[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5865 Introduced in House (IH)]

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118th CONGRESS
  1st Session
                                H. R. 5865

 To require the Secretary of the Army to establish a pilot program to 
   protect Native American burial sites, village sites, and cultural 
resources discovered at Corps of Engineers civil works projects in the 
          Sacramento River watershed, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 2, 2023

 Mr. LaMalfa (for himself and Mr. Garamendi) introduced the following 
    bill; which was referred to the Committee on Transportation and 
                             Infrastructure

_______________________________________________________________________

                                 A BILL


 
 To require the Secretary of the Army to establish a pilot program to 
   protect Native American burial sites, village sites, and cultural 
resources discovered at Corps of Engineers civil works projects in the 
          Sacramento River watershed, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Native American Burial Sites and 
Cultural Resources Protection Act''.

SEC. 2. SACRAMENTO RIVER WATERSHED NATIVE AMERICAN SITE AND CULTURAL 
              RESOURCE PROTECTION PILOT PROGRAM.

    (a) Establishment.--Not later than 180 days after the date of 
enactment of this Act, the Secretary shall establish a pilot program in 
accordance with this section to protect Native American burial sites, 
village sites, and cultural resources identified or discovered at civil 
works projects in the watershed of the Sacramento River and its 
tributaries, including the American, Bear, Yuba, and Feather Rivers, in 
the State of California.
    (b) Reburial.--
            (1) Reburial areas.--In carrying out the pilot program, the 
        Secretary shall, in consultation with and with the consent of 
        each affected Indian Tribe, identify, and, as applicable, 
        cooperate with appropriate Tribal, local, State, and Federal 
        Government property owners to set aside, areas that may be used 
        for the reburial of Native American human remains and funerary 
        objects that--
                    (A) have been identified or discovered at the site 
                of a covered civil works project;
                    (B) have been rightfully claimed by any affected 
                Indian Tribe; and
                    (C) can be reburied in such areas in a manner 
                secure from future disturbances, with the consent of 
                such property owner or owners, as applicable.
            (2) Recovery and reburial standards.--
                    (A) Timing of recovery.--
                            (i) Requirements.--In carrying out the 
                        pilot program, the Secretary shall work in good 
                        faith with each affected Indian Tribe, and each 
                        owner of property affected by the recovery 
                        process, to ensure that--
                                    (I) the recovery of a burial site, 
                                village site, or cultural resources 
                                from the site of a covered civil works 
                                project under the pilot program is 
                                completed, pursuant to a written plan 
                                or protocol, not later than 45 days 
                                after the initiation of such recovery; 
                                and
                                    (II) with respect to a burial site, 
                                village site, or cultural resources 
                                identified at the site of a covered 
                                civil works project before construction 
                                of the covered civil works project 
                                commences, such recovery is completed 
                                before such construction commences on 
                                the portion of the covered civil works 
                                project affected by the recovery 
                                process.
                            (ii) Alternative timetable.--
                        Notwithstanding the deadlines established by 
                        clause (i), the Secretary, each relevant non-
                        Federal interest for the covered civil works 
                        project, each affected Indian Tribe, and each 
                        owner of property affected by the recovery 
                        process may negotiate and agree to an 
                        alternative timetable for recovery other than 
                        that required by such clause, based on the 
                        circumstances of the applicable covered civil 
                        works project.
                    (B) Guidance.--In carrying out subsection (a), the 
                Secretary shall develop and issue written guidance for 
                recovery and reburial under the pilot program that 
                meets or exceeds the recovery and reburial standards in 
                policy statements and guidance issued by the Advisory 
                Council on Historic Preservation.
                    (C) Eminent domain prohibition.--No Federal entity 
                may exercise the power of eminent domain to acquire any 
                property to be used for reburial under the pilot 
                program.
            (3) Recovery and reburial.--
                    (A) Recovery and reburial by secretary.--In 
                carrying out the pilot program, the Secretary shall, at 
                Federal expense, in consultation with and with the 
                consent of each affected Indian Tribe, and with 
                appropriate dignity and in accordance with the guidance 
                developed under paragraph (2)--
                            (i) recover any cultural resources 
                        identified or discovered at the site of a 
                        covered civil works project and rightfully 
                        claimed by any affected Indian Tribe;
                            (ii) rebury any human remains and funerary 
                        objects so recovered at the applicable areas 
                        identified and set aside under paragraph (1); 
                        and
                            (iii) repatriate any other cultural 
                        resources so recovered to the affected Indian 
                        Tribe that has rightfully claimed such cultural 
                        resources.
                    (B) Tribal authorization.--
                            (i) In general.--Upon the request of an 
                        affected Indian Tribe, the Secretary shall 
                        authorize, pursuant to a memorandum of 
                        agreement entered into under clause (ii), the 
                        Indian Tribe to assume recovery and reburial 
                        responsibilities under the pilot program of 
                        cultural resources that have been rightfully 
                        claimed by the affected Indian Tribe, and shall 
                        reimburse the affected Indian Tribe for 
                        reasonable costs directly related to such 
                        recovery and reburial.
                            (ii) Memorandum of agreement.--In carrying 
                        out clause (i)--
                                    (I) with respect to a burial site, 
                                village site, or cultural resources 
                                identified at a covered civil works 
                                project before construction of the 
                                project commences, the Secretary shall, 
                                upon request by the affected Indian 
                                Tribe, enter into a written memorandum 
                                of agreement with the affected Indian 
                                Tribe to authorize the necessary 
                                recovery and reburial activities before 
                                such construction commences; and
                                    (II) with respect to a burial site, 
                                village site, or cultural resources 
                                discovered at a covered civil works 
                                project after construction of the 
                                project commences, the Secretary shall, 
                                upon request by the affected Indian 
                                Tribe, enter into a written memorandum 
                                of agreement with the affected Indian 
                                Tribe to authorize the necessary 
                                recovery and reburial activities not 
                                later than 45 days after such 
                                discovery.
                            (iii) Limitation.--Reimbursement under 
                        clause (i) shall not exceed 1 percent of the 
                        total cost of construction of the applicable 
                        covered civil works project, pursuant to the 
                        terms outlined in paragraph (6).
            (4) Tribal monitors.--
                    (A) In general.--In carrying out the pilot program, 
                the Secretary may hire a Tribal monitor or monitors, 
                and shall allow any affected Indian Tribe to hire a 
                Tribal monitor or monitors, at Federal expense, during 
                the construction of any covered civil works project, 
                for each area of construction, including for each 
                burial site and village site with respect to which 
                Native American cultural resources are being recovered 
                for reburial.
                    (B) Qualifications.--The Secretary or affected 
                Indian Tribe, as applicable, shall ensure that 
                preference in hiring Tribal monitors under this 
                paragraph is provided to qualified Native Americans, 
                including individuals who--
                            (i) have a professional relationship with 
                        the affected Indian Tribe; or
                            (ii) possess knowledge of, and expertise 
                        in, the customs of the affected Indian Tribe.
                    (C) Limitation.--The Federal expense of Tribal 
                monitors hired under this paragraph shall not exceed 1 
                percent of the total cost of construction of the 
                applicable covered civil works project, pursuant to the 
                terms outlined in paragraph (6).
            (5) Identification and inventory.--In carrying out the 
        pilot program, the Secretary shall accept identifications made 
        by an affected Indian Tribe of Native American burial sites and 
        village sites at the site of a covered civil works project, and 
        include such identifications in any inventory document for such 
        project.
            (6) Timing of payments.--The Secretary shall enter into a 
        contract or other agreement to make a payment to an affected 
        Indian Tribe for reimbursement of reasonable costs under 
        paragraph (3)(B) or actual expenses under paragraph (4), 
        subject to market-based pricing, which payment shall be made 
        not later than 90 days after the affected Indian Tribe submits 
        an invoice for such costs or expenses to the Secretary.
    (c) Conveyance Authority.--
            (1) In general.--Subject to paragraph (2), notwithstanding 
        any other provision of law, the Secretary may convey to an 
        affected Indian Tribe for use as a cemetery or reburial area 
        any area that is located on land owned by the Department of the 
        Army and is identified and set aside under subsection (b)(1).
            (2) Retention of necessary property interests.--In carrying 
        out paragraph (1), the Secretary shall retain any necessary 
        right-of-way, easement, or other property interest that the 
        Secretary determines to be necessary to carry out the 
        authorized purposes of any Corps of Engineers project related 
        to the conveyed land.
    (d) Confidentiality of Information Provided.--
            (1) In general.--In carrying out subsection (a), the 
        Secretary shall develop and issue written guidance regarding 
        the confidentiality of information provided to the Department 
        of the Army by Indian Tribes in connection with any covered 
        civil works project under the pilot program.
            (2) Nonpublic information.--The following information 
        provided to the Department of the Army by an Indian Tribe under 
        the pilot program shall be treated as confidential and 
        nonpublic information, to protect Native American burial sites, 
        village sites, and cultural resources, and their locations, 
        from unauthorized excavation, desecration, or vandalism:
                    (A) Information regarding the locations of burial 
                sites, village sites, and cultural resources, including 
                maps designating such locations.
                    (B) Information regarding cultural or traditional 
                practices related to such sites or resources.
    (e) Avoidance of Duplication.--In carrying out the pilot program, 
the Secretary shall avoid, to the maximum extent practicable, 
duplication of efforts relating to compliance with this section and any 
other applicable provision of law.
    (f) Applicability.--
            (1) In general.--Section 208 of the Water Resources 
        Development Act of 2000 (33 U.S.C. 2338) shall not apply to a 
        covered civil works project during the period during which the 
        Secretary is carrying out the pilot program.
            (2) Existing contracts.--Nothing in this section shall 
        affect any contract relating to a covered civil works project 
        entered into by the Secretary of the Army before the date of 
        enactment of this Act.
    (g) Period.--The Secretary shall carry out the pilot program until 
the date that is 4 years after the date on which the pilot program is 
established.
    (h) Definitions.--In this section:
            (1) Affected indian tribe.--The term ``affected Indian 
        Tribe'' means any Indian Tribe that attaches religious or other 
        significance to any burial site, village site, or cultural 
        resources identified or discovered at a covered civil works 
        project.
            (2) Burial site.--The term ``burial site'' means any 
        natural or prepared physical location, whether originally 
        below, on, or above the surface of the earth, where Native 
        American cultural resources are present as a result of a death 
        rite or ceremony of a culture.
            (3) Covered civil works project.--The term ``covered civil 
        works project'' means a civil works project that is--
                    (A) located in the watershed of the Sacramento 
                River and its tributaries, including the American, 
                Bear, Yuba, and Feather Rivers, within the State of 
                California;
                    (B) being constructed, reconstructed, or repaired, 
                or operated and maintained, using Federal funds; and
                    (C) owned, authorized, permitted, carried out, or 
                operated and maintained by the Department of the Army, 
                including a project carried out by a non-Federal 
                interest under section 204 of the Water Resources 
                Development Act of 1986 (33 U.S.C. 2232) or section 
                1043 of the Water Resources Reform and Development Act 
                of 2014 (33 U.S.C. 2201 note).
            (4) Cultural resources.--The term ``cultural resources'' 
        means--
                    (A) human remains; or
                    (B) funerary objects or other ceremonial objects.
            (5) Funerary objects.--The term ``funerary objects'' means 
        items that are associated with the death rite or ceremony of a 
        culture.
            (6) Human remains.--The term ``human remains'' means the 
        physical remains of a human body, including such remains that 
        have been cremated and that may be in any state of 
        decomposition or skeletal completeness (including ashes or 
        small bone fragments).
            (7) Indian tribe.--The term ``Indian Tribe'' has the 
        meaning given that term in section 102 of the Federally 
        Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130).
            (8) Pilot program.--The term ``pilot program'' means the 
        pilot program established under this section.
            (9) Rightfully claimed.--The term ``rightfully claimed'' 
        means claimed by--
                    (A) with respect to cultural resources identified 
                or discovered on Federal or Tribal lands at the site of 
                a covered civil works project--
                            (i) the person or entity with ownership or 
                        control of the cultural resources under section 
                        3 of the Native American Graves Protection and 
                        Repatriation Act (25 U.S.C. 3002); or
                            (ii) with respect to cultural resources not 
                        subject to such Act, the appropriate person or 
                        entity determined in accordance with the 
                        priority order established by such section; and
                    (B) with respect to cultural resources identified 
                or discovered on other lands at the site of a covered 
                civil works project--
                            (i) in the case of Native American human 
                        remains and funerary objects associated with 
                        such remains, the lineal descendants of the 
                        Native American, as determined in accordance 
                        with the laws of the State of California; or
                            (ii) in any case in which such lineal 
                        descendants cannot be ascertained, and in the 
                        case of other funerary objects or other 
                        ceremonial objects--
                                    (I) the Indian Tribe that has the 
                                closest cultural affiliation with the 
                                cultural resources; or
                                    (II) if the cultural affiliation of 
                                the cultural resources cannot be 
                                reasonably ascertained--
                                            (aa) the Indian Tribe that 
                                        is recognized as aboriginally 
                                        occupying the area in which the 
                                        cultural resources were 
                                        identified or discovered; or
                                            (bb) if it can be shown by 
                                        a preponderance of the evidence 
                                        that a different Indian Tribe 
                                        has a stronger cultural 
                                        relationship with the cultural 
                                        resources than the Indian Tribe 
                                        specified in item (aa), the 
                                        Indian Tribe that has the 
                                        strongest demonstrated 
                                        relationship with such cultural 
                                        resources.
            (10) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army, acting through the Chief of Engineers.
            (11) Village site.--The term ``village site'' means any 
        natural or prepared physical location, whether below, on, or 
        above the surface of the earth, where a Native American village 
        has been present.
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