WSP08917 - Laserfiche WebLink

Home Browse Search

00541 REVISED DRAFT (#10) - August II. 2004 Clean Version agency cannot deny), g800.3(f)(2); each Tribe may be an invited signatory to an MOA, with the same rights as the required signatories, but the decision whether to invite such a Tribe is up to the Federal agency official, g800,6(c)(2). The language in protocol (b-4) and corresponding language in (b-5) call for the THPO and SHPO to have essentially the same role in the process for lands for which the reservation status is subject to dispute. · This is a point at which it might be more expeditious to rely on NPS to provide notice to the tribes rather than have the leader of the group making the discovery be responsible for determine where the discovery is with respect to disputed boundary lines. If the discovery is, in fact, within the boundaries of a Reservation, the tribe on whose reservation the site is located is not obligated to provide notice to other tribes. Rather. NAGPRA provides that, for human remains and cultural items found on "tribal lands." the tribe has rights of ownership or control (unless, with respect to human remains and associated funerary objects, there are known lineal descendants). 25 V.S.C. g3002(a)(2)(A). Since the tribe on whose tribal lands the discovery is made has the right to take custody, such a tribe also has the discretion to transfer custody to a different tribe in the event that the latter tribe is culturally affiliated with the items and the tribe within whose reservation the discovery was made is not culturally affiliated, This is entirely within the discretion of the tribe on whose tribal lands the discovery was made. and the tribe is under no legal obligation to give notice to any tribe(s) that may be culturally affiliated. Under the previous version of this protocol, NPS would have assumed the burden of providing notice to potentially culturally affiliated tribes. If the discovery is undisputedly within a reservation. a tribe with a claim of cultural affiliation can ask the tribe on whose reservation the discovery is made can exercise discretion and allow the tribe making the claim to take custody. In the event that human remains are discovered in a place with respect to which there is a disagreement on whether it is reservation land or NPS land, a tribe with a claim of cultural affiliation (i,e., other than the tribe whose reservation boundary is at issue) may have a legal right to take custody if the land is determined to be federal land. (Whether such a claim amounts to a legal right would. of course, depend on NPS determining that such a tribe's claim of cultural affiliation is stronger than any other tribe's claim.) In such a case, the tribes may be able to resolve the disposition of the items covered by NAGPRA without resolving the underlying issue of the reservation boundary. or they may determine that the boundary issue must be resolved before the NAGPRA issue can be resolved. This protocol acknowledges the possibility of such a case arising and ensures notice to tribes with a stake in the outcome. It does not attempt to resolve the underlying boundary issue. 'This language is adapted from the regulations. 43 C.F.R. gIO.4(c). In meetings of tribal representatives, there has been some discussion of the possibility of providing some guidance on what steps would be considered "a reasonable effort" to protect the discovered items, but at this point no such guidance is provided, 6 The NAGPRA regulations require a determination of cultural affiliation as part of the plan of action that concludes consultation. 10.4(c)(2) (intentional excavations); 10.5(e)(2) (inadvertent discoveries). NAGPRA requires that consultation with tribes take place prior to excavation of human remains and/or cultural items on federal lands. 25 U.S.C. g3002(c)(2). a requirement incorporated into the regulations at 43 C.F.R. 9 1O.3(b)( 4). (This requirement applies whether the excavation/removal begins as an intentional project or an inadvertent discovery, because, in the 35