I 

118TH CONGRESS 

1ST SESSION H. R. 5865 

To require the Secretary of the Army to establish a pilot program to protect 

Native American burial sites, village sites, and cultural resources discovered at Corps of Engineers civil works projects in the Sacramento River 

watershed, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 2, 2023 

Mr. LAMALFA (for himself and Mr. GARAMENDI) introduced the following bill; 

which was referred to the Committee on Transportation and Infrastructure 

A BILL 

To require the Secretary of the Army to establish a pilot 

program to protect Native American burial sites, village 

sites, and cultural resources discovered at Corps of Engineers civil works projects in the Sacramento River watershed, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Native American Bur5 ial Sites and Cultural Resources Protection Act’’. 


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1 SEC. 2. SACRAMENTO RIVER WATERSHED NATIVE AMER2 ICAN SITE AND CULTURAL RESOURCE PRO3 TECTION PILOT PROGRAM. 

4 (a) ESTABLISHMENT.—Not later than 180 days after 

5 the date of enactment of this Act, the Secretary shall es6 tablish a pilot program in accordance with this section to 

7 protect Native American burial sites, village sites, and cul8 tural resources identified or discovered at civil works 

9 projects in the watershed of the Sacramento River and its 

10 tributaries, including the American, Bear, Yuba, and 

11 Feather Rivers, in the State of California. 

12 (b) REBURIAL.— 

13 (1) REBURIAL AREAS.—In carrying out the 

14 pilot program, the Secretary shall, in consultation 

15 with and with the consent of each affected Indian 

16 Tribe, identify, and, as applicable, cooperate with 

17 appropriate Tribal, local, State, and Federal Govern18 ment property owners to set aside, areas that may 

19 be used for the reburial of Native American human 

20 remains and funerary objects that— 

21 (A) have been identified or discovered at 

22 the site of a covered civil works project; 

23 (B) have been rightfully claimed by any af24 fected Indian Tribe; and 

25 (C) can be reburied in such areas in a 

26 manner secure from future disturbances, with 


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1 the consent of such property owner or owners, 

2 as applicable. 

3 (2) RECOVERY AND REBURIAL STANDARDS.— 

4 (A) TIMING OF RECOVERY.— 

5 (i) REQUIREMENTS.—In carrying out 

6 the pilot program, the Secretary shall work 

7 in good faith with each affected Indian 

8 Tribe, and each owner of property affected 

9 by the recovery process, to ensure that— 

10 (I) the recovery of a burial site, 

11 village site, or cultural resources from 

12 the site of a covered civil works 

13 project under the pilot program is 

14 completed, pursuant to a written plan 

15 or protocol, not later than 45 days 

16 after the initiation of such recovery; 

17 and 

18 (II) with respect to a burial site, 

19 village site, or cultural resources iden20 tified at the site of a covered civil 

21 works project before construction of 

22 the covered civil works project com23 mences, such recovery is completed 

24 before such construction commences 

25 on the portion of the covered civil 


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1 works project affected by the recovery 

2 process. 

3 (ii) ALTERNATIVE TIMETABLE.—Not4 withstanding the deadlines established by 

5 clause (i), the Secretary, each relevant 

6 non-Federal interest for the covered civil 

7 works project, each affected Indian Tribe, 

8 and each owner of property affected by the 

9 recovery process may negotiate and agree 

10 to an alternative timetable for recovery 

11 other than that required by such clause, 

12 based on the circumstances of the applica13 ble covered civil works project. 

14 (B) GUIDANCE.—In carrying out sub15 section (a), the Secretary shall develop and 

16 issue written guidance for recovery and reburial 

17 under the pilot program that meets or exceeds 

18 the recovery and reburial standards in policy 

19 statements and guidance issued by the Advisory 

20 Council on Historic Preservation. 

21 (C) EMINENT DOMAIN PROHIBITION.—No 

22 Federal entity may exercise the power of emi23 nent domain to acquire any property to be used 

24 for reburial under the pilot program. 

25 (3) RECOVERY AND REBURIAL.— 


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1 (A) RECOVERY AND REBURIAL BY SEC2 RETARY.—In carrying out the pilot program, 

3 the Secretary shall, at Federal expense, in con4 sultation with and with the consent of each af5 fected Indian Tribe, and with appropriate dig6 nity and in accordance with the guidance devel7 oped under paragraph (2)— 

8 (i) recover any cultural resources 

9 identified or discovered at the site of a cov10 ered civil works project and rightfully 

11 claimed by any affected Indian Tribe; 

12 (ii) rebury any human remains and 

13 funerary objects so recovered at the appli14 cable areas identified and set aside under 

15 paragraph (1); and 

16 (iii) repatriate any other cultural re17 sources so recovered to the affected Indian 

18 Tribe that has rightfully claimed such cul19 tural resources. 

20 (B) TRIBAL AUTHORIZATION.— 

21 (i) IN GENERAL.—Upon the request 

22 of an affected Indian Tribe, the Secretary 

23 shall authorize, pursuant to a memo24 randum of agreement entered into under 

25 clause (ii), the Indian Tribe to assume reVerDate Sep 11 2014 00:07 Oct 05, 2023 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5865.IH H5865

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1 covery and reburial responsibilities under 

2 the pilot program of cultural resources 

3 that have been rightfully claimed by the af4 fected Indian Tribe, and shall reimburse 

5 the affected Indian Tribe for reasonable 

6 costs directly related to such recovery and 

7 reburial. 

8 (ii) MEMORANDUM OF AGREEMENT.— 

9 In carrying out clause (i)— 

10 (I) with respect to a burial site, 

11 village site, or cultural resources iden12 tified at a covered civil works project 

13 before construction of the project 

14 commences, the Secretary shall, upon 

15 request by the affected Indian Tribe, 

16 enter into a written memorandum of 

17 agreement with the affected Indian 

18 Tribe to authorize the necessary re19 covery and reburial activities before 

20 such construction commences; and 

21 (II) with respect to a burial site, 

22 village site, or cultural resources dis23 covered at a covered civil works 

24 project after construction of the 

25 project commences, the Secretary 


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1 shall, upon request by the affected In2 dian Tribe, enter into a written 

3 memorandum of agreement with the 

4 affected Indian Tribe to authorize the 

5 necessary recovery and reburial activi6 ties not later than 45 days after such 

7 discovery. 

8 (iii) LIMITATION.—Reimbursement 

9 under clause (i) shall not exceed 1 percent 

10 of the total cost of construction of the ap11 plicable covered civil works project, pursu12 ant to the terms outlined in paragraph (6). 

13 (4) TRIBAL MONITORS.— 

14 (A) IN GENERAL.—In carrying out the 

15 pilot program, the Secretary may hire a Tribal 

16 monitor or monitors, and shall allow any af17 fected Indian Tribe to hire a Tribal monitor or 

18 monitors, at Federal expense, during the con19 struction of any covered civil works project, for 

20 each area of construction, including for each 

21 burial site and village site with respect to which 

22 Native American cultural resources are being 

23 recovered for reburial. 

24 (B) QUALIFICATIONS.—The Secretary or 

25 affected Indian Tribe, as applicable, shall enVerDate Sep 11 2014 00:07 Oct 05, 2023 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5865.IH H5865

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1 sure that preference in hiring Tribal monitors 

2 under this paragraph is provided to qualified 

3 Native Americans, including individuals who— 

4 (i) have a professional relationship 

5 with the affected Indian Tribe; or 

6 (ii) possess knowledge of, and exper7 tise in, the customs of the affected Indian 

8 Tribe. 

9 (C) LIMITATION.—The Federal expense of 

10 Tribal monitors hired under this paragraph 

11 shall not exceed 1 percent of the total cost of 

12 construction of the applicable covered civil 

13 works project, pursuant to the terms outlined in 

14 paragraph (6). 

15 (5) IDENTIFICATION AND INVENTORY.—In car16 rying out the pilot program, the Secretary shall ac17 cept identifications made by an affected Indian 

18 Tribe of Native American burial sites and village 

19 sites at the site of a covered civil works project, and 

20 include such identifications in any inventory docu21 ment for such project. 

22 (6) TIMING OF PAYMENTS.—The Secretary 

23 shall enter into a contract or other agreement to 

24 make a payment to an affected Indian Tribe for re25 imbursement of reasonable costs under paragraph 


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1 (3)(B) or actual expenses under paragraph (4), sub2 ject to market-based pricing, which payment shall be 

3 made not later than 90 days after the affected In4 dian Tribe submits an invoice for such costs or ex5 penses to the Secretary. 

6 (c) CONVEYANCE AUTHORITY.— 

7 (1) IN GENERAL.—Subject to paragraph (2), 

8 notwithstanding any other provision of law, the Sec9 retary may convey to an affected Indian Tribe for 

10 use as a cemetery or reburial area any area that is 

11 located on land owned by the Department of the 

12 Army and is identified and set aside under sub13 section (b)(1). 

14 (2) RETENTION OF NECESSARY PROPERTY IN15 TERESTS.—In carrying out paragraph (1), the Sec16 retary shall retain any necessary right-of-way, ease17 ment, or other property interest that the Secretary 

18 determines to be necessary to carry out the author19 ized purposes of any Corps of Engineers project re20 lated to the conveyed land. 

21 (d) CONFIDENTIALITY OF INFORMATION PRO22 VIDED.— 

23 (1) IN GENERAL.—In carrying out subsection 

24 (a), the Secretary shall develop and issue written 

25 guidance regarding the confidentiality of information 


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1 provided to the Department of the Army by Indian 

2 Tribes in connection with any covered civil works 

3 project under the pilot program. 

4 (2) NONPUBLIC INFORMATION.—The following 

5 information provided to the Department of the Army 

6 by an Indian Tribe under the pilot program shall be 

7 treated as confidential and nonpublic information, to 

8 protect Native American burial sites, village sites, 

9 and cultural resources, and their locations, from un10 authorized excavation, desecration, or vandalism: 

11 (A) Information regarding the locations of 

12 burial sites, village sites, and cultural resources, 

13 including maps designating such locations. 

14 (B) Information regarding cultural or tra15 ditional practices related to such sites or re16 sources. 

17 (e) AVOIDANCE OF DUPLICATION.—In carrying out 

18 the pilot program, the Secretary shall avoid, to the max19 imum extent practicable, duplication of efforts relating to 

20 compliance with this section and any other applicable pro21 vision of law. 

22 (f) APPLICABILITY.— 

23 (1) IN GENERAL.—Section 208 of the Water 

24 Resources Development Act of 2000 (33 U.S.C. 

25 2338) shall not apply to a covered civil works project 


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1 during the period during which the Secretary is car2 rying out the pilot program. 

3 (2) EXISTING CONTRACTS.—Nothing in this 

4 section shall affect any contract relating to a covered 

5 civil works project entered into by the Secretary of 

6 the Army before the date of enactment of this Act. 

7 (g) PERIOD.—The Secretary shall carry out the pilot 

8 program until the date that is 4 years after the date on 

9 which the pilot program is established. 

10 (h) DEFINITIONS.—In this section: 

11 (1) AFFECTED INDIAN TRIBE.—The term ‘‘af12 fected Indian Tribe’’ means any Indian Tribe that 

13 attaches religious or other significance to any burial 

14 site, village site, or cultural resources identified or 

15 discovered at a covered civil works project. 

16 (2) BURIAL SITE.—The term ‘‘burial site’’ 

17 means any natural or prepared physical location, 

18 whether originally below, on, or above the surface of 

19 the earth, where Native American cultural resources 

20 are present as a result of a death rite or ceremony 

21 of a culture. 

22 (3) COVERED CIVIL WORKS PROJECT.—The 

23 term ‘‘covered civil works project’’ means a civil 

24 works project that is— 


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1 (A) located in the watershed of the Sac2 ramento River and its tributaries, including the 

3 American, Bear, Yuba, and Feather Rivers, 

4 within the State of California; 

5 (B) being constructed, reconstructed, or 

6 repaired, or operated and maintained, using 

7 Federal funds; and 

8 (C) owned, authorized, permitted, carried 

9 out, or operated and maintained by the Depart10 ment of the Army, including a project carried 

11 out by a non-Federal interest under section 204 

12 of the Water Resources Development Act of 

13 1986 (33 U.S.C. 2232) or section 1043 of the 

14 Water Resources Reform and Development Act 

15 of 2014 (33 U.S.C. 2201 note). 

16 (4) CULTURAL RESOURCES.—The term ‘‘cul17 tural resources’’ means— 

18 (A) human remains; or 

19 (B) funerary objects or other ceremonial 

20 objects. 

21 (5) FUNERARY OBJECTS.—The term ‘‘funerary 

22 objects’’ means items that are associated with the 

23 death rite or ceremony of a culture. 

24 (6) HUMAN REMAINS.—The term ‘‘human re25 mains’’ means the physical remains of a human 


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1 body, including such remains that have been cre2 mated and that may be in any state of decomposi3 tion or skeletal completeness (including ashes or 

4 small bone fragments). 

5 (7) INDIAN TRIBE.—The term ‘‘Indian Tribe’’ 

6 has the meaning given that term in section 102 of 

7 the Federally Recognized Indian Tribe List Act of 

8 1994 (25 U.S.C. 5130). 

9 (8) PILOT PROGRAM.—The term ‘‘pilot pro10 gram’’ means the pilot program established under 

11 this section. 

12 (9) RIGHTFULLY CLAIMED.—The term ‘‘right13 fully claimed’’ means claimed by— 

14 (A) with respect to cultural resources iden15 tified or discovered on Federal or Tribal lands 

16 at the site of a covered civil works project— 

17 (i) the person or entity with owner18 ship or control of the cultural resources 

19 under section 3 of the Native American 

20 Graves Protection and Repatriation Act 

21 (25 U.S.C. 3002); or 

22 (ii) with respect to cultural resources 

23 not subject to such Act, the appropriate 

24 person or entity determined in accordance 


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1 with the priority order established by such 

2 section; and 

3 (B) with respect to cultural resources iden4 tified or discovered on other lands at the site of 

5 a covered civil works project— 

6 (i) in the case of Native American 

7 human remains and funerary objects asso8 ciated with such remains, the lineal de9 scendants of the Native American, as de10 termined in accordance with the laws of 

11 the State of California; or 

12 (ii) in any case in which such lineal 

13 descendants cannot be ascertained, and in 

14 the case of other funerary objects or other 

15 ceremonial objects— 

16 (I) the Indian Tribe that has the 

17 closest cultural affiliation with the 

18 cultural resources; or 

19 (II) if the cultural affiliation of 

20 the cultural resources cannot be rea21 sonably ascertained— 

22 (aa) the Indian Tribe that is 

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1 tural resources were identified or 

2 discovered; or 

3 (bb) if it can be shown by a 

4 preponderance of the evidence 

5 that a different Indian Tribe has 

6 a stronger cultural relationship 

7 with the cultural resources than 

8 the Indian Tribe specified in item 

9 (aa), the Indian Tribe that has 

10 the strongest demonstrated rela11 tionship with such cultural re12 sources. 

13 (10) SECRETARY.—The term ‘‘Secretary’’ 

14 means the Secretary of the Army, acting through 

15 the Chief of Engineers. 

16 (11) VILLAGE SITE.—The term ‘‘village site’’ 

17 means any natural or prepared physical location, 

18 whether below, on, or above the surface of the earth, 

19 where a Native American village has been present. 

Æ 


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