[Federal Register Volume 61, Number 162 (Tuesday, August 20, 1996)]
[Notices]
[Pages 43071-43073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21105]


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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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    Section 8 (c)(5) of the Native American Graves Protection and 
Repatriation Act (25 U.S.C. 3001 et seq.) requires the Review Committee 
to recommend specific actions for developing a process for the 
disposition of culturally unidentifiable Native American human remains. 
The committee has given this matter great thought and has developed the 
enclosed draft documents outlining their positions. The enclosed 
documents are intended for wide circulation to elicit comments from 
Indian tribes, Native Hawaiian organizations, museums, Federal 
agencies, and national scientific and museum organizations.
    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
    Comments received by October 15, 1996 will be considered by the 
committee at its next scheduled meeting. For additional information, 
please contact Dr. Francis P. McManamon at (202) 343-4101.
Note: We will not accept any comments in electronic form.
    Enclosure
Dated: August 14, 1996.
Veletta Canouts,
Acting, Departmental Consulting Archeologist,
Deputy Chief, Archeology and Ethnography Program.

Draft Recommendations Regarding the Disposition of Culturally 
Unidentifiable Human Remains

Introduction

    The Native American Graves Protection and Repatriation Review 
Committee is charged under section 8 (c)(5) of the Native American 
Graves Protection and Repatriation Act (NAGPRA) 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.''
    The committee issued a draft set of recommendations for guidelines 
regarding disposition of culturally unidentifiable human remains for 
public comment and review. One hundred twenty nine Indian tribes, 
Native Hawaiian organizations, scientific organizations, Federal 
agencies, individuals, and museums responded to this draft. Based on 
these responses, the committee concluded that disposition of a 
significant portion of Native American human remains listed as 
culturally unidentifiable for purposes of NAGPRA may possibly be 
decided through regulatory action. The committee believes that 
decisions regarding disposition of a small number of generally very 
ancient human remains will require amendments to NAGPRA by Congress.

Proposed Regulatory Language and Methods for Disposition of 
Culturally Unidentifiable Human Remains

    By clarifying and defining the meaning of the statutory term, 
``shared group identity,'' the committee believes it is possible to 
decide disposition of many human remains presently classified as 
``culturally unidentifiable.'' under NAGPRA. If ``shared group 
identity'' is interpreted to recognize that in several circumstances 
more than one Indian tribe or Native Hawaiian organization may share 
identity with prehistoric human remains or human remains associated 
with an earlier group then many of the problems regarding disposition 
of culturally unidentifiable human remains may be resolved.
    ``Shared group identity'' has not, to date, been defined in statute 
or regulation. The term is central to the definition of ``cultural 
affiliation'' and thus is at the core of NAGPRA. By statute, ``cultural 
affiliation'' means ``that there is 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 identified earlier group.'' There is nothing in this language to 
preclude more than one Indian tribe from establishing cultural 
affiliation through shared group identity to an earlier group. There 
are, in fact, many instances in which multiple Indian tribes claim or 
may show shared group identity. Thus, the committee proposes to define 
``shared group identity'' to include the possibility of a relationship 
between more than one present day Indian tribe or Native Hawaiian 
organization and an earlier historic or prehistoric group.
    The committee, therefore, proposes the following definition for 
``shared group identity.''
Shared group identity means a relationship between a present day 
Indian tribe or tribes and an earlier group based on: (1) direct 
historical links and/or (2) a combination of geographical, temporal, 
and cultural links. Geographical, temporal, and/or cultural links 
may be established through biological, archaeological, linguistic, 
folkloric, oral traditional, or other relevant information or expert 
opinion [see section 7 (a)(4) of the Act]. This definition provides 
for the possibility of more than one Indian tribe or Native Hawaiian 
organization establishing cultural affiliation with a prehistoric or 
earlier group. At the same time, it employs language and concepts 
already well established within the framework of NAGPRA.
    Several points support this approach. It is likely that a 
substantial number of human remains will be classified as culturally 
unidentifiable. Many museums and Federal agencies recognize that while 
it may not be possible to affiliate individual human remains with a 
single Indian tribe, it is often possible to narrow the field to a few 
Indian tribes who are culturally affiliated with the human remains 
based on a preponderance of the evidence. The high number of human 
remains listed as culturally unidentifiable may

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also reflect a lack of consistency regarding the use of the term 
``Indian tribe.'' For example, a set of human remains may be identified 
as ``Sioux'' while lacking a more precise identification linking them 
with one or another or several Sioux tribes. Finally, many cases in 
recent years provide a foundation for narrowing the number of 
individual human remains that are considered culturally unidentifiable. 
Specifically, in cases of prehistoric remains, there are several 
avenues for present day Indian tribes or Native Hawaiian organizations 
to establish shared group identity with prehistoric groups. For 
example, an Indian tribe or Native Hawaiian organization may not be 
able to establish an unbroken historical connection with a particular 
prehistoric culture, but may be able to establish shared group identity 
based on clear geographical and temporal ties to the area and time of 
the earlier group coupled with additional evidence, such as oral 
histories and other cultural traditions and lifeways.
    Implementation of NAGPRA under this approach would be relatively 
straightforward and simple. Indian tribes, or tribes working at their 
discretion, in cooperation with museums or Federal agencies or other 
relevant experts, will be responsible for developing identifications of 
shared group identity with specific prehistoric cultures or earlier 
groups. Once an Indian tribe or tribes, or an Indian tribe and a museum 
or Federal agency, has compiled information establishing cultural 
affiliation based on shared group identity with a prehistoric culture 
or earlier group, they will notify the National Park Service of their 
claims. The National Park Service will compile a list of all human 
remains that have been initially identified as culturally 
unidentifiable. This list will be submitted to the committee and to 
Indian tribes. Guidelines for repatriation, as provided in existing 
NAGPRA statutes and regulations, will apply. Indian tribes may request 
repatriation, based on their claims and based on agreements among 
claimants regarding proposed disposition of such human remains. Museums 
or Federal agencies will evaluate and act upon the claims, as outlined 
in NAGPRA statutes and regulations. The proposed process will be 
further simplified in practice since several Indian tribes have already 
established regional or cultural associations based on shared group 
identity with human remains in the possession or control of museums and 
Federal agencies.

Issues Requiring Amendments to NAGPRA by Congress

    1) Non-Federally Recognized Native American Groups: The definition 
of ``Indian tribe'' used in NAGPRA limits participation in the NAGPRA 
process to Indian tribes who are currently recognized as tribes by the 
Bureau of Indian Affairs. Many Native American groups are not presently 
Federally recognized through accidents of political rather than 
cultural history. While mechanisms have been developed to provide some 
access to NAGPRA for non-Federally recognized Native American groups, 
the committee recommends that the Secretary urge Congress to amend 
NAGPRA to provide a means whereby legitimate, non-Federally recognized 
Native American groups may participate in NAGPRA.
    2) Culturally unidentifiable associated funerary objects: NAGPRA, 
as currently framed, does not provide for repatriation of culturally 
unidentifiable associated funerary objects. The committee recommends 
that the Secretary urge Congress to amend NAGPRA to provide for a means 
for Indian tribes or Native Hawaiian organizations to repatriate 
associated funerary objects along with human remains when several 
Indian tribes have established cultural affiliations and joint 
agreements for disposition of such human remains and their associated 
funerary objects, as outlined in the section above.

Conclusion

    The committee believes that the steps outlined above provide viable 
solutions to otherwise complex and vexing problems. Comments from the 
field were valuable in helping the committee pursue a very different 
sent of potential solutions from those offered in the first draft. We 
look forward to receiving additional comments and suggestions prior to 
making our final recommendations to the Secretary of the Interior 
regarding disposition of culturally unidentifiable human remains.

Draft Recommendations for the Disposition of Human Remains Culturally 
Affiliated with Non-Federally Recognized Native American Groups

    The Native American Graves Protection and Repatriation Review 
Committee is charged under section 8 (c)(5) of the Native American 
Graves Protection and Repatriation Act (NAGPRA) 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.''
    In the course of holding meetings across the United States and 
hearing public commentary from many groups and individuals, the review 
committee has come to recognize that there are different kinds of 
remains that may be classified as ``culturally unidentifiable'' under 
the definitions and requirements of NAGPRA. One particular subgroup are 
those remains that are culturally affiliated with Native American 
groups which are not formally recognized by the Bureau of Indian 
Affairs (BIA) as ``Indian tribes''. Examples of such non-Federally 
recognized Native American groups might include groups recognized by 
individual States; ones that were once recognized by the BIA but for 
various reasons no longer have such recognition; or ones that have 
applied for BIA recognition but have not yet been reviewed or approved. 
(This list is intended to give examples only, and it not meant to be 
inclusive or definitive.) In these cases, the remains are only 
``culturally unidentifiable'' because 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. The 
review committee believes that it may be necessary to amend the statute 
in order to fully enfranchise these non-Federally recognized Native 
American groups with all rights and responsibilities accorded by NAGPRA 
to Federally recognized Indian tribes. In the absence of such an 
amendment, the review committee recommends that general guidelines can 
be added to the current regulations which will encourage non-Federally 
recognized Native American groups to work cooperatively with museums, 
Federal agencies and Federally recognized Indian tribes and allow for 
the repatriation of culturally affiliated human remains and associated 
funerary objects.
    The review committee has reviewed four cases to date involving non-
Federally recognized Native American groups and has made 
recommendations to the Secretary of the Interior to approve the 
repatriation of human remains to these groups. Two of these cases--the 
Robert S. Peabody Museum of Archaeology at Phillips Academy 
repatriation to the Mashpee Wampanoag and the Hood Museum of Art at 
Dartmouth College repatriation to the Abanaki Nation--have been 
completed with the required Notices of Inventory Completion published 
in the Federal Register. Until such time as the statute is amended to 
provide full standing to

[[Page 43073]]

non-Federally recognized Native American groups, the review committee 
recommends the following five step process:
    a. Museums and Federal agencies that believe they possess human 
remains culturally affiliated with non-Federally recognized Native 
American groups are encouraged to notify these groups and work with 
them to reach agreement on possible repatriation of those human 
remains. Museum and Federal agencies should use the statute and 
regulations to assess the potential cultural affiliation of non-
Federally recognized Native American groups with specific human 
remains. Determinations should be based on 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 
(c)(4)].
    b. Non-Federally recognized Native American groups are encouraged 
to work with museums and Federal agencies to reach agreement on 
possible repatriation of human remains.
    c. In discussions over the possible repatriation of human remains 
to non-Federally recognized Native American groups, the group and the 
museum or Federal agency holding the human remains are encouraged to 
consult with all Federally recognized Indian tribes who may have an 
interest in the geographic area from which the remains originated.
    d. When agreement is reached to repatriate human remains to a non-
Federally Native American group, this agreement should be submitted to 
the review committee for consideration. The review committee will then 
review the facts and circumstances of the case and make a 
recommendation on the repatriation to the Secretary of the Interior. If 
the Secretary agrees with the recommendations, he will recommend to the 
museum or agency to proceed with the repatriation.
    e. If the decision is made to proceed with the repatriation, a 
Notice of Inventory Completion will be published in the Federal 
Register, with a waiting period of 30 days prior to the actual 
repatriation of the human remains.
    These five steps are intended to provide a general process for non-
Federally recognized Native American groups to work cooperatively with 
museums and Federal agencies to repatriate human remains with which 
they share group identity. They should not be interpreted as 
introducing new compliance requirements for museums and Federal 
agencies.The review committee believes that the above observations and 
recommendations provide viable solutions to otherwise complex and 
vexing problems. Public comments were invaluable in helping pursue a 
very different set of potential solutions from those offered in the 
first draft. The review committee looks forward to receiving additional 
comments and suggestions prior to making final recommendations to the 
Secretary of the Interior regarding the disposition of cultural 
unidentifiable human remains.
[FR Doc. 96-21105 Filed 8-19-96; 8:45 am]
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