Message #381:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: TF King's Model NAGPRA POA
Date: Mon, 25 Nov 96 09:04:00 MST
Encoding: 330 TEXT


[ Please excuse this cross-posting clipped from FPForum.  By the way, King's 
comment ( "If I were only twenty years younger....." ) seem so out of place 
given his rage against the machine and bureaucracy in general [ see King's 
response to Council's Section 106 proposed regs. at 
http://www.swanet.org/compiled.html ].  Below, he recognizes his 
model POA as a generator of archaeological work, then, pines to be involved 
 ???  Hmmmm......  Rather than pick me apart for noting such seeming 
inconsistency, please pick apart the model POA and send it back to the 
drawing board.  You can e-mail Tom King at  TFKing106@aol.com.   I'm 
sure he won't mind a bit.....   --  SASIG Ed. ]

From: Tom King

In response to a fair number of requests, here is my "model" NAGPRA POA.  I 
realize that it seems to be hideously complicated, but it's what emerged 
from a conscientous effort to hew to the strict requirements of 43 CFR 10.3 
and 10.5.  Which themselves are pretty complicated, but I don't know how 
they could be made less so, given the requirements of the statute itself. 
 Note that there are several places where consultant studies are assumed.  I 
don't know how to get around this, either; it seems to me that such studies 
are often going to be needed to (a) establish cultural affiliation, and (b) 
develop lists of sacred objects and objects of cultural patrimony.  To say 
nothing of monitoring itself.  Lots of work for consultants here.  If I were 
only twenty years younger.....


MODEL POA
PLAN OF ACTION FOR THE TREATMENT OF NATIVE AMERICAN CULTURAL ITEMS DURING 
CONSTRUCTION OF THE LIGHTGAS PIPELINE WITHIN THE STATE OF UTAZONA

I. Background
A. Pursuant to 43 CFR 10.5(a), the Bureau of Land Management (BLM), assisted 
by the Lightgas Transportation Company (LTC), has determined that:

1. There are no known lineal descendants of specific Native Americans whose 
remains or cultural items are likely to be disturbed by construction of the 
Lightgas Pipeline (pipeline);

2. The three alternative routes for the pipeline within the State of Utazona 
cross the aboriginal lands of the following Indian tribes:

(1) Alternative A:  Yavajo and Malagansett;
(2) Alternative B:  Loomatilla, Tunipa, and Yavajo; and
(3) Alternative C:  Loomatilla and Malagansett.

3. Each of the four above-listed tribes is likely to be culturally 
affiliated with any human remains, funerary objects, sacred objects, or 
objects of cultural patrimony discovered within its aboriginal lands in 
connection with construction of the pipeline in Utazona.  In addition, the 
Chippesaw, whose ancestors are said to have occupied eastern prior to the 
coming of the Tunipa, may be culturally affiliated with Native American 
cultural items from eastern Utazona.

4. The Southern Skyute have a demonstrated cultural relationship with human 
remains and other cultural items associated with their passage across 
Utazona in 1879 along the "Trail of Hardship," which crosses the Alternative 
A and C rights of way near the City of Flatrock.

B. Pursuant to 43 CFR 10.3(c)(1) and 43 CFR 10.5(b)(1), BLM notified the 
governments of the six above-listed tribes (the tribes) of the plans for the 
pipeline, providing them with the information required by 43 CFR 
10.2E3(c)(1), and proposed consultation.

C. Pursuant to 43 CFR 10.3(b)(2) and 43 CFR 10.5(b)(2) and (3), BLM and LTC 
consulted with the tribes and their traditional religious leaders, providing 
them with the information required by 43 CFR 10.5(c) and requesting the 
information required by 43 CFR 10.5(d).

D. Pursuant to 43 CFR 10.3(b)(4), proof of BLM's and LPG's consultation with 
tribes is provided in Appendix C-7 ("Native American Consultation") of the 
draft Environmental Impact Statement dated July 31, 1996, and entitled 
"Draft Environmental Impact Statement: Lightgas Pipeline."

E. Based on BLM's program of identification and consultation, and pursuant 
to 43 CFR 10.5(e), BLM and LTC have developed the Plan of Action set forth 
in Section II.

F. Pursuant to 43 CFR 10.3(c)(3), BLM and LTC have coordinated consultation 
with tribes and development of the Plan of Action with review of the 
pipeline under Section 106 of the National Historic Preservation Act, and 
propose that the following Plan of Action shall become a part of the 
Memorandum of Agreement (MOA) being developed pursuant to Section 106 of the 
National Historic Preservation Act and its implementing regulations (36 CFR 
800).

II. Plan of Action

BLM will ensure that the following Plan of Action (POA) is implemented:

A. Pursuant to 43 CFR 10.3(b)(1), LPG will contract for all excavation and 
treatment of Native American cultural items, as defined below, to be carried 
out by or under the direct supervision of holders of permits issued in 
accordance with the requirements of the Archeological Resources Protection 
Act (ARPA )(16 U.S.C. 470aa et seq) and its implementing regulations.  Such 
a permit may take the form of a contract, provided BLM certifies that the 
terms of such contract meet the requirements of ARPA and its implementing 
regulations.  BLM employees certified by BLM to meet the professional 
standards set forth in ARPA's implementing regulations shall also be 
understood to hold ARPA permits when engaged in their professional duties.

B. Pursuant to 43 CFR 10.3(b)(3), BLM and LPG will ensure that disposition 
of any Native American cultural items is as specified in paragraph J below.

C. Based on BLM's and LPG's consultation with tribes, and pursuant to 43 CFR 
10.5(e)(1), BLM and LPG shall consider the following as Native American 
cultural items:

1. Human remains;

2. Associated funerary objects, which shall be understood to mean objects 
placed intentionally with human remains and still physically associated in 
space with such remains.  The location of objects within the grave fill or 
in immediate proximity to human remains shall be understood to evidence 
intentional placement with human remains.

3. Unassociated funerary objects, which shall be understood to mean objects 
intentionally placed with human remains but whose association has been 
disturbed through vandalism, erosion, plowing, rodent action, and other 
ground-disturbing phenomena.  Types of objects typically placed 
intentionally with human remains in Yavajo, Malagansett, Loomatilla, Tunipa, 
Chippesaw, and Southern Skyute cultural practice are listed in the report 
entitled "Typical Funerary Objects, Sacred Objects, and Cultural Patrimony 
of the Yavajo, Malagansett, Loomatilla, Tunipa, Chippesaw, and Southern 
Skyute," prepared by Backdirt Consultants, Inc. in consultation with the 
tribes and dated June 1, 1996 (Appendix A).

4. Sacred objects, which shall be understood to include those classes of 
objects identified by Yavajo, Malagansett, Loomatilla, Tunipa, Chippesaw, 
and Southern Skyute religious leaders as needed in the practice of 
traditional Yavajo, Malagansett, Loomatilla, Tunipa, Chippesaw, and/or 
Southern Skyute religions by their present-day adherents.  Such classes of 
objects are identified in Appendix A.

5. Objects of cultural patrimony, which shall be understood to include those 
classes of items having ongoing historical, traditional, or cultural 
importance central to the Yavajo, Malagansett, Loomatilla, Tunipa, 
Chippesaw, and/or Southern Skyute tribes, as distinct from items that could 
be owned and alienated by individual tribal members.  Such classes of 
objects are identified in Appendix A.

D. BLM shall determine custody of Native American cultural items as follows:

1. Should Alternative A, which crosses the Loomatilla Reservation, be 
selected for construction of the Pipeline, the Loomatilla tribe shall have 
custody of any Native American cultural items found within the external 
boundaries of that reservation.  No other tribal lands are crossed by any of 
the alternatives.

2. For Native American cultural items found beyond the boundaries of the 
Loomatilla Reservation, BLM will determine custody based on the findings  of 
the report entitled "Cultural Affiliation with Lands along the Alternative 
Routes of the Proposed Lightgas Pipeline," prepared by Backdirt Consultants, 
Inc. in consultation with the tribes and dated May 1, 1996 (Appendix B).

E. BLM and LPG shall treat, care for, and handle Native American cultural 
items as follows:

1. Treatment, care, and handling of Native American cultural items found 
during archeological data recovery at specific, pre-identified sites shall 
be in accordance with the data recovery plan for the specific site, as 
prepared, reviewed, and finalized in accordance with the Memorandum of 
Agreement (MOA) executed by BLM, the Utazona State Historic Preservation 
Officer, and the Advisory Council on Historic Preservation after 
consultation with the tribes pursuant to Section 106 of the National 
Historic Preservation Act, subject to paragraph II.H.

2. Native American cultural items found during archeological monitoring 
shall be treated, cared for, and handled as follows:

(a) All pipeline-related ground disturbance shall be monitored by an 
archeological monitoring team employed by LPG and accepted by BLM after 
consultation with the tribes.

(b) Should an object that in the opinion of the archeological monitoring 
team might be a Native American cultural item be found during the course of 
monitoring, LPG shall halt work that might disturb the item or items until 
the following procedures have been implemented:

(1) The archeological monitoring team shall inspect the possible Native 
American cultural item and record it in place to the extent feasible 
employing standard archeological recordation methods, subject to paragraph 
II.H.  If the team determines that the object is not a Native American 
cultural item, it shall so certify in writing, and construction may continue 
in the vicinity of the object, subject to the terms of the MOA where an 
object of historical significance is found that is not a Native American 
Cultural Item.

(2) Where the archeological monitoring team certifies that the object is a 
Native American cultural item, LPG shall reroute construction to the extent 
feasible to leave the item or items in place and unharmed.  The items shall 
be recorded in place by the monitoring team, and LPG will cover them with 
earth under the monitoring team's supervision, to protect them in place.

(3) Where rerouting is not feasible, the monitoring team shall remove the 
item or items to a safe location for study and preparation for reburial or 
repatriation, employing standard archeological field study and recordation 
procedures.  LPG may resume construction in the vicinity as soon as the 
archeological monitoring team certifies that the item or items have been 
properly and safely removed.

(4) LPG will provide for recordation and analysis of items removed in 
accordance with Paragraph II.F.2.

F. BLM and LPG shall ensure that archeological recording and analysis of 
Native American cultural items is carried out as follows:

1. LPG shall record and analyze any Native American cultural items found 
during archeological data recovery at specific, pre-identified sites in 
accordance with the data recovery plan for the specific site, as prepared, 
reviewed, and finalized in accordance with the Memorandum of Agreement (MOA) 
executed by BLM, the Utazona State Historic Preservation Officer, and the 
Advisory Council on Historic Preservation after consultation with the tribes 
pursuant to Section 106 of the National Historic Preservation Act, subject 
to paragraph II.H.

2. LPG shall record and analyze any Native American cultural items found 
during archeological monitoring following the procedures set forth in the 
document entitled "Archeological Monitoring Plan, Lightgas Pipeline," 
prepared by Backdirt Consultants, Inc. in consultation with the tribes and 
dated May 20, 1996 (Appendix C).

3. In no case shall LPB allow analysis of Native American cultural items to 
extend beyond one year after the date such items are recovered, without the 
express written concurrence of BLM and the tribe(s) affiliated with such 
items.  Analysis of material other than Native American cultural items may 
extend over a longer period of time.

G. BLM and LPG shall maintain continuous contact with the tribes throughout 
the conduct of archeological data recovery and monitoring, as follows:

1. As the U.S. Government's formal government-to-government contact with the 
tribe, BLM shall request the governing body of each tribe to designate an 
official point of contact (POC) to maintain ongoing contact with LPG

2. LPG shall contact the POC during planning for any data recovery or 
monitoring on lands with which such tribe is affiliated, advise the POC of 
the work schedule, and invite the POC to participate in or monitor the work.

3. Through the POC, LPG shall offer employment to tribal members on all 
archeological data recovery projects and monitoring teams, and shall make 
special efforts to employ tribal members in work carried out on lands with 
which each tribe is affiliated.

4. Upon the identification of a possible Native American cultural item 
during data recovery or monitoring, LPG shall notify the POC, and invite the 
POC to observe and advise during the treatment and handling of the item.

5. LPG may at its discretion compensate or reimburse the POC for the POC's 
assistance.

6. LPG shall provide the tribes with written reports on all work 
accomplished.

H. BLM and LPG shall provide each tribe with reasonable opportunities to 
conduct traditional treatment of Native American cultural items during their 
recovery, analysis, treatment and handling.  Should a tribe request to 
conduct ceremonies or other traditional activities with respect to a Native 
American cultural item or items, BLM and LPG will accomodate such request to 
the maximum extent allowable by considerations of health, safety, 
environmental protection, and the project schedule.  BLM and LPG shall 
ensure that all Native American cultural items found during archeological 
data recovery and archeological monitoring are treated with respect, and the 
following specific provisions are observed:

1. Sacred objects with which the Malagansett are affiliated shall not be 
washed or otherwise cleaned.

2. No person under the age of eighteen (18) years shall be permitted to view 
or handle any sacred object with which the Chippesaw are affiliated.

3. Human remains and funerary objects with which the Yavajo are affiliated 
shall be reburied by non-Yavajo persons, or by Yavajo persons who 
specifically volunteer to do so, as close to their location of recovery as 
is consistent with their continued safety.

4. Human remains with which the Loomatilla are affiliated shall be delivered 
unwashed and without analysis beyond the determination of age, sex, and 
major physical abnormalities and traumas to the Loomatilla Elder's Council 
for appropriate treatment.

I. BLM and LPG shall ensure that reports are prepared, meeting contemporary 
archeological standards, on each pre-planned data recovery project and on 
the archeological monitoring program on the lands with which each tribe is 
affiliated.  In consultation with the tribes, BLM and LPG will ensure that 
these reports are designed to minimize the likelihood that they can be used 
to facilitate the excavation or vandalism of any Native American cultural 
item without the express permission of the affiliated tribe(s).  LPG shall 
distribute reports to the tribes and to any parties specified in the MOA.

J. Except in the case of items disposed of in accordance with paragraphs H.3 
and H.4, BLM and LPG shall ensure that Native American cultural items are 
disposed of in the following manner:

1. Upon the completion of analysis, LPG shall deliver all Native American 
cultural items to BLM.  LPG shall ensure that all such items are 
appropriately labelled to designate the tribe with which each is affiliated. 
 LPG may deliver items to BLM in lots as analysis is completed.

2. Within one week after receiving a lot of Native American cultural items, 
BLM shall contact the affiliated tribe through its POC, and arrange a time, 
place, and means of transferring the items to the tribe.  BLM shall then 
proceed to transfer the items to the tribe, documenting the date, time, and 
place of such transfer and a description of the items transferred.

Approved:
State Director, Bureau of Land Management

Concur:
Lightgas Transportation Company

Concur
Yavajo Nation

Concur
Naragansett Tribe

Concur
Tunipa Tribe

Concur
Loomatilla Tribe

Concur
Chippesaw Tribe

Concur
Southern Skyute Tribe