Notice of Draft Principles of Agreement Regarding the Disposition of Culturally Unidentifiable Human Remains Extended Date for Comments

[Federal Register Volume 64, Number 145 (Thursday, July 29, 1999)]
[Notices]
[Pages 41135-41136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19452]


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DEPARTMENT OF THE INTERIOR

National Park Service


Notice of Draft Principles of Agreement Regarding the Disposition 
of Culturally Unidentifiable Human Remains-- Extended Date for Comments

AGENCY: National Park Service

ACTION: Notice

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    Section 8 (c)(5) of the Native American Graves Protection and 
Repatriation Act (NAGPRA) (25 U.S.C. 3006 (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 Review Committee has developed the following draft 
principles of agreement for comment and discussion. The document is 
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 review committee's draft 
principles of agreement should send written comments to:
    The NAGPRA Review Committee
    c/o Departmental Consulting Archeologist
    National Park Service (2275)
    1849 C St. NW. (NC340)
    Washington DC, 20240
    Comments received by September 3, 1999 will be considered by the 
committee at its next scheduled meeting. For additional information, 
please contact Dr. C. Timothy McKeown at (202) 343-4101.
    Note: We will not accept any comments in electronic form.
Dated: July 23, 1999.
Veletta Canouts,
Acting Departmental Consulting Archeologist,
Deputy Manager, Archeology and Ethnography Program.
    DRAFT PRINCIPLES OF AGREEMENT
    At its June 25-27, 1998 meeting, the NAGPRA Review Committee 
examined the legislative history of NAGPRA and discussed both the law's 
intent and how to proceed with one of the Committee's most pressing 
tasks-- making recommendations on the disposition of culturally 
unidentifiable human remains. One result was a set of principles. 
Working from these, the Review Committee offers the following draft 
principles of agreement as a next step for discussion. The Committee 
wishes to underscore the preliminary nature of these principles and 
their placement as a beginning point for consideration of this topic.
    A. Intent of NAGPRA.
    1. The legislative intent of NAGPRA is stated by the statute's 
title, the ``Native American Graves Protection and Repatriation Act''.
    2. Specifically, the statute mandates:
    a. The disposition of all Native American human remains and 
cultural items excavated on Federal lands after November 16, 1990,
    b. The repatriation of culturally affiliated human remains and 
associated funerary objects in Federal agency and museum collections,
    c. The development of regulations for the disposition of unclaimed 
remains and objects (under 25 U.S.C. 3002) and culturally unidentified 
human remains in Federal agency and museum collections (under 25 U.S.C. 
3006).
    3. The legal standing of funerary objects associated with 
culturally unidentifiable human remains is not addressed by NAGPRA and 
is beyond the Review Committee's charge.
    4. While the statute does not always specify disposition, it is 
implicit that:
    a. The process be primarily in the hands of Native people (as the 
nearest next of kin),
    b. Repatriation is the most reasonable and consistent choice.
    5. Additionally, a fundamental tension exists within the statute

[[Page 41136]]

between the legitimate and long denied 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 (c); 25 U.S.C. 3005 (b))
    B. Culturally Unidentifiable Human Remains.
    1. Federal agencies and museums must make a decision as to whether 
all Native American human remains are related to lineal descendants, 
culturally affiliated with a present day Federally recognized Indian 
tribe, or are culturally unidentifiable. This determination must be 
made through a good faith evaluation of all relevant, available 
documentation and consultation with any appropriate Indian tribe.
    2. A determination that human remains are culturally unidentifiable 
may change as additional information becomes available.
    3. Human remains can be identified as ``culturally unidentifiable'' 
for different reasons. At present, four categories are recognized:
    a. Those which are culturally affiliated, but with a non-Federally 
recognized Native American group.
    b. Those which represent a defined past population, but for which 
no present day Indian tribe exists.
    c. Those for which some evidence exists, but insufficient for a 
Federal agency or museum to make a determination of cultural 
affiliation.
    d. Those for which no information exists.
    C. Guidelines for the disposition of culturally unidentifiable 
human remains.
    1. Four principles must serve as the foundation for any regulations 
on the disposition of culturally unidentifiable human remains. They 
must be:
    a. Respectful. Culturally unidentifiable human remains are no less 
deserving of respect than those for which culturally affiliation can be 
established. While the Review Committee is aware that the term 
'culturally unidentifiable' is inherently offensive to many Native 
people, it is the term used in the statute.
    b. Equitable. Regulations must be perceived as fair and within the 
intent of the statute.
    c. Doable. Regulations must propose a process that is possible for 
Federal agencies, museums, and claimants and worth the effort to 
implement.
    d. Enforceable. There is no point in making regulations that can 
not or will not be enforced.
    2. Since human remains may be determined to be culturally 
unidentifiable for different reasons, there will be more than one 
appropriate disposition/repatriation solution. Examples:
    a. Human remains that are, technically, culturally unidentifiable 
because the appropriate claimant is not federally recognized [section 
B(3)(a.) above], may be repatriated once federal recognition has been 
granted, or if the claimant works with another culturally affiliated, 
federally recognized Indian tribe (example--the Titicut site / Mashpee 
case).
    b. Human remains for which there is little or no information 
[section B(3)(c. and d.) above] should be speedily repatriated since 
they have little educational, historical or scientific value.
    3. Documentation.
    a. Since documentation is required (25 U.S.C. 3003 (b)(2)), it is 
appropriate that it be conducted in accordance with defined standards.
    b. Documentation should be proportional to the importance of the 
information conveyed. For example, remains from a defined past 
population for which no present-day Indian tribe exists [section 
B(3)(b.) above] are of far greater educational, historical and 
scientific importance than those for which there is little or no 
information [section B(3)(c) and (d) above].
    c. Appropriate documentation includes non-invasive techniques such 
as measurement, description and photography.
    d. Invasive testing is not required for statutory documentation. 
Such testing may be performed if agreed upon by the parties in 
consultation.
    e. Documentation prepared for compliance with the statute is a 
public record.
    D. Models for the disposition of culturally unidentifiable human 
remains.
    1. Joint recommendations by institutions, Federal agencies, or 
states and appropriate claimants. The Review Committee has recommended 
the repatriation of culturally unidentifiable human remains in those 
cases where:
    a. All the relevant parties have agreed in writing,
    b. Statutory requirements have been met,
    c. The guidelines listed above have been followed.
    These cases have included institutions (University of Nebraska, 
Lincoln), units of the National Park Service (Carlsbad Caverns NP and 
Guadalupe Mountains NM), and states (Minnesota and Iowa).
    2. Regional consultations
    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 reasonable to look for regional 
solutions that best fit regional circumstances.
    The Review Committee recommends a process in which the Federal 
agencies, institutions and Indian tribes within a region consult 
together and propose the most appropriate disposition solutions for 
that region.
    As with joint recommendations, any proposed regional disposition 
must meet both statutory requirements and the guidelines listed above.
[FR Doc. 99-19452 Filed 7-28-99; 8:45 am]
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