NPS-28: CULTURAL RESOURCE MANAGEMENT GUIDELINE

1. INTRODUCTION

On November 16, 1990, President George Bush approved the Native American Graves Protection and Repatriation Act [P.L. 101-601; 25 USC 3001-3013; 104 Stat. 3048-3058] (NAGPRA). Final regulations were published on December 4, 1995 [43 CFR 10]. The regulations address the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. They require federal agencies and institutions that receive federal funds to provide information about Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony to lineal descendants, Indian tribes, and Native Hawaiian organizations and, upon presentation of a valid request, dispose of or repatriate these objects to them.

The National Park Service–like all federal agencies except the Smithsonian Institution (which is under a separate statute)–is required to comply with the regulations. Park superintendents are responsible for notifying and consulting with lineal descendants, Indian tribes, and Native Hawaiian organizations regarding planned excavations and inadvertent discoveries on NPS lands. Superintendents also were responsible for the completion of summaries of Native American collections in their control that might include unassociated funerary objects, sacred objects, and objects of cultural patrimony and inventories of human remains and associated funerary objects. The summaries and inventories included both objects in park collections and those from NPS lands that are currently held in other repositories. Superintendents are responsible for making decisions about the disposition or repatriation of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony under NPS control. The trafficking provisions of the statute may also require cooperation with officials of the Department of Justice regarding illegal excavations on NPS lands.

NAGPRA compliance is to be achieved by implementation of the applicable regulations [43 CFR 10]. This appendix provides guidelines for NPS park, center, and regional compliance with the statute and regulations. Additional technical assistance is available from support offices, archeological and other cultural resource centers, and the Archeology & Ethnography and Museum Management programs in the National Center for Cultural Resources Stewardship and Partnership Programs.

2. WHAT NATIVE AMERICAN OBJECTS ARE COVERED?

The regulations apply to four types of Native American items: (1) human remains, (2) funerary objects, (3) sacred objects, and (4) objects of cultural patrimony. A particular item may fit more than one category. The term Native American means of or relating to a tribe, people, or culture indigenous to the United States, including Alaska and Hawaii [43 CFR 10.2(d)]. The term is used only to refer to human remains, funerary objects, sacred objects, or objects of cultural patrimony. It is not used in the regulations to reference any individual or group with standing to request Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony.

Other terms–including human remains, funerary object, sacred object, and object of cultural patrimony–are used in the statute and regulations in very specific ways that may differ from their common meanings. It is these specific meanings that must be used in applying NAGPRA.

a. Human Remains

Human remains means the physical remains of a body of a person of Native American ancestry [43 CFR 10.2(d)(1)]. The term has been interpreted broadly to include bones, teeth, hair, ashes, or mummified or otherwise preserved soft tissues. The regulations make no distinction between fully-articulated burials and isolated bones and teeth. The term applies equally to recent and ancient Native American human remains. The term does not include remains, or portions of remains, freely given or naturally shed by the individual from whose body they were obtained, such as hair made into ropes or nets. Purposefully disposed human remains should not be considered either freely given or naturally shed. For the purposes of determining cultural affiliation, human remains incorporated into funerary objects, sacred objects, or objects of cultural patrimony are considered part of that object. This provision is intended to prevent the destruction of a funerary object, sacred object, or object of cultural patrimony that is affiliated with one Indian tribe but incorporates human remains affiliated with another Indian tribe. Human remains that have been repatriated under NAGPRA to lineal descendants, Indian tribes, and Native Hawaiian organizations include complete and partial skeletons, isolated bones, teeth, scalps, and ashes.

b. Funerary Objects

Funerary objects are defined as items that, as part of the death rite or ceremony of a culture, are reasonably believed to have been placed intentionally at the time of death or later with or near individual human remains. Funerary objects must be defined by the preponderance of the evidence as having been removed from a specific burial site of an individual affiliated with a particular Indian tribe or Native Hawaiian organization or as being related to specific individuals or families or to known human remains. The term "burial site" means any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which individual human remains were deposited as part of the death rite or ceremony of a culture. Burial sites include rock cairns or pyres which do not fall within the ordinary definition of grave site [43 CFR 10.2(d)(2)].

Items made exclusively for burial purposes are considered funerary objects even if there are no associated human remains. Items that inadvertently came into contact with human remains are not considered to be funerary objects. Certain Indian tribes, particularly those from the northern plains, have ceremonies in which objects are placed near, but not with, the human remains at the time of death or later. These items should be considered funerary objects. The regulations distinguish between "associated funerary objects"–for which the human remains and funerary objects are in the possession or control of a federal agency or museum–and "unassociated funerary objects," for which the human remains are not in the possession or control of a federal agency or museum.

Associated and unassociated funerary objects that have been repatriated under NAGPRA to lineal descendants, Indian tribes, and Native Hawaiian organizations include many beads of various types; pottery jars, bowls, and sherds; tools and implements of wood, stone, bone, and metal; trade silver and other goods; weapons of many types, including rifles and revolvers; and articles or fragments of clothing.

c. Sacred Objects

Sacred objects are defined as specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents. Traditional religious leaders are individuals recognized by members of an Indian tribe or Native Hawaiian organization as being responsible for performing cultural duties relating to the ceremonial or religious traditions of that Indian tribe or Native Hawaiian organization, or exercising a leadership role in an Indian tribe or Native Hawaiian organization based on the tribe's or organization's cultural, ceremonial, or religious practices.

While many items, from ancient pottery sherds to arrowheads, might be imbued with sacredness in the eyes of an individual, this definition is specifically limited to objects that were devoted to a traditional Native American religious ceremony or ritual and that have religious significance or function in the continued observance or renewal of such ceremony [43 CFR 10.2(d)(30)]. Sacred objects that have been repatriated under NAGPRA to lineal descendants, Indian tribes, and Native Hawaiian organizations include medicine bundles, prayer sticks, pipes, effigies and fetishes, basketry, rattles, and a birchbark scroll.

d. Objects of Cultural Patrimony

Objects of cultural patrimony are defined as items having ongoing historical, traditional, or cultural importance central to the Indian tribe or Native Hawaiian organization itself, rather than property owned by an individual tribal member. These objects are of such central importance that they may not be alienated, appropriated, or conveyed by any individual tribal member. Such objects must have been considered inalienable by the affiliated Indian tribe or Native Hawaiian organization at the time the object was separated from the group [43 CFR 10.2(d)(40)]. Objects of cultural patrimony that have been repatriated under NAGPRA to Indian tribes and Native Hawaiian organizations include a wolf-head headdress, a clan hat, several medicine bundles, and ceremonial masks of varying types.

An item may be considered an object of cultural patrimony as well as a sacred object. Items fitting both categories that have been repatriated under NAGPRA to Indian tribes and Native Hawaiian organizations include Zuni War Gods, a Sun Dance wheel, ceremonial masks of several types and functions, and a tortoise shell rattle.

3. WHO HAS STANDING TO MAKE A REQUEST?

The regulations provide certain individuals and organizations the opportunity to request Native American human remains and cultural items. Lineal descendants, Indian tribes, and Native Hawaiian organizations may request Native American human remains, funerary objects, and sacred objects. Indian tribes and Native Hawaiian organizations may request objects of cultural patrimony. The criteria needed to identify who has standing to make a request are outlined below.

a. Lineal Descendants

Lineal descendant is not defined in the statute, which nevertheless makes clear that lineal descendants have priority over Indian tribes or Native Hawaiian organizations in making requests for human remains, funerary objects, and sacred objects. Lineal descendant is defined by regulation as an individual tracing his or her ancestry directly and without interruption by means of the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization or by the American common law system of descent to a known Native American individual whose remains, funerary objects, or sacred objects are being requested [43 CFR 10.2(b)(1)]. The necessity for a direct and unbroken line of ancestry between the individual making the request and a known individual is a high standard, but one that is consistent with the preference for disposition or repatriation to lineal descendants required by the statute. Reference to traditional kinship systems in the definition is designed to accommodate the different systems that individual Indian tribes and Native Hawaiian organizations use to reckon kinship.

b. Indian Tribes

Indian tribe is defined to mean any tribe, band, nation, or other organized Indian group or community of Indians, including any Alaska Native village as defined in or established by the Alaska Native Claims Settlement Act [43 USC 1601 et seq.], that is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians [43 CFR 10.2(b)(2)]. This definition was drawn explicitly from the American Indian Self Determination and Education Act [25 USC 450b], a statute implemented since 1976 by the Bureau of Indian Affairs to apply to a specific list of eligible Indian tribes and Alaska Native villages and corporations. The definition within the American Indian Self Determination and Education Act precludes extending applicability of NAGPRA to nonfederally recognized Indian groups. This includes groups that have been terminated, are current applicants for recognition, or have only state or local jurisdiction legal status. There are currently 763 Indian tribes and Alaska Native villages and corporations that are eligible to make requests under the regulations. The current list of Indian tribal contacts is available from the Departmental Consulting Archeologist. Copies of letters or resolutions identifying new Indian tribe NAGPRA representatives should be referred to the Departmental Consulting Archeologist.

c. Native Hawaiian Organizations

Native Hawaiian organization is defined as any organization that (1) serves and represents the interests of Native Hawaiians, (2) has as a primary and stated purpose the provision of services to Native Hawaiians, and (3) has expertise in Native Hawaiian affairs. The statute specifically identifies the Office of Hawaiian Affairs and Hui Malama I Na Kupuna 'O Hawai'i Nei as being Native Hawaiian organizations [43 CFR 10.2(b)(3)].

Native Hawaiian organizations need not comprise mostly Native Hawaiian members. An earlier version of the NAGPRA bill included a provision requiring Native Hawaiian organizations to have "a membership of which a majority are Native Hawaiian," but Congress chose not to enact it.

d. Nonfederally Recognized Indian Groups

Nonfederally recognized Indian groups do not have standing to make direct disposition or repatriation requests under the statute because they are not recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Human remains in federal agency or museum collections for which a relationship of shared group identity can be shown with a particular nonfederally recognized Indian group are considered "culturally unidentifiable" for NAGPRA purposes. Federal agencies and museums must retain possession of culturally unidentifiable human remains unless legally required to do otherwise or recommended to do otherwise by the Secretary of the Interior.

Federal agencies and museums that hold culturally unidentifiable human remains may request the Native American Graves Protection and Repatriation Review Committee to recommend disposition of such remains to the appropriate nonfederally recognized Indian group. Contact the Departmental Consulting Archeologist for details of this process.

4. WHAT ACTIVITIES ARE REQUIRED?

The activities outlined in the regulations bring together federal agencies and museums that receive federal funds with lineal descendants, Indian tribes, and Native Hawaiian organizations to resolve the complex issues surrounding custody of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. The statute outlines two sets of activities to ensure proper disposition or repatriation of these objects. The first set of activities provides a mechanism for federal land managers to consult with Indian tribes and Native Hawaiian organizations and determine the proper disposition of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony that are or might be excavated or discovered on federal or tribal lands. The second set of activities provides a mechanism for federal agency or museum officials to consult with and, upon request, repatriate Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony in their collections to lineal descendants or culturally affiliated Indian tribes or Native Hawaiian organizations. The activities for dealing with excavations or discoveries on federal or tribal lands differ from those for dealing with museum and federal agency collections (see chart on following page).

a. Excavations and Discoveries

Provisions that apply to intentional excavations and inadvertent discoveries went into effect on November 16, 1990, when NAGPRA was enacted, and generally apply only to federal and tribal lands. In very limited situations a federal agency may have sufficient legal interest to apply provisions of the statute when it has some other form of property interest, such as a lease or easement. These provisions are designed to facilitate the proper disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony that might be intentionally excavated or inadvertently discovered on federal or tribal lands.

Intentional excavation means the planned archeological removal of human remains, funerary objects, sacred objects, or objects of cultural patrimony found under or on federal or tribal lands.

Superintendents are required to take reasonable steps to determine whether a planned activity may result in the excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony. Intentional excavation can only occur if any human remains, funerary objects, sacred objects, or objects of cultural patrimony that might be recovered are excavated in accordance with the requirements of the Archaeological Resources Protection Act (ARPA) and its implementing regulations. This means that scientific methods and techniques must be used for the physical removal and recording. A descriptive and interpretive report of the excavation and curation of the non-NAGPRA items is required.

Intentional excavation of human remains, funerary objects, sacred objects, and objects of cultural patrimony can only proceed after consultation with the appropriate Indian tribes and Native Hawaiian organizations. In the case of tribal lands, intentional excavation of human remains, funerary objects, sacred objects, and objects of cultural patrimony can only proceed with the consent of the appropriate Indian tribe or Native Hawaiian organization. Proof of consultation must be shown the superintendent

or other official responsible for the issuance of the required permit. Regulatory requirements for intentional excavations are described at 43 CFR 10.3.

Inadvertent discovery means the unanticipated encounter or detection of human remains, funerary objects, sacred objects, or objects of cultural patrimony found under or on federal or tribal lands. Any person who knows or has reason to know that he or she has inadvertently discovered human remains, funerary objects, sacred objects, or objects of cultural patrimony on park units after November 16, 1990, must provide immediate telephone notification of the inadvertent discovery, with written confirmation, to the superintendent. Inadvertent discoveries on tribal lands must be reported immediately to the responsible Indian tribe official. If the inadvertent discovery occurred in connection with an ongoing activity, the person must stop the activity in the area of the inadvertent discovery and make a reasonable effort to protect the human remains, funerary objects, sacred objects, or objects of cultural patrimony.

As soon as possible, but not later than three working days after receipt of the written confirmation of notification, the superintendent must notify the appropriate Indian tribes or Native Hawaiian organizations and begin consultation about the disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony. The activity that resulted in the inadvertent discovery may resume 30 days after the superintendent certifies receipt of the written confirmation of notification.

The activity may also resume in less than 30 days if a written, binding agreement is executed between the NPS and the affiliated Indian tribe or Native Hawaiian organization that adopts a recovery plan for the excavation or removal of the human remains, funerary objects, sacred objects, or objects of cultural patrimony. As with planned excavations, removal and recording must be carried out in a manner consistent with the requirements of ARPA. The disposition of all human remains, funerary objects, sacred objects, and objects of cultural patrimony must be carried out according to the priority listing in the statute. Regulatory requirements for inadvertent discoveries are described at 43 CFR 10.4.

b. Collections

The statute also requires federal agencies and museums to inform Indian tribes and Native Hawaiian organizations of human remains, funerary objects, sacred objects, and objects of cultural patrimony in their collections. Distribution of this information is achieved through two types of documents: summaries and inventories.

Summaries are written descriptions of collections that may contain unassociated funerary objects, sacred objects, or objects of cultural patrimony. NPS summaries were completed by November 16, 1993. They served as a simple notification to each Indian tribe and Native Hawaiian organization of the nature of the collections held by the federal agency or museum. The summary is intended as an initial step to bring Indian tribes and Native Hawaiian organizations into consultation with a federal agency or museum. Consultation between a federal agency or museum and an Indian tribe or Native Hawaiian organization was not required until after completion of the summary. Identification of specific unassociated funerary objects, sacred objects, or objects of cultural patrimony must be done in consultation with Indian tribe representatives and traditional religious leaders who may have special knowledge regarding these categories of objects.

Summary information for all park units was distributed to nearly 800 Indian tribes, Native Hawaiian organizations, and nonfederally recognized Indian groups in November 1993. Regulatory requirements for summaries are described at 43 CFR 10.8. A section has been reserved in the regulations to outline the continuing responsibilities of federal agencies and museums [43 CFR 10.13]. Pending promulgation of that section, superintendents should periodically review their summary submissions to make sure they are accurate and updated to reflect new acquisitions and newly recognized Indian tribes.

Inventories are item-by-item descriptions of human remains and associated funerary objects. Unlike the summaries, inventories must have been completed in consultation with Indian tribes and Native Hawaiian organizations and represent a decision by the superintendent as to the cultural affiliation of particular human remains or associated funerary objects. Inventories must have been completed by November 16, 1995, and provided to the culturally affiliated Indian tribes and Native Hawaiian organizations, as well as to the Departmental Consulting Archeologist, by May 16, 1996. One hundred parks completed inventories, reporting on nearly 5,000 human remains. Inventories of "culturally unidentifiable human remains"–human remains for which no lineal descendant or culturally affiliated Indian tribe or Native Hawaiian organization can be determined–will be provided by the Departmental Consulting Archeologist to the review committee charged with making recommendations regarding the disposition of culturally unidentifiable human remains. Regulatory requirements for inventories are described in 43 CFR 10.9. A section has been reserved in the regulations to outline the continuing responsibilities of federal agencies and museums [43 CFR 10.13]. Pending promulgation of that section, superintendents should periodically review their inventory submissions to make sure they are accurate and updated to reflect new acquisitions and newly recognized Indian tribes.

5. WHAT IS CONSULTATION?

The regulations require consultation before planned excavations and the completion of inventories and after inadvertent discoveries and the completion of summaries. The term is not defined in statute or regulation.

a. Consultation Defined

The common meaning of the term is to take advice or recommendations from someone. In everyday life, an individual may consult with a spouse before making reservations for a family trip, with an accountant before filing an income tax return, or with an attorney before signing a contract.

The individuals we consult with are not randomly or casually selected. We consult with individuals recognized as having special information and expertise relevant to a particular decision. Consultation has as much to do with obtaining information as with providing information. Consultive interactions are always dialogues. Information or opinion obtained through consultation is given special, though not disposive consideration in coming to a final decision. The statute and regulations require consultation to be initiated through a formal written request. However, it is recommended strongly that the formal request be followed by personal contact and interaction, either in person or by telephone.

The statutory consultation requirement is premised upon Congress' explicit recognition of the special information and expertise available from Indian tribes, Native Hawaiian organizations, traditional Native American religious leaders, and lineal descendants. Consultation with these Native American groups and individuals takes the form of a dialogue in which information is shared.

The administrative burden and public nature of federal advisory committees sometimes makes them an inappropriate vehicle for some types of consultation, especially when particularly sensitive issues are being discussed. The Federal Advisory Committee Act places several restrictions on the process used by federal agencies to obtain advice or recommendations on issues or policies from nonfederal groups. Such "advisory committees" must be chartered by the federal agency head and hold open public meetings. Advisory committee members may be reimbursed for their time and expenses while engaged in committee business [5 USC App.].

Provisions of the Federal Advisory Committee Act do not apply to meetings where the attendees' individual advice or recommendations are sought. However, such a group would be covered if the federal agency accepts the group’s deliberations as a source of consensus advice or recommendations [41 CFR 101-6.104].

Meetings held exclusively between federal officials and elected tribal officials (or their designated employees) acting in their official capacities have recently been exempted from these restriction [2 USC 1534(b)]. The Director of the Office of Management and Budget has specified that "the scope of meetings covered by the exemption should be construed broadly to include any meetings called for any purpose relating to intergovernmental responsibilities or administration" [Federal Register 60, no. 189 (September 29, 1995)].

b. Notification and Obtaining Consent

Federal consultation can be contrasted with two other forms of communication: notification and consent.

Notification, also conducted with individuals or organizations with special information and expertise relevant to a particular decision, differs from consultation in that it focuses more on providing information than on obtaining information. Notification alerts potentially affected parties of a pending agency action, providing them with an opportunity to respond to the plan. There is generally no formalized follow-up by the federal agency to develop the type of dialogue that is key to the consultation process. In addition, notification often occurs late in the planning process when decisions on how to proceed have already been made by the federal agency. The recent federal court ruling in Pueblo of Sandia v. United States (see section 6f below) makes it clear that simply sending letters of notification to Indian tribes is not likely to satisfy legal requirements to consult.

Obtaining consent differs from consultation in that the information obtained from the consulting party is decisive. Refusal to consent is sufficient to stop a proposed plan. The process for obtaining consent is usually the same as for consultation.

6. HOW DO YOU CONSULT?

a. Identifying Appropriate Consulting Partners

The first step in any consultation effort must be to identify the appropriate consulting partners. This step is particularly critical when an inadvertent discovery occurs on federal land. Upon notification of the discovery, the superintendent has only three working days to contact the appropriate lineal descendants, Indian tribes, or Native Hawaiian organizations [43 CFR 10.4(d)(1)]. It is therefore imperative to have already developed a list of contacts. A current list of the 763 federally recognized Indian tribes–including Alaska Native villages and corporations–and several Native Hawaiian organizations is available from the Departmental Consulting Archeologist.

The implementing regulations [43 CFR 10.5(a), 10.8(d), and 10.9(b)] stipulate that all of the following individuals, Indian tribes, and Native Hawaiian organizations must be consulted:

• Known lineal descendants. These individuals may have already contacted the park or been identified by the appropriate Indian tribe or Native Hawaiian organization. In cases where the identity of the individual whose remains or cultural objects are being discussed is known, it may be appropriate to publish a notice in a newspaper of general circulation in the area in which the affiliated Indian tribes or Native Hawaiian organizations now reside to ensure that all potential lineal descendants have been identified;

• Indian tribes and Native Hawaiian organizations from whose tribal lands the human remains, funerary objects, sacred objects, or objects of cultural patrimony originated. Park units located either totally or in part on tribal lands–such as Canyon de Chelly National Monument, Navajo National Monument, Glen Canyon National Recreation Area, Badlands National Park, and Kalaupapa National Historical Park–should consult with the tribal land owner. The appropriate land-owning Indian tribe or Native Hawaiian organization should also be consulted regarding human remains, funerary objects, sacred objects, or objects of cultural patrimony that were originally collected from tribal land but are currently in NPS collections.

• Indian tribes and Native Hawaiian organizations that are or are likely to be culturally affiliated with the human remains, funerary objects, sacred objects, or objects of cultural patrimony. Cultural affiliation means a relationship of shared group identity that can reasonably be traced historically or prehistorically between members of a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group. It is essential to consider geographic, kinship, biological, archeological, linguistic, folklore, oral tradition, historic evidence, and other information or expert opinion in identifying Indian tribes and Native Hawaiian organizations that are likely to be culturally affiliated.

• Indian tribes on whose aboriginal lands the human remains, funerary objects, sacred objects, or objects of cultural patrimony were or are expected to be found. The NAGPRA Team, Archeology & Ethnography Program, National Center for Cultural Resources Stewardship and Partnership Programs, has carried out research on legal and judicial decisions related to this topic and can provide additional information if requested. The 1978 final report of the Indian Claims Commission included a map of those lands determined to be the aboriginal territory of particular Indian tribes. A copy of this map is available from the U.S. Geological Survey. Additional determinations of tribal aboriginal lands have been made by Congress and the U.S. Court of Claims (now the U.S. Court of Federal Claims).

• Indian tribes and Native Hawaiian organizations that have a demonstrated cultural relationship with the human remains, funerary objects, sacred objects, or objects of cultural patrimony.

b. Initial Contact and Follow-up

Depending on circumstances, initial contact with all the appropriate lineal descendants, Indian tribes, and Native Hawaiian organizations can take several forms. Written correspondence is essential in documenting the consultation process for the administrative record. However, initiating consultation with a telephone call, with written confirmation, has proved to be an extremely effective way to avoid misunderstandings that could result from exclusive use of written means of communication. Inadvertent discoveries require telephone notification with written confirmation. Fax transmission of written correspondence also expedites the consultation process. No matter what form is used, initial contact should outline the nature of the situation to be discussed, identify who will represent the NPS, request information on the appropriate tribal representatives to contact, and propose a time for additional consultation. The most effective initial contact is short and to the point. In light of the government-to-government relationship between Indian tribes and the United States, initial contact by NPS units should originate with the superintendent and be directed to the tribal chair, governor, or president. Subsequent consultation may be delegated to professional staff if appropriate.

Follow-up is critical to successful consultation. Indian tribe and Native Hawaiian organization officials may be busy and not respond to the initial letter or telephone call in a timely fashion. If a response to the initial communication is not received within two weeks, the superintendent or other appropriate staff should call the appropriate Indian tribe or Native Hawaiian organization official directly to verify that they received the communication.

c. Consultation Meetings

Face-to-face consultation meetings provide the most effective forum for obtaining the advice or opinion of Indian tribes and Native Hawaiian organizations. A number of factors need to be considered when planning consultation meetings.

The complexity of issues that need to be dealt with during consultation makes it unlikely that discussions will be completed with a single meeting. Initial meetings generally provide an opportunity for the participants to get acquainted and review legal requirements. Subsequent meetings generally build on this foundation to address the more substantive and often more sensitive issues. Initial meetings can often accommodate larger numbers of people representing various Indian tribes, Native Hawaiian organizations, museums, and other federal agencies. Later meetings focusing on the discussion of particular human remains, funerary objects, sacred objects, or objects of cultural patrimony are sometimes best limited to a small number of representatives of the NPS and a particular Indian tribe or Native Hawaiian organization. Initial meetings should be convened in a location that is mutually convenient to participants. While it is often beneficial to hold subsequent meetings at or near the current location of the site or repository where the objects under discussion were found or are currently held, care should be taken to ensure that the meeting place is culturally appropriate to the Indian tribe representatives. Particular attention should be given to the culturally appropriate care of human remains, funerary objects, sacred objects, and objects of cultural patrimony in NPS possession.

Some Indian tribes and Native Hawaiian organizations have their own meeting protocol that should be taken into account when planning consultation meetings. Tribal representatives may be uncomfortable discussing the repatriation or disposition of human remains, funerary objects, sacred objects, and objects of cultural patrimony without first opening the meeting with prayer. Some topics may require comment from more than one individual. Discussions of other topics may be limited to specific individuals, with others being precluded from even hearing some sensitive information. The individuals representing the Indian tribe or Native Hawaiian organization may change from meeting to meeting. Some information may only be communicated at certain times of the year. Tribal representatives who participate in consultation meetings may have to relate the details of those meetings to their community governing officials, traditional religious leaders, and other community members before decisions are made and actions authorized. Such factors suggest the need to have all participants deliberate on the form and content of consultation meetings, as well as on the time needed for reaching well-informed decisions on these culturally sensitive matters.

d. Proof of Consultation

Proof of consultation before removing or excavating human remains, funerary objects, sacred objects, or objects of culturally patrimony on federal land is required in 43 CFR 10.3(b)(4). The consultation record should document discussions of the human remains, funerary object, sacred object, or object of cultural patrimony under consideration and include copies of all written correspondence between the parties involved, a log of all telephone conversations, and summaries or transcripts of all consultation meetings.

Verbatim transcripts of meetings satisfy the highest standard for proof of consultation, particularly when the transcripts are circulated to all participants for comment before finalization. Protocol for recording consultation meetings, including when the recorder should be turned off, should be negotiated with all parties before the meeting. In situations where the preparation of verbatim transcripts is not possible, consultation meeting notes should be prepared as soon as possible after the meeting and circulated to all participants before finalization. Generally, summaries or transcripts of consultation meetings are not exempt from requests filed under the Freedom of Information Act (see section 8b below).

e. Cost of Consultation

The cost of consultation is another issue that must be considered. The NPS is required to consult with the representatives of Indian tribes and Native Hawaiian organizations before reaching decisions regarding the repatriation or disposition of human remains, funerary objects, sacred objects, and objects of cultural patrimony under agency control. These representatives generally do not have the time or money to participate in consultation at agency request. In order to facilitate consultation, it may be appropriate for the NPS to pay the travel and per diem expenses of Indian tribe and Native Hawaiian organization representatives. Consultation fees may also be appropriate for individuals with special expertise–such as traditional religious leaders and translators–that are not otherwise paid by the Indian tribe or Native Hawaiian organization to work with agencies. Park and support office administrative personnel can suggest ways of paying for consultation services, including invited travel procedures (when no consultation fees are involved) and purchase orders that pay for professional services rendered. It is generally not appropriate to pay travel and per diem costs and consulting fees for any nonfederal officials to attend general public meetings or hearings.

f. Good Faith

Federal consultation efforts must be conducted in good faith; that is, in a manner that implies honesty, fair dealing, and full revelation. There is currently no case law to clarify how the good faith standard will be applied to consultations conducted under NAGPRA. A recent case involving the National Historic Preservation Act provides a useful analogy [Pueblo of Sandia v. United States, No. 93-2188]. In July 1988 the Forest Service released a Draft Environmental Impact Statement detailing eight alternative management strategies for Las Huertas Canyon in the Cibola National Forest, New Mexico. The National Historic Preservation Act required the Forest Service to "take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register." The administrative record revealed that during the assessment phase of the project, the Forest Service had mailed letters asking local Indian tribes, including the Pueblo of Sandia, to describe the location of sites and the nature and frequency of activities conducted within the project area. Forest Service officials also addressed meetings of the All Indian Pueblo Council (a nonfederally recognized entity composed of elected pueblo representatives) and the Pueblo of San Felipe. None of the tribes provided the Forest Service with the type of information requested in the letters and meetings. In the ensuing months, however, the Forest Service was provided two affidavits outlining generalized traditional uses in Las Huertas Canyon. Voicing concerns that the proposed alternative would adversely impact traditional cultural properties and practices in the canyon, the Pueblo of Sandia filed an administrative appeal of the decision, accompanied by one of the two affidavits. When the Deputy Regional Forester affirmed the decision, the pueblo filed suit in federal court. When the court granted summary judgement to the Forest Service, the Pueblo of Sandia appealed to the Tenth Circuit, accompanied by the second affidavit. On March 14, 1995, the Tenth Circuit ruled that the Forest Service's requests in form letters and at tribal meetings for specific information about cultural Native American activities were not reasonable efforts to identify historic properties. Pueblo of Sandia v. United States makes it clear that superintendents must give careful consideration to how consultation is conducted, particularly regarding the way contact with the appropriate Indian tribes is made and maintained and how information is collected and managed.

7. HOW DO YOU EVALUATE A REQUEST?

Upon the request of a lineal descendant, Indian tribe, or Native Hawaiian organization, the NPS must expeditiously return human remains, funerary objects, sacred objects, or objects of cultural patrimony if all the following criteria apply: (1) the claimant has standing, (2) the claimed object conforms to a class of objects covered by the statute, (3) lineal descent or cultural affiliation can be established between the claimant and an object in NPS control before November 16, 1990. For objects excavated or discovered on NPS land after November 16, 1990, claims may be based on lineal descent, tribal land status, cultural affiliation, aboriginal territory, or other cultural relationship; and (4) none of the regulatory exemptions apply.

a. Does the request come from a party with standing?

Lineal descendants, Indian tribes, and Native Hawaiian organizations have standing to request human remains, funerary objects, and sacred objects in federal agency and museum collections or excavated or discovered on federal or tribal lands. By definition, only Indian tribes and Native Hawaiian organizations have standing to claim objects of cultural patrimony.

Lineal descendants have standing to claim human remains, funerary objects, and sacred objects. Objects of cultural patrimony, that are by definition communal property, can not be claimed by a lineal descendant.

There are currently 763 Indian tribes, including Alaska Native villages and corporations, that have standing to make requests under the statute. The current list of Indian tribes is available from the Departmental Consulting Archeologist. Each Indian tribe has full authority to select a representative of its choice, as well as to cooperate with other Indian tribes of its choice. Some tribal representatives are not members of the Indian tribe. Care should be taken to ensure that an individual claiming to represent an Indian tribe is authorized to make such a request. If there is any doubt, call the tribal chair, governor, or president to verify that the individual is acting on behalf of the Indian tribe or Native Hawaiian organization. Some Indian tribes have banded together to establish or identify organizations to act formally on their behalf for the purposes of NAGPRA. For example, the Wabanaki Tribes of Maine was established in 1992 to represent the repatriation interests of the Penobscot Indian Nation, the Passamaquoddy Tribe, the Houlton Band of Maliseet Indians, and the Aroostook Band of Micmac. In 1995 all nine Apache tribes signed an agreement authorizing an individual tribe to make requests on behalf of any of the others. In these cases, a formal written agreement will exist among the Indian tribes describing their agreement and identifying their representatives. In other situations, the traditional property owning entity within an Indian tribe–such as a clan or society–does not have standing to make a request but acts through the appropriate Indian tribe. Thus, in 1993 the Yanyeidi clan requested a clan hat as its cultural patrimony through the Douglas Indian Association, the federally recognized Indian tribe to which the clan members belonged.

The statute specifically identifies two Native Hawaiian organizations–Hui Malama I Na Kupuna 'O Hawai'i Nei and the Office of Hawaiian Affairs–and provides criteria to determine if other claimants have standing. To qualify, the organization must demonstrate that it (1) serves and represents the interests of Native Hawaiians, (2) has as a primary and stated purpose the provision of services to Native Hawaiians, and (3) has expertise in Native Hawaiian affairs. Other organizations that have been identified in published Federal Register notices as culturally affiliated with Native Hawaiian remains and have participated in requests include the Hawaii Island Burial Council, Molokai Island Burial Council, Kauai/Nihau Island Burial Council, O’ahu Island Burial Council, Maui/Lanai Island Burial Council, and Hui Malama Pono ‘O Lana’i.

b. Does the object fit a category?

Four types of objects can be claimed under provisions of the statute: human remains, funerary objects, sacred objects, and objects of cultural patrimony. For full definitions of these terms see section 2 above.

Native American human remains can generally be identified based on their morphological characteristics and the context in which they were recovered.

Funerary objects can generally be identified based on the context in which they were recovered.

Sacred objects are those identified by a traditional religious leader as being needed for the practice of a traditional Native American religion by its present-day adherents.

Objects of cultural patrimony are those identified by an Indian tribe or Native Hawaiian organization as having ongoing historical, traditional, or cultural importance. Generally, anthropological, folkloric, oral traditional, or historic evidence is also needed to show that the object was considered inalienable at the time the object was separated from the group.

c. Is there a documented relationship between the object and the requesting party?

An individual, Indian tribe or Native Hawaiian organization with standing must establish one of five possible relationships with the human remains, funerary object, sacred object, or object of cultural patrimony being claimed: (1) lineal descent, (2) tribal land ownership, (3) cultural affiliation, (4) aboriginal occupation, or (5) other cultural relationship. The criteria for establishing a valid relationship vary depending on whether the objects are part of a federal agency or museum collection or are excavated or discovered on federal or tribal land. Only lineal descendants (1) and culturally affiliated Indian tribes and Native Hawaiian organizations (3) have standing to request the repatriation of objects that were part of NPS collections on November 16, 1990. All five categories of parties have standing to request the disposition of objects excavated or discovered on NPS land after that date.

An individual claiming lineal descent should be asked to document his or her ancestry from the individual whose remains, funerary objects, or sacred objects are being claimed. The line of descent must be direct and without interruption according to the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization or by the common law system of descendance. An Indian tribe or Native Hawaiian organization can often provide information on its traditional kinship system to assist in verifying claims of lineal descent. Lineal descendants have priority in requesting human remains, funerary objects, and sacred objects in NPS collections as well as those excavated or discovered on NPS lands.

The land-owning Indian tribe is second in priority, after the lineal descendant, in determining the custody of human remains, funerary objects, and sacred objects, and first in priority for objects of cultural patrimony, that are excavated or discovered on tribal lands after November 16, 1990. Tribal lands include all lands within the exterior boundaries of any Indian reservation including, but not limited to, allotments held in trust or subject to a restriction on alienation by the United States. This may include some federal, state, or private lands that are within the exterior boundary of a reservation. In and of itself, reserved rights to tribal lands do not provide the Indian tribe standing to request human remains, funerary objects, sacred objects, and objects of cultural patrimony that were in federal agency or museum collections before November 16, 1990.

Cultural affiliation is a relationship of shared group identity that can reasonably be traced historically or prehistorically between members of a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group. A wide variety of evidence can be introduced to document such a relationship, including geographic, kinship, biological, archeological, linguistic, folklore, oral tradition, historic evidence, and other information or expert opinion. Unlike claims of lineal descent in which the relationship between the claimant and the individual whose remains or objects are claimed must be direct and without interruption, determination of cultural affiliation should be based on an overall evaluation of the totality of the circumstances and evidence and should not be precluded solely because of some gaps in the record. Culturally affiliated Indian tribes may claim human remains, funerary objects, sacred objects, and objects of cultural patrimony in federal agency and museum collections as well as those excavated or discovered on federal or tribal lands.

The aboriginal occupant is fourth in priority–after the lineal descendant, tribal land owner, and culturally affiliated Indian tribe–in determining the custody of human remains, funerary objects, and sacred objects, and third in priority for objects of cultural patrimony, that are excavated or discovered on tribal lands after November 16, 1990. The 1978 final report of the Indian Claims Commission included a map of those lands determined to be the aboriginal territory of particular Indian tribes. Other determinations of tribal aboriginal lands have been made by Congress and the U.S. Court of Claims (now the U.S. Court of Federal Claims). Congress, the commission, and the court considered a wide range of information, including oral history and anthropological evidence, in reaching their decisions and have provided valuable tools for identifying areas occupied aboriginally by present-day Indian tribes. Other sources of information regarding aboriginal occupation should also be consulted. In and of itself, aboriginal occupation does not provide standing to claim human remains, funerary objects, sacred objects, and objects of cultural patrimony in federal agency or museum collections before November 16, 1990.

Indian tribes with some other cultural relationship are fifth in priority–after the lineal descendant, tribal land owner, culturally affiliated Indian tribe, and aboriginal occupant–in determining the custody of human remains, funerary objects, and sacred objects, and fourth in priority for objects of cultural patrimony, that are excavated or discovered on tribal lands after November 16, 1990. This term is not defined in the statute or regulations, but clearly constitutes a weaker relationship than those previously listed. In and of itself, this other cultural relationship does not provide standing to claim human remains, funerary objects, sacred objects, and objects of cultural patrimony in federal agency or museum collections before November 16, 1990.

In some cases, more than one lineal descendant, Indian tribe, or Native Hawaiian organization may claim particular human remains, funerary objects, sacred objects, or objects of cultural patrimony. The superintendent faced with this situation should first assess all claims in light of the priorities of disposition in regulation at 43 CFR 10.6(a) for planned excavations and inadvertent discoveries and 43 CFR 10.10 for collections in NPS control.

d. Do any exemptions apply?

The NPS may retain control of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony that would otherwise be repatriated or disposed of to a lineal descendant, Indian tribe, or Native Hawaiian organization under the regulations if any of three exemptions apply: (1) there are multiple disputing claimants, (2) the NPS has right of possession to the item, or (3) the item is part of an NPS collection and is indispensable to the completion of a specific scientific study, the outcome of which is of major benefit to the United States.

The NPS may retain control of human remains, funerary objects, sacred objects, or objects of cultural patrimony that are discovered, excavated, or part of a collection if there are multiple disputing claims and the agency cannot determine by a preponderance of the evidence which requesting party is the most appropriate recipient. The disputed items may be retained until the requesting parties mutually agree on the appropriate recipient or the dispute is otherwise resolved pursuant to the regulations or by a court of competent jurisdiction. There is no set time during which multiple claims must be resolved.

The NPS may retain control of human remains, funerary objects, sacred objects, or objects of cultural patrimony that are discovered, excavated, or part of a collection if the agency has right of possession to the items. Right of possession means possession obtained with the voluntary consent of an individual or group that had authority of alienation. The original acquisition of Native American human remains and associated funerary objects that were excavated, exhumed, or otherwise obtained with the full knowledge and consent of the next of kin or the official governing body of the appropriate culturally affiliated Indian tribe or Native Hawaiian organization is deemed to give right of possession to those remains and funerary objects. The original acquisition of a Native American unassociated funerary object, sacred object, or object of cultural patrimony from an Indian tribe or Native Hawaiian organization with the voluntary consent of an individual or group with authority to alienate such object is deemed to give right of possession to that object.

The NPS may retain control of human remains, funerary objects, sacred objects, or objects of cultural patrimony that are part of a collection if the items are indispensable to the completion of a specific study, the outcome of which is of major benefit to the United States. In such circumstances, the items must be returned to the appropriate lineal descendant, Indian tribe, or Native Hawaiian organization no later than 90 days after completion of the study.

e. Standard of Proof

The preponderance of the evidence represents the standard of proof needed to evaluate claims made under the statute. Claimants do not have to establish aspects of their claims with scientific certainty. However, it is the responsibility of the NPS to determine to its satisfaction whether the evidence substantiates the claim.

f. Final Administrative Decision

After careful consideration of all of the available evidence, the superintendent must decide whether a valid claim can be made for human remains, funerary objects, sacred objects, and objects of cultural patrimony under his or her control. Support office or center archeologists, ethnographers, curators, and Native American liaisons can provide assistance in making this important decision. Superintendents must document their decisions as completely as possible.

The timing of this decision depends on the type of object being considered and when the object came under NPS control. Decisions regarding the repatriation of human remains and associated funerary objects in NPS collections before November 16, 1990, were required to be made by November 16, 1995, with notification of the decision going to the appropriate lineal descendants by May 16, 1996. Copies of the completed inventories were sent to each lineal descendant and each culturally affiliated Indian tribe and Native Hawaiian organization, as well as to the Departmental Consulting Archeologist. One hundred parks completed inventories identifying 4,982 human remains. Approximately 77 percent of those human remains were identified as being related to lineal descendants or culturally affiliated Indian tribes or Native Hawaiian organization. Approximately 23 percent of the human remains in NPS collections were determined to be culturally unidentifiable. Copies of listings of culturally unidentifiable human remains were also sent to the Departmental Consulting Archeologist for referral to the Native American Graves Protection and Repatriation Review Committee.

Unlike the inventory decisions that are driven by a statutory deadline, decisions regarding the repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony are request-driven. In 1993 summaries of these items were distributed to nearly 800 Indian tribes, Native Hawaiian organizations, and nonfederally recognized Indian groups, as well as to the Departmental Consulting Archeologist. Many Indian tribes and Native Hawaiian organizations have responded to the summaries by requesting additional documentation and visiting the collections. Regulations stipulate that decisions regarding repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony must take place within 90 days of receipt of a valid request.

Decisions about the disposition of human remains, funerary objects, sacred objects, and objects of cultural patrimony excavated or discovered on NPS lands need to be made expeditiously upon receipt of a valid request.

g. Notification Requirements

Before the repatriation of human remains, funerary objects, sacred objects, and objects of cultural patrimony in NPS collections, the Secretary of the Interior is required to publish a notice in the Federal Register. A Notice of Inventory Completion summarizes the contents of a completed inventory of human remains and associated funerary objects in sufficient detail to enable other individuals, Indian tribes, and Native Hawaiian organizations to determine their interest in claiming the inventoried items. Repatriation of human remains and associated funerary objects may not occur until at least 30 days after publication of the Notice of Inventory Completion in the Federal Register. A Notice of Intent to Repatriate describes unassociated funerary objects, sacred objects, or objects of cultural patrimony being claimed in sufficient detail to enable other individuals, Indian tribes, and Native Hawaiian organizations to determine their interest in the claimed objects. Repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony may not occur until at least 30 days after publication of the Notice of Intent to Repatriate in the Federal Register.

Notification before the disposition of human remains, funerary objects, sacred objects, and objects of cultural patrimony excavated or discovered on federal or tribal lands after November 16, 1990, is provided through newspaper notification. The notice must be published two times, at least one week apart, in a newspaper of general circulation in the area in which the human remains, funerary objects, sacred objects, or objects of cultural patrimony were excavated or discovered and, if applicable, in a newspaper of general circulation in the area(s) in which affiliated Indian tribes or Native Hawaiian organizations now reside. Disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony may not occur until at least 30 days after publication of the second notice. Copies of the newspaper notice with information on when and in what newspaper it was published must be sent to the Departmental Consulting Archeologist.

Notification is not meant as a primary means of communication with potential claimants but as a last chance for any legitimate claimants that may have been overlooked to voice their concerns.

h. Appeals

In some cases, it may not be possible for the NPS and the interested individuals, Indian tribes, and Native Hawaiian organizations to agree on the disposition or repatriation of particular human remains, funerary objects, sacred objects, and objects of cultural patrimony.

A lineal descendant, Indian tribe, or Native Hawaiian organization may decide to present more evidence following a superintendent’s decision not to dispose or repatriate particular objects. This situation is most likely to arise regarding the repatriation of human remains and associated funerary objects in NPS collections since, because of the statutory deadline for inventory completion, some information may not have been readily available at the time the decision was made. Such additional evidence should be given full consideration by the superintendent and the decision regarding disposition or repatriation revised if necessary.

The Native American Graves Protection and Repatriation Review Committee is charged with facilitating the resolution of disputes among lineal descendants, Indian tribes, Native Hawaiian organizations, museums, and federal agencies relating to the return of human remains, funerary objects, sacred objects, and objects of cultural patrimony. The review committee will consider requests to facilitate the resolution of a dispute from any of the involved parties. If the review committee decides to attempt to facilitate the dispute, it will initially request written documentation regarding the dispute from all involved parties. This information will be reviewed and, if appropriate, the disputing parties will be invited to appear before the committee. Review committee recommendations and findings are not binding.

Generally, court action or litigation to resolve such disputes over the disposition or repatriation of human remains, funerary objects, sacred objects, and objects of cultural patrimony should be avoided. For NAGPRA, judicial remedies are a last resort for situations when no other mutually acceptable solution can be achieved.

i. Disposition or Repatriation

Disposition or repatriation of human remains, funerary objects, sacred objects, and objects of cultural patrimony has occurred when the control or custody has been transferred from the NPS to the appropriate lineal descendant, Indian tribe, or Native Hawaiian organization.

When transferring control or custody, the superintendent must ensure that the human remains, funerary objects, sacred objects, and objects of cultural patrimony are deaccessioned according to NPS procedures, including assigning deaccession numbers, updating accession and catalog records, completing a deaccession form, and filing all documentation in the accession or optional deaccession file. For further guidance on deaccessioning, consult Part II of the NPS Museum Handbook.

Preparation for disposition or repatriation must also involve additional consultation with the appropriate lineal descendant, Indian tribe, or Native Hawaiian organization to determine the place and manner of delivery [25 USC 3005(a)(3)].

The NPS is under no statutory or regulatory obligations regarding what happens to human remains, funerary objects, sacred objects, or objects of cultural patrimony once control or custody has been transferred to the appropriate lineal descendant, Indian tribe, or Native Hawaiian organization.

8. HOW DO YOU DOCUMENT ADMINISTRATIVE DECISIONS?

a. The Administrative Record

The administrative record must document all disposition or repatriation actions. It must include documentation of the human remains, funerary objects, sacred objects, or objects of cultural patrimony under consideration and copies of all written correspondence, a log of all telephone conversations, documentation of all consultation meetings, and copies of all agreements between the relevant parties. The original file should be retained by the park as part of the museum archive collection and, if appropriate, the archeological site file. A copy should be sent to the support office or center that maintains records concerning park archeology or museum collections. These files should be retained even after the disposition or repatriation of the relevant human remains, funerary objects, sacred objects, and objects of cultural patrimony.

b. Confidentiality

In some situations, the information needed by the superintendent to make a decision regarding applicability of the statutory terms to particular objects may be considered extremely sensitive by Indian tribe and Native Hawaiian organization representatives. The NPS has a limited ability to protect sensitive information from public disclosure.

The Freedom of Information Act gives any person the right to access federal agency records, except to the extent that such records are protected from disclosure by one of nine exemptions or three special law enforcement record exclusions. There is no specific provision in NAGPRA that protects sensitive information from public disclosure. Other disclosure limitations, such as those in the Archaeological Resources Protection Act and the National Historic Preservation Act, may provide some flexibility in protecting sensitive information from public disclosure. ARPA requires that information concerning the nature and location of any archeological resource whose excavation or removal requires a permit may not be made available to the public without the consent of the appropriate federal land manager pursuant to the conditions outlined at 16 USC 470hh. The National Historic Preservation Act requires the head of a federal agency or other public official to withhold from disclosure to the public information about the location, character, or ownership of a historic resource if the Secretary of the Interior and the agency determine that disclosure would cause a significant invasion of privacy, risk harm to the resource, or impede the use of a traditional religious site by practitioners [16 USC 470w-3].

It is important to be candid with Indian tribe and Native Hawaiian organization representatives about the limited protection that can be given to sensitive information. A representative of the Office of the Solicitor should be involved before any agreement regarding the confidentiality of consultation information. During consultation, the superintendent should not request more information than is needed to reach a decision regarding the disposition or repatriation of human remains, funerary objects, sacred objects, and objects of cultural patrimony.

9. TRAFFICKING IN NATIVE AMERICAN HUMAN REMAINS AND CULTURAL ITEMS

Section 4 of NAGPRA makes it illegal to traffic in Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. Section 4(a) stipulates that whoever knowingly sells, purchases, uses for profit, or transports for sale or profit the human remains of a Native American without the right of possession to those remains shall be fined and/or imprisoned [18 USC 1170(a)]. Section 4(b) stipulates that whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items (funerary objects, sacred objects, and objects of cultural patrimony) obtained in violation of the statute shall be fined and/or imprisoned [18 USC 1170(b)].

One example of enforcement of the prohibition involves Native American human remains from an NPS area. On January 19, 1994, Richard Phillip Maniscalco knowingly transported and sold a variety of items taken from Little Bighorn Battlefield National Monument. One of the items sold was a Native American leg bone. No ARPA permit had been issued to excavate or remove the items from the monument. Maniscalco pled guilty to trafficking in Native American human remains without right of possession [18 USC 1170(a)] and trafficking in archeological resources illegally excavated, removed, and obtained from federal property [16 USC 470ee]. On December 21, 1995, Maniscalco was sentenced in Alexandria, Virginia, to one year probation and fined $1,500. Maniscalco also paid $1,500 to facilitate repatriation of the human remains to the culturally affiliated Indian tribe.

10. ADDITIONAL INFORMATION

Further information and technical assistance in implementing NAGPRA is available from NPS support offices, centers, and the NAGPRA Team, Archeology & Ethnography Program, National Center for Cultural Resources Stewardship and Partnership Programs.