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Advisory Council Burials

Advisory Council Burials

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This section of the FEDERAL REGISTERcontains documents other than rules orproposed rules that are applicable to thepublic. Notices of hearings and investigations,committee meetings, agency decisions andrulings, delegations of authority, filing ofpetitions and applications and agencystatements of organization and functions areexamples of documents appearing in thissection.
Federal Register
Vol. 71, No. 49Tuesday, March 14, 2006
ADVISORY COUNCIL ON HISTORICPRESERVATIONAdvisory Council on HistoricPreservation’s Draft ‘‘Policy StatementRegarding Treatment of Burial Sites,Human Remains and FuneraryObjects’’
Advisory Council on HistoricPreservation.
Request for Public Commentson Advisory Council on HistoricPreservation’s Draft ‘‘Policy StatementRegarding Treatment of Burial Sites,Human Remains and Funerary Objects’’.
The Advisory Council onHistoric Preservation (ACHP) isrevisiting its ‘‘Policy StatementRegarding Treatment of Human Remainsand Grave Goods,’’ adopted in 1988(1988 Policy). A Task Force composedof ACHP members has drafted a newpolicy, and invites your views andobservations on it. The Task Force willuse your comments to finalize the draftpolicy before presenting it to the fullACHP membership for considerationand possible adoption.
Submit comments on or before June 28, 2006.
Address all comments concerning thedraft policy to the Archeology TaskForce, Advisory Council on HistoricPreservation, 1100 PennsylvaniaAvenue, NW., Suite 809, Washington,DC 20004. Fax (202) 606–8672.Comments may also be submitted byelectronic mail to:
Please note thatall responses become part of the publicrecord once they are submitted to theACHP. Please refer any questions to Dr.Tom McCulloch at 202–606–8505.
I. Background
In 1988, the Advisory Council onHistoric Preservation (ACHP) adoptedthe ‘‘Policy Statement RegardingTreatment of Human Remains andGrave Goods’’ (1988 Policy) to serve asa guide for Federal agencies whenmaking decisions about burial sites,human remains, and funerary objectsencountered during review of Federalundertakings under Section 106 of theNational Historic Preservation Act, asamended, 16 U.S.C. 470f (section 106),and its implementing regulations, 36CFR part 800. The ACHP adopted thepolicy to guide Federal agencies at atime when no other national consensusor laws on the treatment of humanremains and associated funerary objectsexisted. While the ACHP’s 1988 Policywas a useful document for guidingFederal agency decision making, todayit no longer reflects the ACHP’s positionon the treatment of burial sites, humanremains, and funerary objects.Since 1988, new, and changes toexisting, Federal laws and regulationshave been enacted that affect howhuman remains and funerary objects areconsidered and treated. These laws andregulations reflect in part an evolvingrecognition in law and practice for thespecial nature of burial sites, humanremains, and funerary objects. NativeAmericans, in large part, framed thepublic discussion leading to thesechanges because of what they viewed asa long history of disrespectful treatmentand unnecessary disturbance of theremains of their ancestors. Thisdiscussion has broadened as allAmericans consider the recovery andtreatment of human remains incontemporary, modern contexts, such asat the site of the World Trade Centerafter September 11, 2001.The 1988 Policy also predates the1992 amendments to the NationalHistoric Preservation Act (NHPA) andsubsequent revised ACHP regulations toimplement these amendments. Two of the most significant 1992 amendmentsto the NHPA (1) affirm that propertiesof traditional religious and culturalsignificance to an Indian tribe or NativeHawaiian organization (NHO) can beconsidered eligible for the NationalRegister of Historic Places, and (2)require Federal agencies to consult,during the Section 106 process, withany Indian tribe or NHO that attachesreligious and cultural significance tothese properties.In 1990, Congress passed the NativeAmerican Graves Protection andRepatriation Act (NAGPRA). NAGPRArecognizes the interest and rights of Federally-recognized Indian tribes,Native Hawai’ian Organizations andlineal descendants in burial siteslocated on Federal and tribal land and,with its implementing regulations,mandates the process to be followed if it becomes necessary to excavate NativeAmerican or Native Hawai’ian humanremains and funerary objects found onthese lands. NAGPRA also establishes amechanism for the repatriation of NativeAmerican and Native Hawai’ian culturalitems to lineal descendants andculturally affiliated Indian tribes andNHOs.In addition, Executive Order 13007(May 24, 1996) requires Federal landmanaging agencies to accommodatereligious practitioners in access to andceremonial use of Native Americansacred sites. It also calls on Federalagencies to avoid adversely affecting thephysical integrity of such sacred sites tothe extent practicable permitted by law,and not clearly inconsistent withessential agency functions.In 2004, the ACHP Chairman formedan Archeology Task Force to review itsarcheology policies and guidance. In2005, the ACHP members votedunanimously to direct the Task Force torevisit the 1988 Policy. On September 1,2005, the Task Force moved forwardwith a request for comment throughpublication of a set of WorkingPrinciples in the Federal Register (70 FR52066–52068). The ACHP sent this samerequest for comments directly to allIndian tribes, Native Hawai’ianOrganizations, SHPOs, THPOs, andprofessional archeological andpreservation organizations. A total of 76comments were received at theDecember 2, 2005, close of the commentperiod. These comments are posted onthe ACHP’s Web site at
http:// www.achp.gov.
Based on the comments received, theTask Force concluded that the 1988Policy should be revised. The TaskForce then carefully considered thecomments in preparing this draft‘‘Policy Statement Regarding BurialSites, Human Remains, and FuneraryObjects’’ (the draft text is found at theend of this notice). This proposed draftof the ACHP’s revised human remainspolicy is now subject to review,including consultation with Federally-recognized Indian tribes. Please provide
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Federal Register
/Vol. 71, No. 49/Tuesday, March 14, 2006/Notices
comments on it on or before June 28,2006.
II. Explanatory Notes on the DraftPolicy
Goals of the policy statement 
This policy is designed to accomplishseveral tasks in the context of Section106 review.First, this policy offers leadership inresolving how to treat burial sites,human remains, and funerary objects ina respectful and sensitive manner whileacknowledging the public interest in thepast.Second, this policy provides guidanceto Federal agencies in situations whereFederal or State law does not prescribehow burial sites, human remains, andfunerary objects are to be handled.Many Federal undertakings, forexample, take place on non-Federal andnon-tribal land, including privately-owned land, where NAGPRA does notapply.Third, this policy is not intended torecommend a specific outcome, butrather focuses thinking on what Section106 participants need to consider inreaching decisions. The policy is not bound by geography, ethnicity,nationality, or religious belief. It appliesto the treatment of all burial sites,human remains, and funerary objectsencountered during the Section 106process.Finally, this policy is designed toguide Federal agencies as they proceedwith undertakings that have thepotential to encounter and/or disturb burial sites, human remains, andfunerary objects.
Scope and Applicability 
As the draft policy advocates, Federalagencies should, at the earliest pointpossible in project development, plan toavoid burial sites, human remains, andfunerary objects altogether. Whenavoidance is not a reasonable course of action, the agency should minimizedisturbance to such sites, remains, andobjects. The Federal agency shouldconsider removal of the human remainsor funerary objects only when these orother alternatives that leave the remainsin place cannot be reasonablyimplemented. It is important tounderstand that to be considered undersection 106, the burial site must be ahistoric property, meaning either listedon or eligible for inclusion on theNational Register of Historic Places.This policy applies throughout theSection 106 process, including duringthe identification of those historicproperties.In making final decisions aboutdisinterment and treatment, the Federalagency should consult with those whohave an interest in the effects of theundertaking on the historic property.Federal agencies should use theconsultation process effectively to arriveat mutually satisfactory outcomes.Consultation, defined in the ACHP
sregulations as
seeking, discussing, andconsidering the views of otherparticipants, and, where feasible,seeking agreement with them regardingmatters arising in the Section 106review process,
is the hallmark of theSection 106 process. To meet theregulations
reasonable and good faith
 requirement, consultation must begin inthe earliest stages of an undertaking,after the Federal agency determines ithas an undertaking and prior todecisions about project design, location,or scope.When the Federal agency decides thathuman remains or funerary objects must be disturbed, they should be removedcompletely, with respect and dignity,and dealt with according to the plandeveloped by the Federal agency, inconsultation with others. Under thispolicy, treatment options may rangefrom immediate repatriation or reburialupon removal from the ground todetailed scientific study. This policydoes not endorse any specific treatment,and does not take a position againstscientific study of human remains whenit is determined to be appropriate afterconsultation and consideration of otherlegal authorities that may prescribe aspecific outcome.
Relationship of Policy Statement toNAGPRA and Other Federal, Tribal,State, or Local Laws
As policy, its principles and theirimplementation do not, in any way,change, modify, detract or add toapplicable laws including, but notlimited to, NAGPRA.This policy applies to all Federalagencies whose undertakings are subjectto review under Section 106 of theNHPA. While Section 106 requiresagencies to seek agreement withconsulting parties on measures to avoid,minimize, or mitigate adverse effects tohistoric properties, Section 106 does notprescribe or require a specific outcome.However, in many cases, Federalagencies will find that other Federal,tribal, State, or local laws existconcerning burial sites, human remains,and funerary objects that may beapplicable and prescribe a specificoutcome. The Federal agency mustidentify and, as applicable, follow theselaws.For undertakings on Federal andtribal land that encounter NativeAmerican or Native Hawai
ian humanremains and funerary objects, NAGPRAapplies. It is important to reiterate herethat the HAGPRA applies. It isimportant to reiterate here that theNHPA and NAGPRA are separate anddistinct laws, with separate and distinctimplementing regulations and categoriesof parties that must be consulted, andthat compliance with one law does notmean or equal compliance with theother.
Discussion of PrinciplesPrinciple 1
: Burial sites, humanremains and funerary objects should not be knowingly disturbed unlessabsolutely necessary, and only after thefederal agency has fully consideredavoidance and/or preservation in place.
: As a matter of practice,Federal agencies should avoid burialsites, human remains, and funeraryobjects as they carry out theirundertakings. Avoidance meansensuring that the burial site is notphysically disturbed.If avoidance is not possible, Federalagencies, during consultation, shouldconsider whether there are active stepsthey may take or implement to preservethe burial sites in place, perhapsthrough the intentional covering of theaffected area, placement of markers, orgranting of restrictive or other protectiveeasements. In many cases, preservationin place may mean that the locations of  burial sites, human remains, andfunerary objects should, to the extentallowed by law not be publiclydisclosed. Alternatively, consultationmay reveal that preservation in place isnot the preferred outcome or treatment.Natural deterioration may be theacceptable or preferred treatment.
Principle 2
: Participants in theSection 106 process shall treat all burialsites, human remains and funeraryobjects with dignity and respect, whichis determined through meaningfulconsultation.
Dignity and respect areimportant concepts. Throughmeaningful consultation, descendants,culturally affiliated groups, descendantcommunities, and other partiesconsulting under Section 106 shoulddiscuss and define what constitutesdignity and respect.
Principle 3:
Federal agencies areresponsible for early and meaningfulconsultation throughout the Section 106process.
Consultation is at theheart of the Section 106 process. Asnoted above, consultation involves
seeking, discussing, and consideringthe views of other participants, and,where feasible, seeking agreement withthem regarding matters arising in the
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Federal Register
/Vol. 71, No. 49/Tuesday, March 14, 2006/Notices
Section 106 review process.
Theregulations of the ACHP require that theFederal agency identify consultingparties early in the Section 106 process.Consulting parties include the StateHistoric Preservation Officer; the TribalHistoric Preservation Officer; Indiantribes and Native Hawai
ianorganizations; representatives of localgovernments; applicants for Federalassistance, permits, licenses, and otherapprovals; and/or any additionalconsulting parties, includingindividuals and organizations with ademonstrated interest in theundertaking due to the nature of theirlegal or economic relation to theundertaking or affected properties, ortheir concern with the undertaking
seffects on historic properties.The Federal agency must consult withFederally-recognized Indian tribes on agovernment-to-government basis.Government-to-government consultationrecognizes the unique legal relationshipof the Federal government with tribalgovernments as set forth in theConstitution of the United States,treaties, statutes, court decisions, andexecutive orders and memoranda.Federal agencies should review theACHP publication
Consulting withIndian Tribes in the Section 106Process
for guidance. The NationalAssociation of Tribal HistoricPreservation Officers has also publisheda document titled
Tribal Consultation:Best Practices in Historic Preservation,
 found at
designed to assist Federal agencieswhen preparing for government-to-government consultation withFederally-recognized tribes.The Federal agency should considerthat, in cases where human remainsand/or funerary objects must bedisturbed, final disposition may involvethe identification of additionalconsulting parties. These potentialconsulting parties should be identifiedand included in consultation as early aspossible.The NHPA, the ACHP
s regulations,and Presidential Executive Orders setout basic standards and criteria formany of the steps in the consultationprocess, including:
How to identify consulting parties (36CFR 800.3);
Appropriate documentation needed tosupport consultation and determinean outcome (what to talk about) (36CFR 800.11);
The affirmative obligation to seekconsulting parties (36 CFR800.2(a)(4));
Federal agency responsibilities formaking final decisions (36 CFR800.2(a));
That properties of traditional religiousand cultural importance to an Indiantribe or NHO may be determined to beeligible for inclusion on the NationalRegister (16 U.S.C. 470a(d)(6)(A));
The Federal agency has aresponsibility to consult with anyIndian tribe or NHO that attachesreligious and cultural significance tosuch historic properties (16 U.S.C.470a(d)(6)(B)); and
Recognizing the sovereign status of Indian tribes. Executive Order 13175(November 6, 2000)
Consultationand Coordination with Indian TribalGovernments
requires Federalagencies to engage tribes in agovernment-to-government context.
Principle 4:
The policy recognizes thatNative Americans are descendants of aboriginal occupants of this country.Federal agencies shall consult withIndian tribes and Native Hawaiianorganizations that attach religious andcultural significance to burial sites,human remains, and associated funeraryobjects, and be cognizant of theirexpertise in, and religious and culturalconnection to, them. Federallyrecognized tribes are sovereign nationsand Federal agencies shall conductconsultation with Indian tribes on agovernment-to-government basis, asrequired by law.
This principle reiteratesrequirements found in existing Federallaw, regulation and Executive Orders,and is consistent with positions that theACHP has taken over the years tofacilitate enfranchisement and promote broad participation in the Section 106process.
Principle 5:
When human remains orfunerary objects must be disinterred,they should be removed carefully,respectfully and in a manner developedin consultation.
disintermentmeans that when human remains andgrave goods must be disinterred, thosedoing the work should have, or besupervised by people having,appropriate expertise in disintermenttechniques of human remains to ensurethat in excavating a burial the materialis kept as intact as possible and piecesare not left behind.Depending on agreements reachedthrough the Section 106 consultationprocess, disinterment may or may notinclude field recordation, such as fieldsketches, and the recording of anindividuals
age at death, sex, stature,and evidence of disease or trauma. Insome instances, such recordation may be so abhorrent to the descendants of the dead that it may be inappropriate tocarry it out. Such alterations to standardprocedure should be negotiated on acase-by-case basis in the consultationprocess.The word
is self-explanatory: when working with humanremains, the Federal agency officialshould maintain an appropriatedeference for the dead and theirdescendants and descendantcommunities. The official should alsomaintain respect for the customs and beliefs of those who may be descendedfrom the deceased, and try to avoidunnecessary conflict with them.Questions to be addressed in theconsultation process may include butnot be limited to:
What kinds of ceremonies (if any)should be performed?;
Who should remove/handle theremains?;
What should the remains be placedin?
What kinds of field analyses, if any,should be performed?
Should the remains be photographedin situ?;
Should the remains be cleaned?; and
What kind of arrangements should bemade for disposition of the remainsand funerary objects?
Principle 6:
The Federal agencyofficial is responsible for makingdecisions regarding avoidance ortreatment of burial sites, human remainsand funerary objects based onconsultation and appropriatedocumentation. In reaching a decision,the Federal agency official must complywith applicable Federal, tribal, State, orlocal law.
Encountering burial sites,human remains or funerary objectsduring the initial efforts to identifyhistoric properties is not unheard of.The ACHP
s regulations (at 36 CFR800.1(c)) state that the Federal agencyofficial may conduct or authorize
nondestructive planning activities before completing compliance withsection 106, provided such actions donot restrict the subsequentconsideration of alternatives to avoidminimize, or mitigate the undertaking
sadverse effects on historic properties.
 For purposes of section 106,identification efforts should result in anassessment that can be independentlyevaluated and used to make informedjudgments about whether there areproperties within the Area of PotentialEffect that are listed in or eligible forlisting in the National Register of Historic Places. This would typicallyinclude basic information on the historyand historical importance of theproperty, its horizontal and vertical boundaries, and its basic nature,condition, and what qualifies it for the
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