I 

117TH CONGRESS 

2D SESSION H. R. 6716 

To amend the Water Resources Development Act of 2000 to protect Native 

American burial sites, village sites, and cultural resources discovered 

at civil works projects of the Corps of Engineers, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 11, 2022 

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

which was referred to the Committee on Transportation and Infrastructure 

A BILL 

To amend the Water Resources Development Act of 2000 

to protect Native American burial sites, village sites, 

and cultural resources discovered at civil works projects 

of the Corps of Engineers, 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. REBURIAL AND CONVEYANCE AUTHORITY. 

2 (a) DEFINITIONS.—Section 208(a) of the Water Re3 sources Development Act of 2000 (33 U.S.C. 2338(a)) is 

4 amended to read as follows: 

5 ‘‘(a) DEFINITIONS.—In this section: 

6 ‘‘(1) AFFECTED INDIAN TRIBE.—The term ‘af7 fected Indian Tribe’ means any Indian Tribe that 

8 attaches religious or other significance to any burial 

9 site, village site, or cultural resources identified or 

10 discovered at a covered civil works project. 

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

12 means any natural or prepared physical location, 

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

14 the earth, where Native American cultural resources 

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

16 of a culture. 

17 ‘‘(3) COVERED CIVIL WORKS PROJECT.—The 

18 term ‘covered civil works project’ means a civil 

19 works project— 

20 ‘‘(A) that is being carried out, or operated 

21 and maintained, using Federal funds; and 

22 ‘‘(B) that is owned, authorized, permitted, 

23 carried out, or operated and maintained by the 

24 Department of the Army, including a project 

25 carried out by a non-Federal interest under sec26 tion 204 of the Water Resources Development 


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1 Act of 1986 (33 U.S.C. 2232) or section 1043 

2 of the Water Resources Reform and Develop3 ment Act of 2014 (33 U.S.C. 2201 note). 

4 ‘‘(4) CULTURAL RESOURCES.—The term ‘cul5 tural resources’ means— 

6 ‘‘(A) human remains; or 

7 ‘‘(B) funerary objects or other ceremonial 

8 objects. 

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

10 objects’ means items that are associated with the 

11 death rite or ceremony of a culture. 

12 ‘‘(6) HUMAN REMAINS.—The term ‘human re13 mains’ means the physical remains of a human body, 

14 including such remains that have been cremated and 

15 that may be in any state of decomposition or skeletal 

16 completeness (including ashes or small bone frag17 ments). 

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

19 has the meaning given that term in section 4(e) of 

20 the Indian Self-Determination and Education Assist21 ance Act (25 U.S.C. 5304(e)). 

22 ‘‘(8) RIGHTFULLY CLAIMED.—The term ‘right23 fully claimed’ means claimed by— 

24 ‘‘(A) with respect to cultural resources 

25 identified or discovered on Federal or Tribal 


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1 lands at the site of a covered civil works 

2 project— 

3 ‘‘(i) the person or entity with owner4 ship or control of the cultural resources 

5 under section 3 of the Native American 

6 Graves Protection and Repatriation Act 

7 (25 U.S.C. 3002); or 

8 ‘‘(ii) with respect to cultural resources 

9 not subject to such Act, the appropriate 

10 person or entity determined in accordance 

11 with the priority order established by such 

12 section; and 

13 ‘‘(B) with respect to cultural resources 

14 identified or discovered on other lands at the 

15 site of a covered civil works project— 

16 ‘‘(i) in the case of Native American 

17 human remains and funerary objects asso18 ciated with such remains, the lineal de19 scendants of the Native American, as de20 termined in accordance with the laws of 

21 the State in which the site is located; or 

22 ‘‘(ii) in any case in which such lineal 

23 descendants cannot be ascertained, and in 

24 the case of other funerary objects or other 

25 ceremonial objects— 


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1 ‘‘(I) the Indian Tribe with the 

2 highest priority under the priority 

3 order established by the laws of the 

4 State in which the site is located; or 

5 ‘‘(II) if the State in which the 

6 site is located has not so established a 

7 priority order— 

8 ‘‘(aa) the Indian Tribe that 

9 has the closest cultural affiliation 

10 with the cultural resources; or 

11 ‘‘(bb) if the cultural affili12 ation of the cultural resources 

13 cannot be reasonably 

14 ascertained— 

15 ‘‘(AA) the Indian Tribe 

16 that is recognized as aborigi17 nally occupying the area in 

18 which the cultural resources 

19 were identified or discov20 ered; or 

21 ‘‘(BB) if it can be 

22 shown by a preponderance 

23 of the evidence that a dif24 ferent Indian Tribe has a 

25 stronger cultural relationVerDate Sep 11 2014 04:16 Feb 17, 2022 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H6716.IH H6716

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1 ship with the cultural re2 sources than the Indian 

3 Tribe specified in subitem 

4 (AA), the Indian Tribe that 

5 has the strongest dem6 onstrated relationship with 

7 such cultural resources. 

8 ‘‘(9) VILLAGE SITE.—The term ‘village site’ 

9 means any natural or prepared physical location, 

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

11 where a Native American village has been present.’’. 

12 (b) RECOVERY AND REBURIAL REQUIREMENTS.— 

13 Section 208(b) of the Water Resources Development Act 

14 of 2000 (33 U.S.C. 2338(b)) is amended to read as fol15 lows: 

16 ‘‘(b) REBURIAL.— 

17 ‘‘(1) REBURIAL AREAS.—In consultation with 

18 and with the consent of each affected Indian Tribe, 

19 the Secretary shall identify, and, as applicable, co20 operate with appropriate property owners to set 

21 aside, areas that may be used for the reburial of Na22 tive American human remains and funerary objects 

23 that— 

24 ‘‘(A) have been identified or discovered at 

25 the site of a covered civil works project; 


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1 ‘‘(B) have been rightfully claimed by any 

2 affected Indian Tribe; and 

3 ‘‘(C) can be reburied in such areas in a 

4 manner secure from future disturbances, with 

5 the consent of the property owner or owners, as 

6 applicable. 

7 ‘‘(2) RECOVERY AND REBURIAL STANDARDS.— 

8 ‘‘(A) TIMING OF RECOVERY.— 

9 ‘‘(i) REQUIREMENTS.—The Secretary 

10 shall work in good faith with each affected 

11 Indian Tribe, and each owner of property 

12 affected by the recovery process, to ensure 

13 that— 

14 ‘‘(I) the recovery from the site of 

15 a covered civil works project of Native 

16 American cultural resources under 

17 this section is completed, pursuant to 

18 a written plan or protocol, not later 

19 than 45 days after the initiation of re20 covery from the site; and 

21 ‘‘(II) with respect to a burial site, 

22 village site, or cultural resources iden23 tified at the site of a covered civil 

24 works project before construction of 

25 the covered civil works project comVerDate Sep 11 2014 04:16 Feb 17, 2022 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H6716.IH H6716

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1 mences, such recovery is completed 

2 before such construction commences 

3 on the portion of the covered civil 

4 works project affected by the recovery 

5 process. 

6 ‘‘(ii) ALTERNATIVE TIMETABLE.— 

7 Notwithstanding the deadlines established 

8 by clause (i), the Secretary, each relevant 

9 non-Federal interest for the covered civil 

10 works project, each affected Indian Tribe, 

11 and each owner of property affected by the 

12 recovery process may negotiate and agree 

13 to an alternative timetable for recovery 

14 other than that required by such clause, 

15 based on the circumstances of the applica16 ble covered civil works project. 

17 ‘‘(B) GUIDANCE.—Not later than 180 days 

18 after the date of enactment of the Native Amer19 ican Burial Sites and Cultural Resources Pro20 tection Act, the Secretary shall develop and 

21 issue written guidance for recovery and reburial 

22 under this section that meets or exceeds the re23 covery and reburial standards in policy state24 ments and guidance issued by the Advisory 

25 Council on Historic Preservation. 


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1 ‘‘(C) EMINENT DOMAIN PROHIBITION.— 

2 The Secretary may not exercise the power of 

3 eminent domain to acquire any property to be 

4 used for reburial under this section. 

5 ‘‘(3) RECOVERY AND REBURIAL.— 

6 ‘‘(A) RECOVERY AND REBURIAL BY SEC7 RETARY.—In consultation with and with the 

8 consent of each affected Indian Tribe, the Sec9 retary shall at Federal expense, with appro10 priate dignity and in accordance with the guid11 ance developed under paragraph (2)— 

12 ‘‘(i) recover any cultural resources 

13 identified or discovered at the site of a cov14 ered civil works project and rightfully 

15 claimed by any affected Indian Tribe; 

16 ‘‘(ii) rebury any human remains and 

17 funerary objects so recovered at the appli18 cable areas identified and set aside under 

19 paragraph (1); and 

20 ‘‘(iii) repatriate any other cultural re21 sources so recovered to the affected Indian 

22 Tribe that has rightfully claimed such cul23 tural resources. 

24 ‘‘(B) TRIBAL DELEGATION.— 


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1 ‘‘(i) IN GENERAL.—Upon the request 

2 of an affected Indian Tribe, the Secretary 

3 shall delegate to the Indian Tribe recovery 

4 and reburial responsibilities under this sec5 tion of cultural resources that have been 

6 rightfully claimed by the affected Indian 

7 Tribe, and shall reimburse the affected In8 dian Tribe for costs directly related to such 

9 recovery and reburial. 

10 ‘‘(ii) MEMORANDUM OF AGREE11 MENT.—In carrying out clause (i)— 

12 ‘‘(I) with respect to a burial site, 

13 village site, or cultural resources iden14 tified at a covered civil works project 

15 before construction of the project 

16 commences, the Secretary shall, upon 

17 request by the affected Indian Tribe, 

18 enter into a written memorandum of 

19 agreement with the affected Indian 

20 Tribe before such construction com21 mences; and 

22 ‘‘(II) with respect to a burial site, 

23 village site, or cultural resources dis24 covered at a covered civil works 

25 project after construction of the 


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1 project commences, the Secretary 

2 shall, upon request by the affected In3 dian Tribe, enter into a written 

4 memorandum of agreement with the 

5 affected Indian Tribe not later than 

6 45 days after such discovery. 

7 ‘‘(iii) LIMITATION.—Reimbursement 

8 under clause (i) shall not exceed 1 percent 

9 of the total cost of construction of the ap10 plicable covered civil works project. 

11 ‘‘(4) TRIBAL MONITORS.— 

12 ‘‘(A) IN GENERAL.—During the construc13 tion of any covered civil works project, the Sec14 retary may hire a Tribal monitor or monitors, 

15 and shall allow any affected Indian Tribe to 

16 hire a Tribal monitor or monitors, at Federal 

17 expense, for each area of construction, including 

18 for each burial site and village site with respect 

19 to which Native American cultural resources 

20 are being recovered for reburial. 

21 ‘‘(B) QUALIFICATIONS.—The Secretary or 

22 affected Indian Tribe, as applicable, shall en23 sure that preference in hiring Tribal monitors 

24 under this paragraph is provided to qualified 

25 Native Americans, including individuals who— 


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1 ‘‘(i) have a professional relationship 

2 with the affected Indian Tribe; or 

3 ‘‘(ii) possess knowledge of, and exper4 tise in, the customs of the affected Indian 

5 Tribe. 

6 ‘‘(C) LIMITATION.—The Federal expense 

7 of Tribal monitors hired under this paragraph 

8 shall not exceed 1 percent of the total cost of 

9 construction of the applicable covered civil 

10 works project. 

11 ‘‘(5) IDENTIFICATION AND INVENTORY.—The 

12 Secretary shall accept identifications made by an af13 fected Indian Tribe of Native American burial sites 

14 and village sites at the site of a covered civil works 

15 project, and include such identifications in any in16 ventory document for such project. 

17 ‘‘(6) TIMING OF PAYMENTS.—The Secretary 

18 shall enter into a contract or other agreement to 

19 make a payment to an affected Indian Tribe for re20 imbursement of costs under paragraph (3)(B) or ex21 penses under paragraph (4), which payment shall be 

22 made not later than 90 days after the affected In23 dian Tribe submits an invoice for such costs or ex24 penses to the Secretary.’’. 


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1 (c) CONVEYANCE AUTHORITY.—Section 208(c)(1) of 

2 the Water Resources Development Act of 2000 (33 U.S.C. 

3 2338(c)(1)) is amended by striking ‘‘the Secretary may 

4 convey to an Indian tribe for use as a cemetery an area 

5 at a civil works project that is identified and set aside by 

6 the Secretary under subsection (b)(1)’’ and inserting ‘‘the 

7 Secretary may convey to an affected Indian Tribe for use 

8 as a cemetery or reburial area any area that is located 

9 on land owned by the Department of the Army and is 

10 identified and set aside under subsection (b)(1)’’. 

11 (d) CONFIDENTIALITY; AVOIDANCE OF DUPLICA12 TION.—Section 208 of the Water Resources Development 

13 Act of 2000 (33 U.S.C. 2338) is amended by adding at 

14 the end the following: 

15 ‘‘(d) CONFIDENTIALITY OF INFORMATION PRO16 VIDED.— 

17 ‘‘(1) IN GENERAL.—The Secretary shall develop 

18 and issue written guidance regarding the confiden19 tiality of information provided to the Department of 

20 the Army by Indian Tribes in connection with any 

21 covered civil works project. 

22 ‘‘(2) APPLICABILITY OF FOIA.—Information 

23 provided to the Department of the Army by an In24 dian Tribe under this section shall be exempt from 

25 public disclosure under section 552(b)(3) of title 5, 


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1 United States Code, to protect Native American bur2 ial sites, village sites, and cultural resources, and 

3 their locations, from unauthorized excavation, dese4 cration, or vandalism. 

5 ‘‘(e) AVOIDANCE OF DUPLICATION.—In carrying out 

6 this section, the Secretary shall avoid, to the maximum 

7 extent practicable, duplication of efforts relating to com8 pliance with this section and any other applicable provision 

9 of law.’’. 

10 (e) APPLICABILITY.—Any requirement of subsection 

11 (b) of section 208 of the Water Resources Development 

12 Act of 2000 resulting from the amendments made by this 

13 section shall not affect any contract relating to a covered 

14 civil works project (as defined in such section 208) entered 

15 into by the Secretary of the Army before the date of enact16 ment of this Act. 

Æ 


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