The Secretary has published proposed regulations regarding the
disposition of culturally unidentifiable human remains. The State of
California Native American Heritage Commission offers the following
comments:

**Comment**: The Native American Heritage Commission is the State of
California Agency charged by law with protection of Native American
sacred sites, cultural sites, Native American remains, burial sites and
artifacts. The NAHC supports the proposed regulations as a positive step
in the long overdue repatriation of Native American remains and
associated cultural artifacts. The NAHC recognizes that the proposed
regulations may need further definition of terms and definition of
procedures to be workable. In addition to the procedures set out in the
proposed regulations, the NAHC supports the NAGPRA Advisory Committee's
recommendation in regard to drawing on regional consortia to consult and
advise with regard to unidentifiable remains.

The proposed regulations preamble captioned, *[Categories of Culturally
Unidentifiable Human Remains]{.underline}* sets out three categories

**(1)** Those for which cultural affiliation could be determined but the
appropriate Native American group is not federally recognized as an
Indian tribe. If I understand the regulations, in this instance there is
sufficient evidence to show cultural affiliation (shared group identity
which can be reasonably traced historically or prehistorically between a
present day Indian tribe ...and an identifiable earlier group, but the
cultural affiliation is with a non-federally recognized tribe. This is
established by a preponderance of the evidence based on geographical,
kinship, biological, oral tradition, historical evidence or other
information or expert opinion reasonably leading to such a conclusion.
For example evidence may establish cultural affiliation of remains with
the Ohlone in the Bay area, a non federally recognized tribe. Although
identified, these remains are considered culturally unidentifiable
because no federally recognized Indian tribe has been identified.
Presumably under the proposed regs the Secretary could recommend return
to the Ohlone remains (with the assent of the federally recognized
tribes.) based 10.6 (a) (2) (ii) (closest cultural affiliation, or even
under 10.6 (A) (iii) (cultural affiliation cannot be ascertained but
objects come from aboriginal territory.) In addition the proposed regs
might allow repatriation to the Ohlone under sect 10.11 (c) (1) (iii)
(A) "cultural relationship" to the region or (B) to the region in which
museum or Federal agency is located.

**Comment:** The NAHC supports the above regulation.

**(2)** The second category of remains are those that represent an
identifiable earlier group, but for which no present day Indian tribe
has been identified by the museum or Federal agency. These are
culturally unidentifiable in that there is no showing of cultural
affiliation or relationship to a present day Indian tribe. Here
presumably the proposed regs provide for a showing of cultural
relationship by federally recognized tribes to the region where remains
were unearthed or to the area where the repository is located. Failing
this, the Secretary could recommend return to non federally recognized
tribes showing a cultural relationship.

**Comment**: The NAHC supports the above regulation

**(3**) The third category are those for which the museum or Federal
agency believes that evidence is insufficient to identify an earlier
group. Here, there is insufficient information to identify the earlier
group and the proposed regs would provide for return to the tribe
showing "cultural relationship" to the region where the repository is
located. The drafters have specifically asked for comments on the
showing of "cultural relationship."

**Comment:** The Act defines "cultural affiliation" as a "relationship
of shared group identity which can be reasonably traced historically or
prehistorically between a present day Indian tribe ...and an
identifiable earlier group." The use of the term "cultural relationship"
is meant to provide a means for linkage (where information on the
earlier group is limited or non existent) to the geographical area where
the remains were recovered.

Therefore, it would be appropriate to require a showing that there is
some sort of relationship that can be shown historically or
prehistorically between a present day Indian tribe and the geographical
area in which the remains were recovered or housed. The relationship
should be based on habitation, tribal history, oral tradition, migration
and creation stories, linguistic or other information including evidence
from tribal people that are experts, that is, tribal elders that are
tribal historians and keepers of traditional knowledge. The threshold
should simply be that there is evidence that reasonably shows the
relationship to a region. It is recommended that defining cultural
relationship to a region can best be accomplished by .consultation with
regional consortia of tribes/of tribes that in many regions have come
together to address cultural preservation and repatriation issues. (It
should be noted that the Act does not require a preponderance of the
evidence standard in establishing cultural affiliation, so I do not
believe this threshold standard would be appropriate here).

**(4)** The proposed regs provide that if none of the Indian tribes
identified in ( c)(1) accepts control of the remains, and if the
Secretary recommends disposition to a non federally recognized tribe or

their re-interment per state law, the museum or federal agency *may*
transfer control of remains.

**Comment:** The museum or Federal Agency should be mandated to offer to
transfer control of remains rather than having the Secretary's
recommendation advisory.

Also California enacted a comprehensive statutory scheme paralleling
NAGPRA found at Health and Safety Code 8010 et seq providing for
repatriation to federally recognized tribes as well as non-federally
recognized tribes. It is recommended that the proposed regs also provide
for disposition in consultation with appropriate state agencies and
regional consortia.

**(5) Comment:** It is recommended that not only culturally identifiable
remains, but also funerary objects that are associated with culturally
unidentifiable remains be mandated transferred.

**(6) Comment:** There should be a mandatory requirement for
Notification to non federally recognized tribes in the process.

**(7) Comment**: Resources should be made available to enable tribes
that do not have sufficient resources to consult and repatriate

Submitted by Anthony Madrigal, General Counsel NAHC