EXECUTIVE COMMUNICATIONS

This office is responding to your letter of July 13, 1990 requesting the views of the Army Corps of Engineers on H.R. 1381, 101st Congress the "Native American Burial Site Preservation Act of 1989", H.R. 1646, 101st Congress, the "Native American Grave and Burial Protection Act", and H.R. 5237, 101st Congress, the "Native American Grave Protection and Repatriation Act". The purposes of the bills are to protect Native American burial sites on Federal lands from excavation and vandalism; to prevent the interstate sale of Native American remains; and, in the case of H.R. 1646 and H.R. 5237, to provide a mechanism by which cultural resources can be returned to their native tribe.

The Department of the Army shares your concern for the protection of Native American burial sites; however, these three bills, in our view, are problematic for a number of reasons. First, many of the provisions in the bills overlap with the provisions of the Archaeological Resources Protection Act (ARPA), which already has a framework in place for the protection of Indian cultural resources. In the ARPA, the term "archaeological resource" would encompass Native American burial sites, as the term means "any material remains of past human life or activities which are of archaeological interest. . . .". 16 U.S.C. 470bb. This Act authorizes Federal land management agencies to provide permits to persons for the purpose of excavating or removing archaeological resources on public lands. The Act provides that if a permit issued could result in harm to or destruction of any religious or cultural site, the Federal land manager must notify any Indian tribe which may consider the site as having religious or cultural importance. 16 U.S.C. 470cc(b), (c). To avoid duplication of existing law and confusion to program managers, additional protection to Native American burial sites should be framed as amendments to the ARPA.

In addition, we are concerned that some of the provisions in the bills are untenable and conflict with the ARPA. For instance, H.R. 1381 would prohibit the excavation of Native American burial sites, except as permitted by States under State law. This provision conflicts with section 4 of the ARPA, which provides for Federal permits for excavation of archaeological resources. We believe that jurisdiction for permits to excavate or remove Indian remains properly rests with the Federal Government. The Federal government has a fiduciary obligation to ensure that in the execution of laws that protect Indian property, full effect is given to that purpose. Moreover, there is an established rule of construction of the law that Congress' actions towards Indians are to be interpreted in light of the special relationship and special responsibilities of the Government towards the Indians. In our view, to transfer permitting authority to States would usurp the Federal Government's duty to ensure that the law be carried out for the benefit of Indians. Moreover, this provision raises jurisdictional questions as to whether a State can issue permits for activities on Federal property.

H.R. 1626 and H.R. 5237 also contain provisions that would prohibit excavation of Native American remains without notice to and consent of the affiliated Indian tribe or organization. From our perspective, these provisions create an impossible burden for Federal land managers. Whenever possible, the Army Corps of Engineers consults with cultural descendents when human remains and associated items are identified, and we enter into agreements with descendent tribes when sites are likely to contain human remains. Nevertheless, there are circumstances when cultural descendants may not be present or identifiable. By requiring consent from an affiliated tribe before any excavation could take place, these provisions could virtually stop the progress of any Corps project. Essentially, we oppose the overly strict requirements in these two bills, and would favor a balanced approach that would allow for a reasonable effort on the part of Federal land managers to consult with cultural descendents before an area was excavated.

Finally, you requested that the Corps include the current number of Native American skeletal remains and funerary objects in its possession or control and the policy regarding those items. At the present time, the Corps does not have an accurate number of those items for you. However, the Corps is currently revising its regulations on curation and collections management that would require all Corps offices to conduct inventories of curated cultural and human remains. When the regulation is further developed, the Corps will be able to proceed on a project by project basis to conduct the necessary inventories.

Return to the NAGRPA menu