00-14487. Recommendations Regarding the Disposition of Culturally Unidentifiable Native American Human Remains

AGENCY:

National Park Service, Interior

ACTION:

Notice

The Native American Graves Protection and Repatriation Act directs the Secretary of the Interior to establish and maintain an advisory committee composed of seven private citizens nominated by Indian tribes, Native Hawaiian organizations, and national museum organizations and scientific organizations [25 U.S.C. 3006]. One of the review committee's responsibilities is to make recommendations regarding specific actions for developing a process for the disposal of culturally unidentifiable Native American human remains in the possession or control of museums and Federal agencies [25 U.S.C. 3006 (c)(5)]. After lengthy deliberations, the committee makes the following recommendations.

A. Intent of NAGPRA

1. The legislative intent of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) is stated by the title of the statute. Repatriation means the return of control over human remains and cultural items to Indian tribes and Native Hawaiian organizations.

2. Specifically, the statute required:

a. The disposition of all Native American human remains and cultural items excavated on or removed from Federal lands after November 16, 1990 [25 U.S.C. 3002 (d)(2)]. Disposition is based on linkages of lineal descent, tribal land, cultural affiliation, or aboriginal land.

b. The repatriation of culturally affiliated human remains and associated funerary objects in Federal agency and museum collections if requested by a culturally affiliated Indian tribe or Native Hawaiian organization [25 U.S.C. 3005]. Repatriation is based on linkages of lineal descent or cultural affiliation.

c. The development of regulations for the disposition of unclaimed human remains and objects [25 U.S.C. 3002 (3)(b)] and culturally unidentifiable human remains in Federal agency and museum collections [25 U.S.C. 3006].

3. Although the legal standing of funerary objects associated with culturally unidentifiable human remains is not addressed in NAGPRA, the statute does not prohibit their voluntary repatriation by museums or Federal agencies to the extent allowed by Federal law.

4. The statute acknowledges the legitimate need to return control over ancestral remains and funerary objects to Native people, and the legitimate public interest in the educational, historical, and scientific information conveyed by those remains and objects [25 U.S.C. 3002 (3)(b) and 3006 (8)(b)].

5. While the statute does not always specify repatriation, it is implicit that the process be guided by the rights and needs of Indian tribes and Native Hawaiian organizations.

B. Culturally Unidentifiable Human Remains

1. Federal agencies and museums must make a determination as to whether Native American human remains in their control are related to lineal descendants, culturally affiliated with a present-day Federally recognized Indian tribe or a Native Hawaiian organization, or are culturally unidentifiable. This determination must be made in consultation with any appropriate Indian tribes or Native Hawaiian organizations, and through a good faith evaluation of all relevant and available documentation.

2. A determination that human remains are culturally unidentifiable may change to one of cultural affiliation as additional information becomes available through ongoing consultation or any other source. There is no statute of limitations for lineal descendants, Indian tribes, or Native Hawaiian organizations to make a claim.

3. A Federal agency or museum determination that human remains are culturally unidentifiable may occur for different reasons. At present, three categories are recognized:

a. Those for which cultural affiliation could be determined except that the appropriate Native American organization is not Federally recognized as an Indian tribe.

b. Those which represent an earlier identifiable group, but for which no present-day Indian tribe has been identified by the Federal agency or museum.

c. Those for which the Federal agency or museum believes that evidence is insufficient to identify an earlier group.

4. Documentation

a. Documentation is required for inventory completion and determinations of cultural affiliation by Federal agencies and museums [25 U.S.C. 3003 (5)(b)(2)]. Documentation should be prepared in accordance with standards such as those outlined in 43 CFR 10.9 (c) and 10.14.

b. Documentation must occur within the context of the consultation process. Additional study is not prohibited if the parties (Federal agencies, museums, lineal descendants, Indian tribes, and Native Hawaiian organizations) in consultation agree that such study is appropriate.

c. Once inventories have been completed, the statute may not be used to require new scientific studies or other means of acquiring or preserving additional scientific information from human remains and associated funerary objects [25 U.S.C. 3003 (b)(2)].

d. With the exception of information exempted from the Freedom of Information Act, documentation prepared in compliance with the statute is a public record.

C. Guidelines for the Disposition of Culturally Unidentifiable Human Remains

1. Respect must be the foundation for any disposition of culturally unidentifiable human remains. Human remains determined to be culturally unidentifiable are no less deserving of respect than those for which cultural affiliation has been established.

2. Since human remains may be unclaimed, or determined to be culturally unidentifiable for different reasons, there will be more than one appropriate disposition (repatriation) solution. Examples of appropriate repatriation solutions include the return of:

a. Human remains that are determined to be culturally unidentifiable that were recovered from tribal land.

b. Human remains that are determined to be culturally unidentifiable that were recovered from the aboriginal land of an Indian tribe.

c. Human remains that are culturally unidentifiable for which there is a relationship of shared group identity with a non-Federally recognized Native American group.

3. A Federal agency or museum may also seek the recommendation of the review committee for the disposition of culturally unidentifiable human remains based on other criteria than those listed above.

D. Proposed Models for the Disposition of Culturally Unidentifiable Human Remains

1. Joint recommendations by Federal agencies, museums, and claimants. Repatriation of culturally unidentifiable human remains may proceed in those cases where:

a. All the relevant parties have agreed in writing,

b. Statutory requirements have been met; and

c. The guidelines listed above have been followed.

Note: The review committee has recommended repatriation of culturally unidentifiable human remains that have met these criteria for both museums—including the Robert S. Peabody Museum of Archaeology-Phillips Academy; Commonwealth of Virginia-Department of Historic Resources; Dartmouth College-Hood Museum; Minnesota Indian Affairs Council; Iowa Historical Society; Sonoma State University; Peabody Museum-Harvard University; University of Nebraska-Lincoln; New Hampshire Division of Historical Resources; California State University-Fresno; and Washington State Historical Society—and Federal agencies, including the US Army-Fort Hunter-Liggett; National Park Service-Fort Clatsop National Monument; National Park Service-Carlsbad Caverns National Park/Guadalupe Mountains National Park; and US Forest Service-Ocala National Forest.

2. Joint recommendations from regional consultations

a. Historical and cultural factors, and therefore issues concerning the definition and disposition of culturally unidentifiable human remains, vary significantly across the United States. For example, issues in the Southeast, where most Indian tribes were forcibly removed during the 19th Century, are very different from those in the Southwest where many Indian tribes remain on their ancestral lands. Similarly, issues in the Northeast and California differ significantly from those in the Great Plains. Therefore, it is recommended that regional solutions be developed that best fit regional circumstances.

b. The review committee recommends a process in which:

i. Indian tribes and Native Hawaiian organizations define regions within which the most appropriate solutions for disposition of culturally unidentifiable human remains may be determined.

ii. Within each region, the appropriate Federal agencies, museums, Indian tribes, and Native Hawaiian organizations consult together and propose a framework and schedule to develop and implement the most appropriate model for their region.

iii. Regional consultation meetings may be open to other parties with a legitimate interest in disposition, with the consent of the appropriate Federal agencies, museums, Indian tribes, and Native Hawaiian organizations.

iv. Dispositions agreed upon through regional consultation meetings will be made by the appropriate Federal agencies, museums, and Indian tribes.

v. If a disposition agreement can not be reached through regional consultation meetings, the dispute may be brought before the review committee.

vi. Any proposed regional disposition agreement must meet all statutory requirements as well as the guidelines listed above.

E. Regulations.

The review committee requests that the Secretary of the Interior develop a draft proposed rule [43 CFR 10.11] based on these recommendations to be considered by the review committee at its next meeting. Following review by the committee, the proposed rule will be published for additional public comment in the Federal Register.

Dated: May 9, 2000.

Armand Minthorn,

Chair, Native American Graves Protection and Repatriation Review Committee.