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Native American Graves Protection and

Repatriation Review Committee

Recommendations


Draft Recommendations Regarding the Disposition of Culturally Unidentifiable Human Remains and Associated Funerary Objects
August 20, 1996

 

[Federal Register: August 20, 1996 (Volume 61, Number 162)]
[Notices]
[Page 43071-43073]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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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

[[Page 43072]]

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]
BILLING CODE 4310-70-F

 

 
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