05-17437. Working Principles for Revising the Advisory Council on Historic Preservation's “Policy Statement Regarding Treatment of Human Remains and Grave Goods”

AGENCY:

Advisory Council on Historic Preservation (ACHP).

ACTION:

Notice of intent to reconsider the Advisory Council on Historic Preservation's “Policy Statement Regarding Treatment of Human Remains and Grave Goods.”

SUMMARY:

The Advisory Council on Historic Preservation (ACHP) is revisiting its “Policy Statement Regarding Treatment of Human Remains and Grave Goods,” adopted in 1988 (1988 Human Remains Policy). A Task Force composed of ACHP members has drafted a set of Working Principles, which are presented below, to guide possible revision of the 1988 Human Remains Policy. The ACHP invites your views and observations on these principles. The Task Force will use your comments to prepare a draft revision of the 1988 Human Remains Policy. That draft will then be subject to further consultation and opportunity to comment, before a final draft is presented to the ACHP membership for adoption.

DATES:

Submit comments on or before November 4, 2005.

FOR FURTHER INFORMATION CONTACT:

Address all comments concerning these working principles to the Archaeology Task Force, Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 809, Washington, DC 20004. Fax [phone]. Comments may also be submitted by electronic mail to: [e-mail]. Please note that all responses become part of the public record once they are submitted to the ACHP. Please refer any questions to Dr. Tom McCulloch at 202-606-8505.

SUPPLEMENTARY INFORMATION:

The Advisory Council on Historic Preservation (ACHP) is preparing to revisit its “Policy Statement Regarding Treatment of Human Remains and Grave Goods,” adopted 1988 (1988 Human Remains Policy).

In April 2004 the ACHP formed a Task Force on Archaeology (Task Force), and sought comments on suggested modifications and additions to existing ACHP policy guidance regarding how archeology is carried out pursuant to Section 106 of the National Historic Preservation Act, 16 U.S.C. 470f (Section 106), and its implementing regulations, 36 CFR part 800 (Section 106 regulations). Section 106 requires Federal agencies to take into account the effects of their undertakings on historic properties and provide the ACHP a reasonable opportunity to comment on such undertakings.

The Task Force solicited the comments of Federal, Tribal and State Historic Preservation Officers, all Federally-recognized Indian tribes, Native Hawaiian organizations, and major professional archaeological organizations in this effort.

From these comments, the Task Force identified several key issues requiring attention. One of the priority issues is revisiting the 1988 Human Remains Policy. At its Spring 2005 meeting, the ACHP membership voted unanimously to direct the Task Force to revisit the 1988 Human Remains Policy. The Task Force has drafted a set of Working Principles, which are presented below, to guide this effort.

We invite your views and observations on these principles. The Task Force will use your comments to prepare a draft revision of the 1988 Human Remains Policy. This draft then will be subject to further review and comment. The Task Force recognizes the unique legal relationship that exists between the Federal Government and Federally-recognized Indian tribes. Accordingly, the ACHP's consultation with Indian tribes will be held on a Government-to-Government basis. Following consideration of all comments provided, the Task Force may present a revised, draft policy statement to the full ACHP membership for adoption.

Background Information

The Section 106 process and purpose of the 1988 Human Remains Policy: Section 106 seeks to accommodate historic preservation concerns through a process of consultation between the Federal agency official and other parties having an interest in the effects of undertakings on all kinds of historic properties. In some cases, these properties contain cemeteries or other burial grounds with human remains and funerary objects. The Section 106 process requires that the Federal agency consult with other parties, and then make an informed and reasoned decision about what should be done in each case. Although final decisions in the Section 106 review process are the responsibility of the Federal agency official with approval authority over the undertaking, Federal or state law may prescribe a certain outcome. It is in reaching these decisions that Federal agencies look to the 1988 Human Remains Policy for guidance.

The current ACHP policy is a formal statement, endorsed by the full ACHP membership in 1988, representing the membership's collective thinking about what to consider in reaching decisions about human remains and funerary objects encountered in undertakings on Federal, tribal, State, or private lands (the term “funerary objects” will be used in any revised policy statement to replace the term “grave goods.” As NAGPRA defines them they are “items that, as part of the death rite or ceremony of a culture, are reasonably believed to have been placed intentionally at the time of death or later with or near individual human remains”). Unlike Federal and State laws that may circumscribe how human remains and funerary objects are treated on Federal, tribal, and State lands, the 1988 Human Remains Policy does not prescribe a specific outcome, but rather serves to focus thinking about what needs to be considered in reaching a decision.

Nature of the current debate: Most people would agree that human remains and the items buried with them should not be disturbed. initiated early enough, the Section 106 process should allow for alternatives to disturbance of locations known to contain human remains, including avoidance and preservation in place, to be thoroughly explored. However, during consultation about what to do when disturbance of human remains is unavoidable, the parties' viewpoints tend to fall somewhere into one of two broad camps. Some believe that the information human remains and funerary objects can provide about the past when studied by archaeologists and other specialists requires that the remains, which usually are removed from the ground at public expense, be subject to scientific analysis. Others argue that human remains and their associated funerary objects, due to their cultural significance and spiritual value to living communities, should be immediately and respectfully reburied or repatriated for reburial without study.

Objectives of an updated policy: In revisiting the 1988 Human Remains Policy, the ACHP wishes to assert its leadership in historic preservation for the Federal Government and for parties affected by the Section 106 process. The ACHP hopes that any new policy it might develop for application to decisions made in the context of the Section 106 review process will provide an important model for other organizations, agencies, or governments seeking to develop their own policies on the treatment of all human remains, burial sites, and associated funerary objects.

Through any revision to the existing policy or any new policy it might develop, the ACHP hopes to offer leadership in resolving how to balance the public interest in the desire to treat human remains in a respectful and sensitive manner, while recognizing the public interest in knowing its collective past. Specifically, any new policy would guide decision-making under Section 106 when questions involving the treatment of human remains and funerary objects must be resolved in the absence of Federal or State law circumscribing the treatment of human remains and funerary objects. Any new ACHP human remains policy statement would not be bound by geography, ethnicity or nationality; it would apply to the treatment of all human remains encountered in Section 106 review.

The Section 106 consultation process does not mandate a particular outcome. Accordingly, any new policy would not direct Federal agencies to make specific decisions. Rather, as a statement of the collective thinking of the ACHP membership, a new policy should guide Federal agencies in resolving the difficult question of what to do with human remains when Federal or State laws do not already prescribe a certain outcome.

The following is the text of the working principles on which comment is sought through this notice:

Working Principles

Any ACHP revised and updated policy will:

—Address treatment of all human remains and funerary objects in the context of compliance with Section 106 of the National Historic Preservation Act (Section 106);

—Encourage Federal agencies to initiate the Section 106 process early in their planning processes;

—Address human remains and funerary objects of all people;

—Be consistent, and work in concert, with other Federal, State, tribal, and local laws;

Principle 1: The policy statement should recognize that human remains must be treated with respect and dignity.

Principle 2: The policy statement should clarify the intersection between Section 106 and other legal authorities.

—The policy statement needs to clarify the intersection between the requirements of Section 106 and the Native American Graves Protection and Repatriation Act (NAGPRA).

—The policy statement needs to clarify the intersection between the requirements of Section 106, State burial laws and other applicable laws.

—The policy statement needs to recognize that a Federal agency official under Section 106 has a duty for the care of human remains and funerary objects.

Principle 3: The policy statement should emphasize that avoidance, followed by preservation in place, is the preferred alternative to disturbance of human remains and funerary objects.

—Federal undertakings should disturb human remains and funerary objects only if absolutely necessary, and then only after exploring other alternatives early in project planning.

—In order to realistically consider avoidance and preservation in place, Federal agencies need to initiate the Section 106 process early in planning.

—Federal agencies must recognize that simple avoidance of a site does not necessarily ensure that site's long-term preservation.

Principle 4: The policy statement should recognize that Federal agencies are responsible for meaningful consultation with all interested parties as a means to achieve compliance with the law.

—In accordance with the NHPA, the Federal agency official with jurisdiction over the undertaking has the responsibility to make the final decisions in Section 106 review after completing, and being informed, by the consultation process. However, it is recognized that Federal or State law may prescribe a certain outcome.

—Agency decisions regarding treatment and ultimate disposition must be based on a careful consideration of all views.

—The legal Government-to-Government obligations of Federal agencies to Indian tribes emanating from various statutes, Executive orders, treaties or court decisions should have a bearing on Federal agency decisions regarding the treatment and disposition of Native American human remains and funerary objects.

—Planning for the disposition of human remains should occur early in the process.

Principle 5: The policy statement should guide the Federal agency official in decision making.

—The policy statement should clarify the roles of different groups concerned with the effects of the undertaking on historic properties in making decisions.

—The policy statement should clarify how the Federal agency weighs the views presented by the different parties in arriving at a final decision, recognizing that Federal or State law may prescribe a certain outcome.

Principle 6: The policy statement should call for Federal agencies to develop procedures for the preservation and treatment of human remains discovered inadvertently, or when there is the potential for an undertaking to discover human remains.

—The policy should encourage Federal agencies to develop policy and operational procedures for treatment of human remains and funerary objects when they are inadvertently discovered.

—The policy should encourage Federal agencies to develop policy and operational procedures for treatment of human remains and funerary objects where they may be anticipated to be encountered as part of National Register eligibility investigations and data recovery investigations.

—The policy should encourage Federal agencies to develop policy and operational procedures for treatment of human remains and funerary objects exposed during natural disasters or encountered during emergency responses to such disasters.

—The policy should encourage Federal agencies to develop these procedures in consultation with all interested parties consistent with Principle 4.

—If a site is avoided, Federal agencies should have a procedure in place to provide the owners with guidance developed by the Secretary of the Interior under Section 112(b) of the NHPA and supplemental guidance that encourages protection of important archaeological properties, including burial sites.

End of text of the principles.

The following is the text of the 1988 Human Remains Policy. It is reproduced here only for reference purposes. Again, the comments sought through this notice are on the principles presented above.

Policy Statement Regarding Treatment of Human Remains and Grave Goods

Adopted by the Advisory Council on Historic Preservation September 27, 1988, Gallup, New Mexico

When human remains or grave goods are likely to be exhumed in connection with an undertaking subject to review under Section 106 of the National Historic Preservation Act, the consulting parties under the Council's regulations should agree upon arrangements for their disposition that, to the extent allowed by law, adhere to the following principles:

—Human remains and grave goods should not be disinterred unless required in advance of some kind of disturbance, such as construction;

—Disinterment when necessary should be done carefully, respectfully, and completely, in accordance with proper archaeological methods;

—In general, human remains and grave goods should be reburied, in consultation with the descendants of the dead.

—Prior to reburial, scientific studies should be performed as necessary to address justified research topics;

—Scientific studies and reburial should occur according to a definite, agreed-upon schedule; and,

—Where scientific study is offensive to the descendants of the dead, and the need for such study does not outweigh the need to respect the concerns of such descendants, reburial should occur without prior study. Conversely, where the scientific research value of human remains or grave goods outweighs any objections that descendants may have to their study, they should not be reburied, but should be retained in perpetuity for study.

Authority: 16 U.S.C. 470j

Dated: August 26, 2005.

John M. Fowler,

Executive Director.