Message #309:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: NAGPRA Recommendations
Date: Tue, 24 Sep 96 09:22:00 MST
Encoding: 292 TEXT


From: Jonathan Haas, FMNH, Field Museum & Dept of Anthro/
      U. of Illinois Chicago haas@fmppr.fmnh.org

The NAGPRA Review Committee has developed a new draft set of 
recommendations on the disposition of "culturally unaffiliated" human 
remains.  This second draft is significantly different from the one that was 
widely circulated last year.  This latest draft was published in the August 
20, 1996 edition of the Federal Register, and I have attached a copy to this 
message.  The Committee will be discussing these recommendations and 
comments at its next meeting on November 1, 2 and 3 in Myrtle Beach, SC.

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.
 -----------------------------------------------------------------------

    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 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]

Jonathan Haas
(312) 922-9410 ext 641