American Graves Protection and
Regarding the Disposition of Culturally Unidentifiable Native American
June 8, 2000
Register: June 8, 2000 (Volume 65, Number 111)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
OF THE INTERIOR
Regarding the Disposition of Culturally
Unidentifiable Native American Human Remains
National Park Service, Interior
The Native American Graves Protection and Repatriation Act directs
the Secretary of the Interior to establish and maintain an advisory
committee composed of seven private citizens nominated by Indian
tribes, Native Hawaiian organizations, and national museum
organizations and scientific organizations [25 U.S.C. 3006]. One
review committee's responsibilities is to make recommendations
regarding specific actions for developing a process for the disposal
culturally unidentifiable Native American human remains in the
possession or control of museums and Federal agencies [25 U.S.C.
(c)(5)]. After lengthy deliberations, the committee makes the following
A. Intent of NAGPRA
1. The legislative intent of the Native American Graves Protection
and Repatriation Act of 1990 (NAGPRA) is stated by the title of
statute. Repatriation means the return of control over human remains
and cultural items to Indian tribes and Native Hawaiian organizations.
2. Specifically, the statute required:
a. The disposition of all Native American human remains and
cultural items excavated on or removed from Federal lands after
November 16, 1990 [25 U.S.C. 3002 (d)(2)]. Disposition is based
linkages of lineal descent, tribal land, cultural affiliation, or
b. The repatriation of culturally affiliated human remains and
associated funerary objects in Federal agency and museum collections
requested by a culturally affiliated Indian tribe or Native Hawaiian
organization [25 U.S.C. 3005]. Repatriation is based on linkages
lineal descent or cultural affiliation.
c. The development of regulations for the disposition of unclaimed
human remains and objects [25 U.S.C. 3002 (3)(b)] and culturally
unidentifiable human remains in Federal agency and museum collections
[25 U.S.C. 3006].
3. Although the legal standing of funerary objects associated with
culturally unidentifiable human remains is not addressed in NAGPRA,
statute does not prohibit their voluntary repatriation by museums
Federal agencies to the extent allowed by Federal law.
4. The statute acknowledges the legitimate need to return control
over ancestral remains and funerary objects to Native people, and
legitimate public interest in the educational, historical, and
scientific information conveyed by those remains and objects [25
3002 (3)(b) and 3006 (8)(b)].
5. While the statute does not always specify repatriation, it is
implicit that the process be guided by the rights and needs of Indian
tribes and Native Hawaiian organizations.
B. Culturally Unidentifiable Human Remains
1. Federal agencies and museums must make a determination as to
whether Native American human remains in their control are related
lineal descendants, culturally affiliated with a present-day Federally
recognized Indian tribe or a Native Hawaiian organization, or are
culturally unidentifiable. This determination must be made in
consultation with any appropriate Indian tribes or Native Hawaiian
organizations, and through a good faith evaluation of all relevant
2. A determination that human remains are culturally unidentifiable
may change to one of cultural affiliation as additional information
becomes available through ongoing consultation or any other source.
There is no statute of limitations for lineal descendants, Indian
tribes, or Native Hawaiian organizations to make a claim.
3. A Federal agency or museum determination that human remains are
culturally unidentifiable may occur for different reasons. At present,
three categories are recognized:
a. Those for which cultural affiliation could be determined except
that the appropriate Native American organization is not Federally
recognized as an Indian tribe.
b. Those which represent an earlier identifiable group, but for
which no present-day Indian tribe has been identified by the Federal
agency or museum.
c. Those for which the Federal agency or museum believes that
evidence is insufficient to identify an earlier group.
a. Documentation is required for inventory completion and
determinations of cultural affiliation by Federal agencies and museums
[25 U.S.C. 3003 (5)(b)(2)]. Documentation should be prepared in
accordance with standards such as those outlined in 43 CFR 10.9
b. Documentation must occur within the context of the consultation
process. Additional study is not prohibited if the parties (Federal
agencies, museums, lineal descendants, Indian tribes, and Native
Hawaiian organizations) in consultation agree that such study is
c. Once inventories have been completed, the statute may not be
used to require new scientific studies or other means of acquiring
preserving additional scientific information from human remains
associated funerary objects [25 U.S.C. 3003 (b)(2)].
d. With the exception of information exempted from the Freedom of
Information Act, documentation prepared in compliance with the statute
is a public record.
C. Guidelines for the Disposition of Culturally Unidentifiable
1. Respect must be the foundation for any disposition of culturally
unidentifiable human remains. Human remains determined to be culturally
unidentifiable are no less deserving of respect than those for which
cultural affiliation has been established.
2. Since human remains may be unclaimed, or determined to be
culturally unidentifiable for different reasons, there will be more
than one appropriate disposition (repatriation) solution. Examples
appropriate repatriation solutions include the return of:
a. Human remains that are determined to be culturally
unidentifiable that were recovered from tribal land.
b. Human remains that are determined to be culturally
unidentifiable that were recovered from the aboriginal land of an
c. Human remains that are culturally unidentifiable for which there
is a relationship of shared group identity with a non-Federally
recognized Native American group.
3. A Federal agency or museum may also seek the recommendation of
the review committee for the disposition of culturally unidentifiable
human remains based on other criteria than those listed above.
D. Proposed Models for the Disposition of Culturally Unidentifiable
1. Joint recommendations by Federal agencies, museums, and
claimants. Repatriation of culturally unidentifiable human remains
proceed in those cases where:
a. All the relevant parties have agreed in writing,
b. Statutory requirements have been met; and
c. The guidelines listed above have been followed.
Note: The review committee has recommended repatriation of
culturally unidentifiable human remains that have met these criteria
for both museums--including the Robert S. Peabody Museum of
Archaeology-Phillips Academy; Commonwealth of Virginia-Department
Historic Resources; Dartmouth College-Hood Museum; Minnesota Indian
Affairs Council; Iowa Historical Society; Sonoma State University;
Peabody Museum-Harvard University; University of Nebraska-Lincoln;
Hampshire Division of Historical Resources; California State
University-Fresno; and Washington State Historical Society--and
agencies, including the US Army-Fort Hunter-Liggett; National Park
Service-Fort Clatsop National Monument; National Park Service-Carlsbad
Caverns National Park/Guadalupe Mountains National Park; and US
Service-Ocala National Forest.
2. Joint recommendations from regional consultations
a. 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
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
in the Great Plains. Therefore, it is recommended that regional
solutions be developed that best fit regional circumstances.
b. The review committee recommends a process in which:
i. Indian tribes and Native Hawaiian organizations define regions
within which the most appropriate solutions for disposition of
culturally unidentifiable human remains may be determined.
ii. Within each region, the appropriate Federal agencies, museums,
Indian tribes, and Native Hawaiian organizations consult together
propose a framework and schedule to develop and implement the most
appropriate model for their region.
iii. Regional consultation meetings may be open to other parties
with a legitimate interest in disposition, with the consent of the
appropriate Federal agencies, museums, Indian tribes, and Native
iv. Dispositions agreed upon through regional consultation meetings
will be made by the appropriate Federal agencies, museums, and Indian
v. If a disposition agreement can not be reached through regional
consultation meetings, the dispute may be brought before the review
vi. Any proposed regional disposition agreement must meet all
statutory requirements as well as the guidelines listed above.
The review committee requests that the Secretary of the Interior
develop a draft proposed rule [43 CFR 10.11] based on these
recommendations to be considered by the review committee at its
meeting. Following review by the committee, the proposed rule will
published for additional public comment in the Federal Register.
Dated: May 9, 2000.
Chair, Native American Graves Protection and Repatriation Review
[FR Doc. 00-14487 Filed 6-7-00; 8:45 am]
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