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ELECTRONIC
COPY OF THE ORIGINAL
United
States Department of the Interior
NATIONAL PARK SERVICE
1849 C St. NW (NC 340)
Washington, D.C. 20240
December 23, 1997
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IN REPLY REFER TO:
W48(2275)
Donald Curtis, Jr.
United States Army Corps of Engineers-Walla Walla District
201 North Third Avenue
Walla Walla, Washington 99362-1976
Dear Lieutenant Colonel Curtis:
This responds to your August 5, 1997 letter requesting
our views on certain matters related to the Native American Graves Protection
and Repatriation Act (NAGPRA).
On June 27, 1997, United States Magistrate John Jelderks
issued an opinion in connection with the consolidated cases of Bonnichsen,
et al. v. United States, et al., (D. Oregon, Civil No. 96-1481-JE),
and Asatru et al. v. United States, et al., (D. Oregon, Civil
No. 96-1516-JE). The court directed the Corps of Engineers to consider
a number of issues related to NAGPRA and the ultimate disposition of
human remains recently discovered on lands owned by the Corps of Engineers
within the State of Washington.
Many of the issues raised by the court are directly
related to terms and procedures of NAGPRA (25 U.S.C. 3001 et seq.) and
its implementing regulations (43 CFR 10). Congress directed the Secretary
of the Interior to implement most aspects of the statute, including
promulgation of its implementing regulations (25 U.S.C. 3011). The Secretary
of the Interior has delegated responsibility for programmatic implementation
of the statute to this office. In preparing the responses to your questions,
I have consulted the Solicitor of the Department of the Interior. He
shares the views expressed in this letter.
We have the following responses to the questions posed
by your letter which, in certain instances, have been rephrased or reorganized
for purposes of clarity: 1
- Whether these human remains are subject to NAGPRA,
and why (or why not)? At this time, this office
does not have sufficient information to determine whether these remains
are subject to NAGPRA. However, we consider that a Federal agency
or museum has an obligation under NAGPRA to make reasonable efforts
to determine whether human remains it possesses are Native American
within the meaning of NAGPRA if there is a reason to consider this
may be the case.
We are able to advise on the matters that should be
considered in making this decision. Two questions should be addressed
in this regard:
- Were the remains discovered or excavated
from Federal or tribal lands after November 16, 1990? (43 CFR
10.2 (f)(1)). We understand this to be the case. Section 3 of
NAGPRA (25 U.S.C. 3002; "section 3") governs the ownership or
control of Native American human remains or cultural items which
are excavated or discovered on Federal or tribal lands after November
16, 1990.
- Are the remains of a person of Native
American ancestry? (43 CFR 10.2 (d)(1)). At this time, this office
does not have sufficient information to determine whether the
remains are Native American within the meaning of NAGPRA.
If the answer to both questions is yes, the remains
are subject to NAGPRA and their recovery, documentation, and disposition
is to be carried out under NAGPRA's implementing regulations, particularly
43 CFR 10.3 through 10.7.
- What is meant by the terms "Native American" and
"indigenous" in the context of NAGPRA and the facts of this case?
We consider that the term "Native American"
as used in NAGPRA applies to human remains and cultural items relating
to tribes, peoples, or cultures that resided within the area now encompassed
by the United States prior to the historically documented arrival
of European explorers, irrespective of when a particular group may
have begun to reside in this area, and, irrespective of whether some
or all of these groups were or were not culturally affiliated or biologically
related to present-day Indian tribes. Cultural affiliation or biological
relationship, however, as discussed below, are relevant to disposition
of Native American human remains and cultural items under NAGPRA.
We base these views primarily on the statutory
definition of the term "Native American," which is defined in 25 U.S.C.
3001 (9), and in the NAGPRA implementing regulations at 43 CFR 10.2
(d) as meaning "of, or relating to, a tribe, people, or culture that
is indigenous to the United States, including Alaska and Hawaii."
We consider this definition clear and self-explanatory. We also note
that NAGPRA's legislative history contains no express amplification
or clarification of the term.
The court in this matter, however, indicated
in its opinion that there may be an issue as to the meaning of the
term "Native American" because of the word "indigenous" contained
in this definition. 2
Particularly, the court queries in footnote
24 whether the term "Native American" as defined in NAGPRA may be
limited by the word "indigenous" to not include tribes, peoples, or
cultures that "descended from immigrants who came to the Americas
from other continents."
In our view, however, it is implausible to
consider that Congress intended for the word "indigenous" to limit
the term "Native American" in this manner. Rather, we consider that
the term "Native American" is clearly intended by NAGPRA to encompass
all tribes, peoples, and cultures that were residents of the lands
comprising the United States prior to historically-documented European
exploration of these lands.
In this connection, there are differences of
opinion as to the origins of at least some present-day Indian tribes
with respect to whether or not they are descended from peoples which
immigrated to the lands now comprising the United States. (See the
discussion in footnote 24 of the court's opinion.)
However, we point out that NAGPRA repeatedly
applies the term "Native American" to human remains and cultural items
affiliated with Native Hawaiians. For example, the statute states
as follows in pertinent part:
The original acquisition of Native American
human remains and associated funerary objects which were excavated,
exhumed, or otherwise obtained with 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 (25 U.S.C.
3001 (13), emphasis added).
As such, Native Hawaiian human remains and cultural
items fall within NAGPRA's definition of "Native American," and, accordingly,
Native Hawaiians are "indigenous" to the United States as that term
is used in NAGPRA. However, both historical documentation and Native
Hawaiian tradition consider that Native Hawaiians migrated to the
Hawaiian Islands, probably arriving some time between 200 B.C. and
A.D. 800. 3 Native Hawaiians
are not "indigenous" to lands of the United States if that term is
construed to exclude peoples which descended from immigrants.
Congressional understanding of the term "indigenous"
as used in NAGPRA also can be found in several other statutes. The
Native Hawaiian Education Act of 1994 (20 U.S.C. 7902), states as
follows in pertinent part:
- Native Hawaiians are a distinct and
unique indigenous people with a historical continuity to
the original inhabitants of the Hawaiian archipelago, whose society
was organized as a nation and internationally recognized as such
by the United States, Britain, France, and Japan, as evidences
by treaties governing friendship, commerce, and navigation.
- At the time of the arrival of the first non-indigenous
people in Hawaii in 1778, the Native Hawaiian people lived in
a highly organized subsistence social system based on a communal
land tenure system with a sophisticated language, culture, and
religion (20 U.S.C. 7902, emphasis added.) 4
These related statutory uses of the term "indigenous"
provide a clear basis for our conclusion that the term as used in
NAGPRA applies to all tribes, peoples and cultures that occupied the
United States prior to historically documented European exploration
and that the term cannot properly be construed as to exclude descendants
of immigrant peoples. Such an anomalous construction would frustrate
the fundamental purposes of NAGPRA with respect to Native Hawaiians
and perhaps with respect to some or all Indian tribes.
Please note that, as discussed fully in the
response to question 13 below, Native American human remains or cultural
items that are not claimed by a lineal descendant or qualified present-day
Indian tribe pursuant to section 3 (a) are to be disposed of in accordance
with regulations promulgated by the Secretary of the Interior pursuant
to section 3 (b).
- Does, if there was more than one wave of ancient
migration to the Americas, or if there were sub-populations of early
Americans, NAGPRA apply to human remains or cultural items from a
population that failed to survive and is not directly related to modern
Native Americans?
Yes. The statute and regulations by their own
terms apply to Native American human remains or cultural items which
otherwise fall within the scope of NAGPRA. There is nothing in the
statute or its implementing regulations which states or implies that
NAGPRA's applicability is limited to Native American human
remains and cultural items which are directly related to present-day
Indian tribes. However, the matter of a direct relationship with present-day
Indian tribes is of concern with respect to disposition of
Native American human remains and cultural items pursuant to NAGPRA.
In this regard, under section 3 (a) of NAGPRA
(25 U.S.C. 3002 (a)), the disposition of Native American human remains
and cultural items which are excavated or discovered on Federal or
tribal lands after November 16, 1990 is, with priority given in the
order listed:
- in the case of human remains and associated
funerary objects, in the lineal descendant of the Native American,
or
- in any case in which such lineal descendant cannot
be ascertained, and in the case of unassociated funerary objects,
sacred objects, and objects of cultural patrimony-
- in the Indian tribe or Native Hawaiian
organization on whose tribal land such objects or remains
were discovered;
- in the Indian tribe or Native Hawaiian
organization which has the closest cultural affiliation with
such remains or objects and which, upon notice, states a claim
for such remains or objects; or
- if the cultural affiliation of the
objects cannot be reasonably ascertained and if the objects
were discovered on Federal land that is recognized by a final
judgment of the Indian Claims Commission or the United States
Court of Claims as the aboriginal land of some Indian tribe
- in the Indian tribe that is
recognized as aboriginally occupying the area in which
the objects were discovered, if upon notice such tribe
states a claim for such remains or objects, or
- if it can be shown by a preponderance
of the evidence that a different tribe has a stronger
cultural relationship with the remains or objects than
the tribe or organization specified in paragraph (1),
in the Indian tribe that has the strongest demonstrated
relationship, if upon notice, such tribe states a claim
for such remains or objects.
Some of these categories require the establishment
of cultural affiliation or a biological relationship. However, section
3 (a)(2)(A) Indian tribe claims to human remains and cultural items
found on tribal lands and section 3 (a)(2)(C)(1) Indian tribe claims
to human remains and cultural items found on Federal land that is
recognized by a final judgment of the Indian Claims Commission or
the United States Court of Claims as the aboriginal land of a present-day
Indian tribe do not require either a cultural or biological relationship
between the claimant Indian tribe and the claimed human remains or
cultural items.
- Does NAGPRA require (either expressly
or implicitly) a biological connection between human remains and a
contemporary Indian tribe?
No. As discussed above, NAGPRA and its implementing
regulations by their own terms apply to all Native American human
remains and cultural items which otherwise fall within the scope of
NAGPRA, whether or not they have a direct relationship to a present-day
Indian tribe.
However, as is made clear by section 3 (a),
a biological relationship may be a factor in determining disposition
of Native American human remains and cultural items. This, of course,
particularly may be true in circumstances regarding a section 3 (a)(1)
claim based on lineal descent. However, a biological connection may
also be a factor, but not the only factor, to be taken into account
in determining the cultural affiliation of Native American human remains
and cultural items with a present-day Indian tribe for purposes of
Indian tribe rights of ownership based on cultural affiliation.
43 CFR 10.14 (e) states as follows with respect
to evidence that may be considered with respect to determining cultural
affiliation for purposes of disposition of Native American human remains
and cultural items under NAGPRA:
(e)Evidence. Evidence of a kin
or cultural affiliation between a present-day individual, Indian
tribe, or Native Hawaiian organization and human remains, funerary
objects, sacred objects, or objects of cultural patrimony must be
established by using the following types of evidence: Geographical,
kinship, biological, archeological, anthropological, linguistic,
folklore, oral tradition, historical, or other relevant information
or expert opinion.
- Does there have to be any cultural affiliation between
these human remains and a present-day Indian tribe for purposes of
NAGPRA -- and if yes, how is that affiliation established if no cultural
objects are found with the remains?
For the reasons discussed above in regard to
biological connections, the right to ownership and control of Native
American human remains and cultural items under section 3 (a) does
not necessarily require a cultural affiliation between Native American
human remains and cultural items and the Indian tribe with a right
to ownership to such materials.
A determination of cultural affiliation of
human remains does not require the presence of cultural objects found
with the remains. 43 CFR 10.14 describes the process for determining
cultural affiliation. As set forth in the response to the preceding
question, many types of evidence may be considered in this regard.
The determination, ultimately, should be based upon an overall evaluation
of the totality of the circumstances and evidence pertaining to the
cultural connection between an individual or Indian tribe and the
material being claimed and should not be precluded solely because
of some gaps in the record (43 CFR 10.14 (d)).
- What level of certainty is required to establish
cultural affiliation between human remains and a present-day Indian
tribe for purposes of NAGPRA?
Cultural affiliation between a present-day
Indian tribe and Native American human remains and cultural items
must be established by a preponderance of the evidence. Scientific
certainty is not required (43 CFR 10.14 (f)).
- a. Are scientific studies needed prior to determining
whether these human remains are subject to NAGPRA?
The statute only applies to Native American
human remains and cultural items. If there is a concern as to whether
the human remains in question are Native American within the meaning
of NAGPRA and scientific study is necessary to resolve the issue,
appropriate scientific studies should be conducted.
At this time, this office does not have enough
information about the particular human remains in question to provide
specific advice about the necessity for further scientific study to
determine whether they are Native American.
b. Are such studies legally permissible?
Yes. Nothing in NAGPRA, its implementing regulations
or other Federal law precludes analysis of human remains or cultural
items excavated or discovered on Federal or tribal land after November
16, 1990, for the purpose of determining whether the remains or items
are Native American within the meaning of NAGPRA, and, if so, for
the purposes of determining their disposition under NAGPRA. However,
certain conditions may apply to the conduct of such studies, e.g.,
if additional archeological work is to be undertaken on Federal lands,
the Archeological Resources and Protection Act ("ARPA," 16 U.S.C.
470 aa-mm) applies. If NAGPRA is determined to apply, its procedures
must then be followed.
- Is there evidence of a link, either biological or
cultural, between these remains and a modern Indian tribe or to any
other ethnic or cultural group including (but not limited to) those
of Europe, Asia, and the Pacific islands?
This office does not have sufficient information
at this time to provide advice on this question.
- Are the "study" provisions of 25 U.S.C. 3005 (b)
limited to human remains and cultural items in the possession or control
of a Federal agency or museum prior to November 16, 1990?
25 U.S.C. 3005 (b), a subsection of section
7 of NAGPRA (25 U.S.C. 3005), applies to the repatriation of Native
American human remains and cultural items contained in Federal agency
and certain museum collections (whether or not obtained before or
after November 16, 1990). This provision is not applicable to Native
American human remains and cultural items subject to NAGPRA's section
3 (excavated or discovered on Federal land after November 16, 1990)
(43 CFR 10.10 (c)(1)).
- Does any other law (e.g., ARPA) or any other section
of NAGPRA such as 25 U.S.C. 3002 (c) or 3003 (b)(2), either permit
or forbid scientific study of these remains?
As discussed in our response to question 7,
no provision of NAGPRA or other law forbids scientific study of these
remains to determine whether they are subject to NAGPRA, and, if so,
their appropriate disposition under the statute. However, we would
recommend that any additional studies be conducted in consultation
with Indian tribes and other interested parties, as appropriate. In
addition, if archeological work on Federal land is to be conducted,
applicable ARPA permitting and consultation procedures must be followed.
Finally, if ownership and control of the human remains or cultural
items is determined under NAGPRA to be with an individual or Indian
tribe, no further study of such materials may be conducted without
the consent of that individual or Indian tribe.
- Are scientific study and repatriation of human remains
mutually exclusive or can both objectives be accommodated?
Both can be accommodated, depending on the
particular circumstances of each situation. In some cases, scientific
study may be necessary in order to determine whether NAGPRA is applicable
and, if so, to determine appropriate disposition under the statute.
Additionally, individuals or Indian tribes that exercise ownership
and control of the remains under section 3 (a), insofar as Federal
law is concerned, may study the remains, or authorize others to study
the remains, as they see fit.
- What law controls if the human remains are not subject
to NAGPRA?
If the human remains in question do not fall
under NAGPRA, there are two possibilities. The first is that they
may be archeological materials subject to ARPA. At this point, this
office does not have enough information to know if the remains in
question would be within the scope of ARPA, if they are not within
the scope of NAGPRA. If neither NAGPRA nor ARPA apply, it is likely
that state or local law would dictate the treatment of the remains.
- What happens to the remains if no present-day Indian
tribe can establish cultural affiliation?
As discussed above, in certain circumstances
no cultural affiliation is required for section 3 (a) Indian tribe
ownership and control of Native American human remains and cultural
items.
However, it is possible that no present-day
Indian tribe is a qualified owner under any of the categories described
in section 3 (a). This would be the case when no cultural affiliation
between an Indian tribe and the human remains and cultural items in
question can be demonstrated, and, in addition, when the remains and
cultural items were not found on tribal land or on Federal land that
is recognized by a final judgment of the Indian Claims Commission
or the United States Court of Claims as the aboriginal land of a present-day
Indian tribe.
In these circumstances, the Native American
human remains and cultural items in question would be subject to disposition
under the section 3 (b) regulations to be promulgated by the Secretary
of the Interior in consultation with the NAGPRA review committee,
Indian tribes, and museum and scientific organizations. A regulatory
section has been reserved for that purpose at 43 CFR 10.7. These regulations,
when promulgated, will encompass Native American human remains and
cultural items for which no qualified owner exists under section 3
(a)'s categories or for which an owner is identified under such categories,
but that owner does not make a claim.
- Do the plaintiffs have a right (under the First Amendment
or otherwise) to study these human remains?
As this issue is beyond our program responsibilities
and has been briefed by the United States Department of Justice in
connection with this matter, we defer to the views of the Department
of Justice.
- a. Should non-Indians be permitted to file a claim
for these human remains?
Under section 3 (a), an individual who is a
lineal descendant, whether or not the individual is a member of an
Indian tribe, has a first right to ownership of Native American human
remains. In other circumstances, section 3 (a) ownership under the
current implementing regulations is limited to Indian tribes and Native
Hawaiian organizations.
However, as discussed above, the Secretary
of the Interior has authority to promulgate regulations which address
the disposition of section 3 Native American human remains and cultural
items for which no claim is made pursuant to section 3 (a) or for
which no qualified claimant exists. Such regulations, when promulgated,
may provide for disposition of unclaimed section 3 Native American
human remains and cultural items to persons or entities that are not
Indian tribes or members of an Indian tribe.
b. Is there any merit to the equal protection
arguments asserted by the plaintiffs?
As this issue is beyond our program responsibilities
and has been briefed by the Department of Justice in connection with
this matter, we defer to the views of the Department of Justice.
- What role should the Native American Graves Protection
and Repatriation Review Committee play in resolving the issues presented
in this case? The NAGPRA review committee is
charged by NAGPRA (section 8, 25 U.S.C. 3006) with monitoring the
inventory, summary, and repatriation process required by sections
5, 6, and 7 of NAGPRA applicable to Federal agency and museum collections
of Native American human remains and cultural items. (25 U.S.C. 3003-3005).
The NAGPRA review committee is not charged with monitoring activities
under section 3 applicable to Native American human remains and cultural
items found on Federal or tribal lands after November 16, 1990, the
provision of NAGPRA which applies to the human remains in question
in this matter if they are determined to be Native American within
the meaning of NAGPRA. However, the Secretary
of the Interior has authority under section 8 of NAGPRA to assign
additional responsibilities to the review committee. 25 U.S.C. 3006
(c)(8). These responsibilities could include providing advice with
respect to the human remains in question. In addition, under section
3 (b), the regulations for unclaimed human remains and cultural items
as discussed above are to be promulgated by the Secretary in consultation
with the review committee.
- a. Is NAGPRA silent on the important issues raised
by this case?
No. For the reasons discussed above, we consider
that NAGPRA and its implementing regulations provide all necessary
guidance for the disposition of the human remains in question. To
summarize, NAGPRA does not prohibit appropriate scientific study to
determine whether the human remains at issue are Native American within
the meaning of NAGPRA. If they are, NAGPRA provides for their disposition
to a lineal descendant, or, in the absence of a lineal descendant,
to an Indian tribe qualified under the section 3 (a) categories. If
there is no lineal descendant or if there is no qualified Indian tribe
under section 3 (a) categories, or, if no Indian tribe which is determined
to own the remains makes a claim for the remains, section 3 (b) directs
the Secretary of the Interior to provide for their disposition in
accordance with published regulations.
b. Will Congressional action be required to
clarify the law regarding "culturally unidentifiable ancient remains?"
The term "culturally unidentifiable" as used
in NAGPRA relates to Native American human remains contained in Federal
agency or museum collections (25 U.S.C. 3006 (c)(5)). Under NAGPRA's
implementing regulations, the term is defined as applying to Native
American human remains in Federal agency or museum collections that
cannot be culturally identified or are not culturally affiliated with
a present-day Indian tribe (43 CFR 10.10 (g)).
The term is not applicable to section 3 human
remains (human remains discovered on Federal or tribal lands after
November 16, 1990). Such unclaimed remains, if no claim is made for
them by a qualified lineal descendant or present-day Indian tribe,
or, if no such qualified claimant exists under section 3 (a)'s claim
categories, will be subject to disposition under regulations to be
promulgated by the Secretary of the Interior pursuant to section 3
(b).
Accordingly, we do not consider that Congressional
action is required to clarify NAGPRA with respect to the disposition
of the human remains in question. If they are Native American within
the meaning of NAGPRA, they should be disposed of pursuant to section
3 (a) or 3 (b) of NAGPRA, as applicable.
I hope that these responses prove useful in your efforts
to comply with NAGPRA. Please contact me, NAGPRA Team Leader C. Timothy
McKeown, or Lars A. Hanslin of the Office of the Solicitor, if you have
any additional questions.
Sincerely,
/s/ Francis P. McManamon
Francis P. McManamon
Departmental Consulting Archeologist
Chief, Archeology & Ethnography Program
1. For the sake of clarity, our
responses refer to Native American human remains and cultural items
as separate categories of materials. Under NAGPRA, however, human remains
and the several types of cultural items it describes (funerary objects,
sacred objects, and objects of cultural patrimony) are referred to collectively
as cultural items (25 U.S.C. 3001 (3)). In addition, although NAGPRA
applies equally to Indian tribes and Native Hawaiian organizations,
this memorandum does not make reference to Native Hawaiian organizations
except where necessary for substantive reasons.
2. The court in footnote 24 of its
opinion queries whether Congress may have intended a dictionary definition
of "indigenous," i.e., "occurring or living naturally in an area; not
introduced; native." American Heritage Dictionary of the English Language
(New College Edition).
3. See for example David H. Tuggle's
"Hawaii" in The Prehistory of Polynesia (Harvard University Press,
1979, pages 167-199) and Patrick Vinton Kirch's The Evolution of
Polynesian Chiefdoms (Cambridge University Press, 1984, pages 243-262).
4. This use of the term "indigenous"
is also found in the Native Hawaiian Health Care Act (42 U.S.C. 1170
et seq.).
Kennewick
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