Working Principles for Revising the Advisory Council on Historic Preservation's “Policy Statement Regarding Treatment of Human Remains and Grave Goods”, 52066-52068 [05-17437]

Agencies

• Advisory Council on Historic Preservation
• Historic Preservation, Advisory Council

[Federal Register Volume 70, Number 169 (Thursday, September 1, 2005)]
[Notices]
[Pages 52066-52068]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-17437]


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Notices
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Federal Register / Vol. 70, No. 169 / Thursday, September 1, 2005 / 
Notices

[[Page 52066]]



ADVISORY COUNCIL ON HISTORIC PRESERVATION


Working Principles for Revising the Advisory Council on Historic 
Preservation's ``Policy Statement Regarding Treatment of Human Remains 
and Grave Goods''

AGENCY: Advisory Council on Historic Preservation (ACHP).

ACTION: Notice of intent to reconsider the Advisory Council on Historic 
Preservation's ``Policy Statement Regarding Treatment of Human Remains 
and Grave Goods.''

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SUMMARY: The Advisory Council on Historic Preservation (ACHP) is 
revisiting its ``Policy Statement Regarding Treatment of Human Remains 
and Grave Goods,'' adopted in 1988 (1988 Human Remains Policy). A Task 
Force composed of ACHP members has drafted a set of Working Principles, 
which are presented below, to guide possible revision of the 1988 Human 
Remains Policy. The ACHP invites your views and observations on these 
principles. The Task Force will use your comments to prepare a draft 
revision of the 1988 Human Remains Policy. That draft will then be 
subject to further consultation and opportunity to comment, before a 
final draft is presented to the ACHP membership for adoption.

DATES: Submit comments on or before November 4, 2005.

FOR FURTHER INFORMATION CONTACT: Address all comments concerning these 
working principles to the Archaeology Task Force, Advisory Council on 
Historic Preservation, 1100 Pennsylvania Avenue, NW., Suite 809, 
Washington, DC 20004. Fax (202) 606-8672. Comments may also be 
submitted by electronic mail to: archeology@achp.gov. Please note that 
all responses become part of the public record once they are submitted 
to the ACHP. Please refer any questions to Dr. Tom McCulloch at 202-
606-8505.

SUPPLEMENTARY INFORMATION: The Advisory Council on Historic 
Preservation (ACHP) is preparing to revisit its ``Policy Statement 
Regarding Treatment of Human Remains and Grave Goods,'' adopted 1988 
(1988 Human Remains Policy).
    In April 2004 the ACHP formed a Task Force on Archaeology (Task 
Force), and sought comments on suggested modifications and additions to 
existing ACHP policy guidance regarding how archeology is carried out 
pursuant to Section 106 of the National Historic Preservation Act, 16 
U.S.C. 470f (Section 106), and its implementing regulations, 36 CFR 
part 800 (Section 106 regulations). Section 106 requires Federal 
agencies to take into account the effects of their undertakings on 
historic properties and provide the ACHP a reasonable opportunity to 
comment on such undertakings.
    The Task Force solicited the comments of Federal, Tribal and State 
Historic Preservation Officers, all Federally-recognized Indian tribes, 
Native Hawaiian organizations, and major professional archaeological 
organizations in this effort.
    From these comments, the Task Force identified several key issues 
requiring attention. One of the priority issues is revisiting the 1988 
Human Remains Policy. At its Spring 2005 meeting, the ACHP membership 
voted unanimously to direct the Task Force to revisit the 1988 Human 
Remains Policy. The Task Force has drafted a set of Working Principles, 
which are presented below, to guide this effort.
    We invite your views and observations on these principles. The Task 
Force will use your comments to prepare a draft revision of the 1988 
Human Remains Policy. This draft then will be subject to further review 
and comment. The Task Force recognizes the unique legal relationship 
that exists between the Federal Government and Federally-recognized 
Indian tribes. Accordingly, the ACHP's consultation with Indian tribes 
will be held on a Government-to-Government basis. Following 
consideration of all comments provided, the Task Force may present a 
revised, draft policy statement to the full ACHP membership for 
adoption.

Background Information

    The Section 106 process and purpose of the 1988 Human Remains 
Policy: Section 106 seeks to accommodate historic preservation concerns 
through a process of consultation between the Federal agency official 
and other parties having an interest in the effects of undertakings on 
all kinds of historic properties. In some cases, these properties 
contain cemeteries or other burial grounds with human remains and 
funerary objects. The Section 106 process requires that the Federal 
agency consult with other parties, and then make an informed and 
reasoned decision about what should be done in each case. Although 
final decisions in the Section 106 review process are the 
responsibility of the Federal agency official with approval authority 
over the undertaking, Federal or state law may prescribe a certain 
outcome. It is in reaching these decisions that Federal agencies look 
to the 1988 Human Remains Policy for guidance.
    The current ACHP policy is a formal statement, endorsed by the full 
ACHP membership in 1988, representing the membership's collective 
thinking about what to consider in reaching decisions about human 
remains and funerary objects encountered in undertakings on Federal, 
tribal, State, or private lands (the term ``funerary objects'' will be 
used in any revised policy statement to replace the term ``grave 
goods.'' As NAGPRA defines them they are ``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''). Unlike Federal and State laws that may 
circumscribe how human remains and funerary objects are treated on 
Federal, tribal, and State lands, the 1988 Human Remains Policy does 
not prescribe a specific outcome, but rather serves to focus thinking 
about what needs to be considered in reaching a decision.
    Nature of the current debate: Most people would agree that human 
remains and the items buried with them should not be disturbed. 
initiated early enough, the Section 106 process should allow for 
alternatives to disturbance of locations known to contain human 
remains, including avoidance and preservation in place, to be 
thoroughly explored. However, during consultation about

[[Page 52067]]

what to do when disturbance of human remains is unavoidable, the 
parties' viewpoints tend to fall somewhere into one of two broad camps. 
Some believe that the information human remains and funerary objects 
can provide about the past when studied by archaeologists and other 
specialists requires that the remains, which usually are removed from 
the ground at public expense, be subject to scientific analysis. Others 
argue that human remains and their associated funerary objects, due to 
their cultural significance and spiritual value to living communities, 
should be immediately and respectfully reburied or repatriated for 
reburial without study.
    Objectives of an updated policy: In revisiting the 1988 Human 
Remains Policy, the ACHP wishes to assert its leadership in historic 
preservation for the Federal Government and for parties affected by the 
Section 106 process. The ACHP hopes that any new policy it might 
develop for application to decisions made in the context of the Section 
106 review process will provide an important model for other 
organizations, agencies, or governments seeking to develop their own 
policies on the treatment of all human remains, burial sites, and 
associated funerary objects.
    Through any revision to the existing policy or any new policy it 
might develop, the ACHP hopes to offer leadership in resolving how to 
balance the public interest in the desire to treat human remains in a 
respectful and sensitive manner, while recognizing the public interest 
in knowing its collective past. Specifically, any new policy would 
guide decision-making under Section 106 when questions involving the 
treatment of human remains and funerary objects must be resolved in the 
absence of Federal or State law circumscribing the treatment of human 
remains and funerary objects. Any new ACHP human remains policy 
statement would not be bound by geography, ethnicity or nationality; it 
would apply to the treatment of all human remains encountered in 
Section 106 review.
    The Section 106 consultation process does not mandate a particular 
outcome. Accordingly, any new policy would not direct Federal agencies 
to make specific decisions. Rather, as a statement of the collective 
thinking of the ACHP membership, a new policy should guide Federal 
agencies in resolving the difficult question of what to do with human 
remains when Federal or State laws do not already prescribe a certain 
outcome.
    The following is the text of the working principles on which 
comment is sought through this notice:

Working Principles

    Any ACHP revised and updated policy will:

--Address treatment of all human remains and funerary objects in the 
context of compliance with Section 106 of the National Historic 
Preservation Act (Section 106);
--Encourage Federal agencies to initiate the Section 106 process 
early in their planning processes;
--Address human remains and funerary objects of all people;
--Be consistent, and work in concert, with other Federal, State, 
tribal, and local laws;

    Principle 1: The policy statement should recognize that human 
remains must be treated with respect and dignity.
    Principle 2: The policy statement should clarify the 
intersection between Section 106 and other legal authorities.

--The policy statement needs to clarify the intersection between the 
requirements of Section 106 and the Native American Graves 
Protection and Repatriation Act (NAGPRA).
--The policy statement needs to clarify the intersection between the 
requirements of Section 106, State burial laws and other applicable 
laws.
--The policy statement needs to recognize that a Federal agency 
official under Section 106 has a duty for the care of human remains 
and funerary objects.

    Principle 3: The policy statement should emphasize that 
avoidance, followed by preservation in place, is the preferred 
alternative to disturbance of human remains and funerary objects.

--Federal undertakings should disturb human remains and funerary 
objects only if absolutely necessary, and then only after exploring 
other alternatives early in project planning.
--In order to realistically consider avoidance and preservation in 
place, Federal agencies need to initiate the Section 106 process 
early in planning.
--Federal agencies must recognize that simple avoidance of a site 
does not necessarily ensure that site's long-term preservation.

    Principle 4: The policy statement should recognize that Federal 
agencies are responsible for meaningful consultation with all 
interested parties as a means to achieve compliance with the law.

--In accordance with the NHPA, the Federal agency official with 
jurisdiction over the undertaking has the responsibility to make the 
final decisions in Section 106 review after completing, and being 
informed, by the consultation process. However, it is recognized 
that Federal or State law may prescribe a certain outcome.
--Agency decisions regarding treatment and ultimate disposition must 
be based on a careful consideration of all views.
--The legal Government-to-Government obligations of Federal agencies 
to Indian tribes emanating from various statutes, Executive orders, 
treaties or court decisions should have a bearing on Federal agency 
decisions regarding the treatment and disposition of Native American 
human remains and funerary objects.
--Planning for the disposition of human remains should occur early 
in the process.

    Principle 5: The policy statement should guide the Federal 
agency official in decision making.

--The policy statement should clarify the roles of different groups 
concerned with the effects of the undertaking on historic properties 
in making decisions.
--The policy statement should clarify how the Federal agency weighs 
the views presented by the different parties in arriving at a final 
decision, recognizing that Federal or State law may prescribe a 
certain outcome.

    Principle 6: The policy statement should call for Federal 
agencies to develop procedures for the preservation and treatment of 
human remains discovered inadvertently, or when there is the 
potential for an undertaking to discover human remains.

--The policy should encourage Federal agencies to develop policy and 
operational procedures for treatment of human remains and funerary 
objects when they are inadvertently discovered.
--The policy should encourage Federal agencies to develop policy and 
operational procedures for treatment of human remains and funerary 
objects where they may be anticipated to be encountered as part of 
National Register eligibility investigations and data recovery 
investigations.
--The policy should encourage Federal agencies to develop policy and 
operational procedures for treatment of human remains and funerary 
objects exposed during natural disasters or encountered during 
emergency responses to such disasters.
--The policy should encourage Federal agencies to develop these 
procedures in consultation with all interested parties consistent 
with Principle 4.
--If a site is avoided, Federal agencies should have a procedure in 
place to provide the owners with guidance developed by the Secretary 
of the Interior under Section 112(b) of the NHPA and supplemental 
guidance that encourages protection of important archaeological 
properties, including burial sites.

End of text of the principles.

    The following is the text of the 1988 Human Remains Policy. It is 
reproduced here only for reference purposes. Again, the comments sought 
through this notice are on the principles presented above.

Policy Statement Regarding Treatment of Human Remains and Grave Goods

Adopted by the Advisory Council on Historic Preservation September 
27, 1988, Gallup, New Mexico

    When human remains or grave goods are likely to be exhumed in 
connection with an undertaking subject to review under Section 106 
of the National Historic Preservation Act, the consulting parties 
under the Council's regulations should agree upon arrangements for 
their disposition that, to the extent

[[Page 52068]]

allowed by law, adhere to the following principles:

--Human remains and grave goods should not be disinterred unless 
required in advance of some kind of disturbance, such as 
construction;
--Disinterment when necessary should be done carefully, 
respectfully, and completely, in accordance with proper 
archaeological methods;
--In general, human remains and grave goods should be reburied, in 
consultation with the descendants of the dead.
--Prior to reburial, scientific studies should be performed as 
necessary to address justified research topics;
--Scientific studies and reburial should occur according to a 
definite, agreed-upon schedule; and,
--Where scientific study is offensive to the descendants of the 
dead, and the need for such study does not outweigh the need to 
respect the concerns of such descendants, reburial should occur 
without prior study. Conversely, where the scientific research value 
of human remains or grave goods outweighs any objections that 
descendants may have to their study, they should not be reburied, 
but should be retained in perpetuity for study.

    Authority: 16 U.S.C. 470j

    Dated: August 26, 2005.
John M. Fowler,
Executive Director.
[FR Doc. 05-17437 Filed 8-31-05; 8:45 am]
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