[Federal Register Volume 60, Number 118 (Tuesday, June 20, 1995)]
[Notices]
[Pages 32163-32165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14999]



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DEPARTMENT OF THE INTERIOR

Draft Recommendations Regarding the Disposition of Culturally 
Unidentifiable Human Remains and Associated Funerary Objects

AGENCY: National Park Service, Interior.

ACTION: Notice and request for comments.

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SUMMARY:
    The Native American Graves Protection and Repatriation Act (25 
U.S.C. 3007(c)(5).) requires the Review Committee to recommend specific 
actions for developing a process for the disposition of culturally 
unidentifiable Native American human remains. The seven individuals on 
the committee have given this matter great thought and have developed 
the enclosed draft outlining their position and several options. The 
enclosed draft is intended for wide circulation to elicit comments from 
Indian tribes, Native Hawaiian organizations, museum, Federal agencies, 
and national scientific and museum organizations. We are publishing 
this draft in the Federal Register for broad public comment.
EFFECTIVE DATES:
    Comments should be received by September 30, 1995 in order for them 
to receive the committee's full consideration at their next scheduled 
meeting. For additional information, please contact Dr. C. Timothy 
McKeown at (202) 343-4101.
Please note that we will not accept any comments in electronic form.
ADDRESS FOR COMMENT:
    Anyone interested in commenting on the committee's draft 
recommendations should send written comments to:
    The NAGPRA Review Committee
    c/o Archeological Assistance Division
    National Park Service
    Box 37127, Suite 210
    Washington DC, 20013-7127
Dated: June 14, 1995
Veletta Canouts,
Acting, Departmental Consulting Archeologist
Acting Chief, Archeological Assistance Division

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Call For Comments

Draft Recommendations By The

N.A.G.P.R.A. Review Committee

On The Disposition Of

Culturally Unidentifiable

Native American Remains

    Under NAGPRA (25 U.S.C. 3007(c)(5)) the Review Committee is 
specifically charged with ``compiling an inventory of culturally 
unidentifiable human remains that are in the possession or control of 
each Federal agency and museum and recommending specific actions for 
developing a process for disposition of such remains.'' What follows 
below is a draft of recommendations from the Review Committee to the 
Secretary in compliance with the mandate in NAGPRA. This draft is 
intended for wide circulation to elicit the comments, suggestions and 
opinions of members of Indian tribes, Native Hawaiian organizations, 
scientific organizations, and museums as described under 25 U.S.C. 3007 
(e). We wish to emphasize that these recommendations are preliminary 
and every element is open to change depending on the comments of the 
public.
    In fulfilling their responsibility, the Review Committee makes the 
following observations and recommendations:
    1. Although the disposition of culturally ``unidentifiable human 
remains'' is left open in NAGPRA, there is a firmly established 
principle in the act that assigns responsibility for what happens to 
human remains and associated funerary objects to lineal descendants and 
culturally affiliated tribes. This general principle should be followed 
in determining the disposition of culturally ``unidentifiable human 
remains'' that are known to be ancestral Native Americans. It is true 
that there are remains and associated funerary objects in museums and 
Federal agencies for which it is not possible to identify specific 
cultural connections to any particular tribe today. However, such 
remains and objects, no matter how ancient, are nevertheless Native 
American, and they should be treated according to the wishes of the 
Native American community. Ultimately, decisions about what happens to 
the remains of Native American individuals from anywhere in the United 
States and associated funerary objects should rest in the hands of 
Native Americans. These decisions can and should be informed by 
anthropological, archaeological, historical, folkloric, biological, 
linguistic and spiritual evidence, and nonNative Americans can and 
should be consulted when appropriate in the decision making process. 
However, the final decision should be made entirely by Native American 
people.
    2. Although the Act specifically mentions only ``unidentifiable 
human remains'', it is consistent with other aspects of the Act to 
include in this discussion ``associated funerary objects'' as well. 
Therefore all recommendations on the disposition of unidentifiable 
human remains also apply to any funerary objects that are associated 
with those remains as those terms are defined in the Act. It may be 
that additional legislation will be required to insure that Native 
American groups are provided with the opportunity to repatriate 
associated funerary objects accompanying unidentified remains.
    3. The Committee has heard extensive testimony from physical 
anthropologists and archaeologists as to the broader scientific, 
medical, and humanistic values that may be gained from analysis of 
Native American skeletal remains from both the recent and distant path. 
While the Committee recognizes there may be potential value in such 
analyses, such values do not provide or confer a right of control over 
Native American human remains that supersedes the spiritual and 
cultural concerns of Native American people who clearly have the 
closest general affiliation to these remains. The issue is not whether 
there is positive benefit to be gained from analysis of remains, but 
who has the right and responsibility to make decisions about whether 
such analysis should take place.
    It is the responsibility of archaeologists and physical 
anthropologists to communicate with Native American tribes and groups 
to inform them of the potential values of analysis of human remains and 
associated funerary objects and allow the tribes and groups to use this 
information as they choose in making their decisions about the 
treatment and disposition of those remains and objects.
    4. The term ``unidentifiable human remains'' can be applied to 
three different groups of remains and these should be considered 
separately. The three categories include: 1. remains for which there is 
cultural affiliation with Native American groups who are not formally 
recognized by the BIA; 2. ancient remains for which there is specific 
information about the original location and circumstances of the 
burial; and 3. remains which may be Native American but which lack 
information about their original burial location. [[Page 32164]] 

1. Remains for which there is cultural affiliation with Native American 
groups who are not formally recognized by the BIA

    There are remains that can be directly traced by a preponderance of 
the evidence to tribes, villages, communities of Native Americans which 
may not be formally recognized by the Bureau of Indian Affairs as 
``Tribes''. In these cases, the remains are only ``unidentifiable'' 
because of the wording of the Act. In the Act, the definition of Indian 
``Tribe'' has been interpreted by the Department of the Interior to 
mean only those groups that have received formal recognition by the BIA 
as ``tribes''. There are, however, many groups in the United States 
that are ``eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians'' (25 
U.S.C. 3001 (7)), but have not received formal BIA recognition by 
choice or other circumstances.
    In cases where such groups are able to establish cultural 
affiliation with specific remains it is the unequivocal recommendation 
of the Review Committee that they should be accorded the same rights 
and responsibilities given to BIA recognized Tribes for the 
repatriation of those specific remains. Cultural affiliation in these 
cases should follow the guidelines of the Act and be determined by a 
preponderance of the evidence based upon geographical, kinship, 
biological, archaeological, anthropological, linguistic, folkloric, 
oral traditional, historical, or other relevant information or expert 
opinion (25 U.S.C. 3006 a(4)).

The Review Committee Would Appreciate Suggestions on How to 
Identify and Recognize Those Native American Groups Who Should Be 
Eligible To Claim Remains For Repatriation But Are Not On The 
Bureau of Indian Affairs List Of Federally Recognized ``Tribes''

2. Ancient remains for which there is specific information about the 
original location and circumstances of the burial

    There is a very large number of remains from across the United 
States which come from earlier time periods and it is not possible to 
trace directly ancestry to any known contemporary tribe or group. 
Remains coming from archaeological excavations at sites that were 
occupied before the arrival of Europeans will most commonly fall into 
this category. From available evidence, it is often possible to 
determine that several groups or tribes may have historical or deeper 
ancestral ties to the area. In these cases, it may or may not be 
possible to establish direct links between the ancient remains and any 
specific contemporary groups or tribes.
    In these cases, responsibility for what happens to such remains 
rests with those tribes and groups who are able to show an affinity 
both to the territory and to the general time period from which the 
remains came. Tribes or groups will demonstrate such geographic and 
temporal affinity through evidence based on biological, archaeological, 
linguistic, folkloric, oral traditional or other relevant information 
or expert opinion. Tribes or groups who are able to demonstrate 
geographical and temporal affinity to ancient remains will decide on 
what happens to those remains based on consensual agreement. It is the 
responsibility of the tribes who claim affiliation to come forward and 
state their claim and present their evidence of affiliation. Based on 
information in the inventories received from museums and Federal 
agencies, the Review Committee will take responsibility for notifying 
all tribes who may be potentially affiliated with particular remains.
    The Act anticipates the circumstances of more ancient remains to 
some extent in 25 U.S.C. 3006 (e), ``Competing Claims''. This section 
deals with situations in which there are multiple claims for remains or 
objects and advises that museums and Federal agencies retain those 
remains and objects until the ``requesting parties agree upon its 
disposition or the dispute is otherwise resolved pursuant to the 
provisions of this Act or by a court of competent jurisdiction.'' 
Although the case of ``unidentified'' remains may well not involve a 
dispute, the same general principles should apply. Specifically, a 
museum or Federal agency should retain ``culturally unidentified'' 
remains and associated funerary objects until such time as all 
potentially affiliated tribes and groups reach consensual agreement on 
disposition of the remains and associated objects.

3. Remains which are likely to be Native American but which lack 
information about their original burial location

    There are remains in museums and Federal agencies which are known 
or appear to be Native American through museum records or simple visual 
examination but which lack sufficient information to identify more 
specific cultural or geographical affinities. There are two broad types 
of remains that may fall in this group. First, there are remains for 
which there may be some indication that they are culturally affiliated 
with one federally recognized Tribe or Native Hawaiian group, but there 
is insufficient independent evidence to confirm the affiliation. It is 
possible, for example, to have remains in museums which are labeled as 
belonging to one tribe or group, but with no supporting evidence of any 
kind to support that identification. In such cases the remains may be 
affiliated with one or more additional groups of Native Americans or 
with non-Native Americans. In these cases, however, the museum or 
Federal Agency should not have to bear the responsibility of 
determining whether the remains should be returned to a specific group. 
The Act actually does speak to this situation to some extent in 25 
U.S.C. 3006 (a)(4). In this section there are guidelines for when a 
museum or federal agency is unable to establish cultural affiliation of 
remains in the inventory process. In these cases, the burden of 
responsibility goes to the Tribe to ``show cultural affiliation by a 
preponderance of the evidence''.
    In cases such as this, when the museum or Federal agency is unable 
to reasonably confirm the cultural affiliation of specific Native 
American human remains, the inventory of these remains should be 
provided to the Review Committee, along with a summary made by the 
museum or Federal agency of whatever limited information is available 
that might relate to the identity of the individuals involved. The 
Review Committee then has the opportunity to review available 
information. The Committee can either decide there is sufficient 
evidence to reasonably determine cultural affiliation or that the 
remains should continue to be treated as ``unidentifiable.''
    Another group of remains with limited cultural or geographical 
information remains are those for which there is no available 
information about their origins or any possible contemporary descendent 
Tribes or groups. There are, for example, remains in museums which are 
simply identified as ``Native American'' or ``Indian'', with no 
information about where they came from. In these cases, there is 
insufficient evidence to reasonably identify tribal affiliation either 
culturally, biologically or geographically. Although this is likely to 
be a relatively small number of individuals, they are no less important 
than the other remains held by museums and Federal agencies today.
    If it has been determined that these remains are Native American, 
then broad regional associations of Native American tribes and groups 
may take responsibility for determining the ultimate disposition of 
such remains. One possibility that has been raised is [[Page 32165]] a 
series of regional cemeteries or mausoleums can be established on 
protected lands where these unidentified individuals can be reburied 
and protected forever. Other alternatives to regional cemeteries for 
the disposition of unidentifiable Native American remains may also be 
worked out by the regional associations.
    5. Several groups have stepped forward and made explicit claims for 
all those Native American remains for which there are no identifiable 
cultural descendants. The sentiment of these groups expressed in this 
public commentary is that such remains should not be left unattended in 
museums, but should be returned for reconsecration in the earth. The 
exact cultural affiliation of these individuals is not as important as 
the fact that they were removed from their final resting places without 
consent. There is diverse opinion in the Native American community 
about the treatment of individuals without cultural affiliation. The 
conditions outlined above for individuals without specific tribal 
affiliations should be applied for all so-called ``unidentifiable'' 
individuals.
    6. The continuance of a Review Committee is integral to the long-
term resolution of issues and problems related to the ultimate 
disposition of culturally unidentified human remains and associated 
funerary objects.
    7. The Review Committee recognizes that many Native American tribes 
and groups have already developed regional and cultural associations to 
address the issue of culturally unidentified remains. These existing 
associations provide good models for repatriating and caring for 
culturally ``unidentified'' remains (as defined by the Act) in an 
expeditious and respectful manner. The guidelines outlined above are 
explicitly intended to facilitate and encourage the efforts of these 
existing associations.
    8. As a means of stimulating discussion, the Review Committee would 
like to offer some suggestions about possible alternative procedures 
for repatriating unidentifiable human remains. These are suggestions 
only and not intended in any way as proposed regulations. The Committee 
offers more than one option for resolving several procedural issues and 
would like to solicit comments about the relative desirability of these 
or other options.

Draft for Comment Only

Possible procedures for deciding the disposition of unidentified 
remains Procedures for identification of potential claimants

Option 1
    (1) NPS compiles map of groups and tribes who may be related to all 
lands across time in the United States.
    (2) NPS sends inventories of unidentifiable remains to groups with 
historical or cultural ties to the area from which the remains were 
taken, or where they currently reside if their original location is 
unknown.
    (3) Interested Native American groups determine if there is 
evidence of a direct biological or cultural affinity between them and 
the remains.
    (4) In the absence of such evidence, groups may use geographical 
and chronological information to establish an affinity to the remains.
Option 2
    (1) NPS prepares abstracts of the complete national inventories and 
sends copies of these abstracts to every tribe and potentially 
descendant Native American group in the United States.
    (2) Interested Native American groups review information on remains 
from areas where they maintain cultural and historical affinities.
    (3) Interested groups determine if there is evidence of a direct 
biological or cultural affinity between them and the remains.
    (4) In the absence of such evidence, groups may use geographical 
and chronological information to establish an affinity to the remains.

Procedures for Reviewing Claims

Option 1
    (1) Tribe(s) or group(s) make a request for repatriation by 
providing NPS evidence of their affinity to the remains.
    (2) NPS reviews claims for remains and, in consultation with the 
NAGPRA review committee, makes determinations of cultural affinity.
    (3) The museum or requesting group may appeal the NPS decision to 
the NAGPRA review committee or appropriate courts.
Option 2
    (1) Tribe(s) or group(s) requests repatriation by presenting 
evidence of an affinity with the collection to the museum or Federal 
agency holding the remains.
    (2) Museum or Federal agency reviews request for repatriation and 
makes determinations of cultural affinity.
    (3) If the museum or Federal agency decides an affinity does not 
exist, the requesting group may appeal the decision to the NAGPRA 
review committee or appropriate courts.

Procedures for making repatriations to Native American groups without 
BIA recognition

    (1) If it is determined that a Native American group has an 
affinity with the remains, a notice of intent to repatriate is 
published in the federal register with an appropriate waiting period to 
allow other tribes enough time to file additional claims.
    (2) If additional claims for specific remains are filed after this 
publication, the NPS will review the case for each additional request.
    (3) If it is determined based on this review that the additional 
requesting tribe or group does have an affinity with the remains no 
repatriation will occur until all claimants reach a consensual 
agreement on the disposition of the remains.
    (4) If agreement is reached, the remains will be repatriated to the 
requesting groups.
    (5) If agreement cannot be resolved through consensual agreement, 
the claimants can ask the NAGPRA review committee to mediate the 
dispute or appeal to the appropriate courts.
[FR Doc. 95-14999 Filed 6-19-95; 8:45 am]
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