national patrimony.