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Native American Graves Protection and

Repatriation Review Committee


Draft Principles of Agreement Regarding the Disposition of Culturally Unidentifiable Human Remains
July 29, 1999

[Federal Register: July 29, 1999 (Volume 64, Number 145)]
[Page 41135-41136]
From the Federal Register Online via GPO Access []



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


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.
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.
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
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
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
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
e. Documentation prepared for compliance with the statute is a
public record.
D. Models for the disposition of culturally unidentifiable human
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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