Date: Sat, 29 Jun 91
To: Interested Parties
From: Departmental Consulting Archeologist
Subject: Draft Memorandum with Advice Regarding the
Implementation of the Native American Graves
Protection and Repatriation Act--Request for Comments
We have prepared this draft memorandum to assist Federal agencies,
Indian Tribes and Native Hawaiian organizations, and museums that receive
Federal fund in implementing the Native American Graves Protection and
Repatriation Act. We have attempted to describe the requirements of the
statute accurately and to use information from the Committee reports to
supplement the language of the statute where additional clarification of
intent is helpful. In places we have offered recommendations of actions
that should be taken to begin implementation of the statute. Our
recommendations are only the best advice that we can provide at this time.
They are not regulations or the precursors of regulations in any formal
sense.
We have prepared this advice for two reasons. First, since the new
statute went into effect, we have been asked and have tried to answer many
questions about various aspects of it. We felt that summarizing what we
knew and thought about the requirements and implementation of the statute
in a single document would help us to answer these questions with
consistency and rigor. Frankly, there have been instances in which the
statute has been misinterpreted or miscited; we hope this memorandum will
prevent these kinds of errors. The second reason for the memorandum is to
urge the parties responsible for actions under the law to begin working on
some aspects of its implementation.
We also hope that the advice here will help in developing specific,
positive applications of the law. We plan to produce a final document for
wide circulation to Federal agencies, Indian Tribes and Native Hawaiian
organizations, museums, and other interested parties in early July. Please
submit any comments that you have on this draft by the close of business,
July 3, 1991. Between then and July 10 we shall use the comments to
prepare a final memorandum. It is our intention to send the memorandum out
by 12 July. We appreciate the time each of you may take to provide input
on developing the best possible discussion of the statute and suggestions
for beginning implementation. If you have questions or comments, please
call Larry Nordby or me at (202) 343-4101, or fax them to us at (202)523-1547.
ADVISORY MEMORANDUM REGARDING IMPLEMENTATION OF
THE NATIVE AMERICAN GRAVES PROTECTION AND
REPATRIATION ACT OF 1990
DEPARTMENTAL CONSULTING ARCHEOLOGIST
ARCHEOLOGICAL ASSISTANCE DIVISION
NATIONAL PARK SERVICE
26 JUNE 1991--DRAFT
TABLE OF CONTENTS
I.INTRODUCTION
II. PURPOSE OF THE GRAVES PROTECTION ACT AND IMPLEMENTATION
APPROACH UNDER THIS MEMORANDUM
III. RESPONSIBLE ORGANIZATIONS
A. Indian Tribes and Native Hawaiian Organizations
1. Cultural Affiliation as Established by the Statute
B. Museums Receiving Federal Funds
C. Federal Agencies
D. Secretary of Interior/Departmental Consulting Archeologist
E. The Native American Graves Protection And Repatriation
Review Committee
F. Potential Consulting Organizations
1. The Advisory Council on Historic Preservation
2. The State Historic Preservation Officers
IV. WHAT IS COVERED: DEFINITIONS OF CULTURAL ITEMS
A. Clarification of Cultural Item Definitions
V. RESPONSIBILITIES AND ACTIVITIES
A. Repatriation and Related Activities Required of Federal
Agencies and Museums Receiving Federal Funds
1. Statutory Requirements Pertaining to Inventory, Summary,
Notification, and Repatriation
2. Statutory and Operational Differences Between Federal Agencies
and Museums Receiving Federal Funds
3. Flexible Approach
4. Suggested Repatriation Process
5. Disposition
B. The Role of Indian Tribes, Native Hawaiian Organizations,and
Traditional Religious Leaders in Repatriation Activities
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 the Graves Protection Act Section 3
Provisions and NHPA's 106 Compliance Provisions
VI. CONCLUDING STATEMENT
APPENDIX A. ACHP MEMORANDUM (not included in this draft)
APPENDIX B. STAFF DIRECTIVE 84-5 (not included in this draft)
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 lineal
descendent 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. The law has generated
widespread interest among Native Americans, museum professionals, and
Federal agency employees charged with meeting its requirements.
This document has been prepared in order to answer the many questions
from various parties that have arisen on implementation procedures and
attendant issues, and is offered only as an advisory memorandum for Indian
tribes, Federal agencies, and museums receiving Federal funding. The exact
means of implementing the statute must await formal regulations developed
using the public review process. Consequently, much of the specificity
found in regulations has not yet been and cannot be achieved at this time.
This memorandum is 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 this memorandum is encouraged to read
carefully the text of the Graves Protection Act, as well as to become
familiar with the Reports. Under the Graves Protection Act, Federal
agencies and museums receiving Federal funds are required to inventory some
kinds of cultural items and develop summaries for 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 lineal
descent or cultural affiliation. Such items must be repatriated if
requested by lineal descendants or culturally affiliated groups.
One of the clearest intentions of the law is the protection of Native
American graves and other cultural items. This approach encourages
avoidance of archeological sites that contain burials or those portions of
sites that contain graves through in situ preservation, but may encompass
other actions to preserve these remains and items. Therefore, it is
advantageous for Federal agencies and Tribes undertaking land-modifying
activities on their lands to precede them with as intensive archeological
surveys as possible. This will help agencies and tribes 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.
Other provisions of the Act may be summarized as follows: (1) it
stipulates that illegal trafficking in human remains and cultural items may
result in civil penalties; (2) it authorizes the Secretary of the Interior
to administer a grants program to assist museums and Indian Tribes in
complying with this law; (3) it requires the Secretary of the Interior to
establish a Review Committee to provide advice in carrying out key
provisions of the statute; and (4) it directs the Secretary to develop
regulations in consultation with this Review Committee.
II. PURPOSE OF THE GRAVES PROTECTION ACT, AND IMPLEMENTATION
APPROACH UNDER THIS MEMORANDUM
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 requires that
Federal agencies and museums receiving Federal funds 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).
Once cultural affiliation and the right of possession has been
demonstrated, Indian tribes or Native Hawaiian organizations normally make
the final determination on the disposition of human remains or cultural
objects defined by the statute. Many objects found in archeological sites
or collections are not covered by the statute, however, and may remain in
Federal or museum ownership.
Both the statutory language and the Committee reports create the context
for an effective implementation approach. It requires consultations and
encourages agreements between Indian Tribes, Federal agencies, and museums
receiving Federal funds. The Committee Reports express the hope that these
discussions will lead to a better understanding of the historic and cultural
values of remains and objects. Although human remains must at all times be
treated with dignity and respect, the important role that museums play in
educating the public and increasing social awareness about the nation's
history is also noted (Senate Report 101-473:5-6).
The implementation process identified in the remaining sections of this
advisory memorandum deal primarily with the two major activities called for
in the new statute. These are (1) repatriation and associated activities,
and (2) care and disposition of cultural items recovered during planned or
unanticipated excavations. The format used is first to identify the
responsible organizations and other potential participants (Section III);
next to explore issues raised by the definitions of cultural items (Section
IV); and finally to discuss the activities required of or recommended for
Federal agencies, museums receiving Federal funds, and Indian tribes and
Native Hawaiian organizations involved in repatriation or excavation
activities (Section V).
III. RESPONSIBLE ORGANIZATIONS
Executing the provisions of the Graves Protection Act involves three
primary participants: Federal agencies, museums receiving Federal funds,
and Indian Tribes and Native Hawaiian organizations. This section
summarizes the roles of each, applying the statutory definitions, Committee
Reports, and opinions of this office. Additional and more specific
information on responsibilities of each organization is given in Section V.
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, generally associated with excavations
only. Whenever it is possible to use existing Section 106 consultation
networks, they may serve as potential facilitators.
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 Federally 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. These agencies have independently derived
definitions that include but extend beyond the list of formally recognized
Tribes.
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 lineal descent or cultural affiliation with human
remains and 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
'Cultural affiliation' is a key concept for implementing this statute.
It is one cornerstone for repatriation requests, and is a condition of
Native American consultation rights concerning excavations. Section 2
defines cultural affiliation as:
"a relationship of shared group 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 members of their
tribe. Although tribes need not be Federally recognized to be potential
claimants, we believe they must have a shared tribal identity that extends
backward in time somewhat. Federally recognized tribes would still need to
show cultural affiliation with a given set of cultural items.
Section 3 of the Act defines a rank order for establishing cultural
affiliation, with cultural items recovered during excavations following the
date of enactment. It applies only to planned excavations or unanticipated
discoveries. This ranking and its application to the different classes of
human remains and cultural objects is as follows:
For human remains and associated funerary objects, affiliation established
by lineal descendents takes precedence over affiliation established by all
other potential claimants.
Although lineal descent is not defined in Section 2 of the statute or
explained in the accompanying Committee reports, we interpret this term to
mean a direct genetic or familial tie reasonably established between
generations of an extended family, clan, or lineage. This interpretation
might extend to families of documented descendents that are not members of
Federally recognized tribes.
Consultations regarding any other newly discovered materials entail
working with affiliated tribes, vis-a-vis descendents. Applications might
include the following considerations:
For human remains and associated funerary objects not claimed by lineal
descendents, as well as unassociated funerary objects, sacred objects, and
items of cultural patrimony, the statute provides a context for judging
among potentially competing affiliated tribes or other entities, in the
following priority order:
(1) Indian Tribes or Native Hawaiian organizations on whose Tribal lands the
cultural items are discovered;
(1) 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 were recovered from Federal land formally recognized by a final
judgment of the Indian Claims Commission or the U.S. Court of Claims as the
aboriginal land of some Indian tribe, proper affiliates may be the Indian
Tribes recognized as aboriginally occupying the area from which the items
were excavated.
Regarding (3), if a preponderance 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 affiliates.
No Tribe needs to establish beyond all
doubt that it is a proper claimant for purposes of repatriation. This also
is true for claims of cultural affiliation in situations dealing with newly
discovered materials. As stated in the Senate Committee Report:
The types of evidence which may be offered to show cultural affiliation may
include, but are not limited to, geographical, kinship, biological,
archaeological, anthropological, linguistic, oral tradition, or historical
evidence or other relevant information or expert opinion. The requirement
of continuity between present day Indian tribes and materials from historic
or prehistoric Indian tribes is intended to ensure that the claimant has a
reasonable connection with the materials. Where human remains and funerary
objects are concerned, the Committee is aware that it may be extremely
difficult, unfair, or even impossible in many instances for claimants to
show an absolute continuity from present day Indian tribes to older,
prehistoric remains without some reasonable gaps in the historic or
prehistoric record. In such instances, a finding of cultural affiliation
should be based upon an overall evaluation of the totality of the
circumstances and evidence pertaining to the connection between the claimant
and the material being claimed and should not be precluded solely because of
gaps in the record (Senate Report 101-473:9).
Partially in response to the foregoing perspective, many concerns have
been voiced about the issue of time depth and its applications to the
cultural affiliation issue. Some of these questions are: Are there any
properly affiliated claimants for human remains or cultural objects assigned
to Paleoindian, Archaic, or other 'extinct' cultures? Is there a limit on
the number of generations, centuries, or years that may have elapsed since
the materials were deposited and the current repatriation request or
involvement in any consultations? How do the issues of different occupation
of the same geographical area and implications of temporal depth interact?
The statute does not address the issue of "extinct" cultures, chronology,
and time depth. Consequently, at this time it is premature to offer any
opinion. Regulations developed in a public forum will be needed.
III. B. Museums Receiving Federal Funds
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)).
The issue of how much Federal funding must be received by museums as a
requisite for compliance with the Act is unknown and must await regulations
development. Many Federal agencies supply financial support to museums, and
most museums receive at least some support. The committee reports are
silent on this issue.
A more lengthy summary of museum activities is given in Section V;
however, two aspects of the work done by museums seem appropriate to mention
at this point:
(1). 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 on behalf of Federal agencies or Tribes if
these entities request it, however for human remains and cultural items
traditionally viewed as Federal property, each agency must ensure that
inventories or summaries are done either within each agency structure or by
a repository. Under this view, Federal agencies are merely transferring the
workload to the museum, not the responsibility.
(2). Museums are
required to conduct inventories or written summaries of all cultural items
(as defined in Section IV of this memorandum and Section 2 of the statute)
within their collections regardless of their means of accession or
geographical point of origin. These activities must also be followed by
notification of culturally affiliated tribes or Native Hawaiian
organizations.
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 or controlled by them, 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. In keeping
with the view given above regarding museums, Federal agencies are
responsible for the inventory, summary, and potential disposition of
cultural items in non-Federal repositories.
III. D. Secretary of the Interior
The statute assigns Federal governmental responsibility 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 along with any rules and
regulations for its operations; and (3) promulgate regulations for
implementing the statute
In addition, the Secretary may do the following:
(1) develop and administer a grants 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.
Selected Secretarial responsibilities will be delegated to 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.
Many questions have been raised about the grants program
referred to in Section 10. Statutory language authorizes the Secretary of
the Interior to make grants to museums and tribes. The statute does not
create a grants program, leaving program establishment and the options for
funding with the Executive branch or Congress. As of this writing, the
program has not been officially established, nor has funding been
appropriated.
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. We anticipate that
information on site locations will remain confidential with respect to any
of its actions or deliberations, however.
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 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 are to be developed in
consultation with the Committee. The Committee must compile an inventory of
culturally unidentifiable human remains that are in the possession or
control of each museum and Federal agency, and recommend specific actions
for developing a process for disposition of such remains. Each year, the
Committee is to submit a report on this disposition process to Congress.
Although the statute assigns many important roles to the Committee, which
has advisory responsibilities of national scope, most matters concerning
repatriation, inventory, and potential agreements attending to excavation
are best approached through agreements negotiated by local agency offices,
museums, and Native Americans. It is anticipated that the Committee's role
in consulting and dispute resolution will only be invoked when such
agreements are not possible.
III. F. Potential Consulting Organizations
Two other potential contributors to negotiations might include the
Advisory Council on Historic Preservation and the State Historic
Preservation Officers. It is anticipated that these two entities will have
a minimal role in dealing with repatriation and related activities. The
degree of involvement for excavation activities depends on how appropriate
and feasible it is to merge the Section 106 compliance process from the
National Historic Preservation Act with Section 3 of the Graves Protection
Act. Applications on a case-by-case basis are recommended at this time.
Ultimately, any possible integration of the two processes must follow the
regulations development process and a policy decision reached following
public review.
III. F. 1. 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 FR 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
Council's view of 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.
III. F. 2. 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 museums
receiving Federal funds to the repatriation, care, and disposition of human
remains and four kinds of cultural items in accordance with the wishes of
the culturally affiliated American Indian Tribes and Native Hawaiian
organizations. The kinds of remains and the artifacts covered by provisions
of the statute are: (1) human remains and associated funerary objects; (2)
unassociated funerary objects; (3) sacred objects; and (4) 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 still retain their
association with the human remains. It applies to all objects which are
stored together as well as objects for which an adequate record exists that
permits the reasonable re-creation of an association between the objects and
the human remains that they once accompanied. This may include materials
located in a different repository from the human remains. Some items from
burials may also not have been so placed as part of a death rite.
Unassociated funerary objects are items that are reasonably believed to have
been taken from burial sites, but are no longer in association with the
human remains of a burial, and there is no adequate existing documentation
that will permit reestablishing the specifics of the association. As noted
above, 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 associated.
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). 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).
Additional information is supplied by the House Report: The definition of
"sacred objects" is intended to include both objects needed for ceremonies
currently practiced by traditional Native American religious practitioners
and objects needed to renew ceremonies that are part of traditional
religions. The operational part of the definition is that there must be
"present day adherents" in either instance. (House Report 101-877:14). The
key provision in this definition is whether the items are needed to practice
or renew traditional religions, with the need determined by a religious
leader with adherents, as well as some specificity regarding the objects
requested.
Refinement of this definition through the regulation development process
will involve defining such terms as "religious leaders," "traditional," and
"religious use." For example, some have asked questions such as, "How much
time depth is appropriate for a practice or ceremony to be considered
'traditional?'"
Objects of Cultural Patrimony are defined in the statute as having:
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" suggest an application
toward ethnographic rather than archeological objects, and we believe that
it probably includes few of the latter. 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
Hawaiian organization.
Having reviewed the definitions of human remains and cultural items, it
is apparent that many objects in archeological or ethnographic collections
are not covered by the statute, because they lack a funerary,
ceremonial/religious, or patrimonial context. These objects would be
retained in existing repositories with appropriate treatments and care
attending the curatorial and conservatorial professions.
V. RESPONSIBILITIES AND ACTIVITIES
There are two basic sets of activities required by the new statute.
These are (1) repatriation and associated activities; and (2) treatment,
care, and disposition of cultural items recovered on Federal or Tribal
lands, either by intentional excavations or by inadvertent discovery
following the date of enactment. The remainder of this section discusses
the nature of and processes attending to each of these activities.
V. A. Repatriation and Related Activities Required of Federal Agencies and
Museums Receiving Federal Funds
As in much of this statute, consultation between Federal agencies,
museums receiving Federal funds, and appropriate Native American groups is a
critical component of all activities associated with repatriation.
Much of this consultation will probably involve individual agency or
museum accessions on a case-by-case basis. These accessions may range in
size from a single item to thousands of items, and the existing quality of
documentation is similarly variable. The statute states that whatever
decisions are made in addressing repatriation requests and inventory are
based on the available documentation; however, museums and Federal agencies
will need time to assemble documentation in some cases, and apply it to the
human remains and cultural items in their holdings. In other cases museums
and Federal agencies may have adequate documentation and cultural items can
be expeditiously returned upon request from a group that is able to
demonstrate cultural affiliation.
These various factors create the need for a flexible system that permits
expeditious repatriation of individual accessions as soon as the inventory,
or portion of the inventory that is related to particular items of interest,
is completed. We recommend that consultations and other communications
related to inventories, written summaries, and repatriation requests occur
at the local level. Individual museums and agency offices responsible for
collections containing cultural items should consult with Native Americans
concerning the particular items with which they may be affiliated.
V. A. 1. Statutory Requirements Pertaining to Inventory, Summary, and
Notification
Within five years of enactment, Federal agencies and museums receiving
Federal funds must each complete an inventory of human remains and
associated funerary objects that they hold or control. These inventories
are to be done in consultation with tribal government and Native Hawaiian
organization officials, and traditional religious leaders. Both during and
after these inventories, it shall be available to the Review Committee. The
inventories must be followed by notifications of affiliated tribes within
six months of completion.
Within three years of enactment, Federal agencies and museums receiving
Federal funds must complete written summaries of unassociated funerary
objects, sacred objects, and objects of cultural patrimony that they hold or
control. These are to be followed by consultation with tribal government or
Native Hawaiian organizations and traditional religious leaders. Upon
request, access to this information shall be provided to Indian tribes and
Native Hawaiian organizations.
Museums receiving Federal funds and Federal agencies must repatriate
materials upon request by a culturally affiliated group under certain
circumstances. These are described in Section V.A.4 of this memorandum.
V. A. 2. Statutory and Operational Differences Between Federal Agencies and
Museums Receiving Federal Funds
In many ways the Graves Protection Act views these two kinds of entities
as interchangeable, but there are some differences, keeping in mind that the
Act views any Federally owned museum or repository as an agency.
Agencies
Agencies should initiate contacts with museums that retain Federal
collections, and should examine in-house records for agency operated
repositories. Since federally owned and operated repositories are
considered parts of Federal agencies under the statute, 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 shift or increase their allocation of resources to
carry out this obligation.
Defining the Federal interest in collections held by non-Federal
repositories is of considerable importance to agencies. In some collections
resulting from multi-agency projects, this process would entail
identification of the agency who traditionally has managed or owned the
material, generally through consultations between collaborating agencies and
the repository. Early resolution of such potential ambiguities will help
identify Federal interests. Federal agencies uncertain of their
responsibilities for archeological collections should consult 36 FR 79,
especially Section 79.3.
Another issue at the interface of Federal agency and museum relationships
involves who is responsible for initiating consultations, inventories,
notification, and disposition. We have noted some disagreement on this
issue. Some Federal agencies view themselves as the party of primary
responsibility, since potential disposition of Federal property is involved.
Others wish to convey the challenges of dealing with these cultural items to
the administration of the non-Federal repository where they are located.
Museums sometimes do not wish to wait for Federal agencies to start
addressing their legal responsibilities under the statute, because they fear
that delays will result in a museum being unable to meet statutory deadlines
or other requirements and being subject to civil penalties.
This is a complex issue, but we believe that since these materials are
Federal property, it is primarily the agency responsibility to comply.
Agencies may transfer the work load, but not the responsibility to comply
under such situations. We believe that this implies that Federal agencies
should initiate consultation with Native American groups that are likely to
be affiliated with cultural items in collections for which they are
responsible. These consultations should be undertaken in close coordination
with any museum(s) that hold the items being discussed.
Following the beginning of consultation, Federal agencies should
immediately begin to address the need to inventory and develop written
summaries of cultural items for which they are responsible. Obviously,
agencies must work closely with museums that hold their collections to
initiate and carry out these activities.
Federally-funded museums
Museums will have access to any grants program that may be established
under the statute in order to assist them in completing their inventories.
Requirements for the grants program will be identified during the regulation
writing process. Museums holding collections that are Federal agency
responsibilities may be able to apply for grants to inventory such
materials. Museums also may request an extension from the Secretary of the
Interior if their inventories are incomplete after five years. Extensions
of time for the inventories may only be granted if the museums can show what
the statute defines as a "good-faith effort," at minimum, a plan for
complying with the statute; however, the presence of a plan will not
guarantee an extension. If museums do not comply with the law, they face
civil penalties that may be assessed by the Secretary of Interior. Finally,
Section 7(f) provides that any museum which repatriates any item in good
fair pursuant to this Act shall not be liable for claims by an aggrieved
party or for claims of breach of fiduciary duty, public trust, or violations
of state law that are inconsistent with the provisions of this Act. No such
protection is offered to Federal agencies.
V. A. 3. A Flexible Process
The variable sizes of accessions for cultural items and the diverse
quality of documentation suggest that implementation flexibility is needed.
Another factor is the difficulty for museums and Federal agencies in
identifying all potential affiliates with which to consult prior to knowing
the items comprising an inventory. Often, not enough specificity is known
about either the tribe or the human remains or associated items. We
recommend that agencies and museums develop a broad strategy consisting of
the following elements:
1. identify lineal descendents or affiliated groups
as specifically as possible through consultation or using extant
documentation
2. consult with the individuals or groups on what is planned,
3. begin the inventories and written summaries.
Expansion of the foregoing outline provides a suggested operational
approach. Although what is presented is a step-by-step approach, some
cultural items might move through the steps more rapidly than others.
Examples might be items of particular interest to a lineal descendent, or a
specific collection of objects of interest to a documented culturally
affiliated group. The recommended steps are: (1) consultation, (2)
inventory, (3) notification, and (4) disposition and repatriation.
Consultation
Agencies and museums should first identify appropriate American Indian
Tribes, Native Hawaiian organizations, known lineal descendents, and
traditional religious leaders that have an interest in various components of
their collections, because activities associated with repatriation should be
executed in consultation with these groups. Although often it may seem
difficult to identify potential culturally affiliated groups given the level
of documentation for an accession, agencies and museums are encouraged to
expend considerable attention to this task, recognizing that the current
proximity between tribes and the locations where materials were recovered is
not the sole measure of potential affiliation and that traditional religious
leaders and known lineal descendents are as important an inclusion in
consultations as secular tribal governments.
If feasible, museums and agencies may wish to form a consultation group of
interested parties for each of their various accessions or different parts
of collections. Ultimately, agencies could develop data bases linking
affiliated groups with cultural items from certain areas. The Inventory
Process Once contact has been initiated, inventory tasks might include:
(1) Develop an inventory plan.
This plan will assist agencies or museums in meeting their
responsibilities under the statute. Such a document would help 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
inventory plan may be quite variable, based either on portions of the
collection or the entire holdings of a museum or agency.
(2) Conduct the inventory.
The statute defines an inventory as an itemized list. Inventory listings
should contain enough descriptive information to describe the cultural items
being listed. The listing also should describe the documentation available
about each item. "Documentation" means an examination of agency records, any
accession records or catalogues, studies, or other materials that might have
a bearing on the (a) geographic origin, (b) cultural affiliation, and (c)
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 the Review Committee may have
access to the documentation during this process; however, information on
site location that could lead to looting or vandalism should not be
released. The initiation of studies to acquire new scientific information
is not required as part of the inventory.
Develop a written summary.
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.
Notification
Agencies or museums must formally 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. This one-time notification process is different from the
interactive and hopefully frequent consultation process, since it involves a
wider audience than any group developed during consultation. Finally, if
requested, information discovered during the inventory shall be made
available to Indian tribes or Native Hawaiian organizations.
The statute does not require the same formal notification procedures
following the completion of the written summary. Consultation with Tribal
and Native Hawaiian organization officials and traditional religious leaders
is required. Presumably, these consultations should take place between
agencies and museums and the tribes, Native Hawaiian organizations or lineal
descendents identified as having likely cultural affiliation with some of
the items covered by the written summaries.
V. A. 4. Suggested Repatriation Process
We believe the following perspective on repatriation actions to be
consistent with the Standard of Repatriation stated in Section 7(c) of the
Act. With respect to human remains and associated funerary objects, the Act
provides that where (1) the cultural affiliation of the material with the
requesting tribe or individual has been established by the museum or Federal
agency as part of its inventory process or (2) cultural affiliation has been
clearly proven by the requesting party, the material must be expeditiously
returned to the requesting lineal descendent or tribe. In the event that
research essential to the national interest is being conducted on such
materials, return can be delayed until the research has been completed.
Museums and agencies are not required to repatriate unassociated funerary
objects, sacred objects, and objects of cultural patrimony unless the
claimant can demonstrate all of the following: (a) the objects conform to
the definition for an unassociated funerary object, sacred object, or object
of cultural patrimony; (b) cultural affiliation exists for these kinds of
items; (c) sacred objects were in the claimant's ownership or control; and
(d) uncontested evidence presented by the claimant exists that would
establish a right of possession to such object.
Once these four issues are satisfied, the Federal agency or museum must
return the object if it agrees that the object is properly classified and
agrees that it has no right of possession. If museums or agencies disagree
with the claimant regarding the classification with respect to the
application of the statutory definition, or has evidence that convey to them
the right of possession, no return is required. Disputes can them be
resolved with the help of the Review Committee or in court.
As is implied
by the foregoing, a key factor in determining ownership is the right of
possession. This is defined in Section 2 of the statute as:
"possession obtained with the voluntary consent of an individual or group
that had authority of alienation. The original acquisition of a Native
American unassociated funerary object, sacred object or object of cultural
patrimony from an Indian tribe or Native Hawaiian organization with the
voluntary consent of an individual or group with authority to alienate such
object is deemed to give right of possession to that object....The original
acquisition of Native American human remains and associated funerary objects
which were excavated, exhumed, or otherwise obtained with full knowledge and
consent of the next of kin or the official governing body of the appropriate
culturally affiliated Indian tribe or native Hawaiian organization is deemed
to give right of possession to those remains. Cultural items under
scientific study also must be returned expeditiously upon request by
affiliated Native American groups unless 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))."
We expect that the regulations will supply some examples of studies of
this type. In any case, these items must be returned within 90 days of the
completion of any such specific such scientific study.
V. A. 5. 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 culturally affiliated
Indian Tribes and Native Hawaiian organizations have the final word for
items covered by the statute.
Section 11 (1)(b) provides for the possibility that dialogue between
agencies, museums, and culturally affiliated Native Americans 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 the Tribe 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.
Another issue relating to disposition is the administrative aspect of
deaccessioning materials and the legal requirements surrounding disposition
of Federal property. Generally, museums and Federal agencies have their own
processes for deaccession or disposition of property. These processes may
not incorporate repatriation, however. Although attempts to create a single
process for use by Department of Interior bureaus are underway, any final
unifying process remains in the future.
Aside from the prohibitions against illegal 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. B. The Roles of Indian Tribes, Native Hawaiian Organizations and
Traditional Religious Leaders In Repatriation Activities
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 that are of interest.
A second activity would be to begin to assemble documentation to help
establish a valid claims to cultural items. Examples of these kinds of
evidence are oral or traditional evidence, linguistic, 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, which will be seeking guidance initially on
what materials are of interest to individual tribes. We recommend early
interaction and frequent consultation. Indian Tribes and Native Hawaiian
organizations may request access to materials once they have been notified
that the inventory or the portion of an inventory for items they are
particularly concerned about, is complete.
Native American groups that 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.
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 although the regulations may set a time limit for these
responses. The statute only requires repatriation for those items that
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.
We presume that agencies or museums will continue to care for unclaimed
cultural items in accordance with curatorial and museum standards as well
as with dignity and respect. Some examples might include when: (1) there
is no response from the Tribe or Native Hawaiian organization that was
notified; (2) the Tribe or Native Hawaiian organization acknowledges the
contact, but do not request anything; (3) the Tribe or Native Hawaiian
organization relinquishes its ownership rights to the material; or (4) the
Tribe or Native Hawaiian organization and the agency or museum reach an
agreement that the agency or museum will continue to curate the items. The
regulations will identify ways to dispose of any items not claimed under
the provisions of this statute that the agency or museum does not wish to
retain.
V. C. Intentional Excavation and Inadvertent Discovery of Native American
Remains and Objects
This section of the memorandum discusses human remains and cultural
items removed from Federal or Tribal lands after November 16, 1990. 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, including research. This term also applies to
undertakings and developments that 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.
For example, this might include the excavation of a Puebloan trash mound
into which burials were later placed.
Federal agencies are encouraged strongly to precede undertakings with
comprehensive archeological survey work designed to discover the locations
of cultural items during the early stages of project planning whenever
possible. This is because 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.
Section 3 calls for removal of human remains and cultural items only
under the following conditions: (1) pursuant to an Archaeological Resources
Protection Act (ARPA) permit; (2) after consultation with Tribes, or
evidence of attempts to consult, in cases involving 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. ARPA Permits and the Graves Protection Act Regarding the issue of
whether Federal 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 (e.g., 43 FR Part
7). These regulations do not require permits for Federal employees working
in conjunction with their agency duties,nor do they require that
contractors hold them. Agencies must ensure, however, that the
investigations are carried out according to the requirements imposed upon
archeological work by ARPA.
Some have asked whether excavation of inadvertently discovered sites
might be identified as an activity as part of an ARPA permit, and whether
permit issuance would thus "create" a planned excavation scenario. Although
this may ultimately be possible using the regulations, we believe it is
premature to recommend this practice.
The Graves Protection Act requires consultation to determine appropriate
treatments of human remains and other cultural items. The requirement 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 archeological 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 meet Graves Protection Act
requirements when they occur on Federal or tribal lands.
The specific
provisions of the Graves Protection Act that should be addressed in the
consultation stage of the Section 106 process, with agreements reached on:
(1) the specific Native American organizations with cultural affiliation 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 cultural items will be
subjected, along with a schedule for any disposition of the items; 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 or 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 by
reference into the Section 106 documentation.
As is apparent from much of the preceding discussion, the National
Historic Preservation Act, the Archeological Resources Protection Act, the
American Indian Religious Freedom Act, and attendant implementation
regulations currently on the books must be evaluated during the development
of Graves Protection Act regulations.
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 (Section 3(d)).
This section thus requires that activity in the area shall cease,
although activities may continue elsewhere in the project area. 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. We believe that the statute identifies preservation of the
cultural items in situ is the preferred orientation when possible.
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 FR
800.11) encourage agencies to develop a plan for dealing with unexpected
discoveries of archeological materials during a project.
Appendix A provides some of the details. Inadvertent discoveries also
require that agencies follow either the Advisory Council's procedures or
those established for P.L. 93-291 to prevent the loss of important
scientific information. This latter approach is described in N.P.S. Staff
Directive 84-5, included as Appendix B.
V. D. Discussion: The 30-Day Delay Provision and Proactive Memoranda
The statute requires a 30-day response period following an accidental
discovery. Many Federal agencies have questioned whether or not this
period could be modified through consulting and reaching a proactive
agreement with affiliated Indian tribes or Native Hawaiian organizations,
normally on a case-by-case basis.
Such hypothetical memoranda would identify the nature of the undertaking
and methods of treatment, handling, and disposition of cultural items that
might be encountered. Moreover, they would delineate procedures to
streamline the notification, consultation, and agency or tribal response
process. Because of the unequivocal nature of the statutory language, we
view this approach as unlikely.
If feasible, this approach would be based on language found in the
accompanying Committee Reports:
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).
Finally, Section 11 (1)(B) might offer the potential for entering into
proactive Memoranda with respect to inadvertent discovery situations, but
its application will require the force 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)
To restate, we believe that this approach is unlikely. A second
hypothesized approach for dealing with the 30-day delay provision is to
utilize the ARPA permitting process, as discussed previously. Under such
circumstances, consultations would lead to an agreement document, and the
conditions of the agreement stipulated in an ARPA permit, which the becomes
an instrument that helps to demonstrate consultation, streamline
notification and response time, and identify care, treatment, and
disposition.
V. E. The Relationship Between the Graves Protection Act Section 3
Provisions and 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
statutory differences that preclude merging the two consultation processes
and agreement documents. 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
organizations. Under the Graves Protection Act, there is no direct
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. Section 3 of the Graves
Protection Act 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
This memorandum has attempted to summarize the Graves Protection Act and
draw statutory intent from the Committee reports. It also has attempted to
integrate the many comments and answer questions submitted by museums,
Federal agencies, and Native Americans concerning the statute. Many of
these suggestions and the issues that they raise cannot be answered outside
of a public forum that is normally developed during the regulations
development process. We also have attempted to suggest some of the
directions that regulations may take. 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 statute.