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 August 15, 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: June 15, 1999.

Francis P. McManamon,
Departmental Consulting Archeologist,
Manager, Archeology and Ethnography Program.

DRAFT PRINCIPLES OF AGREEMENT

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. 3006).

1. 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.

2. 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.

1. Additionally, a fundamental tension exists within the statute 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))

A. 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 affiliation.

Those for which no information exists.

A. 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.

1. Doable. Regulations must propose a process that is possible for Federal agencies, museums, and claimants and worth the effort to implement.

2. 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 case).

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 consultation.

e. Documentation prepared for compliance with the statute is a public record.

D. Models for the disposition of culturally unidentifiable human remains.

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:

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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. 99-15975 Filed 6-22-99; 8:45 am]

BILLING CODE 4310-70-F

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