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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6716 Introduced in House (IH)]

<DOC>

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Native American Burial Sites and 
Cultural Resources Protection Act''.

SEC. 2. REBURIAL AND CONVEYANCE AUTHORITY.

    (a) Definitions.--Section 208(a) of the Water Resources Development 
Act of 2000 (33 U.S.C. 2338(a)) is amended to read as follows:
    ``(a) Definitions.--In this section:
            ``(1) Affected indian tribe.--The term `affected Indian 
        Tribe' means any Indian Tribe that attaches religious or other 
        significance to any burial site, village site, or cultural 
        resources identified or discovered at a covered civil works 
        project.
            ``(2) Burial site.--The term `burial site' means any 
        natural or prepared physical location, whether originally 
        below, on, or above the surface of the earth, where Native 
        American cultural resources are present as a result of a death 
        rite or ceremony of a culture.
            ``(3) Covered civil works project.--The term `covered civil 
        works project' means a civil works project--
                    ``(A) that is being carried out, or operated and 
                maintained, using Federal funds; and
                    ``(B) that is owned, authorized, permitted, carried 
                out, or operated and maintained by the Department of 
                the Army, including a project carried out by a non-
                Federal interest under section 204 of the Water 
                Resources Development Act of 1986 (33 U.S.C. 2232) or 
                section 1043 of the Water Resources Reform and 
                Development Act of 2014 (33 U.S.C. 2201 note).
            ``(4) Cultural resources.--The term `cultural resources' 
        means--
                    ``(A) human remains; or
                    ``(B) funerary objects or other ceremonial objects.
            ``(5) Funerary objects.--The term `funerary objects' means 
        items that are associated with the death rite or ceremony of a 
        culture.
            ``(6) Human remains.--The term `human remains' means the 
        physical remains of a human body, including such remains that 
        have been cremated and that may be in any state of 
        decomposition or skeletal completeness (including ashes or 
        small bone fragments).
            ``(7) Indian tribe.--The term `Indian Tribe' has the 
        meaning given that term in section 4(e) of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 5304(e)).
            ``(8) Rightfully claimed.--The term `rightfully claimed' 
        means claimed by--
                    ``(A) with respect to cultural resources identified 
                or discovered on Federal or Tribal lands at the site of 
                a covered civil works project--
                            ``(i) the person or entity with ownership 
                        or control of the cultural resources under 
                        section 3 of the Native American Graves 
                        Protection and Repatriation Act (25 U.S.C. 
                        3002); or
                            ``(ii) with respect to cultural resources 
                        not subject to such Act, the appropriate person 
                        or entity determined in accordance with the 
                        priority order established by such section; and
                    ``(B) with respect to cultural resources identified 
                or discovered on other lands at the site of a covered 
                civil works project--
                            ``(i) in the case of Native American human 
                        remains and funerary objects associated with 
                        such remains, the lineal descendants of the 
                        Native American, as determined in accordance 
                        with the laws of the State in which the site is 
                        located; or
                            ``(ii) in any case in which such lineal 
                        descendants cannot be ascertained, and in the 
                        case of other funerary objects or other 
                        ceremonial objects--
                                    ``(I) the Indian Tribe with the 
                                highest priority under the priority 
                                order established by the laws of the 
                                State in which the site is located; or
                                    ``(II) if the State in which the 
                                site is located has not so established 
                                a priority order--
                                            ``(aa) the Indian Tribe 
                                        that has the closest cultural 
                                        affiliation with the cultural 
                                        resources; or
                                            ``(bb) if the cultural 
                                        affiliation of the cultural 
                                        resources cannot be reasonably 
                                        ascertained--

                                                    ``(AA) the Indian 
                                                Tribe that is 
                                                recognized as 
                                                aboriginally occupying 
                                                the area in which the 
                                                cultural resources were 
                                                identified or 
                                                discovered; or

                                                    ``(BB) if it can be 
                                                shown by a 
                                                preponderance of the 
                                                evidence that a 
                                                different Indian Tribe 
                                                has a stronger cultural 
                                                relationship with the 
                                                cultural resources than 
                                                the Indian Tribe 
                                                specified in subitem 
                                                (AA), the Indian Tribe 
                                                that has the strongest 
                                                demonstrated 
                                                relationship with such 
                                                cultural resources.

            ``(9) Village site.--The term `village site' means any 
        natural or prepared physical location, whether below, on, or 
        above the surface of the earth, where a Native American village 
        has been present.''.
    (b) Recovery and Reburial Requirements.--Section 208(b) of the 
Water Resources Development Act of 2000 (33 U.S.C. 2338(b)) is amended 
to read as follows:
    ``(b) Reburial.--
            ``(1) Reburial areas.--In consultation with and with the 
        consent of each affected Indian Tribe, the Secretary shall 
        identify, and, as applicable, cooperate with appropriate 
        property owners to set aside, areas that may be used for the 
        reburial of Native American human remains and funerary objects 
        that--
                    ``(A) have been identified or discovered at the 
                site of a covered civil works project;
                    ``(B) have been rightfully claimed by any affected 
                Indian Tribe; and
                    ``(C) can be reburied in such areas in a manner 
                secure from future disturbances, with the consent of 
                the property owner or owners, as applicable.
            ``(2) Recovery and reburial standards.--
                    ``(A) Timing of recovery.--
                            ``(i) Requirements.--The Secretary shall 
                        work in good faith with each affected Indian 
                        Tribe, and each owner of property affected by 
                        the recovery process, to ensure that--
                                    ``(I) the recovery from the site of 
                                a covered civil works project of Native 
                                American cultural resources under this 
                                section is completed, pursuant to a 
                                written plan or protocol, not later 
                                than 45 days after the initiation of 
                                recovery from the site; and
                                    ``(II) with respect to a burial 
                                site, village site, or cultural 
                                resources identified at the site of a 
                                covered civil works project before 
                                construction of the covered civil works 
                                project commences, such recovery is 
                                completed before such construction 
                                commences on the portion of the covered 
                                civil works project affected by the 
                                recovery process.
                            ``(ii) Alternative timetable.--
                        Notwithstanding the deadlines established by 
                        clause (i), the Secretary, each relevant non-
                        Federal interest for the covered civil works 
                        project, each affected Indian Tribe, and each 
                        owner of property affected by the recovery 
                        process may negotiate and agree to an 
                        alternative timetable for recovery other than 
                        that required by such clause, based on the 
                        circumstances of the applicable covered civil 
                        works project.
                    ``(B) Guidance.--Not later than 180 days after the 
                date of enactment of the Native American Burial Sites 
                and Cultural Resources Protection Act, the Secretary 
                shall develop and issue written guidance for recovery 
                and reburial under this section that meets or exceeds 
                the recovery and reburial standards in policy 
                statements and guidance issued by the Advisory Council 
                on Historic Preservation.
                    ``(C) Eminent domain prohibition.--The Secretary 
                may not exercise the power of eminent domain to acquire 
                any property to be used for reburial under this 
                section.
            ``(3) Recovery and reburial.--
                    ``(A) Recovery and reburial by secretary.--In 
                consultation with and with the consent of each affected 
                Indian Tribe, the Secretary shall at Federal expense, 
                with appropriate dignity and in accordance with the 
                guidance developed under paragraph (2)--
                            ``(i) recover any cultural resources 
                        identified or discovered at the site of a 
                        covered civil works project and rightfully 
                        claimed by any affected Indian Tribe;
                            ``(ii) rebury any human remains and 
                        funerary objects so recovered at the applicable 
                        areas identified and set aside under paragraph 
                        (1); and
                            ``(iii) repatriate any other cultural 
                        resources so recovered to the affected Indian 
                        Tribe that has rightfully claimed such cultural 
                        resources.
                    ``(B) Tribal delegation.--
                            ``(i) In general.--Upon the request of an 
                        affected Indian Tribe, the Secretary shall 
                        delegate to the Indian Tribe recovery and 
                        reburial responsibilities under this section of 
                        cultural resources that have been rightfully 
                        claimed by the affected Indian Tribe, and shall 
                        reimburse the affected Indian Tribe for costs 
                        directly related to such recovery and reburial.
                            ``(ii) Memorandum of agreement.--In 
                        carrying out clause (i)--
                                    ``(I) with respect to a burial 
                                site, village site, or cultural 
                                resources identified at a covered civil 
                                works project before construction of 
                                the project commences, the Secretary 
                                shall, upon request by the affected 
                                Indian Tribe, enter into a written 
                                memorandum of agreement with the 
                                affected Indian Tribe before such 
                                construction commences; and
                                    ``(II) with respect to a burial 
                                site, village site, or cultural 
                                resources discovered at a covered civil 
                                works project after construction of the 
                                project commences, the Secretary shall, 
                                upon request by the affected Indian 
                                Tribe, enter into a written memorandum 
                                of agreement with the affected Indian 
                                Tribe not later than 45 days after such 
                                discovery.
                            ``(iii) Limitation.--Reimbursement under 
                        clause (i) shall not exceed 1 percent of the 
                        total cost of construction of the applicable 
                        covered civil works project.
            ``(4) Tribal monitors.--
                    ``(A) In general.--During the construction of any 
                covered civil works project, the Secretary may hire a 
                Tribal monitor or monitors, and shall allow any 
                affected Indian Tribe to hire a Tribal monitor or 
                monitors, at Federal expense, for each area of 
                construction, including for each burial site and 
                village site with respect to which Native American 
                cultural resources are being recovered for reburial.
                    ``(B) Qualifications.--The Secretary or affected 
                Indian Tribe, as applicable, shall ensure that 
                preference in hiring Tribal monitors under this 
                paragraph is provided to qualified Native Americans, 
                including individuals who--
                            ``(i) have a professional relationship with 
                        the affected Indian Tribe; or
                            ``(ii) possess knowledge of, and expertise 
                        in, the customs of the affected Indian Tribe.
                    ``(C) Limitation.--The Federal expense of Tribal 
                monitors hired under this paragraph shall not exceed 1 
                percent of the total cost of construction of the 
                applicable covered civil works project.
            ``(5) Identification and inventory.--The Secretary shall 
        accept identifications made by an affected Indian Tribe of 
        Native American burial sites and village sites at the site of a 
        covered civil works project, and include such identifications 
        in any inventory document for such project.
            ``(6) Timing of payments.--The Secretary shall enter into a 
        contract or other agreement to make a payment to an affected 
        Indian Tribe for reimbursement of costs under paragraph (3)(B) 
        or expenses under paragraph (4), which payment shall be made 
        not later than 90 days after the affected Indian Tribe submits 
        an invoice for such costs or expenses to the Secretary.''.
    (c) Conveyance Authority.--Section 208(c)(1) of the Water Resources 
Development Act of 2000 (33 U.S.C. 2338(c)(1)) is amended by striking 
``the Secretary may convey to an Indian tribe for use as a cemetery an 
area at a civil works project that is identified and set aside by the 
Secretary under subsection (b)(1)'' and inserting ``the Secretary may 
convey to an affected Indian Tribe for use as a cemetery or reburial 
area any area that is located on land owned by the Department of the 
Army and is identified and set aside under subsection (b)(1)''.
    (d) Confidentiality; Avoidance of Duplication.--Section 208 of the 
Water Resources Development Act of 2000 (33 U.S.C. 2338) is amended by 
adding at the end the following:
    ``(d) Confidentiality of Information Provided.--
            ``(1) In general.--The Secretary shall develop and issue 
        written guidance regarding the confidentiality of information 
        provided to the Department of the Army by Indian Tribes in 
        connection with any covered civil works project.
            ``(2) Applicability of foia.--Information provided to the 
        Department of the Army by an Indian Tribe under this section 
        shall be exempt from public disclosure under section 552(b)(3) 
        of title 5, United States Code, to protect Native American 
        burial sites, village sites, and cultural resources, and their 
        locations, from unauthorized excavation, desecration, or 
        vandalism.
    ``(e) Avoidance of Duplication.--In carrying out this section, the 
Secretary shall avoid, to the maximum extent practicable, duplication 
of efforts relating to compliance with this section and any other 
applicable provision of law.''.
    (e) Applicability.--Any requirement of subsection (b) of section 
208 of the Water Resources Development Act of 2000 resulting from the 
amendments made by this section shall not affect any contract relating 
to a covered civil works project (as defined in such section 208) 
entered into by the Secretary of the Army before the date of enactment 
of this Act.
                                 <all>
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