**MINUTES**

**NATIVE AMERICAN GRAVES PROTECTION AND**

**REPATRIATION REVIEW COMMITTEE**

**THIRTY-SEVENTH MEETING**

**MAY 15-16, 2008**

TABLE OF CONTENTS

The 37th Meeting of the Review Committee
[5](#the-37th-meeting-of-the-review-committee)

Introduction/Welcome [6](#introductionwelcome)

Review of Agenda [7](#review-of-agenda)

Request for a Recommendation Regarding the Disposition of Culturally
Unidentifiable Human Remains in the Possession of Kingman Museum, MI
[7](#request-for-a-recommendation-regarding-the-disposition-of-culturally-unidentifiable-human-remains-in-the-possession-of-kingman-museum-mi)

Presentation of Issue [7](#presentation-of-issue)

Review Committee Discussion [7](#review-committee-discussion)

Review Committee Motion [7](#review-committee-motion)

Request for a Recommendation Regarding the Disposition of Culturally
Unidentifiable Human Remains in the Possession of Mackinac State
Historic Park, MI
[8](#request-for-a-recommendation-regarding-the-disposition-of-culturally-unidentifiable-human-remains-in-the-possession-of-mackinac-state-historic-park-mi)

Presentation of Issue [8](#presentation-of-issue-1)

Review Committee Discussion [9](#review-committee-discussion-1)

Review Committee Motion [9](#review-committee-motion-1)

Request for a Recommendation Regarding the Disposition of Culturally
Unidentifiable Human Remains in the Possession of Muskegon County
Museum, MI
[10](#request-for-a-recommendation-regarding-the-disposition-of-culturally-unidentifiable-human-remains-in-the-possession-of-muskegon-county-museum-mi)

Presentation of Issue [10](#presentation-of-issue-2)

Review Committee Discussion [10](#review-committee-discussion-2)

Review Committee Motion [11](#review-committee-motion-2)

Request for a Recommendation Regarding the Disposition of Culturally
Unidentifiable Human Remains in the Possession of Hasting Museum, NE
[11](#request-for-a-recommendation-regarding-the-disposition-of-culturally-unidentifiable-human-remains-in-the-possession-of-hasting-museum-ne)

Presentation of Issue [11](#presentation-of-issue-3)

Review Committee Discussion [12](#review-committee-discussion-3)

Review Committee Motion [12](#review-committee-motion-3)

Request for a Recommendation Regarding the Disposition of Culturally
Unidentifiable Human Remains in the Possession of Daniel Boone National
Forest, KY
[12](#request-for-a-recommendation-regarding-the-disposition-of-culturally-unidentifiable-human-remains-in-the-possession-of-daniel-boone-national-forest-ky)

Presentation of Issue [12](#presentation-of-issue-4)

Review Committee Discussion [13](#review-committee-discussion-4)

Review Committee Motion [14](#review-committee-motion-4)

Request for a Recommendation Regarding the Disposition of Culturally
Unidentifiable Human Remains in the Possession of the State of Tennessee
[14](#request-for-a-recommendation-regarding-the-disposition-of-culturally-unidentifiable-human-remains-in-the-possession-of-the-state-of-tennessee)

Presentation of Issue [14](#presentation-of-issue-5)

Review Committee Discussion [14](#review-committee-discussion-5)

Review Committee Motion [15](#review-committee-motion-5)

Request for a Recommendation Regarding the Disposition of Culturally
Unidentifiable Human Remains in the Possession of Pioneer Historical
Society, CO
[15](#request-for-a-recommendation-regarding-the-disposition-of-culturally-unidentifiable-human-remains-in-the-possession-of-pioneer-historical-society-co)

Presentation of Issue [15](#presentation-of-issue-6)

Review Committee Discussion [16](#review-committee-discussion-6)

Review Committee Recommendation [17](#review-committee-recommendation)

Request for a Recommendation Regarding the Disposition of Culturally
Unidentifiable Human Remains in the Possession of Putnam Historical
Society, CO
[17](#request-for-a-recommendation-regarding-the-disposition-of-culturally-unidentifiable-human-remains-in-the-possession-of-putnam-historical-society-co)

Presentation of Issue [17](#presentation-of-issue-7)

Review Committee Discussion [18](#review-committee-discussion-7)

Review Committee Motion [19](#review-committee-motion-6)

Request for a Recommendation Regarding the Prospective Disposition of
Culturally Unidentifiable Human Remains in the Possession of State of
New Mexico
[19](#request-for-a-recommendation-regarding-the-prospective-disposition-of-culturally-unidentifiable-human-remains-in-the-possession-of-state-of-new-mexico)

Presentation of Issue [19](#presentation-of-issue-8)

Review Committee Discussion [20](#review-committee-discussion-8)

Review Committee Motion [20](#review-committee-motion-7)

Request for a Recommendation Regarding the Prospective Disposition of
Culturally Unidentifiable Human Remains in the Possession of Colorado
Historical Society
[21](#request-for-a-recommendation-regarding-the-prospective-disposition-of-culturally-unidentifiable-human-remains-in-the-possession-of-colorado-historical-society)

Presentation of Issue [21](#presentation-of-issue-9)

Review Committee Discussion [22](#review-committee-discussion-9)

Review Committee Motion [23](#review-committee-motion-8)

Report on the Implementation of NAGPRA for the First Half of FY2008
[23](#report-on-the-implementation-of-nagpra-for-the-first-half-of-fy2008)

Grants [23](#grants)

Civil Penalties [24](#civil-penalties)

Website/Database [25](#websitedatabase)

Notices [25](#notices)

Regulations for 43 CFR 10.11 [26](#regulations-for-43-cfr-10.11)

Review Committee Motion [26](#review-committee-motion-9)

Presentation of Makah Indian Tribe/NATHPO Report on Federal Agency
Implementation of NAGPRA
[27](#presentation-of-makah-indian-tribenathpo-report-on-federal-agency-implementation-of-nagpra)

Report on the Implementation of NAGPRA for the First Half of FY2008 --
Continued
[29](#report-on-the-implementation-of-nagpra-for-the-first-half-of-fy2008-continued)

Grants - Review Committee Discussion
[29](#grants---review-committee-discussion)

Notices -- Review Committee Discussion
[30](#notices-review-committee-discussion)

Recommendations Regarding Disposition of Unclaimed Cultural Items (43
CFR 10.7)
[30](#recommendations-regarding-disposition-of-unclaimed-cultural-items-43-cfr-10.7)

NAGPRA in the Parks [32](#nagpra-in-the-parks)

Review Committee's Report to Congress for 2007
[33](#review-committees-report-to-congress-for-2007)

Discussion of Draft Report to Congress for 2007
[33](#discussion-of-draft-report-to-congress-for-2007)

Review Committee Motion [33](#review-committee-motion-10)

Administrivia [34](#administrivia)

Upcoming Meetings [34](#upcoming-meetings)

Review and Findings Procedures [34](#review-and-findings-procedures)

Subcommittee Budget [34](#subcommittee-budget)

Teleconference Format [35](#teleconference-format)

Public Comment [35](#public-comment)

Ms. Patricia Capone [35](#ms.-patricia-capone)

Ms. Francis Kraus [35](#ms.-francis-kraus)

Mr. William Quackenbush/Mr. Reno Franklin
[36](#mr.-william-quackenbushmr.-reno-franklin)

Ms. Sandra Harris/Mr. Anthony Garcia
[36](#ms.-sandra-harrismr.-anthony-garcia)

Ms. Lori Breslauer [37](#ms.-lori-breslauer)

Ms. Kelly Jackson-Golly [38](#ms.-kelly-jackson-golly)

Ms. Jan Bernstein [38](#ms.-jan-bernstein)

Closing Comments [38](#closing-comments)

Meeting Adjournment [39](#meeting-adjournment)

Background

The Native American Graves Protection and Repatriation Review Committee
was established under the Native American Graves Protection and
Repatriation Act (NAGPRA), 25 U.S.C. 3001 et seq., which was signed into
law by President George Bush on November 16, 1990.

Pursuant to 25 U.S.C. 3006 (c) and (h), the Review Committee is
responsible for --

1\. Designating one of the members of the committee as chairman;

2\. Monitoring the inventory and identification process conducted under
sections 5 and 6 to ensure a fair, objective consideration and
assessment of all available relevant information and evidence;

3\. Upon the request of any affected party, reviewing and making
findings related to-\
A. The identity or cultural affiliation of cultural items, or\
B. The return of such items;

4\. Facilitating the resolution of any disputes among Indian tribes,
Native Hawaiian organizations, or lineal descendants and Federal
agencies or museums relating to the return of such items including
convening the parties to the dispute if deemed desirable;

5\. Compiling an inventory of culturally unidentifiable human remains
that are in the possession or control of each Federal agency and museum
and recommending specific actions for developing a process for
disposition of such remains;

6\. Consulting with Indian tribes and Native Hawaiian organizations and
museums on matters within the scope of the work of the committee
affecting such tribes or organizations;

7\. Consulting with the Secretary in the development of regulations to
carry out this Act;

8\. Performing such other related functions as the Secretary -may assign
to the committee;

9\. Making recommendations, if appropriate, regarding future care of
cultural items which are to be repatriated; and

10\. Submitting an annual report to the Congress on the progress made,
and any barriers encountered, in implementing this section during the
previous year.

The Review Committee is organized and administered according to the
Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix (1994).

Review Committee members are appointed by the Secretary of the Interior
from nominations by Indian tribes, Native Hawaiian organizations,
traditional Native American religious leaders, national museum
organizations, and scientific organizations.

The Review Committee reports to the Secretary of the Interior. Under the
Review Committee's charter, the Manager, National NAGPRA Program,
National Park Service (NPS) or a designee serves as the Designated
Federal Officer (DFO), who oversees the activities of the Review
Committee and with whom the National Park Service provides
administrative and staff support to the Review Committee on behalf of
the Secretary of the Interior.

Additional information about the Review Committee -- including the
Review Committee's charter, membership, meeting protocol, and dispute
procedures -- is available at the National NAGPRA Website,
http://www.cr.nps.gov/nagpra/ (click on "Review Committee").

Notice of this Review Committee meeting was published in the Federal
Register on February 13, 2008 (Vol. 73, No. 30, page 8360-8361).

# The 37th Meeting of the Review Committee

The 37th meeting of the Native American Graves Protection and
Repatriation Review Committee was called to order by Ms. Rosita Worl at
8:43 a.m., Thursday, May 15, 2008.

Review Committee members --

Ms. Rosita Worl -- Chair

Ms. Donna Augustine

Mr. Alan Goodman

Mr. Willie Jones

Mr. Colin Kippen

Mr. Dan Monroe

Mr. Vincas Steponaitis

Designated Federal Officer --

Mr. Timothy McKeown, Program Officer, National NAGPRA Program

National Park Service/Department of the Interior staff in attendance --

Ms. Sherry Hutt, Program Manager, National NAGPRA Program, National Park
Service

Ms. Sangita Chari, Grants Coordinator, National NAGPRA Program, National
Park Service

Ms. Lesa Koscielski, Contractor, National NAGPRA Program, National Park
Service

Ms. Carla Mattix, Division of Parks and Wildlife, Office of the
Solicitor

Mr. Stephen Simpson, Division of Indian Affairs, Office of the Solicitor

Persons in attendance during part or all of the meeting (names and
affiliations as provided by attendees).

Ms. Bridget Ambler, Colorado Historical Society, Denver, CO

Mr. Gordon Ambrosino, Field Museum, Chicago, IL

Mr. Shane Anton, Salt River Pima-Maricopa Indian Community, Scottsdale,
AZ

Ms. Marie Archambeault, Texas Military Forces, Austin, TX

Mr. James Barnes, US Army Corps of Engineers, St. Louis, MO

Ms. Danielle Benden, University of Wisconsin, Madison, WI

Ms. Jan Bernstein, Bernstein & Associates, Pioneer Historical Society of
Bent County, Denver, CO

Mr. Ernie Boszhardt, Mississippi Valley Archaeology Center, La Crosse,
WI

Ms. Lori Breslauer, Field Museum, Chicago, IL

Ms. Susan Bruning, Society for American Archaeology, Southlake, TX

Ms. Christina Carron, Public Museum, Grand Rapids, MI

Ms. Patricia Capone, Peabody Museum of Archaeology and Ethnology,
Harvard University, Cambridge, MA

Mr. Samuel Cata, New Mexico Historic Preservation Department, Santa Fe,
NM

Ms. Glenna Dean, Historic Preservation Division, Department of Cultural
Affairs, Santa Fe, NM

Ms. Sandra Dong, Peabody Museum of Archaeology and Ethnology, Cambridge,
MA

Ms. Stacey O. Espenlaub, University of Pennsylvania, Museum of
Archaeology and Anthropology, Philadelphia, PA

Ms. Cara Fama, National Museum of the American Indian, Suitland, MD

Ms. Kathryn Finau, Pioneer Historical Society of Bent County, Las
Animas, CO

Ms. Heidi Fuller, Fort Hood Cultural Resources, Fort Hood, TX

Mr. Anthony Garcia, Hearst Museum of Anthropology, Berkeley, CA

Ms. Angela Garcia-Lewis, Salt River Pima-Maricopa Indian Community,
Scottsdale, AZ

Ms. Sheila Goff, Colorado Historical Society, Denver, CO

Ms. Victoria Graves, Osage Tribe, Tulsa, OK

Mr. William Green, Logan Museum of Anthropology, Beloit College, Beloit,
WI

Ms. Erin Gredell, Wisconsin Historical Society, Madison, WI

Ms. Samantha Greendeer, Whyte, Hirschboeck, Dudek, SC, Madison, WI

Mr. David Grignon, Tribal Historic Preservation Office, Menominee Tribe,
Keshena, WI

Ms. Sandra Harris, Hearst Museum of Anthropology, Berkeley, CA

Mr. Joseph Haynes, Putnam County Commission, Winfield, WV

Ms. Roberta Hayworth, US Army Corps of Engineers, St. Louis District,
St. Louis, MO

Mr. Eric Hemenway, Little Traverse Bay Bands of Odawa Indians, Harbor
Springs, MI

Mr. R. Eric Hollinger, Smithsonian Institution, National Museum of
Natural History, Washington, DC

Mr. Ernest House, Colorado Commission of Indian Affairs, Denver, CO

Ms. Kelly Jackson-Golly, Tribal Historic Preservation Office, Lac du
Flambeau Band of Lake Superior Indians, Lac du Flambeau, WI

Mr. Jordan Jacobs, American Museum of Natural History, New York, NY

Mr. Brian Jaeschke, Mackinac State Historic Parks, Mackinaw City, MI

Mr. Chris Jenkins, US Forest Service, Winchester, KY

Mr. Joseph T. Joaquin, Tohono O'odham Nation, Sells, AZ

Mr. Greg Johnson, University of Colorado, Boulder, CO

Mr. Terry Knight, Ute Mountain Ute Tribe, Towaoc, CO

Ms. Jennifer Kolb, Wisconsin Historical Society and Museum, Madison, WI

Ms. D. Bambi Kraus, National Association of Tribal Historic Preservation
Officers, Washington, DC

Ms. Francis Kraus, Tlingit, Kake, AK

Ms. Teresa Kreutzer-Hodson, Hastings Museum of Natural and Cultural
History, Hastings, NE

Ms. Cyd Martin, National Park Service, Flagstaff, AZ

Mr. Bob Mascowski, Council for West Virginia Archaeology, Milton, WV

Mr. James Mayotte, Bad River Band of Chippewa Indians, Odanah, WI

Mr. Patrick Mayotte, Bad River Band of Chippewa Indians, Ashland, WI

Mr. John McCleary, Muskegon County Museum, Muskegon, MI

Mr. John McGarry, III, Muskegon County Museum, Muskegon, MI

Ms. Nicolette Meister, Logan Museum of Anthropology, Beloit College,
Beloit, IL

Ms. Marilyn Merdzinski, Public Museum, Grand Rapids, MI

Mr. Richard Monette, Madison, WI

Mr. Michael Moore, Tennessee Division of Archaeology, Nashville, TN

Ms. Nell Murphy, American Museum of Natural History, New York, NY

Ms. Carmen Narcu, Ak-Chin Community, Maricopa, AZ

Ms. Angela Neller, Wanapum Heritage Center, Ellensburg, WA

Ms. Katie Nelson, Kingman Museum, Battle Creek, MI

Mr. Cecil Pavlat, Sault Ste. Marie Tribe of Chippewa, Sault Ste. Marie,
MI

Mr. Kirk Perry, The Chickasaw Nation, Ada, OK

Ms. Cheryl Podsiki, Field Museum, Chicago, IL

Mr. William Quackenbush, Ho-Chunk Nation, Black River Falls, WI

Ms. Gail Ravnitzky Silberglied, American Association of Museums,
Washington, DC

Ms. Helen Robbins, Field Museum, Chicago, IL

Ms. Alice M. Sahmie, Tohono O'odham Nation, Sells, AZ

Ms. Lauren Sieg, Washington, DC

Mr. Chuck Smythe, National Park Service, Northeast Region, Boston, MA

Ms. Lisa Stopp, United Keetoowah Band of Cherokee, Tahlequah, OK

Ms. Sarah Thompson, Lac du Flambeau Tribal Historic Preservation
Officer, Lac du Flambeau, WI

Ms. Fran Wallis, attorney, Tennessee Division of Archaeologist,
Nashville, TN

Mr. Gary Walton, Putnam County Development Authority, Winfield, WV

Ms. Jennifer White, Spurlock Museum, Urbana, IL

Mr. Michael Whitecloud, Cheyenne/Arapaho Tribes, Concho, OK

Mr. Richard Williams, Cheyenne/Arapaho Tribe, Concho, OK

Mr. Frank Wozniak, USDA Forest Service, Albuquerque, NM

Mr. Fred York, National Park Service, Pacific West Region, Seattle, WA

# Introduction/Welcome

Ms. Worl called the meeting to order and thanked the Indian tribes of
Wisconsin for their invitation and warm welcome. Mr. McKeown called the
roll of members and confirmed that the Review Committee had quorum for
the meeting. Mr. Jones offered an invocation the first day of the
meeting. Mr. McKeown introduced the National NAGPRA Program staff
members present at the meeting. Ms. Augustine offered an invocation the
second day of the meeting.

Ms. Worl thanked the Oneida Nation of Wisconsin for providing morning
refreshments. Ms. Worl thanked the sponsors of the evening reception:
Lac du Flambeau Band of Lake Superior Chippewa Indians; Oneida Nation of
Wisconsin; Ho-Chunk Nation; Michigan Anishinabek Cultural Protection and
Repatriation Alliance (MACPRA); Forest County Potawatomi; Lac Vieux
Desert Band of Lake Superior Chippewa Indians; Sokaogon Chippewa
Community of Wisconsin; Wisconsin Historical Society; Beloit College,
Logan Museum of Anthropology; Red Cliff Band of Lake Superior Chippewa
Indians; and Menominee Nation of Wisconsin.

# Review of Agenda

Ms. Worl gave a brief review of the meeting agenda.

# Request for a Recommendation Regarding the Disposition of Culturally Unidentifiable Human Remains in the Possession of Kingman Museum, MI

## Presentation of Issue

[Ms. Katie Nelson]{.underline}, Kingman Museum, Inc., Battle Creek, MI,
stated that the Kingman Museum, Inc., along with the Little Traverse Bay
Bands of Odawa Indians, the Saginaw Chippewa Indian Tribe, the Little
River Band of Ottawa Indians, and the Grand Traverse Band of Ottawa and
Chippewa Indians request a recommendation from the Review Committee for
the disposition of human remains in the possession of the Kingman
Museum, Inc. In 1918, the human remains of four individuals were
recovered from a sand mound near Muskegon, MI. Prior to 1997, the human
remains were donated to the Battle Creek Public Schools. In 2006, Battle
Creek Public Schools transferred the human remains to the newly formed
Kingman Museum, Inc., which were then examined in 2007 by Dr. Janet
Gardner and Dr. Robert Anemone, Department of Anthropology, Western
Michigan University. Dr. Gardner and Dr. Anemone concluded that the
physical characteristics of the human remains and the details of the
burial context were indicative of a Native American population, but
could not reasonably determine a relationship of shared group identity
between the human remains and a present-day Indian tribe. Based on the
context, Kingman Museum believes that the human remains were buried
during the Early Woodland or Middle Woodland periods, approximately 1000
B.C. to 300 B.C., with a high possibility that the human remains were
Anishnaabek due to the fact that the human remains were found in a
burial mound with no European trade goods. The Anishnaabek, comprised of
the Odawa, Ottawa, Ojibwe, Chippewa, and Potawatomi, have called the
area of Muskegon, MI home since long before European encroachment in the
early 17th Century.

[Mr. Eric Hemenway]{.underline}, research and repatriation assistant for
the Little Traverse Bay Bands of Odawa Indians, thanked the Review
Committee for hearing the disposition and the National NAGPRA Program
for providing guidance and information. Mr. Hemenway stated that both
the Odawa, commonly referred to as Ottawa, and Ojibwe, commonly referred
to as Chippewa, were part of the Anishnaabek, which is the traditional
term used for the aboriginal peoples of the Great Lakes Region. The
Little Traverse Bay Bands of Odawa Indians, the Saginaw Chippewa Indian
Tribe, the Little River Band of Ottawa Indians, and the Grand Traverse
Band of Ottawa and Chippewa Indians, along with the Kingman Museum,
respectfully request a recommendation for the disposition of one set of
Native American human remains, accession number HSR #10, in the
possession of Kingman Museum. The Kingman Museum made the determination
these human remains were of Native origin based on notes associated with
the human remains and analysis performed by the staff of the
Anthropology Department of Western Michigan University in 2007.
Anishnaabek oral traditions include the Muskegon area in their
aboriginal homeland, and this oral history was supported through
archaeological evidence and documented history.

## Review Committee Discussion

Mr. Steponaitis asked for clarification of which accession numbers were
being requested. Ms. Nelson stated that the request was for HSR #10.

## Review Committee Motion

Mr. Monroe made a motion for the disposition of culturally
unidentifiable human remains in the possession of Kingman Museum, MI, to
the Little Traverse Bay Bands of Odawa Indians, the Grand Traverse Band
of Ottawa and Chippewa Indians, the Saginaw Indian Chippewa Tribe, and
the Little River Band of Ottawa Indians. Mr. Kippen seconded the motion.
The motion was adopted unanimously.

# Request for a Recommendation Regarding the Disposition of Culturally Unidentifiable Human Remains in the Possession of Mackinac State Historic Park, MI

## Presentation of Issue

[Mr. Brian Jaeschke]{.underline}, registrar for Mackinac State Historic
Parks, stated that Mackinac State Historic Parks is a system of parks
and museums at the Straits of Mackinac in northern Michigan. The
organization is operated by the Mackinac Island State Park Commission
and is an agency of the State of Michigan. Mackinac Island State Park
Commission requests a recommendation regarding the disposition of
culturally unidentifiable human remains in their possession to the
Little Traverse Bay Bands of Odawa Indians, the Sault Ste. Marie Tribe
of Chippewa Indians, and the Bay Mills Indian Community. Mr. Jaeschke
described the collections in the request.

The first three collections were from the Mackinaw City area at the
south side of the Straits of Mackinac in the Lower Peninsula of
Michigan. One individual was recovered as part of excavations conducted
by the Mackinac Island State Park Commission within the Fort
Michilimackinac palisade in 1966, in a residential section with no
connection to known European burials. The individual was dated to the
Early/Late Woodland period of 700 to 900 A.D. and was determined to be
Native American by staff archaeologist Lyle Stone. One individual was
recovered in 1973 as part of excavations conducted by the Mackinac
Island State Park Commission outside the Fort Michilimackinac palisade
along the shoreline of Lake Michigan. The burial was recorded as a
bundle burial and contained affiliated funeral objects that would not
typically be found with a European burial. The human remains were
determined to be Native American by archaeologist [W. L. Minorly
(phonetic)]{.underline}. Two individuals were recovered by a private
construction company at the Jamet Street School, located a short
distance from the shoreline of Lake Huron, and were given to the
Mackinac State Historic Parks at an undetermined date. The burials do
not correspond with any known European cemeteries.

The last three collections were from locations on Mackinac Island,
located in Lake Huron and the Straits of Mackinac. Over 80 percent of
Mackinac Island is part of Mackinac Island State Parks. One individual
was recovered on park leased land currently occupied by the Island House
Hotel, on October 27, 1994 by contract archaeologist Richard Klug
(phonetic). The Island House Hotel is located on the shoreline of the
island, and the site does not correspond with any known European
burials. The individual was identified as a young adult female dating to
Precontact and was determined to be Native American by archaeologist
Richard Klug. Three adults and two juveniles were recovered in 1981 by
contract archaeologist Dr. Roger Grange after being located by a visitor
to the island who contacted park staff. Dr. Grange determined that the
site was a Precontact Native American rock shelter burial, located along
the east shore of the island, and identified the human remains as Native
American. The last collection consists of surface finds from private
property on the island donated to the park by Ms. Katherine Curran, with
very little documentation about the human remains. The island has
Post-Contact cemeteries and it is unlikely the human remains were
associated with a European burial. In 1996 the park concluded that while
the human remains were Native American, a relationship of shared group
identity between the human remains and a present-day Indian tribe cannot
be reasonably determined.

Mr. Jaeschke stated that in 2007 the Little Traverse Band of Odawa
Indians, the Sault Tribe of Chippewa Indians, and the Bay Mills Indian
Community requested the disposition of the human remains. These three
tribes have historically occupied the Straits of Mackinac region.
Mackinac Island was originally aboriginal land, serving as a gathering
place, burial ground, and area of great spirituality. The land in
Mackinaw City was originally aboriginal land and later became trust land
when the military took over. The burial context, near shorelines and not
associated with European cemeteries, gives strong evidence that the
burials were of Native American origin.

[Mr. Eric Hemenway]{.underline}, repatriation and research specialist
for the Little Traverse Bay Bands of Odawa Indians, stated that the
Little Traverse Bay Bands of Odawa Indians, the Bay Mills Indian
Community, the Sault Ste. Marie Tribe of Chippewa Indians, along with
the Mackinac State Historic Parks, respectfully request a recommendation
from the Review Committee for disposition of Native American human
remains currently in the possession of Mackinac State Historic Parks.
Mackinac State Historic Parks made a determination that the human
remains were Native American due to fact that they were from an area
aboriginally occupied by the Odawa and Ojibwe, the antiquity of the
human remains, the manner in which the human remains were discovered,
and that no European trade goods were found with the human remains. The
shoreline of Lake Michigan is a very well-known area of burials for the
Anishnaabek, and these discoveries indicate pre-European contact
burials. Anishnaabek oral history includes the Straits of Mackinac or
Michilimackinac in their aboriginal homeland, which is supported by the
documented history of the first Europeans to the area in the early
1600s. Mr. Hemenway stated that evidence presented adequately shows a
preponderance of evidence that these human remains have a high
possibility of being Odawa and Ojibwe.

[Mr. Cecil Pavlat]{.underline}, NAGPRA Committee for the Sault Ste.
Marie Tribe of Chippewa Indians, commended Mr. Hemenway for his research
work in preparing the submitted information necessary for a request.
Mr. Pavlat stated this repatriation was very similar to the last time
his Indian tribe appeared before the Review Committee in October 2007 in
which the Review Committee granted the disposition request for human
remains discovered across the straits from Mackinaw City. Mr. Pavlat
stated he attended the NAGPRA training the previous day and was
impressed with the information that was presented. Mr. Pavlat stated he
was concerned by the term culturally unidentifiable and the reality that
some institutions may classify human remains as culturally
unidentifiable if they are unable to complete adequate research and
consultation necessary for affiliation. Mr. Pavlat suggested revising
the idea of culturally unidentifiable human remains with additional
consultation to try to shed more light on that definition. Ms. Worl
apologized for the use of the technical term culturally unidentifiable
and explained that regulations were in process to address the issue.

## Review Committee Discussion

Mr. Goodman asked about the geographic relationship between the
accessions and if a physical anthropologist was involved in any of the
work. Mr. Jaeschke stated that the accessions were discovered in a
radius of approximately seven miles and the work was done by
archaeologists. Mr. Steponaitis stated this request differed from the
previous request because there was no evidence provided that the
forensic work was done by someone trained in that area and that the
materials presented were a bit confusing. Mr. Steponaitis stated his big
concern was he was not convinced the human remains were Native American
based on his experience as an archaeologist in the eastern U.S.,
including the state of Michigan. European burials occurred all the time
outside of known cemeteries, and the simple fact that these human
remains were found outside of known European cemeteries was virtually no
evidence one way or the other. Mr. Steponaitis stated in past cases
evidence presented of forensic work was pretty persuasive that human
remains were Native American and thus covered by NAGPRA, and the
material presented in this case did not rise to that standard. Mr.
Steponaitis stated he would be comfortable voting in favor of some of
the human remains covered in the request but had serious concerns
regarding others. Mr. Jaeschke stated Fort Michilimackinac was a very
culturally diverse site with the possibility that the human remains were
not Native American, but Mackinac State Historic Park felt the evidence
was enough to show the human remains were at least probably Native
American.

Ms. Augustine stated that many of the human remains in the request were
Precontact and therefore Native American. The human remains that cannot
be proven to be Native American will remain on shelves and should all be
returned to the earth. Mr. Pavlat agreed, stating that it was possible
some of the human remains were both French and Native American, in which
case it was very appropriate that they be considered Native American and
reburied. Mr. Jones agreed stating his spiritual belief that human
remains with the possibility of being Native American should be
reburied. Mr. Steponaitis stated that while he understood the position
of Ms. Augustine and Mr. Jones, he felt bound as a member of the Review
Committee to follow the law and based on the materials presented there
was no evidence that some of the human remains were Native American. Mr.
Steponaitis stated it was important for the Review Committee to take
their work seriously and set a standard for the kinds of evidence
presented. Mr. Monroe stated that the issue of evidence and probability
actually slices both directions, which brings the question of what was
the probability that these human remains were not Native American.

## Review Committee Motion

Mr. Monroe made a motion to approve disposition of culturally
unidentifiable human remains in the possession of Mackinac State
Historic Parks to the Little Traverse Bay Bands of Odawa Indians, the
Sault Ste. Marie Tribe of Chippewa Indians, and the Bay Mills Indian
Community. Ms. Augustine seconded the motion.

Ms. Augustine stated she felt the evidence was sufficient to demonstrate
the human remains were Native American and would support the motion. Mr.
Kippen stated that the evidence presented in this request, for at least
two of the sets of human remains, was not as clear as that presented in
the previous request, and thus presents a much closer case, however he
would vote in favor of the request. Mr. Kippen stated that the Review
Committee tries to stay within the fence lines of the law, which was not
always easy, and he commended the parties for their work on this
request. Mr. Goodman stated he felt the preponderance of the evidence
suggested that the human remains were Native American and he would be
voting in favor of the request. Mr. Goodman stated that although
physical anthropological evidence was not necessary in every single case
it could be useful in cases with little cultural and archaeological
context.

The motion was adopted with six votes in favor of the motion with Mr.
Steponaitis abstaining from the vote.

# Request for a Recommendation Regarding the Disposition of Culturally Unidentifiable Human Remains in the Possession of Muskegon County Museum, MI

## Presentation of Issue

[Mr. John McGarry]{.underline}, executive director, Muskegon County
Museum, stated that Muskegon County Museum requests a recommendation
regarding the disposition of culturally unidentifiable human remains in
their possession to the Little Traverse Bay Bands of Odawa Indians, the
Grand Traverse Band of Ottawa and Chippewa Indians, the Saginaw Chippewa
Indian Tribes, and the Little River Band of Ottawa Indians. This request
has the full support of the Board of Trustees of the Muskegon County
Museum. The Muskegon County Museum is not a research facility and out of
respect for the human remains would never display them and would like to
repatriate the human remains. Muskegon County Museum was formed
following the 1937 celebration of the 100^th^ anniversary of the first
sawmill in the City of Muskegon. The first few years were spent actively
collecting material culture to preserve the history of the area. The
museum was a volunteer organization for approximately the first 45 years
and thus record keeping was nowhere near the professional standards kept
today.

For the collections referenced by accession numbers 697, 699, and 766,
Mr. McGarry stated that the records were not clear on acquisition and
provenance. The director of the museum at that time was Mr. George
Quimby. Mr. Quimby was part-time and mostly volunteer in his service to
the museum, and he would later go on to become a well-recognized
anthropologist. Mr. Quimby, while not taking detailed notes, would have
been able to identify the age and other information and did identify the
inventories as "Indian skeleton."

For the remainder of the collections in the request, Mr. McGarry stated
the human remains all came from mound burials in and around the Muskegon
area and many were excavations done by Mr. Quimby and other volunteers
active in archaeology, such as Mr. Richard Freye. Records describe
either flex burials or bundle burials, and many records have notations
of the presence of red ochre. Although the Muskegon County Museum cannot
ascertain a specific cultural identity with the Native American human
remains, Mr. McGarry stated a strong case can be made from the historic
record that the most likely cultural affinity of the human remains would
be with the Chippewa and Ottawa Tribes. Mr. McGarry thanked the Review
Committee for the opportunity to speak.

[Mr. Eric Hemenway]{.underline}, repatriation and research specialist
for the Little Traverse Bay Bands of Odawa Indians, stated that as with
the information presented in the earlier request from the Kingman
Museum, the Anishnaabek have the best documented history in the area.
The Little Traverse Bay Bands of Odawa Indians, the Grand Traverse Band
of Ottawa and Chippewa Indians, the Saginaw Chippewa Indian Tribes, and
the Little River Band of Ottawa Indians respectfully request the
disposition of culturally unidentifiable human remains in the possession
of the Muskegon County Museum.

## Review Committee Discussion

Mr. Kippen asked about the role of Ms. Pearly Broome, who was mentioned
in the information provided to the Review Committee. Mr. McGarry stated
that she was a consultant who worked on NAGPRA issues with the museum
and other institutions. Mr. Steponaitis asked about the pathologist
referenced in the information. Mr. McGarry stated in that letter he was
referring to Ms. Broome, whom he had mistakenly identified as a
pathologist. Mr. Steponaitis stated that with this request, as in
earlier cases, he was impressed with the very fine work submitted by Mr.
Hemenway, which was an important line of evidence. However NAGPRA
requires multiple lines of evidence, and the forensic evidence presented
in this case was weak at best. Mr. Steponaitis stated that sometimes
museum records and attributions were made in error, and especially in
cases of culturally unidentifiable human remains it was important to
make every effort to gather forensic and other kinds of information.

Mr. Goodman asked for clarification of which collections were being
requested, whether there was any known relationship between accession
numbers 699 and 766, and for an explanation of how some records read
"Indian skeleton." Mr. McGarry stated that the material specifically
being requested was located on the document titled "Inventory of
Culturally Unidentifiable Human Remains, Muskegon County Museum," and
that he had no information on the relationship, if any, between
accession numbers 699 and 766. Mr. McGarry stated that Mr. Quimby, the
director of the museum at the time, had the qualifications and
capability to identify Native American archaeological material culture
and that such determinations of "Indian skeleton" by Mr. Quimby were
fairly made.

Ms. Worl stated that she was persuaded by the evidence in this request.
Ms. Worl stated she was perplexed and frustrated that sometimes the
assertion was made that museum collections were infallible and at other
times they are questionable.

## Review Committee Motion

Mr. Goodman made a motion to approve disposition of culturally
unidentifiable human remains in the possession of Muskegon County Museum
to the Little Traverse Bay Bands of Odawa Indians, the Grand Traverse
Band of Ottawa and Chippewa Indians, the Saginaw Chippewa Indian Tribe,
and the Little River Band of Ottawa Indians. Mr. Monroe seconded the
motion. The motion was adopted with six votes in favor of the motion
with Mr. Steponaitis abstaining from the vote.

Mr. Jones pointed out for the record that all participating Indian
tribes submitted a letter in support of the request. Mr. Monroe stated
that Ms. Worl's frustration was understandable but suggested that they
need to consider situations on a case-by-case basis because there was
tremendous diversity in records due to the institutional history of
museums. Mr. Goodman stated that mistakes were made and therefore it is
important to interrogate the origins of the information. Mr. Monroe
stated he concurred with Mr. Steponaitis of the importance of doing
additional research where the opportunity exists to clarify information.
Mr. Steponaitis stated his abstention was due to the fact that he felt
he did not have enough information to make a decision, however he
believed in all likelihood that most of the human remains in the request
were Native and he was comfortable with the resolution. Ms. Mattix
stated that the legal requirements of the Review Committee's
recommendation would be carefully considered before the Secretary of
Interior issued a recommendation on this request.

# Request for a Recommendation Regarding the Disposition of Culturally Unidentifiable Human Remains in the Possession of Hasting Museum, NE

## Presentation of Issue

[Ms. Teresa Kreutzer-Hodson]{.underline} (appearing telephonically),
curator of the Hastings Museum, stated the Hastings Museum was a natural
and cultural museum with a fairly large collection of Native American
human remains and artifacts. The collections being requested for
disposition came from the area of Hart, MI. Accession number 12811
includes human remains of at least four people, collected from a grave
near Hart, MI. The records state the human remains were Native American
and were collected and purchased by the museum from Carl Strumf in 1934.
Accession number 12812 includes human remains for one individual
collected from a mound near Hart, MI. Records indicate the remains are
Native American and were collected by Mr. Carl Strumf and purchased by
the museum in 1934. There were no funerary objects associated with the
human remains in either accession number.

Ms. Kreutzer-Hodson stated that the Hastings Museum talked with forensic
anthropologists Peer Moore-Jansen of Wichita State University in
Wichita, Kansas, and Doug Owsley. Each looked at the human remains and
indicated that the cranial features were characteristic of Native
American traits and they would attribute the human remains to be Native
American. The documented occupation histories indicate the Odawa, Ottawa
and Chippewa have been the primary groups in the area of Hart, MI. The
Hastings Museum was making a joint request with the Little Traverse Band
of Odawa Indians, the Grand Traverse Band of Ottawa and Chippewa
Indians, the Little River Band of Odawa Indians, and the Saginaw
Chippewa Indian Tribe for disposition of culturally unidentifiable human
remains in the possession of the Hastings Museum jointly to the four
tribes.

[Mr. Eric Hemenway]{.underline}, repatriation and research specialist
for the Little Traverse Bay Bands of Odawa Indians, stated the Little
Traverse Bay Bands of Odawa Indians, the Saginaw Chippewa Indian Tribe,
the Little River Band of Odawa Indians, the Grand Traverse Band of
Ottawa and Chippewa Indians, and the Hastings Museum of Cultural and
Natural History respectfully request the Review Committee for a
recommendation for disposition of culturally unidentifiable Native
American human remains currently in the possession of the Hastings
Museum. The request included two sets of human remains totaling five
individuals from Hart, MI. Hart, MI, is approximately 50 miles north of
Muskegon, an area described in two earlier requests at the meeting. The
Hastings Museum determined that the human remains were Native American
based on forensic anthropological examination and analysis, the human
remains were recovered from a mound burial, and no European trade goods
were found with the human remains. In addition, the human remains were
collected and sold by the same individual, Mr. Carl Strumf, in 1934, at
a time in which Native American human remains were commonly dug up and
sold, but non-Native human remains were not usually treated in such a
manner. The oral traditions of the Anishnaabek include Hart, MI, in
their aboriginal homelands with a long history of occupation, and the
supporting information would be the same as that presented in the
earlier requests regarding the Muskegon area.

## Review Committee Discussion

Mr. Steponaitis stated that his concern, as with earlier cases, was the
level of documentation was not what the Review Committee has come to
expect in making these types of determinations. In its request packet,
the Hastings Museum did not include a list of the human remains under
consideration and asserted that the human remains were physically
consistent with American Indian traits but provided no evidence. During
the presentation, information was provided on forensic analysis, but
that information would have been very valuable to have been included
with the request packet up front. Mr. Steponaitis asked for further
clarification on the type of forensic study and the nature of the
findings. Ms. Kreutzer-Hodson stated both forensic anthropologists did
cranial measurements and based on the physical features, dental
characteristics, and visual observations determined that the human
remains had characteristics consistent with Native American traits. No
intrusive research was conducted on the human remains.

Mr. Kippen asked if the collections from both accession numbers were
from burial mounds. Ms. Kreutzer-Hodson stated that records indicated
accession 12812 was from a burial mound and accession 12811 was from a
grave, both from Hart, MI. Ms. Augustine pointed out sections of written
documentation that confirmed the information presented by Mr. Hemenway
regarding the history and customs of the Anishnaabek. Mr. Jones stated
he had also noted that information.

## Review Committee Motion

Mr. Goodman made a motion to approve disposition of culturally
unidentifiable human remains in the possession of Hastings Museum to the
Little Traverse Bay Bands of Odawa Indians, the Grand Traverse Band of
Ottawa and Chippewa Indians, the Saginaw Chippewa Indian Tribes, and the
Little River Band of Ottawa Indians. Mr. Jones seconded the motion. The
motion was adopted unanimously.

# Request for a Recommendation Regarding the Disposition of Culturally Unidentifiable Human Remains in the Possession of Daniel Boone National Forest, KY

## Presentation of Issue

[Mr. Chris Jenkins]{.underline}, tribal liaison and forest
archaeologist, Daniel Boone National Forest, thanked the USDA Forest
Service, the Review Committee, and the NPS for allowing him to make this
presentation, and the tribes involved in this process that has been
ongoing for 20 years. Daniel Boone National Forest, located in eastern
Kentucky, contains hundreds of miles of cliff lines with hundreds, if
not thousands, of Prehistoric rock shelter sites. Unfortunately most of
the rock shelters are subject to looting on a regular basis. The
collections being requested came from three looted sites believed to be
from Daniel Boone National Forest. Daniel Boone National Forest plans to
reinter the human remains at the Indian Resting Place Cemetery located
on Daniel Boone National Forest.

The first collection of human remains representing one individual was
recovered from the Cane Creek locality in Powell County, KY, and was
later donated to Daniel Boone National Forest. In addition, a nonhuman
femur was recovered and commingled with the human remains. Based on the
Prehistoric context of the rock shelters, Daniel Boone National Forest
believes the human remains probably predate 1700. The second collection
of human remains representing at least six individuals was donated to
Daniel Boone National Forest by an anonymous donor who claimed to have
acquired them from another individual, which were reportedly dug up by a
road construction crew from a rock shelter on Forest Service lands in
the 1960s. Additional information from another informant led Daniel
Boone National Forest to believe the collection was from site 15McY1066
in McCreary County, KY. One diagnostic artifact was recovered with the
remains, a single shell-tempered sherd from the Late Prehistoric period
dating probably between 900 and 1700 A.D. Daniel Boone National Forest
believed the collection was recovered from a looter's back dirt pile.
The third collection of human remains representing one individual was
recovered from a looter's back dirt pile at site 15LL86 in Laurel
County, KY. Subsequent visits to the site date the site to the Middle
Woodland period, 6000 B.C. to 300 A.D.

The human remains from these collections were analyzed by staff of
University of Kentucky and Kentucky Archaeological Survey. Based on the
context and analysis, Daniel Boone National Forest believed the human
remains were Native American but no specific cultural affiliation was
known. The skeletal materials currently reside in a cedar chest, with
sage and other materials, provided to Daniel Boone National Forest by
the Cherokee Nation. Other than physical identification of the human
remains, no physical testing was done.

Mr. Jenkins reviewed the consultation history. In 1994, representatives
of Daniel Boone National Forest met with the Cherokee, the Choctaw, the
Chickasaw, the Creek, the Seminole Tribe, the Shawnee, and the Caddo
Tribes in Oklahoma. It was agreed that the tribes preferred the human
remains to be reburied at their original locations. However, given that
the sites were subject to looting on a continuous basis, it was agreed
to rebury the human remains at the Indian Resting Place Cemetery on
Daniel Boone National Forest. In 2005, Daniel Boone National Forest
initiated additional consultation with the Absentee Shawnee, the
Cherokee Nation, the Eastern Band of Cherokee, the Eastern Shawnee, the
Shawnee Tribe, and the United Keetoowah Band of Cherokee. In 2006,
Daniel Boone National Forest offered consultation to the Delaware
Nation, the Absentee Delaware Tribe of Oklahoma, the Miami Tribe of
Indiana, the Peoria Tribe of Indians of Oklahoma, and the Chickasaw
Nation. The tribe that responded to the request deferred the resolution
of the request to the three Shawnee Tribes and the three Cherokee
Tribes. A summary of the tribal responses was provided to the Review
Committee, along with the reburial stipulations. The United Keetoowah
Band of Cherokee will be participating in the reburial ceremony and
reburial, with the other tribes requesting notification and the
opportunity to attend but deferring the physical reburial to the United
Keetoowah Band of Cherokee.

[Ms. Lisa Stopp]{.underline} (appearing telephonically) director of
language, history and culture and Acting Tribal Historic Preservation
Officer, United Keetoowah Band of Cherokee, stated the Daniel Boone
National Forest has been extremely diligent in working with the tribes
and has held several conferences with Keetoowah spiritual leaders. The
United Keetoowah Band was extremely happy that Daniel Boone National
Forest offered the Indian Resting Place Cemetery for reburial, and the
United Keetoowah Band of Cherokee was ready to proceed as soon as
possible.

## Review Committee Discussion

Mr. Steponaitis thanked Mr. Jenkins and Ms. Stopp for their
presentations and stated that this request was a model for the kinds of
materials the Review Committee likes to see. Ms. Augustine stated the
materials indicate the United Keetoowah Band of Cherokee Indians will
have representatives present to witness and direct the burial and other
tribes may have representatives present. Ms. Augustine stated reburial
was more than putting human remains back in the ground. A lot of times
spiritual leaders were present because they have a gift, the ancestors
have chosen to speak through them and sometimes deliver a message. Ms.
Augustine stated she has that gift and was happy the tribe would be
present. Mr. Jones asked if tribal leaders were involved in establishing
the Indian Resting Place Cemetery. Mr. Jenkins stated he did not know,
because the cemetery was established by his predecessor at Daniel Boone
National Forest. Human remains have been repatriated in the cemetery
with the Native American groups having their discretion as to ceremony.
Mr. Goodman asked for clarification of the burial context of site
15LL86. Mr. Jenkins stated Daniel Boone National Forest discovered the
site while doing other activities and determined the site had been
looted. They recovered the fragmentary remains from a looter's back dirt
pile at that time and additional artifactual objects at a subsequent
reevaluation of the site in the 1990s.

## Review Committee Motion

Mr. Goodman made a motion for the disposition of culturally
unidentifiable human remains in the possession of Daniel Boone National
Forest. Mr. Monroe seconded the motion. Mr. Kippen called the question.
The motion was adopted unanimously.

# Request for a Recommendation Regarding the Disposition of Culturally Unidentifiable Human Remains in the Possession of the State of Tennessee

## Presentation of Issue

[Mr. Michael Moore]{.underline}, Tennessee state archaeologist and
director of the Tennessee Division of Archaeology, stated that the
Division of Archaeology was part of the Department of Environment and
Conservation, for which Ms. Fran Wallas (appearing telephonically) was
an attorney. Mr. Kirk Perry (appearing telephonically) was with
Chickasaw Nation. The State of Tennessee Division of Archaeology was
requesting a recommendation from the Review Committee to rebury
culturally unidentifiable human remains and associated burial objects
removed from Fewkes site 40WM1 representing 19 individuals from 18
graves, plus 1 individual from surface contexts. Among the recovered
artifacts were shell-tempered pottery jars, bowls, bottles, and pans.
The recorded earthworks, stone-box graves, and shell-tempered ceramic
vessels provide unequivocal evidence that this site dates to the
Mississippian period, roughly 900 to 1500 A.D. The Fewkes site was a
Late Prehistoric, Mississippian period mound center located in
Brentwood, Williamson County, TN. Extensive archaeological research
within the middle Cumberland River Valley identified a virtual
abandonment of this area by Native residents around 1450 to 1550 A.D.
This drastic population reduction has been studied as supporting
evidence for what has been called the Vacant Quarter hypothesis, which
notes the general abandonment of Mississippian period mound sites within
portions of the Ohio, Mississippi, Tennessee, and Cumberland River
drainages around 1450 to 1550 A.D. As a result of the current level of
archaeological knowledge and the fact that there were no tribal lands in
Tennessee, all Prehistoric cultural skeletal remains and associated
burial objects held by the Division of Archaeology were designated as
culturally unidentifiable.

The Tennessee Department of Transportation removed the human remains and
associated objects that were the subject of this request during a 1998
data recovery excavation for a state-funded road improvement project.
Current Tennessee state law, T.C.A. 11-6-10, mandates the reburial of
Native American human remains and artifacts within six months to one
year of removal. The removed individuals were transferred from the
Department of Transportation contractor to the Division of Archaeology
in August of 1999 and should have been reburied at that time. An
administrative oversight kept these individuals out of the ground and
the Division of Archaeology was seeking to correct the oversight. The
Tennessee Division of Archaeology proposes to rebury the human remains
and associated burial objects removed from the Fewkes site in 1998 as
required by T.C.A. 11-6-119. The Chickasaw Nation agreed to lead the
reburial of the removed individuals and associated burial objects. The
human remains will be reburied on the Fewkes site property, which was
now a Brentwood City park, very well protected, in a location selected
by the Division of Archaeology and approved by the City of Brentwood.
The Chickasaw Nation performed previous reburials of Mississippian
period human remains and objects from the Nashville area, including the
Brentwood library site and Kelly's Battery site. This proposal was not a
repatriation to the Chickasaw Nation, as they were not accepting control
or possession of the human remains and objects. Responses from other
federally recognized tribes contacted for their opinion were contained
in the information packet, including the Chickasaw Nation, the United
Keetoowah Band of Cherokee, and the Muscogee (Creek) Nation. In the
letter from the Muscogee (Creek) Nation, a request was made for this
collection and those from another site in Tennessee, also removed under
the state burial law, which were currently under analysis. Mr. Moore
stated that although no response had been made, the Muscogee (Creek)
Nation's claim that the human remains from the Fewkes site were Yuchi
would be rejected because Yuchi was a eastern Tennessee cultural
manifestation, and there were no known Yuchi occupations in the middle
Cumberland River Valley. Ms. Wallas and Mr. Perry stated that Mr. Moore
accurately presented the information and they had nothing to add.

## Review Committee Discussion

Mr. Kippen stated that the letter from the Muscogee (Creek) Nation did
not appear to support the position of the State of Tennessee and asked
whether additional consultation was planned. Mr. Moore stated that the
Muscogee (Creek) Nation was consulted initially and he spoke with Ms.
Joyce Bear, Tribal Historic Preservation Officer for the Muscogee
(Creek) Nation, a number of times to discuss any questions about the
agreement. Mr. Moore stated the urgency of the letter appeared to be
because the Muscogee (Creek) Nation felt the human remains and objects
were being repatriated to the Chickasaw Nation, however, the Chickasaw
Nation was going to lead the reburial and not repatriate the items. Mr.
Perry stated that the Chickasaw Nation and members of the Five Civilized
Tribes in Oklahoma, including the Muscogee (Creek) Nation, consult a lot
and have discussed this agreement. The tribes have a protocol whereby if
one of the tribes wants to take the lead, usually the other tribes
agree. If that were the situation in this case, the Chickasaw Nation
would not have a problem.

Ms. Augustine read part of the letter from the Muscogee (Creek) Nation
that states the State of Tennessee has failed to properly review the
evidence regarding 11,000 human remains in their custody from the Mouse
Creek, Dallas, and prior related cultures whose descendants were
enrolled members of the Muscogee (Creek) Nation and labeled them as
unidentifiable without proper review and consultation. Mr. Moore stated
that the 11,000 human remains were not all held by the Division of
Archaeology, which has approximately 500 human remains in its NAGPRA
inventory. That number would include collections at the Tennessee Valley
Authority, University of Tennessee, and other groups. Ms. Augustine
stated she went to Tennessee to help protect a burial site at a Wal-Mart
building site, the State of Tennessee has no federally recognized tribes
and the tribal groups that came could do nothing. Mr. Moore stated that
the Chickasaw Nation led the reburial of the human remains removed from
the Wal-Mart site. Mr. Steponaitis thanked the parties for appearing and
commended the complete packet that was submitted.

Mr. Kippen stated he was concerned that an essential party to this
conversation was being left out and it appeared that there was some work
remaining to be done. Mr. Kippen stated he was not comfortable with this
situation where there was such an emphatic and clear statement from the
Muscogee (Creek) Nation indicating their disagreement, and the answer
outlined in the process was continued consultation. Mr. Steponaitis
agreed with Mr. Kippen's statement, and stated as an observation that
Ms. Bear was the person to generally consult with for the Muscogee
(Creek) Nation and the letter comes from another person in the Muscogee
(Creek) Nation. Mr. McKeown stated that Ms. Bear was scheduled to appear
telephonically but did not, and so the situation was unclear. Mr.
Steponaitis stated that it appears the Division of Archaeology has gone
down a very reasonable path in this process, but he felt it may be a bad
idea to proceed with the reburial of the human remains until the issues
raised in the letter were addressed. Ms. Worl asked about the
possibility of a conditional recommendation. Mr. McKeown stated that the
Review Committee has had contingent recommendations in the past.
Mr. Simpson stated that the Muscogee (Creek) Nation letter was submitted
by their Second Chief, essentially their equivalent of the United States
Vice-President, and added that consultation would be absolutely
appropriate, either as a condition of the recommendation or as a reason
to defer recommendation. Ms. Augustine stated that as a traditional
spiritual leader she has done ceremonies and reburials for over 30
years, and sometimes people have to put aside their personal differences
for the greater good.

## Review Committee Motion

Mr. Monroe made a motion to defer disposition pending a more extended
and direct consultation with the Muscogee (Creek) Nation. Mr. Kippen
seconded the motion. The motion passed by unanimous vote.

# Request for a Recommendation Regarding the Disposition of Culturally Unidentifiable Human Remains in the Possession of Pioneer Historical Society, CO

## Presentation of Issue

[Ms. Jan Bernstein]{.underline}, Bernstein and Associates, stated she
was a NAGPRA consultant representing the Pioneer Historical Society of
Bent County, CO. The Pioneer Historical Society of Bent County requests
a recommendation regarding the disposition of a minimum of two
individuals identified by catalog numbers O 1298 and O 1299 to the
Cheyenne-Arapaho Tribe. Catalog number O 1298 represents one set of
human remains, a partial skeleton, with no provenience information.
Catalog number O 1299 represents a minimum of one individual, very
fragmentary remains, collected by the donor from anthills in Kansas,
Illinois, and Colorado, as well as 200 feet of beads collected and
strung by the donor. On September 28, 2007, a letter was sent to 56
Indian tribes in compliance with 43 CFR 10.13, the future applicability
rule. The letter contained an inventory of the human remains and an
invitation to consult about cultural affiliation. The responses to the
letter were outlined in the information to the Review Committee, along
with the total list of tribes and tribal recipients.

Following the consultations, the Southern Ute Indian Tribe submitted a
claim for repatriation of the human remains. Upon receipt of the claim,
the Pioneer Historical Society sent a letter to the other 55 Indian
tribes announcing the receipt of the claim and asking for support. In
response to that letter, the Pioneer Historical Society received 12
letters of support for the claim and one letter from the
Cheyenne-Arapaho Tribe with a counterclaim in opposition of the Southern
Ute Indian Tribe's claim. A meeting was held on March 20, 2008 with
representatives from the Cheyenne-Arapaho Tribe to discuss the two
claims, and after discussing the options the Cheyenne-Arapaho Tribe
handed Ms. Bernstein a letter dated March 18, 2008 that reasserted the
claim. Ms. Bernstein discussed the situation regarding the two claims
with the Southern Ute Tribe, who immediately withdrew their claim
verbally, followed by a formal letter, in favor of the Cheyenne-Arapaho
Tribe's claim.

The Pioneer Historical Society sent a letter to the 55 tribes announcing
the withdrawal of the Southern Ute Tribe's claim and the new claim from
the Cheyenne-Arapaho Tribe and asking for support for the new claim. To
date, 24 tribes have responded with verbal and written support for the
Cheyenne-Arapaho Tribe's claim and no tribes were in opposition to the
claim. The number was larger than that provided to the Review Committee
as the Pioneer Historical Society continues to receive support.

[Mr. Richard Williams]{.underline}, Cheyenne-Arapaho Tribe of Oklahoma,
stated he was raised with his people in a small community. Oklahoma has
individual allotted land, not reservations. Mr. Williams stated he was
raised around old people, grandfolks, who taught about right and wrong
and inspired him in all he has done. Ceremonies were important and taken
seriously, and children were taught respect for cemeteries and graves.
Today, Mr. Williams stated out of respect for the old people and their
teachings, he would like to see the human remains go home, as they have
been held captive long enough. Mr. Williams thanked the Review Committee
for listening.

[Mr. Michael Whitecloud]{.underline}, Cheyenne-Arapaho Tribe Cultural
Heritage Program, asked his Elders and relatives to overlook him. Mr.
Whitecloud stated that at home when NAGPRA was discussed the first three
words, Native American Graves, implied a spirit, and during discussions
with Ms. Bernstein they reached the conclusion that they were there to
represent the spirits of those people. Mr. Whitecloud stated he was
trying to encourage and give support to the working relationship of the
Review Committee members, and also as a tribe applying tribal ways to
take care of Native American graves and the process. Mr. Whitecloud
thanked the Review Committee.

[Ms. Kathryn Finau (appearing telephonically)]{.underline}, project
coordinator for the Pioneer Historical Society, was available for
questions.

## Review Committee Discussion

Mr. Steponaitis stated that this was clearly a model of consultation and
a model proposal. The one missing piece was that it was hard to see any
evidence that either of the human remains was Native American. Mr.
Steponaitis stated he certainly has no objection to seeing the human
remains reburied, but wondered why the human remains weren't handled
under state law. Mr. Steponaitis stated that with catalog number O 1299
the case could be made that some of the human remains were Native people
because perhaps the beads were found together and were beads that would
be the kind of things that would be found in Native graves. With catalog
number O 1298 there was really no evidence that the individual was
Native American. Ms. Bernstein stated that the determination was based
on the collecting history of the museum and what the donor said. Mr.
Steponaitis stated that in his experience many people, both Native and
non-Native, were buried in unmarked graves. Mr. Steponaitis stated that
he did not want to stand in the way of this request, although he may
abstain from the vote, and he commended the parties for their efforts in
bringing together the information and coming together before the Review
Committee.

Mr. Monroe asked about the collecting history of the museum that led to
the conclusion that the human remains were probably Native American. Ms.
Finau stated that the records were from the 1960s, with notes that the
human remains would be part of, and always have been displayed or stored
with, the Native American collection for the museum. Mr. Monroe stated
he would applaud the parties for the exemplary way in which consultation
was done and for the resolution of the potential dispute between the
Cheyenne-Arapaho Tribe and the Southern Ute Tribe. Mr. Monroe stated the
difficulty in this case lies in the fact, as pointed out by Mr.
Steponaitis, that there really was not any evidence to support one way
or the other the determination that these human remains were Native
American. So the Review Committee members were in a real conundrum; on
the one hand strongly approving the manner in which this request has
been handled and on the other hand wondering whether or not the Review
Committee can in good conscious act on this under the aegis of NAGPRA.

Mr. Kippen stated he agreed with Mr. Monroe and asked if they could
provide any information that would help with the determination that the
human remains were Native American, such as collecting practices of the
museum, the objects, and collecting preferences of the people.
Ms. Bernstein stated the Pioneer Historical Society made their
determination based on the fact that the people who donated the human
remains were from the area, knew the area, and past practices were to
collect Native American human remains and then donate them to the
Pioneer Historical Society. The shell and glass beads indicate that
these were Native American associated funerary objects based on other
burials that had beads with them from the same area. In response to
questions, Ms. Finau stated that Mr. Kaufman, who originally collected
and donated the items, actually donated a great deal of Native American
artifacts to the museum, which was kind of his hobby for lack of a
better term. Ms. Finau was not aware of any donations from Mr. Kaufman
that were not Native American. The information on the beads was that Mr.
Kaufman collected them from anthills in Kansas, Illinois, and Colorado,
and then strung them together in a display with no indication of exactly
which bead was from which state or whether the beads were collected in
association with the human remains. Mr. Monroe asked if any forensic
analysis was done. Ms. Bernstein stated that none had been done,
although that was not out of the question, and added that the human
remains were very fragmentary fitting into a vial approximately two
inches long.

## Review Committee Recommendation

In order for the parties to proceed with this situation under state or
other law, Mr. Steponaitis made a recommendation that the Review
Committee find that there was not strong evidence that the human remains
and associated funerary objects were Native American. Mr. Steponaitis
stated that would formally absolve the parties from having to worry
about violating NAGPRA and they would be able to move forward. Mr.
Simpson stated that such a finding has been made previously by the
Review Committee. The Review Committee members unanimously agreed to the
recommendation.

# Request for a Recommendation Regarding the Disposition of Culturally Unidentifiable Human Remains in the Possession of Putnam Historical Society, CO

## Presentation of Issue

[Mr. Joseph Haynes]{.underline} (appearing telephonically), Putnam
County Commission, stated the Putnam County Commission was requesting a
recommendation on the disposition of culturally unidentifiable human
remains in their possession. From 1963 to 1965 at the request of Union
Carbide, the West Virginia Geological Society excavated the human
remains of approximately 600 individuals from a site in Putnam County,
WV. The human remains were eventually acquired by Ohio State University,
who completed an inventory in 2001 of the human remains, with no
artifacts. The human remains of 664 individuals were identified as
Native American dating from 1000 to 1700 A.D. Ohio State University
experts concluded that no present-day Indian tribe could reasonably be
culturally affiliated with the human remains. In 2001 a grassroots
movement started to begin the effort to return these human remains to
Putnam County with the hopes of reburying them. All federally recognized
Indian tribes who might have had an interest were contacted and asked if
they might claim the human remains and the local group pledged
assistance. Due to the possibility of disturbing other burials at the
original location a decision was made to seek an alterative site for
burial. The Putnam County Development Authority, with approval of their
Board of Directors, offered a protected location geographically close to
the original location. The effort languished for lack of federally
recognized Indian tribes stepping forward.

Mr. Haynes stated he was a member of the citizen group and remained
interested in the subject. Later as a Putnam County Commissioner, Mr.
Haynes stated the idea developed that the Putnam County Commission could
act as a conduit to get the project back on track. The Putnam County
Commission approached Ohio State University, who transferred control of
the human remains to the Putnam County Commission in March 2008. The
Putnam County Commission has contacted federally recognized Indian
tribes who might be associated with the area and have had a great deal
of cooperation from the Indian tribes to date. Mr. Haynes stated that
the day following transfer of control he was contacted by Mr. Robert
Maslowski from the Council for West Virginia Archaeology, who requested
that the Putnam County Commission turn the human remains over to his
group for display in a museum in Moundsville, WV. When Mr. Haynes denied
the request, Mr. Maslowski stated that the human remains belonged to the
State of West Virginia. Mr. Haynes stated that the Putnam County
Commission has control over the human remains but does not feel that
anyone owns them because they are people. Mr. Maslowski's request to the
West Virginia Division of Culture and History to step in was denied.

[Mr. Gary Walton]{.underline}, Putnam County Development Authority,
(appearing telephonically) was present to address comments.

[Ms. Lisa Stopp]{.underline} (appearing telephonically), United
Keetoowah Band of Cherokee, stated that the six Indian tribes involved
in the discussions have all been working together and keeping up-to-date
through Mr. Haynes on this situation. The United Keetoowah Band of
Cherokee would like to see this progress and result in reburial of these
human remains with one stipulation of a period of time allowed for a
Memorandum of Understanding to be developed and signed between Putman
County and the six Indian tribes. Mr. Haynes stated Putnam County would
have no objection to that.

[Mr. Robert Maslowski]{.underline}, president of the Council for West
Virginia Archaeology and West Virginia Archaeological Society, stated
that some of the statements made by Mr. Haynes were not true.
Mr. Maslowski stated that these human remains were not previously
claimed because the State of West Virginia did not have an appropriate
place for them. However, the State of West Virginia recently dedicated a
curation facility with a special NAGPRA room where the human remains
from Buffalo and other archaeological sites would be placed and cared
for by professional curators and would not be displayed. Current
archaeological, ethnographic, and historic research indicates that the
Buffalo people most likely represent Eastern Siouan or Yuchi populations
that moved south or west during the Beaver Wars during the 1660s. No
attempt was made by the Putnam County Commission to determine the
cultural affiliation of the Buffalo people and contact Indian tribes
that may be culturally affiliated. This request was originally made by a
group called the American Indian Council of West Virginia, which has
federally recognized members but no standing and was created especially
for this request in February 2008.

The Council for West Virginia Archaeology and the West Virginia
Archaeological Society does not oppose reburial of human remains and
grave goods if it can be done according to state and federal law, which
both stipulate that human remains and grave goods be turned over to the
lineal descendants or culturally affiliated tribes. Mr. Maslowski stated
there were several problems with the Putnam County Commission request.
According to NAGPRA, Ohio State University did not have control of the
Buffalo site human remains, which were accessioned in the West Virginia
Curation Facility and were never on loan or returned. There was no
attempt made by Ohio State University or the Putnam County Commission to
consult with the State of West Virginia about the human remains or their
disposition and no real consultation with federally recognized tribes.
The customary consultation process in West Virginia, adopted by the West
Virginia State Highway Commission and other organizations, was to
consult with all 17 federally recognized Iroquois, Cherokee, Delaware,
and Shawnee tribes with interest in West Virginia.

In the case of the Buffalo people, the eastern Siouan speaking and Yuchi
tribes should also be consulted. Mr. Maslowski presented verbal and
written evidence supporting the position that West Virginia Fort Ancient
sites were Eastern Siouan or Yuchi, with no relationship to Cherokee,
Iroquois, or Algonquin populations.

[Mr. Joseph Haynes]{.underline} stated in response that the Putnam
County Commission contacted the Absentee-Shawnee, the Eastern Band of
Cherokee, the Eastern Shawnee, the Shawnee, the Cherokee Nation, United
Keetoowah Band, Delaware Nation, Wyandot Nation, Tuscarora Nation,
Seneca-Cayuga, and the Moneton Nation, and have had encouragement from
everyone with whom they have had contact. The Putnam County Commission
would like to bury these people with no ceremony, no marker and no
publicity, and let them be simply put back to rest.

## Review Committee Discussion

Mr. Steponaitis stated he wanted to start with an observation that he
felt everyone involved in this situation wanted to do the right thing.
However, this request quickly raised many red flags. A lot of
information was provided at the meeting, and he was looking for
documentation, with evidence that stakeholders were consulted, that
serious research was done, and what the relationships were of these
human remains. Mr. Steponaitis stated that in reviewing the material,
several things stood out. First, most of the people who would be
considered experts in this disposition were not consulted, including
several Indian tribes. Second, there was no evidence that the Putnam
County Commission consulted any of the scholarly experts on the cultural
history of the area. Mr. Steponaitis stated that there was no evidence
that Ohio State University had control of the collection, which needs to
be verified given the conflicting statement of Mr. Maslowski that the
collection was accessioned by the West Virginia State Curation Facility.
Mr. Steponaitis stated that NAGPRA was ultimately about process and this
request should be remanded back to whoever actually controls the
collection and for that party to go through the process as it was meant
to be done.

Ms. Worl stated she was concerned that the inventory was incomplete
because in a listing of over 600 human remains there were no associated
funerary objects, and she was concerned whether the transfers of the
collection were legal. Ms. Worl stated she would like to add those
questions of the inventory and the legal transfer to the list outlined
by Mr. Steponaitis. Mr. Monroe stated he would like to recognize the
fact that everyone was acting in good faith from the heart, and the
issue here pertained to the requirements of NAGPRA which dictate certain
actions. Mr. Monroe expressed appreciation for the efforts and hoped
that there was understanding and appreciation that the recommendations
of the Review Committee were aimed at assuring the requirements of
NAGPRA were fulfilled which allowed requests to proceed in compliance
with the law.

## Review Committee Motion

Mr. Kippen made a motion to defer the request for disposition of
culturally unidentifiable human remains in the possession of Putnam
County, WV, until the issues of control and consultation with the
appropriate tribes could be addressed, an attempt was made at full
consultation with all Indian tribes that may be involved, additional
historical evidence could be developed, and an attempt was made to
further develop the record with historical and cultural information.
Mr. Monroe seconded the motion. Mr. Goodman added one clarification that
two types of historical information should be included, ethnohistoric
and the history of the collection. The motion passed by unanimous vote.

# Request for a Recommendation Regarding the Prospective Disposition of Culturally Unidentifiable Human Remains in the Possession of State of New Mexico

## Presentation of Issue

[Mr. Sam Cata]{.underline}, member of Ohkay Owingeh, San Juan Pueblo,
stated he and Ms. Dean were presenting this proposal to the Review
Committee at the direction of the New Mexico Indian tribes, the State
Indian Affairs Department, the Department of Cultural Affairs, and the
Historic Preservation Division of New Mexico. Their mission was to
provide a process whereby Native communities were afforded the
appropriate and respectful option to rebury and protect the spirits of
their ancestors. Mr. Cata stated that in 2003, an effort began to host
the conference titled "Protecting the Spirit of Our Ancestors," which
was an historic gathering of Native American Elders and leaders and
cultural rights specialists. The conference allowed Indian tribes to
voice comments and frustrations about the reburial process to state
agencies, to create a dialogue between the Indian tribes and state
agencies on issues of reburial and sacred sites, to disseminate
information regarding state and federal statutes and related issues in
the reburial process, and finally to begin to gather tribal input for
the creation of a state reburial act. The conference involved all Indian
tribes with homelands in New Mexico and state agencies. The Indian
tribes stated the title of the conference guided them as they do the
work needed to protect the spirits of their ancestors.

[Ms. Glenna Dean]{.underline}, New Mexico state archaeologist, stated
that in 1989 New Mexico passed a statute called the Unmarked Burial
Statute that provides legal protection and the appropriate and
respectful disposition of unmarked human remains discovered
inadvertently and during planned excavations on state and private land.
The Unmarked Burial Statute sets a required process for when human
remains are found, to be followed by the Historic Preservation Division
and the New Mexico Department of Indian Affairs. Following a
determination by the police and medical investigator's office that a
burial was not a crime scene, the identification and appropriate
disposition of the human remains falls to the Historic Preservation
Division. The Unmarked Burial Statute requires that the human remains be
studied to generate information useful to Indian tribes in determining
affiliation. Ms. Dean, as state archaeologist, then sends letters with
information regarding each discovery to the Department of Indian
Affairs, which then distributes the information to all tribal people
with whom they consult. The Department of Indian Affairs then receives
letters of recommendation or statements of affiliation back from those
tribes, and those letters are forwarded to the Historic Preservation
Division for a final determination to be made by the State Historic
Preservation Officer. Often Indian tribes will recommend reburial even
if they are not affiliated, and the common thread among the
recommendations was the desire for reburial as opposed to curation.

In the spring of 2007, a law was passed that specifically directs the
Historic Preservation Division and the Department of Indian Affairs to
develop regulations to outline the process of reburial of unclaimed
human remains, as well as locations for reburial. The reburial grounds
were envisioned as unmarked, with no fences, signs, or individual
markers on the reinterments, and the location information would be kept
in confidential archaeological files, not available to the general
public. Ms. Dean stated they were about halfway through writing the
regulations. Ms. Dean stated the Review Committee had a list of Indian
tribal representatives who have been meeting on the drafting of the
regulations. The next step was to take the regulations to public
informational meetings for nontribal people for comment, incorporate the
comments, and then go to a public hearing for all parties to make the
regulations final. The State of New Mexico wants the regulations to mesh
with NAGPRA and were requesting a recommendation for prospective
disposition by reburial of unmarked, unclaimed human remains.

## Review Committee Discussion

Mr. Kippen asked for a description of the federal connection between the
State of New Mexico and NAGPRA. Ms. Dean stated that since the State of
New Mexico receives federal funds and has control of Native American
cultural items then the State would be considered a museum under NAGPRA.
Mr. Steponaitis asked if the regulation treats human remains determined
to be culturally affiliated differently from human remains determined to
be culturally unidentifiable. Ms. Dean stated that Indian tribes
sometimes state affiliation with human remains but do not wish to claim
the remains and ask that the human remains be reburied rather than be
curated. The proposed regulations would make it possible for all parties
to agree that the best place for those human remains was in the ground,
regardless of affiliation. Mr. Steponaitis stated that this state
request differed from prior requests, which were targeted toward human
remains that were not affiliated. So in a sense this regulation takes
the place of the NAGPRA process not only for culturally unaffiliated
human remains but also for human remains that would be considered
affiliated and have a process stipulated for their disposition under
NAGPRA.

Ms. Augustine stated many Indian tribes have cultural reasons for not
doing reburials and stated that she was happy to see this work to help
those that cannot be claimed for whatever reason. Mr. Jones stated that
his Indian tribe had difficulty dealing with conflicts between federal,
state, and county laws when dealing with the desecration of a local
burial ground. Mr. Jones asked if there was any problem between NAGPRA
and the proposed regulation. Ms. Mattix stated that this request relates
only to New Mexico, as each state has different laws. In looking at the
proposed regulation, Ms. Mattix stated that that the specific request
was to allow the State of New Mexico to proceed with disposition of
culturally unidentifiable Native American human remains currently
subject to the restrictions of 43 CFR 10.9, which would proceed
according to the provisions of the New Mexico Reburial Grounds Act of
2007. For determinations of cultural affiliation made under NAGPRA, the
Indian tribe would have the opportunity to direct disposition in
accordance with the reburial law even with no physical acceptance of
custody. The proposed regulations address culturally unidentifiable
human remains with a process that would be followed. Mr. Kippen asked
about the participants in the proposed regulations, which was a
different list than that in NAGPRA. Ms. Mattix stated that the list in
the proposed regulations from the State of New Mexico was inclusive of
the groups listed in the proposed regulation for nations, bands, tribes,
or pueblos in New Mexico, but it did not exclude other groups.

Mr. Goodman thanked the parties for their presentation and work on this
issue and hoped the proposed regulations could become a model for other
states. Mr. Goodman asked what type of study was envisioned with the
requirement in the regulations and how the process would work. Ms. Dean
stated that the Unmarked Burial Statute passed in 1989 does not
distinguish between Native American and other human remains. The statute
requires the protection of law and appropriate and respectful
disposition for unmarked human remains in the state of New Mexico. The
study includes determination of gender, of pathologies, photo
documentation, and two other similar items. Neither the 1989 statute nor
the 2007 statute addresses degree of intrusion for studies, which allows
for some flexibility.

## Review Committee Motion

Mr. Kippen made a motion to defer consideration of this request until
receipt of the solicitors' review of how the legislation from the State
of New Mexico would interface with NAGPRA. This deferral was to ensure
that the Review Committee was able to more fully assist in making this
process work. Mr. Jones seconded the motion. The motion passed by
unanimous vote.

Ms. Worl thanked the parties for their work and commented that this law
may be a great model for NAGPRA. Mr. Steponaitis stated that a record of
support from the Indian tribes consulted in this process would be
helpful. Mr. Cata thanked the Review Committee for the opportunity to
present the information and assured the Review Committee that the Indian
tribes that have directed the progress of this issue would be presenting
this issue to the Review Committee at its October 2008 meeting.

# Request for a Recommendation Regarding the Prospective Disposition of Culturally Unidentifiable Human Remains in the Possession of Colorado Historical Society

## Presentation of Issue

[Mr. Terry Knight]{.underline}, spiritual leader and NAGPRA coordinator
for the Ute Mountain Ute Tribe, stated he has been involved with the
reinterment of unaffiliated unidentified human remains since 1977. The
original law passed in Colorado in 1977-1978 was not adequate, as it
allowed destructive analysis and was open-ended as to how long the human
remains could be kept. Mr. Knight stated he was a traditional spiritual
person, raised by Elders. He listened to their concerns about human
remains not being properly buried, and he was told he was the one to
handle this. The process to address this issue was reached through
consultation and agreement between the Ute Mountain Ute Tribe, the
Southern Ute Indian Tribe, the Colorado Commission of Indian Affairs,
and the Colorado Historical Society. Mr. Knight stated they have
fulfilled the request of the Review Committee and hope to be able to
move forward with the process.

[Ms. Bridget Ambler]{.underline}, curator of material culture at the
Colorado Historical Society, read a letter from Ms. Susan Collins,
Colorado state archaeologist, thanking the Review Committee for
considering this issue and expressing Ms. Collins's commitment to
implementing the process. In the early 1980s, the Colorado Historical
Society, through the Office of the State Archaeologist, and the Colorado
Commission of Indian Affairs came together to manage inadvertent
discoveries. By the late 1980s, a written procedure was in place and
reinterment ceremonies occurred regularly. The procedure was codified in
Colorado state law a few months prior to the passage of NAGPRA,
following which the agency realized it was vulnerable in regard to the
transfer of culturally unidentifiable Native American human remains and
regular reinterments were suspended. Since that time, through great
effort and consultation with all affected tribes, a process was
developed to address this issue, guided by the Review Committee's draft
principles.

Ms. Ambler stated efforts to begin this process began in 1997 when Mr.
Knight expressed concern about human remains recovered from inadvertent
discoveries that were held indefinitely by the Colorado Historical
Society. Since that time, the Ute Mountain Ute Tribe, the Southern Ute
Indian Tribe, the Colorado Commission of Indian Affairs, and the
Colorado Historical Society worked to develop a process for disposition
of inadvertently discovered culturally unidentifiable Native American
human remains and associated funerary objects, aided in 2004 with a
documentation grant to consult with Indian tribes having ancestral ties
in the state. From the start, the process was a tribally led initiative.
The group considered the Review Committee's recommendations regarding
the disposition of culturally unidentifiable Native American human
remains and developed a regional solution for consultation and
disposition. The process was developed in consultation with 47 Indian
tribes, during which the Indian tribes authorized the two residing state
tribes, the Ute Mountain Ute Tribe and the Southern Ute Indian Tribe to
take the lead in accomplishing disposition. Ms. Ambler stated that the
process was introduced to the Review Committee in November 2006. In a
letter dated January 8, 2007, the Review Committee stated that the State
of Colorado may proceed with the disposition of culturally
unidentifiable Native American cultural items in accordance with the
terms of the process upon receipt of formal response from the Jicarilla
Apache Tribe, Apache Tribe of Oklahoma, and the Kiowa Indian Tribe of
Oklahoma, and subject to the forthcoming conditions imposed by the
Secretary. After receiving formal responses from the Indian tribes, the
final version of the process was being presented to the Review Committee
for consideration. Ms. Ambler thanked the Review Committee for their
assistance.

[Mr. Ernest House, Jr.]{.underline}, Executive Secretary for the
Colorado Commission of Indian Affairs, stated he was also representing
Lieutenant Governor Barbara O'Brien as Chairman for the Colorado
Commission of Indian Affairs. Mr. House, Jr., read a letter from
Chairman Clement Frost of the Southern Ute Indian Tribe and Chairman
Ernest House, Sr., of the Ute Mountain Ute Tribe. The letter stated that
the two Ute tribes of Colorado have a strong interest in seeing that
culturally unidentifiable Native American human remains were handled
respectfully and in accordance with the wishes of the likely descendants
of those individuals. The two Ute tribes collaborated with the Colorado
Commission of Indian Affairs and the Colorado Historical Society to
develop a NAGPRA grant and create a repatriation process for culturally
unidentifiable Native American human remains inadvertently discovered on
state and privately owned lands in Colorado. Colorado's two Ute tribes
now ask the Review Committee once again to honor their request to
approve the process, since the Review Committee's requirements from the
November 2006 meeting have been fulfilled.

Mr. Ernest House, Jr., stated that since the November 2006 Review
Committee meeting, the Colorado Historical Society and the Colorado
Commission of Indian Affairs have worked side by side to provide further
awareness to the public of the proper protocol upon discovering human
remains in the state of Colorado. In the protocol, the Colorado
Commission of Indian Affairs works to notify tribes of discovery, is
part of the decision-making process with the state archaeologist and the
Ute tribes of Colorado, and works with the Ute tribes throughout the
reburial process. This protocol serves an important role of shaping the
state's guidelines in a respectful, yet timely, manner. On behalf of
Lieutenant Governor Barbara O'Brien, the Colorado Commission of Indian
Affairs, and the State of Colorado, Mr. House, Jr., thanked the Review
Committee for their consideration of the protocol process and expressed
appreciation for the Review Committee's commitment and dedication.

[Ms. Sheila Goff]{.underline}, NAGPRA liaison at the Colorado Historical
Society, stated she would like to provide an update on the
implementation of the process for consultation, transfer, and reburial
of culturally unidentifiable Native American human remains and
associated funerary objects originating from inadvertent discoveries on
Colorado state and private lands. The formal responses requested by the
Review Committee in November 2006 were received, in addition to four
letters of support from the Cheyenne River Sioux Tribe, the Pueblo of
San Ildefonso, the Pueblo of Tesuque, and the Shoshone-Bannock Tribe.
The two Ute tribes, the Colorado Historical Society, and Colorado
Commission of Indian Affairs have worked together to define the roles
and responsibilities of each for the implementation of the process. In
addition, working through the Colorado Commission of Indian Affairs, the
groups collaborated with the Colorado Department of Natural Resources to
identify state lands where reinterments can take place. Upon approval of
the process, consulting tribes will be contacted to verify contact
information and communication and consultation preferences, and this
verification will be done on an annual basis. With the warmer weather,
construction projects will begin and typically inadvertent discoveries
occur. The state archaeologist has indicated a large number of gas and
oil projects are planned, which could indicate an increased number of
inadvertent discoveries. The implementation of this process is very
important and the groups are respectfully asking for the authorization
to move forward with the implementation of this process.

## Review Committee Discussion

Mr. Steponaitis stated that his recollection of the discussions and
recommendation at the Denver, CO meeting, which he confirmed through the
transcript and minutes, was that the Review Committee recommended that
the parties proceed with the proposal contingent upon formal responses
from the three Indian tribes. Mr. Steponaitis stated that his
recollection of the discussion was that the Review Committee was really
seeking not only a formal response but an indication that the tribes
were on board with the proposal. From the responses, the Apache Tribe of
Oklahoma was on board, the Jicarilla Apache Nation submitted a formal
response that they were working on the issue, and the Kiowa Indian Tribe
of Oklahoma was clearly opposed to the process. Mr. Steponaitis stated
he understood the frustration of the parties with delays in the process
but it was important to properly follow the process. Ms. Ambler stated
for purposes of clarification that formal responses were requested
because each of the three Indian tribes had adjudicated lands in the
state of Colorado. Mr. Knight stated that they clearly misunderstood the
intent of the Review Committee, but fulfilled the request for formal
responses from each of the three Indian tribes. Mr. Knight stated that
during consultations each of the three Indian tribes expressed verbal
support for the proposal. Mr. Steponaitis felt the Review Committee had
the option to vote on this proposal again or to ask the parties to do
further work on the issue. Mr. Knight stated that this communication
problem highlighted a serious problem with consultation between parties
and expressed concern that Mr. Steponaitis was speaking for the entire
Review Committee. Mr. Steponaitis stated that he was expressing his
personal views for consideration by the other Review Committee members.
Mr. Monroe asked when the consultation occurred. Mr. House, Jr., stated
the consultation was on February 2, 2008, and that they were surprised
when they received the letter from the Kiowa Indian Tribe after
discussions at the consultation. Ms. Augustine stated she could feel the
frustration of the parties and she felt that the work of the parties
fulfilled the Review Committee's request.

Mr. Monroe stated the Review Committee has a responsibility to adhere to
the communications that it issues, and cannot ask those trying to
respond to directions given by the Review Committee to ascertain hidden
intent. Mr. Monroe stated he and Mr. Steponaitis probably look at this
issue in a different way. Mr. Monroe stated that he does not remember
from discussions at the time that the Review Committee was requiring
concurrence of the three Indian tribes. Mr. Monroe stated that in his
opinion setting a requirement that all parties have full concurrence on
an issue was too high of a standard. Mr. Jones stated this illustrates
the point he has made repeatedly about the importance of consultation.
Mr. Jones stated he felt the Review Committee needed to accept the
information provided by the parties and make changes within the Review
Committee's procedures for communications and consultation.

Ms. Mattix stated that the letter from the Review Committee to the
Colorado Historical Society did say the recommendation was based on the
receipt of formal responses and also was subject to any forthcoming
conditions by the Secretary of Interior. A similar proposal for the
State of Iowa was approved by the Secretary of the Interior and the
letter from the Secretary to the Office of the State Archaeologist of
Iowa included the following stipulation, "any interested party may
petition the Secretary of the Interior to recommend an alternative
disposition of culturally unidentifiable Native American human remains
subject to the terms of the process." Ms. Mattix stated that a similar
condition would be placed on this proposed process, which would give two
opportunities for any Indian tribe to raise concerns. Ms. Worl stated
she respects and honors the sovereign rights of Indian tribes and would
not want to do anything to circumvent their rights, but she would be
comfortable moving forward with this recommendation with the inclusion
of a provision as described by Ms. Mattix.

## Review Committee Motion

Mr. Monroe made a motion to approve the prospective disposition of
culturally unidentifiable human remains from the State of Colorado with
the inclusion of the provision as outlined by Ms. Mattix. Mr.
Steponaitis stated it was possible that the parties were actually very
close to resolving their differences, and asked if the proposed protocol
was the same version as the Review Committee received in 2006. Mr.
Steponaitis stated the Review Committee recommended that the protocol
have some wiggle room for unusual circumstances. Ms. Ambler stated that
the version was the same as in 2006, and in response to the Review
Committee's concerns the Colorado State Archaeologist addressed those
concerns under Section 2.D.2 of the protocol, and in addition the
protocol does express tribal concerns to prohibit destructive testing.
Mr. Kippen asked for clarification of provision 1.A. and 1.B. regarding
which human remains were affected by this protocol. Ms. Ambler stated
that this could be the source of the confusion stated in the letter from
the Kiowa Indian Tribe and clarified that the protocol applies to all
American Indian human remains inadvertently discovered on state and
private lands. Cultural affiliation would be determined later. Ms. Goff
stated that this issue was addressed in the response to the Kiowa Indian
Tribe's letter.

The motion passed by unanimous vote.

# Report on the Implementation of NAGPRA for the First Half of FY2008

## Grants

Ms. Worl introduced Ms. Sangita Chari, the new Grants Coordinator for
the National NAGPRA Program. Ms. Chari stated she joined the National
NAGPRA Program in January 2008, worked with the grant panel for the 2008
grants cycle, and had worked to assess the grant program. Ms. Chari
summarized three primary areas of focus. First, Ms. Chari would like to
complete a thorough assessment of the program to determine what has and
has not worked, where grants were or were not successful, and who was
and was not accessing the grants program, and why. Using that
information, Ms. Chari plans to develop a targeted outreach strategy for
tribes and museums that were not fully accessing NAGPRA grants, to
include website updates which would improve accessibility and include
NAGPRA grant success stories. Finally, Ms. Chari plans to collaborate
with other people funding programs for the same audience to join forces
and spread the word about NAGPRA and the grants program. Ms. Chari
stated that administratively, she intends to update the application and
improve the distribution of information about the grants program.

Mr. Kippen asked about the implementation of Ms. Chari's intended
assessment of the grants program. Ms. Chari stated that she would take a
lead role in making the assessment happen, but would definitely be
working with the Review Committee and the National NAGPRA Program staff.
Ms. Hutt stated that Ms. Chari has experience in working with museums
and grant programs, and the National NAGPRA Program intended the review
to consider the entire grants program since 1994, to develop a
comprehensive picture of the results of the grant program as a whole,
what it has meant to the museums and tribal communities who have
benefited from the grants, and what the grants program has done to
advance the National NAGPRA Program in a general sense. Mr. Kippen
recommended that the targeted outreach efforts include a set of data to
help understand not only a geographic representation of the grant
recipients but also their relative sophistication and capacity, which
would be helpful to understand how to serve the tribal communities and
museums who are struggling with NAGPRA. Mr. Kippen asked for
clarification of Ms. Chari's plan to increase collaboration with other
entities. Ms. Chari stated that she plans to speak to those who were
funding the same pool of fundable applicants, to consult on similar
issues involving improving outreach, increasing the number of grant
submissions, and increasing the pool of fundable applicants. In
addition, Ms. Chari stated the collaboration could take advantage of the
opportunity to combine technology, combine outreach efforts at
conferences, and spread information through referrals.

Ms. Worl stated there was a need to assess the grants amount available
per applicant, which had remained at \$70,000 since the inception of the
program, and also a recommendation that the types of activities funded
under repatriation grants should be expanded to include human remains.
Ms. Hutt and Ms. Chari stated that human remains were included in
repatriation grants. Ms. Worl stated that was a common misunderstanding
and should be addressed with better communication. Ms. Worl stated that
another area to consider while gathering information for targeted
outreach would be the collections, how large, where they were located,
and any current efforts. Ms. Hutt explained that Ms. Chari would be
taking maternity leave later in the summer and would be conducting an
evaluation of the website and other tasks during a work-at-home period.

Ms. Hutt stated that she was aware that one of the Review Committee's
recommendations has been to consider an increase in the amount of
individual grants, as well as an increase in total grants funding. Ms.
Hutt stated that for the 2008 grant cycle, the National NAGPRA Program
received a decreased number of museum applications and the total amount
of grants funded was less than the total apportioned. Ms. Hutt stated
that the grants panel commented on the fact that there were grants they
could not recommend for funding where the applicants did not seem to
have the capacity to understand NAGPRA, do NAGPRA, or make a meaningful,
successful, focused project. The grants panel implored upon the National
NAGPRA Program to do a better job of outreach in terms of program-wide
training in order to facilitate better understanding of the concept of
NAGPRA. The grants panel encouraged the National NAGPRA Program to use
the shortfall of grants funding in a training modality to build grants
capacity and in turn have an increase in successful grants applications
next year. Ms. Worl stated that sounds like a deep-seated problem that
may warrant discussion and collaboration with the Bureau of Indian
Affairs or other agencies to develop institutional capacity. Mr. Kippen
asked for a report on what the grants panel finds in their review,
including general information, trends, and comments. Mr. Kippen stated
he was interested in information in general, not specific names of
submitting parties. Ms. Hutt stated that Ms. Chari takes extensive notes
on the discussion of the grants panel and writes a detailed letter to
the submitter of each grant application with feedback from the grants
panel, and those comments can be summarized for the Review Committee.

## Civil Penalties

Ms. Hutt stated that the midyear report provided in the Review Committee
binders contains a summary of the civil penalty numbers to date. Ms.
Hutt stated that the National NAGPRA Program was migrating from an old
software system to a more stable, updated IT system. The National NAGPRA
Program will be hiring a programmer who would do specific report
capability programming functions for each task, including civil
penalties. Ms. Hutt stated that when this project was complete, a
snapshot summary of the status of civil penalties would be available at
any time for the Review Committee. Ms. Hutt stated that a lot of
allegations that were determined to be unsubstantiated were cases where
the future applicability rule applied; the museum was put on notice that
they would not be in compliance and information was provided on the time
parameters contained in the rule to come into compliance. Ms. Hutt
stated that at the training session prior to the meeting, the issue
arose of conflict of interest between the civil penalty aspect and the
running of the National NAGPRA Program. Ms. Hutt stated that the civil
penalties investigator maintains those files outside of the National
NAGPRA Program office and coordinates efforts with the civil penalty
coordinator in the DC office. The investigator or coordinator may
suggest that parties call the National NAGPRA Program to get technical
assistance, but the National NAGPRA Program does not have information on
institutions under investigation. Ms. Hutt stated that the good news
with civil penalties was that in most situations for which civil
penalties were assessed, the institutions worked so successfully to come
into compliance that the penalties were highly mitigated and the civil
penalties were quickly paid.

Mr. Kippen stated that prior to the meeting he sent a request for
information on civil penalties to Ms. Hutt, and the information
contained in the binders was not as detailed as what he requested. Mr.
Kippen stated that information on specific museums, findings that have
been made, and penalties that have been levied could help make the
Review Committee more effective. It could also make the work of the
Review Committee more transparent and affect how others view the work of
the Review Committee. Ms. Worl stated that she favored summary reports.
The Review Committee has worked in the past to develop summary reports
that meet their needs, such as the summary dispute chart, and she would
like the Review Committee to develop a similar report for civil
penalties. Mr. Kippen stated that a matrix of information would be very
useful. Ms. Hutt stated the National NAGPRA Program could provide
detailed information on closed cases, but did not have and could not
provide information on ongoing cases beyond basic numbers and status.
Mr. Steponaitis seconded the comments of Ms. Worl and Mr. Kippen. Mr.
Steponaitis stated that oftentimes issues such as this were raised for
discussion at a meeting and not resolved due to lack of time, and he
asked about the possibility of working on these ongoing issues outside
of the meetings. Mr. McKeown stated that subcommittees of the Review
Committee could meet to discuss that type of issue without notice as
long as the subcommittee brought information back to the full Review
Committee for any final recommendations.

Ms. Hutt stated that work on civil penalties began in 2005 and the
National NAGPRA Program was currently working to develop an
infrastructure to provide the type of reporting that was being requested
by the Review Committee. Ms. Hutt stated she was working directly with
Mr. Tarler and Mr. Palmer to develop civil penalty reports with the
assistance of an IT contractor. Ms. Hutt asked if she could come back to
the Review Committee at the next meeting with the reports, and in the
meantime the Review Committee members could submit any ideas through the
Chair. Mr. Monroe suggested including the following information on the
closed case reports: type of institution, classification of institution,
estimated annual budget, geographic region of the institution, nature of
the violation, and action taken in response to notice of noncompliance.
Ms. Hutt stated that was very reasonable and doable. Ms. Augustine
stated she agreed with Mr. Kippen that having transparency would develop
a sense of trust.

## Website/Database

Ms. Hutt stated that not only was the National NAGPRA Program updating
the technical capacity of the system, there was a notice out for a web
and database coordinator for the program, which would be a GS-11
position. The position was being advertised a second time because the
first round did not have a diverse applicant pool. Ms. Hutt stated
applications would be accepted through June 20, 2008, and encouraged all
people interested in NAGPRA who were experienced in database and
computer work to consider applying to the program.

## Notices

Ms. Hutt stated that page 5 of the midyear report contains an update of
published notices. At the Phoenix, AZ meeting, the Review Committee
considered the issue of aging draft notices, received by the National
NAGPRA Program from 5 to 12 years ago, and strongly commented that such
draft notices were to be moved forward or withdrawn. The National NAGPRA
Program has a process to follow to ensure technically complete notices,
but the final authorization to publish a notice rests with the
submitting institution. When Ms. Lavallee started as notice coordinator,
the National NAGPRA Program had an inventory of 300 such aging draft
notices. Through the efforts of Ms. Lavallee and staff at the National
NAGPRA Program, the inventory of aging draft notices was down to 40 at
the time of the meeting, with the hope that the number would be zero by
the October 2008 Review Committee meeting.

Ms. Hutt stated the May 12, 2008 memo to the Review Committee was in
response to information requested by the Review Committee regarding
notices. Ms. Hutt summarized the information contained in the memo.

-   The notice snapshot report, prepared by Ms. Lavallee on a regular
    basis, which showed the status of notices, including total number of
    notices in the queue and their status, total number of notices
    received for the fiscal year with a comparison to the previous year,
    and total number of notices published for the fiscal year with a
    comparison to the previous year. By the end of May 2008, Ms.
    Lavallee will have published 100 notices, thus matching the total
    number of notices published in FY2007 in the first nine months of
    FY2008.

-   A list of the six aging notices published since the Phoenix, AZ
    meeting, and copies of the notices.

-   A copy of a chart listing the 62 aging draft notices still in
    progress (not withdrawn or published) with notes on their current
    status. Ms. Hutt stated that many were close to being published.

-   Templates of letters that are sent to institutions regarding aging
    draft notices.

Ms. Hutt stated that an additional ongoing project at the National
NAGPRA Program was to determine how many Native American individuals
have been culturally affiliated as a decision by a museum or federal
agency but are not yet represented in a published notice.

## Regulations for 43 CFR 10.11

Ms. Hutt stated that the regulations for 43 CFR 10.11, culturally
unidentifiable, were being developed. Ms. Hutt stated that Ms. Mattix,
Mr. Simpson, and Mr. McKeown were working diligently to complete a final
regulation. Comments submitted in response to the draft regulations have
been read and organized. The next step would be to determine the salient
points contained in the comments in order to develop a concise summary
for the development of the final regulations. Ms. Hutt stated that she
would provide an update on the progress of the regulations at the
October 2008 Review Committee meeting.

Mr. Steponaitis stated that at their January 2008 teleconference the
Review Committee made some very specific requests about either extending
the comment period or in some way being able to revisit the issue and
extend the discussion to the May 2008 meeting. He indicated that these
requests were not fulfilled and asked if there were legal constraints
against those requests. Mr. Simpson stated that there was no legal
prohibition to extending the comment period, which was an action that
was at the discretion of the Assistant Secretary. The Review Committee's
requests were considered very carefully, and the decision that was made
was a policy decision. The Review Committee was welcome to continue
discussions on the regulation, but the DOI was legally prohibited from
taking any substantive comments or having substantive discussions at
this point, with one exception of seeking clarification from a commenter
on a particular point if necessary. The request of the Review Committee
that the DOI consider publishing a revised proposed rule for further
comment was again at the discretion of the Secretary of the DOI and no
decision could be made until full review and organization of all
comments was complete. Ms. Hutt stated that the Assistant Secretary was
fully engaged in this process, as was the Office of Management and
Budget. Mr. McKeown summarized the comments received prior to the
deadline, which were posted at
[www.regulations.gov](http://www.regulations.gov/). A total of over 950
individual comments contained in 140 unique submissions were received
from over 50 Indian tribes, 18 Native American organizations, 37
museums, 14 museum and scientific organizations, 3 federal agencies, the
Review Committee, and 25 members of the public.

## Review Committee Motion 

Mr. Monroe made a motion that the Under Secretary and the National
NAGPRA Program seriously consider the Review Committee's recommendation,
following the current process, to issue another set of proposed rules
which would provide the opportunity for the Review Committee and all
parties affected by the rule to review the proposed rule, make further
suggestions and refinements for consideration, and thereby help assure
that the rule best reflects the recommendations, ideas, and advice of
all affected museums, federal agencies, and federally recognized tribes
regarding the disposition of culturally unidentified human remains. Mr.
Goodman seconded the motion.

Mr. Monroe stated that the proposed rule as published received
commentary pointing to significant problems. If the DOI issued a new set
of proposed rules, that would give everyone affected by the regulations
the opportunity to provide input on the new proposed rule. The
alternative would be for the DOI to proceed on its current track and
issue final regulations. Mr. Kippen asked what the mechanics of the
process would be if the Review Committee approved this motion. Mr.
Simpson stated that the motion would be a recommendation to the
Assistant Secretary of Fish and Wildlife and Parks. The recommendation
would not have the force of law, but the Assistant Secretary would
certainly respect and seriously consider a recommendation from the
Review Committee. Mr. Jones stated this issue was very important and
that consultation was vital so that Indians have as much say as the
agency does as far as the regulations.

Ms. Hutt stated she would like to clarify that the regulation would not
change the law but adds to the steps in the process where there were
gaps. In terms of the motion before the Review Committee, Ms. Hutt
stated she was very comfortable having such a discussion with the
Assistant Secretary. Ms. Hutt stated that during this period of time the
culturally unidentifiable population was diminishing in two ways,
through requests to the Review Committee for disposition and amended
inventories when human remains were affiliated. Mr. Monroe stated that
would be another good reason to argue in favor of adopting the
recommendation as no material harm was being done during the rulemaking
process.

Mr. Steponaitis stated he supports this recommendation and stated that
the Review Committee had already gone on record with this recommendation
at their January 2008 teleconference, which speaks to how strongly the
Review Committee feels about this issue. Mr. Steponaitis stated that the
reason NAGPRA works so well was that in the end when NAGPRA was passed
by Congress all the major stakeholders supported it. Mr. Steponaitis
stated that the proposed rule under development was perhaps the most
important thing that happened in the NAGPRA process since the statute
was passed, and it was important that this rule also be a rule that
everyone can support.

Mr. McKeown stated that counsel advised that the Review Committee might
consider authorizing the Chair to send the recommendation to the
Assistant Secretary for Fish and Wildlife and Parks. Mr. Monroe amended
his motion that the recommendation would be forwarded by the Chair to
the Assistant Secretary for Fish and Wildlife and Parks. Mr. Kippen
seconded the amendment. Mr. Kippen called the question. The motion
passed by unanimous vote.

# Presentation of Makah Indian Tribe/NATHPO Report on Federal Agency Implementation of NAGPRA 

Ms. Bambi Kraus, National Association of Tribal Historic Preservation
Officers (NATHPO), stated she would like to present information on the
final report of the Makah Indian Tribe/NATHPO Overview on federal agency
implementation of NAGPRA, and provided a copy of her presentation to the
Review Committee members. The report was in the final editing stage and
would be completed by the end of May 2008. Ms. Kraus provided a status
summary of the project for the Review Committee in October 2007 at the
meeting in Phoenix, AZ. The research writing team consisted of Ms. Cindy
Darcy, Ms. Maria Elena Frias, Ms. Amy Kolakowsky, Mr. James Riding In,
Ms. Pemina Yellow Bird, Ms. Patricia Zell, and Ms. Bambi Kraus. In
addition, nine people reviewed the report, including representatives of
Native American tribes, NAGPRA experts, and federal officials. Ms. Kraus
thanked Ms. Sherry Hutt and Mr. Timothy McKeown of the National NAGPRA
Office and the tribal historic preservation officers who comprise NATHPO
for their assistance, and made special mention of THPOs in Wisconsin
present at the meeting, including Mr. Dave Grignon from the Menominee
Indian Tribe of Wisconsin, Ms. Kelly Jackson-Golly from the Lac du
Flambeau Band of Lake Superior Chippewa Indians, and Mr. William
Quackenbush from the Ho-Chunk Nation of Wisconsin.

Ms. Kraus stated that the Makah Indian Tribe received a NAGPRA grant and
entered into an agreement with NATHPO to perform most of the work on the
project. The research methodology consisted of a review of information
from federal agency Notices of Inventory Completion, two national
surveys, the Culturally Unidentifiable Native American Inventories Pilot
Database (CUNAIP), Congressional funding, court records, and literature
search. Project limitations included time and money, with a budget of
\$66,000.

Ms. Kraus summarized the research findings based on responses to the
surveys and databases. Of 36 distinct federal agencies, 18 responded to
the survey, which was twice the number of responses reported in the
October 2007 update. In addition, a total of 67 Native American Indian
tribes, Native Hawaiian organizations, and Native Alaskan corporations
responded.

-   Inventories, Summaries, Notification:

    -   Consulting with Native entities and publishing a Notice of
        Inventory Completion was a tribal concern.

    -   Four federal agencies reported up to 20 percent of their
        collections were in nonfederal repositories, and two federal
        agencies reported that 61 to 80 percent of their collections
        were in nonfederal repositories.

    -   Tribal concern about pesticide treatment and scientific testing.

-   Native American Graves Protection and Repatriation Review Committee:

    -   About 50 percent of the tribal respondents had used the Review
        Committee's CUNAIP Database operated by the National NAGPRA
        Program.

    -   About 50 percent of the tribal respondents had attended a Review
        Committee meeting; distance was a factor for their attendance.

-   NAGPRA Grants:

    -   45 percent of tribal respondents had applied for a
        consultation/documentation grant; 53 percent of those were
        awarded a grant.

    -   One grant per Native American community was overwhelming
        response; few received 3 or 4 grants.

    -   Grant funding history was examined; in the past two years
        \$936,830 not awarded for grants and was used for administrative
        costs. In 2005, \$680,000 of the grant allocation was used for
        administrative costs, as well as legal costs for the Kennewick
        case.

-   Resources and Training for NAGPRA:

    -   No indication that Federal agency representatives work fulltime
        on NAGPRA; 97 percent who work to implement NAGPRA estimate
        their work involves 20 percent or less of their time.

    -   44 percent federal officials receive no training upon
        assignment.

    -   If training offered, most relied on National NAGPRA Program.

    -   Both Native Americans and Federal officials shared a lack of
        resources, no Federal grants.

-   Federal officials recommendations to improve compliance:

    -   More training.

    -   Resources to coordinate tribal consultation with other cultural
        resource laws.

    -   Resources to support partnerships with Native Americans.

Ms. Kraus summarized the research findings based on Notice of Inventory
Completion review. Two researchers worked in the Washington DC office to
review the original submissions and subsequent information. The
researchers counted the minimum number of individuals (MNI) and
associated funerary objects (AFO) for each of approximately 500 unique
files and Notices of Inventory Completion. A chart was developed listing
each federal agency with MNI and AFO for both the original inventory and
any published Notice of Inventory Completion.

-   Findings:

    -   Inconsistencies in numbers from the original information to
        published Notice of Inventory Completion. Possible reasons for
        this include inconsistencies between people interpreting
        information, Notices of Inventory Completion not yet published
        (possibly pending), additional inventory located that was not
        included in the previously published notice, and individuals
        affiliated from the culturally unidentifiable inventory but the
        inventory records with the National NAGPRA Program were not
        updated.

    -   Many federal agencies that had originally culturally affiliated
        but not in published Notice of Inventory Completion.

-   Related Notice of Inventory Completion issue, pending draft Notice
    of Inventory Completion Review:

    -   Came to light in late 2007, backlog of unpublished draft Notices
        of Inventory Completion to either approve draft Federal Register
        notice or withdraw effort and restart cultural affiliation
        process. Ms. Kraus showed an example of a letter from the
        National NAGPRA Program to the Grand Canyon National Park
        superintendent regarding the withdrawal of a notice submitted on
        November 16, 1995, and the letter was copied to the Hopi Tribe.

    -   As of October 31, 2006, Federal agencies had culturally
        affiliated 1,652 Native Americans for which no Notice of
        Inventory Completion had been published.

Ms. Kraus summarized the research findings on the Culturally
Unidentifiable Native American Inventories Pilot (CUNAIP) Database. The
database has a total of over 15,000 records containing over 118,000 MNI,
of which 13,785 MNI were in the possession or control of federal
agencies along with 66,407 AFO. One researcher examined each record for
federal agencies. This review highlighted areas of concern, such as
certain transfers between federal agencies, the issue of enforcement of
consultation was unclear, lack of an apparent oversight system for
tracking scientific study, loans without sufficient information, known
MNI and AFO but unknown location, and an unclear method of
standardization throughout the database. Ms. Kraus stated that one
federal agency was of note for having a far greater number of entries
than others, and that was the Tennessee Valley Authority (TVA) which had
8,031 MNI listed in the inventory and no published Notices of Inventory
Completion. Ms. Kraus stated that the inventory was cumbersome and
time-consuming, allowing the review of only one open record at a time.

Ms. Kraus stated the research team developed six general themes and then
specific recommendations, which she summarized.

-   General Themes:

1.  Knowledge of process and responsibilities: Need for more training
    and better understanding.

2.  Access to Information: Clarification that Native Americans are
    brought into the process when required.

3.  Consultation: With whom to consult and when.

4.  Available Resources: Insufficient resources for both Native
    Americans and federal agencies.

5.  Standards: What constitutes correct information, evidence, tribal
    consultation, and cultural affiliation?

6.  Training and Technology: More training and more use of technology to
    share information.

-   Recommendations: Specific Statutory

    -   Amend definitions section of NAGPRA to clarify application to
        human remains.

-   Recommendations: Specific Regulatory

    -   Establish Interagency NAGPRA Implementation Council within
        Executive Branch:

        -   Assure compliance within each agency.

        -   Coordinate compliance across all agencies.

    -   Oversight and Enforcement:

        -   Establish a program to train federal agency personnel.

        -   Issue and publish NAGPRA contacts and policies within each
            federal agency.

        -   Demonstrate consultation with Native Americans.

        -   Improve the CUNAIP database.

-   Recommendations: Specific Program, General NAGPRA Program

    -   Inventory of repatriation process data (measure of actual
        repatriations).

    -   Review Committee develop database of cases.

    -   National NAGPRA Program maintain updated list of upcoming
        publications of Notices of Inventory Completion, along with list
        of pending.

    -   National NAGPRA Program maintain database of federal agency
        collections: location, possession and control of all Native
        American remains, funerary objects, and other cultural items.

    -   Adequate funding.

    -   Compliance audit by GAO.

-   Recommendations: Future areas of research.

    -   Evaluate museum compliance.

    -   Examine unassociated funerary objects process.

    -   Examine CUNAIP database process and process used for how/why
        remains and objects.

Mr. Jones stated he was very glad to hear the recommendations put forth
by Ms. Kraus, which relate what he has encountered through the years
dealing with the inconsistency of consultation. Consultation should be
consistent and handled on a government-to-government basis. Consultation
needs to be strengthened and maybe a statement could be added that
encourages the blending of scientists and tribal leaders and
representatives. Mr. Jones stated he appreciated their hard work. Mr.
Kippen thanked Ms. Kraus and the team for their hard work. Mr. Kippen
stated that the information contained in this report may be very useful
for the Review Committee to use in its report to Congress. Mr. Kippen
stated he had a lot of questions but would defer them until a later time
in the meeting or after receipt of the final report due to time
constraints at the meeting. Ms. Worl asked what would be done with the
final report. Ms. Kraus stated it would be distributed to all Indian
tribes, posted on the NATHPO website, and sent to federal agencies.

# Report on the Implementation of NAGPRA for the First Half of FY2008 -- Continued

## Grants - Review Committee Discussion

Mr. Kippen asked for clarification of the slide titled "NAGPRA Grants
History" discussed by Ms. Kraus during her presentation. Mr. Kippen
stated he would like an explanation of the difference in grant money
allocated by Congress and awarded in grants and an estimated idea of the
numbers for 2008. Ms. Hutt stated the allocation of funds apportioned by
Congress between the operating budget and grants disbursal was made at
the Department level. Ms. Hutt stated that the 2008 grants
apportionments were not yet signed by the Assistant Secretary and she
could not discuss specifically which grants were funded, but the total
request of funds and total number of applications this year was less
than in prior years, which was surprising given the knowledge that 43
CFR 10.11 was progressing toward the final rule. Ms. Chari and the
National NAGPRA Program were working to address the decline in museum
applications. In addition, the grants panel had difficulty suggesting
grants to fund to utilize the available amount of money. The grants
panel recommended that the money not directly used for grants would be
utilized in a training modality to increase training and capacity for
Indian tribes and museums. Mr. Kippen stated he would like a budget
breakdown of the funds for the National NAGPRA Program to use in
formulating the Review Committee's report to Congress for 2007. Ms. Hutt
stated she would get that information for the Review Committee at the
first available break and would be willing to answer any questions. Mr.
Goodman asked if potentially fundable projects remained unfunded.
Ms. Hutt stated that for 2005, when part of the grants allocation was
taken out of the program as the result of the Kennewick case settlement,
there were definitely fundable grants that were not funded. Ms. Hutt
stated she could not say whether otherwise fundable grants were not
funded in 2006 and 2007. Ms. Hutt stated there was definitely a
shortfall of fundable grants in 2008.

Ms. Hutt stated that at a previous meeting the Review Committee
recommended that more outreach be done, which was accomplished this past
fiscal year in the grants program for museum outreach with Ms. Chari
attending the American Association of Museums meeting and for federal
agency outreach with the organization of a federal consultation week
where federal agency representatives could meet with representatives
from museums, archaeologists, and the National NAGPRA Program. In
addition the National NAGPRA Program was working with Ms. Bambi Kraus to
have a session on grants at the upcoming NATHPO meeting in Washington,
DC.

## Notices -- Review Committee Discussion

Mr. Kippen asked for more information on the intent of withdrawing aging
notices and asked if Indian tribes were being left out of the process or
were being supplied with only partial information. Mr. Kippen cited the
letter highlighted during Ms. Kraus's presentation the prior day as an
example of Indian tribes not receiving full information. Ms. Hutt stated
that the National NAGPRA Program does not act arbitrarily. The position
of the National NAGPRA Program working with older notices (submitted 5
to 12 years earlier) has been to either move them forward or withdraw
them. As a result of work on aging notices, consultation grants have
been submitted that would be dynamic in terms of moving the process
forward. In addition, the notice coordinator was now able to spend 90
percent of her time on viable notices, resulting in a record number of
notices being published in the first nine months of FY2008. When the
process progresses to the point that a notice was withdrawn, the notice
coordinator sends a letter to the institution fully identifying the
notice and acknowledging the institution's desire to withdraw the
notice. That letter was copied to all consulting Indian tribes listed in
the notice, so that everyone in the process was specifically
knowledgeable of the status of the notice. The letter also states that
the National NAGPRA Program hopes the institution would consult with the
Indian tribes to develop a notice that can move forward in the process.
Ms. Hutt stated that the information presented by Ms. Kraus was a copy
of part of the letter referencing the withdrawal, and the remainder of
the letter specifically identified the notice.

Ms. Hutt stated that the decision to publish a notice was the
responsibility of the institution, and the National NAGPRA Program could
only publish notices with the authorization of the institution. At prior
meetings the Review Committee members were clear in their desire to
address the issue of draft notices that have been housed at the National
NAGPRA Program pending publication for many years. Ms. Hutt stated that
the notice coordinator reviews draft notices for technical completeness,
as well as a comparison of the draft notice with the institution's
inventory to ensure that the individuals represented in the inventory
have been accommodated in the notice. The notice coordinator works very
closely with the institution to process the draft notices. Ms. Hutt
stated that the National NAGPRA Program does not evaluate the decisions
of the institutions, beyond ensuring that the explanations required in
the notice were present. While the National NAGPRA Program facilitates
the publication of notices, the notice belongs to the originating
institution and was published only with their authorization. Ms. Hutt
stated, as a personal reflection, that focusing on the number of draft
notices at the National NAGPRA Program office, which institution
submitted them and the length of time they have been pending, could have
a chilling effect for institutions submitting notices. Ms. Hutt stated
the focus should be on comparing the number of individuals listed as
culturally affiliated in an inventory with the number of individuals
listed in notices.

Mr. Steponaitis stated that working with Ms. Lavallee, as notice
coordinator, has been terrific, but despite the best efforts of all
involved the notice publication process could be very frustrating. Mr.
Steponaitis recommended that a focus group meet to try to streamline the
publication process in a way that could decrease the workload and the
costs for the National NAGPRA Program and decrease the frustration of
the institutions. Mr. Monroe seconded the recommendation.

# Recommendations Regarding Disposition of Unclaimed Cultural Items (43 CFR 10.7)

Mr. McKeown stated that the Review Committee considered this regulation
at several meetings in the past. At the last meeting, the Review
Committee put forward a recommendation as a personal set of thoughts. At
this time, the National NAGPRA Program was soliciting a set of
recommendations from the Review Committee as a whole on how to proceed
with 43 CFR 10.7, which deals with the disposition of unclaimed cultural
items recovered from federal or tribal land after November 16, 1990. Ms.
Worl stated her sense was that the Review Committee would not be able to
develop a set of recommendations at the meeting, but could review the
recommendations discussed at the Phoenix, AZ meeting for additional
comments. Ms. Worl recommended that the Review Committee appoint a
subcommittee to develop a draft position for the full committee's
consideration at the following meeting, and recommended that
Mr. Goodman, Mr. Kippen, Mr. Steponaitis, and Ms. Worl be appointed to
the subcommittee.

The Review Committee discussed the recommendations. Recommendation one,
in consultation with Indian tribes, human remains and funerary objects
should remain separate from other cultural objects and be subject to
special care and handling, to the extent possible. The Review Committee
agreed with this recommendation.

Recommendation two, study or documentation of the unclaimed human
remains and cultural items should proceed only with the consent of
lineal descendants or Indian tribes on whose land the cultural items
were excavated or discovered or after consultation with the culturally
affiliated or culturally related tribes. Baseline documentation, such as
number of individuals, age, sex, should be recorded of the unclaimed
human remains and cultural items. Ms. Worl stated there could be two
categories, those for which cultural affiliation was established but the
human remains and cultural items were unclaimed due to cultural values
of the Indian tribe or other reasons and those for which cultural
affiliation cannot be established. Ms. Worl stated that a process could
be developed to identify Indian tribes who were unable to make a claim
due to cultural values and identify affiliated Indian tribes who could
agree to file for disposition, and the concept of regional consultation
might be useful. Mr. McKeown stated he had a terminological
clarification that under Section 3 of the Act and Section 10.7 of the
regulations, the term "cultural affiliation" was one of the four
categories to determine whether a cultural item is affiliated.

Ms. Mattix stated that the way the regulation would be developed, the
unclaimed provision of Section 3 would apply to cultural items
determined to be Native American that are unclaimed because they do not
fit a category, as well as cultural items that do fit one of the
categories but cannot be claimed by a lineal descendant or Indian tribe.
The determinations that items are Native American and cultural items
would have been made in consultation with any possible lineal
descendant, any Indian tribe that owned land upon which the objects were
found, any possible culturally affiliated Indian tribe, and any Indian
tribe with aboriginal occupation of the land. Mr. Monroe stated there
may be situations where a cultural item was affiliated with a group that
chooses not to affect disposition and would prefer no other group affect
disposition. After discussion, the Review Committee agreed to the
concept of different categories and that the subcommittee could consider
the issue and develop more specific details.

Mr. Monroe stated that given the history of this issue and the
voluminous written record, he would recommend that the National NAGPRA
Program develop an executive summary. The executive summary would
contain a concise summary of the key concepts, public comment, Review
Committee discussions, and a clarification of legal issues if necessary,
with additional space for Review Committee member notes. The Review
Committee members agreed, and Ms. Worl stated that would be an
appropriate suggestion for all substantial matters under consideration
by the Review Committee.

Recommendation six, federal agencies should be guided by 36 CFR 79, with
a reference to including the protocol presented by the Colorado
Historical Society in consultation with Indian tribes. Mr. Steponaitis
stated after reviewing each document, he felt the protocol presented by
the Colorado Historical Society and the regulations at 36 CFR 79 were
rather different and the regulations at 36 CFR 79 would be the principle
model for how collections should be maintained. Ms. Worl recommended
that the subcommittee consider both documents in their discussions.

Mr. Steponaitis raised another issue for consideration by the
subcommittee, the possibility of including some type of language that
would encourage affiliated Indian tribes or lineal descendants to make a
claim, for example, language that explicitly acknowledged the
possibility of co-curation. Mr. Steponaitis stated it was possible that
some tribes or groups might be reluctant to submit a claim if they were
unable to immediately act upon the claim. Ms. Mattix stated that could
be something that was worked out through the parties and not necessarily
in the regulations. Ms. Worl stated that point raised the issue of
Indian tribes and their capacity to implement NAGPRA, which could
possibly be addressed within the grant program following the assessment
discussed earlier in the meeting. Mr. Jones stated that these
discussions reiterate the importance of consultation. A large problem
with consultation was the difficulty of consulting using two different
languages, cultural law and NAGPRA law, which were at times difficult to
blend. In order for this process to be successful, true consultation has
to occur. Ms. Worl thanked Mr. Jones for consistently raising this issue
and asked the National NAGPRA Program to compile information on best
practices for consultation that the Review Committee can consider at a
future meeting.

# NAGPRA in the Parks

Ms. Cyd Martin, director for Indian Affairs and American Culture for the
NPS Intermountain Office and program manager for the Park NAGPRA
Program, provided an update on the Park NAGPRA Program. The Park NAGPRA
Program is a national program providing technical and compliance
assistance to all units of the NPS, centrally located in the Denver, CO
office of Indian Affairs and American Culture. In addition, the Park
NAGPRA Program acts as a liaison between each of the seven NPS regions
and the National NAGPRA Program in Washington, DC, and administers the
NPS funds that assist parks with NAGPRA compliance. This year, the Park
NAGPRA Program revamped its funding program and instituted a national
competition for funds, working with regions to develop well-defined
criteria. Ms. Martin stated that she and Ms. Mary Carroll, full-time
program lead for the Parks NAGPRA Program, work closely with the
regional coordinators for each region of the NPS, two of whom were in
attendance at the meeting, Mr. Fred York and Mr. Chuck Smythe.

The Park NAGPRA Program works to actively address the contaminated
objects issue. The Intermountain NAGPRA Program, the Western
Archaeological and Conservation Center in Tucson, and the Park NAGPRA
Program have joined together to purchase a portable X-ray florescence
(XRF) machine to test for contaminants. At the request of parks,
professional trained staff will test cultural items subject to NAGPRA
for arsenic, mercury, and lead. Tribal consultation was encouraged prior
to testing to identify sensitive issues such as handling of items,
appropriate participants, ceremonial preparations, and other issues.
Requests for testing from Indian tribes, museums, and other agencies
will be accommodated as possible on a case-by-case basis. Ms. Martin
provided the Review Committee with a picture showing a consultation
between the Intermountain Region and local Indian tribes on the use of
the XRF machine.

The Park NAGPRA Program has an internship program that provides
opportunities for students to work in park centers and offices
nationwide on NAGPRA projects and to provide hands-on help to parks with
immediate NAGPRA needs. Projects may include working with archaeological
and ethnographic collections, assisting with consultation meetings,
assisting with the repatriation of Native American human remains, and
other administrative tasks. In FY2007 four students worked on five park
projects, and in FY2008 three students will work on four park projects.

In 2006, the Park NAGPRA Program updated its NAGPRA Guidance for Parks,
also known as Appendix R, in an easy-to-use binder format, which
included additional reference materials as follows: a copy of the NAGPRA
statute and regulations, the Bureau of Indian Affairs list of federally
recognized tribes, notice templates with sample published notices, plans
of action, and comprehensive agreements. Subsequently, two addenda were
produced, the recommended care of NAGPRA items recovered from
inadvertent discoveries and intentional excavations and the newly
promulgated future applicability rule. Over 200 copies of the guidance
binders have been distributed to date.

The Park NAGPRA Program initiated a NPS project in 2007 to track when
and to whom human remains and cultural objects published in notices were
repatriated. As a result, the Park NAGPRA Program now has a nearly
complete record of repatriations by the NPS to date. Ms. Martin has
copies of the report for the Review Committee members.

The Park NAGPRA Program focuses on ensuring that all NPS units were
cognizant of and complying with the law and its regulations. The highest
priority of the Park NAGPRA Program was assisting parks with the process
of publishing Notices of Inventory Completion. The Park NAGPRA Program
was working to hold a training program to deal with inadvertent
discoveries and intentional excavations, with the assistance of Mr. Fred
York at the Pacific West Region, and was also working to convert the
1993 service-wide summary of unassociated funerary objects, sacred
objects, and objects of cultural patrimony from a paper format to a more
useful database.

Mr. Steponaitis stated he appreciated both the work of the Park NAGPRA
Program and the updates provided to the Review Committee. Mr.
Steponaitis stated he found the guidance binder very useful and would
appreciate copies of the updates. Mr. Steponaitis asked Ms. Martin to
comment on the reorganization and relocation of the Park NAGPRA Program
and its separation from the National NAGPRA Program office approximately
four years prior. Ms. Martin stated from her perspective the
reorganization has worked very well to help clarify the separation of
the Park NAGPRA Program and the National NAGPRA Program. Mr. Goodman
asked for more details on the XRF machine and its usage. Ms. Martin
stated that they had been working with the XRF machine for about a year
and the Intermountain Region Office was taking the lead to develop a
specific protocol for its use, in consultation with Indian tribes. One
collection in the Intermountain Region was tested, working with the
Indian tribes, and that collection was still in the repatriation
process. Ms. Augustine asked if the internship program was for Native
American students. Ms. Martin stated that the original intent of the
internship program was to work solely with Native American students, but
the program was expanded to include any interested students when
insufficient numbers of Native American students apply. Ms. Augustine
recommended having a spiritual Native person speak on cultural
sensitivity for students, as well as staff. Ms. Martin stated that was a
great idea.

# Review Committee's Report to Congress for 2007

Ms. Worl asked Mr. Goodman to join the subcommittee for drafting the
Review Committee's report to Congress for 2007, along with Mr. Kippen
and Mr. Steponaitis. Ms. Worl asked Mr. Steponaitis to Chair the
discussion on the Report to Congress for 2007.

## Discussion of Draft Report to Congress for 2007

Mr. Steponaitis stated that the subcommittee would like to present a
draft report to Congress for 2007 for the Review Committee members'
consideration. Mr. Steponaitis stated that the binders contained a copy
of the report to Congress for 2006 and a partial draft report to
Congress for 2007.

The subcommittee proposed adopting the Introduction, Review Committee
Activities, and Progress Made sections of the draft report to Congress
for 2007 with the following changes:

-   Under Review Committee activities, correct one typographical error,
    "...and the expired term held by Garrick Bailey was filled \[changed
    from 'filling'\] by Alan Goodman."

The subcommittee recommended that the Barriers Encountered section from
the report to Congress from 2006 be adopted with the following changes:

-   Replace the fifth sentence of the first paragraph with the
    following, "The National NAGPRA Program anticipates awarding grants
    in FY2008 totaling approximately \$1.8 million."

-   Delete the sixth sentence of the first paragraph which reads, "This
    amount is only about 54 percent of what applicants requested this
    year."

-   Replace the ninth sentence of the first paragraph with the
    following, "This shortfall totaled \$464,000 in FY2007."

-   Replace the second sentence of the second paragraph with the
    following, "Currently, a proposed rule for disposition of culturally
    unidentifiable human remains (43 CFR 10.11) has been published and
    public comment has been received."

-   Replace the last sentence of the second paragraph with the
    following, "The Review Committee considered the proposed rule for 43
    CFR 10.11 at its meeting of January 8, 2008, and unanimously passed
    a resolution recommending that a new proposed rule be published for
    public comment before a final rule is enacted."

The subcommittee recommended that the Recommendations section from the
report to Congress from 2006 be adopted with the following changes:

-   In the second sentence of the first paragraph, replace "At its April
    19-20, 2007 meeting" with "At its May 15-16, 2008 meeting."

-   Under number 1, Costs to Comply with NAGPRA, replace "FY2008" with
    "FY2009" in the first sentence, replace "FY2009" with "FY2010" in
    the last sentence, and correct one typographical error in the second
    bullet section changing "amounts" to "amount."

-   Add the following sentence to the end of number 1, Costs to Comply
    with NAGPRA, "With the recent promulgation of 43 CFR 10.13 and the
    pending promulgation of 43 CFR 10.7 and 43 CFR 10.11, we expect
    consultation activity to increase in coming years which will
    generate an increasing volume of NAGPRA grant requests."

## Review Committee Motion

Ms. Augustine made a motion to adopt the changes to the draft report to
Congress for 2007 as put forth by the subcommittee. Mr. Jones seconded
the motion. The motion passed by unanimous vote.

# Administrivia

## Upcoming Meetings

After discussion, the Review Committee members agreed to meet in
Seattle, WA, in the spring of 2009, and raised the possibility of
meeting in the fall of 2009 in Maine. For the Seattle, WA meeting, the
National NAGPRA Program will help determine a location and timing, with
the assistance of Mr. Jones. As a reminder to the members of the public,
Ms. Hutt stated that the next meeting of the Review Committee would be
October 15-16, 2008, at the Sheraton Suites San Diego at Symphony Hall,
San Diego, CA.

## Review and Findings Procedures

Ms. Worl stated that one of the agenda items was a review and discussion
of improvements to the Review Committee's Review and Findings Procedures
for the disposition of culturally unidentifiable human remains. The
Review Committee could receive increased requests following their
recommendation to the Secretary of the Interior to publish another
proposed rule on culturally unidentifiable human remains. Mr. Monroe
recommended developing a matrix to help facilitate the process. The
first column of the matrix would outline the types of evidence that must
be considered in making determinations regarding disposition of
culturally unidentified Native American human remains, the second column
would be a space for parties to concisely summarize the information
being presented in support of each type of evidence, and then a final
column allowing space for Review Committee members to jot notes as they
consider the requests. The form would be a summary, with the parties to
submit narrative and supporting documentation.

Mr. Steponaitis stated that at the Phoenix, AZ meeting the Review
Committee developed some changes for the Review and Findings Procedures,
which underwent review and refinement by the DOI before being adopted.
Mr. Steponaitis stated that he strongly felt one change was not good.
Mr. Steponaitis stated that bullet point number 5 approved by the Review
Committee at the meeting was to read as follows, "a concise description
of the forensic work, if any, that has been conducted on the remains
stating when and by whom the work was conducted." The final version
read, "all associated studies stating when and by whom this work was
conducted." Mr. Steponaitis stated that he felt strongly about using the
word "forensic" because there was a great deal of misunderstanding, not
only about the importance of having that sort of work completed but also
the misconception about NAGPRA that that type of study was prohibited or
not allowed by NAGPRA. In fact that sort of study was not prohibited and
was in many cases critical information in making determinations of
cultural affiliation or whether human remains are Native American and
thus fall under the Act. Mr. Steponaitis asked counsel for clarification
of whether the use of the word "forensic" was illegal. Mr. Simpson
stated that the use of that word was not illegal but the decision was
made to change the language after counsel determined that the language
initially proposed by the Review Committee could constrict what was
allowed under the law.

After discussion, Mr. Steponaitis stated he would yield on the use of
the word "forensic" and that his main objective was to make clear the
point that the Review Committee would like the kind of baseline
information that was missing in many of the requests presented earlier
at the meeting. The Review Committee agreed not to change the wording of
the Review and Findings Procedures and instead use the matrix proposed
by Mr. Monroe as a tool to highlight the types of information necessary
in disposition requests. Ms. Hutt proposed utilizing the matrix at the
next Review Committee meeting and then having the Review Committee
provide feedback. The DFO would review requests to ensure submissions
contain the necessary information and were suitable for consideration by
the Review Committee. Ms. Hutt stated that prior to the current meeting
the National NAGPRA Program implemented a pre-review by counsel of all
materials provided to the Review Committee, including requests for
disposition. The Review Committee members agreed that review was
necessary and helpful. Mr. Steponaitis stated it would be helpful to
have information broken out by accession number in the matrix in order
to be clear what was requested and what information was present in each
instance. Mr. Simpson stated that the Review Committee could make
different recommendations for accessions contained in one request.

## Subcommittee Budget

Ms. Worl asked if the budget would include funds to aid the work of the
Review Committee subcommittee on 43 CFR 10.7. Ms. Hutt stated the
subcommittee should feel free to present what they would like to do and
when to the National NAGPRA Program.

## Teleconference Format

The Review Committee members discussed the teleconference format and
agreed that to the extent possible they would like teleconference
meetings to be of an organizational/business nature and not convened to
deal with substantive issues.

# Public Comment

## Ms. Patricia Capone

Ms. Patricia Capone, Peabody Museum of Archaeology and Ethnology,
Harvard University, thanked the Review Committee for their efforts and
for the privilege of providing an update on NAGPRA implementation. Ms.
Capone thanked the Native nations and institutions for their welcome to
the area. The Peabody Museum of Archaeology and Ethnology implements
NAGPRA for one of the largest collections subject to the Act. As a
university museum, the Peabody Museum of Archaeology and Ethnology
regularly works with students and with Indigenous initiatives across the
university. The Peabody Museum of Archaeology and Ethnology works with
local neighboring Indian tribes to envision new approaches to
integrating repatriation, ethics, and civic engagement. Student interest
continually increases and brings new perspectives for raising awareness
of sovereignty, cultural diversity, and common humanity.

The Peabody Museum of Archaeology and Ethnology has implemented
requirements to enable the repatriation of over 3,000 human remains and
over 10,000 funerary objects, approximately 10 percent of the human
remains and funerary objects nationally that have been available for
repatriation. NAGPRA represents about 25 percent of the Peabody Museum
of Archaeology and Ethnology's overall collections interactions and
conversations, totaling over 500 per year. Of the culturally affiliated
collections, physical repatriation has been completed for approximately
2,700 individual human remains, 3,600 funerary objects, 1 sacred object,
57 objects of cultural patrimony, and 18 objects that are both sacred
objects and objects of cultural patrimony. During the past year there
have been six consultation visits, six physical repatriation events, and
numerous ongoing consultations that involve virtual information. Ms.
Capone stated she had information available to anyone who was interested
in accessing information online. Over the past fiscal year, 6 new
Federal Register notices were published which enabled the repatriation
of 2 human remains, 5 associated funerary objects, 2 unassociated
funerary objects, and 17 objects of cultural patrimony.

Ms. Capone stated that these wide-ranging efforts have given the Peabody
Museum of Archaeology and Ethnology experience with some of the Act's
successes and challenges. Based on this experience, the Peabody Museum
of Archaeology and Ethnology believes that clear standards are essential
and contribute to a collaborative process. The Peabody Museum of
Archaeology and Ethnology commented on the draft regulations for
culturally unidentifiable human remains, both individually as a
university museum and together with members of the Wampanoag
Repatriation Confederation. With its commitment to the letter and spirit
of NAGPRA, the Peabody Museum of Archaeology and Ethnology was glad to
continue this process and looks forward to more collaborative work under
the Act.

Mr. Kippen asked for clarification of what Ms. Capone meant by clear
standards. Ms. Capone stated she meant a process that could be followed
in the same way across the country that anyone could utilize in a
step-by-step manner, without vagueness which would allow different
interpretations of how the process should proceed. Mr. Monroe stated he
would like to recognize and applaud the efforts of the Peabody Museum of
Archaeology and Ethnology, which has been an extraordinary and
consistent job engaging in both the spirit and the letter of the law and
in carrying out consultations with respect. Ms. Worl thanked Ms. Capone
and the Peabody Museum of Archaeology and Ethnology for consistently
attending the Review Committee meetings. Ms. Worl stated she was
personally involved in a repatriation claim with the Peabody Museum of
Archaeology and Ethnology and she has appreciated their openness and
willingness to consult. Ms. Capone thanked Ms. Worl and Mr. Monroe and
stated that both she and her colleague Ms. Sandra Dong were available
throughout the meeting.

## Ms. Francis Kraus

Ms. Francis Kraus, Tlingit from Kake, AK, stated that before she was
born the missionaries came to Kake and decided that the Tlingit were
worshiping the dead who were buried and that totem pokes were evil.
Totem poles were actually a history of a family with carvings
representing the family houses, such as Eagle, Killer Whale, and Brown
Bear or Raven and Frog. The missionaries made the Tlingit exhume the
bodies and move them by boat to an island half mile out to sea, which
was still done to this day. Ms. Francis Kraus stated after listening to
NAGPRA stories if her body was found she would have to be identified
culturally and tribally and find out who owned it and then registered
and published to verify that she was truly dead and had cultural
identity.

## Mr. William Quackenbush/Mr. Reno Franklin

Mr. William Quackenbush, Tribal Historic Preservation Officer for the
Ho-Chunk Nation, stated he was present at the request of several tribes
in California to make a recommendation to the Secretary of the Interior
to formally review the University of California system, specifically the
University of California Berkeley, regarding their noncompliance towards
NAGPRA, based under Section 10.2 (b), civil penalties. The first day of
the meeting, Mr. Quackenbush provided the Review Committee members with
a number of documents from tribes in support of this request, outlining
their concerns and recommendations, including a copy of a resolution
passed by the Ho-Chunk Nation that Mr. Quackenbush read to the Review
Committee.

Mr. Reno Franklin (appearing telephonically), tribal council member for
the Kashia Pomo Tribe, thanked the Review Committee for allowing them
time to speak. Mr. Franklin stated that problems encountered with NAGPRA
compliance at the University of California system have affected Indian
tribes nationwide. These problems include serious failures to comply,
and include one institution, the University of California at San Diego,
that has failed to submit an inventory, and the Phoebe Heart Museum
which has issues surrounding their consultation and documentation on the
inventories. Mr. Franklin stated the concerns are specifically listed in
the information submitted to the Review Committee and could be backed up
with documentation. Mr. Franklin stated those were the reasons the
tribes were requesting that the National NAGPRA Program send its
compliance officer to the University of California system to review
compliance with NAGPRA.

Ms. Worl asked for comment by counsel of the Review Committee's purview
in this instance. Mr. Simpson stated that the Review Committee can make
a recommendation to the Secretary and can make recommendations to
universities or Indian tribes. The National NAGPRA Program's
jurisdiction and authority in this situation would be limited, largely
to investigating allegations of problems that may result in civil
penalty, as laid out in the regulations and statute as allegations of
civil penalty, and not a broad-ranging audit of university operations.
Ms. Worl stated that the Review Committee could urge consultation. Mr.
Steponaitis stated that he has been following the matter of the
University of California, Berkeley, through material submitted to the
Review Committee and contained on the web. Mr. Steponaitis stated as a
general observation that he was saddened by the tones of much of what
has been said. Mr. Steponaitis stated he hoped the parties in this
instance could find a way to work together productively, as other Indian
tribes and institutions have done across the country with a tone of
mutual respect. The Review Committee agreed to move forward with the
recommendation to urge the University of California to move ahead with
good faith consultation with all affected Indian tribes in a timely
manner. Mr. Quackenbush thanked the Review Committee for their efforts.

## Ms. Sandra Harris/Mr. Anthony Garcia

Ms. Sandra Harris, University of California at Berkeley, stated that she
has worked at the University of California for three years, and the
employees acknowledge the incredibly complex history of the university
and at the Berkeley campus in particular. They have been working to
address this in the reorganizations to expand the staff understanding,
the staff work, and the integration of multiple voices, multiple
perspectives, and to look for best practices. Since the update provided
to the Review Committee at the October 2007 meeting, the following open
positions have been filled: repatriation coordinator, Dr. Anthony
Garcia; a Native American education specialist; tribal outreach
coordinator; and an archaeologist. Three of those four individuals were
Native, as well as being incredibly well-versed and educated in their
specialties. A major record reorganization was completed; handwritten
records were computerized and database information and functions were
upgraded. Programmatic functions that were previously separated have
been integrated throughout the staff.

External relations have been improved, beginning with five regional
meetings with representatives from approximately 50 federally recognized
tribes. Extensive notes were taken at each meeting, and from those notes
a list of action items was developed including: documentation of the
repatriation process at the museum, which was available at the museum
website; digitization of catalog cards and ledgers, which improved
access to records previously held in separate locations on campus;
development of an online database so Indian tribes can access
information online, which was currently under tribal review; improved
communication and meetings with the chancellor; ongoing development of a
campus Native American advisory board; ongoing development of a model
for culturally sensitive care of collections; ongoing development of a
loan process for Native California artifacts to improve tribal access;
and renewed efforts to address ongoing claims. Ms. Harris stated that
they will continue to address the action items and develop a strategic
plan for NAGPRA compliance.

Mr. Anthony Garcia, repatriation coordinator for the Phoebe Hearst
Museum of Anthropology and member of the University of California
Berkeley NAGPRA Review Committee, stated that prior to obtaining his
position as repatriation coordinator this spring he worked on NAGPRA
issues with the Phoebe Hearst Museum of Anthropology for 3 years and
taught in the University of California system for 12 years. The
University has a very large, but poorly documented, collection which
dates back to the turn of the century. Mr. Garcia stated his first
priority as repatriation coordinator was to review the status of all
claims, and reported that the Phoebe Hearst Museum of Anthropology had
seven active claims. Mr. Garcia stated he receives a large number of
questions from tribal people regarding the NAGPRA process and plans to
develop a University of California NAGPRA instruction kit. In addition
the increased staff would hopefully present more opportunities for
outreach in the communities. Another area Mr. Garcia stated he would
like to address was the complicated process of showing collections to
visiting Indian tribes, due to the small gallery and current collection
organization.

Mr. Garcia stated the current staff was excellent and will work to help
integrate the functions of the different departments of the museum to
help fulfill the museum's responsibility in the NAGPRA repatriation
process. In addition, Native American staff members campus-wide were
working with the staff on events and to highlight the Native American
presence on campus. The chancellor, who was of American Indian descent
from Canada, has embraced the issue.

Ms. Worl thanked Ms. Harris and Mr. Garcia for their thorough report and
stated she has worked with the Phoebe Hearst museum on a successful
repatriation. Ms. Worl stated that it sounds as if the Phoebe Hearst
Museum was well on its way to fulfilling the Review Committee's
recommendation, and the Review Committee looked forward to hearing of
their continued progress. Mr. Kippen thanked Ms. Harris and Mr. Garcia
for their report and asked how people would be made aware of these
activities. Ms. Harris stated that they have begun addressing that issue
and plan to update their website, as well as distribute a newsletter
designed by their tribal liaison. Ms. Augustine asked how many human
remains were in their collection. Mr. Harris stated that they had 9,600
catalog records of human remains, an additional 118,000 catalog records
of objects, and 198,000 ethnographic and archaeological catalog records.
Mr. Harris stated that those numbers may change slightly as new evidence
surfaces. Ms. Augustine stated that Native Americans were pushing this
issue because of the large number of Native American human remains that
were still located in museums. Mr. Garcia stated that he regularly has
Native Americans tell him that human remains in the museum were from
their tribe but they did not want them to come back to the tribe. Ms.
Augustine stated that when human remains have been disturbed there was a
fear that individuals would carry that sadness and feeling back to their
families and homes. Ms. Augustine stated that there were Native
Americans who have been chosen by the spirits to do reburials and Indian
tribes who were willing to do reburials for others who could not due to
their spiritual beliefs.

## Ms. Lori Breslauer

Ms. Lori Breslauer, assistant general counsel for the Field Museum of
Natural History, stated she would like to comment on several earlier
discussion points from the meeting. In response to Mr. Steponaitis's
point regarding the rigidity of the notice process, Ms. Breslauer stated
that in the past that was definitely true, but more recently working
with Ms. Lavallee the process has been very positive, with Ms.
Lavallee's recommended changes being very appropriate and appreciated.
Improvements may be due in part to institutions becoming educated in
terms of notice submission and also to the National NAGPRA Program being
more willing to publish a notice as submitted. Ms. Breslauer stated that
one reason for delay in publication after a notice was submitted to the
National NAGPRA Program was that some notices were returned for
additional information, which in some cases was very difficult to obtain
and required additional research and consultation. Ms. Breslauer stated
that the Field Museum of Natural History has reduced their list to five
outstanding old notices, which they have been working diligently to
complete, hopefully by the October 2008 Review Committee meeting. In
response to Ms. Bambi Kraus's comments regarding the discrepancy between
the number of human remains in an inventory compared to notices, Ms.
Breslauer stated that additional consultation and information during the
time between publishing the inventory and submitting the notice may
result in multiple notices being published for human remains referenced
in one inventory with not necessarily a one-to-one relationship. The
Review Committee thanked Ms. Breslauer for her comments.

## Ms. Kelly Jackson-Golly

Ms. Kelly Jackson-Golly, Tribal Historic Preservation Officer for the
Lac du Flambeau Band of Lake Superior Chippewa Indians, stated she
appreciated the opportunity to address the Review Committee. The Lac du
Flambeau Band, with 11 other Wisconsin Indian tribes, has been working
with the Logan Museum of Anthropology and the Wisconsin Historical
Society on the repatriation of culturally unidentifiable Native American
human remains, utilizing a NAGPRA grant which will end in July 2008. Ms.
Jackson-Golly stated that after attending the meeting, she felt the
group was not quite ready to present their issue to the Review
Committee. This was unfortunate because their grant would expire in July
2008 but the next grant cycle would not begin until 2009, which could
potentially delay the process for another year and a half to two years.
Ms. Jackson-Golly stated that one recommendation to enhance the grant
program would be to provide annual awards at two different times in the
year, which could help keep the momentum going between museums and
Indian tribes. Ms. Jackson-Golly stated that just as many institutions
have large collections and need to deal with many Indian tribes, Indian
tribes often have one person who needs to deal with many institutions
and many inventories. As a result, many Indian tribes were behind
institutions as far as progress in the process of dealing with NAGPRA.
Ms. Jackson-Golly stated the idea of developing a training program for
museums, Indian tribes, and federal agencies was phenomenal, and
recommended including Indian tribes in the development of those training
programs.

Regarding the proposed processes for dealing with the intersection of
state laws and NAGPRA, Ms. Jackson-Golly recommended that the Review
Committee consider developing guidance on an approach for different
groups to start negotiating provisions for such agreements. Ms.
Jackson-Golly asked how long it takes for a response after the Review
Committee makes a recommendation to the Secretary. Mr. McKeown stated
that some recommendations go to the Secretary in a matter of days, while
more complicated recommendations may need verification with the
transcript and could take up to a few weeks. Ms. Jackson-Golly thanked
the Review Committee for visiting their part of the country and
expressed respect for the Review Committee's level of responsibility in
making these decisions. Ms. Worl thanked Ms. Jackson-Golly for her
comments and recommendations. Mr. Kippen stated that he really liked Ms.
Jackson-Golly's suggestion to incorporate the use of information gained
through past successful grants as training materials.

## Ms. Jan Bernstein

Ms. Jan Bernstein, Bernstein and Associates, thanked the Review
Committee for her second opportunity to speak at the meeting. Ms.
Bernstein thanked the Review Committee for recommending at a previous
meeting the preparation of procedures for presenting documentation for a
disposition request, which she used in preparing the presentation she
made to the Review Committee the first day of the meeting regarding the
request for disposition by the Pioneer Historical Society. Ms. Bernstein
asked the following questions:

-   What level of proof is used when determining if human remains are
    Native American? Is it the same level of proof as determining
    cultural affiliation?

-   What types of evidence are considered when making a Native American
    determination? Is it the same type of evidence used for cultural
    affiliation?

-   Would new oral tradition, such as spirits speaking or guiding a
    tribe to make a determination that human remains are those of a
    Native American, be used as valid lines of evidence?

-   Is the Review Committee concerned that the Pioneer Historical
    Society finding made earlier at the meeting would encourage other
    museums to make determinations on their own that poorly documented
    human remains are not covered by NAGPRA?

Ms. Worl thanked Ms. Bernstein and stated that her questions would be
considered and a response given.

# Closing Comments

Mr. Monroe stated that this meeting would likely be his last as his term
was ending. Mr. Monroe thanked the museums, federal agencies, and Indian
tribes who work very hard to make the law a reality. NAGPRA was designed
and intended to help correct and deal with some very basic and
unfortunate kinds of mistakes and errors of tragic proportion in the
past, and NAGPRA requires true consultation, working together to
understand the world we occupy individually or as groups and most of all
as human beings. If NAGPRA was helpful in making us all remember that we
are human beings and striving to achieve that in the fullest sense of
the term it will be successful. Ms. Worl thanked Mr. Monroe and stated
that his contributions to NAGPRA were immeasurable.

Ms. Hutt stated terms were expiring for three members of the Review
Committee, Mr. Monroe, Mr. Jones, and Mr. Steponaitis. Ms. Hutt stated
that NAGPRA could not function without the time, attention, and effort
of each member of the Review Committee. On behalf of the National NAGPRA
Program, Ms. Hutt gave her deepest thanks for all of their work.

Ms. Worl thanked Mr. Jones and Mr. Steponaitis for their great
contributions on the Review Committee. Ms. Worl stated that Mr. Jones
has strengthened the Review Committee with his reminders of heart and
spirit and making the law fit by integrating those things. Mr.
Steponaitis has been a strong force on the Review Committee, showing
that the Review Committee members can have different viewpoints and
still work with this law.

Mr. Steponaitis thanked Ms. Worl for her kind words and stated it has
been an honor to serve on the Review Committee and a pleasure to serve
with his fellow Review Committee members. Mr. Steponaitis thanked the
National NAGPRA Program staff for their work and the audience for their
participation and very important role in this process. Mr. Jones thanked
the audience members for their dedication and stated that his work on
the Review Committee has helped him grow and has renewed his dedication
toward this very important work.

# Meeting Adjournment

The meeting was adjourned at 5:30 p.m., Friday, May 16, 2008. 

Certified --

Mr. Timothy McKeown, Date

Program Officer, National NAGPRA Program

Designated Federal Officer, Native American Graves Protection

and Repatriation Review Committee

Approved on behalf of the Review Committee --

Ms. Rosita Worl Date

Chair, Native American Graves Protection

and Repatriation Review Committee