Advisory Council on Historic Preservation's Draft “Policy Statement Regarding Treatment of Burial Sites, Human Remains and Funerary Objects”, 13066-13070 [06-2390]

Agencies

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

[Federal Register Volume 71, Number 49 (Tuesday, March 14, 2006)]
[Notices]
[Pages 13066-13070]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-2390]


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Federal Register / Vol. 71, No. 49 / Tuesday, March 14, 2006 / 
Notices

[[Page 13066]]



ADVISORY COUNCIL ON HISTORIC PRESERVATION


Advisory Council on Historic Preservation's Draft ``Policy 
Statement Regarding Treatment of Burial Sites, Human Remains and 
Funerary Objects''

AGENCY: Advisory Council on Historic Preservation.

ACTION:  Request for Public Comments on Advisory Council on Historic 
Preservation's Draft ``Policy Statement Regarding Treatment of Burial 
Sites, Human Remains and Funerary Objects''.

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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 Policy). A Task Force composed 
of ACHP members has drafted a new policy, and invites your views and 
observations on it. The Task Force will use your comments to finalize 
the draft policy before presenting it to the full ACHP membership for 
consideration and possible adoption.

DATES: Submit comments on or before June 28, 2006.

FOR FURTHER INFORMATION CONTACT: Address all comments concerning the 
draft policy to the Archeology 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:

I. Background

    In 1988, the Advisory Council on Historic Preservation (ACHP) 
adopted the ``Policy Statement Regarding Treatment of Human Remains and 
Grave Goods'' (1988 Policy) to serve as a guide for Federal agencies 
when making decisions about burial sites, human remains, and funerary 
objects encountered during review of Federal undertakings under Section 
106 of the National Historic Preservation Act, as amended, 16 U.S.C. 
470f (section 106), and its implementing regulations, 36 CFR part 800. 
The ACHP adopted the policy to guide Federal agencies at a time when no 
other national consensus or laws on the treatment of human remains and 
associated funerary objects existed. While the ACHP's 1988 Policy was a 
useful document for guiding Federal agency decision making, today it no 
longer reflects the ACHP's position on the treatment of burial sites, 
human remains, and funerary objects.
    Since 1988, new, and changes to existing, Federal laws and 
regulations have been enacted that affect how human remains and 
funerary objects are considered and treated. These laws and regulations 
reflect in part an evolving recognition in law and practice for the 
special nature of burial sites, human remains, and funerary objects. 
Native Americans, in large part, framed the public discussion leading 
to these changes because of what they viewed as a long history of 
disrespectful treatment and unnecessary disturbance of the remains of 
their ancestors. This discussion has broadened as all Americans 
consider the recovery and treatment of human remains in contemporary, 
modern contexts, such as at the site of the World Trade Center after 
September 11, 2001.
    The 1988 Policy also predates the 1992 amendments to the National 
Historic Preservation Act (NHPA) and subsequent revised ACHP 
regulations to implement these amendments. Two of the most significant 
1992 amendments to the NHPA (1) affirm that properties of traditional 
religious and cultural significance to an Indian tribe or Native 
Hawaiian organization (NHO) can be considered eligible for the National 
Register of Historic Places, and (2) require Federal agencies to 
consult, during the Section 106 process, with any Indian tribe or NHO 
that attaches religious and cultural significance to these properties.
    In 1990, Congress passed the Native American Graves Protection and 
Repatriation Act (NAGPRA). NAGPRA recognizes the interest and rights of 
Federally-recognized Indian tribes, Native Hawai'ian Organizations and 
lineal descendants in burial sites located on Federal and tribal land 
and, with its implementing regulations, mandates the process to be 
followed if it becomes necessary to excavate Native American or Native 
Hawai'ian human remains and funerary objects found on these lands. 
NAGPRA also establishes a mechanism for the repatriation of Native 
American and Native Hawai'ian cultural items to lineal descendants and 
culturally affiliated Indian tribes and NHOs.
    In addition, Executive Order 13007 (May 24, 1996) requires Federal 
land managing agencies to accommodate religious practitioners in access 
to and ceremonial use of Native American sacred sites. It also calls on 
Federal agencies to avoid adversely affecting the physical integrity of 
such sacred sites to the extent practicable permitted by law, and not 
clearly inconsistent with essential agency functions.
    In 2004, the ACHP Chairman formed an Archeology Task Force to 
review its archeology policies and guidance. In 2005, the ACHP members 
voted unanimously to direct the Task Force to revisit the 1988 Policy. 
On September 1, 2005, the Task Force moved forward with a request for 
comment through publication of a set of Working Principles in the 
Federal Register (70 FR 52066-52068). The ACHP sent this same request 
for comments directly to all Indian tribes, Native Hawai'ian 
Organizations, SHPOs, THPOs, and professional archeological and 
preservation organizations. A total of 76 comments were received at the 
December 2, 2005, close of the comment period. These comments are 
posted on the ACHP's Web site at https://www.achp.gov.
    Based on the comments received, the Task Force concluded that the 
1988 Policy should be revised. The Task Force then carefully considered 
the comments in preparing this draft ``Policy Statement Regarding 
Burial Sites, Human Remains, and Funerary Objects'' (the draft text is 
found at the end of this notice). This proposed draft of the ACHP's 
revised human remains policy is now subject to review, including 
consultation with Federally-recognized Indian tribes. Please provide

[[Page 13067]]

comments on it on or before June 28, 2006.

II. Explanatory Notes on the Draft Policy

Goals of the policy statement

    This policy is designed to accomplish several tasks in the context 
of Section 106 review.
    First, this policy offers leadership in resolving how to treat 
burial sites, human remains, and funerary objects in a respectful and 
sensitive manner while acknowledging the public interest in the past.
    Second, this policy provides guidance to Federal agencies in 
situations where Federal or State law does not prescribe how burial 
sites, human remains, and funerary objects are to be handled. Many 
Federal undertakings, for example, take place on non-Federal and non-
tribal land, including privately-owned land, where NAGPRA does not 
apply.
    Third, this policy is not intended to recommend a specific outcome, 
but rather focuses thinking on what Section 106 participants need to 
consider in reaching decisions. The policy is not bound by geography, 
ethnicity, nationality, or religious belief. It applies to the 
treatment of all burial sites, human remains, and funerary objects 
encountered during the Section 106 process.
    Finally, this policy is designed to guide Federal agencies as they 
proceed with undertakings that have the potential to encounter and/or 
disturb burial sites, human remains, and funerary objects.

Scope and Applicability

    As the draft policy advocates, Federal agencies should, at the 
earliest point possible in project development, plan to avoid burial 
sites, human remains, and funerary objects altogether. When avoidance 
is not a reasonable course of action, the agency should minimize 
disturbance to such sites, remains, and objects. The Federal agency 
should consider removal of the human remains or funerary objects only 
when these or other alternatives that leave the remains in place cannot 
be reasonably implemented. It is important to understand that to be 
considered under section 106, the burial site must be a historic 
property, meaning either listed on or eligible for inclusion on the 
National Register of Historic Places. This policy applies throughout 
the Section 106 process, including during the identification of those 
historic properties.
    In making final decisions about disinterment and treatment, the 
Federal agency should consult with those who have an interest in the 
effects of the undertaking on the historic property. Federal agencies 
should use the consultation process effectively to arrive at mutually 
satisfactory outcomes. Consultation, defined in the ACHP's regulations 
as ``seeking, discussing, and considering the views of other 
participants, and, where feasible, seeking agreement with them 
regarding matters arising in the Section 106 review process,'' is the 
hallmark of the Section 106 process. To meet the regulations' 
``reasonable and good faith'' requirement, consultation must begin in 
the earliest stages of an undertaking, after the Federal agency 
determines it has an undertaking and prior to decisions about project 
design, location, or scope.
    When the Federal agency decides that human remains or funerary 
objects must be disturbed, they should be removed completely, with 
respect and dignity, and dealt with according to the plan developed by 
the Federal agency, in consultation with others. Under this policy, 
treatment options may range from immediate repatriation or reburial 
upon removal from the ground to detailed scientific study. This policy 
does not endorse any specific treatment, and does not take a position 
against scientific study of human remains when it is determined to be 
appropriate after consultation and consideration of other legal 
authorities that may prescribe a specific outcome.

Relationship of Policy Statement to NAGPRA and Other Federal, Tribal, 
State, or Local Laws

    As policy, its principles and their implementation do not, in any 
way, change, modify, detract or add to applicable laws including, but 
not limited to, NAGPRA.
    This policy applies to all Federal agencies whose undertakings are 
subject to review under Section 106 of the NHPA. While Section 106 
requires agencies to seek agreement with consulting parties on measures 
to avoid, minimize, or mitigate adverse effects to historic properties, 
Section 106 does not prescribe or require a specific outcome. However, 
in many cases, Federal agencies will find that other Federal, tribal, 
State, or local laws exist concerning burial sites, human remains, and 
funerary objects that may be applicable and prescribe a specific 
outcome. The Federal agency must identify and, as applicable, follow 
these laws.
    For undertakings on Federal and tribal land that encounter Native 
American or Native Hawai'ian human remains and funerary objects, NAGPRA 
applies. It is important to reiterate here that the HAGPRA applies. It 
is important to reiterate here that the NHPA and NAGPRA are separate 
and distinct laws, with separate and distinct implementing regulations 
and categories of parties that must be consulted, and that compliance 
with one law does not mean or equal compliance with the other.

Discussion of Principles

    Principle 1: Burial sites, human remains and funerary objects 
should not be knowingly disturbed unless absolutely necessary, and only 
after the federal agency has fully considered avoidance and/or 
preservation in place.
    Discussion: As a matter of practice, Federal agencies should avoid 
burial sites, human remains, and funerary objects as they carry out 
their undertakings. Avoidance means ensuring that the burial site is 
not physically disturbed.
    If avoidance is not possible, Federal agencies, during 
consultation, should consider whether there are active steps they may 
take or implement to preserve the burial sites in place, perhaps 
through the intentional covering of the affected area, placement of 
markers, or granting of restrictive or other protective easements. In 
many cases, preservation in place may mean that the locations of burial 
sites, human remains, and funerary objects should, to the extent 
allowed by law not be publicly disclosed. Alternatively, consultation 
may reveal that preservation in place is not the preferred outcome or 
treatment. Natural deterioration may be the acceptable or preferred 
treatment.
    Principle 2: Participants in the Section 106 process shall treat 
all burial sites, human remains and funerary objects with dignity and 
respect, which is determined through meaningful consultation.
    Discussion: Dignity and respect are important concepts. Through 
meaningful consultation, descendants, culturally affiliated groups, 
descendant communities, and other parties consulting under Section 106 
should discuss and define what constitutes dignity and respect.
    Principle 3: Federal agencies are responsible for early and 
meaningful consultation throughout the Section 106 process.
    Discussion: Consultation is at the heart of the Section 106 
process. As noted above, consultation involves ``seeking, discussing, 
and considering the views of other participants, and, where feasible, 
seeking agreement with them regarding matters arising in the

[[Page 13068]]

Section 106 review process.'' The regulations of the ACHP require that 
the Federal agency identify consulting parties early in the Section 106 
process. Consulting parties include the State Historic Preservation 
Officer; the Tribal Historic Preservation Officer; Indian tribes and 
Native Hawai'ian organizations; representatives of local governments; 
applicants for Federal assistance, permits, licenses, and other 
approvals; and/or any additional consulting parties, including 
individuals and organizations with a demonstrated interest in the 
undertaking due to the nature of their legal or economic relation to 
the undertaking or affected properties, or their concern with the 
undertaking's effects on historic properties.
    The Federal agency must consult with Federally-recognized Indian 
tribes on a government-to-government basis. Government-to-government 
consultation recognizes the unique legal relationship of the Federal 
government with tribal governments as set forth in the Constitution of 
the United States, treaties, statutes, court decisions, and executive 
orders and memoranda.
    Federal agencies should review the ACHP publication ``Consulting 
with Indian Tribes in the Section 106 Process'' for guidance. The 
National Association of Tribal Historic Preservation Officers has also 
published a document titled ``Tribal Consultation: Best Practices in 
Historic Preservation,'' found at https://www.nathpo.org, designed to 
assist Federal agencies when preparing for government-to-government 
consultation with Federally-recognized tribes.
    The Federal agency should consider that, in cases where human 
remains and/or funerary objects must be disturbed, final disposition 
may involve the identification of additional consulting parties. These 
potential consulting parties should be identified and included in 
consultation as early as possible.
    The NHPA, the ACHP's regulations, and Presidential Executive Orders 
set out basic standards and criteria for many of the steps in the 
consultation process, including:

--How to identify consulting parties (36 CFR 800.3);
--Appropriate documentation needed to support consultation and 
determine an outcome (what to talk about) (36 CFR 800.11);
--The affirmative obligation to seek consulting parties (36 CFR 
800.2(a)(4));
--Federal agency responsibilities for making final decisions (36 CFR 
800.2(a));
--That properties of traditional religious and cultural importance to 
an Indian tribe or NHO may be determined to be eligible for inclusion 
on the National Register (16 U.S.C. 470a(d)(6)(A));
--The Federal agency has a responsibility to consult with any Indian 
tribe or NHO that attaches religious and cultural significance to such 
historic properties (16 U.S.C. 470a(d)(6)(B)); and
--Recognizing the sovereign status of Indian tribes. Executive Order 
13175 (November 6, 2000) ``Consultation and Coordination with Indian 
Tribal Governments'' requires Federal agencies to engage tribes in a 
government-to-government context.

    Principle 4: The policy recognizes that Native Americans are 
descendants of aboriginal occupants of this country. Federal agencies 
shall consult with Indian tribes and Native Hawaiian organizations that 
attach religious and cultural significance to burial sites, human 
remains, and associated funerary objects, and be cognizant of their 
expertise in, and religious and cultural connection to, them. Federally 
recognized tribes are sovereign nations and Federal agencies shall 
conduct consultation with Indian tribes on a government-to-government 
basis, as required by law.
    Discussion: This principle reiterates requirements found in 
existing Federal law, regulation and Executive Orders, and is 
consistent with positions that the ACHP has taken over the years to 
facilitate enfranchisement and promote broad participation in the 
Section 106 process.
    Principle 5: When human remains or funerary objects must be 
disinterred, they should be removed carefully, respectfully and in a 
manner developed in consultation.
    Discussion: ``Careful'' disinterment means that when human remains 
and grave goods must be disinterred, those doing the work should have, 
or be supervised by people having, appropriate expertise in 
disinterment techniques of human remains to ensure that in excavating a 
burial the material is kept as intact as possible and pieces are not 
left behind.
    Depending on agreements reached through the Section 106 
consultation process, disinterment may or may not include field 
recordation, such as field sketches, and the recording of an 
individuals' age at death, sex, stature, and evidence of disease or 
trauma. In some instances, such recordation may be so abhorrent to the 
descendants of the dead that it may be inappropriate to carry it out. 
Such alterations to standard procedure should be negotiated on a case-
by-case basis in the consultation process.
    The word ``respectfully'' is self-explanatory: when working with 
human remains, the Federal agency official should maintain an 
appropriate deference for the dead and their descendants and descendant 
communities. The official should also maintain respect for the customs 
and beliefs of those who may be descended from the deceased, and try to 
avoid unnecessary conflict with them.
    Questions to be addressed in the consultation process may include 
but not be limited to:

--What kinds of ceremonies (if any) should be performed?;
--Who should remove/handle the remains?;
--What should the remains be placed in?
--What kinds of field analyses, if any, should be performed?
--Should the remains be photographed in situ?;
--Should the remains be cleaned?; and
--What kind of arrangements should be made for disposition of the 
remains and funerary objects?

    Principle 6: The Federal agency official is responsible for making 
decisions regarding avoidance or treatment of burial sites, human 
remains and funerary objects based on consultation and appropriate 
documentation. In reaching a decision, the Federal agency official must 
comply with applicable Federal, tribal, State, or local law.
    Discussion: Encountering burial sites, human remains or funerary 
objects during the initial efforts to identify historic properties is 
not unheard of. The ACHP's regulations (at 36 CFR 800.1(c)) state that 
the Federal agency official may conduct or authorize ``nondestructive 
planning activities before completing compliance with section 106, 
provided such actions do not restrict the subsequent consideration of 
alternatives to avoid minimize, or mitigate the undertaking's adverse 
effects on historic properties.''
    For purposes of section 106, identification efforts should result 
in an assessment that can be independently evaluated and used to make 
informed judgments about whether there are properties within the Area 
of Potential Effect that are listed in or eligible for listing in the 
National Register of Historic Places. This would typically include 
basic information on the history and historical importance of the 
property, its horizontal and vertical boundaries, and its basic nature, 
condition, and what qualifies it for the

[[Page 13069]]

National Register. Hopefully, only a very small sample of the site will 
require investigation to make such determinations. While it is 
impossible to define a point applicable in all instances at which 
testing ends and archeological data recovery begins, a rule of thumb is 
that adequate testing has been done when a decision about National 
Register eligibility can be made.
    Although early and meaningful consultation is critical to the 
success of the Section 106 process, at no time may agreements reached 
through Section 106 consultation contravene applicable Federal, tribal, 
State, or local law. For undertakings on Federal lands that may 
encounter burial sites, human remains, and funerary objects regardless 
of ethnic affiliation but at least 100 years old, the agency is subject 
to the provisions of the Archeological Resources Protection Act (ARPA). 
ARPA permits are required for any archeological investigations 
conducted on Federal land. Further, NAGPRA requires the issuance of an 
ARPA permit prior to any disturbance of Native American or Native 
Hawai'ian burials protected by NAGPRA.
    When undertakings encounter burial sites, human remains, or 
funerary objects on State and private lands, State burial laws may 
apply. Burial laws vary from State to State and the Federal agency must 
identify and follow these laws when they apply. Section 106 agreement 
documents should take into account the requirements of any of these 
applicable laws.
    Principle 7: Federal agencies shall, after meaningful consultation, 
develop plans for the treatment of human remains and funerary objects 
that may be discovered.
    Discussion: the ACHP's Post-review discovery provision (36 CFR 
Sec.  800.13) requires the Federal agency to carry out several actions: 
``make reasonable efforts to avoid, minimize, or mitigate adverse 
effects to such properties;'' notify consulting parties within 48 hours 
(including tribes and NHOs that might attach religious and cultural 
significance to the affected property) of the agency's proposed course 
of action; take into account comments received within a new 48 hour 
period, and then ``carry out appropriate actions.'' The ACHP's 
regulations provide the option of reaching an agreement on how to 
handle these in the future prior to any discovery.
    NAGPRA prescribes a specific course of action when Native American 
and Native Hawai'ian human remains and funerary objects are discovered 
on Federal lands in the absence of a plan: cessation of the activity, 
protection of the material, notification of various parties, 
consultation on a course of action and its implementation, and then 
proceed with the activity. Adherence to Principle 7 causes new 
discoveries to be ``intentional excavations'' under NAGPRA because a 
plan has already been developed, and can be immediately acted upon 
without the mandated 30 day cessation of work for ``inadvertent 
discoveries.''
    Principle 8: In cases where the disposition of human remains and 
funerary objects is not legally prescribed, Federal agencies should 
proceed following a hierarchy that acknowledges the rights of lineal 
descendants, Indian tribes, Native Hawai'ian Organizations and other 
descendent communities.
    Discussion: Under the ACHP's regulations, ``descendants'' are not 
consulting parties by right. However, Federal agencies should recognize 
a biological or cultural relationship and invite that individual or 
organization to be a consulting party under the ACHP's' regulations at 
36 CFR 800.3(f)(3)). When Federal or state law does not direct 
disposition of human remains or funerary objects, or when there is 
disagreement among claimants, the process set out in NAGPRA may be 
instructive. In NAGPRA, the ``ownership or control'' of human remains 
and associated funerary objects lie with the following in descending 
order:

--Specific lineal descendants; then
--Tribe on whose Tribal lands the items were discovered; then
--Tribe with the closest cultural affiliation; and then
--Tribe aboriginally occupying the land, or Tribe with the closest 
``cultural relationship'' to the material.

Definitions Used for the Principles:

--Burial Site: Any natural or prepared physical location, whether 
originally below, on, or above the surface of the earth, into which as 
a part of the death rite or ceremony of a culture, individual human 
remains are deposited (25 U.S.C. 3001.2(1)).
--Consultation: The process of seeking, discussing, and considering the 
views of other participants, and, where feasible, seeking agreement 
with them regarding matters arising in the Section 106 review process 
(36 CFR 800.16(f)).
--Consulting parties: Persons or groups the Federal agency consults 
with during the Section 106 process. They may include the State 
Historic Preservation Officer; the Tribal Historic Preservation 
Officer; Indian tribes and Native Hawaiian organizations; 
representatives of local governments; applicants for Federal 
assistance, permits, license, and other approvals; and/or any 
additional consulting parties (based on 36 CFR 800.2(c)). Additional 
consulting parties may include individuals and organizations with a 
demonstrated interest in the undertaking due to the nature of their 
legal or economic relation to the undertaking or affected properties, 
or their concern with the undertaking's effects on historic properties 
(36 CFR 800.2(c)(6)).
--Disturbance: Disturbance of burial sites will constitute an adverse 
effect under Section 106. An adverse effect occurs when ``an 
undertaking may alter, directly or indirectly, any of the 
characteristics of a historic property that qualify the property for 
inclusion in the National Register in a manner that would diminish the 
integrity of the property's location, setting, materials, workmanship, 
feeling, or association'' (36 CFR 800.5(a)(1)).
--Federal land: Lands under a Federal agency's control. Mere Federal 
funding or permitting of a project does not turn an otherwise non-
Federal land into land (see Abenaki Nation of Mississquoi v. Hughes, 
805 F. Supp. 234 (D. Vt. 1992), aff'd, 990 F. 2d 729 (2d Cir. 1993) 
(where the court found that a Clean Water Act permit issued by the U.S. 
Army Corps of Engineers did not place the relevant land under Federal 
``control'' for NAGPRA purposes).
--Funerary objects: ``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'' 
(25 U.S.C. 3001(3)(B)).
--Historic property: ``Any prehistoric or historic district, site, 
building, structure, or object included in, or eligible for inclusion 
in, the National Register of Historic Places maintained by the 
Secretary of the Interior. It includes artifacts, records, and remains 
that are related to and located within such properties, and it includes 
properties of traditional religious and cultural importance to an 
Indian tribe or Native Hawaiian organization and that meet the National 
Register of Historic Places criteria'' (36 CFR 800.16(1)).
--Human remains: The physical remains of a human body. The term does 
not include remains or portions of remains that may reasonably be 
determined to have been freely given or naturally shed by the 
individual from whose body they were obtained,

[[Page 13070]]

such as hair made into ropes or nets (see 43 CFR 10.2(d)(1)).
--Indian Tribe: ``An Indian tribe, band, nation, or other organized 
group or community, including a Native village, Regional Corporation or 
Village Corporation, as those terms are defined in Section 3 of the 
Alaska Native Claims Settlement Act (43 U.S.C. 1602), which is 
recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians'' 
(36 CFR 800.16(m)).
--NAGPRA: The Native American Graves Protection and Repatriation Act 
(25 U.S.C. 3001 et seq.)
--Native Hawai'ian: Any individual who is a descendant of the 
aboriginal people who, prior to 1778, occupied and exercised 
sovereignty in the area that now constitutes the State of Hawai'i (36 
CFR 800.16(s)(2)).
--Native Hawaiian Organization: Any organization which serves and 
represents the interests of Native Hawaiians; has as a primary and 
stated purpose the provision of services to Native Hawaiians; and has 
demonstrated expertise in aspects of historic preservation that are 
significant to Native Hawaiians (36 CFR 800.16(s)).
--Policy statement: A formal statement, endorsed by the full ACHP 
membership, representing the membership's collective thinking about 
what to consider in reaching decisions about select issues, in this 
case, human remains and funerary objects encountered in undertakings on 
Federal, tribal, state, or private lands. Such statments do not have 
the binding force of law.
--Preservation in place: Taking active steps to ensure the preservation 
of a property.
--Treatment: Under Section 106, ``treatments'' are measures developed 
and implemented through Section 106 agreement documents to avoid, 
minimize, or mitigate adverse effects to historic properties.

III. Text of the Draft Policy

    The following is the text of the draft policy:

Policy Statement Regarding Treatment of Burial Sites, Human Remains and 
Funerary Objects

    Preamble: When burial sites, human remains, or funerary objects, 
will be or are likely to be encountered in a project subject to review 
under Section 106 of the National Historic Preservation Act (Section 
106), parties consulting under Section 106 should adhere to the 
following principles. The treatment and disposition of burial sites, 
human remains, and funerary objects are a human rights concern to many 
individuals, tribes, and descendant communities. Accordingly, while 
frequently the remains encountered in Section 106 review are of 
significance to Indian tribes and Native Hawai'ian organizations, this 
policy applies to the treatment of all burial sites, human remains, and 
funerary objects in the context of compliance with Section 106. This 
policy is mindful of the values reflected in the guarantee of a burial 
for every person as expressed in the laws of every State. This policy 
does not modify, add or detract from the requirements of applicable 
Federal, tribal, State or local law, such as the Native American Graves 
Protection and Repatriation Act (NAGPRA).
    Principle 1: Burial sites, human remains and funerary objects 
should not be knowingly disturbed unless absolutely necessary, and only 
after the Federal agency has fully considered avoidance and/or 
preservation in place.
    Principle 2: Participants in the Section 106 process shall treat 
all burial sites, human remains and funerary objects with dignity and 
respect, which is determined through meaningful consultation.
    Principle 3: Federal agencies are responsible for early and 
meaningful consultation throughout the Section 106 process.
    Principle 4: The policy recognizes that Native Americans are 
descendants of aboriginal occupants of this country. Federal agencies 
shall consult with Indian tribes and Native Hawaiian organizations that 
attach religious and cultural significance to burial sites, human 
remains, and associated funerary objects, and be cognizant of their 
expertise in, and religious and cultural connection to them. Federally 
recognized tribes are sovereign nations and Federal agencies shall 
conduct consultation with Indian tribes on a government-to-government 
basis, as required by law.
    Principle 5: When human remains or funerary objects must be 
disinterred, they should be removed carefully, respectfully and in a 
manner developed in consultation.
    Principle 6: The Federal agency official is responsible for making 
decisions regarding avoidance or treatment of burial sites, human 
remains and funerary objects based on consultation and appropriate 
documentation. In reaching a decision, the Federal agency official must 
comply with applicable Federal, tribal, State, or local law.
    Principle 7: Federal agencies shall, after meaningful consultation, 
develop plans for the treatment of burial sites, human remains and 
funerary objects that may be discovered.
    Principle 8: In cases where the disposition of human remains and 
funerary objects is not legally prescribed, Federal agencies should 
proceed following a hierarchy that acknowledges the rights of lineal 
descendants, Indian tribes, Native Hawai'ian Organizations and other 
descendant communities. (End of text of the draft policy)

    Authority: 16 U.S.C. 470j.


    Dated: March 8, 2006.
John M. Fowler,
Executive Director.
[FR Doc. 06-2390 Filed 3-13-06; 8:45 am]
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